Stephanie contacted a legal aid provider because she wanted help protecting her children. A family court judge had just granted unsupervised parenting time to Stephanie’s physically abusive ex-husband, a man who had never shown any interest in his young children and who had no apparent ability to take care of them. Stephanie thought the judge had been unfair and had not understood just how dangerous her ex-husband was. She was terrified that her children would be abused or neglected, and she wanted help to modify the court order.
Stephanie’s case was nearly impossible for several reasons, foremost of which was that Stephanie had recently agreed to the court order she now wanted to change. Just a week ago, Stephanie had gone to court pro se, negotiated with her ex-husband’s lawyer, and signed an agreement granting the very thing that she thought imperiled her children. Far from making a finding about anyone’s fitness to parent, the judge had simply approved the agreement after hearing both parties testify that the agreement had been signed knowingly and willingly. Nothing had happened in the intervening week. Stephanie had signed the agreement even as she knew that it terrified her and she thought that it was unfair.
Anecdotal reports suggest that pro se litigants are not effective negotiators. Pro se parents in family court agree to let abusers have unfettered access to children or agree to pay more child support than they can afford. Pro se defendants in eviction cases sign unfavorable agreements with landlords’ lawyers even when they come to court armed with evidence that their landlords have violated the law.1 In negotiations with debt collectors’ attorneys, pro se defendants in small claims debt collection cases admit owing amounts they do not recognize and sign agreements with which they have little hope of complying to pay off their alleged debts. For a pro se litigant, negotiating with an opposing lawyer can merely be a shortcut to losing her case. Indeed, a negotiation between a pro se litigant and a lawyer can degrade into the pro se litigant signing off on a list of demands written by the opposing lawyer.
These are not the types of negotiation our adversarial system of justice envisions. Judges extol the virtues of trying to negotiate a settlement outside of the courtroom and argue that it gives both sides more control over a case’s outcome than if a judge decided what to do. But a negotiation between a lawyer and a pro se litigant can lack the give-and-take that judges apparently envision. Pro se litigants may end up having less control over negotiated outcomes than they would if they spoke with a judge.
Resource constraints make effective self-help materials a central part of any overall access-to-justice strategy.
Perhaps even more important, the poor negotiation skills of pro se litigants are worrying for those in the access-to-justice movement because they suggest a serious limitation in the effectiveness of self-help material. In a world without sufficient resources for free legal assistance for all eligible persons with civil legal problems, self-help materials and advice are vital to the access-to-justice movement. Legal aid organizations everywhere rely on the premise that brochures or legal advice can improve a pro se litigant’s chances of handling civil legal problems. Some advocates, such as those behind the website masslegalhelp.org, dedicate themselves to the premise that well-written and clearly formatted legal information can be valuable for pro se litigants. But if the problem of a typical pro se litigant is not ignorance of her rights but an inability to advocate for herself, then well-crafted and clearly explained legal arguments in pamphlets or on websites are of limited use.
To be clear, we do not know the prevalence of this “caving” problem, nor do we know why a typical pro se litigant may have a difficult time negotiating for herself. We do believe that legal aid providers should make studying and understanding the depth and cause of this problem a priority. Again, resource constraints make effective self-help materials a central part of any overall access-to-justice strategy. If current self-help materials do not do the job, they must be made to do so. There is no other option.
Here we attempt both to understand the caving problem and to find a way to deal with it via the use of improved self-help materials. Specifically, we assume (again, we have no data) that one major stumbling block for pro se litigants in negotiations is that self-help advice inadvertently threatens the litigants’ sense of self-worth and challenges their identities in a way that makes them reluctant to advocate fully for themselves.
Those of us who create self-help materials may find it odd to hear that our pamphlets and websites might threaten a person’s identity and sense of self-worth. After all, we might say, we are trying to help, and who finds help threatening? But one has only to think about how one feels when one receives difficult-to-understand written instructions on how to solve an infuriating problem with a piece of software (“Find, download, and compile a set of Linux tools.”), or on how to put together a piece of furniture from a delivery service (“Insert Allen wrench as shown in drawing.”), or on how to fix a recently purchased child’s toy (“Mommy and Daddy, can’t you fix it? I want to play.”). The issue is not just that manuals in such situations use incomprehensible language or that they assume too much reader knowledge of unfamiliar subject matter. The issue is that being unable to do something that others consider simple (or that others have tried to simplify) makes us readers feel stupid (i.e., threatens our identities), and feeling stupid makes us want to give up. In the same way, a pro se litigant encountering self-help materials, even well-written materials in simplified language, and finding the concepts involved unfamiliar, may feel stupid and give up.
