Self-Representation, Access to Justice, and the Quality of Counsel: A Comment on Rabeea Assy’s \u3ci\u3eInjustice in Person: The Right of Self-Representation\u3c/i\u3e

Rabeea Assy’s Injustice in Person: The Right of Self-Representation (Oxford University Press) offers a powerful argument against the right of self-representation in civil cases. Selfrepresentation is usually ineffective for the self-represented litigant, sometimes verging on suicidal, and it is inefficient for the courts, which have to deal with litigants who don’t know procedure, violate rules, and waste time with pointless and sometimes incoherent arguments. Furthermore, pro se litigants not only waste the court’s time, they waste their adversaries’ time and money, and impose opportunity costs on other litigants by clogging up the courts – so an unlimited right of self-representation may inflict collateral damage beyond wasting judges’ time and trying their patience. It is simply a mistake to think that self-representation is a partial solution to the problem of access to justice. This commentary raises several concerns about his argument, focusing in particular on the dilemma facing litigants who realize too late that their counsel is incompetent, or who for whatever reason find it impossible to hire competent counsel in high-stakes matters. Based on these concerns, I suggest several categories of non-simple cases where his proposed mandatoryrepresentation rule should create exceptions: those where self-representation is the client’s only chance; those where the need to hire counsel changes an economically rational case into a loser; those where the client is actually indigent; prisoner petitions; and cases where counsel, possibly for valid paternalistic reasons, won’t provide clients with the voice to which they have a right