by Mary Wisniewski Holden (reprinted with permission from the Chicago Lawyer, September, 1997)

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Anger, ignorance and arrogance
fuel some pro se divorces

A man fighting pro se for custody of his son is happy to tell you about his case.

He'll tell you how his former judge is corrupt, his ex-wife's attorney is corrupt, and his son's psychologist didn't know what he was doing.

"I've got evidence," the litigant said outside of a Domestic Relations courtroom at the Daley Center. He covered a bench with his filings -- all handwritten in capital letters with abundant underlinings and exclamation points. "I'm playing seven-card poker with only five cards. But I'm going to pull aces."

If you met a person like "Tony" (not his real name) on a bus, you might smile politely and move to another seat.

But the court system cannot ignore him: He has a right to be there.

A total of 5,816 pro se filings were recorded in the Cook County Domestic Relations Division in 1996, up from 4,320 in 1995 and 3,200 in 1994, according to Susan M. Fallon, Domestic Relations Division administrator.

Some people represent themselves because they can't afford private attorneys. Others, including some lawyers, can pay for legal help but think they can handle their own cases best. Anyone has a right to speak on his or her own behalf in court.

But experience divorce attorneys report that a small number of pro se litigants use the court system to harass their ex-spouses or simply because they don't know when to let go. These cases, though rare, present one of the toughest and most time-consuming problems in the Domestic Relations Division of Cook County Circuit Court, according to attorneys.

"Some of these guys are nuts," said Denise Wolf Markham, director of legal services for Lifespan Center for Legal Services, which helps low-income women who have been victims of domestic abuse. "We have lots of cases where we believe petitions filed have no factual basis."

Pro se litigants are supposed to be held to the same discipline standard as attorneys -- and judges can sanction them or hold them in contempt for frivolous or false pleadings or other misbeahvior, according to Domestic Relations Presiding Judge Timothy C. Evans. But divorce attorneys say judges are often reluctant to impose sanctions on pro se litigants because it is difficult to tell whether a litigant is acting out of malice or ignorance.

"The system bends over backward to be fair," said Lee M. Howard, an attorney who represents children in custody battles. "Judges are extra careful."

"It's very hard to know how to terminate these cases...," said Cook County Circuit Court Judge Sheldon Gardner, who was in Domestic Relations for eight years before being assigned to the Law Division. "You always want to give somebody their day in court and the time to be heard."

Even when judges do impose sanctions for spurious filings or contempt of court, these litigants are often "judgment proof," according to divorce lawyers. The poorer litigants who may not have jobs can't pay the fines, and going to jail means three squares a day.

Markham said she has spent hundreds of hours battling a pro se litigant in a case that has gone on since 1992. A year in jail for domestic battery did not cure his zest for the courts, according to Markham.

"This guy doesn't work. He does this all day. He just goes to the library and generates this garbage," Markham said.

"When you have somebody who's not afraid of authority and doesn't care what happens to them, you're powerless," said Joy M. Feinberg of Feinberg & Barry, who said she has had about 10 troublesome pro se cases in 20 years of divorce practice.

The best way to handle a contentious pro se case pre-trial is to move it to trial as quickly as possible, according to Associate Judge Susan Snow of the 5th Municipal District in Bridgeview, who had Tony's case pre-trial.

But long-running pro se dramas are often seen post-decree in custody cases, according to divorce attorneys. Even if the divorce is over and custody has been awarded, a custody case is never over until the child reaches adulthood, according to Howard.

"Any party, whether they're normal or abnormal, has a right to seek the protection of their children. They have a right to pick on any little thing," said Howard, who has represented Tony's young son. "If (the son) scrapes his leg, (Tony) can go in and claim his wife has been negligent."

Tony has filed more than 60 motions pro se since his second attorney withdrew from the case in 1995, many of them "emergency motions." His wife filed for divorce in 1992; and the divorce was final in 1995, according to court records. Tony's former attorney, William S. Wigoda, said he withdrew from the case because Tony threatened to kill him.

Tony once accused his ex-wife's boyfriend of abusing Tony's son -- presenting a picture of the boy with a black-and-blue eye. Domestic Relations Judge Patricia Banks determined that the evidence of abuse was fabricated, according to court records. "(His son) even said Daddy put something dark on his eye," Howard said.

