In civil matters such as landlord-tenant disputes and divorce proceedings, there are often a significant number of legal and personal factors a litigant must consider. Those who have lawyers rely on their counsel for detailed knowledge of the law, not only to choose the best legal strategy, but also to translate their voice into the language of the law. For someone representing themselves, establishing a clear legal identity – replete with goals, values, and objectives – can be difficult to achieve, in or out of the courtroom.
This concept of self-determination, Professor Lauren Sudeall contends, has been largely overlooked by courts, researchers, and commentators when discussing the dilemma of self-representation.
“Unrepresented litigants . . . have few vehicles to exercise their autonomy and self-determination can often manifest in ways that are more superficial than meaningful, including nominal participation in court proceedings or rote confirmations of voluntariness and consent,” she writes in her paper “Self-Determination and Self-Represented Litigants,” forthcoming in the Boston University Law Review.
Professor Sudeall, David Daniels Allen Distinguished Chair in Law and Director of the Access to Justice Initiative at Vanderbilt Law, argues that self-determination, a concept rooted in notions of basic human dignity, natural law, and even democratic theory, should be a measure of court effectiveness, alongside more traditional metrics like accuracy, fairness, and efficiency.
She traces the “checkered” history of self-determination in legal doctrine, revealing that while criminal courts have sometimes recognized an individual’s right to make personal decisions—even if unwise or contrary to their own lawyer’s advice—civil courts tend to prioritize due process values such as reliability and fairness over litigant autonomy. When courts implement protections designed to protect those interests, Professor Sudeall argues, they are addressing only part of the problem facing self-represented litigants: people navigating civil court without a lawyer also often lack the critical ability to determine the direction of their own journey through the court process.
The paper explores the idea of self-determination against the backdrop of a shift in access to justice reforms from greater external supports (i.e., more lawyers) to “demand-side” initiatives like active judging, updates to court forms, and judicial review of settlement agreements. She warns that well-intentioned reforms can drift towards paternalism when they “presuppose a lack of knowledge and then attempt to privilege or substitute a particular view [for example, what the judge thinks is necessary or fair] in lieu of providing information and eliciting a litigant-driven decision.” Court intervention may sometimes be necessary to correct structural issues or address complex legal situations, she argues, and “self-determination should be understood as operating along a spectrum.” But, in her view, the goal should be to inform and empower litigants, not to decide for them.
In that vein, Professor Sudeall also encourages input on potential reforms from litigants themselves and recognizes that some people—if asked—would welcome judicial intervention. “It is imperative to incorporate the perspective of people directly impacted by such processes and also to ensure that the reforms themselves can accommodate a number of different personas, ranging in their level of desire to exercise autonomy,” she writes.
While acknowledging the complexity of balancing autonomy with fairness, Professor Sudeall calls for reformers to treat self-determination as a core value in its own right. “Self-determination is, or should be, the driving force behind one’s own journey through the justice process,” she concludes. When courts honor other values and fail to recognize the importance of self-determination, they should at the very least acknowledge that “they are making a trade-off, whether conscious or not.”