Meeting the Pro Se Challenge

Meeting the pro se challenge: an update

by Kathleen M. Sampson

Self-representation in court proceedings-a phenomenon known as pro se litigation-continues to grow. But, as AJS pointed out in its 1998 study, Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers, there is often a lack of consensus among legal professionals about the best way to accommodate the self-represented.

For example, judges surveyed for Meeting the Challenge were divided: some were annoyed by the presence of pro se litigants, while others believed judges should help the self-represented receive a fair hearing by relaxing procedural rules. And although many respondents expressed a desire for formal policies to guide judicial behavior in pro se cases, more than 90 percent of judges surveyed said their courts had no such protocols.

In the three years since the publication of Meeting the Challenge, however, much has been done to overcome the obstacles facing both pro se litigants and the courts in which they represent themselves-and the pro se course is becoming clearer.

Action plans

In 1999, with funding from the State Justice Institute and Open Society Institute, AJS convened the National Conference on Pro Se Litigation in Scottsdale, Arizona, offering court, bar, pro se assistance program, and academic representatives from 49 states, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, and Puerto Rico the chance to develop action plans to assist the self-represented.

The state teams identified potential supporters and obstacles to implementing their plans, set goals, and developed detailed task lists and timelines for implementation. Common action plan themes included:

• Establishing task forces to educate members and build support for pro se assistance programming-in most cases to be sponsored by the chief justice or state supreme court.
• Including judges, court personnel, and state and local bar representatives on implementation committees. Other frequently mentioned representatives were librarians (public and law); community representatives; academics; social service providers; legislators; legal services attorneys; and representatives of bar disciplinary, ethics, and pro bono committees.
• Targeting programming efforts at family law cases, in which the majority of pro se litigants appear.
• Unbundling legal services (also known as discrete task representation).
• Assessing needs and collecting statistics.
• Simplifying and standardizing forms and procedures.
• Convening statewide conferences on pro se litigation.

Progress report

AJS recently requested implementation updates from the state team leaders, 23 of whom responded. Many of the states have met initial goals and are working toward achieving longer-range goals. A sampling of progress reports includes:

• Florida conducted a statewide pro se litigation conference in May 2000, New Mexico in January 2001, and Massachusetts in March 2001. California held regional conferences in March and April 2001, and New York will hold its statewide conference in September.
• California, Florida, and Maine are working to develop court rules on unbundled legal services, and seven states are conducting needs assessments or gathering statistics about pro se litigation. Results of these studies will be used to convince policy makers of the need for assistance programs and to justify funding requests.
• Eleven states are reaching out to build broad support for pro se assistance programs. Representatives in these states are meeting with law librarians; speaking to state conferences of bar members, judges, and court clerks; joining existing court reform groups; and educating stakeholder groups about the impact of pro se litigation.
• California, New York, Ohio, Utah, and Wisconsin are planning or have conducted training for judges and/or court personnel on dealing with pro se litigation.
• Utah also developed guidelines for court clerks and opened an online court assistance program for preparing documents ready for filing in landlord-tenant cases and uncontested divorces (http://courtlink.utcourts.gov).
• Delaware opened a Family Court Resource Center and a website for information about the court, divorce/annulment packets, etc. (http://courts.state.de.us/family).
• Oregon has standardized the forms for family-law cases, which now are available on the state court website (www.ojd.state.or.us; use link to family law forms). Use of the standardized forms is optional.
• In March, New Jersey launched the first of a new series of packets for use by the self-represented. The packets provide uniform forms for litigants statewide to file complaints in small claims court and the Special Civil Part for claims from $2,000 to $10,000. To see the packets online, go to www.judiciary.state.nj.us/prose/index.htm. Additional packets for other areas of the law will be offered in the coming months.

Other developments

Because of the recent focus on pro se litigation, a number of other activities-sponsored by both AJS and other court organizations-have developed and are in the works.

Foremost among these are pro se-related conferences and workshops, many of which have served to further the work begun at AJS's National Conference on Pro Se Litigation. A Justice Management Institute technical assistance workshop in May 2000, for example, helped 10 state teams from the national conference refine and focus their action plans. A conference held in October 2000-The Changing Face of Legal Practice- convened by the Maryland Legal Assistance Network, explored new models for delivering legal services, including lawyering on the Web and unbundling legal services. Another conference in October 2000, Developing Effective Pro Se Legal Assistance Programs: Opportunities for Collaboration, was sponsored by the Legal Services Corporation, the Open Society Institute, and the State Justice Institute. Teams from 14 states where LSC grantees had received grants to develop technology to assist the self-represented met in New Orleans to plan how they could collaborate to coordinate activities and avoid duplication of efforts.