Here we suggest that self-affirmation theory, a theory that has been studied and deployed with varying degrees of success in the fields of psychology, public health, and education, might partially curb the identity threats caused by self-help materials for pro se litigants. Here we describe self-affirmation theory, discuss how randomized control trials have shown it to be somewhat effective in antismoking and weight-loss campaigns and in minority and female student performance on tests in science, technology, engineering, and math. We then share some insight into how self-affirmation theory might be adapted to fit self-help materials for pro se litigants.
Before going on, we ask you the reader to remember that you are a good person. By reading this article, you indicate that you care about making the world a better place for persons of limited means. Answering the following questions before reading further might help: When was the last time you helped someone who needed assistance, whether inside or outside your job? What was that person’s name? What did you do for that person? How did you feel afterward? And is this the sort of thing that you try to do regularly in your life?
A pro se litigant encountering self-help materials, even well-written materials in simplified language, and finding the concepts involved unfamiliar, may feel stupid and give up.
Now, to continue: Implementing self-affirmation theory in the law may threaten the identities of those of us who work in law. A suggestion that we lawyers consider deploying self-affirmation theory effectively asks us to place faith in unfamiliar things: the scientific method, randomized control trials, and a spirit of investigation without certainty in results. In law, these are not the standard ways to produce what is considered useful knowledge. To the contrary, the implicit epistemology of law, including law in the form of legal assistance to the poor, elevates personal experience and testimonials from trusted sources over data and quantitative investigation. We concede that, at least to our knowledge, self-affirmation theory has never been applied in the law. So no one has personal experience with it. Our point is not to suggest that all legal self-help materials should deploy self-affirmation theory tomorrow. Rather, our point is that self-affirmation theory has shown promise in areas analogous to legal self-help such that we who construct self-help materials should try it, test it, and evaluate it (quantitatively, qualitatively, and rigorously). That is not how things are usually done in law. Our bigger-picture message here is that the way we do things in law, or at least in access to civil justice, may need to change. And, by the way, please remember that you are a good person. What was the name of that friend that you helped?
To clarify, the purpose of experimenting with self-affirmation theory is not to reduce funding for legal aid attorneys or to replace attorneys with packets. Demand for legal aid attorneys far exceeds supply. Reducing demand by developing better self-help materials will not alter the iron fact of oversubscription. The purpose of experimenting with self-affirmation theory is to help people. It is to reduce the number of eviction defendants who are in decrepit apartments and sign away their counterclaims. It is to reduce the number of debt collection defendants who agree to pay hundreds of dollars to plaintiffs who, if asked, would never be able to prove that the defendants in question actually owe any money. It is to reduce the number of Stephanies out there, who willingly sign off on agreements they believe will endanger their children.
Self-affirmation theory is just one example of a variety of theories, findings, lessons, or techniques from public health, psychology, sociology, behavioral economics, adult education, political science, advertising, and other fields that might offer useful lessons for persons interested in access to justice. The key to learning lessons from these fields is to conceptualize the plight of self-help litigants not in legal terms but in terms of tasks that must be performed. Take, for example, the plight of a pro se debt collection defendant who is in severe financial distress. To succeed, a debt collection defendant must (i) show up in court on an appointed day, (ii) speak and negotiate with a creditor, a mediator, a judge, or all three, and, perhaps, (iii) adjust life habits so as to save more and spend less. But the task of showing up in court is not really a legal problem; it might be best analogized to showing up to vote or showing up to get a flu shot or showing up to get a colonoscopy, all of which have been the subject of randomized control trials.2 Similarly perhaps the primary challenge in negotiation is not in understanding relevant legal principles (the concept of a limitations period, for example, is relatively simple) but in the pressure of on-the-spot performance in an unfamiliar environment. If so, then solutions might lie in techniques that assist women and minorities in improving math test scores when the threat of social stereotypes places them under extraordinary pressure.3 And perhaps adjusting daily habits to save more and spend less is akin to controlling diet, exercising more, or stopping smoking.4
Self-affirmation theory posits that if one bolsters a person’s sense of self, that person is more likely to evaluate objectively information that the person would otherwise ignore because it challenges the person’s sense of self-worth.5 For example, smokers might find the warning label on a pack of cigarettes threatening because it suggests that the smokers are making a poor decision that can threaten their lives. On their own, then, the smokers might resolve this challenge to self-worth by disregarding the warning label and assuming that either it does not really apply to them or that they gain more by smoking than they lose.6 Self-affirmation theory proposes that smokers can be convinced to evaluate objectively threatening information on the warning label so long as they are simultaneously able to maintain an overall positive view of themselves.7 For example, if one bolsters the smoker’s sense of self in an unrelated area (perhaps by prompting the smoker to reflect on how the smoker is a good parent), the smoker will be more likely to consider objectively information about smoking’s harmful effects because the smoker will be able to believe simultaneously that the smoker has been making a poor health decision but is still a good person.8
Self-affirmation theory could potentially boost the effectiveness of any area where legal aid providers rely on written materials to convey information.
