Before the Law(yer): Comment on Injustice in Person

Before the Law(yer): Comment on Injustice in Person I would like to begin by congratulating Dr. Rabeea Assy on his wonderful new book, where he has undertaken a noteworthy challenge—to contend with the growing incidence of self-representation by litigants in common law jurisdictions. Assy formulates a compelling case against an unfettered right of self-representation in civil trials, and challenges the prevalent conflation of access to justice with the right of self-representation in the civil arena. He argues that Litigation in Person (hereinafter: “LIP”) is taken for granted to be a natural expression of the right of access to civil trials, and advocates severing the knot between the access to court and self- representation. Writing this comment proved quite a challenge, as Assy literally left no stone un-turned. He provided a meticulous and thought-provoking account of each and every facet of the topic. While not necessarily agreeing with his ultimate proposition, I found many of his arguments in the book quite compelling. The book opens with what Assy depicts as a conundrum. In his words: … while common law countries regard self-representation as a fundamental right, most civil law systems take the opposite view and impose obligations of legal representations in most proceedings … this disparity presents a conundrum is comparative law: on the one hand, unfettered freedom to proceed in person is afforded by legal systems that are particularly reliant on the litigants’ professional skills and have complex adversarial rules of procedure and evidence, while on the other hand legal representation tends to be obligatory in systems that are judge-based and offer more flexible and informal procedures, and which therefore appear more conducive to self-representation.1 The first part of my comment will be dedicated to the question of whether the common law’s endorsement of LIPs in civil trials is, indeed, a conundrum. As I shall attempt to claim, the right of self-representation can be understood as the very embodiment of the Anglo-American popular and democratic conceptualization of the civil trial arena, which revolves around the active participation of laypersons at trial. I shall claim that the right of self-representation ought to be regarded against the background of other quintessential common law institutions—most notable of which is the jury. Furthermore, I shall claim, that the right of self-representation is also reflective of the adversarial logic underlying the common law tradition—that it is the adversarial logic taken to its end. As such, my argument will go, Dr. Assy’s critique poses a challenge not only to self-representation but to the adversarial system more generally and fundamentally. After evaluating LIPs against the background of the Anglo-American legal tradition, the second part of my comment will engage in an independent normative assessment of LIPs, irrespective of the Anglo-American landscape. Here I will contend with the efficiency, autonomy, and—what Assy terms—“litigant satisfaction” considerations, that are the central tenets of his normative case against an unfettered right to self-representation in civil trials. Part I In this part I will address the question of whether the Anglo-American world’s endorsement of a right of self- representation and its conflation with access to justice are, indeed, puzzling phenomena. Perhaps the best known literary work about access to justice and about the desire for knowledge of the Law is Kafka’s “Before the Law”. It offers the story of a countryman who seeks “admittance to the Law”. The gateway is guarded by a gatekeeper, who tells the man that he cannot be granted admittance at the moment, and then—for decades—ignores his persistent and earnest requests. The man spends his entire life awaiting permission, but to no avail.2 In this masterpiece Kafka portrays the stark barrier between the common man and the Law, between the layperson and the legal process. According to Professor Yoram Shachar in his article When Faust Takes a Lawyer, Kafka’s writing should be read against the background of the European civil law system.3 In civil law countries law and the legal process are viewed as intricate and complex matters, inaccessible to the layman, and reserved for legal professionals.4 European communities, claims Shachar, posed professionalism as the centerfold of trial, on belief that its epistemic and normative functions are best realized through processes of learning and specialization.5 The active role assumed at trial by professional judges stems from this view of the trial as an arena for professionals. And the same holds true for the role ascribed and reserved for professional lawyers. Put differently, unlike the assumption underlying Assy’s conundrum, there is room to claim that the active role of judges in the civil law tradition does not weaken the basis for professional representation of the parties. On the contrary, both characteristics of the civil law system stem from the same understanding regarding the ontology of Law and Trial—as arenas for professionals. Both features of the civil law system emanate from a point of view which essentially celebrates the barrier between the legal process and the layperson, a point of view which Assy readily endorses later on in the book, in his depiction of the law as inherently complex and in his proposal to (at least partly) confine the handling of civil trial to legal professionals. The common law world generally resists this view of the civil trial as a professional-bureaucratic enterprise. Rather, civil trial is viewed as a popular and democratic institution—premised upon common wisdom6 and revolving around lay participation. Laypersons are placed at the centerfold of trial under the belief, in Anglo-American world, that truth and justice can only be realized through open and dialectic public deliberation.7 Perhaps, the epitome of this conceptualization of the trial is the institution of the jury.8 The jury is composed of laypersons and functions not only as a judicial institution but also an institution of democracy: it is rooted in the belief that popular wisdom is superior in the realization of the epistemic and normative objectives of trial, and that legal matters can and ought to be simplified—so as to be transmitted to lay decision-makers. It is also rooted in the belief that juries form an equitable check on governmental power, including in the civil arena, where state power continues to lurk in the background. Finally, it is rooted in the assignment of intrinsic value to jury deliberations—as part of the democratic processes in society.9 The right of self-representation can be regarded as the mirror image of the institution of the jury. As a judicial institution, the right of self-representation—like the jury—is a means to contextualize truth.10 It is reflective of the belief that the epistemic functions of trial are most effectively realized by granting litigants the ability to put forth their arguments, including by formulating them in their own simple words. From the political perspective, like the jury, the right of self-representation is also justified in terms of the checks it provides on governmental power—it is conceptualized as preserving a space in the civil process where litigants are secluded from state power, generally, and from the imposition of legal representation by the state, specifically. And, lastly, like the institution of the jury, the right of Self Representation is also justified on democratic deliberation grounds and on the view that assigning litigating parties a personal and direct voice in trial is an essential form of political participation. Indeed, as claimed by Professor Eugene Cerruti, whom Assy quotes on p. 22 of the book—both the jury and the right of self-representation are a portrait of direct democracy at work.11 The right of self-representation reflects yet another central feature of the Anglo- American legal system—its adversarial nature. The adversarial process has numerous defining features and manifestations.12 For purposes of the current discussion suffice to define it in its simplest term as “a regulated storytelling contest between champions of competing, interpretive stories that are composed under significant restraints in front of an impartial fact-finder”.13 The Adversarial Model is characterized by party sovereignty over trial and pretrial proceedings.14 It is distinguished from the Inquisitorial model by control of the litigating parties over these key facets of the litigation: the initiation of the action and delineation of its epistemic and normative borders; the gathering of evidence, and the determination of the sequence of the proceedings.15 Judges are designated the role of passive umpires “who weigh the parties' competing claims from a neutral perch”.16 According to this model, the public functions of the civil trial—whether the uncovering of facts, the elucidation of norms, or the formulation of public narratives—are all placed at the hands of the litigating parties. As in other areas of “privatization”, whereby public functions are placed at the hands of private agents, the normative justifications for adversarialism are anchored in considerations of efficiency and autonomy.17 In terms of efficiency, the underlying assumption is that adversarialism is an ideal model of proof, because the litigating parties have the best access to the relevant information coupled with the strongest motivation to bring it before the court.18 In terms of autonomy, the Adversarial Model is perceived as preserving the control of the litigants in the judicial process and in this way controlling their fate. The book provides a thick account of the Adversarial Model and its intersection with the right of self-representation. But, in this account Assy highlights the tension between the self-representation and adversarial trials, and addresses the implementation difficulties associated with LIPs in an adversarial world. My claim, in contrast, is that LIPs are adversarial logic taken to its end. That they are the embodiment of the Adversarial Model’s conceptualization of the litigating parties as rational maximizers of their utilities and as autonomous agents acting on their own volition: On the efficiency front, the right of self-representation allows litigants to steer clear of structural principal agent problems, which are further exacerbated by the ethical duties lawyers owe the court and to opposing parties. The separate utility functions of lawyers and their clients may jeopardize not only the materialization