Washington Lawyer

Access to Justice: Helping Litigants Help Themselves

From Washington Lawyer, January 2010

By Kathryn Alfisi

handsAs head of the Family Court Self-Help Center at the Superior Court of the District of Columbia, Avrom Sickel routinely sees the burdens that a lack of legal representation places on litigants and the court system.

To a nonrepresented litigant unfamiliar with the legal system, even the most basic legal ideas or terminologies—the difference between a plaintiff and a defendant, for example—can be confusing, and that, in turn, can slow down the legal process. “In many ways we are the translators from legalese to English,” Sickel says.

In recent months staff and volunteers at the center, which provides free information and guidance on family court matters, have had to translate for a growing number of visitors. In August 2009, 623 people sought out the center’s assistance, the highest number of monthly visitors the center has had since it opened in 2002. As of early December, the average number of visitors per month for 2009 was 509; in 2008 that number was 394, a jump from 378 clients in 2007. (Although the term self-represented litigants connotes a choice not to have counsel, in the District of Columbia, the population in the court is more likely to be unrepresented because it cannot afford to have counsel. In this case, the only choice is self-representation.)

The issue of self-represented litigants (and their growing presence) is not limited to the District. It’s a phenomenon that is being replicated in courts across the country. “It’s certainly the case that the impact of self-represented litigants on the courts has been continuously increasing and, of course, is increasing again now with the economic crisis. There were always a lot of self-represented litigants in the courts, but they tended to be in areas where nobody paid them much attention, like family law, small claims, or landlord/tenant. What’s very clear is that in the last 15 or so years, it has spread into more of the court system. That’s part of why it’s getting more attention, which is long overdue,” says Richard Zorza, coordinator of the Self Represented Litigation Network (SRLN), a grouping of national organizations working to improve access to justice for the self-represented. The SRLN, launched in 2006, is hosted at the National Center for State Courts (NCSC) and brings together courts and access to justice organizations in collaborative efforts.

A 2009 SRLN report, “Access to Justice: Economic Crisis Challenges, Impacts, and Responses,” showed that between 50 and 60 percent of approximately 100 judges surveyed reported an increase in cases involving self-represented litigants. The report, written by Zorza, appeared in the NCSC series Future Trends in State Courts 2009. Judges and self-help center staff recently surveyed by SRLN also claimed seeing more middle-class people going to court without legal counsel and small financial disputes—those of businesses pursuing cases they normally would not, or of people defending against claims rather than paying—becoming more common.

When asked whether the Family Court Self-Help Center’s increasing number of clients is a result of the economic crisis, Sickel says it is hard to say. He does, however, have the impression that the reason the center is seeing more motions to modify child support is because people are losing their jobs or having their hours cut back.

No matter the cause, there has been a continuing focus on making the legal system more accessible to self-represented litigants—whether they can’t afford an attorney or prefer not to have one—at the D.C. Superior Court and at courts nationwide.

According to Greg Hurley, administrator for SelfHelpSupport.org, a Web site that serves as a clearinghouse of information for self-help practitioners, the surge of interest in creating resources at the courts for self-represented litigants was born out of necessity. While, unfortunately, statistics on self-represented litigants are hard to come by, Hurley says there seems to be a general consensus pointing to the poor state of the economy to explain why more people are foregoing counsel and choosing to represent themselves.

Not that there hasn’t always been a certain percentage of the population who either could not afford an attorney or think it does not make economic sense to hire one. “The recession hasn’t changed the fact that the financial considerations of a case are a factor in the decision whether to hire a lawyer. When a relatively small amount of money is at issue, it may not be rational to hire an attorney even if the litigant could afford it. The problem is that many people cannot afford to hire a lawyer even when the stakes are high. So, while the economics of many cases hasn’t changed, I think we are seeing more people in court with financial difficulties that have contributed to their legal problems,” says D.C. Bar Pro Bono Program managing attorney Dan Clark, who oversees the Landlord Tenant Resource Center at the D.C. Superior Court.

It’s often not economically feasible for people to retain legal counsel in civil cases and, unfortunately, those sometimes include high-stakes cases. “The raw reality is that even the worst attorney is going to benefit self-represented litigants in some aspects of their case, but the flip [side] of that is, if you have a lower value civil case or a divorce where you don’t have many assets, it may not be cost-effective to hire an attorney,” Hurley says.