Papers and research projects have continued to contribute to our understanding of pro se litigants' needs as well. The Conference of State Court Administrators (COSCA) released its Position Paper on Self-Represented Litigation in August of 2000, offering such recommendations as endorsing assistance programs by COSCA and the Conference of Chief Justices; sponsoring a review of plain language forms; encouraging Internet use to disseminate information to the self-represented; and identifying protocols to help trial court judges interact with pro se litigants. COSCA and the Conference of Chief Justices have formed a joint task force to address these recommendations.

A pro se research project, currently under way by the National Center for State Courts, is examining court proc-esses and procedures in the areas of domestic relations, small claims, and landlord-tenant disputes. The project has three major objectives: (1) to identify the major barriers to access to justice that self-represented litigants encounter due to procedural and administrative requirements; (2) To employ the latest in system design methodology to redesign court processes to remove the barriers and improve access; and (3) to translate the conceptual model for a redesigned court system into an Internet-based prototype for use by courts. When the prototype is ready, the National Center will invite courts to serve as pilot sites to test and adapt the prototype.

In addition, consultant Richard Zorza, under an SJI grant, has written a monograph to be published soon entitled, Designing, From the Ground Up, a Self-Help Centered Court, One in Which the Litigant Without a Lawyer Is the Norm. Among his recommendations for change are the following:

• Build the courthouse as a learning environment, in which the layout of the building reflects the flow of cases, and information on walls and computer monitors educate litigants;
• Have the court-rather than the winning litigant-be responsible for enforcing court orders, possibly by having losing litigants return to court on a specific date to demonstrate compliance or face sanctions;
• Develop "self-help impact statements" that would require courts and legislatures to analyze the impact of changes in court rules or substantive law on the unrepresented; and
• Develop online case-preparation systems to help litigants prepare papers and evidence and think through how to argue their cases.

And, of course, AJS has continued to support the development of pro se programming and protocols within each state. Its Web-based Pro Se Forum supports state teams' efforts to implement their post-conference action plans (www.ajs.org; click on Pro Se). AJS currently is conducting a study of rural pro se assistance programs to determine the strengths and weaknesses of rural programs and the impact of the rural environment on their design and services.

Looking ahead

Activities to respond to the challenges presented by self-represented litigants-some of them controversial-are quickly spreading through the court community, the legal profession, and major national organizations. Some trends are discernible among these activities, including:

• Standardizing and simplifying court forms, as has been done already by a number of states mentioned above;
• Rethinking how courts and technology can be configured to improve access; see some of the projects described earlier;
• Defining the role of the judge in pro se litigation. As the authors found in their research for Meeting the Challenge of Pro Se Litigation, there is a lack of consensus among judges about their role in pro se litigation. Some guidance is emerging in case law and judicial discipline decisions 1, in protocols developed at the state level, and in scholarly comment. 2 The evolution of the judge's role will take time and bears watching.
• Simplifying procedural and evidentiary rules. Maine, for example, proposed in its post-conference action plan to codify informal rules of evidence and procedure statewide for "all actual or potential self-represented litigants, regardless of income or type of case." Some judges and attorneys can be expected to resist this simplification, and change could take years.
• Redefining the role of attorneys and the bar. The legal marketplace is changing quickly and radically. Legal services are offered on the Web, unbundling is developing as an alternative to traditional full representation, ethics rules are in flux, many litigants avoid what they perceive to be the high cost of legal services by self-representing, and others proceed pro se because they think their case is simple enough to do so. The response of lawyers and the organized bar will influence and be influenced by these and other developments.

It has been a busy three years since the publication of Meeting the Challenge of Pro Se Litigation. Like the court futures movement of the early 1990s, pro se litigation is an issue whose time has come. It gains power from already existing initiatives in enhancing public trust and confidence in the courts, improving access to justice, building court-community collaboration, and providing excellent customer service to court users.

But as Arthur Vanderbilt said many years ago, reform is no sport for the short-winded. Effectively meeting the challenge of pro se litigation is a long-term effort, requiring overcoming barriers, questioning the usual way of doing things, dealing with the complexities of collaborating with other stakeholders, testing innovative approaches, and most of all, persevering.

Footnotes

1. See, e.g., Collins v. Arctic Builders and Home Insurance Company, 957 P2d 980 (Alaska 1998), and In the Matter of Teresi, Determination (NY State Commission on Judicial Conduct, February 8, 2001); see www.scjc.state.ny.us/teresi.htm.

2. And Justice for All-Including the Unrepresented Poor: Revisiting the Roles of Judges, Mediators and Clerks, 7 FORDHAM L. REV. 1997 (1999).