of the parties’ personal utilities at trial and around the bargaining table, but also the epistemic and normative functions of trial, believed—at least under the central readings of the Adversarial Model—to be most effectively realized through privatization of these public functions to the hands of the litigating parties. An illustrative example of this point may be, that due to reputation-building considerations, lawyers would be reluctant to raise factual and legal claims that lay outside of the prevailing consensus. But, it may be those outlier arguments that most further their clients’ cases, and that most contribute to the evolvement of the Law. Moreover, irrespective of the specific content of the right of self-representation, the mere widening of the spectrum of choices made available to litigating parties by endorsing it, can—in itself—be utility enhancing for the parties. As a general matter, more choice with respect to the way a procedural right can be exercised enhances its value for the holder. A right that can be exercised both personally and by proxy, is of greater a priori value to its holder, than a right whose usage is restricted. The widening of the spectrum of choice is also meaningful from the decisional autonomy perspective. The autonomy issue will be further addressed below. At this point I would simply like to highlight how the right of self-representation is linked to the Adversarial Model’s construing of the litigating parties as autonomous agents, and to the Adversarial Model’s depiction of the civil trial as an inherently “personal” enterprise: starting with the former, the Adversarial Model views the trial as an important site for autonomy.19 It is premised upon the notion that authoring and telling one’s story in court is an essential part of authoring one’s life story.20 The point is not that one’s story be told at court but rather that one is free of external constraints to voice her story in court. There is room to claim that right of self-representation grants litigants the “fullest voice possible”21 at trial. It is a safeguard ensuring that litigants are given leeway to voice their stories in an unmediated manner, and to maintain full control over how these stories unfold at trial even when mediated.22 Moreover, the issue is not simply one of voice, in the sense of granting litigating parties a right to take the stand or to present their narratives at trial. Rather, it is also one of control, of allowing parties greatest and unfettered involvement in decisions affecting their lives in significant ways.23 The Adversarial Model emphasizes party control and initiative, and is premised upon the notion that control over the trial arena and over the decision-making process is essential for control over one’s fate. It provides litigants not only with their day in court, but also with full control over how this day unfolds and ends.24 The right of self-representation is a manifestation of these underlying premises—namely, of the recognition that the litigating parties—rather than their lawyers or society at large—will bear the consequences of the outcome a trial, and therefore, should be free to personally decide how to proceed and conduct their cases. In accordance with these organizing principles, the Adversarial Model delineates the division of labor between the litigating parties and judges. Litigating parties are assumed active roles in the process and in the realization of the objects of trial. Their active roles stand in stark contradiction to the judges’ passivity. Assy discusses this division of labor between judges and litigants at length, but he views it as an impediment to LIPs, due to judicial passivity. In my opinion, the picture is reversed: the active role litigating parties assume at civil trials is reflected not only in judicial passivity but also in subordination of other institutional players, including lawyers, to party control. This division of labor in civil trials stands at odds with mandated representation, which deprives parties of choice-making capacities essential for effective control of their case and their fate, and subjects them to the control of others. In addition to construction of the litigating parties, the Adversarial Model furthers a view of the civil trial as an inherently personal enterprise. It has been claimed that this conceptualization of the Adversarial trial is reflective of the competitive ethos at the core of adversarialism.25 In Kutak’s words, the Adversarial system reflects “the same deep- seated values we place on competition among economic suppliers, political parties, and moral and political ideals. It is an individualistic system of judicial process for an individualistic society”.26 Damaska contrasts this depiction of the legal process with the Inquisitorial model’s systemic orientation and its aspiration “to organize the world of fluid social reality into a system”.27 Whatever its underlying roots and motivations, the personalized and individualistic account of trial (and justice) under the Adversarial Model explains the historical antagonism to champerty in the Anglo- American world, the prevailing suspicion towards the alienability of legal claims, as well as the insistence on a “class plaintiff” even in the class action arena. This vision of trial stands at odds with the notion, underlying coerced attorney representation, that “others” can imprint the case with “our” handprints and bear the litigation task for “us”, even without our cooperation or consent; that the handling of “our cases” can exist irrespective of “us”. To conclude, there is room to claim that the right of self-representation is the very embodiment of the organizing logic of the Adversarial Model: that it is a reflection of the Adversarial Model’s construction of the litigating parties as autonomous agents, of its division of labor, of the truth relativity at its core, and of its personalized depiction of trial. The book’s implications can thereby be said to be more far-reaching than with respect to LIPs in the civil arena. Assy’s well-articulated critique of LIPs poses a challenge to the very notion of party control over the civil trial—whether in delineating the boundaries of the dispute, in bringing forth the evidence, or in furthering the public functions associated with civil trials more generally. Put differently, while my discussion hereto may have provided an answer to the comparative law conundrum, at the outset of Assy’s project—it paved way for a much larger question. In light of the link between a right of self-representation and the Adversarial Model, and given Assy’s critique of the latter, the question which arises is: can the Adversarial Model—in its entirety—be justified, according to Assy? Returning to Kafka’s “Before the Law”— after years of waiting at the gate of the Law, finally the countryman’s life is drawing to a close. Before his death he addresses the gatekeeper with one last question: “Everyone strives to reach the Law” says the countryman, “so how does it happen that for all these many years no one but myself has ever begged for admittance?” The doorkeeper recognizes that the man has reached his end, and roars in his ear: “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.” The gatekeeper’s stunning words can be taken to reflect the common law legal tradition’s conceptualization of the legal process, as an inherently individualized arena (as well as the tension that then arises when professionals become involved in the adjudicative process).28 These words depart from the civil law understanding of Law and the legal process, and reflect a vision of the trial as a personal enterprise. Under this personalized view, the trial is conceptualized as something which only we can carry out for ourselves. We can be assisted by others, including lawyers, when we choose to do so—but no one can take our place. No one can replace us at trial or enter the courtroom on our behalf. The gate is open for us, and for us only. Even if that means that sometimes we are left standing outside. Part II The discussion hereto attempted to substantiate the claim that LIPs co-align with the popular and democratic characteristics of the Anglo-American tradition and with the adversarial organizing logic of common law systems. In what follows I will turn to an independent normative evaluation of the right of self-representation in civil trials, on its own account and irrespective of its Anglo-American foundations. The central step that Assy takes in his book is to divorce the right of self-representation from the discourse on Access to Courts, and to demonstrate how the values underlying civil trials as he envisions them- most particularly, efficiency, autonomy, and “litigant satisfaction” - mandate representation by lawyers, at least in some civil cases.29 I shall turn to challenge each of these normative arguments, beginning with Assy’s efficiency based case against pro se litigation in the civil arena: The Efficiency-based Case Assy’s central efficiency-based objection to an unfettered right of self-representation in civil trials is rooted in the negative externalities unrepresented parties impose upon the judicial system and society at large, due to their lack of legal knowledge. Assy views LIPs as a potential impediment to the “effective and efficient administration of justice”.30 While acknowledging the possibility that lawyering may also impose costs (claiming on p. 34 of the book that “it is conceivable that in some instances, costs and delays could be greater when litigants are represented”) Assy goes on to argue as follows: Comparisons of the costs of cases involving lawyers to those involving litigants in person must look at the nature of expenditures and not just at the absolute costs incurred. Insofar as counsel make extensive use of the system to serve the development of a case and advance its proper disposition, the costs are entirely appropriate, since they are incurred so as to enforce the legal rights of the represented party. If litigants in person make less use of the court’s resources through lack of competence, the underlying purpose of the procedures is defeated, and the savings realised are not desirable as a matter of public policy.31 The qualitative distinction Assy draws between lawyer-induced costs and costs brought on the system by unrepresented parties can be challenged, however: First, just as litigating parties differ in their capabilities and faculties, so do lawyers. Some lawyers under-perform, and the costs they impose on the system are not necessarily outweighed by social utilities of the types Assy refers too. Second, Assy’s