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Phillips: Self-Represented Litigants: Look at the Rules

  • State: Tennessee

The right to self-representation has been part of American jurisprudence since the beginnings of our nation. Indeed, the Judiciary Act of 1789 provided that “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.”

Judge Allen Phillips

Judge Allen Phillips

A few years later, the U.S. Supreme Court confirmed that “[n]atural persons may appear in court, either by themselves or by their attorney,” in Osborn v. Bank of the United States.

The Supreme Court’s language from almost 200 years ago mirrors the rules of the Court of Workers’ Compensation Claims. Specifically, Tennessee Compilation Rules and Regulations 0800-02-21-.04(1) provides that any party who “is a natural person may represent himself or herself” or may be represented by an attorney. Notably, the right to self-representation in workers’ compensation court doesn’t extend to “an artificial person,” such as a corporation; those entities MUST have an attorney for all court proceedings. Non-incorporated employers, i.e., sole proprietors, may represent themselves, but incorporated employers must have an attorney.

So, regardless of whether one is an employee or an employer, if a natural person elects to represent himself, for whatever reason, how does this affect the claim?

In the most basic sense, it doesn’t affect it all. Self-represented parties are not entitled to special treatment, and, under Hessmer v. Hessmer, courts “must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe.” In short, self-represented parties are entitled to fair and equal treatment by the courts, just like any litigant, but no more.

The absence of special treatment is reflected by the dearth of specific references to self-represented litigants in the court’s rules. In essence, all rules apply to them with equal vigor as to represented parties, with only a few exceptions. Those limited exceptions bear remembering.

First, at the inception of a claim, any litigant, represented or not, must include certain information in the petition for benefit determination for it to be considered filed. Namely, Rule .02(22) requires that a petition identify the employee or the employee’s attorney if applicable. Further, the rules make clear that an employee or attorney must sign the petition. Otherwise, the requirements for a valid petition filing have no provisions mentioning the representation status of a party.

Second, Rule .09 notes the assistance an ombudsman or ombudsman attorney might provide a self-represented party. An ombudsman might assist a party with “protecting their rights, resolving disputes and obtaining information,” while an ombudsman attorney might “provide limited legal advice.” But the ombudsman attorney doesn’t assume the role of a party’s counsel. Further, any ombudsman must stop providing services if a party obtains counsel.

Third, Rule .12 addresses “Courtroom Conduct” and specifically provides that these rules apply to both attorneys and self-represented litigants.

Fourth, Rule .16(c) provides that self-represented parties aren’t required to complete a chronological table of contents of medical records before a hearing. They may, but they don’t have to.

Fifth, Rule .18(1)(a) requires that a moving party provide a self-represented party with a copy of any rule or statute on which a dispositive motion is based, and the movant must also state any deadline or requirement to respond. This arises most often in the context of motions for summary judgment. Note that the moving party is under no obligation to explain what the self-represented litigant is to do under the rule or statute.

Finally, Rule .18(5) prohibits an attorney from signing the unrepresented opponent’s name to any order “by permission” as he might with an attorney on the other side.

When a self-represented litigant is involved, all should keep in mind the admonition of Tennessee Code Annotated Section 50-6-116: The court will construe the Workers’ Compensation Law fairly and impartially, favoring neither the employee or employer. The self-represented litigant is entitled to that equal treatment.

Allen Phillips is a judge in the Tennessee Court of Workers' Compensation Claims, Jackson. This entry is republished with permission from the court's blog.

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