Researchers have tested self-affirmation theory in a variety of fields and using a variety of methodologies. The most reliable methodology is a randomized control trial. A typical self-affirmation randomized control trial takes a group of people, conducts a self-affirmation exercise with a randomly selected half while exposing the other half to an exercise having no effect on identity, and then measures the entire group’s reaction to threatening information. Measurements of reaction include how critical study subjects are of threatening information, how willing they say they are to implement specific steps recommended by the threatening information, and, most revealing and useful of all, whether they actually implement any of these steps. In one study, for example, experimenters asked a randomly selected half of participants to reflect on a time they were generous or forgiving, asked the other half to do a meaningless activity, and then told all participants that they should eat more fruits and vegetables.9 All participants later reported on their eating habits, with affirmed participants reporting an increase in fruit and vegetable consumption.10
A key premise of self-affirmation theory is that one’s sense of self-worth is fungible. In other words, the value affirmed does not have to be related to the subject matter of the threat faced so long as one’s overall sense of self-worth is maintained.11
Self-affirmation is typically manipulated by asking study participants to brainstorm the value they wish to affirm or choose from a list of values (e.g., intelligence, kindness, honesty, tenacity, friendliness, sense of humor, social skills, business/money skills, relations with friends).12 One particularly common self-affirmation is known as the Reed/Aspinwall/Armitage method, which specifically asks participants to affirm their sense of kindness.13 Another common affirmation, known as the Allport/Vernon/Lindzey value scale, affirms interest in art, business, science, or culture.14 Other types of values used are work performance, career aspirations, and intent to implement some specific step to solve a task.15
Studies employ several different tactics to affirm values. Participants may be asked to write about times in their lives in which they have shown a certain positive trait, to write about activities or aspects of their lives that are important to them and that make them proud, to list positive aspects about themselves, to write positive characteristics about themselves for several minutes, to explain why their chosen values reflect their true selves, to think about positive traits for a period, to complete a questionnaire and give examples of times they have expressed certain positive qualities, to rank values and then write about their most cherished values, to write about how they intend to implement positive advice, to write about an aspect of their jobs that makes them feel good, to unscramble sentences related to a cherished value, to look at their Facebook profile for several minutes, and to answer questions related to several positive traits.16
Self-Affirmation and the Law
Pro se litigants and smokers may not seem to have much in common, but imagining that pro se litigants find self-help advice just as threatening to their sense of identity as smokers find warning labels is not far-fetched. Our interest in self-affirmation theory came as we were researching ways to empower pro se defendants in financial distress, and so we will use as an example a pro se defendant sued in small-claims court over a credit card debt. The plaintiff may be the third or fourth party to purchase (allegedly) the right to collect on the defendant’s debt, and the plaintiff may therefore not have paperwork proving that the specific defendant in this case actually owes the specific amount alleged. Advice to a pro se defendant would therefore be along the lines of “Make the plaintiff prove you actually owe it any money” or “Make the plaintiff prove you actually owe the amount of money it says you owe.”
But the setting in which the defendant would have to make such arguments is unfamiliar and intimidating. Courts are designed deliberately to instill awe and a sense of majesty and respect among those who enter them. Judges wear black robes to persuade members of the public who appear before them that they the judges should be respected. Pro se litigants who find themselves in such settings for the first time may not perform well without a strengthened sense of self. Knowing all this, they may not react well to self-help materials that simply regurgitate legal concepts.
Self-help advice could be similarly threatening in the context of negotiations outside the courtroom, even when all that is necessary is to invoke the burden of proof. Pro se litigants negotiating parenting time or a move-out agreement with a landlord can be informed of their rights and counseled to stick to their bottom lines, but doing so may require them to interrupt, refuse offers, or generally be “difficult.” Typical pro se litigants may not see themselves as “difficult” and may therefore find advice to behave in this way threatening, leading to a decision to ignore it.