externalities argument draws heavily on a particular vision of the civil trial—a vision cultivated in a lawyer-dominated system. But the contours of effective and proper administration of justice are contingent upon the profile of cases comprising the judicial system, generally, and upon the prevalence of pro se litigation, more specifically. In a world where LIPs become the effective default (and against the background of a system increasingly leaning toward them) resort to lawyer representation and infusion of the civil trial with legalistic language may well lead to the qualitatively problematic results, of the type Assy attributed to LIPs. Against such a baseline, lawyer representation may inhibit effective administration of justice, complicate modes of discovery and trial, distort fact-finding, and drive litigation costs upwards (with no added social benefit). So, the issue is ultimately one of empirical baseline and of how pervasive self-representation is in the civil justice system. The validity of Assy’s LIPs inefficiency argument can be contested especially under current reality where 76 per cent of cases in the civil justice system involve an unrepresented party, and where in areas such as consumer law, housing, or domestic violence, pro se parties appear in up to 90 per cent of cases.32 To conclude this point, there is nothing inherently costlier or less efficient in pro se litigation. The proliferation of LIPs does not necessarily drive up litigation costs. On the contrary, perhaps this proliferation has tilted the scales in favor of LIPs, and led to a re-organization of the system around pro se litgation in a manner which, at least in the current point in time, subjects attorney representation to Assy’s externalities critique.33 The Autonomy-based Case Turning to Assy’s autonomy-based argument—Assy finds the autonomy rationale for pro se litigation to be unpersuasive as far as civil trials are concerned. He claims that the autonomy rationale is specifically tailored to the criminal process, and ought to be understood against the background of the criminal trial’s central features—namely, the asymmetry of power between prosecution and defendant, coupled with the threat of liberty deprivation. Assy’s autonomy-based argument can be contested as follows: First, even under Assy’s assumption, that the autonomy-based case for self-representation ought to be restricted to circumstances of power asymmetries between the litigating parties and to grave potential consequences of liberty deprivation, the criminal–civil divide may prove anachronistic and dysfunctional. The State versus individual trial is not exclusive to the criminal arena. The state files more civil claims than any other entity and is an equally frequent civil defendant.34 Many of the advantages enjoyed by the state in the criminal realm also apply in the civil trial. Therefore, to the extent that we believe that the imbalance of power between the state and the individual justifies arming the latter with a right to self-representation, this safeguard should also apply to the many civil actions to which the state is a party.35 The same holds true with respect to the severity of potential consequences: some categories of civil cases implicate interests that may lead to various forms of deprivation of liberty, such as civil contempt, civil commitment, and confinement under sexual predator laws.36 Other consequences of the civil trial, while not implicating liberty deprivation, may be considered just as grave—take the termination of parental rights as an illustrative example. As Kenneth Mann has asserted more widely, “The criminal and civil paradigms attempt to abstract a set of traits from the complex and multifaceted nature of sanctions, in which substantial areas of overlap exist between civil and criminal law. Almost every attribute associated with one paradigm appears in the other.”37 And here, as well, insofar as we hold that the threat of liberty deprivation justifies a right to self-representation, this would apply to substantial portions of the civil realm as well.38 On p. 59 of the book, Assy acknowledges the inadequacy of the formal civil–criminal classification in this regard, but continues to use it in his thesis as a shorthand.39 Assy’s autonomy-based argument can be contested even more broadly, and this brings me to my second point—aimed at a more general autonomy-based justification for pro se litigation in the realm of private law: in light of the voluminous literature and considerable disagreement as to what the terms “autonomy” and “autonomy in the courtroom” entail, for current purposes I will relate to these terms in a similar manner as the Supreme Court used them in the Faretta case—namely, as embodying the notion of a private space within which the litigating individual can choose and act upon her decisions free from external, state coercion.40 Against this backdrop, it is not surprising, that the criminal trial has been recognized as an important site of defendant autonomy.41 Criminal adjudication is the embodiment of state coercion. It is where the state uses its monopoly over the use of force to impose a particular conception of the good upon individuals. But, that is not to say that the criminal trial is the exclusive site where the state uses its coercive power to impose a specific conception of the good upon its constituents. The civil trial is also a site where the state plays a coercive role, intervenes in value judgments, and implicates personal autonomy. Take, for instance, contract law cases. The depiction of contract law and adjudication as private domains, dominated by consent and private interests, is contingent on ignoring the extent to which the state regulates the contractual arena and sets the ground rules that hinder one’s ability to induce others to contract.42 Contracts become “express” only when backed by state power.43 Likewise for the realms of tort or property. The reason that the role of state coercion and state intervention in value judgment is somewhat obfuscated in civil adjudication is that we are used to perceiving only rules of prohibition, and not rules of permission, as coercive ground rules.44 In reality, civil adjudication and private law set the rules of the game by which people seek their goals. They impact choice-making and influence behavior not by telling people what they should refrain from doing or are permitted to do, as does criminal law, but by providing the background conditions for choice. Through this, private law trials—like their criminal counterparts—also have great bearing on personal autonomy. A right to self-representation thus plays in civil trials a similarly essential role in shielding litigant autonomy against the exercise of state power. The Litigant-satisfaction Case The third facet of Assy’s thesis explores the issue of LIPs through the prism of—what he terms—“litigant satisfaction”. The general thrust of his claim in this regard, is that party satisfaction with adjudicatory proceedings is facilitated through favorable outcomes rather than through favorable processes, and that self-representation can be expected to enhance litigant dissatisfaction with case outcome.45 Assy claims that what litigants are essentially concerned with is winning, rather than with the participation at trial. In his words: while it stands to reason that people are likely to feel more satisfied and respected when they have been given an opportunity to express themselves and be listened to, when it comes to a legal process with high stakes, they are likely to be far more concerned with participation as an opportunity to influence the outcome in their favour.46 In his scrutiny of LIPs from the litigant-satisfaction perspective, Assy challenges the positive psychological effects attributed to a right of self-representation, and dedicates the great bulk of his discussion to the empirical question—of whether self-representation can be expected to enhance litigant satisfaction. I would like to shift the discussion to the more structural level, and to posit a counter-argument against Assy, that is detached from this empirical question. My claim in this regard is, that by focusing on litigant satisfaction, Assy’s argument overlooks the satisfaction of non-litigants with the adjudicatory system. Assy’s account ignores the dissatisfaction associated with the inability of individuals, whose rights have been compromised, to access the court. But, litigant satisfaction is only one component of public satisfaction with the adjudicatory system. A no-less-important aspect of public satisfaction refers to non-parties, to those segments of the population whose dissatisfaction with the adjudicatory system stems from the fact that they are unable to access it altogether. Demanding mandatory representation, as a prerequisite to conducting a civil trial, can be expected to enhance such inaccessibility to court, and to contribute to this latter form of dissatisfaction with the adjudicatory system. In other words, even if one were to adopt the empirical assumption, that mandatory representation furthers litigant satisfaction with the civil justice system, these benefits ought to be counterbalanced by the non-litigant dissatisfaction that mandatory representation would bring about. Needless to emphasize, that the issue of court inaccessibility is not only one of mere dissatisfaction. It leads to failures in the vindication of rights, obstructs justice, exposes certain individuals to harm, impairs overall deterrence, and more. Conclusion In my discussion hereto, I have attempted to challenge the central facets underlying Assy’s case against an unfettered right of self-representation in civil trials, and to contend with his efficiency-based, autonomy-based, and litigator-satisfaction arguments against LIPs. I have also attempted to demonstrate that the right of self-representation is rooted in the organizing logic underlying the common law system and the Adversarial Model, that it can be understood as the Adversarial Model taken to its end. Given Assy’s critique of the right of self-representation, my suggestion was that his book can be read as a case against party control of the civil trial and against the Adversarial Model, more generally. Assy could respond to this latter argument by resorting to the qualitatively unique features of the right of self-representation: he could claim, that access to counsel is unlike any other right at trial because it affects the very ability of parties to assert their other rights. Consultation with lawyers, he may claim, is a prerequisite to making informed decisions at