Bar News - February 6, 2004
Court Pro Se Task Force: Self-Representation 'Here to Stay'
By: Dan Wise
A SUPREME COURT Task Force on self-represented litigants has issued a report calling for more funding for legal aid services, rule changes to allow limited representation of clients, and added measures in the courts to help pro se litigants.
The task force, chaired by Supreme Court Justice James E. Duggan, has been examining the issue for nearly two years. It acknowledged that "widespread self-representation" is a reality that is "here to stay" and that steps need to be taken to ensure that pro se litigants are treated fairly and equally in New Hampshire courts.
(See accompanying reprint of Justice Duggan’s introductory letter below.)
NHBA President Russell Hilliard said the report makes "a significant contribution to a necessary dialogue on this growing phenomenon. It shows that we need to seriously increase the availability of legal services for those who want or need to be represented by an attorney. For those who choose to proceed pro se, there need to be additional resources for the courts to effectively deal with them." Hilliard noted that pro se assistance is necessary from the viewpoint of attorneys who oppose pro se litigants in court. "It is important for the opposing attorney to have an educated, responsible adversary for the system to work."
The report noted that at least one party appears pro se in 85 percent of all civil cases in the district court and in 48 percent of civil cases in superior court. In domestic relations cases, nearly 70 percent of the cases have one pro se party. Nearly every jurisdiction in one national survey reported that pro se litigation is increasing.
"The impact of this dramatic increase in self-representation has been profound," the report notes. "Today’s legal system is structured for lawyers. Both the system’s complex procedures and the law assume that qualified lawyers will represent both sides in a dispute. This assumption no longer holds true."
"The brunt of this change in circumstances is felt by court staff and judges. Court staff literally spend hundreds of hours responding to inquiries from pro se litigants. Judges must explain fundamental procedures to these litigants. Both judges and court staff are often put in the difficult position of assisting a self-represented litigant with impermissibly giving legal advice."
The task force made the following recommendations:
- Expanded legal services. Because low-income clients lack access to attorneys and are more likely to represent themselves, legal services should be expanded significantly.
- Limited representation. To increase the availability of lawyers, current professional conduct rules should be revised to clearly allow lawyers to engage in limited representation of clients.
- Case managers. Every major court should have one or more well-trained case managers to evaluate pro se cases entering the system for possible referral to mediation, the private bar, pro bono or legal services providers, and to meet with pro se litigants before their court hearings to prepare the parties and the cases for court.
- Public access to information. The judicial branch and state Office of Information Technology should launch a "Computer in Every Courthouse" project to establish public access computer workstations.
- Alternative Dispute Resolution. The courts should designate a statewide coordinator to oversee alternative dispute resolution programs at all levels of the court system.
- Protocols for judges and staff. The courts should develop and promulgate written protocols for judges and staff that explain their duties and limitations in managing pro se litigation.
- Simplified rules. Court rules, forms and procedures should be simplified, where possible, to accommodate self-represented litigants.
The report’s conclusion, in boldface type, states: "...Meaningful access to justice in today’s world means a clear recognition by those involved in the system that many of our constituents want to go it alone when they come to court. Our obligation is to give these citizens the help they want, need and deserve."
Virginia A. Martin, the Bar’s associate executive director for legal services, who oversees the Pro Bono Program, was a member of the Task Force. Although assistance for pro se litigants is important, she said, it is important to note that the Task Force’s first recommendation was an expansion of legal services for low- and moderate-income people.
"Pro se representation is not a choice for most people who are poor or near poor – they often have no viable alternatives," Martin said. "That is why expanded legal services tops the list of recommendations, followed by unbundled or limited-scope representation. " She said attorneys do more than simply provide answers to legal questions – they provide judgment.
"The complexity of people’s lives lead some to the courts when legal solutions may not provide the best answers. Thus, education, information, legal counseling and access to mediation are so very important — not just for people with low incomes, but for everyone."
Task Force member Gregory D. Robbins, a Portsmouth attorney who served as NHBA president from 2000-2001, worked on the unbundled representation portion of the report. He said that the key to expanding the availability of limited-scope representation requires rules changes and support from the court system to ensure that professional liability concerns do not become an obstacle.
Bar News seeks comment from Bar members on the appropriate measures that should be taken to address the pro se phenomenon in New Hampshire’s courts. Send your comments to firstname.lastname@example.org. Additional coverage and commentary on this report will appear in upcoming issues of Bar News.
Justice Duggan’s Introductory Letter
Every day, hundreds of New Hampshire citizens appear in court without lawyers, many because they cannot afford one, others because they want to represent themselves. Whatever the reason, the reality is that most self-represented litigants, despite their best intentions and commitment, are unable to handle their own cases.
The Supreme Court "Task Force on Self-Representation," of which I was pleased to serve as chair, recently completed an extensive study of this issue. Our findings and recommendations are included in this report, which we have submitted to the Supreme Court and its newly established "Committee on Justice System Needs and Priorities."
There is no doubt that pro se litigants make mistakes that result in the loss of their own important legal rights. Their need for guidance and their inexperience with the rules and formalities of the justice system inevitably slow down the operation of the courts, jeopardizing the rights of others who expect efficient resolution of their cases. Part I, Article 14 of the New Hampshire Constitution entitles all citizens the right to seek legal remedies and it guarantees that access to the court system will be free, thorough and without delay. Unfortunately this promise is often unfulfilled for citizens who decide to represent themselves.
The Task Force has concluded that widespread self-representation is here to stay and that innovative changes are needed to ensure that pro se litigants are treated fairly and equally in New Hampshire courts. We urge speedy implementation of our recommendations for the benefit of all New Hampshire citizens.
James E. Duggan, Associate Justice, NH Supreme Court
Chair, Task Force on Self-Representation January 2004