A Report and Guidebook for

Judges and Court Managers

Jona Goldschmidt

Barry Mahoney

Harvey Solomon

Joan Green

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This publication is based on a study conducted with the support of the State Justice Institute (#SJI-96-12A-C-035). Points of view expressed herein do not necessarily represent the official positions or policies of the American Judicature Society, The Justice Management Institute, or the State Justice Institute. Library of Congress Card Catalog Number 97-75224 Copyright: American Judicature Society, 1998 ISBN 938870-81-5 American Judicature Society 180 N. Michigan Ave., Suite 600 Chicago, Illinois 60601-7401 (312) 558-6900 Founded in 1913, the American Judicature Society is an independent, nonprofit organization supported by a national membership of judges, lawyers, and other members of the public. Through research, educational programs, and publications, AJS addresses concerns related to ethics in the courts, judicial selection, the jury, court administration, and public understanding of the justice system.

Jona Goldschmidt Joan B. Green Project Consultant Program Manager Department of Criminal Justice The Justice Management Institute Loyola University Chicago Denver Colorado Barry Mahoney Sandra Ratcliff Daffron President Executive Vice President The Justice Management Institute and Director Denver Colorado American Judicature Society Harvey E. Solomon Kathleen Sampson Senior Consultant Director of Programs The Justice Management Institute American Judicature Society Denver, Colorado

Gary S. Wolfe Project Evaluator Tucson, Arizona

PROJECT ADVISORY COMMITTEE

Nancy Dodson Deirdre O'Meara Smith League of Women Voters Clerk, Missouri Court of Appeals of Metropolitan Tulsa St. Louis, Missouri Tulsa, Oklahoma Gordon M. Griller Hon. John M. Smoot Court Administrator Probate and Family Court Superior Court of Maricopa County Old Courthouse Phoenix, Arizona Boston, Massachusetts Suzanne H. James Patricia Tobias Court Administrator Administrative Director of Courts Seventh Judicial Circuit Supreme Court Building Upper Marlboro, Maryland Boise, Idaho Hon. Ellen F. Rosenblum Barry Wilkes Multnomah County Courthouse Clerk, Superior Court Portland, Oregon Liberty County Courthouse Hinesville, Georgia

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CONTENTS

Acknowledgments vii Preface ix THE CHALLENGE OF PRO SE LITIGATION 1 Introduction 3 The AJS/JMI Pro Se Project 6 Method 6 Judges' Survey 6 Court Managers' Survey 7 Data and Current Research on Pro Se Litigation 8 How Many Self-Represented Litigants Are There? 8 Domestic Relations 8 Tort and Other Civil Cases 9 Federal Court Prisoner and Appellate Cases 9 Why is Pro Se Litigation on the Rise? 10 Who are Pro Se Litigants? 11 Legislative and Court Responses to Pro Se Litigation 13 A Sense of Urgency 15 LEGAL AND ETHICAL ISSUES 17 Constitutional Principles and Self-Representation 19 Right of Access to the Courts 19 Right of Self-Representation 22 Right to Open Courts 24 Judicial Assistance 25 General Rules Regarding Treatment of Pro Se Litigants 25 Ghostwriting 26 Procedural Compliance 27 Duty of Impartiality 27 Motions for Summary Judgement 30 Sanctions for Procedural Noncompliance 31 Rule 11 32 Appointment of Counsel in Civil Cases 32 Pro Se Litigants in Criminal Cases 32 Assistance From Court Staff 34 Giving Legal Advice 34 Selecting Forms and Filling in Blanks 35 Attorneys General Opinions 39 Recent Proposals to Guide Court Staff 41 CHALLENGES TO THE COURTS 47 Court Manager Perspectives 49 Introduction 49 Challenges and Issues 49 Case Volume 49 Court Policy Constraints 50 Conflicting Judicial Philosophies 50 Role of the Bar 50

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Funding Issues 50 Education and Training 50 Judicial Attitudes and Strategies 52 Cases in Which One Party Appears Pro Se 52 Cases in Which Both Parties Appear Pro Se 54 Courtwide and Individual Policies 54 Policies Requiring Counsel 55 Initial Pleadings 55 Pretrial Conferences 56 Notice of Hearings 56 Motions and Hearings 57 Trials 57 Post-Trial Proceedings 58 Proposed Rule Changes 59 Unusual Pro Se litigants 60 Programs and Systemic Changes 60 RESOURCES FOR MANAGEMENT OF SELF-REPRESENTED LITIGANTS 63 The Importance of Judicial Leadership and Commitment 65 Bar Involvement 67 Responding to the Challenges: Court-Initiated Programs and Services 68 Court Forms and Instructions 69 Explanatory Materials: Brochures, Pamphlets, and Videos 69 Staff Assistance 69 Legal Clinics 70 Pro Bono and Reduced Cost Legal Services 70 Self-Help Centers 71 Illustrative Pro Se Assistance Programs and Services 72 Self-Service Center (Arizona) 73 Quickcourt (Arizona and Utah) 76 Domestic Violence Clinic (California) 79 Family Law Pro Per Clinic (California) 81 Information and Referral Office (Colorado) 84 Pro Se Legal Services Unit (Florida) 86 Family Law Self-Help Program (Florida) 88 Access Initiative (Florida) 90 Domestic and Family-Related Pro Se Assistance Projects (Maryland) 92 Legal Access Point (Minnesota) 94 Family Division Public Information Videotapes (New Jersey) 96 Pro Se Services Office (New Mexico) 98 Petition Preparation (New York City) 100 Family Law Facilitator Program (Washington) 102 POLICY RECOMMENDATIONS 105 APPENDICES 115 Appendix I Judges' Survey and Results 117 Appendix II Court Managers' Survey and Results 122 Appendix III Statutes and Constitutional Provisions 130 Appendix IV Annotated Bibliography 135 Appendix V Additional Resources 145

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ACKNOWLEDGMENTS

This report and guidebook would not have been possible without the assistance of the judges and court managers who took the time to thoughtfully respond to the surveys sent to them as part of a project to study pro se litigation undertaken by the American Judicature Society (AJS) and The Justice Management Institute (JMI). The distinguished project advisory committee provided valuable assistance in constructing the surveys, commenting on earlier drafts of this book, and most importantly, developing policy recommendations. Recognition is due, of course, to the State Justice Institute, which funded the project, and its deputy director, Richard Van Duizend, for shepherding the book through its various stages and providing useful guidance. In addition, we wish to acknowledge and thank our research assistants, Charles Matosian of Loyola University of Chicago School of Law and Freddie Woods of the DePaul University College of Law. Their invaluable research on the legal issues surrounding pro se litigation greatly contributed to the comprehensiveness of this report and guidebook. We are grateful to David Richert and Kathleen Sampson of AJS for facilitating production, and to Stanley Kowalski for ably typesetting the manuscript.

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PREFACE

In response to the recent growth of pro se litigation, the American Judicature Society and The Justice Management Institute conducted a study designed to gather information that would be useful to judges, court managers, and other justice policy makers. This report and guidebook is the product of that study. The AJS/JMI study, and other research on pro se litigation, is described in The Challenge of Pro Se Litigation. This section provides the reader with information about areas of law in which the growth in pro se litigation has been observed and cites news accounts from across the country that call attention to this phenomenon. Legal and Ethical Issues provides the reader–for the first time in one place–a summary of the legal and ethical issues that daily confront judges and court staff who deal with self-represented litigants. This section reviews the constitutional bases of self-representation, the decisional law concerning pro se litigation, and relevant cases, ethics opinions, and attorneys general opinions concerning judicial and court staff assistance to self-represented litigants. The day-to-day challenges of pro se litigation with which judges and court staff are confronted are described in Challenges to the Courts. This section provides the court managers' and judges' perspectives regarding administrative and judicial challenges and responses, respectively, that self-represented litigants present. Here, the reader confronted with similar challenges will find numerous suggestions for consideration. Resources for Management of Self-Represented Litigants presents examples of pro se assistance programs adopted by courts across the country. These programs reflect a variety of models that have been adopted to address the self-represented litigants' need for assistance in the litigation process, and should be useful for justice system policy makers considering methods of meeting that need. Most importantly, a set of policy recommendations developed by the distinguished advisory committee for this project is also included. It is hoped these will be used as a starting point for a national dialogue and local policy development to ensure access to the courts for all litigants, whether represented or not. Finally, additional resources relevant to pro se litigation are provided in the appendices. These include copies of the surveys administered to court managers and judges, a listing of relevant federal and state constitutional and statutory provisions regarding self-representation, an annotated bibliography of the literature on pro se litigation, and a variety of additional resouces available from AJS, the State Justice Institute, and elsewhere. Not all of this extensive material regarding the challenges self-represented litigants present to the courts may be useful to every reader. But we hope that providing resources in this report and guidebook to meet most if not all of these challenges will assist–and save the time of–busy policy makers.

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Lest the citizenry lose faith in the substance of the system and the procedures we use to administer it, we can ill afford to confront them with a government dominated by forms and mysterious rituals and then tell them they lose because they did not know how to play the game or should not have taken us at our word.

Moore v. Price, 914 S.W.2d 318, 323 (Ark. 1996), Mayfield, J., dissenting

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THE CHALLENGE OF PRO SE LITIGATION

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3

INTRODUCTION

Judges and court managers are familiar with self-represented litigants, also known as "pro se" or "pro per"1 litigants. In general jurisdiction courts, these litigants were typically incarcerated inmates, an occasional indigent person unable to afford counsel or court filing fees, or gadflies who were intent on going it alone based on principle. In limited jurisdiction courts, the self-represented are more common. Stakes are small and the court culture is informal, encouraging litigants to handle their own small claims, traffic, or ordinance violation cases. For a number of reasons, we have witnessed a recent surge of pro se litigation in our courts, especially in more complex, personal litigation. While there is a dearth of empirical studies, the available data indicate that an increasing number of litigants are electing to represent themselves in a variety of legal matters, both contested and uncontested. They are seeking the assistance of court staff and judges in order to process their claims or defenses through the labyrinth of procedural rules that make up the fabric of our judicial process. Court staff, already overburdened–especially in large urban jurisdictions–are faced with increasing numbers of pro se litigants who ask for explanations of the legal process as it pertains to their cases. While court clerks have traditionally assisted attorneys2 and their staff by providing instructions as to the appropriate rule to follow or form to file, they are hesitant to provide the same information and forms to self-represented litigants. Providing such assistance takes much time away from other duties. In addition, prohibitions against the unauthorized practice of law serve to deter court staff from rendering assistance to self-represented litigants. In most jurisdictions, the result has been to turn away these litigants with the words, "We cannot assist you because we cannot give legal advice." In the event self-represented litigants are not deterred from the often-lukewarm reception from a busy clerk, they encounter additional barriers to justice in the courtroom. There, the self-represented litigant appears before a judge who, like the court clerk, is faced with managing a heavy workload. Judges expect to play the traditional role of passive arbiter in the litigation process, and operate on the assumption that attorneys representing the parties will invoke the appropriate procedural rules and rules of evidence on behalf of their clients in the pretrial and trial stages of litigation. Self-represented litigants encounter resistance from many judges when they seek their

1. "Self-represented litigant" will be used interchangeably with "pro se litigant." "Pro se" is defined as "For himself; in his own behalf; in person. Appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself in court." "Pro per" is shorthand for "in propria persona," defined as "In one's own proper person. It was formerly a rule in pleadings that pleas to the jurisdiction of the court must be pleaded in propria persona, because if pleaded by [an] attorney they admit the jurisdiction, as an attorney is an officer of the court, and he is presumed to plead after having obtained leave, which admits the jurisdiction." See BLACK'S LAW DICTIONARY 712, 1099 (5th ed.) (1979).

2. One study found that "In six months of observation at the Court of Appeals of Cook County, it was noted that lawyers were difficult to distinguish from pro se appellants in the questions they asked of court personnel regarding the process of appeals." Barclay, "Losing Litigants' Expectations of the Appellate Court," paper presented at the annual meeting of the Law & Society Association (May, 1993), at 4, fn. 5.

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assistance regarding the proper procedures by which to prosecute their claims or defenses. An individual judge is unable to devote the necessary time to a full explanation of the litigation process for the self-represented litigant, and feels constrained from advising–or lending any other form of assistance in the trial process– by virtue of the rule requiring that judicial impartiality in appearance and in fact be maintained. Therefore, basic information, such as the necessary elements of the cause of action or defense raised, remains a secret of the law, judges, and attorneys. If an attorney appears on behalf of an adversary, the self-represented litigant is frequently at an even greater disadvantage. His or her case often fails for lack of adequate proof. Even in forums such as small claims courts, where procedural rules are somewhat relaxed, self-represented litigants fortunate enough to obtain judgments are often denied instructions as to the available means for their enforcement. Because of the challenges that self-represented litigants present, it is understandable that sometimes judges, court staff, and lawyers are uncomfortable becoming involved in their cases. This report and guidebook, while acknowledging and documenting the increasing number of self-represented litigants, neither encourages nor discourages this trend. It simply offers information and program models from various jurisdictions that the authors believe will be helpful to those who seek to serve this population. It cannot be denied that the barriers encountered by self-represented litigants both outside and inside the courtroom deprive them of access to justice. Our democratic principles, the U.S. Constitution, and the rule of law require that our justice system meet the needs of all people equally, including self-represented litigants. Most judicial systems, however, are not designed to serve self-represented litigants, and no resource exists to guide judges or court managers who seek ways of providing them with greater access to justice. This book is intended to address this need. As the Minnesota Conference of Chief Judges' Committee on the Treatment of Litigants and Pro Se Litigation said in a 1996 report, "Pro se litigation should not be encouraged but must be accepted. The state court system has an obligation to assist pro se litigants in order to provide meaningful access to the court system, ensure confidence in our justice system, and make use of staff resources."3 The report and guidebook's principal purpose is to assist judges and court managers in developing effective assistance programs and strategies for handling self-represented litigants. In addition to presenting the latest available data on the extent of pro se litigation, case law, and other literature on the subject, it includes the results of two non-scientific surveys of judges and court managers administered by the American Judicature Society and The Justice Management Institute with the support of the State Justice Institute. The court managers' survey asked for information about existing programs and services for self-represented litigants. The judges' survey inquired about judicial attitudes toward self-represented litigants, as well as courtwide and individual judges' policies and strategies for handling them in the courtroom. The book explores a myriad of policy issues that judges and court managers face because of the growing pro se litigant population. It presents policy recommendations to encourage courts to establish pro se assistance programs, to consider changes in procedural rules and judicial ethics principles, and to take other measures that serve to promote fair and meaningful hearings for all litigants. (See pages 105 to 113.)

3. Conference of Chief Judges, REPORT OF THE MINNESOTA CONFERENCE OF CHIEF JUDGES' COMMITTEE ON THE

TREATMENT OF LITIGANTS AND PRO SE LITIGATION 4 (April, 1996).

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Absent a right to civil legal services, the justice system must ensure all litigants equal access to justice regardless of their represented or unrepresented status. It should not be necessary to establish indigency to secure the basic knowledge necessary to raise a reasoned claim or a defense. This ensurance is necessary in order to preserve the public's trust and confidence in our courts. Without public confidence, courts lose legitimacy, risk becoming irrelevant, and fail to serve a basic purpose: to be an open, accessible justice system. Much is at stake in the formulation of legal policy affecting those members of the general public–rich, middle class, and poor alike–who find themselves, or choose to be, in litigation without counsel. The manner in which people in the justice system are treated is critical to the effectiveness of the court as a viable, public institution. That means not only devoting sufficient resources, but using the most creative mechanisms possible to ensure full and meaningful access to, and participation in, the administration of justice. In this era of improved quality, faster service, heightened consumerism, and broader choices, the functions and purposes of government are challenged more intensely to be streamlined, user friendly, and customer sensitive. To meet the challenge, we need to recognize changes in our client or customer base more keenly, assess our services and responsibilities more openly, and change our systems more creatively. This report and guidebook will help courts do that for self-represented litigants.

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THE AJS/JMI PRO SE PROJECT

In order to learn about pro se policies and practices nationwide, in August, 1996, the American Judicature Society (AJS) and The Justice Management Institute (JMI) administered two separate mail surveys: one to a sample of state court judges, and the second to a sample of state trial court administrators. The 612 judges' names were drawn from a list of all state court trial judges in both limited and general jurisdiction courts. To maximize geographic representation, 12 judges' names were selected from each state list: three from urban courts, three from suburban courts, and three from limited jurisdiction courts. Of these, 133 surveys were returned, yielding a response rate of 22 percent. The survey is reproduced in Appendix I. The names of the 237 court administrators surveyed were drawn primarily from the membership list of the National Association for Court Management. Of these, 98 surveys were returned, yielding a response rate of 41 percent. This survey is reproduced in Appendix II. Because the surveys were not randomly administered, the results cannot be generalized to the entire population of either judges or court administrators. For this reason the data from the study are for the most part reported as descriptive and qualitative–rather than quantitative–findings. Nevertheless, the data, particularly the narrative responses, provide a rich sense of how judges and court managers cope with the dilemmas and issues born of pro se litigation. The survey responses illustrate the range of issues that must be addressed in this area. In general, the judges' survey inquired about judicial philosophies toward self-represented litigants, the problems posed and issues raised by these litigants, judges' strategies for handling pro se cases at different stages of civil and criminal litigation, and their ideas regarding effective pro se assistance programs. The court administrators' survey asked them about problems confronting court staff as a result of pro se litigation, the nature of any pro se assistance programs and services (including operational details and barriers encountered in implementing the programs), and their ideas regarding the implementation of pro se assistance programs and policies to guide court staff. Notices about the surveys were placed in bar and judicial journals seeking information about existing pro se programs, policies, rules, anecdotal experiences, and the like. In addition, extensive research was conducted to gather the literature and case law involving pro se litigation. See Appendix III for a table containing all state constitutional provisions relating to pro se litigation and access to justice, and Appendix IV for an annotated bibliography on pro se litigation and related issues. Appendix V provides additional resources, including relevant State Justice Institute products. Most of the judges responding to the survey identified themselves as presiding over general jurisdiction courts (69 percent). About one-third (30 percent) are judges in limited jurisdiction courts, with the remainder being court commissioners, referees, and pro tempore judges (2 percent).4 While a more equal distribution of responses from general and limited jurisdiction judges might have been preferable, there is a benefit to having more general jurisdiction judge respondents. These are the judges who are least 4. The percentages here and in other parts of this guidebook may not total 100 percent due to rounding.

METHOD

JUDGES' SURVEY

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experienced with self-represented litigants. To limited jurisdiction judges, the pro se phenomenon is nothing new; they have adapted to its presence in the traditional pro se forums such as traffic, small claims, landlord-tenant, ordinance violations, etc. The data, therefore, give us great insight about the difficulties general jurisdiction judges face with self-represented litigants and the best possible solutions in their circumstances. Of the judges responding, 18 percent sit on state courts that serve a mostly urban jurisdiction, 25 percent sit in suburban courts, 29 percent sit in rural jurisdictions, and 29 percent sit in rural-suburban jurisdictions. The judges have served on the bench for variable lengths of time: less than five years (19 percent); five to ten years (29 percent); 11 to 15 years (30 percent); 16 to 20 years (11 percent); and over 20 years (11 percent). The judges reported a variety of current case assignments. These include: General civil

Small claims

Landlord-tenant

Domestic relations

Traffic

Juvenile

Felonies

Misdemeanors

Appeals from limited jurisdiction courts

Specialized (e.g., housing) courts

Most of the court administrators responding to the survey are employed by general jurisdiction courts (80 percent). Only 8 percent of the administrators work in a limited jurisdiction court, and 11 percent report they work in some other type of court. The populations their courts serve are: urban (17 percent); urban and suburban (65 percent); rural (5 percent); and rural and suburban (13 percent). The number of judicial positions in their courts range from 1 to 312. The number of full-time equivalent (FTE) court staff, which includes the staff of the clerk's office, ranges from 4 to 2,570. Further information regarding their responses is found at pages 49 to 51.

