Self Help Programs -- Why This Is a Leadership Issue and the Basics

1. Self Help Programs --Why This Is a Leadership Issue and the Basics NACM 2006 Annual Meeting Fort Lauderdale, Florida Katherine Alteneder John Greacen Susan Ledray Jennifer Keiser July 13th, 2006

2. Some Facts

3. Demographics of Self Represented Litigants • Income and education level vary by location • Majority are poor • Majority have a high school education • Majority are women • Majority are petitioners, not respondents • High percentage have Internet access

4. Why don’t they have a lawyer? • Believe they can’t afford one • Believe the case is simple enough to handle on their own • Don’t want to pay a lawyer • Lawyer will slow everything down • Don’t trust lawyers

5. Increase in frequency • MaricopaCounty domestic relations cases 24% in 1980 47% in 1985 88% in 1991 • Washington state – annual increase from 1995 - 2001 Dissolution w/out children - +1.3% Dissolution with children - +0.8% Paternity, Domestic violence, Torts and commercial, Property rights – flat • NCSC statistical summary in handout

6. Disintermediation • Pumping gas • Fixing homes • Selling own home • Trading stocks without broker’s advice • Self medicating • Home schooling • Representing themselves in court

7. Differential rates of self-representation • California 2001 Small claims 91.1 Infractions 83.1 Unlawful detainer 81.1 Family 35.3 Civil < $25,000 11.5 Motor vehicle torts 6.1 Felony property crimes 4.5 Juvenile dependency 0.3

8. Likelihood of eventBoth unrepresented v. at least one not(Washington 2001) Dissolutions with children Non-jury trial 2.1% 41.9% Motion hearing 37.3% 74.7% Continuance 1.5% 35.6% Dissolutions without children Non-jury trial 1.0% 40.1% Motion hearing 23.4% 57.7% Continuance 0.1% 24.3%

9. Minutes required for hearingBoth unrepresented v. at least one not(California 2001) Probate 3.4 17.2 +400% Felony/person 14.0 37.7 +169% M V torts 16.1 22.3 +45% Family 15.8 12.2 -30% Small claims 15.5 10.4 -49% Drug 6.8 4.3 -58% Unlwfl detainer 13.0 5.7 -128% Felony/property 8.8 3.7 -138%

10. Time from filing to disposition • Washington state 2001 Dissolution with children 345 days v. 136 days Dissolution without children 283 days v. 111 days • National Center for State Courts similar findings for four of five courts

11. Other Research Results • Same level of satisfaction as represented litigants (64% v. 63%) • Much lower dissatisfaction (16% v. 29%) • Less likely to seek interim relief • Less likely to seek modification of decree • More likely to report that they understand the decree • 70% would self-represent again

12. Typical Problems Encountered by Self Represented Litigants • Lack of understanding of the law, court procedures, and the language we speak • Inability to obtain information, forms and instructions • Difficulty drafting appropriate documents • Ignorance of duty to move case forward • Difficulty assembling evidence and presenting a case to the court • Difficulty drafting proposed orders • Difficulty enforcing court orders

13. Why We Care About the Experience of Self Represented Litigants

14. Citizens Use Different Criteria for Evaluating the Outcome of a Court Proceeding National Center for State Courts, Trust and Confidence in the California Courts 2005 • Litigants focus on the fairness of the court process in assessing a court hearing (procedural justice) • Attorneys are more concerned with the fairness of the outcomes of the cases than with the fairness of the process by which the outcomes are attained.

15. Components of “Procedural Justice” – Professor Tom Tyler • Interpersonal respect – persons in the court are treated with dignity and respect and their rights are protected. • Neutrality – judges are honest and impartial decision makers who base decisions on facts. • Participation – parties have the opportunity to express their views to decision makers, directly or indirectly. • Trustworthiness – judges are benevolent; they are motivated to treat you fairly, are sincerely concerned with the needs of the parties, and consider their sides of the story.