trial, and is, therefore, constitutive of the very ability to exercise choice and control in the courtroom (and outside of it). This all brings me to my last point, with which I shall conclude: such qualifications regarding the uniqueness of the right to counsel—alongside the efficiency, autonomy, and litigant-satisfaction arguments Assy formulates in the book—may, at most, justify some sort of attorney involvement in the civil case. They do not necessarily translate into justification of full-fledged representation by lawyers. Thus, if we are concerned about lack of legal knowledge, which will inhibit litigants from exercising informed choice at trial—this situation could be remedied by insisting on exposing them to the relevant information, or by demanding initial consultation with lawyers. Placing full responsibility for conducting the trial in the hands of attorneys, and depriving parties of the ability to represent themselves, may be an overshoot. Similarly, even if we endorse Assy’s fears47 of the negative externalities uninformed parties may exert on the legal system, these failures may be remedied by mandating attorney consultation and a litigant learning-process. The same holds true with respect to all of the efficiency, autonomy and litigant-satisfaction arguments formulated in the book. The book treats the question of attorney representation/involvement as an all-or-nothing phenomenon. The proposal, with which it culminates, could benefit from a more nuanced treatment of the type of attorney involvement which would be justified, as well as from a more elaborate depiction of the specific circumstances of the civil cases in which lawyer involvement would, indeed, be warranted. Footnotes 1 Rabeea Assy, Injustice in Person: The Right of self- Representation 1 (2015). 2 Franz Kafka, Before the Law, in The Complete Stories and Parables 3, 3 (1983). 3 Yoram Shachar, When Faust Takes a Lawyer: On the Relations between Culture and Law, 3(1) Din Udvarim 147 (2007). See also Geoffrey L. Brackett, Franz Kafka’s “Before the Law”: A Parable, 35 Pace L. Rev. 1107 (2015). 4See also John H. Langbein, Comparative Criminal Procedure: Germany (1977); Lloyd L. Weinreb, Denial of Justice: Criminal Process in the United States (1977); Mirjan Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1103 (1975). 5 Shachar, supra note 3. 6Id. This is a crude simplification. Variations do exist in this regard within the Anglo-American world, and especially between the American common law system and the English common law system. For instance, the institution of Barrister-at-Law may be regarded as an island of bureaucratization and as reflecting an ethos of professionalism. Overall, however, the organizing logics underlying the common law and civil law systems can be said to diverge along the democratic-bureaucratic dichotomy. 7Id. 8 Richard O. Lempert, The Internationalization of Lay Legal Decision-Making: Jury Resurgence and Jury Research, 40 Cornell Int’l L.J. 477, 481 (2007). Here, too, variations exist between the American and the English common law systems. While the US inherited civil jury trials from England, and continues to routinely use juries in civil cases, civil jury trials have virtually been abandoned in the English system. See Scott Dodson, The Challenge of Comparative Civil Procedure, 60 Ala. L. Rev. 133, 141 (2008). Despite the marginal role juries currently play in civil trials in England, their foundational and historic roles are reflective of (and constitutive of) the popular and democratic ethos of civil adjudication in England and throughout the common law world. 9Developments in the Law: II. The Civil Jury, 110 Harv. L. Rev. 1421 (1997). 10 Nora V. Demleitner, More Than “Just” Evidence: Reviewing Mirjan Damaska’s Evidence Law Adrift, 47 Am. J. Comp. L. 515, 525 (1999). 11 E Cerruti, ‘Self-Representation in the International Arena: Striking a False Right of Spectacle’ (2009) [40] Georgetown Journal of International Law 919, 921 cited in Assy, supra note 1, at 22. 12 Mirjan R. Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. Pa. L. Rev. 507, 513 (1973). 13 Ralph Grunewald, Comparing Injustices: Truth, Justice, and the System, 77 Alb. L. Rev. 1139, 1256 (2013–14). 14 David Luban, Lawyers and Justice: An Ethical Study 57 (1988). 15 Amalia Kessler, Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial, 90 Cornell L. Rev. 1181, 1188 (2005). 16 Jessica K. Steinberg, Adversary Breakdown and Judicial Role Confusion in “Small Case” Civil Justice, B.Y.U.L. Rev. 899, 899 (2016). 17 Assy, supra note 1, at 14. 18 For discussion of the additional public utilities associated with the Adversarial Model, such as judicial legitimacy, and norm-setting, see Rethinking Adversariness in Nonjury Criminal Trials, 23 Am. J. Crim. L. 1, 14 (1995). 19 There is a large body of literature (and significant disagreement among scholars) about the definition of autonomy, generally, and litigant autonomy, specifically. For obvious reasons, I will not dwell on these issues in the book review. For further discussion of the difficulty in defining what autonomy entails and for a survey of some of its definitions see Erica J. Hashimoto, Resurrecting Autonomy: The Criminal Defendant's Right to Control the Case, 90 B.U.L. Rev. 1147, 1153 (2010). See also David Luban, Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann, 90 Colum. L. Rev. 1004, 1036 (1990). 20 Ellen E. Sward, Values, Ideology, and the Evolution of the Adversary System, 64 Ind. L.J. 301, 310 (1989). 21Id. at 318. 22 Reasoned decision-making is a mechanism to ensure the effectiveness of voice at trial. See: Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 387 (1978). 23 Ellen E. Sward, Values, Ideology, and the Evolution of the Adversary System, 64 Ind. L.J. 301, 310 (1989). 24 David Rosenberg, Class Actions for Mass Torts: Doing Individual Justice by Collective Means, 561. 25See, Anatol Rapaport, Theories of Conflict Resolution and Law, in M.L. Friedman, Courts and Trials: A Multidisciplinary Approach 22, 29 (1975) 26 See: Robert J. Kutak, The Adversary System and the Practice of Law, in David Luban (ed.), The Good Lawyer: Lawyers’ Roles And Lawyers’ Ethics 172, 174 (1983). 27 Mirjan Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1103 (1975). 28 Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1723 (2010). 29 “Access to Court” is a legal term, which can assume different meanings and be interpreted in a more or less broad manner, according to the values and objectives underlying the legal process. Thus, for example, Access to Court can be taken to mean a right to personal presence at trial, in the sense of face-to-face interaction with the adversary and the decisionmaker; or it can be understood to include- or even mandate- presence through proxy; Similarly, Access to Court can be interpreted as the right to personally voice one’s case in one’s own words, or it can be understood to mean the right to have one’s case heard before the court. Access to Court can be conceptualized in terms of control over the proceeding, or not; As encompassing a right of self-representation, or not; And so on and so forth. Whether deriving from Access to Court or not, pro se litigation can be prohibited, allowed or mandated, and likewise for lawyer representation. 30 Assy, supra note 1, at 2. It should be stressed, that the negative externalities that unrepresented parties may impose upon society, due to their inability to effectively handle their cases, are not restricted to the ex post level—to higher trial costs (what Assy terms “efficient administration of justice”) and higher error rates (what Assy terms “effective administration of justice”). They also affect the ex-ante level resulting in potential underdeterrence of undesirable social activities. 31Id. at 33. 32 According to the estimate of The National Center for State Courts. See Steinberg, supra note 16, at 899, 903. 33 Similar claims can be made with respect to other normative considerations articulated by Assy in the book—such as those referring to distributive justice or to legitimacy. The translation of these normative considerations to policy is also sensitive to the prevalence of lawyer representation in the civil justice system, and may also dictate varying attitudes towards pro se litigation against different empirical baselines. 34 In 1983, the United States was either plaintiff or defendant in 39.6% of the civil cases first brought in federal district courts. See 1983 Admin. Off. U.S. Courts Ann. Rep. of the Director 5 tbl.5. In 1990, the United States was a party in 25.8% of the civil litigation before federal district courts. See 1990 Admin. Off. U.S. Courts Ann. Rep. of the Director 8 tbl.6. In 2000, the number was 27.4%, but, in 2005, it fell to 20.7%. See 2000 Admin. Off. U.S. Courts Ann. Rep. of the Director 22 tbl.5; 2005 Admin. Off. U.S. Courts Ann. Rep. of the Director 20 tbl.4. 35 This is all the more true due to the special privileges enjoyed by the government in civil proceedings, such as the extended period of time for serving an answer, Fed. R. Civ. P. 12(a)(3). 36 See Kenneth Mann, Punitive Civil Sanctions: The Middle-ground between Criminal and Civil Law, 101 Yale L.J. 1795, 1798 (1992) (finding “rapidly expanding” punitive civil sanctions to be “sometimes more severely punitive than the parallel criminal sanctions for the same conduct”). 37Id. at 1804. 38 For a more general case against the civil–criminal taxonomy in procedural law, see Issi Rosen-Zvi & Talia Fisher, Overcoming Procedural Boundaries, 94 Virginia L. Rev. 79 (2008). 39 Assy, supra note 1, at 59. 40Faretta v. California, 422 U.S. at 834; Hashimoto, supra note 20. 41 Some have argued that the notion of defendant autonomy (or the rhetoric of free choice in the criminal arena) is incoherent, as criminal law is infested with state coercion. See: Robert E. Toone, The Incoherence of Defendant Autonomy, 83 N.C. L. Rev. 621 (2005). 42 Issi Rosen-Zvi & Talia Fisher, Overcoming Procedural Boundaries, 94 Virginia L. Rev. 79, 139 (2008). 43 Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 839 (1935). 44 Kennedy, supra note 90, at 90. 45 Assy, supra note 1, at 248 (2015). 46Id. at 264 (2015). 47 Which I attempted to challenge above. See Part II under “The Efficiency- based Case”. © The Author(s) 2018. Published by Oxford University Press and the Hebrew University of Jerusalem. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Jerusalem Review of Legal Studies Oxford University Press

Before the Law(yer): Comment on Injustice in Person