Courts have taken various steps to address the hurdles faced by self-represented litigants, including the creation of self-help resource centers, training for judges and court staff, and efforts to make court documents more user-friendly. Apart from the Family Court Self-Help Center (which the D.C. Bar Pro Bono Program helped create and ran initially), the D.C. Superior Court also hosts several information and assistance centers (Landlord Tenant Resource Center, Small Claims and Consumer Law Resource Center, Probate Resource Center, and Tax Sale Resource Center) as well as legal clinics (Pro-Se-Plus Divorce Clinic and Pro-Se-Plus Custody Clinic) being run by the Pro Bono Program. These programs can provide any self-represented litigant with some amount of legal advice and they can also refer low-income litigants to legal services providers for further assistance.

The D.C. Superior Court has informational materials and forms available throughout the courthouse and online. But even with these efforts, any self-represented litigant may still find him- or herself at a disadvantage and face unfavorable outcomes in the courtroom. Some people argue that recognizing the right to counsel for low-income, self-represented litigants in civil cases would be more beneficial than self-help resources alone.

Little Things, Big Difference
Self-represented litigants have long been familiar fixtures at landlord and tenant and family law courts. In 2003 more than 99 percent of tenants named in some 48,000 summary eviction actions filed at the D.C. Superior Court were unrepresented, while 14 percent of the landlords appeared without counsel.

As Clark points out, “If someone is sued for nonpayment of rent, [he or she is] not going to pay a lawyer more than the amount in dispute even where there is a valid defense.” Clark adds that the District’s landlord and tenant court is busier than average as it is located in an urban area with comprehensive laws.

The resource center can, among other things, provide free information to unrepresented tenants and landlords about court proceedings and how to retain counsel and obtain a continuance, make referrals to legal services providers, and coach litigants on how to best make their case before a judge—but it still cannot take the place of an attorney. “Little things, simple questions, can make a big difference in a case, so someone who doesn’t know the law can really be at a disadvantage,” Clark says.

For example, a person going into the landlord and tenant court without an attorney is not likely to know that while loss of employment is not a valid defense to a nonpayment of a rent case, a landlord’s failure to maintain the property is.

An attorney can also be invaluable in complex domestic relations cases such as a divorce that includes property or children, or both. Sickel of the Family Court Self-Help Center says divorce is actually the second most frequent domestic relations issue that people ask about at the center; the first is child custody, and the third is child support. Like the Landlord Tenant Resource Center, the Family Court Self-Help Center can only provide information and assistance related to family law cases, but not legal advice.

“Our role is relatively limited; we’re putting the information out there so people can make the right decisions, but ultimately there is a lot of need for representation,” Sickel says. In divorces, for example, Sickel says “using the self-help center to start is one thing, but once you’re in litigation, you really need to be doing discovery and to find out how big his pension is and what other property there is, and doing that yourself is not a great idea.”

Self-help centers can be helpful for litigants who are voluntarily taking on a fairly simple civil case by themselves. Hurley of SelfHelpSupport.org thinks these centers will become more common once the courts’ budgets improve. “When you put in a self-help center, you make the courtroom more efficient, you make the clerk’s office more efficient, and you save litigants and the court time and money,” he says.

Clark describes the resource centers at the D.C. Superior Court, staffed by approximately 500 volunteers a year, as “one piece of a whole continuum of services. It’s a point of entry for self-represented litigants. The centers can refer people to other resources that may help them, whether it’s a social worker, legal services provider, or another resource center.”

Self-help centers and clinics can take out some of the bewilderment that comes with navigating unfamiliar legal jargon and rules and procedures, because even seemingly straightforward actions can trip people up. It is not uncommon for people to search for court forms online without realizing that the forms have to be jurisdiction-specific in order to be valid.

On more than one occasion Sickel has had a self-help center visitor tell him that he or she had already filed a complaint, but what that person has really done was hand in the intake papers to the center’s front desk.

Burden on the Courts
Lack of legal representation also presents problems to judges, lawyers, and court administrators. Clark says this is what drives a lot of the court reforms regarding self-represented litigants. Not only can there be simple frustration among attorneys and judges in interacting with unrepresented litigants unfamiliar with the legal system, there are also ethical and professional considerations.

Attorneys often find themselves in an adversarial position in their dealings with unrepresented litigants. They can be faced with the challenge of zealously representing the interests of their clients while not taking unfair advantage of a self-represented party.