COURT MANAGERS'SURVEY

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DATA AND CURRENT RESEARCH ON PRO SE LITIGATION

Self-represented litigants have begun to appear frequently not only in the traditional, less-formal forums such as small claims, traffic, landlord-tenant, and minor ordinance courts, but also in domestic relations and other general jurisdiction courts. Domestic Relations. The earliest study of self-representation focused on domestic relations cases in two Connecticut courts during 1974-76. The data collected indicated that only 2.7 percent of such cases involved a self-represented litigant.5 Another review of pending family cases in the District of Columbia courts in one calendar month in 1991 showed that 18 percent of the plaintiffs and 44 percent of the defendants were self-represented. One or both parties appeared pro se in 53 percent of the cases.6 In that same year, another report on domestic relations litigation in King County (Seattle), Washington, noted that about one-half of the cases involved a self-represented litigant.7 A study conducted by the National Center for State Courts that analyzed case data from 16 large urban trial courts in 1991-92 found that neither party was represented by counsel in 18 percent of all domestic relations cases.8 Only the wife had counsel in 36 percent of the cases, and only the husband was represented in 17 percent of the cases. Both parties had counsel in only 28 percent of all domestic relations cases. The proportions of cases in which neither party had counsel ranged from a low of 0.4 percent in Dayton, Ohio, to a high of 47 percent in Oakland, California. The proportions of cases in which both parties had counsel ranged from a low of 12 percent in Washington, D.C., to a high of 47 percent in Des Moines, Iowa. A report from California, based on 1991 and 1995 court data found that one party appeared pro se in 67 percent of all domestic relations cases and in 40 percent of all child custody cases.9 One judge characterized the growth of pro se litigation in California's family courts as a "floodtide" that is overwhelming the courts.10 The only rigorous empirical study of pro se litigation was conducted for the American Bar Association in the Superior Court of Maricopa County (Phoenix), Arizona, domestic relations court in 1990.11 Of all divorce cases in 1990, at least one of the parties was 5. Law Review Staff, The Unauthorized Practice of Law and Pro Se Divorce, 86 YALE L. J. 104, 160 (1976). 6. District of Columbia Bar Task Force on Family Law Representation, ACCESS TO FAMILY LAW REPRESENTATION IN THE DISTRICT OF COLUMBIA (Fall, 1972), Appendix E, at 39, reprinted in Standing Committee on Delivery of Legal Services, RESPONDING TO THE NEEDS OF THE SELF-REPRESENTED DIVORCE LITIGANT (Chicago: American Bar Association, 1994). 7. REPORT OF THE DOMESTIC RELATIONS TASK FORCE TO THE BOARD OF GOVERNORS OF THE WASHINGTON STATE BAR

ASSOCIATION (February, 1991), at 14, reprinted in RESPONDING TO THE NEEDS OF THE SELF-REPRESENTED DIVORCE

LITIGANT, supra note 6, at 45. 8. Goerdt, DIVORCE COURTS: CASE MANAGEMENT, CASE CHARACTERISTICS, AND THE PACE OF LITIGATION IN 16 URBAN

JURISDICTIONS 48 (Williamsburg, Va.: National Center for State Courts, 1992). 9. Long and Lee, "The Pro Per Crisis in Family Law," Memorandum submitted to the State Bar of California Board Committee on Courts and Legislation (August 15, 1995) at 3-4. 10. Id. at 3, citing Thompson, Shortage in the Court, The Daily Journal, January 20, 1995, at 1. 11. Sales, Beck, and Haan, Self-Representation in Divorce Cases (Chicago: American Bar Association, 1993).

HOW MANY SELF-REPRESENTED

LITIGANTS ARETHERE?

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self-represented in over 88 percent of the cases. In 52 percent of the cases both parties were self-represented. When compared with the data in a previous study of the same court–which reported that 24 percent in 1980, and 47 percent in 1985, of all divorce cases involved at least one self-represented party–the increase in pro se litigation over time is apparent.12 Tort and Other Civil Cases. Data regarding the extent of pro se litigation in tort and general civil cases are limited. A 1995 study, however, examined the records from cases in 45 urban trial courts and found that an average of 3 percent of all tort cases involved at least one pro se litigant.13 In Chicago in 1994, 30 percent of all new general civil actions filed for less than $10,000 damages were filed pro se, and pro se cases constituted 28 percent of the landlord-tenant caseload; in 1995, 25 percent of all new civil suits were brought pro se.14 Some reports, such as that of the Minnesota Conference of Chief Judges Committee on the Treatment of Litigants and Pro Se Litigation, do not provide specific data on the question, but merely state that there is "an increasing number of pro se litigants in Minnesota state courts."15 A recent Iowa newspaper account states that "lawsuits filed by people acting as their own attorney are increasing, court officials and lawyers say. These are not limited to domestic abuse cases, which often don't require legal help and which have soared from 188 cases in 1990 to 5,340 last year. They involve a range of legal issues from divorces to child support to collecting a bad debt to suing public officials."16 Federal Court Prisoner and Appellate Cases. The Federal Judicial Center, in a study of case data from 10 federal district courts during 1991 to 1994, reports that 21 percent of all filings were by self-represented persons.17 Nonprisoner pro se cases constituted 37 percent of those cases.18 Data from the Administrative Office of the U.S. Courts indicate that, between 1991 and 1993, the number of self-represented litigants in the federal courts of appeals increased by 49 percent. In 1993, pro se appeals constituted 37 percent of all open and closed cases.19 Unfortunately, no longitudinal data beyond that reported above is available to show trends in the frequency of cases involving self-represented litigants. Anecdotal data such as that reported from the AJS/JMI study does, however, support a conclusion that pro se litigation is on the increase nationwide.

12. Cox and Dwyer, "Self-Help Law: Its Many Perspectives," Unpublished memorandum prepared for the American Bar Association (1987), at 21.

13. Smith, DeFrances, Langan, and Goerdt, Tort Cases in Large Counties, BUREAU OF JUSTICE STATISTICS–SPECIAL REPORT (April, 1995), at 2.

14. Circuit Court of Cook County Pro Se Advisory Committee, REPORT ON PRO SE LITIGATION (Chicago: Circuit Court of Cook County, December, 1995), at 2.

15. REPORT OF THE MINNESOTA CONFERENCE OF CHIEF JUDGES', supra note 3, at 6. The report states that "The Committee discussed, but rejected, conducting a comprehensive survey to document the increased number of pro se litigants in Minnesota, choosing instead to focus on common sense solutions to assist pro se litigants and the court system, rather than spending time and money on data collection and analysis. The Minnesota state court system needs to take action steps now to proactively respond to the needs of pro se litigants." Id. at 7.

16. Santiago, Trend: Iowa Litigants Heading to Court Solo, The Des Moines Register, August 18, 1996, at 1.

17. Rauma and Sutelan, Analysis of Pro Se Case Filings in Ten U.S. District Courts Yields New Information, FJC DIRECTIONS 6 (June, 1996).

18. "For nonprisoner cases, the database does not include information on whether plaintiffs, defendants, or both were proceeding pro se." Id. at 6.

19. Courts of Appeals Facilitate Handling of Pro Se Cases, THE THIRD BRANCH, July, 1995, at 9.

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The scope of self-representation includes both acts that occur outside of court, such as the drafting of legal documents (e.g., wills, contracts, etc.), as well as litigation. The existence of these twin elements of the self-representation movement is attributable to multiple factors. The consumer strands of self-representation began in the 1960s, with its emphasis on the public's right to fair value in the sale of products and services, including legal service delivery. The public began to scrutinize more closely the value it received from legal fees paid. In addition, Norman Dacey's classic 1967 book How to Avoid Probate did much to spur interest in alternatives to legal representation. The Goldfarb v. Virginia State Bar20 decision, which eliminated the legal profession's exemption from antitrust laws and struck down a bar association's mandatory fee schedule, further contributed to the breakdown of the previously held public conception that attorneys had a monopolistic influence on the courts. Anti-lawyer sentiment, expressed for centuries even before Shakespeare, has influenced the growth of self representation. Public opinion surveys continue to reflect a generally low opinion of attorneys. While some would argue that these data only reflect the public's general anti-government views, they do provide further evidence of the deterioration of respect for, and reliance upon, the legal profession for the processing of legal claims. The cost of litigation is perhaps the most significant factor that has directly influenced the growth of pro se litigation. While there is some evidence that ordinary litigation is cost-effective,21 most people would agree that attorneys' fees are high and are affordable primarily by institutional and corporate clients. The growth in do-it-yourself law businesses, including the sale of books, document kits, legal forms, computerized forms, and products available from the Internet attests to the prevailing public attitude that there are some legal matters that reasonably educated persons–or, as some would argue, all persons–should be able to handle themselves. Increased public literacy continues to fuel the growth of the legal do-it-yourself market. Some would attribute the growth of pro se litigation in part to the breakdown of social institutions, including the family and religious institutions. The traditional dispute resolution functions of these institutions are now said to be increasingly taken over by the courts. The recent cutbacks in federal and state legal services appropriations are surely another cause of increased pro se litigation. These legal services have always been generally limited to those at or below the poverty level but funding cutbacks result in even more limited services. The "notch group" of persons who are ineligible for legal services but who still cannot afford to pay for legal representation has grown even larger as a result of these cutbacks. The recent report of the chief judges' pro se study committee in Minnesota (see page 135) refers to another factor in the growth of pro se litigation not described in literature on the subject: "the creation of new causes of action by the legislature, such as harassment actions."22 In addition, the committee suggests that the legislation expanding the jurisdictional limits in conciliation (small claims) cases is also a causal factor, since "Approximately two-thirds of the civil litigants in Minnesota encounter the

20. 421 U.S. 723 (1975). 21. Trubek, Grossman, Felstiner, Kritzer, & Sarat, CIVIL LITIGATION RESEARCH PROJECT: FINAL REPORT

(Madison, WI: University of Wisconsin Law School, 1983). 22. REPORT OF THE MINNESOTA CONFERENCE OF CHIEF JUDGES, supra note 3, at 6.

WHY IS PRO SELITIGATION ON THE

RISE?

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justice system in conciliation court."23

Finally, the recent emphasis on customer service, the "reinventing government" movement, and related concepts such as total quality management (TQM) increase the public's expectations with respect to the administration of justice. "Customers" of the courts include self-represented litigants who, like those fortunate enough to be represented, have a long-held–perhaps in many cases idealistic–vision of the courts as the bastion of fairness and right. These persons, as the judges surveyed report, become embittered when their quests for assistance go unheeded and when procedural rules and requirements are so complex they cannot comply with them; this is especially so when the court denies the relief sought due to procedural noncompliance. In a recent "State of the Judiciary" address, Minnesota Chief Justice A. M. Keith made the point this way:

The courts also know that the consumers of our services are used to interacting with businesses that are more customer driven and more oriented toward self-service. That experience drives up citizens' expectations of how the courts should function. It's a reality that means we have to bring down the fences around the system and make it user friendly in two ways. One–the legal community has to help people get the representation they need. And, two–the courts must do our part to simplify the forms and facilitate the paperwork.24

The recent legal needs study conducted for the American Bar Association (ABA)25 based on interviews with more than 3,300 low- and moderate-income persons give us a deeper understanding of the causes of pro se litigation. The study found that: (1) more than one-half of low- and moderate-income households in America are facing one or more situations that could be addressed by the civil justice system; (2) nearly 71 percent of these situations affecting low-income households and 61 percent affecting moderate-income persons do not find their way into the justice system; (3) the most common course of action to address a legal need is to handle the situation on their own; and (4) the legal needs most likely to be taken to the civil justice system by both low- and moderate-income households deal with family and domestic issues.26 As for their reasons for not turning to the civil justice system, the low-income persons interviewed displayed "a sense that legal assistance will not help, and fear of the cost." The moderate-income persons were less likely to cite cost considerations than those with low incomes, but they shared the view that "the justice system would not help."27 The best study of pro se litigation is the 1990 survey of almost 1,900 domestic relations cases in the Superior Court of Maricopa County, Arizona, conducted for the ABA.28 The study found that: Lower-income people were more likely to represent themselves.

23. Id. 24. Keith, The State of the Judiciary, BENCH AND BAR, August, 1996, at 25. 25. ABA Consortium on Legal Services and the Public, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF

AMERICANS—MAJOR FINDINGS FROM THE COMPREHENSIVE LEGAL NEEDS STUDY (Chicago: American Bar Association, 1994).

26. Id. at 23-24. 27. Id. at 24. 28. Sales, Beck, and Haan, supra note 11.

WHO ARE PRO SELITIGANTS?

12

Younger persons were more likely than older persons to self-represent. Lower-educated persons were more likely to self-represent (income and education

having been found to be highly correlated), but "the majority of people who seek to self-represent are reasonably educated. Indeed, the most common level of education for litigants who self-represent was 1-3 years of college education."

While litigants with unskilled jobs were significantly more likely to self-represent than

professionals or those employed in upper management, this factor did not significantly affect the decision to self-represent.

People with no children were significantly more likely to self-represent than those

with children. People with no real estate or personal property were significantly more likely to self-

represent than those with such assets. Litigants with newer marriages were more likely to self-represent than those with

older marriages.29 The ABA report made the following additional findings and recommendations:

Interestingly, self-represented litigants are confident in their abilities to handle their cases. Despite this fact, the data showed that a significant percentage of these litigants (i.e., 30 percent) are having problems with the legal process and/or the legal forms. One distressing result the data revealed is that when people who self-represent had problems with the legal forms or the legal process, 50 percent of them did not obtain help for any of their problems.... Thus, attention needs to be paid to how the legal system can help to minimize the difficulties for these litigants and thereby increase their capability for appropriately representing themselves in court. Providing clear information about the correct number of copies to file, which forms to use, how and when to file motions, waiting periods, setting a hearing date, service of process, etc. should be relatively easy to accomplish. The best efforts at providing quality services for these litigants may fail, however, if efforts are not made to ensure that the materials are written and presented in such a way that litigants will be highly likely to understand them.30

A 1996 study commissioned by the New York State Bar Association found that middle-income persons were increasingly representing themselves.31 The survey found that 26 percent of the respondents had represented themselves in court; they "are better educated and on the more highly compensated end of the middle-income spectrum."32 The study further found that almost 20 percent of the respondents made use of a written guide or kit to prepare a will, contract, or other legal documents. An evaluation of the Superior Court of Maricopa County Self-Service Center (see page 73) provides further data regarding the typical pro se litigant. The report states:

The profile of the "typical customer" of the Self-Service Center is that of a first-time visitor who has filed for divorce or filed divorce/child-related motions (users who filed a case were five times more likely to use the Center than the other party), has an income

29. Id. at 8-11. 30. Id. at iii. 31. Spencer, Middle-Income Consumers Seen Handling Legal Matters Pro Se, New York Law Journal,

May 29, 1996, at 1. 32. Id.

13

under $40,000, completed high school and engaged in some college studies but did not complete a college degree. This "typical customer" was twice as likely to have heard about the Center from court staff or judges than from any other source. She or he left the Center intending to represent herself or himself in the case.33

That study indicates that 37 percent of the Center's users had from one to four years of college; 18 percent had either a college degree or had done some graduate study.34

In California, a recent report on self-represented parties in family law cases describes that population:

Although no precise data on the income or education of pro pers in California is available, in many counties half or more of all family law parties proceed in pro per. This proportion far exceeds the percentage of Californians who are poor and poorly educated, and there is no reason to believe that poor people are significantly over-represented among family law litigants. Consequently, it appears that a significant portion of the family law pro pers in California are not poor and not poorly educated.35

The data collected in these studies show that there is no one particular type of pro se litigant; people from different income and educational levels represent themselves and each, due to the particular circumstances of the case, may have differing needs for assistance. Some self-represented litigants need a mere explanation regarding the process on which they are about to embark, others may only need assistance in filling out court forms or drafting pleadings, while still others may need more intensive services to assist them in the litigation process. In 1995 the Prison Litigation Reform Act (PLRA) was signed into law, amending several provisions in the U.S. Code relating to pro se prisoner litigation.36 The provisions of the act affected (1) the criteria for case screening and dismissal, (2) the requirements for in forma pauperis status (permitting fee waiver for indigent litigants), (3) provisions affecting the federal courts' management of prisoner cases, (4) limitations on relief, (5) sanctions, and (6) attorneys' fees. While the specific details of the act are beyond the scope of this guidebook, a publication of the Federal Judicial Center describing the changes in the law brought about by this act is worth mentioning. The Resource Guide for Managing Prisoner Civil Rights Litigation37 not only provides the reader with a description of the provisions of the PLRA, but also includes two chapters that describe procedures some federal courts have implemented to address prisoner pro se litigation. One chapter ("Court-Based Procedures for Facilitating Effective Management of Prisoner Litigation") includes model forms and instructions that "both assist the court and provide prisoners with important information about court rules and procedures governing the filing and prosecution of civil cases in the district."38 Additional useful information includes examples of informational handouts and court-based approaches to providing counsel to indigent prisoners (e.g., requiring pro bono legal service as a condition of membership in and admission to the bar, establishing volunteer panels of attorneys to provide legal services to indigent litigants, using unappropriated funds to reimburse volunteer attorneys' expenses, and establishing educational

33. Solomon, ANALYSIS OF SELF-SERVICE CENTER EXIT SURVEY QUESTIONNAIRES 2 (January 4, 1997). 34. Id. at 2. 35. Long and Lee, supra note 9. 36. The statutes affected include 18 U.S.C. §§ 3624, 3626; 42 U.S.C. § 1997e; 28 U.S.C. §§ 1915,

1346(b); and 11 U.S.C. § 523(a). 37. As noted, this is a publication of the Federal Judicial Center (1996). 38. Id. at 7.

LEGISLATIVE ANDCOURT RESPONSES

TO PRO SELITIGATION

14

programs for volunteer attorneys). Efficient use of pro se law clerks is also described. Some state courts have also addressed pro se litigation by adopting special rules for such cases. Examples include: A Colorado rule that provides special procedures for case management conferences

in pro se cases, requiring that the attorney representing the adversary promptly file a "Notice to Set" the conference (Rule 16[b], Colo. R. Civ. P.).

A local rule in Ohio that requires that "any pleading, motion or other filing which is

not signed by a registered attorney acting in their official capacity shall be deposited with and approved by the Court's Legal Director to ensure compliance, in form and content, with the Ohio Rules of Civil Procedure and these Rules." (Rule 4.02(A) of the General Rules of the Common Pleas Court of Montgomery County, Ohio).

A New Hampshire rule providing that the requirement that support affidavits be

typewritten may be waived where a party appears pro se (Rule 12-14[B][1], Superior Court Admin. Rules).

Some state courts have established protocols to be followed by judges in pro se cases. In Minnesota, the court has developed a "Suggested Protocol for Domestic Abuse and Harassment Hearing With Pro Se Litigants." It includes the following suggestions:39 Verify the party is not an attorney, understands that he or she is entitled to be

represented by an attorney, and chooses to proceed pro se without an attorney. Explain the process.

Explain the elements of this type of claim.

Explain that the party bringing the action has the burden to present evidence in

support of the relief sought. Explain the kind of evidence that may be presented.

Explain the limits on the kind of evidence that can be considered.

Ask both parties whether they understand the process and the procedure.

Non-attorney advocates should be permitted to sit at counsel table with either party

and provide support but should not be permitted to argue on behalf of a party or to question witnesses.

Questioning by the judge should be directed at obtaining general information to

avoid the appearance of advocacy. Whenever possible, the matter should be decided, and the order prepared

immediately at the conclusion of the hearing for service on the parties. Given the pervasiveness of the pro se phenomenon, additional legislation and court rules and policies can be expected. The challenge for courts is to adopt policies in this

39. This document is Attachment G to the REPORT OF THE MINNESOTA CONFERENCE OF CHIEF JUDGES, supra note 3.

15

area that both enhance the efficiency of the litigation process, but do not overly burden the self-represented litigant's right of access to the court. Recent newspaper accounts across the country refer to the pro se litigation phenomenon with a sense of urgency. A 1993 Wall Street Journal article on the subject of the "lawyerless" reported that "more and more of them are demonstrating their limited skills–not to mention their casual dress–in courtrooms across the country. Especially in family court, the numbers are exploding."40 The article cites statistics from Des Moines, Iowa, and Washington, D.C., indicating that 53 percent and 88 percent, respectively, of litigants in family cases are self-represented. In addition to describing the possible causes of the self-representation trend, the article describes the "nightmarish" experiences of one such post-divorce litigant.

The woman, fighting her ex-husband's demand for custody of their children, said that "a court clerk made her retype the entire [petition for custody] form because instead of using the words pro se she had used pro per, an equivalent Latin phrase used in many states to describe someone who represents herself. "They will hand you a form and say nothing,...." she says. "If you ask for assistance, it's like it's really, really troublesome."

The article accurately points out that,

Even if they want to help, court employees, judges and attorneys are hamstrung by ethics codes that require the court to remain neutral and refrain from coaching or helping any party. It can be painful for workers and judges to see litigants adrift, losing out on opportunities they know nothing about. But it is also improper for judges to give a break to an unrepresented litigant just because he or she doesn't know the law.