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© The Author(s) 2018. Published by Oxford University Press and the Hebrew University of Jerusalem. All rights reserved. For Permissions, please email: journals.permissions@oup.com
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Abstract

I would like to begin by congratulating Dr. Rabeea Assy on his wonderful new book, where he has undertaken a noteworthy challenge—to contend with the growing incidence of self-representation by litigants in common law jurisdictions. Assy formulates a compelling case against an unfettered right of self-representation in civil trials, and challenges the prevalent conflation of access to justice with the right of self-representation in the civil arena. He argues that Litigation in Person (hereinafter: “LIP”) is taken for granted to be a natural expression of the right of access to civil trials, and advocates severing the knot between the access to court and self- representation. Writing this comment proved quite a challenge, as Assy literally left no stone un-turned. He provided a meticulous and thought-provoking account of each and every facet of the topic. While not necessarily agreeing with his ultimate proposition, I found many of his arguments in the book quite compelling. The book opens with what Assy depicts as a conundrum. In his words: … while common law countries regard self-representation as a fundamental right, most civil law systems take the opposite view and impose obligations of legal representations in most proceedings … this disparity presents a conundrum is comparative law: on the one hand, unfettered freedom to proceed in person is afforded by legal systems that are particularly reliant on the litigants’ professional skills and have complex adversarial rules of procedure and evidence, while on the other hand legal representation tends to be obligatory in systems that are judge-based and offer more flexible and informal procedures, and which therefore appear more conducive to self-representation.1 The first part of my comment will be dedicated to the question of whether the common law’s endorsement of LIPs in civil trials is, indeed, a conundrum. As I shall attempt to claim, the right of self-representation can be understood as the very embodiment of the Anglo-American popular and democratic conceptualization of the civil trial arena, which revolves around the active participation of laypersons at trial. I shall claim that the right of self-representation ought to be regarded against the background of other quintessential common law institutions—most notable of which is the jury. Furthermore, I shall claim, that the right of self-representation is also reflective of the adversarial logic underlying the common law tradition—that it is the adversarial logic taken to its end. As such, my argument will go, Dr. Assy’s critique poses a challenge not only to self-representation but to the adversarial system more generally and fundamentally. After evaluating LIPs against the background of the Anglo-American legal tradition, the second part of my comment will engage in an independent normative assessment of LIPs, irrespective of the Anglo-American landscape. Here I will contend with the efficiency, autonomy, and—what Assy terms—“litigant satisfaction” considerations, that are the central tenets of his normative case against an unfettered right to self-representation in civil trials. Part I In this part I will address the question of whether the Anglo-American world’s endorsement of a right of self- representation and its conflation with access to justice are, indeed, puzzling phenomena. Perhaps the best known literary work about access to justice and about the desire for knowledge of the Law is Kafka’s “Before the Law”. It offers the story of a countryman who seeks “admittance to the Law”. The gateway is guarded by a gatekeeper, who tells the man that he cannot be granted admittance at the moment, and then—for decades—ignores his persistent and earnest requests. The man spends his entire life awaiting permission, but to no avail.2 In this masterpiece Kafka portrays the stark barrier between the common man and the Law, between the layperson and the legal process. According to Professor Yoram Shachar in his article When Faust Takes a Lawyer, Kafka’s writing should be read against the background of the European civil law system.3 In civil law countries law and the legal process are viewed as intricate and complex matters, inaccessible to the layman, and reserved for legal professionals.4 European communities, claims Shachar, posed professionalism as the centerfold of trial, on belief that its epistemic and normative functions are best realized through processes of learning and specialization.5 The active role assumed at trial by professional judges stems from this view of the trial as an arena for professionals. And the same holds true for the role ascribed and reserved for professional lawyers. Put differently, unlike the assumption underlying Assy’s conundrum, there is room to claim that the active role of judges in the civil law tradition does not weaken the basis for professional representation of the parties. On the contrary, both characteristics of the civil law system stem from the same understanding regarding the ontology of Law and Trial—as arenas for professionals. Both features of the civil law system emanate from a point of view which essentially celebrates the barrier between the legal process and the layperson, a point of view which Assy readily endorses later on in the book, in his depiction of the law as inherently complex and in his proposal to (at least partly) confine the handling of civil trial to legal professionals. The common law world generally resists this view of the civil trial as a professional-bureaucratic enterprise. Rather, civil trial is viewed as a popular and democratic institution—premised upon common wisdom6 and revolving around lay participation. Laypersons are placed at the centerfold of trial under the belief, in Anglo-American world, that truth and justice can only be realized through open and dialectic public deliberation.7 Perhaps, the epitome of this conceptualization of the trial is the institution of the jury.8 The jury is composed of laypersons and functions not only as a judicial institution but also an institution of democracy: it is rooted in the belief that popular wisdom is superior in the realization of the epistemic and normative objectives of trial, and that legal matters can and ought to be simplified—so as to be transmitted to lay decision-makers. It is also rooted in the belief that juries form an equitable check on governmental power, including in the civil arena, where state power continues to lurk in the background. Finally, it is rooted in the assignment of intrinsic value to jury deliberations—as part of the democratic processes in society.9 The right of self-representation can be regarded as the mirror image of the institution of the jury. As a judicial institution, the right of self-representation—like the jury—is a means to contextualize truth.10 It is reflective of the belief that the epistemic functions of trial are most effectively realized by granting litigants the ability to put forth their arguments, including by formulating them in their own simple words. From the political perspective, like the jury, the right of self-representation is also justified in terms of the checks it provides on governmental power—it is conceptualized as preserving a space in the civil process where litigants are secluded from state power, generally, and from the imposition of legal representation by the state, specifically. And, lastly, like the institution of the jury, the right of Self Representation is also justified on democratic deliberation grounds and on the view that assigning litigating parties a personal and direct voice in trial is an essential form of political participation. Indeed, as claimed by Professor Eugene Cerruti, whom Assy quotes on p. 22 of the book—both the jury and the right of self-representation are a portrait of direct democracy at work.11 The right of self-representation reflects yet another central feature of the Anglo- American legal system—its adversarial nature. The adversarial process has numerous defining features and manifestations.12 For purposes of the current discussion suffice to define it in its simplest term as “a regulated storytelling contest between champions of competing, interpretive stories that are composed under significant restraints in front of an impartial fact-finder”.13 The Adversarial Model is characterized by party sovereignty over trial and pretrial proceedings.14 It is distinguished from the Inquisitorial model by control of the litigating parties over these key facets of the litigation: the initiation of the action and delineation of its epistemic and normative borders; the gathering of evidence, and the determination of the sequence of the proceedings.15 Judges are designated the role of passive umpires “who weigh the parties' competing claims from a neutral perch”.16 According to this model, the public functions of the civil trial—whether the uncovering of facts, the elucidation of norms, or the formulation of public narratives—are all placed at the hands of the litigating parties. As in other areas of “privatization”, whereby public functions are placed at the hands of private agents, the normative justifications for adversarialism are anchored in considerations of efficiency and autonomy.17 In terms of efficiency, the underlying assumption is that adversarialism is an ideal model of proof, because the litigating parties have the best access to the relevant information coupled with the strongest motivation to bring it before the court.18 In terms of autonomy, the Adversarial Model is perceived as preserving the control of the litigants in the judicial process and in this way controlling their fate. The book provides a thick account of the Adversarial Model and its intersection with the right of self-representation. But, in this account Assy highlights the tension between the self-representation and adversarial trials, and addresses the implementation difficulties associated with LIPs in an adversarial world. My claim, in contrast, is that LIPs are adversarial logic taken to its end. That they are the embodiment of the Adversarial Model’s conceptualization of the litigating parties as rational maximizers of their utilities and as autonomous agents acting on their own volition: On the efficiency front, the right of self-representation allows litigants to steer clear of structural principal agent problems, which are further exacerbated by the ethical duties lawyers owe the court and to opposing parties. The separate