Litigants without legal counsel also can put judges in a delicate position. A judge must find the right balance between impartiality and the duty to adequately assist self-represented litigants so that information can be provided and the case decided in a timely manner. With proper training, Zorza of SRLN says judges should have no problem accommodating self-represented litigants without actually advocating for them.

“Provided that judges are transparent, treating everybody equally doesn’t require being absolutely passive. You can engage with both sides as much you need to in order to decide the case based on the facts of the law and everybody will understand that that is actually neutral and appreciate it,” he says.

“The truth is that it’s necessary—you can’t move these cases without being engaged and the only question is, how do you do it in a way that you feel comfortable? Judges don’t get disciplined for being engaged as long as they’re [not] blatantly not neutral, so people see it as a danger area but it’s actually not.”

SRLN has created a judicial curriculum package—“Access to Justice in the Courtroom for the Self-Represented” and “An Overview of Judicial Leadership in Access to Justice for the Self Represented”—for judges on how to deal with self-represented litigants in the courtroom. Zorza says SRLN launched the curriculum in November 2007 at the National Judicial Conference on Leadership, Education and Courtroom Best Practices in Self Represented Litigation at Harvard Law School, which drew 35 teams nominated by the state courts’ chief justices to attend.

It can also be important to provide training for court clerks so that they understand the difference between providing legal information, which they are allowed to do, and giving legal advice, which they are not. Hurley of SelfHelpSupport.org says one of the great aspects of self-help centers is that they offer a place for court clerks to refer people when they cannot answer a particular question.

Self-Help Efforts
Self-help centers and training curricula are just two of several cost-effective ways courts and legal services providers are using to provide more access to justice for self-represented litigants.

As a collection point for everything and anything self-help-related, SelfHelpSupport.org, launched in 2004 and also hosted by NCSC, offers numerous resources for courts and legal aid programs, from its online library to its forum wherein people involved in providing legal assistance can share best practices and innovations. Hurley calls the site one of the main entry points for the self-represented community to get information and communicate with one another.

Whereas SelfHelpSupport.org is geared toward practitioners assisting self-represented litigants, LawHelp.org/DC—a project of the D.C. Bar Pro Bono Program with the support of the D.C. Consortium of Legal Services Providers and funding from the D.C. Bar Foundation—is a resource for litigants themselves. Here, litigants can find information on civil legal matters like employment, immigration, public benefits, family law, and housing.

SRLN, on the other hand, is now working with public libraries around the country to train librarians on the proper way to assist people seeking online legal information on library computers. It has also been working on a diagnosis protocol that provides courts a low-cost way to implement self-assessments that would help them improve the way they manage cases.

Hurley says there are numerous methods that states are employing to provide more assistance to self-represented litigants, although part of what influences a state’s efforts is geography.

“In some situations where you have a population that can get to the courthouse, a self-help center might be the ideal way to go. If you have a bar association that’s interested in helping, you can have some pro bono programs, and if you don’t have that, you could have Justice Corp volunteers. Then there’s Montana’s solution of using phone-based or Internet-based services. The answer depends on your population and what the attorneys in your area are willing to do,” he says.

Zorza, the SRLN coordinator, says a lot of states have initiatives to get unbundled legal services (or discrete tasks representation) in place, allowing a client to hire an attorney to handle certain legal services but not provide full representation.

“It’s a very good thing for the courts to be working on because it doesn’t cost them anything in the long term and actually saves them money. [It will] particularly [help] the middle-income group that is too poor to afford a lawyer but not poor enough to get legal aid,” he says.

Clark, the Landlord Tenant Resource Center managing attorney, says that while there are no rules in place preventing the unbundling of legal services in the District, there are difficulties concerning attorney appearance rules. Usually an attorney can only leave a case if the court allows it, and, according to Clark, judges like to see the same lawyer involved in all parts of the case.

SRLN has found that unbundling has not been prohibited, except in a small number of jurisdictions where there had been a misinterpretation of their respective Rules of Professional Responsibility. “The anxiety over [unbundling] comes from previous patterns of lawyers taking all the money they can from clients and then ditching them, but that pattern is very different from unbundling, which is based on a prior and detailed agreement of what is going to be done,” Zorza says.

There have been some adjustments made for low-income litigants. At the D.C. Superior Court, legal services attorneys are allowed to file a temporary appearance in the landlord and tenant court, as part of a new Attorney of the Day Project.