As mentioned above, there do not appear to be any studies that apply self-affirmation theory to the law or test its effects on pro se litigants. Randomized studies in education, health, negotiation, and workplace performance all suggest that self-affirmation manipulation makes people more likely to accept threatening information about themselves.17 Imagine how self-help packets could be improved by incorporating self-affirmation. A debt collection defendant, affirmed by appealing to her kindness, might go to court more ready to invoke the plaintiff’s burden of proof. A defendant in an eviction case, affirmed by appealing to his sense of honor, could commit to discussing quiet-enjoyment violations with a landlord’s attorney. Pro se litigants could have a greater chance of asserting their rights in court.
A debt collection defendant, affirmed by appealing to her kindness, might go to court more ready to invoke the plaintiff’s burden of proof.
Due to the lack of any studies involving self-affirmation in litigants of any kind, let alone pro se litigants, experimentation is needed to determine whether (and, if so, how) self-affirmation can aid pro se litigants. Existing studies, while suggesting some promise, are of limited use in determining how to incorporate self-affirmation exercises into self-help material. As noted above, self-affirmation exercises often ask for a lot of input, ranging from completing long questionnaires to writing short essays. These methods work in studies where the participants have volunteered and are therefore theoretically willing to complete whatever activity is put in front of them. Pro se litigants, however, may think they themselves want only straightforward legal information (or may be agnostic about whether they even want that) and may not be inclined to complete a long activity. A much shorter affirmation would be ideal for self-help purposes, but there is as yet little evidence about whether shorter self-affirmation manipulations are effective. To make self-affirmation manipulation useful to pro se litigants, then, legal aid providers should develop and test a short questionnaire.
Moreover, existing self-affirmation studies do not seem to offer perfect analogies to situations where self-help would be used. An antismoking self-affirmation study, for instance, tests what happens when a person faces an antismoking message at one discrete period. Not all self-help materials can be honed that specifically. For example, a self-help packet that discusses how to litigate a divorce might have to advise a litigant on how to navigate several hearings, negotiations, and filings.
Further tests and experiments should therefore focus on the placement and frequency of self-affirmation exercises in self-help materials. Is self-affirmation manipulation effective when it appears at the start of a long self-help packet, not all of which may be threatening to a litigant? Should pro se litigants be asked to repeat a self-affirmation manipulation exercise every time they are introduced to a section of threatening information? To what extent do self-affirmation exercises need to vary in format and content so that a litigant who completes four of them will not find them repetitive and thus be tempted to skip them?
Legal aid providers experimenting with affirmation manipulations should consider what sorts of values are important to their target population before they incorporate self-affirmation into self-help materials. A key aspect of self-affirmation theory is that the manipulated value need not be, and probably should not be, related to the threatened value. For example, a smoker should not be affirmed by appealing to how healthy she is. The affirmed value must be a deeply held value, however, and people may differ on what values they hold deeply. Some self-affirmation experiments get around this problem by focusing on one or more values assumed to be important to everyone (such as kindness), but a legal aid provider could conduct a survey of current or potential clients and create a self-affirmation manipulation based on survey responses.
If legal aid providers can figure out how to use self-affirmation to improve self-help materials, there is no reason to think that self-affirmation’s benefits need stop at preparing litigants for negotiations. Studies have also shown that self-affirmation can make people more likely to self-report being receptive to previously threatening information, more likely to change their behavior accordingly over a short period (such as a week), and more likely to change their behavior over a longer period (such as a month).18 For instance, self-affirmation could conceivably be used to reduce default rates because some pro se litigants may fear or dread going to court and may need a broader appeal to attend hearings. Courts could therefore include self-affirmation exercises when sending a summons because (for example) no one benefits when a defendant in a criminal case fails to appear and ends up with an arrest warrant.
Self-affirmation theory could be used more “upstream” to prevent legal problems from exploding. Self-affirmation exercises could be used to bolster financial counseling (thus possibly reducing the number of debt collection cases) or parenting classes (thus possibly reducing the number of family court cases). Self-affirmation theory could potentially boost the effectiveness of any area where legal aid providers rely on written materials to convey information.
Remember: you are a good person. Think back again to the time you helped someone. You help people. We are spending time affirming ourselves because it takes courage to try something new and different in the law. Self-affirmation theory has been tested and retested for decades but has not been studied in the law. This is a mistake. Self-affirmation theory could enable legal aid attorneys to reach a lot more people. Self-affirmation theory offers promise, but this promise will not lead to anything unless lawyers act on it and test it. To discover whether self-affirmation theory can actually aid pro se litigants, lawyers need to be willing to embrace, at least partially, the scientific method and be willing to have their beliefs and epistemological systems challenged. The risk is that we will discover that self-affirmation theory does not improve the lot of pro se litigants. The potential is that we will discover a way to improve even more lives.
