Free Speech

Page Restrictions on Court Filings Don't Violate Free Speech

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So concludes Judge Tracy M. Smith's opinion yesterday in Baylor v. Baylor (Minn. Ct. App.), to the surprise of no-one at all who knows how the legal system works.

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  1. I wonder what the winning percentage is of people who “pro se” it in a court.

    1. According to the first result from Google, 24.5% overall (3.5% victory, 21% settled). Interestingly, since 56% of pro-se cases are dismissed in a preliminary motion, this makes for a better-than-even success rate if you file it correctly and have an intelligible claim.

      However, the majority of pro-se litigants are in small claim courts or family courts with small amounts at stake. Also, those with exceptionally clear cases often think they don’t need a lawyer. These cases wouldn’t be included in the analyses above since they are so simple

      1. Ben,
        Is there anyone in Small Claims court who is not pro se? Not sure what the rule is in Texas; here in California, you may Not have a lawyer represent you unless your Small Claims case is being appealed and you’re at that appellate stage. (Aside from cases where an attorney happens to be one of the parties, of course.)

  2. “Baylor has not shown how the page limit violated his freedom of speech, especially given his failure to file a written closing argument at all. ”

    Pro se, everyone!

    You violated my First Amendment Rights by imposing a page limit on something I didn’t write.

  3. OK, this pro se plaintiff managed to screw up his case pretty badly. That said, I think it was petty to not allow him to participate telephonically even though he was on line trying to get connected, because he didn’t know he had to file a motion first. Were I on the appeals court, I might have been tempted to reverse and remand it on that basis.

    Lawyers screw up procedural rules all the time. Sometimes they’re allowed to fix it, sometimes not. The fact is, if it’s something you’ve never done before, chances are good you’re going to screw it up. But the preference should be for allowing people to be heard, on the merits, even if they don’t have the procedural rules down. Would there have been any harm in allowing him to be heard? None that I can see.

    1. OK, this pro se plaintiff managed to screw up his case pretty badly. That said, I think it was petty to not allow him to participate telephonically even though he was on line trying to get connected, because he didn’t know he had to file a motion first. Were I on the appeals court, I might have been tempted to reverse and remand it on that basis.

      I agree with that, but I think the subtext is, “His position had no merit anyway, so we’re not going to waste everyone’s time on a do over.”

      1. David, I don’t entirely disagree with you. I think there are some rights that are important enough to force a do-over, though, even if the result of the do-over will be the same. Especially since the next person with that procedural issue might in fact have had a meritorious case, but now there’s precedent that he’s out of luck.

        Jack Ruby murdered Lee Harvey Oswald on national television in front of millions of witnesses, yet his conviction was reversed and remanded for a new trial, even though there is little question the result would have been the same the second time around. (The issue, by the way, was that the trial judge signed a book contract before the trial started; the court of appeals felt this was improper.)

        1. I agree with Krychek_2 and disagree with David. I think that the rules should be bent for them so that they can walk away believing (correctly) they had been treated fairly by the system. It is both petty and self-defeating (with regard to the public’s respect for the court system) for the courts to treat them otherwise.

          1. FTR, you don’t actually disagree with me, since the first thing I wrote was, “I agree with that.”

            I wasn’t saying that the court was justified in adopting that attitude; I was just describing the court’s thinking as I understood it to be that, rather than a rigid we’ll-never-bend-that-rule thing.

    2. I think it was petty to not allow him to participate telephonically even though he was on line trying to get connected, because he didn’t know he had to file a motion first.

      The procedural failure was likely the reason for not addressing the request in detail, not the reason for denying the request. It is not easy to conduct a bench trial via phone, and requests to appear at trial via phone are routinely denied on the merits. Under the normal rules, evidence is not given over the telephone.

      1. [edit: quote tag didn’t work on my first post]

        “I think it was petty to not allow him to participate telephonically even though he was on line trying to get connected, because he didn’t know he had to file a motion first.”

        The procedural failure was likely the reason for not addressing the request in detail, not the reason for denying the request. It is not easy to conduct a bench trial via phone, and requests to appear at trial via phone are routinely denied on the merits. Under the normal rules, evidence is not given over the telephone.

        1. “Under the normal rules, evidence is not given over the telephone.” Not true in my jurisdiction, in either state or federal court. I agree with Krychek and Nieporent, it was petty not to allow the appellant to testify.

          1. Under Minn. R. Civ. P. 43.01, testimony of witnesses shall be taken orally in open court unless otherwise provided, and allowing a witness to testify by telephone over objection is an abuse of discretion. Matter of Martin, 458 N.W.2d 700 (Minn. Ct. App. 1990); In re Bieganowski, 520 N.W.2d 525 (Minn. Ct. App. 1994).

            § 2:18.Testimony by telephone, 23 Minn. Prac., Trial Handbook For Minn. Lawyers § 2:18 (2019-2020 ed.)

  4. I agree it’s not a free speech issue, but is it a violation of the right to petition for redress of grievances?

    1. Or due process/fair trial. Presumably crazy short page restrictions would implicate the Parties’ due process rights at some point.

  5. On the phone thing, DMN is right. This guy was given every opportunity. If you look at the procedural history, you can see that the Court did try to call him at prior hearings; he didn’t answer. He did properly notice a telephone appearance for one hearing and call int, but he didn’t call in to other hearings.

    Then, for the TRIAL, he didn’t show up, he didn’t say (even write a letter) that he was going to call it, and after the trial started, he tried to call in. Not just a hearing, the (bench) trial.

    There are many pro se litigants out there that judges will try to assist. Then there are those that try to abuse the system; you know the type that file appeals claiming their First Amendment rights were violated by a page limit on a memo they wouldn’t right, or argue that a court in a different district said that the marriage was annulled when the other court in fact did not do any such thing.

    It’s a form of crazy.

    1. Nevertheless, I do think that courts should accommodate when they can. I guess it depends on the facts. If the court said, “No, we won’t let you participate by phone because if we’re doing telephone appearances we need to know in advance to get the right equipment set up, and you didn’t so we’d have to adjourn this thing and start all over later,” then I’d have zero sympathy for the guy.

      On the other hand, if the court said, “No we won’t let you participate by phone because Rules Are Rules,” I’d have more sympathy for him. Well, sympathy isn’t the right word, for the reasons you describe. But I’d have more concern about his opportunity to be fully heard.

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