The “Rules for Thee, But Not for Me” Phenomenon
The legal system is built on procedure. For an attorney, failing to file a motion on time or improperly authenticating a document can lead to immediate dismissal or sanctions. This is the standard of practice, and judges rarely offer a “do-over” to a seasoned member of the bar.
However, when a pro se litigant (someone representing themselves) enters the fray, the rigid walls of the courtroom often turn into soft foam. In an effort to ensure “access to justice,” many judges grant pro se parties a meaningful level of leniency not afforded to the party represented by an attorney.
The Financial Drain of Patience
The irony deepens when you look at the invoice. Every minute an attorney sits at the counsel table while a judge patiently tutors the opposing party on how to phrase a question is a minute billed to the client. The represented party is essentially taxed for their opponent’s lack of counsel. They pay for their lawyer to wait, pay for their lawyer to respond to incoherent motions, and pay for the extra court dates required because the pro se party “didn’t understand” the previous order. The court’s empathy for the unrepresented often translates into a financial penalty for the represented.
The “Underdog” Narrative
There is also a psychological element at play. Human nature tends to favor the underdog. When a judge sees a high-powered attorney on one side and a stressed, solo parent on the other, a subtle “David vs. Goliath” dynamic can emerge.
The pro se litigant can appeal to the court’s emotions in a way a lawyer cannot. A lawyer is expected to be clinical and grounded in statute; a pro se litigant is “just a father/mother trying their best.” This emotional leeway often allows the unrepresented party to say things in open court that an attorney would be sanctioned for, influencing the judge’s perception of the case through “color” (such as unsubstantiated allegations or hearsay, for example) that isn’t technically on the record.
This creates a tactical minefield for the represented spouse. They often find themselves in the absurd position of asking their attorney to ‘tone it down’ or pull their punches, fearing that a sharp, effective cross-examination of a pro se ex-spouse will be perceived by the court as bullying rather than diligent advocacy. In this environment, excellence becomes a liability.
The Erosion of Predictability
We hire lawyers because we want to know the likely outcome based on the law. When the rules of procedure become “more like guidelines” for the pro se litigant, this leniency isn’t just unfair, it erodes predictability.
If a pro se litigant can successfully move the goalposts because he/she didn’t know where the lines were drawn, the represented party is left playing a game where the rules change mid-match. This often leads to longer litigations, more aggressive posturing, and a deeper sense of resentment that makes co-parenting nearly impossible because one party has already learned that the rules don’t apply to him or her.
The Tension
Access to justice should not be a matter of “just how much justice one can afford.” Not everyone can afford a $300-400-an-hour advocate, but allowing a litigant to bypass the rules that ensure a fair trial by bypassing an attorney’s representation is plainly unfair.
When the court bends the rules for the unrepresented, it inadvertently punishes the person who respected the system enough to bring a professional. It creates a world where the best legal strategy might just be to fire your lawyer and claim ignorance—a discouraging prospect for the rule of law.
Toward a Level—and Literate—Playing Field
Fairness Without Forced Representation
The solution is not to mandate that every person hire an attorney; the right to represent oneself is a cornerstone of our legal tradition and a necessary reality for many. No one should be barred from the halls of justice simply because they cannot afford—or choose not to pay—a lawyer. However, there is a vast difference between providing an open door and providing a procedural “handicap” that penalizes the other side. The goal should be a system where self-representation is a right, but not a loophole.
Access to the court should not come with a license to ignore the rules of the game. When pro se litigants are allowed to profit from a “strategic ignorance” of the law, it undermines the very justice they claim to seek. The court must be a neutral referee, not a secondary advocate for the unrepresented.
A truly fair system requires that we treat the law as a set of objective standards rather than a flexible set of suggestions. If we expect the represented party to play by the rules, we must expect the same of their opponent. To do otherwise doesn’t just hurt the person who hired a lawyer; it erodes the integrity of the court itself.
The solution isn’t to bar the unrepresented from the courthouse, but rather to insist on a standard that protects the integrity of the proceedings for everyone.
Furthermore, courts could implement more robust, mandatory pro se orientation programs that go beyond mere clerical instructions. If an unrepresented litigant is taught the basics of the Rules of Evidence and the consequences of missed deadlines before they enter the courtroom, the judge is no longer forced to choose between due process and procedural fairness. True “access to justice” means access to a system where the rules are known, stable, and applied equally. When we treat the Rules of Civil Procedure as optional suggestions, we don’t make the system more accessible—we just make it more chaotic.
Utah Family Law, LC | divorceutah.com | 801-466-9277