Trial Attorney, Public Defender Division
Committee for Public Counsel Services
One Congress St. Suite 102
Boston, MA 02108
D. James Greiner
Professor of Law
Harvard Law School
1563 Massachusetts Ave.
Cambridge, MA 02138
1 See Erica L. Fox, Alone in the Hallway: Challenges to Effective Self-Representation in Negotiation, 1 Harvard Negotiation Law Review 85 (1996).
3 See, e.g., Steven J. Spencer et al., Stereotype Threat and Women’s Math Performance, 35 Journal of Experimental Social Psychology 4 (1999).
4 See, e.g., Mary E. Charlson et al., Randomized Controlled Trials of Positive Affect and Self-Affirmation to Facilitate Healthy Behaviours in Patients with Cardiopulmonary Diseases: Rationale, Trial Design, and Methods, 28 Contemporary Clinical Trials 748 (2007).
5 Joshua Correll et al., An Affirmed Self and an Open Mind: Self-Affirmation and Sensitivity to Argument Strength, 40 Journal of Experimental Social Psychology 350 (2004).
6 Claude M. Steele, The Psychology of Self-Affirmation: Sustaining the Integrity of the Self, in 21 Advances in Experimental Social Psychology 261 (Leonard Berkowitz ed., 1988).
7 Amy McQueen & William M. P. Klein, Experimental Manipulations of Self-Affirmation: A Systematic Review, 5 Self and Identity 289, 290 (2006).
8 Correll et al., supra note 5, at 350.
9 Tracy Epton & Peter R. Harris, Self-Affirmation Promotes Health Behavior Change, 27 Health Psychology 746, 748 (2008).
11 Joshua Aronson et al., Self-Affirmation Theory: An Update and Appraisal, in Cognitive Dissonance: Progress on a Pivotal Theory in Social Psychology 127, 128–29 (Eddie Harmon-Jones & Judson Mills eds., 1999).
12 McQueen & Klein, supra note 7, at 296.
13 Epton & Harris, supra note 9, at 748.
14 Correll et al., supra note 5, at 352.
15 See Christopher J. Armitage et al., Evidence That Self-Affirmation Reduces Alcohol Consumption: Randomized Exploratory Trial with a New, Brief Means of Self-Affirming, 30 Health Psychology 633, 636 (2011) (intent to implement some specific step to solve task); McQueen & Klein, supra note 7, at 296 (work performance); Jeff Stone & Joel Cooper, The Effect of Self-Attribute Relevance on How Self-Esteem Moderates Attitude Change in Dissonance Processes, 39 Journal of Experimental Social Psychology 508 (2003) (career aspirations).
16 See Armitage et al., supra note 15, at 636 (write about intent to implement positive advice); David De Cremer & Constantine Sedikides, Self-Uncertainty and Responsiveness to Procedural Justice, 41 Journal of Experimental Social Psychology 157, 167 (2005) (think about positive traits for period); McQueen & Klein, supra note 7, at 296 (write about positive traits, activities that make them proud, why their chosen values reflect their true selves, good parts of their jobs); Lucy Napper et al., Developing and Testing a Self-Affirmation Manipulation, 8 Self and Identity, 45, 48–49 (2009) (answer questions on positive traits); David K. Sherman et al., Affirmed Yet Unaware: Exploring the Role of Awareness in the Process of Self-Affirmation, 97 Journal of Personality and Social Psychology 745, 749, 754 (2009) (rank and write about values, unscramble sentences); Catalina L. Toma & Jeffrey T. Hancock, Self-Affirmation Underlies Facebook Use, 39 Personality and Social Psychology Bulletin321 (2013) (look at Facebook profile).
17 Aronson et al., supra note 11.
18 See Christopher J. Armitage et al., Self-Affirmation Increases Acceptance of Health-Risk Information Among UK Adult Smokers with Low Socioeconomic Status, 22 Psychology of Addictive Behaviors 88 (2008) (receptive to threatening information); Christine Logel & Geoffrey L. Cohen, The Role of the Self in Physical Health: Testing the Effect of a Values-Affirmation Intervention on Weight Loss, 23 Psychological Science 53 (2012) (change over longer period); Mark B. Reed & Lisa G. Aspinwall, Self-Affirmation Reduces Biased Processing of Health-Risk Information, 22 Motivation and Emotion 99–100 (1998) (change over short period).