I spend a lot of time in probate and family court, the exciting universe where people fight about dead people’s stuff, get divorced, and occasionally, seek to enforce child support orders against the fathers of their children who signed the birth certificate and a waiver of parentage and whose child shares their last name but who decide they don’t want to have children when the department of revenue starts reducing their take home pay to a level that would make it very likely that they’d have to move in with their parents, which puts an obvious kink in their ability to make more babies they don’t plan to support.    

The main difference between the family court and the rest of the courts is that eighty percent of the litigants are pro se, which means they attempt to represent themselves.  One of the reasons so many people go it alone is that unlike criminal court, indigent parties in family court are not guaranteed counsel, but since the a large percentage of wealthy and middle class folks go it alone is appears that the reason for the high percentage is that most of the parties in probate court believe that since they know the truth about their failed relationship or marriage, self representation should be a snap.

Self-representation, it turns out, is not a snap.  This is not because being a lawyer requires being the smartest person in the world, or even the smartest person in one’s family, but because the law requires litigants to follow a large number of rules and procedures that were put in place when the system was utilized almost entirely by lawyers which make it very hard to come into court with a handful of crumpled papers and convince a judge that you are not the father, or that you have been paying your child support.

The biggest stumbling block most pro-se litigants suffer is that they fail to understand the progression of a case and believe that every time they are in front of the judge, even if it’s for something called a status hearing or pre-trial conference, it is the right time to spill one’s entire saga, including the fact that your wife is a liar.  While some people seem to grasp that there is a process and an order to things that happen in a legal setting, pro-se probate litigants, particularly men, do it roughly 100% of the time.

Recently, while waiting for my case to be called, I witnessed a husband making his initial appearance in family court on a divorce action.  He’d popped in from China...the country, for the appearance.  His biggest problem, aside from the fact that he unnecessarily flew 8,000 miles to appear in a 10-minute hearing, was that he had no idea how the system worked.  From what I could understand of what he told the judge, he was a) looking for full custody, starting today hopefully involving his being able to bring the child immediately to China, b) had been a devoted husband, proof of which was the fact that he had installed new linoleum flooring in the home they had owned together c) believed his wife to be a liar. 

Because judges see so many of them each day, they tend to give pro-se litigants more leeway in probate court than they do in other courts.  It’s not that they’ll let anything go, but they will, for instance, permit a man, during a pre-trial conference, to come in wearing a tee shirt and jeans and holding a sandwich to yell that his wife is a lair, say that the court system was unfairly skewed toward women, swear at the judge and walk out, without being reprimanded by anyone.

Before parties go into a divorce case, they meet with a probation officer from family services.  These people don’t chase convicts around verifying their addresses as their names would suggest but instead act as a gatekeeper so that they don’t waste the judge’s time talking about linoleum.  As discussed, this rarely works.  It rarely works because the civil justice system is based on the assumption that most people have a shred of dignity or give a crap about anything.

Judges, due to their lifetime appointments, 6 hour work days, and full retirement after 15 years aren’t people who conger a lot of sympathy from the masses and are often the butt of conservative ire about government largesse.  To those who would criticize a jurist I ask them to spend one day on the family court bench.  My hunch is that at the end at least 90% would rather be laying linoleum.