16. The Ultimate Goal • Justice should not depend upon one’s ability or willingness to hire an attorney

17. We Have Two Choices • To complain about the phenomenon and do nothing to improve the experience of self represented litigants • To take steps to accommodate the needs of these litigants – • To help them obtain whatever relief they are entitled to under the facts and the law • To help us to operate more effectively and efficiently

18. Reasons to Have a Self Help Center • People like them; enhance public trust and confidence. • Responsive to concerns of commissioners and legislatures; they refer constituents. • One stop for information and referral. • Reduction in delays and dismissals. • Improved quality of information given to judges • Reduced time spent by administrative and judicial staff screening cases

19. Reasons to Have a Self Help Center • Deflect pro se parties needing help to a more appropriate place. Expertise, training, time, resources. • Learn barriers people face and address them. • Stimulate partnerships with libraries, bar, legal services, others. • Improve pro bono and bar programs

20. The Self Represented Litigant Friendly Court

21. Courthouse facilities • Easy access to information and self help services, brochures, and flyers. Think about: • Demographics • Education/literacy levels • Co-location of self help services and filing counters • Improves court experience • Increases trust and confidence

22. Courthouse facilities • Signage, Best Practices: • Post signs in the courthouse near entryways, in clerks’ offices, and in other “points of entry” in the courthouse that clearly direct litigants to the location of the self-help program within the courthouse. • Provide signage where the program is located clearly identifying the program, in a manner that ensures that the program location can be identified, even during hours when the program is closed.

23. Courthouse facilities • Signage, best practices, continued: • Include in signage: hours of operation, scope of services provided, and information about who is eligible to take advantage of the program. • Post in a clearly visible place information about where litigants can turn for assistance when the program is closed, including telephone hotlines, lawyer referral service numbers, online resources, or other locations in the courthouse where they may seek assistance. • Information on how to navigate within the courthouse

24. Materials and Information • Be aware of learning styles & literacy issues • Spoon feed by increment • A-Z reference guides • Forms • SHC cannot meaningfully operate without them • If you don’t make your own, the public will use others • Simplify • Instructions for completing forms • Accept that most don’t read them • Solution: embed in forms • Simplify and use plain language

25. Materials and Information • Guides to court procedures and case preparation and presentation in court : the public love these! • Segmented checklists • Make available at numerous points of contact • Consider classes • Legal source materials • Key citation lists • Case summaries • Collaborate with librarians • Digests

26. Internet Presentation of Materials • The Power of the Web • Uniform information • For staff and public • Easily Updated • Eliminates geographic and time barriers • Particular issues to design around • Navigation: two tiers • Layperson, many of whom have limited reading and writing skills • System professionals, such as lawyers, courts staff, social service providers etc.

27. Internet Presentation of Materials • Technology: platforms; software; processor AND download speeds; printing capabilities; etc. • SOLUTION: keep it simple! • What’s where? • State websites & local court websites • Coordinate and be consistent • Clearly mark local practices • Remember that the public will not make the distinctions you see – they just “google”

28. Self Help Centers • Services provided • Wide range of possible services • Start, evaluate, revamp, expand • Referrals, forms, procedures, legal information, legal advice, screening pleadings, writing/scribing, custom pleadings, language assistance, understanding court notices/orders, prep for trial, orders • Alternative service delivery mechanisms • Display materials • One on one help (in person, email, phone) • Workshops • Clinics • Videos/ Flash tutorials • Document Assembly • Website

29. Self Help Centers • Staffing alternatives • Review existing job classifications. Are new classifications needed? • Court clerks vs. Court staff attorneys vs. Court paralegals • Volunteers • Staff from partner organizations • Contract with another organization • Supervision and responsibility issues • Security considerations • Angry, distressed, mentally ill people • Physical layout; panic buttons; security training • Theft

30. Role of Clerk’s Offices • Don’t balkanize – integrate and triage! • Clerk’s Offices (CO) are the key to overall efficiency in courts • Coordinate delivery of information between Self Help Center (SHC) and CO • SHC is not an excuse to avoid responsibility for providing information and assistance • Training and monitoring CO staff • Cross-train staff between CO and SHC

31. Role of Clerk’s Offices • Capitalize on techniques and strategies developed in the SHC • Understand and recognize a continuum based on substantive knowledge in the distinction between legal advice and legal information • Assigning experienced clerks to the front counter • Experience leads to efficiency • Experience reveals more legal information

32. Self Represented Litigant Friendly Courtrooms • Special calendars • Presence of supporting services • Additional courtroom staff • Self help center staff • Interpreters • Volunteer attorneys • Social service personnel • Judicial ethics • Judicial techniques

33. The Ethical Context ABA Model Code of Judicial Conduct • Canon 3B(7) requires a judge to “accord to every person who has a legal interest in a proceeding . . . the right to be heard according to law.” • Canon 2A requires the judge to “act at all times in a manner that promotes public confidence in the . . . impartiality of the judiciary.”

