Is justice harmed by court clerks offering help to pro se litigants?

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Jacob Kahn

Every profession has its dirty little secrets. Used car salesmen know when they sell a car, there is no need to mention that the exhaust pipe is hanging on with a twisted coat hanger; they are protected by the “As Is” agreement. Your hair stylist knows you do not actually need to switch to the “unique conditioner” that kicks their store a commission. The gentleman changing your oil knows that an upcharged synthetic blend is not going to keep your 1997 Camry on the road any longer. Nevertheless, these are the white lies various industries depend on to keep the wheels turning, and consumers, for the most part, tend to accept these pitches without objection

The legal profession, as usual, is an entirely different animal. The greatest “white lie” upon which lawyers and judges rely to keep the wheels of justice turning is one you will find printed in bold black letters in every court in the state. The notion that, “Clerks cannot give legal advice,” is at best a joke and at worst a cruel trick on the layperson, which no attorney six months out of law school can honestly claim to believe.

Working for the last few years in a creditors’ rights firm has granted me a particular insight into the frankly abysmal station of pro se litigants on both sides of the aisle. Sometimes I hear from an aggrieved plaintiff whose valid claim has been frustrated by his inability to navigate state court procedures. Other times I am going back and forth with a defendant who is in a great position to motion the court for an order regarding installment payments, but they would not know it if the SCAO form bit them in the behind – and I certainly cannot tell them so without betraying my client’s interests. So how do folks who cannot afford an attorney ever navigate the civil legal system with any modicum of success?

Are they getting free help from a clinic? Not likely. According to the Michigan Supreme Court, in 2018, the Wayne, Oakland, and Macomb County circuit courts saw a grand total of approximately 50,000 civil cases alone, to say nothing of the dozens of state district courts. Legal aid clinics in this state would have to multiply exponentially to service all the pro se litigants.

Are they finding the answers to their questions online? Again, this hardly seems likely. I spent the last two weeks watching top law students scramble frantically in preparation for an examination on civil procedure, after having spent months studying the subject with the benefit of guided instruction. It is unthinkable that the average layperson would be able to navigate the plethora of semi-accurate information available on the web in order to prepare a cogent legal argument that accounts for the various nuances of civil procedure.

The answer to the question raised above of course is one we all know perfectly well – they receive legal advice from the clerks who “cannot give legal advice.” And who could blame them? Imagine yourself a clerk in one of Michigan’s district courts. You are the entry-level bureaucrat through whom citizens of some of the state’s poorest communities will interact with an entire branch of government on a daily basis, in a meager effort to assert the rights and protections afforded to them by law. You know the ins-and-outs of the system by virtue of having spent day after day learning the material by rote. But what of the defendant who comes to you, desperate for a suggestion on how to proceed after being served with a complaint, or having their wages garnished, or so forth?
The laminated sign on the wall says you are forbidden from dolling out legal advice (and so does MCLA 600.916, incidentally). Of course, the single mother of three who missed a credit card payment because her car broke down cannot afford to consult an attorney, and you know just from a brief conversation at the window that she has every right to bring a motion for installment payments, or to assert a defense based on the statute of limitations. Is justice served by keeping your knowledge to yourself? Consider the legislature’s intent in setting forth the rule(s) which prevent clerks from offering legal advice, and simultaneously, the legislature’s intent in setting forth various legal options for relatively indigent defendants. Now ask yourself again, is justice harmed by an experienced clerk telling a party how to go about filing a complaint, or responding to a garnishment?

Certainly many state court judges have reached their own determination, and decided that justice is decidedly not harmed by court employees (namely themselves) handing out legal advice. One need only stand in any number of courtrooms for a few minutes to hear such judges advise a party on how to proceed – effectively providing legal advice to pro se parties, in direct contravention of the rules.

Yet, despite the ubiquitous knowledge throughout the field that such expressly forbidden transgressions occur, I have yet to see a single attorney or officer of the court mount some great offense to clamp down on clerks and judges who give legal advice. As far as I can tell, this rule which is violated constantly as a matter of course, does not even seem to appear on the State Bar’s radar.
Why? Because each of us knows that these transgressions are the very grease which keep the courts’ wheels turning – because it is easier to turn a blind eye to bureaucrats and even judges or magistrates advising one party over another, than it is to confront the fact that our lumbering system of law and order would slip into utter chaos if such a prohibition were strictly observed.

Of course, to expressly allow employees of the state to provide legal advice would be to invite, justifiably so, claims of terrible prejudice against one party or another, depending on who received the advice. The rule exists for a good reason. Likewise, it would be impractical to hope that legal aid clinics could ever keep up with the demand generated by our burgeoning system of civil litigation.  It goes without saying that Michigan’s tax base could never support a network of public defenders for civil defendants  - supposedly we cannot even afford to bring clean drinking water to the residents of a state bordered by three of the Great Lakes.

There is no quick-fix to the crisis of inaccessibility to the law for pro se litigants. Certainly a number of statutes could be cleaned up to be more user friendly, and a number of SCAO forms leave something to be desired, but these are merely drops in the ocean of problems which render the courts unnavigable to the average person. When such a person is in court as a result of their impoverished state, telling them to hire an expert is a futile gesture. I do not propose to hold the key to this problem, but I do believe much of the problem faced by clerks who must routinely decide between following the rules and following their conscience could be ameliorated by making available certain flowcharts to both parties.

If a committee of compassionate attorneys were to survey Michigan’s civil clerks and determine, under amnesty, what advice they most often feel the need to convey to parties, then such advice could be clearly and succinctly memorialized in a number of user-friendly charts, which clerks could provide without a word, when appropriate. Not only would such a solution benefit the clerks, by taking them out from between a rock and a hard place, but their uniform presentation would present a more level playing field, allow parties to have faith that the information they receive is reliable (as opposed to something found on the Internet), have the added benefit of going home with them to review, and, last but certainly not least, would absolutely speed up the lines at every civil counter across the state. The potential for service to justice and judicial economy cannot be overstated.

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Jacob Kahn is a student at Wayne State University Law School. He works as a process server and law clerk at the Law Office of Anthony Wayne Kahn.)


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