"You can't say, 'I'm going to weigh this person's argument 60 percent because they're unrepresented, and I'll weigh the attorney's argument 40 percent," says [the judge that presided over this litigant's case].

Finally, after painting a bleak picture of the pro se process and the quality of justice served when the "lawyerless" are denied assistance, the Journal article observes: "If there is any help on the way, it is likely to come in the form of innovations by court systems to make self-representation easier and more effective," citing the Superior Court of Maricopa County (Phoenix) Self-Service Center (see page 73). Recent court pro se task force and committee reports also reflect this sense of urgency regarding the rising tide of pro se litigation. For example, the Pro Se Advisory Committee for the Circuit Court of Cook County (First District) notes in its December 1995 report that, "The practicing bar, bar associations, and judiciary have long been concerned with the process and consequences of pro se litigation. Despite numerous pro bono assistance programs and projects the difficulties and concerns surrounding pro se cases have not been lessened, especially in the high-volume courts of the First Municipal District.... The need to address the most effective and efficient way of handling pro se litigation is worthy of serious consideration and increased efforts...."41 A report to the California State Bar Committee on Courts and Legislation entitled "The Pro Per Crisis in Family Law" notes that, while pro se litigation in general has increased, "family law appears to be the most impacted by the growing tend to 'go it alone'.... [This] has created serious problems for judges in family law matters, for court staff, for

40. Woo, The Lawyerless: More People Represent Themselves in Court, But is Justice Served?, Wall Street Journal, August 17, 1993, at 1.

41. REPORT ON PRO SE LITIGATION, supra note 14 at 1-2.

A SENSE OFURGENCY

16

attorneys when the other side is unrepresented, and for the pro pers themselves who are often 'at sea without a compass.'"42 The report refers to a "dramatic increase" and "the flood" of unrepresented litigants who appear in family law cases. The report of the Minnesota Conference of Chief Judges observes that "there are [sic] an increasing number of pro se litigants in Minnesota state courts," but that "There is no need for the Minnesota state court system to wait for a crisis. Pro se litigation and its associated demands are increasing in a time of stagnant or declining financial resources for the court system. The situation requires creative action...."43

42. The Pro Per Crisis in Family Law, supra note 9, at 1. 43. REPORT OF THE MINNESOTA CONFERENCE OF CHIEF JUDGES, supra note 3, at 6-7.

LEGAL AND

ETHICAL ISSUES

18

19

CONSTITUTIONAL PRINCIPLES AND SELF-REPRESENTATION

It is true that self-represented litigants pose administrative inconveniences for the court system and the judiciary, and that efficiency and expediency in the administration of justice are legitimate interests for which we should strive. But these concerns must be balanced against the constitutional principles of due process and fair play that undergird our system of justice, as well as the rights of access to the court, self-representation, and open courts. Access to the courts is a long-standing right whose roots extend to several constitutional sources. Several of the earliest pronouncements of the right point to its origin in the privileges and immunities clause (Const. Art. 4, § 2). For example, in Corfield v. Coryell,44 the Supreme Court held:

The inquiry is, What are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental, which belong, of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would, perhaps, be more tedious than difficult to enumerate...[but include the right] to institute and maintain actions of any kind in the courts of the state.

Again, in Chambers v. Baltimore & Ohio Ry. Co.,45 the court held that

The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of an orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution.

A second constitutional source of the right of access to the court has been found in the First Amendment right to petition the government for redress of grievances. In California Motor Transport Co. v. Trucking Unlimited,46 the court held that, "Certainly the right to petition extends to all departments of Government. The right of access to the courts is indeed but one aspect of the right of petition." But, as the court held in Bill Johnson's Restaurants, Inc. v. National Labor Relations Bd.,47 "[b]aseless litigation is not immunized by the First Amendment right to petition." A third constitutional basis for the right of access to the courts is the due process clause of the Fifth and Fourteenth Amendments. The Supreme Court pronouncements that due process is the foundation for the right of access to the court spring from two lines of precedent, one involving prisoners' rights and another establishing the rights of non-prisoners.

44. 6 F.Cas. 546, 551-552, No. 3, 230 (1823). 45. 207 U.S. 142, 28 S.Ct. 34, 34 (1907). 46. 404 U.S. 508, 92 S.Ct. 609 (1972). 47. 461 U.S. 731, 103 S.Ct. 2161, 2169 (1983).

RIGHT OF ACCESSTO THE COURTS

20

As to prisoners, the court in Ex Parte Hull48 struck down a regulation prohibiting state prisoners from filing petitions for habeas corpus unless they were found "properly drawn" by the "legal investigator" for the parole board. This regulation violated the principle that "the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus."49 In Johnson v. Avery,50 the court struck down a regulation prohibiting prisoners from assisting each other with habeas corpus applications and other legal matters. Since inmates had no alternative form of legal assistance, the court held that this ban on "jailhouse lawyers" prevented prisoners, "who were unable themselves, with reasonable adequacy, to prepare their petitions," from challenging the legality of their confinement. The court in Wolff v. McDonnell,51 unanimously extended Johnson to assistance in prosecuting civil rights actions; and, in Ross v. Moffitt,52 it held that the right of "meaningful access" to the courts requires that states "must assure the indigent defendant an adequate opportunity to present his claims fairly." In Smith v. Bounds,53 the court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law, such as paralegals or law students." In the nonprisoner context, the leading case is Boddie v. Connecticut,54 in which the court struck down on due process grounds a state statute that made the payment of filing fees a prerequisite for obtaining a divorce–without making an exception for indigent parties: "Our conclusion is that, given the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages."55 The court rested its ruling on two principles:

[F]irst, that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.... 'there can be no doubt that at a minimum they [the words "due process"] require that deprivation of life, liberty or property by adjudication be precedent by notice and opportunity for hearing appropriate to the nature of the case'. [citing Mullane v. Central Hanover Bank & Trust Co.,56 and other due process cases57 ]

The court in Boddie also cited the language in Armstrong v. Manzo,58 to the effect that the Constitution requires "an opportunity...granted at a meaningful time and in a meaningful manner" appropriate to the nature of the case: "that the hearing required by

48. 312 U.S. 546, 61 S.Ct. 640 (1941). 49. Id. at 641. 50. 393 U.S. 483, 89 S.Ct. 747, 750 (1969). 51. 418 U.S. 539, 577-580, 94 S.Ct. 2963, 2985-2988 (1974). 52. 417 U.S. 600, 616, 94 S.Ct. 2437, 2447 (1974). 53. 430 U.S. 817, 828, 97 S.Ct. 1491, 1498 (1977). 54. 401 U.S. 371, 91 S.Ct. 780 (1971). 55. Id. at 783. 56. 339 U.S. 306, 313, 70 S.Ct. 652, 656 (1950). 57. These include Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970); Sniadach v. Family Finance

Corp., 395 U.S. 337, 89 S.Ct. 1820 (1969), and others. 58. 380 U.S. 545, 552, 85 S.Ct. 1187, 1191 (1965).

21

due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest."59 The court, however, limited its ruling to the facts before it, which concerned parties seeking a divorce:

We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us this right is the exclusive precondition to the adjustment of a fundamental human relationship.

Both Justices Douglas and Brennan, concurring separately, argued that the equal protection clause is the more appropriate constitutional basis for the court's ruling. In his opinion, Justice Brennan went further and questioned the court's limitation of the ruling to divorce cases:

I cannot join the Court's opinion insofar as today's holding is made to depend upon the factor that only the State can grant a divorce and that an indigent would be locked into a marriage if unable to pay the fees required to obtain a divorce. A State has an ultimate monopoly of all judicial process and attendant enforcement machinery. As a practical matter, if disputes cannot be successfully settled between the parties, the court system is usually 'the only forum effectively empowered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court.'...I see no constitutional distinction between appellants' attempts to enforce this statutory right [to a dissolution of marriage] and an attempt to vindicate any other right arising under federal or state law.... The right to be heard in some way at some time extends to all proceedings entertained by courts. The possible distinctions suggested by the Court today will not withstand analysis.60

In summary, the right of self-representation has been alternatively traced to the privileges and immunities clause, the First Amendment, the due process clause, and equal protection clause. The Supreme Court has repeatedly declared it to be a "fundamental" constitutional right and recently held that "Like others, prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts."61 (emphasis added) As one federal court stated, "One of the basic principles, one of the glories, of the American system of justice is that the courthouse door is open to everyone–the humblest citizen, the indigent, the convicted felon, the illegal alien.62

59. Boddie, 91 S.Ct. at 786. 60. Id. at 791. In stark contrast, Justice Black, dissenting, challenged Justice Douglas' suggestion that

equal protection was a preferable grounds upon which to base the Boddie decision and in doing so stated: "Civil lawsuits...are not like government prosecutions for crime [to which the equal protection clause has

been applied]. Civil courts are set up by government to give people who have quarrels with their neighbors the chance to use a neutral government agency to adjust their differences. In such cases the government is not usually involved as a party, and there is no deprivation of life, liberty, or property as punishment for crime. Our Federal Constitution, therefore, does not place such private disputes on the same high level as it places criminal trials and punishment. There is consequently no necessity, no reason, why government should in civil trials be hampered or handicapped by the strict and rigid due process rules the Constitution has provided to protect people charged with crime." Id. at 793.

61. Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198 (1984). 62. Nat'l Assoc. For the Advancement of Colored People v. Meese, 615 F.Supp. 200, 206 (D. D.C 1985).

"That principle of access to the courts of course consists not merely of the right to file a complaint but it

22

In Jackson v. Procunier, a prisoner case, the Fifth Circuit held that the right of access to the courts extends not only to civil rights, divorce, and habeas corpus cases, but also to general civil litigation:

Recognition of the constitutional right of access to the courts, however, long precedes Bounds and has from its inception been applied to civil as well as constitutional claims. Almost eighty years ago, in Chambers v. Baltimore & Ohio Railroad Co. [citation omitted] the Supreme Court recognized this right of access in the context of a diversity tort suit, founding the right on the privileges and immunities clause.... And in Corpus v. Estelle, we held that a prisoner's "reasonable access to the courts must include access in general civil legal matters including but not limited to divorce and small claims."63

Assuming the right of access applies to all persons in all litigation in state and federal courts regardless of subject matter, the question becomes: What is the nature of this right? In the prisoner context, Smith v. Bounds held that the right creates an affirmative obligation on states to provide inmates with a minimum level of legal assistance in various permissible forms. Does this obligation extend to nonprisoners as well? One could argue that the scope of prisoners' right of access does not extend to nonprisoners because the latter have access to alternative forms of legal assistance while prisoners do not. The data–in the form of legal needs studies, increases in pro se litigation, and the well-known shortage of our poorly-funded legal services programs–tend to refute the assumption that the general public's access to legal assistance is greater than that of prisoners. Assuming the right of access to the courts applies to nonprisoners in all forms of litigation, the further question is whether only the indigent and/or illiterate have the right to adequate legal assistance, or whether every self-represented litigant (rich or poor) is entitled to some form of legal assistance at state expense. An equal protection argument on behalf of indigent or illiterate persons–not for a right to appointed counsel but merely for basic legal assistance to prosecute a claim or defense with the assistance of paralegals or otherwise–is plausible. Middle class or wealthy litigants deprived of court assistance–and who elect to represent themselves–may argue that their wealth should not preclude them from such assistance if they simply wish to exercise their constitutional right to access to the courts. No case has been found that addresses these questions. The historical roots of the tradition of self-representation in America can be traced to Revolutionary times. The Supreme Court noted in Faretta v. California that:

The Founders believed that self-representation was a basic right of free people. Underlying this belief was not only the antilawyer sentiment of the populace, but also the 'natural law' thinking that characterized the Revolution's spokesmen...Thomas Paine, arguing in support of the 1776 Pennsylvania Declaration of Rights, said: 'either party...has a natural right to plead his own case; this right is consistent with safety, therefore, it is retained; but the parties may not be able...therefore the civil right of pleading by proxy, that is, by counsel, is an appendage to the natural right of self-representation.64

includes the right to file other papers, including motions apprising the court of possible changes in the facts, the law, or the position of the litigant." Id. at 18.

63. 789 F.2d 307, 311 (5th Cir. 1986), quoting from Corpus v. Estelle, 551 F.2d 68, 70 (5th Cir. 1977). 64. 422 U.S. 806, 830, 95 S.Ct.2525, 2539, n. 39 (1975).

RIGHT OF SELF-REPRESENTATION

23

The Faretta case held that criminal defendants have a constitutional right to proceed pro se, and that counsel may not be imposed upon them over their objection:

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be 'informed of the nature and cause of the accusation.' who must be 'confronted with the witnesses against him,' and who must be accorded 'compulsory process for obtaining witnesses in his favor.' Although not stated in the Amendment in so many words, the right to self-representation–to make one's own defense personally–is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.65

Faretta was interpreting the Sixth Amendment, which is applicable by its terms only to criminal cases. Does this "natural right" of self-representation of which it speaks extend to civil cases? The Constitution contains no such explicit right, and the court has not yet ruled on the precise question,66 other than in the manner discussed above in the context of a right of access to the courts. Although a constitutional right of self-representation must therefore be inferred from the recognized right of access to courts, it is presently protected under both federal statute and the constitutions and statutes of 15 states. (See Appendix III.) Federal law provides: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."67 The following state constitutional provisions drawn from Appendix III are illustrative of the state-created right of self-representation: That no person shall be barred from prosecuting or defending before any tribunal in

this state, by himself or counsel, any civil cause to which he is a party. (Alabama) [regarding right to trial by jury]; the party claiming the right may be heard by himself

or herself and with counsel...(Maine) A party may appear either in person or by attorney in actions or proceedings in

which he is interested...(North Carolina) One state confers an even greater right upon pro se litigants: South Carolina recognizes not only the right to appear pro se, but permits a party to prosecute or defend his cause, "or the cause of another, with leave of court first had and obtained...." No fee or other gratuity may, however, be accepted by a nonlawyer who represents another under this provision.

65. Id. at 2532. 66. The Supreme Court has held, however, that there is no right to court-appointed counsel for defendants

in civil cases, including paternity. Lassiter v. Dept. of Social Services of Durham County. 67. 28 U.S.C. § 1654. Although the Supreme Court has held that there is no constitutional right to

appointed counsel in civil cases, federal law provides that "The court may request an attorney to represent any such [indigent] person unable to employ counsel..." The factors to be considered by the court include the likelihood of success on the merits, the need for a detailed investigation, the presence of important credibility issues, and the complexities of the cause of action. See, e.g., Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986).

24

As noted above, a right of self-representation has been traced by some commentators to the right of access to the courts. In addition to its constitutional roots, described above, the right of access can be traced to the Magna Carta (1215). Chapter 40 of that document states, "We will sell to no man, we will not deny to any man, either justice or right." The chief purpose of that provision was to prohibit the king from imposing fees on litigants through his courts, and to eliminate the practice of selling justice by a corrupt judiciary that at that time demanded gratuities for rendering or withholding decisions in pending cases. Thus, the notion that justice should be free and be denied to no one can be seen as the foundation of the right of access and the correlative right to an "open" court. Many state constitutional and statutory provisions include these basic principles from the Magna Carta: that courts should be open and free and provide a remedy for every wrong. The right to open courts is also codified in federal legislation: "All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders."68 The state constitutional provisions of Idaho are illustrative of state law provisions that recognize the right to open courts–and to a remedy for every wrong. "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice." (See Appendix III.) The aforementioned constitutional case law, federal legislation, and state law–not to mention the Magna Carta–establish the legal foundation for self-representation. The significant and as-yet-unanswered question is whether self-represented litigants' rights obligate the state to take affirmative steps to provide them with some form of "adequate" legal assistance. Until a definitive ruling on this question is made, courts should–if only for efficiency reasons–begin (or continue) to develop creative means of guiding the increasing number of self-represented litigants through the legal process.

68. 28 U.S.C. § 452.

RIGHT TO OPENCOURTS

25

JUDICIAL ASSISTANCE

The legal and judicial ethics issues surrounding any form of judicial assistance to a self-represented litigant, or even a represented party, are numerous, intertwined, and implicate competing values. Judicial ethics principles have obvious relevancy to the thorny dilemma confronting the trial judge: balancing the duty of impartiality in appearance and in fact with the duty to provide a fair and meaningful hearing. The judge who provides any form of assistance to a self-represented litigant whose adversary is represented risks being accused of unfairness by the opposing attorney. Yet, by maintaining complete passivity when a self-represented litigant makes errors jeopardizing the claim or defense sought to be made, some would argue that the judge runs afoul of the meaningful hearing requirement of the due process clause and the rights of access to the court, self-representation, and an open court. These and other legal and judicial ethics issues are discussed below. The Supreme Court in Haines v. Kerner.69 held that a self-represented litigant's complaint must be held to "less stringent standards than formal pleadings drafted by lawyers." "Pleadings" is defined by Black's Law Dictionary (5th ed. 1979) as: "The formal allegations by the parties of their respective claims and defenses." It is not clear whether "pleadings" includes letters, motions, or other written submissions to the court. Moreover, whether Haines applies to pleadings in state courts, or is limited to an interpretation of the federal pleading rule (Rule 4, F. R. Civ. P.) is an open question. What if the court determines that pleadings filed by a pro se litigant were in fact drafted for a fee by an undisclosed nonattorney? Should the court deny the filing of the petition or impose other sanctions against the litigant? A Tennessee attorney general opinion on this point states:

Preventing the filing of such pleadings or documents or expunging them once filed, when they are signed and filed by a litigant proceeding pro se, could be construed as depriving that litigant of the state and federal constitutional right of access to the courts.... [I]t is the opinion of this office that a trial court would exceed its powers and proper role by rejecting the filing of a document because of such circumstances. Such action by the court could well cause a litigant, at no fault of his own, to forever forfeit valuable rights, such as when a filing is necessary to prevent the running of the statute of limitations on a claim, or to comply with other mandatory requirements of statute or court rules. Such a rejection would also raise serious questions of denial of the litigant's constitutional right of access to the courts. While unauthorized practice is obviously a serious concern, the remedy of striking a document for that reason would be a drastic one, and would have repercussions on the litigant rather than the real wrongdoer.70

69. 404 U.S. 519, 520, 92 S.Ct. 594 595 (1972). 70. Opinion 94-101, 1994 WL 509446 (September 9, 1994). The opinion cites the following case law: John

L. v. Adams, 969 F.2d 228, 231 (6th Cir. 1992) (noting that on numerous occasions the Supreme Court has recognized the existence of a federal constitutional right of access to the courts); Andrews v. Bechtel Power Corp., 780 F.2d 124, 137 (1st Cir. 1985), cert. denied, 476 U.S. 1172, 106 S.Ct. 2896 (in federal courts, while there is no constitutional right to self-representation in civil cases, there is a statutory right of long standing to such self-representation); Whishant v. Byrd, 525 S.W.2d 152, 153 (Tenn. 1975) (recognizing that an individual has a state constitutional right to institute and prosecute a civil action seeking redress for injury or damage to

GENERAL RULESREGARDING

TREATMENT OFPRO SE LITIGANTS

26

The Committee on Standards of Conduct Governing Judges in the Sixth Judicial Circuit of Florida answered a similar question.71 There, a judge inquired whether he would violate the Canons of Ethics by presiding over a case which he knew or had reason to know was "the product of unlicensed practice of law, in that the pro se litigants are receiving legal advice and services from nonlawyers." The committee saw "no ethical impropriety in a judge presiding over a case where a pro se party may have received advice from a nonlawyer or an attorney not admitted to practice in Florida. If appropriate, at the conclusion of the matter, the judge may refer such cases to the Florida Bar...." "Ghostwriting" is the term used by several courts to describe the act of an undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of "unbundled" or limited legal services. The practice has been criticized by some courts as violative of various court rules and ethics principles. For example, in Johnson v. Bd. of County Commissioners,72 the court held that the self-represented defendant's pleadings,

seemingly filed pro se but drafted by an attorney would give him the unwarranted advantage of having a liberal pleading standard applied whilst holding the plaintiffs to a more demanding scrutiny. Moreover, such undisclosed participation by a lawyer that permits a litigant falsely to appear as being without professional assistance would permeate the proceedings. The pro se litigant would be granted greater latitude as a matter of judicial discretion in hearings and trials. The entire process would be skewed to the distinct disadvantage of the nonoffending party.

