Underestimating the unrepresented: Cognitive biases disadvantage pro se litigants in family law cases.

The majority of civil cases in the United States involve at least one pro se party—more often than not, at least one litigant is unrepresented by legal counsel. Despite efforts to provide pro se parties with information that decreases the procedural complexity of litigation, wide access to justice gaps persist between counseled and pro se litigants. We argue that, while helpful, information alone is not enough to close access-to-justice gaps, because the mere presence of counsel gives represented litigants a persuasive edge over pro se litigants in the eyes of legal officials. Two randomized experiments with civil court judges (Experiment 1) and attorney-mediators (Experiment 2), wherein only the presence of counsel varied (while other case-related factors were held constant), found that legal officials, on average, devalued the case merit of pro se litigants relative to otherwise identical counseled litigants. This case devaluation, in turn, shaped how legal officials expected pro se (vs. counseled) litigants to fare as they sought justice. Judges, attorneys, and mediators forecasted that pro se litigants would experience the civil justice system as less fair and less satisfying than counseled litigants, especially when the dispute resolution mechanism was trial (vs. mediation). These results suggest that perceptions of case merit are strongly influenced by a litigant’s counseled status. Comprehensive solutions to address access-to-justice gaps must consider ways to reduce legal officials’ biased perceptions of pro se litigants, so that they are not underestimated before their cases are even heard