Self-Represented Plaintiffs Face Additional Challenges in Virtual Court
During the COVID-19 pandemic, courts kept the wheels of justice moving by adopting remote communication technology such as Zoom to hold virtual court. Some jurisdictions, such as California, have implemented legislation allowing the use of virtual court beyond the pandemic. While this sounds like a common-sense idea, the question we must ask ourselves is whether these virtual court settings will have a negative impact on self-represented litigants (pro se litigants). Further, if there are drawbacks, what can courts do to mitigate or overcome them.
A major concern regarding virtual court is the reduced ability for the trier of fact – the judge in a bench trial and juries in a jury trial – to assess non-verbal clues that may be important considerations to discern the witness credibility, intent, or response.
Some have argued that there are no differences between virtual court and in-person court. The premise behind this is that the differences between virtual court and in-person court are immaterial since all parties are equally disadvantaged in virtual court.
However, because plaintiffs carry the burden of proof, they are negatively affected by the diminished ability for the trier of fact to discern non-verbal information from witnesses. This means if the trier of fact is unable to rely on non-verbal cues, it’s even more important for plaintiffs to be better prepared and provide supporting evidence to bolster their credibility and to discredit the defendant.
Whereas experienced attorneys with hundreds of cases under their belts are likely to recognize the need to be even more prepared, pro se plaintiffs who only litigate one or two cases in their lifetime will be further disadvantaged in virtual court.
This is where a Pro Se Support System can reduce the disadvantages virtual courts create for the pro se plaintiffs and help create a more level playing field.
First, a Pro Se Support System will explain to plaintiffs in detail the elements and causes of action that need to be proven to win the case. For example, if a plaintiff is suing the defendant for failure to repay a debt, then that plaintiff will need evidence that (1) establishes the existence of a loan agreement, (2) supports that the plaintiff made the loan, and (3) demonstrates that the defendant failed to repay it.
Second, plaintiffs will be prompted to add evidence to bolster each element. Evidence can be provided in the form of documents, screenshots of text messages, or even third-party witnesses’ written testimony.
Third, plaintiffs will be asked to evaluate the evidence in relation to the elements. Plaintiffs will be asked to judge each element’s epistemic status. An epistemic status is the position on the true/false continuum indicating the likelihood that something is true (exists) or not. The statuses are certain, probable, possible and arbitrary. Plaintiffs will be reminded that, for civil cases, all elements must have the epistemic status of probable (preponderance of the evidence) or certain. If an element has a lower status, then more evidence will be needed to increase that element’s epistemic status. Below is a diagram of epistemic statuses on a spectrum and their relationships to legal requirements in civil and criminal cases.
Fourth, plaintiffs will be able to provide evidence to attack the other side’s credibility. While the rules of evidence can be complex when it comes to impeachment evidence, certain case types give the judge a lot of flexibility on what to accept as evidence. A small claims court may allow evidence that is not directly related to an element in the cause of action if it is being submitted with respect to the issue of credibility. For example, the reason a loan is given is usually not important to proving that a loan agreement. However, it may be relevant in determining a defendant’s credibility. If a defendant gave a false pretext to explain why he was asking for a loan, a plaintiff can provide evidence of this to discredit that defendant.
Fifth, plaintiffs will be given an opportunity to hire an attorney on a limited-scope basis to review the evidence in relation to the elements to determine if it is sufficient. This is for the situation where a plaintiff wants a third-party’s legal opinion on the case.
Finally, the Pro Se Support System will package the evidence into a comprehensive Trial Presentation. This gathers all the evidence into a format that can be presented to the trier of fact. In court, plaintiffs do not get a chance to “do it over” if they forget to bring an important piece of evidence. Therefore, being organized is critical.
Virtual courts will be an important part of our judicial process in the years to come. It is of critical importance that pro se plaintiffs be armed with the best tool available to get the justice they deserved. And that tool is a Pro Se Support System.
- Binh Dang is the President and founder of Quest for Justice.
Quest for Justice launches JusticeDirect.com to Help Writing and Sending a Demand Letter
On November 11, 2021, Quest for Justice (Q4J) launched its first product, the JusticeDirect Demand Letter to help people without lawyers, draft and send a customized letter demanding payment, free of charge. Rather than use a generic sample demand letter or a template, JusticeDirect will guide users step-by-step to prepare and send certified mail, a professional and personalized demand letter. The system helps users avoid common mistakes that delay justice. Whether you are owed money, or you are not happy with services you already paid for, sending a detailed and professional demand letter is the first step to be taken seriously in this process and getting the justice you deserve.
Other helpful sources:
Judicial Counsel of California: https://www.courts.ca.gov/policyadmin-jc.htm
California Bar Association: https://www.calbar.ca.gov/Public/Free-Legal-Information
Legal Aid Association of California: https://www.laaconline.org/
Community Legal Aid of Southern California: https://www.communitylegalsocal.org/
Legal Aid Foundation of Los Angeles: https://lafla.org/
Los Angeles County, CA: https://lacounty.gov/residents/consumers/department-of-consumer-business-affairs/
Los Angeles County, CA Courts Self Help: http://www.lacourt.org/selfhelp/selfhelp.aspx
Orange County, CA Courts Self Help: https://www.occourts.org/self-help/
Riverside County, CA Courts Self Help: https://www.riverside.courts.ca.gov/SelfHelp/self-help.php
San Diego County, CA Courts Self Help: https://www.sdcourt.ca.gov/sdcourt/generalinformation/selfhelp
San Bernardino County, CA Courts Self Help: https://www.sb-court.org/self-help