Pro Per and Pauperism

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You see, all the courts are slowly dragging themselves into the electronic age and you may soon have even less access than you have now as they only want to let their Clan members, the members of SBOT, have access.  As electronic access becomes the standard (and it already is in some of the big counties), the clerks know you're not an attorney if you show up in person and you’ll get lesser service right off the bat!  That problem is going to get worse, much worse, and probably quickly.  But first, a bit on the traditional "hire a lawyer" method...

When you hire a lawyer, they’re going to ask you for a “retainer”.  If you’re lucky, it will be a mere “cost retainer” and that would be just the costs they expect to be paying out to courts in fees, for copying, postage, service of process, etc., etc.  It can easily be $1,500 nearly off the bat and the other side can easily drive that figure higher and they WILL if they think it will make you buckle.  The courts have long claimed to support the concept that poor people have a right to justice, to access the courts.  The old term for this is to proceed “in forma pauperis”, in the form of a pauper/poor person.  One does this in Texas by filing an Affidavit of Inability to Pay/Pauper’s Affidavit where one shows their income, expenses and how much (if any) they can afford to pay for court costs.  One is permitted a reasonable level of living and still to have access to the courts and justice.  One need not actually be a bum living under a bridge to qualify; however, a couple of decades ago, there were still plenty Texas JP’s requiring essentially that level of poverty to qualify and I’m sure some of them are still on the bench doing the same today.

The big expense that people forget to put on these forms is the out of pocket costs of the case and that can be substantial in itself as it includes everything from copying electronic materials to reams of photocopies and possibly hundreds of dollars in certified mail costs.  Anyway, you will file your Affidavit of Inability which will be promptly ignored by court clerks all across the state and challenged by opposing attorneys, especially prosecutors and other government attorneys.  Generally, this is how poor people are denied access to the courts; however, some of the lawyers out there have finally gotten over their bristling and are willing to file Pauper’s Affs for clients even if they are charging fees.  By the way, that isn’t an incompatible concept as it the attorney fees could well bankrupt one and make it impossible to afford the court costs; there's is no obligation for a lawyer to front costs for a client while charging fees that they know they can't currently expect to collect under an arrangement where they expect future payment of those fees.  It’s actually a bit offensive to me when a lawyer won’t AT LEAST help a financially borderline client get justice by filing the Aff of Inability.  Heck, how many people in today’s economy could come up with a couple of grand for court costs right at the beginning and more costs continually racking up along the way?  Truth is that far more people should file Affs of Inability than actually do.  I rather dislike the terms "poverty", "pauper" and "poor person" in these cases because I'd guess that half or more of the residents of the US couldn't afford court fees, let alone legal fees.

If you can’t afford a lawyer and can’t find one to take your case pro bono or on some other basis, you may decide to proceed pro se (sometimes also called pro per).  You have a RIGHT to represent yourself and the Court and ALL officers of the Court have an OBLIGATION to see that you get a fair shot at it.  What actually happens all too often (well, very probably the vast majority of the time) is that the Court holds the pro se to a higher standard than the opposing attorney is held to and the opposing attorney takes advantage of the pro se’s lack of skill to skewer them.  It’s wrong, just plain wrong and there’s no other way to put it.

And then there’s that electronic systemization that I mentioned back at the beginning.  You and I are paying for it but we don’t get access to it.  Throughout government, things are going electronic and the lawyers grant themselves access but the rest of us don’t get much electronic access and in person access will be cut back to reduce costs.  We are rapidly widening the gap between has access to the courts and who does not.

The Supreme Court of Texas claims the inherent power to set the rules of and for courts.  With great power comes great responsibility.  They’re not so great at that second great, the one about responsibility.  All too often, all involved in the process, yep, you guessed it, all lawyers, members of SBOT, a private membership organization, that’s who is involved…  Anyway, the lawyers are the only ones in the process and the Texas Supremes doesn’t even take care of their own, let alone the public.  Sadly, despite much mouthing and typing on the subject of pro se and pauperis rights of access, little is actually done by the Supremes to ensure that access.  I recently ran across a letter to the Texas Supremes from one of the SBOT committees and decided to publish my own letter here.  I'm no longer a member of the SBOT "club" so I might as well publish since they surely aren't going to read anything I send to them!

Dear Chip,

You’ve already received a letter from the Poverty Law Section (PLS) of the State Bar of Texas (SBOT) concerning some rules/problems that are interfering with poor people’s access to the courts.  While the PLS may well have represented their attorney members’ concerns, they did one piss poor job of representing those who are or might be their clients.  The truth is that they can only represent a small number of people and the rest are SOL or must proceed pro se.  It is the pro se parties who suffer the most from their failure to address MAJOR flaws in the system and rules and, of course, the SBOT PLS made ZERO attempt to represent their interests in that letter.

First and foremost is access.  Just plain access.  As the courts become computerized, attorneys get relatively easy and cheap access.  However, many courts/clerks deny public access altogether.  Pray tell why the public tax dollars pay for these systems yet the public, even pro se litigants, are denied electronic access to records or the ability to file electronically.  (Not sure it really matters since I'm sure law libraries will be replaced by electronic access as well and, while we will all be funding access to that for court personnel and government attorneys, the public will be left out in the cold AGAIN; just as we are for all the medical research that we fund but don't get access to even long after the research is published.)  Oh, yeah, sure, some of the clerks will allow access from a terminal in the clerk's office but, again, if the attorney get access from their comfy home and office chairs, why must a member of the public go into the clerk's office to have the same access?

