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Overhauling Rules of Evidence in Pro Se Courts


State civil courtrooms are packed to the brim with litigants, but not with lawyers. Since the early 1990s, more and more litigants in state courts have appeared without legal counsel. Pro se litigation has grown consistently and enormously over the past few decades. State court dockets are dominated by cases brought by unrepresented litigants, most often in domestic violence, family law, landlord-tenant, and small claims courts.

Yet, the American courtroom is not designed for use by those unrepresented litigants—it is designed for use by attorneys. The American civil court is built upon a foundation of dense procedural
rules, thick tomes of long-evolved substantive law, and—the focus of this piece—a complex set of evidentiary prohibitions and exceptions. The American civil court is designed for two competing adversaries to face off against one another. It is built on the assumption that both of those adversaries will present the best case they can, employing an accurate understanding of the complex rules and laws that govern the proceedings. Nonlawyer pro se litigants often struggle to adhere to the norms of the adversarial American legal system. As a result, complex legal rules present an access-to-justice barrier to unrepresented litigants unable to comply with them.

Andrew C. Budzinski

Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law, Co-Director of the General Practice Clinic.