LAWSUITS THAT ARE UNDERLAWYERED . . . At the Connecticut Practice Blog, Mark Dumas asks, "Overlawyered in Connecticut? Not so fast." Remember: it's hard to blame lawyers when there are no lawyers involved.

Comments

[Walter Olson]

I agree that it's fair to point out that many dubious legal claims are advanced by unrepresented pro se litigants, and also fair to point out that most lawyers would have advised against pressing many of these claims, and thus would have played a socially beneficial role had they been called into the case by the claimant.

I don't agree that the moral is that such cases have no logical link to public discontent with the legal profession. Our system is set up so as to encourage marginal pro se claims (like marginal claims generally) through liberal rules of civil procedure that make it easier to get into court, rules on causation and damages that make longshot theories seem worth a try, lack of loser-pays, and so forth. These ground rules were largely developed by, and are certainly jealously guarded by, the profession that administers and makes its living from them, and that profession is assuredly not the hatters, the cobblers, or the cigar makers.

[Matt]

Walter, what would you suggest to keep pro se litigants from filing "marginal" complaints? Do you really think loser pays is going to be an effective deterrent against people who can't afford a lawyer in the first place? Do you really think these people are filing cases because they know that the rules of "causation and damages" give their cases a better shot?

[mythago]

I'm not sure what 'liberal rules' Walter is talking about--civil procedure is exactly where pro se litigants are likely to fall down, however meritorious their case may be. And 'loser pays' is meaningless to a judgment-proof litigant.