Monday, August 11, 2014

Self Represented Parties and the Workers' Compensation Rules

I have been thinking of pro-se litigants lately. The subject came up in a recent Rules Workshop concerning the Rules of Workers' Compensation Procedure (Florida Administrative Code, chapter 60Q). Two attendees lamented their perception that the procedural rules have become too complex; others seemed to endorse their perceptions to some degree. They suggest that this complexity is an impediment to litigating in this system, and that it would only be more so for an unrepresented party. 

There are some procedural relaxations for the self-represented in the current Rules. Rule 60Q6.115(1) requires that all requests for relief come as motions. The rule also provides, however, "the judge may treat any request for relief from an unrepresented party as a motion." Thus, a letter, a note, or a statement in a hearing could be interpreted as a motion if the party is unrepresented. It is not an unprecedented idea for a judge to have more latitude under the rules when a party or parties lack representation.  

The subject of representing oneself was suggested again as national news outlets announced the first week of August 2014 that one Jodi Arias would be representing herself in the penalty phase of a murder case. This was news because apparently she has been in the news; she was convicted in 2013 of killing her boyfriend. Apparently the jury reached the conviction verdict, but could not agree on the penalty. The state is seeking the death penalty for what the New York Daily News refers to as a "grisly" murder in which the victim was shot, repeatedly stabbed and mutilated. 

This defendant is not an attorney. In fact, she has never graduated from college or even high school, though she reportedly earned her General Equivalency Diploma (GED) while incarcerated. Facing the ultimate penalty, she now steps to the fore to represent herself. Apparently, she has attempted to discharge her attorneys repeatedly, but the court has not allowed it. Despite her decision to represent herself, both attorneys that represented her in her conviction will remain of record in her case, but "in advisory roles," according to CBS 5 in Phoenix. That in itself is interesting from a legal point of view; it seems curious for the attorneys to remain of record, but to limit their roles.

I have done a very little bit of death penalty appellate writing years ago, and I read The Chamber by John Grisham. Suffice it to say I am no expert on criminal law or the death penalty. However, it seems a very complicated process to navigate for anyone, and would seem a real challenge to someone with the equivalent of a high school degree. The end result could be quite devastating. 

Phoenix CBS 5 says "it's not uncommon for people to represent themselves in court." They interviewed defense attorney Dwane Cates who said, however, "you don't see too many people doing that who are facing the death penalty."  He believes that this new penalty phase trial will be "a circus on steroids," and that it will "be beyond bizarre." He believes that Arias has the determination and drive to proceed, and that "if she goes down, she's going down with guns blazing." In short, he sees a difficult process for her to navigate on her own behalf.

According to the New York Daily News, at the proceeding where she asked to represent herself, the presiding judge inquired whether Ms. Arias was taking medication. She acknowledged she is, but argued that they are not affecting her judgement. The Judge then "wearily" accepted Ms. Arias' decision, but admonished "I do not believe it is in your best interest ... I strongly urge you to reconsider." I have heard many a workers' compensation judge ask unrepresented parties to reconsider. I have seen many a compensation trial continuance, over the objections of a represented party, for an unrepresented party to seek counsel. 

Over the years, I have seen unrepresented parties. Some presume when this situation occurs that it is always an injured worker. That happens, and it is likely the most frequent. However, I have seen unrepresented employers in a variety of settings. I have even seen unrepresented non-parties appearing to object to a subpoena. The fact is that there are those parties who are unrepresented workers' compensation proceedings.

Back to the Arias example. One expert quoted in the news says that the decision "might not be such a bad idea." He explained that her conviction conveys a negative impression, but that in representing herself she will have significant time speaking to the penalty-phase jury. He says that "if she can get just one juror to bond with her on some level, even if they hate her, they're getting to know her and it's harder to kill someone you know." 

Another attorney, Mel McDonald, noted that "I think generally that anybody that represents themselves has a fool for a client." However, he thinks that perhaps her making a fool of herself as her own counsel may "invoke some sympathy from a juror." Both of these seem to suggest that at least in their perceptions there could be an advantage to self-representation. I wonder if any workers' compensation experts would feel that a self-represented party has some advantage.

The situation in Phoenix is interesting. Is it wise to represent yourself? Is the answer dependent on or influenced by what kind of case it is? Is that something about which there is a great deal of choice, or is it the course for those who cannot find counsel to take their case? If the latter, what are the causes? 

In any event, should there be procedural simplification for those parties who are self-represented?  In other words, should the trial judge be given greater latitude to disregard procedural requirements when dealing with the unrepresented? Certainly, we see some of that in the rules already; should there be more?

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