The court also found ghostwriting a violation of Rule 11, F. R. Civ. P., which requires that "every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's name, or, if the party is not represented by an attorney, shall be signed by the party." The court found that a "deliberate evasion of the responsibilities imposed on counsel" by this rule occurred in that case.73 The court in Johnson cited Informal Opinion 1414 (1978) of the ABA Standing Committee on Ethics and Professional Responsibility in support of its ruling. That opinion found that undisclosed counsel who renders extensive assistance to a self-represented litigant engages in misrepresentation contrary to the former Model Code of Professional Responsibility provision DR1-102(A)(4), which provides: "A lawyer shall not:..(4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation." The court further found that "Having a litigant appear to be pro se when in truth an attorney is authoring pleadings and necessarily guiding the course of the litigation with an unseen hand is ingenuous [sic] to say the least; it is far below the level of candor which must be met by members of the bar."74 See also, Laremont-Lopez v. Southeastern Tidewater Opportunity Center,75 in which a federal district court found that ghostwriting was a violation of a local rule that requires counsel to obtain leave of court before terminating their representation of a party. No cases have been found upholding the practice of ghostwriting. his personal property, or for the vindication of any other legal right); Irvin v. City of Clarksville, 767 S.W.2d 649, 651-652 (Tenn. Ct. App. 1988) (discussing generally the right of a litigant to proceed pro se).

71. Opinion 94-96 (December 16, 1994), http://www.co.pinellas.fl.us/sixth/ocscgj/ninet4/94-46.html. 72. 868 F.Supp. 1226, 1231 (D.Colo. 1994), citing Ellis v. Maine, 448 F.2d 1325 (1st Cir. 1971); Klein v.

H.N. Whitney, Goadby & Co., 341 F.Supp. 699 (S.D.N.Y. 1971); and Klein v. Spear, Leeds & Kellogg, 309 F.Supp. 341 (S.D.N.Y. 1970).

73. Johnson v. Bd. Of County Commissioners, 868 F.Supp. at 1231. 74. Id. at 1232. 75. 968 F.Supp. 1075, 1079 (E.D.Va. 1997).

GHOSTWRITING

27

In the context of a criminal case, the Supreme Court in McKaskle v. Wiggins held that "A defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does the Constitution require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course."76 It has been suggested that this also applies to civil cases.77 Assuming judges need not "take over chores" for a self-represented litigant, how should judges treat them? Many courts have an unstated policy of leniency regarding the construction of pro se pleadings, and failures to adhere to technical rules of procedure are largely ignored to ensure that claims made are given "fair and meaningful consideration."78 As Judge Posner once stated, "It is unfair to deny a litigant a lawyer and then trip him up on technicalities."79 One court observed that "[c]ourts will go to particular pains to protect pro se litigants against the consequences of technical errors if injustice would otherwise result."80 However, it has been held that "The trial court is under no obligation to become an 'advocate' for or to assist and guide the pro se layman through the trial thicket."81 The judge who "unduly" aids the pro se litigant in his defense is, it is argued, wrongfully acting as an advocate for one side of the dispute. The general rule regarding a judge's duty to remain impartial was captured in the following statement of the Illinois Appellate Court. The opinion is from a case in which the plaintiff was represented at trial and the defendant physician appeared pro se. The plaintiff, appealing an adverse judgment, argued among other things that he was denied a fair trial because the judge "attempted to assist the defendant in presenting his case."82 The court, rejecting the claim, stated:

The judge gave due consideration to the defendant's pro se status but was never reluctant to sustain the plaintiff's objections when necessary. Although the judge would carefully explain to the defendant why certain objections were being sustained, there is no evidence that he conducted the defendant's case for him or failed to remain impartial. As any judge or lawyer knows, the conduct of a jury trial with a pro se litigant who is unschooled in the intricacies of evidence and trial practices is a difficult and arduous task. The heavy responsibility of ensuring a fair trial in such a situation rests directly on

76. 465 U.S. 168, 183-84, 104 S.Ct. 944, 954, reh. denied, 104 S.Ct. 1620 (1984). 77. Bradlow, Procedural Due Process Rights of Pro Se Civil Litigants, 55 U. CHI. L. REV. 659 (1988).

Bradlow goes further and proposes using the test for determining what process is due under the due process clause announced in Mathews v. Eldridge, 424 U.S. 319, S.Ct. (1976) "to determine the procedural leniency due a pro se civil litigant" beyond the liberal interpretation of pro se pleadings required under Haines v. Kerner, 404 U.S. 519, S.Ct. (1972). Although she suggests using the Mathews balancing test (i.e., identifying the litigant's "protected interest," and then weighing the private interest that will be affected by the official action, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards, followed by a consideration of the government's interest that the additional or substitute procedural requirement would entail), she provides no example of its possible application. Nevertheless she concludes that "some litigants will require very great procedural protections; others will require no protection; and the vast majority will receive an amount of protection somewhere in between." Id. at 676.

78. Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir. 1984). 79. Merritt v. Faulkner, 697 F.2d 761 (7th Cir. 1983) (Posner, concurring and dissenting). 80. United States v. Sanchez, 88 F.3d 1243 (D.C. Cir 1996). 81. U.S. v. Pinkey, 548 F.2d 305, 311 (10th Cir. 1977). 82. Oko v. Rogers, 466 N.E.2d 658 (Ill. 1984).

PROCEDURALCOMPLIANCE

DUTY OFIMPARTIALITY

28

the trial judge. The buck stops there. There is no law that requires a litigant to have a lawyer. The lawyer on the opposing side cannot be expected to advise the opposing party who is pro se. The judge cannot presume to represent the pro se party. In order that the trial proceed with fairness, however, the judge finds that he must explain matters that would normally not require explanations and must point out rules and procedures that would normally not require pointing out. Such an undertaking requires patience, skill and understanding on the part of the trial judge with an overriding view of a fair trial for both sides. We believe [the trial judge] faced up to that high responsibility in this case.83

Several judicial ethics requirements are relevant to judges' treatment of pro se litigants. Canon 2 of the American Bar Association's Model Code of Judicial Conduct (1990) (hereafter "Code") requires that judges "avoid impropriety and the appearance of impropriety" in all judicial activities; this includes acting "in a manner that promotes public confidence in the integrity and impartiality of the judiciary."84 "The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired."85 Thus, impartiality is a fundamental precept of the adversary process. As any judge who has had a case with a self-represented litigant knows, the impartiality admonition is problematic because of the frequent need to assist the litigant in the presentation of the case. Judges must balance their duty of impartiality to all parties with their duty to provide the required "meaningful opportunity to be heard" to which all litigants are constitutionally entitled. Judges also have a duty under Canon 3 of the Code to "be patient, dignified and courteous to litigants...."86 However, the Code explains that "The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate."87 Further, judges "shall accord to every person who has a legal interest in a proceeding...the right to be heard according to law."88 In addition, judges also "must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay.89 Finally, judges have a duty to assure that court officials "refrain from manifesting bias or prejudice in the performance of their official duties."90 The latter provision suggests a duty upon judges generally, and especially administrative judges, to assure their court staff provide assistance in an impartial manner. Judges have inquired of judicial ethics committees as to "the degree of legal assistance a judge should give pro se litigants." They have been informed "that although judges may advise pro se litigants regarding procedures, judges cannot provide legal advice."91

83. Id. at 661. 84. Code (1990), Canon 2, Sec. A. 85. Id. at Sec. A, Commentary. 86. Id. at Canon 3, Sec. B4 87. Id. at Canon 3, Sec. B4, Commentary. 88. Id. at Canon 3, Sec. B7. "Law" includes court rules, statutes, constitutional provisions and decisional

law. Id. at Terminology. 89. Id. at Canon 3, Sec. B8, Commentary. 90. Id. at Canon 3, Sec. C2. 91. Committee on Standards of Conduct Governing Judges in the Sixth Judicial Circuit of Florida, supra

note 71.

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The data collected in this study show that the most serious concern of trial judges is their perceived inability to assist a pro se litigant due to their duty to maintain impartiality. Can there ever be a situation when a judge appropriately lends proactive assistance to a self-represented litigant without jeopardizing his or her impartiality? An answer to this question was recently provided by the Indiana Commission on Judicial Qualifications. The 1997 opinion begins: "At issue are a judge's duties under the Code of Judicial Conduct with regard to pro se litigants in nonadversarial cases."92 The opinion states that

from time to time judges who have before them pro se litigants whose pleadings or presentations are deficient in some minor way, sometimes take an unnecessarily strict approach to those deficiencies, turn the litigants away on those grounds, and, in the name of strict neutrality, violate other sections of the Code of Judicial Conduct.

Fairness, courtesy, and efficiency also are hallmarks of an honorable judicial system.... The Commission members believe that in presiding in a case with a pro se litigant in a nonadversarial setting, where the litigant has failed in some minor or technical way, or on an uncontroverted or easily established issue, to submit every point technically required or which would be required from any attorney, the judge violates the Code by refusing to make any effort to help that litigant along, instead choosing to deny the litigant's request or relief.

For example, if a pro se litigant seeking a name change pays the required fees, submits proof of publication, establishes the basis for the request, but inadvertently or for lack of experience does not state an element which the judge requires, such as that the name change is not sought for a fraudulent purpose, the judge should make that simple inquiry during the litigant's presentation to the court rather than simply deny the petition on that basis alone. Neither the interests of the court nor of the litigant are served by rejecting the petition on the basis of this type of deficiency. Similarly, for example, a married couple seeking a divorce, each acting pro se, with no contest or issues in dispute, might knowingly omit from their pleadings their county of residence. A judge should make inquiry of the parties to establish this element of their petition, and proceed appropriately, rather than deny the petition and excuse the parties from the courtroom on the basis of their omission.

The opinion concludes: "A judge's ethical obligation to treat all litigants fairly obligates the judge to ensure that a pro se litigant in a non-adversarial setting is not denied the relief sought only on the basis of a minor or easily established deficiency in the litigant's presentation or pleadings." The foregoing opinion is the only one found that directly addresses the issue of proactive judicial assistance to self-represented litigants and its relationship to other ethical obligations, and establishes a judicial duty to remedy minor errors by such litigants. In contrast to the latter Indiana ethics opinion are two 1993 opinions from Florida and New Mexico that reflect the traditional "hands off" policy of many judges with respect to judicial assistance. In the Florida case, the Committee on Standards of Conduct Governing Judges addressed the question of whether a judge may distribute a brochure entitled "Family Law Division, Pro Se Pointers."93 The purpose of the brochure is to assist pro se litigants in uncontested dissolution of marriage cases. It contains a checklist of documents, explanations of forms and procedures necessary to obtain a

92. Advisory Opinion 1-97 (undated). 93. Committee on Standards of Conduct for Governing Judges, Opinion 93-8 (February 4, 1993).

30

final judgment, and a place for the signature of the pro se litigant. The litigants are requested to sign the brochure (presumably acknowledging they have read and understood it), and return it to the court's judicial assistant. The committee split six to five on the issue. The majority found "that particularly in urban courts there is an increasingly large number of pro se litigants seeking uncontested dissolutions of marriage. Judges in these urban family courts need to provide informational assistance to pro se litigants so that the judges can promptly dispense the business of the court.... The brochure is an activity that improves the administration of justice." It is also of a generic nature and not directed toward specific litigants or cases. The other five committee members believed the production of such a brochure "may be the practice of law" prohibited by the judicial code, and that the judge should inquire of the Florida Bar's Committee on Unauthorized Practice of Law for an opinion on the matter. They believe "the brochure may be legal or quasilegal work that is potentially the subject of litigation.... [I]f a judge answers a question of a litigant who has not properly followed the brochure instructions, the judge's answer may be the practice of law." The New Mexico Advisory Committee on the Code of Judicial Conduct was asked whether a judge may develop court forms for use by litigants in his court.94 The committee found that "the preparation and distribution of such forms would be inappropriate for several reasons." The reasons given were: (1) the preparation of forms with instructions to litigants constitutes the practice of law, which is prohibited for judges; and, (2) "A judge's act in providing pleading forms may also give rise to a perception of partiality." On the latter point, the committee explained: "For instance, in a contested action where the sufficiency of the pleadings are placed in issue, both the contestant and respondent may infer that the court would reject challenges to the pleadings." Thus, the committee concluded, preparation of forms is an act that serves to undermine the public confidence in the impartiality and independence of the judiciary. It is not clear whether the more recent Indiana opinion signals a new direction in judicial ethics interpretations sparked by the rise in interest in enhancing access to the court for self-represented litigants. (See pages 65-66, describing the emphasis on access to courts in the Trial Court Performance Standards.) It has been held that the court has no duty to inform a self-represented plaintiff of the need to respond to a motion for summary judgment.95 However, failure to respond "does not in and of itself make the granting of summary judgment 'appropriate.'"96 Courts must accord "special attention" to self-represented litigants faced with summary judgment motions.97 At the very least, litigants are entitled to be warned that when they are confronted by a summary judgment motion, they must obtain counter-affidavits or other evidentiary material to avoid the entry of judgment against them.98

94. Judicial Advisory Opinion 93-3 (June 8, 1993). 95. Jacobson v. Smith, 790 F.2d 1362, 1365-66 (9th Cir. 1986) 96. Northern Contracting Co. v. Allis-Chalmers Corp., 573 P.2d 64, 68 (1977). 97. Ham v. Smith, 653 F.2d 628 (D.C.Cir. 1981). 98. Rosenboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (summary judgment held inappropriate in prisoner

civil right action absent advisement that he had right to file counter-affidavits or other responsive material); Madyun v. Thompson, 657 F.2d 868 (7th Cir. 1981) (holding that in resolving pro se prisoners' cases on defense motions for summary judgment, central consideration should be whether claims of prisoners have had a fair and meaningful consideration); Hudson v. Hardy, 412 F.2d 1091 (D.C.Cir. 1968) (finding requirements of summary judgment rule may not fairly be applied with strictness to prisoner unrepresented by counsel and subject to handicaps that detention necessarily imposes).

MOTIONS FORSUMMARYJUDGMENT

31

In Timms v. Frank,99 a self-represented litigant bringing a civil action against her former employer appealed a grant of summary judgment because she never received adequate notice as to the effect of her failure to support a response with affidavits or other documents. The court held that self-represented civil rights litigants are entitled to notice of the consequences of failing to respond to summary judgment motion, with notice including both the text of the Federal Rule of Civil Procedure governing summary judgment motions and a short and plain statement in ordinary English that any factual assertion in movant's affidavits would be taken as true by the district court unless the litigant contradicted the movant with counter-affidavits or other documentary evidence.100 The court further stated "[c]ounsel should include [the summary judgment notice discussed above] with the summary judgment motion, but if they fail to do so this responsibility will fall on the district court."101 When inadequacies (i.e., procedural errors) arise which "threaten to impinge upon the substantive legal rights of others, whether committed by seasoned counsel or pro se litigants, the court is compelled to act to prevent injustice."102 Regarding compliance with evidentiary rules, the New Hampshire Supreme Court commended a trial judge for his conduct in "relax[ing] the rules of evidence and mak[ing] a special effort to facilitate the [self-represented] plaintiff's presentation of his case."103 The court followed a recommendation of an ABA committee in declining to set any firm parameters regarding how far a judge should go to assist a pro se litigant:

The court is confronted by an especially difficult task when one of the litigants chooses to represent himself. The court's essential function to serve as an impartial referee comes into direct conflict with the concomitant necessity that the pro se litigant's case be fully and completely presented.

The proper scope of the court's responsibility [to a pro se litigant] is necessarily an expression of careful exercise of judicial discretion and cannot be fully described by a specific formula.104

Case law has addressed the consequences of noncompliance with two additional federal procedural rules: Rules 37 and 41, F. R. Civ. P., which authorize dismissals of complaints upon various grounds. As to Rule 37, F. R. Civ. P., dismissals, the Supreme Court has held that "There are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause."105 Dismissal of a suit pursuant to Rule 41(b) for failure to comply with an order of court will not be disturbed absent a showing that dismissal was without logic or reason, or that it is clearly unable to be defended."106 "There are of course a wide variety of other sanctions

99. 953 F.2d 281 (7th Cir. 1992). 100. Id. at 284. 101. Id. at 285 (emphasis added). But see Newsome v. Farer (708 P.2d 327, 331 (N.M. 1985)), in which

the New Mexico Supreme Court, takes a stricter view. 102. Cassell v. Shellenberger, 514 A.2d 163 (Pa. 1986) (dismissal proper where complaint lacks factual

basis). 103. Austin v. Ellis, 119 N.H. 741, 743 (1979). 104. Citing ABA Standards, Comm. On Standards of Judicial Administration, Sec. 2.23, at 45-47 (1976). 105. Societe Internationale v. Rogers, 78 S.Ct. 1087, 1094 (1958). See also A.G. Rancho Equip. v.

Massey-Ferguson, 598 P.2d 100 (1979); Edgar v. Slaughter, 548 F.2d 770 (8th Cir. 1977) and Beverly v. Conquistadores, 537 P.2d 1015, 1017 (NM Ct. App.), cert. denied 540 P.2d 248 (1975).

106. Newsome v. Farer, 708 P.2d 327, 331 (NM. 1985) (dismissal with prejudice for pro se litigant's failure

SANCTIONS FORPROCEDURAL

NONCOMPLIANCE

32

short of dismissal.... The [trial court], however, need not exhaust them all before finally dismissing a case. The exercise of his discretion to dismiss requires only that possible and meaningful alternatives be reasonably explored."107 The Supreme Court has held that Rule 11, F. R. Civ. P., "imposes on any party who signs a pleading, motion, or other paper–whether the party's signature is required by the rule or is provided voluntarily–an affirmative duty to conduct a reasonable inquiry into the facts and the law before filing, and that the applicable standard is one of reasonableness under the circumstances."108 Sanctions have been applied under the rule against self-represented litigants, including dismissal of claims with prejudice, award of monetary sanctions, and injunctions against future filings. Commentators note that:

[W]hat is a reasonable inquiry for a pro se litigant may continue to be different from the reasonable inquiry an attorney would be obligated to make. Indeed the Committee Notes require the court to consider whether the object of a Rule 11 motion has been trained in law [citing cases holding that certain sanctions were "too strict," not warranted due to the litigant's pro se status, or that such pleadings should be given more leeway and should be sanctioned only when the litigant continues to file frivolous suits repeatedly raising the same claims].109

The U.S. Supreme Court held that there is no right to counsel for indigent parties in civil cases in Lassiter v. Dept. of Social Services of Durham County, a case involving termination of parental rights.110 (Such a right does exist under the Alaska Constitution.111 ) Nor is there a First Amendment right to be represented by an unlicensed layman.112 In Faretta v. California, the Supreme Court held that, "although [a self-represented defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.'"113 to comply with discovery order, after being given five opportunities to explain why dismissal would be improper, held no abuse of discretion).

107. Von Poppenheim v. Portland Boxing and Wrestling Comm., 442 F.2d 1047, 1053-54 (9th Cir. 1971), cert. denied, 92 S.Ct. 715 (1972), cited with approval in Newsome v. Farer, supra note 106. See also Green v. Dorrell, 969 F.2d 915 (19th Cir. 1992) (dismissal for noncompliance not appropriate where "the infringement of the local rule was a single, unintentional incident, making the sanction of dismissal inappropriately severe").

108. Business Guides, Inc v. Chromatic Communications Enters, Inc., 498 U.S. 533, 551, 111 S.Ct. 922, 933 (1991).

109. Solovy, at al., SANCTIONS UNDER AMENDED FEDERAL RULES OF CIVIL PROCEDURE 335-336 (American Law Institute/American Bar Association, 1995).

110. 452 U.S. 18, 101 S.Ct. 2153 (1981). 111. See In re K.L.J, 813 P.2d 276 (Alaska 1991). In this case the court held that an indigent biological

father was entitled, under the due process clause of state constitution, to court-appointed counsel during proceedings on an adoption petition wherein the father's parental rights were being terminated. The father's private interest in his child was considered of the highest magnitude, the state shared the father's interest in an accurate and just decision and had interest in the rights of indigent father, and the father was disadvantaged by not having attorney in that complex legal arguments existed and the father did not know to present important evidence or cross-examine witnesses.

112. Turner v. American Bar Association, 407 F.Supp. 451 (N.D.Tex. 1975) (Nor is there a right on the part of laymen to represent other litigants).

113. Faretta v. State of California, 422 U.S. 806, 95 S.Ct. 2525, 2541, citing Illinois v. Allen, 90 S.Ct. 1057, 1064 (Brennan, J., concurring).

