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C H A P T E R 8 Tepid and Diluted When most folks go to court, unless the matter is minor, they retain the services of an attorney. And when you’re headed for the Supreme Court, it strikes me that it’s not a bad idea to hire a lawyer— a very good lawyer, with experience arguing cases at that level. Still, the number of folks who choose to represent themselves is on the rise. The American Judicature Society reports that more than 95 percent of court officials who responded to a 2003 survey saw an increase in the number of pro se plaintiffs they saw in their courtrooms. Twenty percent of these officials saw a “dramatic” increase. The largest jump has come in the area of family law (www.ncsconline.org). While the National Center for State Courts acknowledges that most courts do not keep official statistics on the number of pro se plaintiffs, some of the data that is available points to their growing presence. For example, in California, at least one of the parties in more than two-thirds of domestic relations cases was “self-represented.” The American Bar Association found in 1990 that nearly 90 percent of the divorce cases filed in Maricopa County, Arizona, included at least one pro se plaintiff. More than half the time, both sides were pro se. Data for federal appeals courts is a bit older, but it’s still worth noting that between 1991 and 1993, the number of pro se plaintiffs rose by nearly 50 percent. The rise in the number of pro se plaintiffs occurs against the backdrop of our fascination with the legal profession. We all read To Kill a Mockingbird in school. We cringe (some of us) at the gavel-to-gavel coverage of sensationalized trials offered by Court TV and overwrought commentary by CNN’s Nancy Grace, but we’ve all seen Erin Brockovich and A Few Good Men. We talk about how wonderful it is when an individual , or small group of folks, takes on “the system,” but we seem to 133 like their chances better when there’s a skilled attorney at their side— it makes for better television, at least. It’s like our treatment of dissenters: we approve of the concept of dissent, but a surprisingly large number of us would prefer that dissenters dissented in a cordoned off, out of our line of sight fashion—so as not to run the risk of causing real dissension. Such was the reaction from the news media to Michael Newdow as his case wended its way to the Supreme Court. Experienced journalists are quite skeptical of pro se plaintiffs. Nina Totenberg, who covers the Supreme Court for National Public Radio, recalled how she had “creamed” an individual who represented himself in a California case (personal interview, July 8, 2004). He was unprepared and unprofessional. In fact, many pro se plaintiffs are “simply dreadful,” Totenberg said. Thus, not only was Newdow an atheist thumbing his nose at the Pledge of Allegiance during wartime, he was headed to the Supreme Court alone. One critic of Newdow said before oral arguments that the issue “cried out for the Supreme Court to address and correct it” (Naylor, 2004). Newdow acknowledged that “the country went berserk” after the Ninth Circuit’s ruling (Cooper, 2004), speculation that had become gospel in the hands of reporters. As NPR’s Brian Naylor (2004) opined, “to many, every word of the Pledge of Allegiance is—for want of a better word—sacred—and the backlash has brought this dispute all the way to the Supreme Court.” Even absent the news media’s expression of hope, and its exaggeration of the “backlash,” the Supreme Court is a tough audience, one that rarely turns over its stage to a pro se plaintiff. The justices would not easily take a new direction after years of somewhat muddled precedent on the presence of God in public schools. And after discussing the Supreme Court with skilled veteran attorneys, I came away with the impression that the high court is not a friendly place for a newcomer. “It is intense, frustrating, and exhilarating,” said Erwin Chemerinsky of Duke University Law School. “It is an unbelievably intense and focused experience: facing nine superbly prepared Justices; dealing with issues of national importance; knowing it is on such a big stage” (e-mail interview, December 17, 2005). Near the top of Chemerinsky’s list of requirements for Supreme Court...

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