Civil Right to Counsel
Self-help resources have been set up across the country (and online) to provide legal assistance to unrepresented litigants involved in all types of civil cases, but some of those who work in access to justice issues believe that courts should go further and provide attorneys in civil cases to litigants who cannot afford them.

In October 2009 California became the first state to recognize the right to counsel for low-income residents in civil matters such as custody and foreclosure when Governor Arnold Schwarzenegger signed into law the Sargent Shriver Civil Counsel Act.

The right to counsel in criminal cases has been in place since the 1963 U.S. Supreme Court decision in Gideon v. Wainwright. However, in 1981 the Court ruled in Lassiter v. Department of Social Services that unlike in criminal cases, state courts are not required under the Sixth Amendment to provide counsel in civil cases for indigent defendants.

Despite the Supreme Court’s decision, several states have passed statutes adding right to counsel in certain civil matters, and those involved in what is known as the “civil Gideon movement” hope to see more of this type of law in the future. In 2006 the American Bar Association (ABA) adopted a resolution urging federal, state, and territorial governments to provide legal representation to low-income people in cases where “basic human needs are at stake.”

“The issue of providing civil right to counsel didn’t start with Gideon, but that really laid the groundwork for saying, ‘Look, if we’re going to provide counsel in these situations, then we ought to look at the civil context where there are equally important rights at stake,’” says John Pollock, the recipient of the two-year ABA Civil Gideon Fellowship with the Baltimore-based Public Justice Center.

Pollock says a lot of states have passed right to counsel statutes relating to parental rights and delinquency cases, but there’s hardly anything in place outside of family law, even in cases where a lot can be at stake such as evictions, foreclosures, and denial of Medicare or Medicaid.

While civil Gideon advocates are happy about the California law (which is being funded by a $10 allocation of existing court fees), that legislation certainly won’t change things overnight. The Sargent Shriver Civil Counsel Act allows for the creation of pilot projects that will be funded on two three-year cycles, as well as a judicial council to establish eligibility criteria, the scope of the projects, and where they will operate. Proponents hope the projects will help answer questions such as when does a person in a civil case need a lawyer to reach a fair result, or what is the most cost-effective way to provide legal services.

Pollock, however, thinks some critics of the law have misinterpreted it to mean that there will now be a right to counsel for everybody in the state, which would be impossible. He says the act only applies to selected courts in the state and it’s not so much about creating a right to counsel as it is about extending the ability of legal service delivery programs to provide more services than they currently do.

As for claims that states cannot afford to provide more self-represented litigants with counsel, Pollock says it’s the alternative that’s too expensive. “It can wind up becoming very difficult and inefficient for the courts trying to deal with so many self-represented plaintiffs or defendants, especially when they have legitimate claims or defenses… It’s costing the courts a fortune in terms of time and money, and it’s also costing the state a lot in terms of consequences when people lose,” he says.

“You only have to look at the foreclosure crisis to see what happened. More than half of the people going into foreclosure are unrepresented, people being evicted and losing their homes, and many of them could have avoided this if they had had an attorney to assert claims. The consequence on cities is that they have had massive vacancy rates, increased crime, and loss of property tax revenue.”

Pollock hopes the California program would demonstrate that money spent now on the self-represented population will translate into money going back to the state later, whether through emergency services, health care, or law enforcement. Although Zorza’s work at the SRLN is focused on helping self-represented litigants help themselves, he says it’s exciting to see a governor and a legislature show interest in working with the courts on the issue. Zorza is also hopeful that the California program will provide information for courts to narrow down the areas where attorneys are needed, and to provide alternative services in places where they’re not.

“We’re spending about a billion dollars a year on civil legal services now, and according to civil needs surveys, we’re only meeting about 20 percent of the need…. We have to develop alternate mechanisms like self-help,” he says. “The [legal] system has become much too complicated. I think we have to simplify the system and reduce the costs of using the courts for everybody, regardless of whether they have a lawyer.”

Pollock agrees that self-help resources play an important role in assisting self-represented litigants. “All the different approaches are critical because there is always going to be a need that has to be filled. The courts play an important role in providing justice to self-represented litigants and law firms donate tremendous amounts of pro bono time, and these are both important parts of the same puzzle…. There is always going to be a need for additional lawyers and it’s never going to be the case where everyone who needs a lawyer has one. There’s been a lot of work done by the court system and other agencies to promote self-help materials and that is just an important part of solving the problem,” he says.

Reach D.C. Bar staff writer Kathryn Alfisi at [email protected].