Wisconsin Law Review
Wis. L. Rev.
Simplification of the legal system has attracted attention as a means of improving access to justice. A major motivation driving reform is the perception that pro se litigants have flooded the courts and begun clogging up the wheels of justice. Ordinary people do not know rules of procedure, evidence, or substantive law; do not handle their cases effectively or efficiently; and have, the argument goes, generated a “pro se crisis.” A number of states and localities have responded by increasing the availability of legal services, funding programs that offer solutions ranging from limited assistance to full representation, and a few legislatures have even established a statutory right to counsel for particular categories of cases. Given the expense of advocates’ labor, however, most jurisdictions have sought instead to improve litigants’ ability to handle their legal matters on their own. As an alternative to providing litigants with representatives who could help them navigate the courts, a growing number of commentators propose simplifying proceedings to obviate the need for such representation. Methods of simplification include creating form pleadings, introducing technology, and relaxing formal rules that could confuse lay litigants. Proponents of simplification claim that it will decrease the time and cost of proceedings, help litigants meet the technical requirements of the fora in which they appear,and increase litigants’ satisfaction with the process.
This essay argues that the objectives of the simplification project are incomplete and carry potential downsides. It does not take the position that such efforts should be abandoned but recommends that their limits and unintended consequences receive careful scrutiny. Prior commentary has highlighted challenges of simplification from an individual litigant’s standpoint, such as the risk of substandard services and the reality that one-size-fits-all will not fit everyone. This essay turns instead to the efficiency goals themselves and how they affect the administration of justice broadly defined. Part I critiques the goal of cutting costs. Part II critiques the goal of increasing speed. Part III urges that public interest law values figure more prominently in access to justice reform.