THE TRIALS, TRIBULATIONS AND HEROISM OF THE SELF-REPRESENTED LITIGANT!

Recently, I had the experience of watching a self represented party defend himself during a court hearing.  In my day, I was also a self represented party for around two years, so I understand what it is like.  Yet watching someone else play that role was still a real eye opener. 

The most important observation I had was to see three highly intelligent, well trained, extremely experienced individuals participate in a process that was clearly damaging to everyone involved--the parents and the children.  Every member of the family involved in this case, it was clear to me, would ultimately end up with severe scars as a result of what was happening that day, and throughout the extended legal proceedings in the case. 

 

But don't let me get ahead of myself.  First, allow me to tell you some of the initial lessons I learned from the experience.

 

SELF REPRESENTED PARTIES ARE THE TRUE HEROES OF THE COURT ROOM

 

Again, as self represented parties we know that we are going to lose, yet we choose to represent ourselves anyway. 

 

Why?  

 

There are some very practical reasons for representing ourselves, the first being that we absolutely do not have any money left to pay an attorney to represent us.  The second most common reason is that even if we did have the money, no one would represent us anyway because we have become courtroom poison. 

 

You have to understand these attorneys, let alone the judges, are all in their little club, and they all gossip with one another, and if their little group has decided they are going to make you miserable and make sure you lose and ruin any attorney who tries to do it differently, that is exactly what they will do.  

Other than that, we do what we do because we believe in the justness of our cause. 

 

Self represented parties essentially make the heroic last stands.  We are Custer and his men and we know that the Indians are going to kill every last one of us.  We are Massada!  We are the Alamo! 

 

Yet, even though we know we will lose, nonetheless, many of us work very hard to learn court rules and the law so that we can conduct ourselves respectably.  I know I spent hours reading up on what I had to do in terms of presenting exhibits, developing an argument, responding with my objections, and examining witnesses.  I know many other people who do the same. 

 

And for what?  Why are we doing all those hours and hours of studying and hard work?  Because we are heroic and we are fighting for what is right, good and true, even though we know that the bottom line is that we will never win.

 

SELF REPRESENTED PARTIES ARE NOT AND NEVER WILL BE MEMBERS OF THE CLUB

 

In these recent court proceedings where I was observing, the day started with the usual introductions and the swearing in of the parties and attorneys that they agreed to tell "the truth, the whole truth and nothing but the truth so help me God."(yes, I know, very funny!!!) 

 

Once that was done the judge announced that it was good to see old friends again. 

 

Of course, we all know that my friend the self represented party wasn't included as one of these old friends.  I mean, self represented parties generally come in for their court proceedings, and then, once they are trashed completely, they leave and the judge doesn't get to see them again.  They don't get "old"! 

 

No, the only ones that get old are the attorneys who keep coming back for say thirty years or more. 

 

What that means is that the self represented party will most likely be representing himself for the first and last time in that court.  The opposing attorney, on the other hand, most likely has been in that courtroom for years and years and will continue on that way. 

 

So while the self represented party is a total beginner and just learning to act as an attorney, the opposing side can apply all those legal skills in his or her sleep.  So right away you have a complete imbalance of power. 

 

Plus, these folks have seen each other at meetings, spent time with one another on committees and commissions; they have loads of history. 

 

In my case, the judge had actually provided legal representation to my custody evaluator and so they had this personal and professional relationship going.  So already they trust one another ten times more than they trust you as a self represented party--you will never be designated as an "old friend."

 

SELF REPRESENTED PARTIES ARE HONORARY MEMBERS OF THE CRAZY CLUB

 

In family court, the most frequently used method to trash the designated losing party is to call that party crazy.  This means that self-represented parties are pretty much guaranteed to end up being called crazy since they are the losing parties.  That means they end up being honorary members of the crazy club. 

 

The crazy club, in case you didn't know, is the very special club for the mentally ill.  Mental illness is a disability and normally the fact that a person has a disability is not a reason to deny such people their constitutional and human rights.  However, in the court room, the fact that a person has a mental health disability is equivalent to stating that a person is a subhuman monster. 

 

So when the court decides that you are crazy, that is the end of any opportunity you might have to be treated fairly.

 

Usually, of course, most self represented parties aren't mentally ill at all.  They are simply highly principled individuals who are insisting upon their rights.  So what can the Court do when they have no evidence that these self-represented parties have any mental illness and the psychological test results indicate they have no mental illness and mental health professionals support the fact that they have no mental illness? 

 

They will just hint that a mental illness exists even though there is no evidence for one.  The judge, or the opposing attorney will say of the self represented party, we know that there is some mental health problem, but we haven't yet put our fingers on it yet.  The self represented party has some undiagnosed disorder.  Wink!  Wink!  Wink! 

 

SELF REPRESENTED PARTIES COULD BE WINNING, BUT YOU'D NEVER KNOW

 

It is amazing how many details you notice when you are observing and you are not representing yourself. For one thing, as I watched my friend, it became clear to me that every time he presented a series of irrefutable facts in support of his position, the judge would immediately interrupt loudly and start berating him for some minor violation of court rules, and the opposing attorney would jump up with objection after objection, many of them with a very trivial basis. 