RULE 11

APPOINTMENT OFCOUNSEL IN CIVIL

CASES

PRO SE LITIGANTSIN CRIMINAL

CASES

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"The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.'"114 But "forcing defendant to accept state-appointed counsel against his will deprive[s] him of his constitutional right to conduct his own defense."115

114. Id. 115. Id. at 2541.

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ASSISTANCE FROM COURT STAFF

Court clerks' offices are usually the self-represented litigant's first point of contact with the court. The legal issues surrounding the assistance provided (or, more often, refused) by court staff to the public are dependent upon those that arise from the three-way relationship between the judge, the pro se litigant, and the attorney. That is, if one accepts the proposition that the state, and therefore judges (as agents of the state), have an affirmative obligation to the public to provide meaningful access to the court, the issues become: (1) what is the nature and scope of that obligation? and (2) what obligations do nonjudicial court personnel have as a consequence? The case law is limited and inconsistent on a number of issues affecting self- represented litigants. A central question is whether court staff are an extension of the judiciary, similar to probation officers, court-appointed experts, law clerks, bailiffs, and court reporters. And, if they are, do they share the obligation to provide self-represented litigants access to the courts? If they provide such assistance as officers of the court, do they also share judicial or a qualified immunity for doing so? What forms of assistance may court staff provide to self-represented litigants? May court staff provide the same assistance to the public as they do to attorneys? At what point do they engage in unauthorized practice of law, or unauthorized giving of legal advice? Given the variation in definitions of the practice of law and the giving of legal advice, and the dearth of case law on clerks' assistance, reference is made below to cases involving analogous situations arising from claims of unauthorized practice of law made against realtors and other nonlawyers, as well as to ethics advisory committee and state attorneys general opinions that address the scope of permissible assistance provided by court staff The practice of law, however defined, necessarily includes giving legal advice. The cases that have addressed the question of what constitutes legal advice arise in a variety of contexts. These include cases in which the issue was whether an attorney may be compelled to produce the name of a client or the source of payment of a legal fee to a law enforcement agency or a grand jury.116 Other courts address the question of what is legal advice in the context of attorney malpractice claims.117 In these cases, "The

116. In these cases, the courts refer to the general rule that such information is not ordinarily privileged; an exception to the rule exists where "there is a strong probabilty that disclosure would implicate the client in the very criminal activity for which legal advice was sought." In re Grand Jury Subpoenas, 906 F.2d 1485, 1487 (10th Cir. 1990). Some courts adopt the "Wigmore test," referring to the legal treatise on the rules of evidence. "A matter committed to a professional legal adviser is prima facie so committed for the sake of the legal advice which may be more or less desirable for some aspect of the matter, and is therefore within the privilege unless it clearly appears to be lacking in aspects requiring legal advice." Wigmore, Evidence, §2292 (McNaughton rev. 1961), cited in Diversified Indust., Inc. v. Meredith, 572 F.2d 596, 610 (8th Cir. 1978) (en banc).

117. Thus, cases have held that a malpractice action will lie where erroneous legal advice is given, regardless of whether a fee is accepted or it is given gratuitously: "Legal advice is often defined as giving an opinion as to the law applicable to the subject matter." See e.g., Franko v. Mitchell, 762 P.2d 1345, 1351 (Ariz. Ct. App. 1988). A malpractice action will lie, for example, where an attorney advises a client that he or she has no legal claim against another. See e.g., Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 693 (Minn. 1980).

GIVING LEGALADVICE

35

critical inquiry is whether a statement has the effect of proposing a course of action, rather than whether it constitutes legal advice."118

In other contexts, courts have recognized the distinction between "legal advice" and "legal information." A review of these and other cases leads to the following principles as rough guidelines for defining what constitutes legal advice: "Ministerial" or "scrivener" services in which no legal opinion is sought does not

constitute the giving of legal advice;119 legal advice is the "tendering of information to a client with a view to having him act

thereon in furtherance of the client's interest (or) business;"120 legal advice is "personal advice peculiar to [a client's]...specific case." It would not

include "merely clerical" services, such as if one "made forms available for the client's use, filled the forms in at the specific direction of the client and filed and served those forms as directed by the client."121

In the context of court staff assistance, one court recognized this distinction and held that "a magistrate or other magistrate personnel may furnish legal information to parties to proceedings in magistrate court, many of whom will not be represented by legal counsel."122 The public seeks a wide range of information from court staff. This includes logistical questions, such as the location of a courtroom or another clerk's office or department; questions regarding a court document, such as a notice to appear or summons; or, questions at a prefiling stage in which the individual seeks guidance regarding the proper method and procedure for obtaining judicial relief of some sort. Attorneys, particularly inexperienced ones, often inquire of court clerks regarding the appropriate method, form, and/or procedure for processing a given case. This assistance is in most cases readily provided. In many courts, especially in rural areas, attorneys–as well as police officers and other officers of the court–are permitted to meander behind the office counters and circulate among court staff. This informalizes their relationship and causes court staff to be more willing to provide information to them upon request. After all, the attorney is a member of the "courtroom workgroup."123 This is lacking in the public-court staff relationship and, given the potential threat of an unauthorized practice of law charge arising from assistance provided to a citizen, court staff are loathe to risk their positions by providing information that borders on "legal advice." Thus, no advice or assistance is generally given, as the data in this study show. When conditions are right, such as when a clerk feels sorry for the self-represented party, a clerk may be willing to provide parties with the proper forms for the processing of their case. Logic would seem to dictate, however, that, if the public has a right of access to the court, then court staff are permitted, if not obliged, to render assistance to

118. Engler, Out of Sight and Out of Line: The Need for Regulation of Lawyers' Negotiations with Unrepresented Poor Persons, 85 CAL. L. REV. 79, 96 (1997).

119. Crane v. Crane, 614 A.2d 935 (D.C. Ct. App. 1992). 120. State v. Bucci, 430 A.3d 746 (R.I. 1981). 121. People v. Landlords Professional Services, 264 Cal. Rptr. 548, 553 (Ca. Ct. App. 1990). 122. State v. Walters, 411 S.E.2d 688, 691 (W.Va. 1991). 123. Blumberg, The Practice of Law As a Confidence Game: Organizational Cooptation of a Profession, 1

LAW & SOC'Y REV. 15-39 (1967).

SELECTING FORMSAND FILLING IN

BLANKS

36

the public in the filling out of court forms. This is not currently the case. The issue is what can be considered "legal assistance," and how much assistance is permissible? Only one case has been found that directly addresses this question in the context of clerks of court. In that case, the clerk's activities went far beyond assisting in the selection of or filling in of blanks on court forms. This clerk had drawn up deeds, deeds of trust, notes, bills of sale, and title certificates:

She was not a scrivener...but exercised discretion, as shown by numerous instruments introduced in the record and admittedly prepared by her from information obtained by her from customers, and used her own knowledge and judgment in determining the terminology and type of instrument to be drawn.... [A]ny exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession.124

The cases addressing the issue of assistance to clients have more frequently involved real estate companies and, more recently, independent paralegals or document preparation companies. The cases concerning real estate agents seem to be decided on the basis of the particular forms at issue among the many that are used in that business.125 Several courts have recognized that the filling in of forms is incidental to the practice of the real estate profession and should, with some exceptions, be permitted. In a case allowing realtors to fill in many standardized forms except deeds, the Indiana Supreme Court made the following observation:

The Bar Association, in its brief, has expressed great concern as to the consequences of permitting the filling in of blanks in legal forms by persons not members of the bar. The possibility of an occasional improvident act in the use of such forms may not, with reason, be made the basis for denying the right to perform the same act in a thousand instances where the public convenience and necessity would seem to require it. Lawyers themselves, on rare occasions, have been known to make errors in the drafting of such forms.126

124. Darby v. Mississippi Bd. of Bar Admissions, 185 So.2d 684, 686 (Miss. 1966). In a similar case involving a county clerk, one court held:

"When [the defendant court clerk]...was acting under the directions of the county attorney...his position is sound that he was serving only in the capacity of an amanuensis and was not practicing law. However, when he was acting purely on his own volition...in drawing probate papers to be filed in his office, even though they were to be signed by the applicant, he was engaged in the unauthorized practice of law." Carter v. Brien, 309 S.W.2d 748 (Ky. 1956).

In a case involving a woman engaged in a "secretarial service," the Florida Supreme Court in Florida Bar v. Brumbaugh, held that a non-lawyer was permitted to sell printed materials regarding legal procedures and sample legal forms. The court, however, found her guilty of UPL for her other activities; it found that she "may not make inquiries nor answer questions from her clients as to the particular forms which might be necessary, how best to fill out such forms, where to properly file such forms, and how to present necessary evidence...[and] must not engage in personal legal assistance..., including the correction of errors and omissions." 355 So.2d 1186 (Fla. 1978)

125. For example, courts have held that the following forms prepared by attorneys may be filled in by real estate agents: receipts, options for purchase, contracts of sale, deeds, promissory notes, deeds of trust, real estate mortgages, leases, notices to terminate tenancy, demands to pay rent, demands to vacate, memorandum of agreement, assignments of mortgage, bills of sale, assignments, satisfactions, options, listing agreements, and conditional sales contracts. Indiana State Bar Ass'n v. Indiana Real Estate Ass'n, 191 N.E.2d 711 (1963), and cases cited therein.

126. Id. at 715. However, the Wisconsin Supreme Court held that a real estate agent's selection of a

37

The same rationale used to permit real estate agents to select and fill out forms could reasonably be extended to court clerks. The practice of filling out forms is certainly an incident of the "business" of court staff; selection of forms is already done as a matter of course for attorneys and, in some courts, for the public at large. However, some states have taken a stricter view. For example, in State Bar of New Mexico v. Guardian Abstract and Title Co., a nonlawyer employee of an abstract and title company was enjoined from "giving advice...about the legal effect of the language contained in, or the use of, particular forms, or from choosing between competing forms...." and from "obtaining more information from the parties than that necessary to fill in the blanks on statutory standardized forms...for the purpose of advising the parties of their rights and the action to be taken concerning those rights."127 The Washington Supreme Court has held that a real estate agent who selects a legal form and then drafts language for insertion in it is guilty of unauthorized practice of law. The court noted that this is due to the "probability of injurious consequences from the acts of the unskilled."128 Several legal ethics committees have considered issues arising from the filling out of legal forms by other business professionals, including financial organizations and accountants. They have distinguished between furnishing forms to a person, "filling out or helping the person fill out the forms...or assisting in the execution of the forms"129 and explaining documents. The latter activities were considered "to directly involve the application of legal principles to facts, purposes or desires, and are therefore considered the practice of law and must be performed only by a licensed attorney."130 A general trend allowing lay persons to complete preprinted forms, so long as legal advice is not proper legal form constitutes the practice of law, but not "unauthorized" practice of law because the particular practice was "long tacitly permitted." State ex rel. Reynolds v. Dinger, 109 N.W.2d 685 (1961). A third approach taken by The Supreme Court of Arkansas is to allow a realtor to fill in blanks on standardized real estate forms where the realtor's principal declines to employ an attorney, has authorized the broker to prepare the necessary instruments, the forms are used only in connection with real estate transactions actually handled by the broker in the usual course of his business, and where no charge was made for this service. Creekmore v. Izard, 367 S.W.2d 419 (Ark. 1963). See also Hulse v. Criger, 247 S.W.2d 855, 859 (Mo. 1952).

127. 587 P.2d 1338 (NM 1978). The court, in an earlier opinion in the same case, held: "[F]illing in blanks in the legal instruments here involved [real estate instruments], where the forms have

been drafted by attorneys and where filling in the blanks requires only the use of common knowledge regarding the information to be inserted, does not constitute the practice of law. But, we further hold that, when the filling in of the blanks affects substantial rights, and if the reasonable protection of such rights requires legal skill and knowledge greater than that possessed by the average citizen, then such practice is restricted to members of the legal profession." 575 P.2d 943, 949 (NM 1978). See also Oregon State Bar v. Security Escrows, 377 P.2d 334, 337 (OR 1962).

128. Washington State Bar Ass'n v. Washington Ass'n of Realtors, 251 P.2d 619 (1953). See also People v. Lawyers' Title Co., 27 N.E.2d 30, 33 (1940).

129. Opinion No. 4 (1992), Legal Ethics Committee of the Indiana State Bar Ass'n, cited in RES GESTAE 46 (March, 1996). In another ethics opinion, the committee found that an accountant who was provided with generic articles of incorporation that he filled in for his clients was guilty of unauthorized practice of law:

"[T]he legal documents in question here appear to require more than the use of common knowledge to prepare. In drafting articles of incorporation, there are several options which can be involved. The selection of any one of these options is not a simple matter 'which require(s) only the use of common knowledge regarding the information to be inserted in said blanks, and general knowledge regarding the legal consequences involved.'" Opinion No. 2 (1995), Legal Ethics Committee of the Indiana State Bar Ass'n, RES

GESTAE 46-49 (March, 1996), citing Indiana case law. 130. UPL Opinion #191 (October 28, 1996), in VIRGINIA LAWYER REGISTER (November, 1996), at 20-21.

38

given with them, has been noted by one commentator: "Unauthorized practice of law committees have fought the development [of preprinted forms] with typical spirit but seem to be losing the battle...."131 With regard to the specific issue of whether a court employee can provide assistance to the public, the Arizona Judicial Ethics Advisory Committee concluded that:

Clerks of the court...must be careful not to advise the public as to its legal rights and responsibilities. Careful attention must be given to avoid the unauthorized practice of law. However, this does not mean that clerks of the court may not assist the public in the routine filling out of forms.... If clerks were prohibited from lending assistance to the public, the result would be a judiciary that is only accessible to those individuals able to afford counsel. Clearly, such an effect would not be desirable nor constitutional. Furthermore, assistance in filling out forms is desirable by allowing for an efficient flow of an individual's case through the system. However, judges must caution their clerks not to give substantive advice above that which constitutes clerical assistance.132

The Massachusetts Advisory Committee on Ethical Opinions for Clerks of the Court gave court staff further guidance regarding the extent of permissible assistance to the public by responding to five scenarios, "examples of situations which occur daily" in a particular probate and family court.133 The committee found that three of the five scenarios involve the practice of law, and two did not.

Scenarios that the Massachusetts Advisory Committee found do not involve the practice of law.

Scenario #1 A husband appears and requests court forms for a no-fault divorce. He is informed by the clerk that there are two types of no-fault divorces, as well as fault divorces. The clerk "further enumerates the forms and materials required for each type and outlines the process and time lines" for the two types of no-fault divorces. Scenario #2 A non-English-speaking mother appears at the counter with bandages on her arms and face, with two children also bearing bruises, and a friend. The friend speaks English but cannot write. The woman wants to file a complaint for protection from abuse. The clerk "asks the questions on the form and completes the form." Through the friend, the clerk "asks for a description of the incident of violence, and completes the affidavit based upon what the interpreter states." Scenario #3 The pro se parties to an action in which the wife seeks temporary support are referred to the Family Service Office in order to fill out financial statements. A probation officer asks questions of the parties and determines the husband cannot add and subtract. He "asks the husband the questions on the financial statement, writes the answers, and gives the completed financial statement to the husband for signature."

131. WOLFRAM, MODERN LEGAL ETHICS, § 15.1 (1986), at 839. 132. Opinion 88-5 (May 11, 1988). 133. Opinion 95-6 (November 8, 1995).

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Scenarios that the Massachusetts Advisory Committee found do involve the practice of law:

Scenario #4 A grandmother appears and reports that her grandson's mother is an addict, that his father is deceased, and that she wants custody of the boy. The clerk tells the grandmother "what the possibilities are with regard to filing a petition for guardianship of a minor of the person and the estate, or just the person, and explains the need for filing a bond and the various types of sureties on the bond." After asking a few more questions, the clerk "suggests she file a guardianship of minor of the person and the estate, and a bond with sureties." Scenario #5 A divorcee appears and complains that her ex-husband is not paying the medical bills he was ordered by the divorce court to pay. She cannot pay them, and a collection agency is hounding her. The clerk gives her a "complaint for contempt" form and tells her to fill it out. She asks questions about the form, and the clerk realizes she is illiterate. The clerk reads the questions on the form and "fills it out quoting the plaintiff." The clerk files the complaint, giving the woman a copy along with a summons and "tells her how it should be served."

In its opinion, the committee stated that in the fourth scenario,

the clerk not only identifies and describes the options and provides appropriate forms and assistance in completing them, but recommends or chooses the specific manner in which the litigant should proceed. We recommend that court employees provide such guidance and information as allows the litigant to make an informed choice among procedures, leaving, however, the decision to the litigant.

As to the fifth scenario, the committee stated:

[I]n our view, it is not the role of the court employee to advise a litigant to bring a problem before the court or to suggest the specific manner of proceeding. The litigants must decide for themselves whether and how to proceed. Prior to making these decisions, however, they are entitled to receive a wide range of assistance and guidance from court employees.

The committee's opinion concludes with the following observation:

[P]roviding assistance with filling out forms and offering procedural advice clearly do not run afoul of the prohibition on the practice of law. Drafting documents, taking over a case and becoming an advocate on behalf of a litigant would clearly violate the prohibition.

Rulings on the question of a court clerk's selecting and filling in court forms, or the provision of other forms of assistance by lay advocates, for example, have occasionally been made by state attorneys general in response to questions posed by state or local court officials.134 The Mississippi Attorney General was asked whether a court clerk may assist a litigant in filling out a "civil affidavit." The response first recognized that "a Justice Court Clerk is an employee of the county and must be service oriented and responsive to the needs of the public." The opinion, however, further states that a justice court clerk should refrain from filling out civil affidavits or giving legal advice, "as such actions may be needlessly subjecting herself to civil liability if the civil affidavit is not properly drafted or legally

134. A WESTLAW search of the attorneys general opinions database using the search query "practice of law" revealed 1,322 such opinions, 132 of them specifically addressing the issue of unauthorized practice of law by nonlawyers.

ATTORNEYSGENERALOPINIONS

40

insufficient."135 A recent Maryland opinion addresses the permitted activities under a statute that requires court staff to provide assistance in cases of domestic violence. With respect to court forms, the opinion concluded that lay advocates

may help a victim fill out a form pleading herself by defining terms in the instructions that might be unclear to the victim or by pointing out where on the form particular information is to be set out. Lay advocates themselves may fill out a form pleading (for a person who is illiterate, for example) only if the assistance is limited to transcribing or recording verbatim the victim's own language.... On the other hand, lay advocates may not assist in filling out forms or form pleadings "using their own words," or summarizing information given them by a client. This degree of aid rises impermissibly to the level of applying facts to the law in the "preparation" of a legal document.136

The opinion also concludes that a lay advocate for domestic violence victims may: provide victims with basic information about the existence of legal rights and

remedies (i.e., "the simple act of providing information about legal rights, as opposed to offering advice about such rights and what to do about them, is not unauthorized.... [T]he line is not crossed by the unadorned provision of information");

provide victims with basic information "about the manner in which judicial

proceedings are conducted"; assist a victim to prepare a legal pleading or other legal document on her own behalf

by "defining unfamiliar terms on a form, explaining where on a form the victim is to provide certain information, and if necessary transcribing or otherwise recording the victim's own words verbatim"; and,

sit with the victim at trial table, if permitted by the court.

The lay advocate may not, however, provide any advice relating to a victim's rights or remedies, including whether a

victim's particular circumstances suggest that she should pursue a particular remedy;

provide information about the legal aspects of judicial proceedings, such as how to

present a case, call witnesses, introduce evidence, and the like; or, use the advocate's own language in preparing or filling out form pleadings or other

documents.

135. 1987 Miss. AG LEXIS 63 (November 19, 1987). 136. The opinion cites Matter of Bright, 171 B.R. 799 (Bkrtcy. E.D. Mich. 1994), which held that a

paralegal deciding what property should be listed on bankruptcy forms, and adding language to them not dictated by clients, commits unauthorized practice of law. See also § 741.30(2)(c), Fla. Stat. (1993). Additional duties of court clerks under the statute include: (1) to provide simplified petition forms and instructions; (2) to advise petitioners of the availability of affidavits of indigency for waiver of court costs; (3) to assure petitioners' privacy when filling out the forms (e.g., private rooms); (4) to provide prevailing petitioners with two certified copies of the injunctions that are issued; (5) to provide petitioners with informational brochures.