Court security officers in Banks' courtroom knew the case well -- rolling their eyes when the parties entered, laughing about it in the elevator. This case might have an element of humor, if it weren't for the financial and emotional costs. Responding to Tony's pleadings has cost his wife, who makes $27,000 a year and does not qualify for legal aid, more than $60,000 in legal fees, she claims.

Her attorney, Ross B. Shugan of LeVine, Wittenberg & Shugan in Homewood, has not yet tried to collect most of his bill, she said.

She praised both Shugan and Howard for sticking with the difficult case and not demanding fees she has not yet been able to pay. But she criticized Banks, who had the case three years until Banks recused herself last March. "If she was stricter in the beginning, it wouldn't have gotten so bad," the ex-wife said.

Banks declined comment.

                    PRO SE PROCEDURE 

Judge Evans said that pro se litigants are welcome in the Domestic Relations Division. "We want to accomodate them to the same extent as someone represented by a lawyer," Evans said. Evans said the division is working on ways to make things easier for pro se litigants.

The division has a 298 petition (formerly known as a pauper's petition) that enables pro se litigants to waive filing costs if they are indigent or within a certain percentage of the poverty guidelines.

Evans said the division also has a joint simplified procedure in which a pair of pro se ligants can file their case and have it resolved on the same day with fees waived if they qualify financially, if no children are involved, and if there are no extensive marital properties. These accounted for 174 pro se filings in 1996.

The division also is working with the Chicago Bar Association to have a CBA volunteer advice desk in the division specifically for pro se litigants.

Evans said that handling pro se litigants is "up to the discretion of the individual judge," though judges must ensure that ligants follow the law.

"The court might call on another lawyer present in open court to assist the pro se litigant -- fill out an order, for example," Evans said. But the court cannot be unfair to the opposing side, Evans said. He said abusive pro se caess are "aberrational."

But these cases are "such a pain" that even a few are too many, Gardner said. "I had a couple of cases that went on forever... It's like a skin disease that always irritates and never goes away."

Floyd N. Nadler of Nadler & Nadler says that difficult pro se cases often involve someone who has had an attorney. But the client thinks he or she is the only one who understand the case.

"Either they fire the attorney or the attorney fires them...," Nadler said. "These people are truly dangerous because they don't know what they're doing, they can't believe they can lose, or they know they're going to lose and they act out in a kamikaze fashion -- "I'm going to lose and I'm taking everyone down with me!'" Nadler said.

The worse pro se divorce litigants are attorneys, Nadler said. He said he has faced about half a dozen lawyers in as many years who chose fools for clients and represented themselves.

"Lawyers are terrifically difficult to deal with pro se," Nadler said. "It's easy to get yourself emotionally involved in a case as a lawyer representing a client; it's even easier when you're the client," said Nadler. "There's all sorts of excessive discovery, excessive motions, all kinds of things that with the usual degree of courtesy you could handle over the phone."

Joseph N. DuCanto of Schiller, DuCanto & Fleck said "lawyers and cops" are frequent pro se litigants in divorce cases.

"They're comfortable with the system, and they're not intimidated by it," DuCanto said, though he adds that the court usually "strongly recommends" that these litigants get counsel.

Pamela Poynter, executive director of the Legal Aid Bureau of Metropolitan Family Services, which represents low-income people in divorces, noted that the end of a marriage is like a death, and some litigants file pointless pleadings because they're stuck in the "anger stage."

Harassment through pleadings can be subtle, Poynter said -- a pleading may look legitimate and turn out to be nonsense. A good lawyer will realize he or she may have to address the psychological state of the other party and not just attack the pleadings, Poynter said.

Judge Snow said people bring their ex-spouses back to court on useless errands "because they're not done with the other person... They haven't finished their emotional work."

These litigants are willing to take the risk of being sanctioned by the court "because they're excited or attracted by the idea of spending more time with their former spouse," Snow said.

"I think for some of these people, they've lost a partner, they've lost a way of life, and they can't disengage," said Dr. Bennett LEventhal, a professor of pscyhiatry and pediatrics and chairman of the psychiatry department at the University of Chicago.

Most people eventually work out the anger and will let the matter end, Poynter said.