I must simply disagree with PLS’s first listed problem; that e-filing fees aren’t excused for those filing in forma pauperis.  Of course they are; filing fees are filing fees, court costs are court costs.  The REAL problem is the court clerks’ UTTER disregard for the laws concerning in forma pauperis and their long term refusals to abide by TRCP, other Rules, and  the multitude of Texas Supreme Court cases that mandate how they handle these fees.  The court clerks flaunt their disregard and the Texas Supreme Court does nothing to even chastise them, let alone truly sanction them as they should be sanctioned.

But perhaps the Texas Supremes could just start by getting the pro se litigants ACCESS to the electronic system!

PLS’s second problem.  Again with the court clerks’ disregard for the Rules and the Texas Supreme Court.  Hm, not surprised given the lack of sanctions of clerks.

PLS’s third problem.  More refusal by clerks to deal with fees as they are required by law to do.  Again, not surprised.

Problem 4, They’re griping because their clients sometimes don’t get special treatment for having IOLTA certificates on file.  Hm, now why would they get special treatment at all unless they are at least willing to have some equivalent process for pro se litigants to be pre-certified and not have to withstand the unreasonable and irrational challenges regularly filed by prosecutors/opponents and used to deny their status?  How about you just change the rule to say the challenge has to contain SOME reasonable basis for a challenge instead of basically giving the opposition and automatic trump card?  As it is now, all a prosecutor has to do is file the challenge and “poof” the judge gets to deny the pauper’s status.  That really doesn’t show the Texas Supreme Court’s alleged steadfastness in seeing that the poor have access to the courts!

PLS’s problem 6.  Yeah, what they said PLUS.  Hey, dumbasss clerks, you require so much information that someone could steal a person’s identity.  Now, some of us realize you’re doing that on purpose just to discourage people from filing the affidavits or knowing they won’t fill in some of those blanks and that means they’ll get denied so YOU WIN by charging and collecting fees.  Hey, Supremes, don’t change the Rule; just create the form and cram it down their throats.  Otherwise, the clerks will just ignore you as they usually do.

PLS’s problem 7.  The variable hours of the courts is a bit of an issue.  HAHA ever so GROSSLY understated.  Variable my butt; try ERRATIC.  Some of these court clerks act like bait stores and, when the weather’s right, they just hang out the “gone fishing” sign and off they go…  Supremes, that just ain’t right or fair when it results in denial of appeals!

That brings me back around to GIVE THE PUBLIC THAT IS PAYING FOR THE SYSTEMS ACCESS TO THE FREAKING SYSTEMS ON THE SAME BASIS AS THE ATTORNEYS GET and FREE ACCESS FOR PRO SE and IN FORMA PAUPERIS LITIGANTS!  Why, pray tell, should lawyers get to file a single electronic document in appeals while an in forma pauperis pro se has to suck up the costs of, what is it 9, NINE!, copies of everything PLUS service copies, PLUS postage for all of those????  You Supremes may say you support the concept of the poor having access to the courts but you and your underlings really don’t actually stand behind those words even for prisoners although they sure get a better deal on filing than the average pro se in some ways since the prison (you know, again, that's us taxpayers) has to pay for copying and postage.

And one more thing that would be helpful to pro se in forma pauperis litigants would be mandate that lawyers cough up their email addresses and allow service by email.  While you big shots may think $10 is a tip, it's often 2-5 meals for poor folks, especially if they are trying to continue through court after having their in forma pauperis nonchalantly kicked by some judge.

Hm, we're paying for all that court system stuff and set up for lawyers to have electronic access and prisoners to get it too.  No wonder so many of us qualify to proceed under Affidavits of Inability!

And also mandate that court clerks keep REASONABLE BUSINESS HOURS.  Hey, have you ever visited the Federal Courthouse in Houston?  It used to have a nifty gadget.  I think they call it a mail slot.  You just toss the documents in and the clerk collects them first thing in the morning and, voila, they get filed!  Oh, if you decide to go check that out, might you please check out how they record hearings while you're there?  It's another neat thing where what is actually said in the courtroom ACTUALLY makes it into the record instead of the "cleaned up" versions done by court clerks who serve at the whim of the judges and feel the need to clean up after those judges; in derogation of justice!

Does someone really have to go file a civil rights suit over in federal court to deal with the lackings of the Texas court clerks because the Texas Supremes apparently don’t have the balls to get the job done?  Oh, my, there are days when I’m so glad I don’t have a law license to protect and the do have ability to bluntly speak truth to power!

Not so sincerely and with next to no respect left for the judicial system, PJ.

Well, as I said, they won't even read my copy when it gets there but they might hear a whisper if they got multiple copies so feel free to mail to them anonymously.

  • Charles L. "Chip" Babcock
  • Chair, Supreme Court Rules Advisory Committee
  • Jackson Walker L.L.P.
  • 1401 McKinney, Suite 1900
  • Houston, TX 77010

They can say what they want but I think full moons make me snarky.

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