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It is noteworthy that the foregoing opinion would permit a court clerk to inform a domestic violence victim of available statutory remedies (so long as no advice regarding which remedy is the most appropriate for that victim is provided). In many courts, clerks will not even provide this "unadorned" information. The first serious attempt to formulate guidelines for court staff to consider when self-represented litigants ask for assistance was made by John Greacen in an article published in The Judges' Journal.137 He argues that the phrase "giving legal advice" "has no inherent meaning, or even core meaning, and that its current use by courts has serious negative consequences for the ability of courts to provide full and consistent public service."138 After reviewing case law defining the practice of law, he points out that the ambiguity of the phrase has negative consequences for the courts and the public:

The consequences of a fuzzy definition of "giving legal advice" is to vest unguided discretion in the deputy clerk to answer what he or she wishes to answer and feels comfortable answering, and to refuse to answer any question he or she decides not to answer. The result, as with all unconstrained discretion, is the potential for abuse, favoritism, and undesired consequences.... Courts have difficulty with persons who choose to represent themselves. Many of them do not trust lawyers, or the legal system, and it is very hard for deputy clerks to deal with them. They will challenge information given. They are not friendly. They often demand services the staff does not usually provide. An easy way to "get rid of" such persons, particularly on the telephone, is to cut the questions short with the useful phrase, "I am not allowed to give legal advice. What you are asking me involves legal advice." The self-represented litigant can, and often will, argue. But he or she cannot prevail, because the deputy clerk is the ultimate arbiter of the meaning of the phrase.139

Greacen develops five principles that court staff should keep in mind: (1) court staff have an obligation to explain court processes and procedures to litigants, the media, and other interested citizens; (2) court staff have an obligation to inform litigants and potential litigants of how to bring their problems before the court for resolution; (3) court staff cannot advise litigants whether to bring their problems before the court, or what remedies to seek; (4) court staff must always remember the absolute duty of impartiality (i.e., they must never give advice or information for the purpose of giving one party an advantage over another, and they must never give advice or information to one party that they would not give to an opponent); and (5) court staff should be mindful of the basic principle that counsel may not communicate with the judge ex parte. Court staff should not let themselves be used to circumvent that principle, or fail to respect it, in acting on matters delegated to them for decision.140 Building on these principles, Greacen suggests the following "Staff Guidelines for Providing Information": Provide information contained in docket reports, case file, indexes, and other

reports. Answer questions concerning court rules, procedures, and ordinary practices; such 137. Greacen, 'No Legal Advice From Court Personnel' What Does That Mean?, THE JUDGES' JOURNAL

(Winter 1995), at 10. 138. Id. at 10. 139. Id. at 12. 140. Id. at 14.

RECENTPROPOSALS TOGUIDE COURT

STAFF

42

questions often contain the words "Can I?" or "How do I?" Provide examples of forms or pleadings for the guidance of litigants.

Answer questions about the completion of forms.

Explain the meaning of terms and documents used.

Answer questions concerning deadlines or due dates.

In providing information, staff will not: Give information when they are unsure of the correct answer; transfer such

questions to supervisors. Advise litigants whether to take a particular course of action. Do not answer

questions that contain the words "Should I?" Suggest that questioners refer such issues to a lawyer.

Take sides in a case or proceeding pending before the court.

Provide information to one party that you would be unwilling or unable to provide to

all other parties. Disclose the outcome of a matter submitted to a judge for decision, until the

outcome is part of the public record, or until the judge directs disclosure of the matter.141

Greacen cites the following rules which are consistent with those he proposes and are contained in the ethics code of the Conference of Appellate Court Clerks under the heading "An Appellate Court Clerk Should Perform the Duties of Office Impartially and Diligently":

An appellate court clerk should exercise great care and discretion in initiating or considering ex parte or other communications concerning a pending or impending proceeding. However, an appellate court clerk may be called upon in the course of his or her duties to explain to litigants and their counsel the rules, operating procedures, and other practices of the court. Information should always be rendered in an impartial manner so as not to advantage or disadvantage any litigant. A clerk should never offer explanations to one party that the clerk would not share with the opposing party.142

Greacen's guidelines and the clerks' association's principles greatly advance the effort to clarify the scope of permissible court staff assistance. Like any other attempt to codify appropriate or inappropriate human behavior, however, the limits of language make it difficult to be specific enough, on the one hand, or sufficiently broad on the other. For example, there are many questions posed to court staff that, while starting with the words designating a "permissible" question (i.e., "How do I?" or "Can I?") are not so easily categorizable as ones that a clerk may or should answer. Consider the following questions: How do I stop a creditor from harassing me? How can we recover damages from the movers? How do I stop my ex-husband from harassing me? How do I collect the judgment the judge gave me in small claims courts?

141. Id. at 15. 142. Id., citing subsection B of Canon III, of Code of Ethics, Nat. Ass'n of App. Court Clerks (1993).

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That portion of the guidelines that permits court staff to "provide examples of forms or pleadings for the guidance of litigants" is also problematic. The case law described earlier, although conflicting, holds that in some jurisdictions the selection of forms for a specific litigant constitutes the practice of law. (See page 35.) Of course, in cases where there is only one applicable court-approved form, such as for a divorce for parties with no children and no real property, it is less likely that a clerk would be accused of unauthorized practice of law or giving legal advice. But where multiple forms are available for different types of relief, such as multiple forms for execution on small claims judgments, some courts will interpret a clerk's selection of a particular form as the practice of law. Once a proper form is selected, ambiguity continues to exist regarding the scope of assistance court staff may provide someone in filling out the form. The Greacen guidelines would permit a clerk to "answer questions about the completion of forms." What questions are typically asked of clerks regarding forms? One might reasonably expect self-represented litigants to (1) ask for the meaning of terms on a form, (2) ask whether certain information would be appropriate or acceptable to insert at a particular place on the form, (3) ask how one might express an idea or event–described orally to the clerk–on the form, and (4) ask what one should now do with the form, or what will happen to it once it is filled out and filed. Likewise, it would not be unreasonable for self-represented litigants to expect to receive answers from court staff to these questions, but the bar could be expected to object to their doing so. More recently, another set of court staff guidelines was announced by the Michigan Court Support Training Consortium, a group consisting of court managers and support staff. These guidelines were developed under a grant from the Michigan Judicial Institute and made part of a computerized interactive training program.143 The training program consists in part of a series of examples showing court staff which information they may or may not provide to self-represented litigants. An example given of information court staff may provide includes the answer to the question, "What happens at an arraignment?," which is considered a "procedural definition and explanation." The permissible response suggested is: "The arraignment is the first appearance before the court. The defendant is notified of the charges, their rights are explained, including their right to an attorney, bond is set, and a plea may be entered." An example of a question to which court staff may not provide an answer is, "Who should I sue?" The latter is considered a "procedural advice" question to which the clerk should respond, "I cannot tell you who to sue because I cannot give legal advice."144 The general guidelines formulated for this program include the following permissible forms of assistance to self-represented litigants: Provide legal definitions

Provide procedural definitions

Provide citations to statutes, court rules, and orders

143. Legal Advice vs Access to the Courts: An Interactive Training Program, JERITT BULL. 1-3 (Jan-

March, 1997). 144. Id. at 3.

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Provide public case information Provide options

Facilitate access

Provide general referrals

Provide instructions on how to complete forms

The Michigan guidelines include the following examples of assistance that should not be provided to self-represented litigants: Provide legal interpretation

Provide procedural advice

Research statutes, court rules, cases, orders

Provide confidential case information

Provide confidential information about court operations

Provide opinions

Deny access, discourage access, or encourage litigation

Provide subjective or biased referrals

Fill out forms for a party

Another approach to provide court staff with a certain comfort level in providing assistance to self-represented litigants is that taken by the Florida Supreme Court. It has promulgated the following rule on unauthorized practice of law that speaks to some of the foregoing issues regarding clerks' assistance.

For purposes of this chapter, it shall not constitute the unlicensed practice of law for nonlawyers to engage in limited oral communications to assist individuals in the completion of legal forms approved by the Supreme Court of Florida. Oral communications by nonlawyers are restricted to those communications reasonably necessary to elicit factual information to complete the form(s) and inform the individual how to file such form(s).145

145. Rule 10-1.1(b), Rules Regulating the Florida Bar. A similar approach to the clarification of the scope of court staff assistance is that taken by Rhode Island. By state statute there are ten listed activities that are "permitted to persons not members of [the] bar." The first of these states: (1) Clerks of the court and recorders of deeds from the drafting of such legal instruments as may be necessary for the proper conduct and discharge of their respective offices and duties...." Gen. L.R.I., Ch. 11-27-11 (1994).

The latter rule is noteworthy, first, because it permits "drafting" of legal instruments. That activity was the subject of the only case found establishing liability against a court clerk for assistance rendered, and would likely be considered by most courts to constitute UPL because it involves much more than selecting and filling out a form (see page 36). But the rule at least recognizes the necessity for carving out an exception to the definition of unauthorized practice of law for court staff. The rule is also significant for its recognition that clerks should be expressly informed that they have the authority to do whatever is necessary "for the proper conduct and discharge" of their duties.

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Although the exact limits of acceptable court staff assistance are not clear, the Greacen and Michigan guidelines and the court rules are a good starting point for the development of similar guidelines in other jurisdictions.

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CHALLENGES

TO THE COURTS

48

49

COURT MANAGER PERSPECTIVES

The District Court Clerk's Office Cannot Answer Any Questions Regarding Pro Se Cases. You are acting as your own attorney. We cannot give any legal advice. We do not have any paperwork. PLEASE DO NOT ASK!!!! Pro se litigants are held to the same standards as licensed attorneys and are bound by all the applicable rules of procedure.

–Example of signs in a clerk's office

The AJS/JMI (non-scientific) survey of court managers (see Appendix II) reveals a range of perspectives on the challenges posed by litigation involving persons who represent themselves. A total of 237 surveys were mailed to managers of state and federal trial courts around the country, seeking information about the volume of litigation involving pro se litigants, the types of cases most likely to involve pro se litigants, the types of assistance sought from court staff by these litigants, the court's policies concerning staff assistance to nonlawyers, and the types of programs and services (if any) that the courts provide for self-represented persons. The very good response rate (41 percent) reflects the high level of interest that exists in the court management community regarding litigation involving the self-represented. Responses to the survey came from court managers in courts of every size and type, but were predominantly from state general jurisdiction trial courts that serve a mix of urban and suburban areas. Because the recipients of the survey were not randomly selected, the survey results are what those replying reported and cannot be regarded as representative of courts or court managers nationally. Nevertheless, the responses provide a good sense of court managers' perceptions of pro se litigation, the challenges posed, and the range of responses being developed by American courts. Case Volume. Court managers believe that the volume of cases involving self-represented litigants has increased substantially in recent years. Almost half (45 percent) feel that, based on their experience, the overall proportion of self-represented litigants has increased greatly over the past five years. Another 29 percent feel that the proportion had increased moderately. The increase in the volume of cases involving pro se litigants has a direct impact on the functioning of court staff: it means more questions both at the counter and over the telephone, about how the court functions, what will happen in the court, what forms must be filled out, and so forth. And, if court staff seek to respond to these questions in a constructive fashion, it can mean significant amounts of staff time devoted to pro se litigation issues. The area of law and court operations that is feeling the brunt of the increase in the volume of pro se cases is domestic relations. Fifty-nine percent of the court managers responding ranked domestic relations as the area of law in which members of the public most frequently ask questions of court staff. It is easy to see that domestic relations is an area of law in which pro se litigation poses major challenges to courts and court managers. It is also the area in which most of the new program initiatives by courts have taken place.

CHALLENGES ANDISSUES

INTRODUCTION

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Court Policy Constraints. About half of the survey respondents indicated that their court had some sort of policy or instruction to guide court staff in responding to requests for assistance from self-represented litigants. However, the policies are usually not in writing and generally are negative in nature. The most common "policy" is a standing instruction to staff that they are not to give legal advice, or that providing legal advice is contrary to state law. A second common policy is for staff to advise the person making the inquiry to consult a lawyer. Both policies reflect a long-standing tradition and philosophy that exists in many–probably most–courts, especially general jurisdiction trial courts that for most of the twentieth century have been accustomed to having lawyers representing all parties in a legal proceeding. The result of these negative policies, coupled with uncertainty about what constitutes "legal advice," is to leave court staff adrift and unable to respond effectively to inquiries from the growing numbers of pro se litigants. Conflicting Judicial Philosophies. As discussed elsewhere in this guidebook, some judges are resistant to the idea of developing special programs that would enable self-represented litigants to have meaningful access to courts. However, other judges clearly feel that effective early-intervention programs involving the court's staff can help alleviate many problems that commonly arise in court proceedings involving self-represented litigants. In a multi-judge court, even if some judges are in favor of developing programs that can provide assistance to unrepresented litigants, it is difficult for court staff to implement such programs without support from the court as a whole. At a minimum, it will be important for the judges who frequently deal with cases involving self-represented litigants to work with court staff in developing effective ways of providing needed assistance in a fashion that is consistent with state law and with the very real constraints of court budgets. Role of the Bar. One of the somewhat surprising findings from the survey is that the organized bar seems to have been rarely involved in the development of court policies to guide the provision of assistance to the self-represented. Given the increased attention that the American Bar Association and a number of state and local bar associations have been giving to pro se litigation, it would seem that one of the challenges for court managers is to enlist the support of the bar in shaping policies to help guide court staff in responding to requests for assistance by self-represented litigants. As discussed below, it is clear that some of the most promising programs in this area are ones that have been developed collaboratively by bar groups, court staff, and judges. Funding Issues. Not surprisingly, funding problems were frequently mentioned as an obstacle to the development of programs and services for pro se litigants. Pro se litigants themselves are not likely to constitute an organized group that will press for funding support to establish effective programs and services. If funding is to be found for initiatives in this area, it will require the support of the court and the organized bar. For court managers, the challenge is to identify the savings–especially in court staff time and in effective use of judges' time in the courtroom–that can result from well-designed programs that provide assistance to self-represented litigants in appropriate situations and to use that information to support funding requests. Education and Training. Until very recently, issues involving the provision of services to pro se litigants had received virtually no attention in education and training programs for judges or court staff members, either in individual trial courts or by state and national organizations. In the absence of educational programs that highlight issues in this area, and training that instructs court staff in how to deliver specific services to self-

51

represented litigants, there is a natural tendency to do things the way they have always been done. Thus, court clerks will have a tendency to tell self-represented litigants that they cannot provide legal advice, and to do little or nothing more in response to a request for assistance. Now, as awareness of the issues in this area increases, court managers need to take advantage of the growing base of knowledge about ways of addressing these issues constructively. They can educate themselves, and they can help arrange for education of the court's judges and staff, taking advantage of a growing number of workshops and conference sessions that address issues involving pro se litigation. Likewise, state judicial conferences have begun, but could do more, to address the pro se phenomenon and help develop improved management policies and procedures.

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JUDICIAL ATTITUDES AND STRATEGIES

Almost 70 percent of the judges responding to the AJS/JMI survey are from general jurisdiction courts, the remainder preside in limited jurisdiction courts (see page 6). Their attitudes toward self-represented litigants vary widely. While some judges are annoyed by their presence in the courtroom, others believe that judges should proactively assist them in the presentation of their case. Some judges with a negative view of self-represented litigants have a deep distrust of them or see them as a threat. As one judge put it, "Some are just trying to get a free lunch. Some are quite knowledgeable and want to do things that a lawyer wouldn't let them do–they are most likely to attack the court or the judge with lies and innuendoes." These judges believe the litigants have a hidden agenda: "Pro se litigants are often in court for personal rather than legal reasons," said one. Some judges oppose in principle the establishment of pro se assistance programs. They cite a variety of reasons for this view, including the belief that to do so would constitute "socialized legal services," that taxpayers should not be compelled to fund what essentially is "social engineering," and that any encouragement or education of self-represented litigants about the judicial process "will destroy our justice system." Many judges simply believe in the old adage about "a fool for a client." They make analogies to other occupations and ask, "Would a person elect to perform major medical surgery on themselves?"; "I tell pro se litigants that the law permits me to repair my own plumbing or my own electricity, but that doesn't mean I am able to do it. I must hire a plumber or an electrician." "Doing your own legal work is like doing your own mechanic work. Most of us can/could do it if we had the time and the patience. But you need to recognize that if it still doesn't run, you have to look at who did the work." On the other end of the spectrum are those judges who are sensitive to the long-range implications of the courts' refusal to accommodate self-represented parties: "They [self-represented litigants] are the symptoms of a lack of access to justice, the seeds of future revolution." They consider their increasing number as "a severe threat to the judicial process in this country [that] can only lead to frustrated persons resolving their disagreements outside the process." Some judges made reference to the difficulties caused by the recent federal cutbacks in legal services. They cited the fact that, "in juvenile and guardianship cases, there is statutory authority to appoint counsel to be paid from the court fund. Until recently there was a legal aid office to which indigent litigants were referred." Another judge praised the local "aggressive" pro bono program but observed that "the loss of legal services has greatly increased pro se's in landlord/tenant, domestic, and entitlement cases. We have no plans for these." When judges were asked about the specific problems that arise when one party is self-represented, versus cases where both (or all) parties are, most judges said that the primary challenge is maintaining their impartiality. Most judges are trained as attorneys and imbued with the notion that in an adversarial proceeding, the judge plays the role of a referee of a "fight" between the parties, and that the "truth" will be revealed as a

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product of that process. Many judges equate impartiality with passivity. The judges described the "perception of bias by both pro se litigants and [the] represented party when the court 'takes over' the questioning of parties and witnesses." Another judge described the problem as, "Determining whether I should do everything to balance the skewing that occurs, usually in favor of the party represented by a lawyer." Judges who assist a pro se litigant, or, conversely, who rule in favor of an attorney, find themselves on the horns of a dilemma. As one judge put it, "Convincing the pro se litigant[s] that the court is not 'on the same side' as the state and that if...[they] will do their part to comply with the rules they will get a fair hearing. Also, convincing the attorney[s] that taking the time to educate the pro se litigant as to how the system works is not the same thing as the court being 'in bed with' the pro se litigant." Judges often encounter self-represented parties who expect the court to assist them. They detect "a sense that the court will be the pro se's defender." The judges variously describe the feelings on the part of self-represented litigants when that assistance is not forthcoming as a belief that "the system is fixed," a "feeling of isolation," and a "sense of unfairness, helplessness, and futility." Attorneys also must perceive that impartiality is being maintained. As one judge described it, "Attorneys want to assert technical objections at bench trials. The pro se litigant doesn't understand the objection. I spend time trying to explain why I can admit the pro se's evidence so as not to appear that the court is a railroad. Attorneys get impatient and act as if the court is trying to represent the pro se–which I am not trying to do–but I want the pro se to feel they got a fair trial and the attorney, too." Another judge mentioned the self-represented litigants' "lack of experience and inability to understand elementary proceedings" as causing the prolonging of proceedings, placing "a great burden on the court," and "hampering opposing counsel's presentation of his or her case." Judges observe that some attorneys take advantage of the fact their opponent is self-represented. They say that they "must bend over backwards to keep [the] pro se litigant from being taken advantage of." One judge noted, "I need to intervene to limit counsel's eliciting evidence which would be inadmissible if pro se knew enough to object." Another pointed to the problem of "the attorney attempting to take control, and overkill by the attorney. This is usually with younger lawyers." Some judges commented on the problems presented by procedural and evidentiary rules themselves in the context of a pro se case. One suggested a "need to relax the rules so that justice can be done," while another noted that "the rules often get in the way of the truth." Judges feel a certain sense of discomfort when a lack of knowledge of procedural rules becomes a barrier to a self-represented litigant's request for relief. One described it as, "my own discomfort when it appears a different legal result could (likely would) occur if the pro se litigant took appropriate action." Importantly, some judges look beyond the issue of impartiality and voice concern regarding whether justice has been done. Their concerns include, "seeing that all evidence is made available"; "pressure on the judge to see to it that the pro se litigant is fully 'heard';" and "the ability of the pro se litigant to get his evidence in and their ability to cross examine properly."