utility functions of lawyers and their clients may jeopardize not only the materialization of the parties’ personal utilities at trial and around the bargaining table, but also the epistemic and normative functions of trial, believed—at least under the central readings of the Adversarial Model—to be most effectively realized through privatization of these public functions to the hands of the litigating parties. An illustrative example of this point may be, that due to reputation-building considerations, lawyers would be reluctant to raise factual and legal claims that lay outside of the prevailing consensus. But, it may be those outlier arguments that most further their clients’ cases, and that most contribute to the evolvement of the Law. Moreover, irrespective of the specific content of the right of self-representation, the mere widening of the spectrum of choices made available to litigating parties by endorsing it, can—in itself—be utility enhancing for the parties. As a general matter, more choice with respect to the way a procedural right can be exercised enhances its value for the holder. A right that can be exercised both personally and by proxy, is of greater a priori value to its holder, than a right whose usage is restricted. The widening of the spectrum of choice is also meaningful from the decisional autonomy perspective. The autonomy issue will be further addressed below. At this point I would simply like to highlight how the right of self-representation is linked to the Adversarial Model’s construing of the litigating parties as autonomous agents, and to the Adversarial Model’s depiction of the civil trial as an inherently “personal” enterprise: starting with the former, the Adversarial Model views the trial as an important site for autonomy.19 It is premised upon the notion that authoring and telling one’s story in court is an essential part of authoring one’s life story.20 The point is not that one’s story be told at court but rather that one is free of external constraints to voice her story in court. There is room to claim that right of self-representation grants litigants the “fullest voice possible”21 at trial. It is a safeguard ensuring that litigants are given leeway to voice their stories in an unmediated manner, and to maintain full control over how these stories unfold at trial even when mediated.22 Moreover, the issue is not simply one of voice, in the sense of granting litigating parties a right to take the stand or to present their narratives at trial. Rather, it is also one of control, of allowing parties greatest and unfettered involvement in decisions affecting their lives in significant ways.23 The Adversarial Model emphasizes party control and initiative, and is premised upon the notion that control over the trial arena and over the decision-making process is essential for control over one’s fate. It provides litigants not only with their day in court, but also with full control over how this day unfolds and ends.24 The right of self-representation is a manifestation of these underlying premises—namely, of the recognition that the litigating parties—rather than their lawyers or society at large—will bear the consequences of the outcome a trial, and therefore, should be free to personally decide how to proceed and conduct their cases. In accordance with these organizing principles, the Adversarial Model delineates the division of labor between the litigating parties and judges. Litigating parties are assumed active roles in the process and in the realization of the objects of trial. Their active roles stand in stark contradiction to the judges’ passivity. Assy discusses this division of labor between judges and litigants at length, but he views it as an impediment to LIPs, due to judicial passivity. In my opinion, the picture is reversed: the active role litigating parties assume at civil trials is reflected not only in judicial passivity but also in subordination of other institutional players, including lawyers, to party control. This division of labor in civil trials stands at odds with mandated representation, which deprives parties of choice-making capacities essential for effective control of their case and their fate, and subjects them to the control of others. In addition to construction of the litigating parties, the Adversarial Model furthers a view of the civil trial as an inherently personal enterprise. It has been claimed that this conceptualization of the Adversarial trial is reflective of the competitive ethos at the core of adversarialism.25 In Kutak’s words, the Adversarial system reflects “the same deep- seated values we place on competition among economic suppliers, political parties, and moral and political ideals. It is an individualistic system of judicial process for an individualistic society”.26 Damaska contrasts this depiction of the legal process with the Inquisitorial model’s systemic orientation and its aspiration “to organize the world of fluid social reality into a system”.27 Whatever its underlying roots and motivations, the personalized and individualistic account of trial (and justice) under the Adversarial Model explains the historical antagonism to champerty in the Anglo- American world, the prevailing suspicion towards the alienability of legal claims, as well as the insistence on a “class plaintiff” even in the class action arena. This vision of trial stands at odds with the notion, underlying coerced attorney representation, that “others” can imprint the case with “our” handprints and bear the litigation task for “us”, even without our cooperation or consent; that the handling of “our cases” can exist irrespective of “us”. To conclude, there is room to claim that the right of self-representation is the very embodiment of the organizing logic of the Adversarial Model: that it is a reflection of the Adversarial Model’s construction of the litigating parties as autonomous agents, of its division of labor, of the truth relativity at its core, and of its personalized depiction of trial. The book’s implications can thereby be said to be more far-reaching than with respect to LIPs in the civil arena. Assy’s well-articulated critique of LIPs poses a challenge to the very notion of party control over the civil trial—whether in delineating the boundaries of the dispute, in bringing forth the evidence, or in furthering the public functions associated with civil trials more generally. Put differently, while my discussion hereto may have provided an answer to the comparative law conundrum, at the outset of Assy’s project—it paved way for a much larger question. In light of the link between a right of self-representation and the Adversarial Model, and given Assy’s critique of the latter, the question which arises is: can the Adversarial Model—in its entirety—be justified, according to Assy? Returning to Kafka’s “Before the Law”— after years of waiting at the gate of the Law, finally the countryman’s life is drawing to a close. Before his death he addresses the gatekeeper with one last question: “Everyone strives to reach the Law” says the countryman, “so how does it happen that for all these many years no one but myself has ever begged for admittance?” The doorkeeper recognizes that the man has reached his end, and roars in his ear: “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.” The gatekeeper’s stunning words can be taken to reflect the common law legal tradition’s conceptualization of the legal process, as an inherently individualized arena (as well as the tension that then arises when professionals become involved in the adjudicative process).28 These words depart from the civil law understanding of Law and the legal process, and reflect a vision of the trial as a personal enterprise. Under this personalized view, the trial is conceptualized as something which only we can carry out for ourselves. We can be assisted by others, including lawyers, when we choose to do so—but no one can take our place. No one can replace us at trial or enter the courtroom on our behalf. The gate is open for us, and for us only. Even if that means that sometimes we are left standing outside. Part II The discussion hereto attempted to substantiate the claim that LIPs co-align with the popular and democratic characteristics of the Anglo-American tradition and with the adversarial organizing logic of common law systems. In what follows I will turn to an independent normative evaluation of the right of self-representation in civil trials, on its own account and irrespective of its Anglo-American foundations. The central step that Assy takes in his book is to divorce the right of self-representation from the discourse on Access to Courts, and to demonstrate how the values underlying civil trials as he envisions them- most particularly, efficiency, autonomy, and “litigant satisfaction” - mandate representation by lawyers, at least in some civil cases.29 I shall turn to challenge each of these normative arguments, beginning with Assy’s efficiency based case against pro se litigation in the civil arena: The Efficiency-based Case Assy’s central efficiency-based objection to an unfettered right of self-representation in civil trials is rooted in the negative externalities unrepresented parties impose upon the judicial system and society at large, due to their lack of legal knowledge. Assy views LIPs as a potential impediment to the “effective and efficient administration of justice”.30 While acknowledging the possibility that lawyering may also impose costs (claiming on p. 34 of the book that “it is conceivable that in some instances, costs and delays could be greater when litigants are represented”) Assy goes on to argue as follows: Comparisons of the costs of cases involving lawyers to those involving litigants in person must look at the nature of expenditures and not just at the absolute costs incurred. Insofar as counsel make extensive use of the system to serve the development of a case and advance its proper disposition, the costs are entirely appropriate, since they are incurred so as to enforce the legal rights of the represented party. If litigants in person make less use of the court’s resources through lack of competence, the underlying purpose of the procedures is defeated, and the savings realised are not desirable as a matter of public policy.31 The qualitative distinction Assy draws between lawyer-induced costs and costs brought on the system by unrepresented parties can be challenged, however: First, just as litigating parties differ in their capabilities and faculties, so do lawyers. Some lawyers under-perform, and the costs they impose on the system are