ABSTRACT
State courts across the country hear 95% of civil claims each year. Each state has its own unique rules of civil procedure, which often vary by courthouse and case type. Those rules are typically premised on an adversarial dynamic with parties represented by lawyers. Yet in courts resolving critical disputes about housing, family, and financial stability, the vast majority of litigants are unrepresented and expected to understand and follow procedure without a lawyer. Unsurprisingly, pro se litigants in those cases are less likely to prevail in their claims and defenses than their represented counterparts, not because they have weaker cases or lack a lawyer – but because they have less power than their opponents and struggle to successfully apply complex procedure.
In this piece, I propose a critical framework for creating and amending procedural rules in pro se courts with explicit consideration of the power dynamics between the parties who appear there. Rulemakers must examine the context in which the rules apply, considering demographic information, observable power dynamics, and outcome data showing how rules are misapplied. Ultimately, rulemakers should ensure procedure in pro se courts redistributes burdens in recognition of the role power plays in those cases. Accounting for power in rulemaking will ensure the rules reflect their context, foster a greater sense of procedural justice for the litigants who apply them, and achieve equity in their application.
Budzinski, Andrew C, Power and Equity in Pro Se Procedure (August 1, 2024), 77 Baylor Law Review 279.
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