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When asked for their strategies in cases involving both (or all) self-represented parties, the judges described divergent approaches. A substantial number pointed to control of the litigants in the courtroom as the principal problem in these cases. One judge observed that "neither side has the benefit of an attorney who can organize facts and arguments, deal with procedural points, refer me to legal precedents or statutes and, perhaps most importantly, provide some detailed calming advice and suggestions. The potential for violence rises when lawyers are not present in domestic cases and child and spousal abuse cases." Another cited the problems of "making sense out of nonsense, putting up with bickering and quarreling over things immaterial and irrelevant; making the litigants understand those things they do not want to hear or accept." The consequences of this need to focus on control is that, "Unfortunately, one becomes too preoccupied with being a referee [so] that little meaningful time is spent on the merits of the case." One judge described his strategy for maintaining control: "I always inform all parties before commencement of the hearings of the possibilities of contempt." In stark contrast, other judges noted that where both parties are self-represented the case is easier to preside over: "Not nearly as many problems. Both parties are free to discuss the matter in open court, and it's amazing how much evidence can be presented without attorneys"; "When all the parties are pro se, I find it easier to resolve. We can usually handle domestic relations issues informally. The parties are usually willing to work it out"; "...both sides are on equal footing." Based on the judges' survey responses, it appears that the vast number of courts have no stated policy or protocol for handling pro se cases. The judges generally stated that their court's policy is that the self-represented litigants are "to be treated as any other litigant (or attorney)." Some judges cited statutes, rules, or case law requiring that self-represented persons be treated like any represented litigant or attorney, e.g. an Idaho court rule that states "Whenever these rules require that an act be done by a lawyer, the same duty is required of a party appearing pro se."146 Other judges made reference to specific written procedural rules in their jurisdiction–such as those in small claims or domestic violence cases–in which the court is required to assist self-represented litigants in the prosecution of their claims or defenses. Many judges said their policies were individually formulated: "Each judge has his own individual policy. That is a judicial matter to be handled by each judge as he deems pertinent and appropriate." Others, however, noted that the policy of treating self-represented litigants as any other party is flexible in practice: "While the policy is that when they undertake to represent themselves they must adhere to the same standards as lawyers, the reality is that great latitude is given them and limited guidance, where possible and where fairness dictates." Some judges stated that their only policy is to encourage self-represented litigants to retain counsel. This is sometimes done in a way that stresses the lack of judicial assistance that will be offered if counsel is not obtained:

Each situation has its own factual contexts, but, generally, I will advise a pro se: (1) that he or she can represent only himself or herself (no spouse, child, corporation, etc.); (2) that it is wise to seek professional legal representation; (3) that the court cannot give any legal advice; and (4) that there are written court rules to be found in the local library or bar association library, with which they must comply.

146. See Rule 1.04, General Rules of Practice for District Courts.

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COURTWIDE ANDINDIVIDUAL

POLICIES

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Another judge's policy is to handle self-represented litigants "with common courtesy," to advise them of their right to have a lawyer present, and to inform them that he cannot give legal advice. One judge "requires" counsel in certain cases: "Complex issues, cases involving custody and support of children, I require [an] attorney." In criminal and juvenile cases judges noted their ability to appoint counsel. Thus, self-representation is rare in criminal felony cases. Many judges appoint standby counsel to offer trial assistance to felony defendants who insist on representing themselves. In such a case, however, the "criminal defendant [is] not allowed to handle weapons or any physical evidence that could pose a danger or concerns of tampering." There was a range of responses to a question about special strategies for measuring the sufficiency of pro se pleadings. At one extreme: "I require that all pleadings provide the minimum legal requirements. If they do not, they are returned to the party"; to another: "I have no particular procedure except to be extra generous in interpretations on behalf of the pro se party. I give them lots of leeway in both their paperwork as well as their ability to nail down substantive issues," "I am more interested in facts than in pleading," and "Pleadings can be handwritten and formalities are dispensed with, if not jurisdictional." Judges use multiple strategies to remedy a deficient pro se pleading. Some judges provide oral explanation and assistance. As one judge recommended, "Explain, explain, explain." Another judge's approach is to: "Explain at the outset that, without a knowledge of how much the litigant knows, I am going to explain everything as if he/she knows nothing. This works well, as they often say (and believe) they know more than they do. Even the attorneys sometimes benefit from doing that." Sometimes the court will supplement the oral explanations regarding a pleading deficiency with a written notice or letter containing a warning of the consequences of a failure to cure the defect: "If a pleading is inadequate, the court sends a notice letter explaining [the] case will be dismissed if rules are not followed." Other judges, however, provide the self-represented litigant with information regarding remedying the defect: "If the file upon review shows that they are missing documents, such as in complaints or answers, a letter is sent to the litigants and they are told to furnish that information and document within a specified period of time or [the] matter will be terminated." Some judges prefer to utilize a pretrial or case management conference to address pleadings issues:

At the first contact I thoroughly review the evidence of a lawsuit and then inform them of what is expected at all stages of the proceedings–and refer them to where they can find law books at the public library. As to these initial pleadings, I schedule a case management conference wherein I (1) advise the pro se litigants to seek counsel; (2) suggest possibilities in which this might be achieved (e.g., legal services, bar association pro bono, etc.); (3) discuss general pleading requirements/deficiencies; (4) inform litigants of court's expectations; (5) reset the matter for another conference so that #1-4 above can be considered by litigants, (6) seek to understand what litigants want and endeavor to resolve dispute if justice would be served.

In some courts, self-represented litigants are provided court forms147 and accompanying 147. See the discussion regarding relevant judicial ethics opinions at pages 27-30, which cites

POLICIESREQUIRING

COUNSEL

INITIALPLEADINGS

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instructions in such cases as domestic relations, small claim, and other high-volume cases to streamline the pleading process. One judge developed a set of motion forms to be used by self-represented litigants in dissolution cases. He also refers them to the law library or to the clerk's office for samples of other pleadings. Some judges cited their courts' use of fill-in-the blank forms for all pre- and post-judgment matters in divorce cases. A few judges said that, when addressing pleadings problems, they or court staff continue to suggest that counsel be obtained: "If things are really bad, the clerk has a heart-to-heart talk about getting an attorney." In addition, some judges will grant additional time to cure any defects: "For pro se litigants, I will give leeway, and grant reasonable adjournments, in the interests of justice." The latter judge also noted, "But I will not give legal advice nor delay a case inordinately simply because a litigant refuses to get a lawyer." Another judge stated that he always allows one free continuance to litigants whose pleadings are insufficient. Other judges use multiple approaches. One judge noted his court's approach, using a liberality policy, a pretrial conference, and possibly mediation: "We have form complaints and answers for pro se litigants to use; and a local legal services program reviews eviction complaints and sends notice to tenants offering pro se assistance." Interestingly, one judge's comment pertained to a unique "mass" pro se claim situation. In a statewide water rights case in Idaho, the judge (1) developed standard pleading and motion forms for all parties; (2) published a public information brochure; and (3) conducted public informational meetings about the case. Many judges stated that they handle pretrial conferences with self-represented parties no differently than with represented litigants: "I handle these just as I do with attorneys. I try to explain what needs to be done, but I don't give them legal advice." Most judges provide extensive oral explanations to self-represented litigants regarding court procedures. One judge explains "that material must be exchanged or it will not be allowed at trial." Another carefully explains "why they are required to do certain things and how they are to comply generally." Several judges recommended that all proceedings involving self-represented litigants, including pretrials, be conducted on the record, that additional pretrials be conducted as needed to discuss procedure, deadlines, and "how to do things at trial," and that all proceedings be "memorialized in orders drafted by the court." Some judges discuss settlement at pretrials while others either discuss the issue of mediation or, if necessary, take on a mediator's role. Several judges commented that notice generally is a very difficult area in the pro se litigation process. As one judge noted, this is not only a problematic area for self-represented litigants; "I have found that even attorneys have problems with this." To many judges, the notice process is significant and must be carefully monitored: "Make sure they get plenty of notice of hearings"; "I am particularly careful to monitor the pro se party's address and make sure they get plenty of notice of hearings." Most judges responding said they provided notices of hearings through (1) ordinary mail, or (2) mail and a telephone call from a clerk. Notice from some courts include warnings regarding the consequences of noncompliance. One judge notifies self-represented litigants that "failure to appear for any setting will result in the case being dismissed for questionable opinions holding that the development by a judge of court forms constitutes a breach of the court's duty to maintain impartiality.

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NOTICE OFHEARINGS

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want of prosecution." He added: "Many pro se cases are disposed of in this manner as the pro se litigant gives up and does not show up for hearings." Another described his court's form notices that contain "standard warnings probably directed mostly at pro ses...such as 'failure to attend can result in an order being entered against you.'" As with the other stages of litigation, the approaches of the responding judges differed. Some simply follow existing procedures for all cases. Some judges distribute copies of rules and procedures regarding motion practice. Others provide court forms. Others generally provide extensive explanations of the motion hearing process:

Explain what a motion is and what time frames are involved and who must be served and what service consists of. Then when ruling include a background introduction similar to what is often done in writing an appellate opinion.

As to the form of motions, "informality [is] used, where possible. Motions can be handwritten"; "Procedural requirements are released so long as documents are readily legible and substantively sufficient." Oral motions are also permitted by some judges. Only a few of the judges responding to this question said that they relax the application of the rules of evidence: "I relax the rules of evidence a bit so long as it doesn't get too farfetched. The hearsay rule is a particularly difficult concept to get around." One judge described his application of the rules of evidence as "Loose, real loose." Another explained, "I let parties testify on irrelevant issues to a limited extent because often it lets them tell the court why they are upset with the other party and vents their anger. Pro se litigants seem to feel the trial was more fair because of this." Most judges provide self-represented litigants with a detailed explanation of trial procedures, as time permits, and then allow narrative testimony:

Before the trial I briefly explain to the parties that presentation of evidence is done by questions and answers and marking exhibits. I explain what cross-examination is and that they will be allowed to give their story at a later time in the proceeding if they wish. If they are a defendant or a plaintiff, they have to start off by giving their story.

Another tries "to get the litigants into court several times before trial to help them see how things work and assess their skill level."

I swear all witnesses in, including the pro se litigant. I hear the evidence just as I would with attorneys involved. If the pro se litigant testifies, I have him/her make a statement and dispense with questions and answers. If I have two pro ses and a simple case, I swear both in and ask questions of each and sometimes at the same time. Then I give them a chance to tell me what they want.

Many judges described their practice of actively asking questions and making objections during a trial:

I give the pro se greater latitude and on critical issues I may ask questions and make my own objections that normally are made by trial counsel. The court begins the trial by asking extensive questions of each party, under oath; this seems to work well with custody cases, the bulk of our caseload.

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I guide them through the process a bit–making sure that they know they have the right to object to the other party's proffered evidence and nudging them along by asking them if they want X to be marked and they want X to be admitted.

Another judge, however, first asks both sides "if they have any objection to my assisting in questions in proceedings such as default or stipulated divorce actions. If a matter is contested, I do not assist and tell them I cannot. If I am the adjudicator, however, I ask questions for clarification." Some judges go so far as to assist by suggesting "how the evidence sought might properly be presented" and, when necessary, they make an item a court exhibit rather than a plaintiff or defendant exhibit. Stricter rules are applied in jury trials, however. "In court trials it is not difficult to sort out what is admissible and relevant. [A] much greater 'hands off' approach is used when [a] jury is present–to avoid appearance of partiality." One judge said: "I hold a fair amount of bench conferences (sidebars) to eliminate repetition and objectionable evidence." Another noted that, "In a jury trial we can go to sidebar...and I can suggest a rephrasing of the objected-to questions." There are limits, however. As one judge put it: "I give some latitude; however, there comes a point when the objections should be sustained." As for jury selection, one judge said: "I generally ask an attorney to assist the pro se litigant." Referring to criminal cases, another judge stated, "Litigants have shown their willingness to accept assistance of defense attorney when first faced with a panel of jurors." According to one of the judges responding, "customarily most post-trial proceedings, both civil and criminal, are pro se. By then, most parties can't afford an attorney or simply don't want one." As in other stages of litigation, many judges have no special policy for handling self-represented litigants at the post-trial stage, other than holding them to compliance with applicable rules. Judges usually give oral instructions to litigants regarding post-trial requirements. Some judges also reported including the substance of these oral instructions (which one judge called the "threshold legal requirements") in a written, accompanying order. In some courts, model forms or publications that provide post-trial instructions are made available. A videotape was cited by one judge for use by self-represented defendants in the criminal appeals process. Some judges, as they do in other stages of litigation, render direct proactive assistance: "Again, I just give these parties a great deal of slack and assistance (in terms of giving them access to rules and court publications that might be of help)." Several judges explained that court staff also provide assistance, for example, in filing a notice of appeal. If this is handled by the self-represented litigant, "They often file the appeal notice prematurely." Many judges continue to urge pro se's to obtain counsel post trial, or discuss the right of a criminal defendant to appointed counsel if indigent. Most judges said that, in the case of indigents, they will appoint counsel at the post-trial stage if none was already appointed. As one judge who handles felony cases noted, he or she "rarely" has unrepresented defendants "this far into a case."

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While a small number of judges believe no special rules are needed because of an insufficient number of self-represented litigants in their court, there are also some who believe that what is needed instead of new rules is "more time on the part of judges and court staff–time which we frequently don't have." Several judges opposed to special rules suggested instead that existing rules be rewritten in "plain English" for the benefit of self-represented litigants (and everyone else): "Rules everyone can understand would be ideal, but not likely (might take too long to educate some of the lawyers)." Several judges pointed to the need for rules permitting judges to actively assist self-represented litigants. One judge proposed that "The rules should make clear that pro se litigants should not always be held to the same standards as represented parties. The rules should set out special procedural requirements adapted to pro se cases. They should also establish guidelines for judges presiding over pro se cases: e.g., specify what a judge can do to elicit evidence while still remaining in an impartial judicial role." A number of judges suggested a variety of other requirements and approaches. These include: judicial review of pro se pleadings before the start of discovery (e.g., "the right to

refuse to file frivolous motions;" "a special three-judge panel...to deal quickly and effectively with pro se litigants who are bringing groundless claims");

use of required court forms and typewritten pleadings (handwritten pleadings would

be barred); instructional program consisting of "minimum 'orientation' to the court...covering

courtroom etiquette and some basic legal principles and vocabulary" required before case can proceed;

brochure or other procedural information provided, coupled with a requirement that

self-represented litigant execute an acknowledgment of receipt (e.g., "the rule would require a certificate be signed by anyone appearing pro se that they acknowledge they will be bound by the same laws and rules as everyone else and that they agree to be bound by them");

rule requiring minimum amount of pretrial discovery before trial;

discovery procedures that are "straightforward and automatic";

expansion of court-appointed counsel (with the following suggested caveat: "I think

everyone should 'pay' something for their legal counsel, even if on a sliding scale or through community services. You only value what you have a stake in";

a volunteer attorney at the court who could "screen pro se's...and make certain they

understand the impact of their decision"; mandatory mediation; and

judicial education and conferences on pro se litigation (e.g., "a meeting to discuss

other judges' practices so that the best practices could be adapted into some rules or suggestions").

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While most self-represented litigants are in court to address a personal legal matter, some pursue a political agenda. These are often considered by judges to be "pests" or "kooks." One such newly-emerging litigant is the self-styled "constitutionalist." The judges responding to the question asking for their strategies in handling these particular litigants produced numerous suggestions:

In these cases I have had the presence of the sheriff who is ready to place the obstructionist in jail, and my clear explanation to the defendant as to when that power will be utilized has worked. Get the guns before they get in the courtroom; make sure they are willing to accept the same "script" they want to play with; and if they are searching for sense, as opposed to nonsense, be patient and polite; otherwise, guide them firmly to another soap box.

The judges often take a firm approach such as assessing costs against unruly constitutionalists (though one frustrated judge said "assessing costs doesn't help"); announcing a recess in the proceedings to handle a disruptive constitutionalist; or advising them that by living in the state they subject themselves to state authority and that if they fail to answer or produce information needed they will be held in contempt and placed in jail until they decide to cooperate. Others advised colleagues to "Move with some firmness to trial phase to contain harassment, frivolousness, and expense" and "Remain steady at the helm, proceed as close to the same procedure and timing as possible, and have the state remove liens and take legal action for frivolous filings." Most judges, however, said that "extreme patience" and allowing them to "vent" was the best strategy: "I just give them enough time to 'vent' and then politely, but firmly, shut them off"; "Patience and persistence is what it takes." "Know their arguments...keep them focused on the issues in the case and away from political issues." One judge indicated that, "My approach is to have available more time and to meticulously address each issue raised, no matter how far-fetched it may seem at first blush. Usually such litigants have a legal theory which is being misapplied, and one must have the ability to answer those issues from the bench without the necessity of research." However, another concluded, "Convincing them that I must play by the rules because I took an oath to uphold them would be like trying to convince the Pope that he should a Hindu be. All I can do is let them do their rambling, then make a decision based upon the law as I understand it." Judges differ on the manner of ruling on motions or deciding issues raised by constitutionalists. There are those who prefer to take all matters under advisement: "I always take these matters 'under advisement' to avoid litigants rearguing the issues after a decision"; "Let him give his opinion; then rule in writing as to his objections to jurisdiction"; "Do not rule from the bench–take issues under advisement and then promptly rule by written orders." On the other hand, there are those judges who prefer to rule summarily: "The court must be prepared to rule promptly on the barrage of motions brought and to move the case rapidly to hearing on the essential issues." In addition to suggestions on how best to handle self-represented litigants in individual cases, many judges offered recommendations for more systemic programs and procedures, many of which are being tried in one jurisdiction or another, as indicated at pages 73 to 104. These recommendations included: Instructional programs on how to draft and file a complaint or answer, the necessity

for complying with court orders, applicable legal theories, the elements of claims and

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defenses, and how to question witnesses–offered periodically by an attorney or on a videotape;

Pamphlets and brochures explaining court procedures and relevant substantive law,

checklists of steps to be taken in any given type of case, and court-approved forms (in checklist form or otherwise);

Use of a paralegal to assist self-represented litigants by putting pleadings in proper

form, informing them how to subpoena witness or even helping to screen "for frivolous or inappropriate matters";

Use of a staff attorney as a case manager, screener and advice-provider, and as

someone to "persuade pro se litigants to retain counsel or allow court-appointed counsel to represent them";

Development of special "short form" rules of procedure, evidence, and pleading,

accompanied by an acknowledgment form that the self-represented litigant "must read and sign off on before filing [a] case";

Establishment of a multipurpose justice center with a range of functions and

resources; Creation of a multidoor courthouse approach, i.e., triage cases to appropriate

alternative forums where appropriate, or appoint pro bono counsel "when really necessary"; and

Expansion of legal aid programs.

Finally, several judges reiterated the need for formal judicial guidance regarding the manner of handling pro se litigation. Their ideal program would include "formal rules of procedure for dealing with pro se litigants." New rules and judicial training programs, they note, are needed to provide guidance to judges on techniques for handling specific types of pro se cases.

I support your work. Attorneys and often judges view pro ses as an annoyance. While I agree that they can make the job more difficult, it is very important that we accommodate these folks. Legal representation is very expensive and not justified in some cases, yet litigants should still get their day in court. The legal system does a very poor job of accommodating these problems. Most of the pro se litigants have been honest, well-intentioned people who cannot afford an attorney. We should simplify our procedures in virtually all cases to reduce the costs of attorneys for everyone.

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RESOURCES FOR MANAGEMENT OF SELF-

REPRESENTED LITIGANTS

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THE IMPORTANCE OF JUDICIAL LEADERSHIP AND COMMITMENT

As with other major court endeavors, judicial leadership and commitment are essential to launch and sustain a program designed to aid self-represented litigants, whether the scope is narrow or broad. No matter how imaginative the approach, if the judges of the court do not support the initiative it will have little hope of success. There is increasing evidence, however, that judges will support well-conceived programs that hold promise of enabling more effective handling of cases involving pro se litigants. The major initiatives now underway in several states and a number of trial courts have received strong support from the judiciary, and judges have been integrally involved in helping to design pro se assistance programs. There are at least three strong reasons why judges should support the establishment of pro se assistance programs. First, as discussed elsewhere in this guidebook, there is a solid constitutional basis for providing basic services to the self represented. Second, from the perspective of effective court system performance and sound utilization of scarce judicial resources, provision of basic assistance to self-represented litigants makes sense. At a minimum, these individuals need materials that enable them to gain a basic understanding of the court process and to help themselves. Judges can function much more effectively in the courtroom when all of the parties to a case have at least a rudimentary understanding of the process. Third, there is a strong public interest in access to the courts for everyone who has a nonfrivolous claim or defense–whether represented by a lawyer or not. Reflecting these perspectives, the Trial Court Performance Standards place strong emphasis on public access to the courts.148 The Standards, developed by a 1990 commission composed of judges, court managers, and academics, is a set of standards by which courts may determine the quality of their performance. It is the product of balancing the efficiency needs of the court with individual rights. The document has direct relevance to pro se litigation. For example, Standard 1 states that "Trial courts should be open and accessible.... Accessibility is required not only for those who are guided by an attorney but also for all litigants.... (Commentary). Standard 1.3 provides that "All who appear before the court are given the opportunity to participate effectively without undue hardship or inconvenience." And Standard 1.4 states that "Judges and other trial court personnel are courteous and responsive to the public and accord respect to all with whom they come into contact." According to a commentary, this is particularly important "in the understanding shown and assistance offered by court personnel to...those unfamiliar with the trial court and its procedures." Standard 1.5 provides that "The costs of access to the trial court's proceedings and records–whether measured in terms of money, time or the procedures that must be followed–are fair, reasonable, and affordable." Standard 5.1 states that "The trial court and the justice it delivers are perceived by the public as accessible" and "A trial court not only should be accessible to those who need its services, but it also should be so perceived by those who may need its services in the future" (Commentary).

