It is not uncommon for parties to represent themselves if they are legally permitted to do so. Lawyers can be very expensive for ordinary litigants, and some types of civil matters are more conducive to parties representing themselves rather than engaging counsel. However, courts sometimes treat lawyers and pro se parties differently when managing their dockets, and this might seem unfair to some people.
Most of the matters I deal with involve cases in which all parties are represented by counsel, but when I handle landlord-tenant matters or other types of cases, I see some pro se parties in the courtrooms I occupy. In some courts, lawyers sit in a separate section than pro se parties. For instance, in some landlord-tenant courts in which I have appeared, lawyers are instructed to sit in the jury box whereas all of the pro se parties need to sit in the area of the court designated for the public. The jury box is more comfortable than other parts of the courtroom, and I always wondered if this distinction was a result of favoritism for lawyers from judicial officers.
However, there are some good reasons why courts may wish to segregate lawyers from pro se parties. It is often important to know who is a lawyer and who is a pro se party since business entities cannot represent themselves in certain instances. I can also see a situation in which court officers might fear friction erupting between pro se parties and the lawyers who they are opposing, so perhaps it is easier to keep lawyers separate from pro se parties.
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In some courts in which I appear, including landlord-tenant courts, parties often need to wait for hours until the court calls their cases to be heard. However, some courts have a policy by which they hear cases in which all parties are represented by counsel first before hearing cases involving pro se parties. One justification I heard for this practice is to minimize the amount of billable time clients need to pay for their lawyers to be in court. Another justification for this practice is that hearing cases involving lawyers first frees up lawyers to handle other matters, which could be positive for the administration of justice.
However, pro se parties often need to take time off of work to appear in court, and their time is valuable as well. Courts may not be able to say that the time of lawyers is more valuable than the time of other people who appear in court. Accordingly, it may seem unfair that lawyers do not need to wait as long as other parties to have their cases heard.
Another practice that courts have when all parties are represented by lawyers is that the case is conferenced with the judge in chambers. Perhaps this is because court staff may not feel as safe permitting pro se parties to go into a judge’s chambers. Moreover, judges may wish to make things more public by conferencing matters in open court when the matter involves a pro se party. However, pro se parties may see this as a preferential practice, and it might make sense to conference all matters in open court even if the parties are represented by counsel.
I have never clerked or otherwise worked at a courthouse, and I am sure that courts treat pro se parties differently from lawyers for good reasons. I would love to hear from court officers on why they establish different practices for lawyers than they follow for pro se parties. However, courts need to be cognizant that such practices may seem unfair and only follow such procedures when the benefits significantly outweigh the perceived unfairness.
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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].