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Justices’ final thoughts on pro se rule reveal concerns

Court_Gestures_WLJ-homepage_At least two state Supreme Court justices continue to show concern about the application of a newly-passed rule designed to give judges a roadmap on how to deal with pro se litigants in court.

The rule, approved at a May administrative conference, now permits judges to “make reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.”

It also offers a few examples of how a judge could better aid a self-represented litigant if the change is approved, such as explaining the proceedings and legal situations in plain terms, permitting narrative testimony, and telling the parties what is expected of them.

At the time, Justice Pat Roggensack voted against the rule, saying she thought it was too broad and would apply to too many cases.

And it appears Justice David Prosser shares some of those concerns, even though he voted to approve.

The final order was entered into the record July 1. Prosser, in a concurrence joined by Roggensack, writes that while he voted for the rule, it “still presents some serious concerns.” In pointing out a potentially serious consequence, Prosser openly wondered whether attorneys will suffer financially because of the rule.

According to the concurrence:

“What effect will [the rule] have on the practice of law? Will it accelerate pro se litigation, with economic consequences for the legal profession? Will some litigants question why they hired an attorney if the court is seen as providing assistance to an unrepresented, or even a represented, adversary? Several attorneys expressed the view that they don’t mind some court assistance to pro se litigants because their clients must pay for their attorney’s time while the pro se litigant gets his or her act together. Wasted time can be expensive. This view has merit, but I doubt that it is universal.”

Prosser also pointed out that the new rule will apply to everybody, regardless of whether an attorney is present. He lauded the intent of the rule and the idea that its effects will be tracked, but still wonders what will happen once attorneys and litigants learn the new rules.

“The judiciary should not be afraid of change,” Prosser wrote. “It must be willing to adapt to new circumstances. This is why I voted for the petition.

“Nonetheless, voting for a rule change without thinking about the possible consequences of the change is not the kind of endorsement that the times require.”

The rule, which was put forward by the Access to Justice Commission and former Court of Appeals Judge Margaret Vergeront, enjoyed widespread support from many judges and attorneys, as well as domestic violence groups. At a public hearing, many judges and attorneys told the justices the rule was needed to codify what many judges need to do out of necessity in many cases.

At the hearing, Chief Justice Shirley Abrahamson called the measure a “historic event.”

About Eric Heisig, eric.heisig@wislawjournal.com

Eric Heisig is the Milwaukee courts and legal reporter for the Wisconsin Law Journal. He can be reached at eric.heisig@wislawjournal.com or 414-225-1826.

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