 

If they didn't jump up and down and make a lot of noise in response to my self represented friend's strong defense, the judge and the attorney would lapse into silence and stop responding altogether.  The judge would stop making any eye contact with my friend and would start staring fixedly at the opposite side of the courtroom. 

 

Another tactic I saw the judge employ when my friend was making too many points successfully was to ask highly technical questions about court rules which would overwhelm even an experienced attorney. 

 

Then another approach I saw was when the judge stated that a particular legal procedure my friend used was incorrect when I happen to know very well that it was correct.  I had that happen to me frequently during my time as a self represented party.  The judge had no problem making procedure up right on the spot.

 

Another tactic was when the opposing attorney drilled my friend with a whole lot of peripheral and irrelevant questions to the point where he completely lost track of what he was doing! 

 

Judges will never, ever rule in favor of a self represented party if they can help it.  So, you might have a series of motions, one after another, and if those motions are from the self represented party, they will be denied. 

 

Also, while all this is going on the judge, the marshals, the court reporter are all smirking when the self represented party is looking at his notes, or searching through papers trying to find his exhibits.  It's all really amusing to them.

 

Meanwhile, the judge is like, "Take your time, Mr. So and So.  Don't let me rush you."

 

SELF REPRESENTED PARTIES ARE ASKED TO BELIEVE TOTAL NONSENSE

 

In the case of my friend, at one point in the proceedings, he tried to prevent hearsay testimony from coming into the record.  However, the judge allowed that testimony stating that it wasn't being considered in regard to its truth, but only as an indication of how a person relevant to the case felt.  Yet I am sure every last one of us in that courtroom knew the judges' statement wasn't true, and that the hearsay evidence was being considered for its truth. 

 

With me, I was asked to believe that my children who are disabled and that the ADA Coordinator had verified were disabled, were, in fact, NOT disabled. 

 

There is other kind of nonsense we are supposed to believe, for instance, that a parent who has never harmed his or her child ever, who has never sexually molested the child, has never hit the child, has never been criticized in raising the child, all of a sudden requires supervised visitation, or could even end up being barred from seeing the child permanently without any logical justification.

 

AND THEN THE FINAL, MOST BRUTAL CUT OF ALL

 

If there is one thing that comes out most clearly from spending a day in court watching a self represented party, it is that no matter what the facts of a case are they can be spun either in favor of the one side or the other at will. 

 

It is clear that what occurred in my case and also in the case of my friend is that the judge and the attorneys had made an advanced decision in regard to who was going to win. 

 

We spent hours in the courtroom that day, undergoing a ritual that already had a foregone conclusion, going through the motions, pretending that the judge was listening and carefully considering the evidence, when in fact he was not.  His mind was already made up. 

 

Still, that wasn't all in terms of the damage.  Then came the most brutal part of this process when my friend had to sit silently as the judge gave him a long lecture full of lies and misrepresentations pretty much stating that everything that had happened wrong in the case was his fault.   

That is where the self represented party's real heroism comes in, when he or she has to face that kind of outright disrespect and wrongdoing in silence, while still maintaining a semblance of dignity and outer calm. 

 

Isaiah 53:7  "He was oppressed and he was afflicted, yet he opened not his mouth."

CONCLUSIONS: 

What I found absurd in this whole situation is the fact that the professionals in that courtroom were applying skills that were developed hundreds of years ago to the present situation.  We don't use leaches to cure physical ills any longer, we don't put people in the stocks.  So why are we using a legal approach that is more appropriate to prior centuries instead of living in the present and using the knowledge that we have today?  We don't put victims of polio in iron lungs; we inoculate them.  Why are we doing the same when it comes to divorce?  That is, acting like we are living in an era when we burn people at the stake?

We now know as the result of family systems therapy that when you harm one member of the family, you harm them all.  You can't just haul one person out of the family and trash that person with trumped up accusations and think that every member of that family will not suffer for that in the end.

Why can't we think that?  Because we live in the modern world and we have made major discoveries about how the human brain works long since the  legal system developed theories about hearsay.

Now, it is all very nice that the attorneys and the judge in this case cited a psychiatrist who conducted an evaluation.  However, it is important to note that the concepts upon which that psychiatrist based his report were only developed in the last 50 years and we still have a long way to go in terms of insights and understandings.  But one thing I do know since I have observed the field of psychiatry very closely over the years, and that is, I don't think that the concepts of psychiatry were intended to destroy the relationships between parents and children, or to subject parents to ritual torture in the courtroom.

These legal professionals want to have their cake and eat it to.  They want to use legal weapons invented in the medieval age to eviscerate fit parents and to use children as informants against those parents, a role that will scar them for life.  And they want the right to use the modern weapons of neurobiology to do it.  No ethical mental health professional would agree to participate in such a proceedings.  Why?  Because the mental health profession is a healing profession which has the obligation to do no harm, not to take sides in a legal proceeding which they know is antithetical to the physical and mental health of every family member involved.

I can't say that I have all the answers to the problems raised by divorce.  It's just that the one thing I do know is that what is going on and what I observed that day in the courtroom with my self represented friend is fundamentally unjust and should not be happening.  I also said to myself, here you have three highly intelligent legal professionals, all college educated and with three additional years of law school, and they can't figure out that what they are doing is absolutely appalling?  What's the matter with these people?  It's not exactly rocket science.  I'm not sure what, but we need to do something to stop this.