not necessarily outweighed by social utilities of the types Assy refers too. Second, Assy’s externalities argument draws heavily on a particular vision of the civil trial—a vision cultivated in a lawyer-dominated system. But the contours of effective and proper administration of justice are contingent upon the profile of cases comprising the judicial system, generally, and upon the prevalence of pro se litigation, more specifically. In a world where LIPs become the effective default (and against the background of a system increasingly leaning toward them) resort to lawyer representation and infusion of the civil trial with legalistic language may well lead to the qualitatively problematic results, of the type Assy attributed to LIPs. Against such a baseline, lawyer representation may inhibit effective administration of justice, complicate modes of discovery and trial, distort fact-finding, and drive litigation costs upwards (with no added social benefit). So, the issue is ultimately one of empirical baseline and of how pervasive self-representation is in the civil justice system. The validity of Assy’s LIPs inefficiency argument can be contested especially under current reality where 76 per cent of cases in the civil justice system involve an unrepresented party, and where in areas such as consumer law, housing, or domestic violence, pro se parties appear in up to 90 per cent of cases.32 To conclude this point, there is nothing inherently costlier or less efficient in pro se litigation. The proliferation of LIPs does not necessarily drive up litigation costs. On the contrary, perhaps this proliferation has tilted the scales in favor of LIPs, and led to a re-organization of the system around pro se litgation in a manner which, at least in the current point in time, subjects attorney representation to Assy’s externalities critique.33 The Autonomy-based Case Turning to Assy’s autonomy-based argument—Assy finds the autonomy rationale for pro se litigation to be unpersuasive as far as civil trials are concerned. He claims that the autonomy rationale is specifically tailored to the criminal process, and ought to be understood against the background of the criminal trial’s central features—namely, the asymmetry of power between prosecution and defendant, coupled with the threat of liberty deprivation. Assy’s autonomy-based argument can be contested as follows: First, even under Assy’s assumption, that the autonomy-based case for self-representation ought to be restricted to circumstances of power asymmetries between the litigating parties and to grave potential consequences of liberty deprivation, the criminal–civil divide may prove anachronistic and dysfunctional. The State versus individual trial is not exclusive to the criminal arena. The state files more civil claims than any other entity and is an equally frequent civil defendant.34 Many of the advantages enjoyed by the state in the criminal realm also apply in the civil trial. Therefore, to the extent that we believe that the imbalance of power between the state and the individual justifies arming the latter with a right to self-representation, this safeguard should also apply to the many civil actions to which the state is a party.35 The same holds true with respect to the severity of potential consequences: some categories of civil cases implicate interests that may lead to various forms of deprivation of liberty, such as civil contempt, civil commitment, and confinement under sexual predator laws.36 Other consequences of the civil trial, while not implicating liberty deprivation, may be considered just as grave—take the termination of parental rights as an illustrative example. As Kenneth Mann has asserted more widely, “The criminal and civil paradigms attempt to abstract a set of traits from the complex and multifaceted nature of sanctions, in which substantial areas of overlap exist between civil and criminal law. Almost every attribute associated with one paradigm appears in the other.”37 And here, as well, insofar as we hold that the threat of liberty deprivation justifies a right to self-representation, this would apply to substantial portions of the civil realm as well.38 On p. 59 of the book, Assy acknowledges the inadequacy of the formal civil–criminal classification in this regard, but continues to use it in his thesis as a shorthand.39 Assy’s autonomy-based argument can be contested even more broadly, and this brings me to my second point—aimed at a more general autonomy-based justification for pro se litigation in the realm of private law: in light of the voluminous literature and considerable disagreement as to what the terms “autonomy” and “autonomy in the courtroom” entail, for current purposes I will relate to these terms in a similar manner as the Supreme Court used them in the Faretta case—namely, as embodying the notion of a private space within which the litigating individual can choose and act upon her decisions free from external, state coercion.40 Against this backdrop, it is not surprising, that the criminal trial has been recognized as an important site of defendant autonomy.41 Criminal adjudication is the embodiment of state coercion. It is where the state uses its monopoly over the use of force to impose a particular conception of the good upon individuals. But, that is not to say that the criminal trial is the exclusive site where the state uses its coercive power to impose a specific conception of the good upon its constituents. The civil trial is also a site where the state plays a coercive role, intervenes in value judgments, and implicates personal autonomy. Take, for instance, contract law cases. The depiction of contract law and adjudication as private domains, dominated by consent and private interests, is contingent on ignoring the extent to which the state regulates the contractual arena and sets the ground rules that hinder one’s ability to induce others to contract.42 Contracts become “express” only when backed by state power.43 Likewise for the realms of tort or property. The reason that the role of state coercion and state intervention in value judgment is somewhat obfuscated in civil adjudication is that we are used to perceiving only rules of prohibition, and not rules of permission, as coercive ground rules.44 In reality, civil adjudication and private law set the rules of the game by which people seek their goals. They impact choice-making and influence behavior not by telling people what they should refrain from doing or are permitted to do, as does criminal law, but by providing the background conditions for choice. Through this, private law trials—like their criminal counterparts—also have great bearing on personal autonomy. A right to self-representation thus plays in civil trials a similarly essential role in shielding litigant autonomy against the exercise of state power. The Litigant-satisfaction Case The third facet of Assy’s thesis explores the issue of LIPs through the prism of—what he terms—“litigant satisfaction”. The general thrust of his claim in this regard, is that party satisfaction with adjudicatory proceedings is facilitated through favorable outcomes rather than through favorable processes, and that self-representation can be expected to enhance litigant dissatisfaction with case outcome.45 Assy claims that what litigants are essentially concerned with is winning, rather than with the participation at trial. In his words: while it stands to reason that people are likely to feel more satisfied and respected when they have been given an opportunity to express themselves and be listened to, when it comes to a legal process with high stakes, they are likely to be far more concerned with participation as an opportunity to influence the outcome in their favour.46 In his scrutiny of LIPs from the litigant-satisfaction perspective, Assy challenges the positive psychological effects attributed to a right of self-representation, and dedicates the great bulk of his discussion to the empirical question—of whether self-representation can be expected to enhance litigant satisfaction. I would like to shift the discussion to the more structural level, and to posit a counter-argument against Assy, that is detached from this empirical question. My claim in this regard is, that by focusing on litigant satisfaction, Assy’s argument overlooks the satisfaction of non-litigants with the adjudicatory system. Assy’s account ignores the dissatisfaction associated with the inability of individuals, whose rights have been compromised, to access the court. But, litigant satisfaction is only one component of public satisfaction with the adjudicatory system. A no-less-important aspect of public satisfaction refers to non-parties, to those segments of the population whose dissatisfaction with the adjudicatory system stems from the fact that they are unable to access it altogether. Demanding mandatory representation, as a prerequisite to conducting a civil trial, can be expected to enhance such inaccessibility to court, and to contribute to this latter form of dissatisfaction with the adjudicatory system. In other words, even if one were to adopt the empirical assumption, that mandatory representation furthers litigant satisfaction with the civil justice system, these benefits ought to be counterbalanced by the non-litigant dissatisfaction that mandatory representation would bring about. Needless to emphasize, that the issue of court inaccessibility is not only one of mere dissatisfaction. It leads to failures in the vindication of rights, obstructs justice, exposes certain individuals to harm, impairs overall deterrence, and more. Conclusion In my discussion hereto, I have attempted to challenge the central facets underlying Assy’s case against an unfettered right of self-representation in civil trials, and to contend with his efficiency-based, autonomy-based, and litigator-satisfaction arguments against LIPs. I have also attempted to demonstrate that the right of self-representation is rooted in the organizing logic underlying the common law system and the Adversarial Model, that it can be understood as the Adversarial Model taken to its end. Given Assy’s critique of the right of self-representation, my suggestion was that his book can be read as a case against party control of the civil trial and against the Adversarial Model, more generally. Assy could respond to this latter argument by resorting to the qualitatively unique features of the right of self-representation: he could claim, that access to counsel is unlike any other right at trial because it affects the very ability of parties to assert their other rights. Consultation