But divorce attorneys say they often encounter people who are mentally unstable -- which is why they couldn't get along with their spouses and why they now can't let go. "These people aren't getting divorced for no reason," Feinberg said.

Feinberg said the best solution for such a case is to have it stay with one judge throughout -- one judge who knows what's going on and will be tough.

But judges hate these cases and are glad to find an excuse to be rid of them, said Feinberg, who has seen cases go through several judges.

"What happens is the person accuses the judge of bias; there's a hearing; the judge is found not guilty of bias," Judge Gardner said. "But the judge figures, 'I've had enough of this,' and recuses himself; and the case goes someplace else. Usually the new judge has more patience than the judge who's already been through it."

In Tony's case, Banks eventually cut him off from making any more filings, insisting that he first bring them to her for review, Howard said. She also jailed him for contempt several times. Tony filed a civil rights lawsuit last March against his ex-wife, Shugan, the Cook County Circuit Court, the County of Cook, Lee Howard, and Banks.

After the suit was filed, Banks recused herself from the divorce case. The federal suit was dismissed as frivolous -- but it did give Tony what he said he wanted -- a different judge: Associate Judge James G. Donegan.

DuCanto says that althought it sometimes makes a situation worse if a "hot potato" pro se case is switched to another judge, he understands why judges want out of these cases.

"Judges are terribly exposed up there to all kinds of wackos," DuCanto said. A disgruntled litigant might complain to the media that his rights have been violated. A litigant might be suicidal -- or homicidal -- DuCanto said.

"Any time an unrepresented litigant comes in, it's like someone coming in with a loaded gun -- you don't know what you're going to get," said DuCanto.

Much of Tony's case before Banks took place in Courtoom 1601, where wall plaques remember Cook County Judge Henry Gentile and attorney James Piszczor. They were fatally shot in 1983 in the courtroom by former Chicago police officer Hutchie Moore, a wheelchair-bound divorce litigant who hid a gun under a blanket.

DuCanto said one solution would be for the county to have an ombudsman review repetitive pro se petitions before they are presented to the court.

He also recommended a "referee" system to listen to intermediate motions, such as for increases of support. It would be more cost-effective -- so minor motions aren't heard in "a major courtroom, with deputies and court reporters at $50 per square foot," DuCanto said.

David H. Hopkins, a partner with Schiller, DuCanto & Fleck, said one solution might be to amend the definition of harassment under the Illinois Domestic Violence Act fo include "harassment with frivolous court pleadings."

But any amendment would have to be carefully crafted to avoid treading on someone's rights, Hopkins said.

Hopkins said that when pro se litigants abuse the system, the court must be strict in applying sanctions. If a person is "judgment proof," he or she can be ordered to perform community service.

Hopkins recalls a case in which a judge enjoined a pro se litigant from filing any pleadings unless they were approved by the chief judge. "That brought it to a screeching halt," Hopkins said. "There are steps that can be taken to curtail this harassment."

But it's difficult to draw the line on what is a legitimate filing, said Jane Rutherford, a professor at DePaul University College of Law and past chair of the Association of American Law Schools' Family Law Section.

Not all repetitive post-decree filings are frivolous -- someone may have to come to court month after month to enforce child support, noted Rutherford. She said she was leery of rules that would limit filings.

Rutherford said the problem of pro se litigants abusing the system is not common -- and the court system may serve as a vent for people who might otherwise be violent.

"The law is not very good in general at containing determined and irrational actors, just like someone can kill someone if they're determined to do it and not concerned with the consequences," Rutherford said.

"The kind of person who is vindictive enough to pursue this (abusive litigation), and has so little self-control, and is so little concerned with the consequences of their actions is a dangerous person; and I'd almost prefer them to run off to court, to express their rage at the court system," Rutherford said. "One of the functions of courts is to defuse this kind of volatile emotion."

Divorce attorneys also noted that abusive pleadings are not limited to pro se litigants -- many are filed by well-paid attorneys willing to do whatever the client wants. "That's the prostitute theory of law," DuCanto said.

Feinberg said an important part of her job is to sit down with a client and tell him or her when enough is enough.

You can say to the client, "I'm not going to continue to help you be destructive," Feinberg said.

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