34. ABA Joint Commission on Evaluation of the Model Code of Judicial Conduct • Proposed Comment 3 to Rule 2.06 To ensure impartiality and fairness to all parties, a judge must be objective and open-minded, and must not show favoritism to anyone.  It is not a violation of this Rule, however, for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.

35. Typical Appellate Court Statement Concerning the Court’s Duty of Equal Treatment “A litigant who chooses to proceed pro se will be held to the same established rules of procedure as trained counsel.”

36. Where the Duty of Equal Treatment Does Apply • Substantive legal standards • Burden of proof • Competency of evidence • Application of the statute of limitations • Application of “hard” procedural bars, such as the time for filing a notice of appeal • Rules of evidence and procedure

37. Where It Does Not Apply • Reasonable accommodations in the courtroom to ensure the litigant’s ability to present his or case to the court. • Courts disfavor defaults and prefer to resolve a dispute on the merits of the case • Courts will make every effort to decipher the claims of a litigant even though they are presented poorly and in improper form

38. The Reality • There is no reported appellate case finding a judge’s specific accommodations to have gone too far; there are two or three ethical opinions saying where not to go • There are numerous cases and opinions finding that judges did not provide sufficient accommodation or mistreated self-represented litigants

39. The Current Status of the Law • Trials judges have broad discretion to make or to refuse to make accommodations for self represented litigants • The challenge facing the appellate courts is to set the boundaries of this discretion • What accommodations are required? • What accommodations are prohibited?

40. Judicial Techniques for Dealing with Self Represented Litigants in the Courtroom • Soon to be published California benchbook • Articles and books • National Judicial College course under development

41. Proactive Case Management • Review of all filings and follow up with litigants • By whom: case managers, paralegals, DCM coordinators • Why: caseflow, access to justice, trust and confidence • Court scheduling of matters rather than relying on SRLs to request hearings • Scheduling conferences • Paralegal letters • DCM reminders

42. Proactive Case Management • Assistance to litigants in settling their cases • Mediation • Arbitration • Facilitation • Scheduling conferences • Custody investigations • Settlement conferences/pretrials • Enabling litigants to leave the courthouse with an order in hand on the date of their first appearance • Provides a written record of events for litigant • Reinforces memory of events

43. Judgments and Orders • Alternative ways for courts to prepare orders and judgments for SRLs -Form orders, templates, judge/clerk prepares order -Self-Help program staff prepare orders -Less time/effort to do orders yourself • Assistance in enforcing court orders -Collection of a judgment; handouts and forms -Contempt motions; forms -Set review/compliance hearings - Draft orders with consequences - Refer to law enforcement, child support, child protection, etc.

44. Collaborations • Legal Services Programs • Reduction of internal resources has created interest in developing creative collaborations, especially with courts • Experience serving target population • Private Bar • Unbundling and pro bono: terrific synergy

45. Collaborations • Social Service Providers • Improve efficiencies with targeted referrals • Leverage resources by training for basic triage • Public and Law Libraries • Community hub of information • Librarians are experts in disseminating information to the public

46. Procedural Simplification • The objective - Reduction in work for everyone - SRL compliance with requirements improves • An example from Minnesota for uncontested divorces with children

47. Funding • Internal budget reallocations • Prioritize spending • State appropriations • Statewide plans • Title IV D reimbursements • Track child support activities • Grants • Startup costs • Pro Bono opportunities • Private donations

48. Networking, Best Practices, and Next Generation Issues Networking • Selfhelpsupport.org • Self Represented Litigation Network • Legal Services Corporation website Best Practices • Trial Court Research and Improvement Consortium Executive Assessment Tool • Maryland Best Practices Publication

49. Networking, Best Practices, and Next Generation Issues Next generation issues • preparing litigants for the courtroom • developing effective triage systems • developing easy-to-use self assessment techniques • learning more about judge/litigant interactions

50. Summary • The challenge facing us as court leaders • The rewards we have found when we succeed