with lawyers, he may claim, is a prerequisite to making informed decisions at trial, and is, therefore, constitutive of the very ability to exercise choice and control in the courtroom (and outside of it). This all brings me to my last point, with which I shall conclude: such qualifications regarding the uniqueness of the right to counsel—alongside the efficiency, autonomy, and litigant-satisfaction arguments Assy formulates in the book—may, at most, justify some sort of attorney involvement in the civil case. They do not necessarily translate into justification of full-fledged representation by lawyers. Thus, if we are concerned about lack of legal knowledge, which will inhibit litigants from exercising informed choice at trial—this situation could be remedied by insisting on exposing them to the relevant information, or by demanding initial consultation with lawyers. Placing full responsibility for conducting the trial in the hands of attorneys, and depriving parties of the ability to represent themselves, may be an overshoot. Similarly, even if we endorse Assy’s fears47 of the negative externalities uninformed parties may exert on the legal system, these failures may be remedied by mandating attorney consultation and a litigant learning-process. The same holds true with respect to all of the efficiency, autonomy and litigant-satisfaction arguments formulated in the book. The book treats the question of attorney representation/involvement as an all-or-nothing phenomenon. The proposal, with which it culminates, could benefit from a more nuanced treatment of the type of attorney involvement which would be justified, as well as from a more elaborate depiction of the specific circumstances of the civil cases in which lawyer involvement would, indeed, be warranted. Footnotes 1 Rabeea Assy, Injustice in Person: The Right of self- Representation 1 (2015). 2 Franz Kafka, Before the Law, in The Complete Stories and Parables 3, 3 (1983). 3 Yoram Shachar, When Faust Takes a Lawyer: On the Relations between Culture and Law, 3(1) Din Udvarim 147 (2007). See also Geoffrey L. Brackett, Franz Kafka’s “Before the Law”: A Parable, 35 Pace L. Rev. 1107 (2015). 4See also John H. Langbein, Comparative Criminal Procedure: Germany (1977); Lloyd L. Weinreb, Denial of Justice: Criminal Process in the United States (1977); Mirjan Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1103 (1975). 5 Shachar, supra note 3. 6Id. This is a crude simplification. Variations do exist in this regard within the Anglo-American world, and especially between the American common law system and the English common law system. For instance, the institution of Barrister-at-Law may be regarded as an island of bureaucratization and as reflecting an ethos of professionalism. Overall, however, the organizing logics underlying the common law and civil law systems can be said to diverge along the democratic-bureaucratic dichotomy. 7Id. 8 Richard O. Lempert, The Internationalization of Lay Legal Decision-Making: Jury Resurgence and Jury Research, 40 Cornell Int’l L.J. 477, 481 (2007). Here, too, variations exist between the American and the English common law systems. While the US inherited civil jury trials from England, and continues to routinely use juries in civil cases, civil jury trials have virtually been abandoned in the English system. See Scott Dodson, The Challenge of Comparative Civil Procedure, 60 Ala. L. Rev. 133, 141 (2008). Despite the marginal role juries currently play in civil trials in England, their foundational and historic roles are reflective of (and constitutive of) the popular and democratic ethos of civil adjudication in England and throughout the common law world. 9Developments in the Law: II. The Civil Jury, 110 Harv. L. Rev. 1421 (1997). 10 Nora V. Demleitner, More Than “Just” Evidence: Reviewing Mirjan Damaska’s Evidence Law Adrift, 47 Am. J. Comp. L. 515, 525 (1999). 11 E Cerruti, ‘Self-Representation in the International Arena: Striking a False Right of Spectacle’ (2009) [40] Georgetown Journal of International Law 919, 921 cited in Assy, supra note 1, at 22. 12 Mirjan R. Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. Pa. L. Rev. 507, 513 (1973). 13 Ralph Grunewald, Comparing Injustices: Truth, Justice, and the System, 77 Alb. L. Rev. 1139, 1256 (2013–14). 14 David Luban, Lawyers and Justice: An Ethical Study 57 (1988). 15 Amalia Kessler, Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial, 90 Cornell L. Rev. 1181, 1188 (2005). 16 Jessica K. Steinberg, Adversary Breakdown and Judicial Role Confusion in “Small Case” Civil Justice, B.Y.U.L. Rev. 899, 899 (2016). 17 Assy, supra note 1, at 14. 18 For discussion of the additional public utilities associated with the Adversarial Model, such as judicial legitimacy, and norm-setting, see Rethinking Adversariness in Nonjury Criminal Trials, 23 Am. J. Crim. L. 1, 14 (1995). 19 There is a large body of literature (and significant disagreement among scholars) about the definition of autonomy, generally, and litigant autonomy, specifically. For obvious reasons, I will not dwell on these issues in the book review. For further discussion of the difficulty in defining what autonomy entails and for a survey of some of its definitions see Erica J. Hashimoto, Resurrecting Autonomy: The Criminal Defendant's Right to Control the Case, 90 B.U.L. Rev. 1147, 1153 (2010). See also David Luban, Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann, 90 Colum. L. Rev. 1004, 1036 (1990). 20 Ellen E. Sward, Values, Ideology, and the Evolution of the Adversary System, 64 Ind. L.J. 301, 310 (1989). 21Id. at 318. 22 Reasoned decision-making is a mechanism to ensure the effectiveness of voice at trial. See: Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 387 (1978). 23 Ellen E. Sward, Values, Ideology, and the Evolution of the Adversary System, 64 Ind. L.J. 301, 310 (1989). 24 David Rosenberg, Class Actions for Mass Torts: Doing Individual Justice by Collective Means, 561. 25See, Anatol Rapaport, Theories of Conflict Resolution and Law, in M.L. Friedman, Courts and Trials: A Multidisciplinary Approach 22, 29 (1975) 26 See: Robert J. Kutak, The Adversary System and the Practice of Law, in David Luban (ed.), The Good Lawyer: Lawyers’ Roles And Lawyers’ Ethics 172, 174 (1983). 27 Mirjan Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1103 (1975). 28 Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1723 (2010). 29 “Access to Court” is a legal term, which can assume different meanings and be interpreted in a more or less broad manner, according to the values and objectives underlying the legal process. Thus, for example, Access to Court can be taken to mean a right to personal presence at trial, in the sense of face-to-face interaction with the adversary and the decisionmaker; or it can be understood to include- or even mandate- presence through proxy; Similarly, Access to Court can be interpreted as the right to personally voice one’s case in one’s own words, or it can be understood to mean the right to have one’s case heard before the court. Access to Court can be conceptualized in terms of control over the proceeding, or not; As encompassing a right of self-representation, or not; And so on and so forth. Whether deriving from Access to Court or not, pro se litigation can be prohibited, allowed or mandated, and likewise for lawyer representation. 30 Assy, supra note 1, at 2. It should be stressed, that the negative externalities that unrepresented parties may impose upon society, due to their inability to effectively handle their cases, are not restricted to the ex post level—to higher trial costs (what Assy terms “efficient administration of justice”) and higher error rates (what Assy terms “effective administration of justice”). They also affect the ex-ante level resulting in potential underdeterrence of undesirable social activities. 31Id. at 33. 32 According to the estimate of The National Center for State Courts. See Steinberg, supra note 16, at 899, 903. 33 Similar claims can be made with respect to other normative considerations articulated by Assy in the book—such as those referring to distributive justice or to legitimacy. The translation of these normative considerations to policy is also sensitive to the prevalence of lawyer representation in the civil justice system, and may also dictate varying attitudes towards pro se litigation against different empirical baselines. 34 In 1983, the United States was either plaintiff or defendant in 39.6% of the civil cases first brought in federal district courts. See 1983 Admin. Off. U.S. Courts Ann. Rep. of the Director 5 tbl.5. In 1990, the United States was a party in 25.8% of the civil litigation before federal district courts. See 1990 Admin. Off. U.S. Courts Ann. Rep. of the Director 8 tbl.6. In 2000, the number was 27.4%, but, in 2005, it fell to 20.7%. See 2000 Admin. Off. U.S. Courts Ann. Rep. of the Director 22 tbl.5; 2005 Admin. Off. U.S. Courts Ann. Rep. of the Director 20 tbl.4. 35 This is all the more true due to the special privileges enjoyed by the government in civil proceedings, such as the extended period of time for serving an answer, Fed. R. Civ. P. 12(a)(3). 36 See Kenneth Mann, Punitive Civil Sanctions: The Middle-ground between Criminal and Civil Law, 101 Yale L.J. 1795, 1798 (1992) (finding “rapidly expanding” punitive civil sanctions to be “sometimes more severely punitive than the parallel criminal sanctions for the same conduct”). 37Id. at 1804. 38 For a more general case against the civil–criminal taxonomy in procedural law, see Issi Rosen-Zvi & Talia Fisher, Overcoming Procedural Boundaries, 94 Virginia L. Rev. 79 (2008). 39 Assy, supra note 1, at 59. 40Faretta v. California, 422 U.S. at 834; Hashimoto, supra note 20. 41 Some have argued that the notion of defendant autonomy (or the rhetoric of free choice in the criminal arena) is incoherent, as criminal law is infested with state coercion. See: Robert E. Toone, The Incoherence of Defendant Autonomy, 83 N.C. L. Rev. 621 (2005). 42 Issi Rosen-Zvi & Talia Fisher, Overcoming Procedural Boundaries, 94 Virginia L. Rev. 79, 139 (2008). 43 Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 839 (1935). 44 Kennedy, supra note 90, at 90. 45 Assy, supra note 1, at 248 (2015). 46Id. at 264 (2015). 47 Which I attempted to challenge above. See Part II under “The Efficiency- based Case”. © The Author(s) 2018. Published by Oxford University Press and the Hebrew University of Jerusalem. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Jerusalem Review of Legal StudiesOxford University Press

Published: Jun 2, 2018

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