148. TRIAL COURT PERFORMANCE STANDARDS WITH COMMENTARY (Washington, DC: Bureau of Justice Assistance, 1990).

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Courts should consider these performance criteria in the context of deliberations regarding whether or not to develop pro se assistance programs. It would be difficult to envision a court that seeks to evaluate itself against these standards which does not adopt some form of basic assistance program for self-represented litigants. Pro se assistance programs should gain judicial support if they enable meaningful public access to the courts, help litigants use the courts efficiently and responsibly, and reduce the time and effort that judges and staff need to devote to assist them through the court process.

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BAR INVOLVEMENT

The organized bar can play a key role in development of effective pro se assistance programs. It is most likely to do so in jurisdictions where court system leaders have identified the need for such programs and have made clear not only their own commitment to the development of effective programs, but also their sense that the bar must play a key role in the design and implementation of the programs. In fact, although some of the court managers who responded to the AJS/JMI survey indicated that they felt bar resistance was an obstacle to establishing programs and services for self-represented litigants, state and local bar associations have played key roles in the development of the pro se assistance programs in Maryland; Ventura County, California; Albuquerque; Maricopa County, Arizona; Hennepin County, Minnesota, and elsewhere. Lawyers serve as volunteer instructors in clinics, provide legal services on a pro bono or reduced-cost basis, supervise the work of law students and paralegals as they work with pro se clients, and are available to provide "unbundled" legal services in some circumstances. In this regard, it should be noted that bar involvement has not been limited only to the pro se programs offering services to indigent litigants; generally the services of bar members have been available to all litigants involved in the program. Bar involvement in pro se programs is valuable for several reasons. First, it reduces the pressure on court clerks and staff to respond to questions that may involve legal issues, and largely eliminates concerns about unauthorized practice of law on the part of court staff. Second, lawyers can provide needed legal expertise to program clients. Third, it helps to educate the bar about the business of the courts and the pressures faced by judges and staff, while at the same time enabling the bar to provide valuable public service. Fourth, it fosters collaboration between the court and the bar that can carry over to other areas in which they have mutual interests in improving service to the public. Lawyers are officers of the court and, as such, can be of great assistance as courts seek to carry out the constitutional mandate to afford every litigant meaningful access to the court. As is true in many areas of court operations, following a strategy of cooperation and consultation with the bar should prove to be beneficial as courts seek to fashion effective programmatic responses to the challenges posed by an increasing volume of cases involving self-represented litigants.

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RESPONDING TO THE CHALLENGES: COURT-INITIATED PROGRAMS AND SERVICES

Courts have responded to the challenges posed by the upsurge in pro se litigation in a wide variety of ways. Some, of course, have done nothing, or have simply continued to follow the time-honored policy of having staff decline to provide assistance on the grounds that they can't provide legal advice. When courts have decided to provide some assistance to self represented litigants, they have followed one of several different paths and sometimes have employed a combination of strategies. At one end of the spectrum, there are minimal programs that provide simplified forms, explanatory brochures or instruction sheets, and perhaps very limited staff assistance in selecting the appropriate form and completing it. Probate courts, in particular, have pioneered this approach to aiding the self represented. At the other end of the spectrum is the hands-on or full-service approach. In addition to furnishing forms and instructions, these programs may provide staff assistance to individuals in the completion and filing of court papers, organize clinics to educate pro se litigants about court processes, and enlist the assistance of the organized bar in making legal services available at little or no cost to the litigants. While the availability of funds and staff are important considerations, a court's choices about what services to offer may also reflect one of several competing philosophies about how best to assist the pro se litigant. For example, some courts emphasize self-help and self-service. The Superior Court of Maricopa County, in Phoenix, Arizona, (see page 73) is probably the leading proponent of this strategy. The idea is to empower individuals to take charge of their cases and bring them to a conclusion with a minimum of direct guidance or assistance from court staff. The Maricopa County court has set up a self-service center which has packets of simplified forms and instructions, in plain English, on how to complete and file the forms. Other courts have installed kiosks–sometimes located in remote locations such as public libraries or shopping centers–which contain computer programs that guide individuals through the preparation of various types of court forms using a touch-screen technology. On the other hand, some courts have concluded that there are many self-represented litigants who need more assistance than simply being pointed in the right direction and given a set of forms and instructions. These courts not only arrange for assistance in the preparation of court papers, they may also forge links with bar associations and law schools to sponsor educational clinics and provide access to pro bono or reduced fee legal services. The primary rationale for this strategy is that the investment of time and effort at the beginning of a legal process will produce much greater savings in judicial and staff time at later stages. The survey of judges makes it clear that many judges experience great difficulty when dealing with pro se litigants in the courtroom. Some of these problems undoubtedly stem from incomplete or inaccurate filings, lack of understanding of court procedures, and other factors that could be dealt with quickly and easily at the initial stages of a case. Courts that provide a range of services up front hope to reduce or eliminate these problems and make the process smoother for the litigant and the court alike. Courts can, of course, combine more than one approach in providing services to pro se

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litigants. It is feasible, for example, to have a self-service center for litigants who can take advantage of it and also to have a range of direct services such as clinics and access to pro bono legal advice for those who could not function in court without such assistance. While the range of specific services is broad, they will generally fall into one of the following six categories or a combination of them: The easiest service for a court to provide is simply to make available the basic forms that an individual needs to initiate or participate in a legal proceeding–for example, forms for filing a complaint or answer, or for requesting court action such as issuance of an order changing the amount of child support. Many courts do this, and often accompany the forms with instructions about how to complete the form, how to serve it on another party (if service is necessary), and when and how to file it with the court. Some courts, such as the Denver District Court (see page 84) have gone further and taken steps to ensure that both the forms and the instructions are written in plain English. Another step toward making needed forms and instructions readily accessible is to use modern computer technology to make them available over the Internet or through use of touch-screen technology at kiosks located conveniently for potential users. The QuickCourt project (see page 76) now underway in Arizona and Utah is employing kiosks to enable court users to rapidly obtain the necessary forms and instructions for legal proceedings in which litigants often represent themselves. Courts have increasingly been taking initiatives to prepare brochures or pamphlets that explain in clear English (and sometimes in other languages commonly used by residents of the jurisdiction) how particular types of cases are handled. As Internet technology becomes increasingly used in courts, an obvious early step is to put the text of explanatory brochures on a Web page, easily accessible by court users who want to know more about the court or about what happens in a particular type of legal proceeding. Several courts have recently done this. For example, the Florida Supreme Court's Access Initiative (see page 90) is pioneering the use of the Internet for this purpose as well as for providing court forms and instructions. Another approach uses video technology, with the court making short videos that explain how the court process works and sometimes guiding a prospective litigant through the steps necessary to prepare and file a court document. The Family Division of the Superior Court in Essex County, New Jersey (see page 96), has prepared video presentations on filing custody/visitation, child support, and domestic violence complaints. While other approaches may also be developed, these forms of assistance are fundamental and cost very little. They can easily be implemented. Court staff members provide assistance to pro se litigants in a variety of ways, probably most commonly through direct responses to requests for information that are made over the telephone or at the counter of the clerk's office. Some courts have gone considerably further than simply providing information; they have developed programs that provide for direct staff assistance to self-reprresented litigants. For example, the Pro Se Legal Services Unit in the Family Court in Fort Lauderdale, Florida (see page 86), has staff attorneys who provide assistance and advice to unrepresented parties on available legal remedies for specific problems, proper forms to use, filing requirements, and court procedures. The intake attorneys do not represent the litigants in their individual cases, but they do facilitate access to the legal process and provide needed information about how the process works.

COURT FORMS ANDINSTRUCTIONS

EXPLANATORYMATERIALS:BROCHURES,

PAMPHLETS, ANDVIDEOS

STAFF ASSISTANCE

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In Albuquerque, New Mexico, a Pro Se Services Office has been set up (see page 98), staffed by a paralegal. When a self-represented litigant asks for assistance at the clerk's office, the clerk at the counter directs the litigant to the pro se office. The paralegal will try to provide basic assistance with information and forms, and if necessary will arrange for an appointment with a volunteer lawyer whose services are available through a cooperative program with the bar association. In New York City's Family Court (see page 100), a court assistant interviews litigants and helps prepare petitions based on those interviews. In the King County Superior Court in Seattle (see page 102), a family law facilitator provides information on family law court actions, offers information on forms, and reviews completed forms. Some courts have initiated programs designed to educate pro se litigants about the court process, while also making it possible for the litigants to have access to pro bono legal services. The Family Law Pro Per Clinic in Ventura, California (see page 81), is built around a three-hour program held at the courthouse one evening a week. The clinic begins with an explanation of how the court handles matters involving families, what forms need to be prepared for particular types of proceedings (e.g., divorce, custody, child support), what to do when the court calls their case, and how cases move through the court system. Self-help binders, containing forms and instructions, are available at the clinic, and can be used by clinic clients. If a client can complete the necessary forms that evening, a court clerk will examine them for completeness and file them the same evening. If a client needs assistance, volunteer lawyers are available to answer questions and help with forms. Complementing the work of the clinic, the court arranges its schedule so that one day a week, family law calendars are devoted to pro per cases. On this day, a volunteer family law attorney, a law clerk, and the court's document examiner are located near the courtrooms to assist litigants when asked to do so by the court. The Los Angeles Superior Court branch in Torrance operates a domestic violence clinic (see page 79) in which volunteers assist self-represented litigants in filling out temporary restraining orders and civil harassment orders. The Pro Se Legal Services Unit in Fort Lauderdale also conducts clinics, holding classes on a different area of family law each day of the week (see page 86). Many bar associations and legal services organizations have long had programs to provide assistance to individuals who have legal problems (including problems or issues that will require court proceedings) but cannot afford a lawyer. As the volume of cases involving pro se litigants has increased sharply in recent years, some courts have begun working with bar groups and legal services organizations on collaborative programs explicitly designed to address the needs of pro se litigants. The Hennepin County District Court in Minneapolis, Minnesota (see page 94), has been a leader in the development of such collaborative programs, working with the Hennepin County Bar Association on several initiatives. The Legal Access Point pilot project works in conjunction with the court's Self Help Service Center, and is designed for individuals who cannot afford going-rate attorney fees but need initial guidance as they address a problem involving legal issues. Judges and court staff can refer pro se litigants to the program for a 15-minute consultation and assessment of their legal situation. Depending on the situation, the volunteer lawyers staffing the program may arrange for further assistance provided on a pro bono or reduced fee basis. In Maryland, the Administrative Office of the Courts has partnered with the Women's Law Center to establish a statewide toll-free telephone service to respond to pro se inquiries (see page 92). The lines are staffed by experienced family law attorneys.

LEGAL CLINICS

PRO BONO ANDREDUCED-COST

LEGAL SERVICES

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The comprehensive Self-Service Center developed by the Superior Court of Maricopa County is by far the best known program of its kind in the United States (see page 73). The center has two physical locations (at the court building in downtown Phoenix and at a satellite court location in Mesa), and also makes extensive use of automation technologies including an automated telephone system, a computer bulletin board system, and the Internet. Core services available through the center include provision of court forms, instructions, and educational materials about court processes. The Self-Service Center also maintains a data bank of lawyers willing to work with litigants on a task-by-task basis ("unbundled legal services") and a data bank of mediators who can help resolve disputes. Additionally, a volunteer lawyer is available at the Self-Service Center in the main courthouse, to provide short consultation on specific questions at a reduced fee. Development of the Self-Service Center has been a long-term project of the Superior Court, which has worked collaboratively with the state and county bar associations, as well as with a large number of public and private agencies interested in issues related to self-representation in court proceedings. The Superior Court has also sponsored a number of workshops on this topic, and in doing so has helped stimulate interest throughout the country in issues involving pro se litigants. One result has been the development of self-help programs in other courts, such as one in the Twelfth Judicial Circuit's Family Division in Sarasota, Florida (see page 88). None of the other programs, however, are as comprehensive as the Maricopa Self-Service Center, but some of the key features–including easy accessibility to forms and instructions, provision of brochures and other educational materials, and information about the availability of lawyers for consultation about specific questions–are being incorporated in programs now underway or being developed in courts in Minnesota, Wisconsin, and Florida.

SELF-HELPCENTERS

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ILLUSTRATIVE PRO SE ASSISTANCE PROGRAMS AND SERVICES

The descriptions of pro se assistance programs that follow should provide ideas and useful information to judges, court managers, bar leaders, and others interested in improving the handling of cases involving self-represented litigants. The programs are listed alphabetically by state. They vary considerably in the types of cases for which they provide services (though all of them provide some assistance with domestic relations proceedings), the range of services and materials provided, the number of staff involved, the extent to which volunteers are used, the types of staff and volunteer expertise available, the number of persons served in a month or year, the extent to which computer technology is used, and the costs of the program. Only two of the programs (the Superior Court of Maricopa County Self-Service Center and the Ventura Family Law Pro Per Clinic) have been thoroughly evaluated and, at this point, it is not possible to undertake any comparative assessment of the other approaches. For further information about any of the programs, readers are invited to get in touch with the contact persons listed with each program description. While one or more of the programs described in the following pages may provide ideas that can be adapted in a jurisdiction that wants to improve its pro se assistance policies, court and bar leaders who are interested in developing a pro se assistance program will undoubtedly find it helpful to begin with an assessment of local needs and conditions. Program design, in other words, should not simply be a replication of an existing program in another court; rather it should be tailored to local circumstances and should be based on the best obtainable information derived from multiple sources. Representatives of all stakeholders—including the bench, court staff, the bar, and litigants—should participate in the design, implementation, and any subsequent modification of such programs.

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SELF-SERVICE CENTER (SUPERIOR COURT OF MARICOPA COUNTY, PHOENIX, ARIZONA)

To help self-represented litigants help themselves with court proceedings by: Providing court services for those who need it, without regard to their ability to retain an

attorney for representation. Networking court services with community services that complement traditional judicial

action Developing an integrated delivery network that has the following components: court

information, court forms and instructions, linkages to attorneys for legal advice, and linkages to community-based dispute resolution services. Achieving a higher standard of representation for the self-represented litigant who comes

before a judicial officer. The self-represented litigant can choose from the following areas of law: Domestic Relations (divorce, paternity, child custody, child support, child visitation,

enforcements, modifications, domestic violence) Probate (guardianship, conservatorship, transfer of property when a person dies)

Access to court forms, instructions, and information. Access to court information and services through an automated information telephone

system. Access on-line to court computer information systems through the Internet. Access to listings of attorneys and mediators. Access to state and local social services.

The Maricopa County Self-Service Center can be categorized as a "program," not a place. It encompasses far more than its two physical locations (at the Superior Court in downtown Phoenix and at a satellite office in Mesa). The Self-Service Center provides many services to the public. Individuals are directed to the Self-Service Center for court forms, instructions, and educational materials. In addition, the court keeps a data bank or roster of lawyers who are willing to work with the litigant on a task-by-task basis and a data bank of mediators who may help a litigant with dispute resolution services. These services are delivered to the public by using a combination of court facilities and automation technologies, including an automated telephone system (602-506-SELF) and the Internet, which has all 400+ court forms on-line (http://www.maricopa.gov/supcrt/ssc/sschome.html). In the Center's next phase of development, a grant has been obtained from the State Justice Institute to explore the use of interactive technology over the Internet. Approximately 400 people per day use the Self-Service Center's two court locations. The telephone system handles more than 4,000 calls per week, and there are more than 200 hits each week on the Internet site.

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Eight full-time court staff members are involved in this program: an assistant administrator who runs the day-to-day operations; a director of legal development (an attorney who manages all the legal procedures/products); an administrative assistant who provides support services; and five customer service advisors (senior-level clerical staff who are experienced with court procedures). Start-up costs for initial design and development were $813,000, with the largest amount coming from a construction bond. The Arizona Supreme Court and State Justice Institute provided grant funds; and telephone/Internet services, staff salaries, and in-kind services made up the balance. The current yearly budget is approximately $300,000. Ongoing operational costs are absorbed by the court. Expenditures include $120,000 per year in printing costs for the forms and instructions that are provided free to the pro se litigant (350,000 pieces of paper per month). Discussion is underway to pass costs of printing on to the litigants. It is estimated that this cost will be nominal to the user, or $1 per process step, which should average out to $2-$4 per person. This program was made possible through the assistance and continuing cooperation of: Clerk of Court for Superior Court of Arizona in Maricopa County Administrative Office of the Courts, Arizona Supreme Court Arizona Department of Economic Security, Division of Child Support Enforcement State Bar of Arizona Maricopa County Bar Association Community Legal Services Community Information and Referral Services Business Communication Technology, Maricopa County Domestic Violence Community

The program was recently evaluated by an outside consultant, with funding from the State Justice Institute. Exit questionnaires were administered over the period of November 4-22, 1996 at both physical locations. Users gave staff high marks for being helpful, well informed, and friendly, and for providing assistance within a reasonable time. More than 80 percent of the respondents in both locations indicated they believed they had obtained what they had come for and were leaving with information needed to proceed with their case. Ninety percent of respondents found it "somewhat" or "very" easy to use the Self-Service Center. Additional findings from the survey include: Median household income of Self-Service Center customers was between $25,000 and

$40,000; and 60 percent of this number had some college experience. There was almost a 30 percent reduction in number of inquiries from self-represented

litigants throughout the court. Judges' staff experienced a 60 percent reduction. The Center appears to be changing the need for litigants to go to multiple areas of the court to take care of their legal issues.

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Judicial officers in the Domestic Relations and Probate departments of the court enthusiastically support the center. Comments include: "Improvement in the level of preparation now present compared to the past," and "Litigants appear to be less 'stressed' now that they have a better understanding of the process." Their suggested areas of improvement included further simplification of the language in the forms and instructions and the development of videos to explain how to fill out the paperwork or what to expect in a courtroom proceeding.

The evaluation did not attempt to quantify savings to the court in terms of dollars. However, court staff members report a marked drop-off in the number of inquiries made to judges and their staffs. Bob James Assistant Administrator Self-Service Center Superior Court of Arizona in Maricopa County 101 W. Jefferson, 4th Floor Phoenix, Arizona 85003 (602) 506-6314 FAX (602) 506-6050 E-mail address: bjames@smtpgw.maricopa.gov Source: AJS/JMI survey; telephone interview; Maricopa County brochure: Self-Service Center (1996); memorandum from Maureen Solomon to Bob James/Noreen Sharp: Analysis of Self-Service Center Exit Survey Questionnaires (1997); report by Maricopa County Superior Court: Self-Service Center Final Report for the State Justice Institute (April 1997).

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QUICKCOURT (ARIZONA AND UTAH)

Arizona: To provide a way to make court forms and procedures more accessible to the public through the use of touch-screen technology. The project is geared to those who cannot afford an attorney or who want to do it themselves. Utah: To provide a method for the members of the public who cannot afford an attorney to obtain and fill out court forms at a reasonable cost. Arizona: Pro se litigants most frequently request the following forms (rank ordered): divorce, name changes, and child support modifications. Both blank forms and completed forms are sold. General information on the Arizona judicial system is also accessible on the system at no cost. Utah: Uncontested divorce and landlord/tenant forms are most frequently requested. All forms cost $10. In addition, the screens provide free information on alternative dispute resolution and small claims. Computer-prompt-completed forms that can be filed in court

Instructions to complete the forms

Blank forms

General court information

A self-standing kiosk generates computer-prompt-completed forms for litigants to file in court, instructions to complete the forms, and general information. This touch-screen technology is similar to an ATM machine. There is no keyboard, but a series of screens request answers to questions and puts responses into a programmed court form. An audio system walks the user through the chosen form, and an on-screen narrator prompts (in either English or Spanish) to review for correctness. Users interact with the program by touching the monitor screen. The result is a printed document that can be used in a variety of court proceedings. Changes in text or forms must be done through the vendor, with variable time frames for the text and audio changes. Arizona currently has 25 kiosks across the state. Utah has a total of five kiosks in five cities. They are located in clerks' offices, public libraries, and community colleges. Arizona is considering increasing the number of kiosks throughout the state, and is currently working on a marketing plan to familiarize the public with this service. In addition to the kiosks in Arizona and Utah, this technology is also being used in several courts in California, Colorado, and Florida. Minimal staffing is required, although both the vendor and the court provide needed assistance for the program. The vendor maintains the networked kiosk system through a local contractor if any problems arise. Each state has a project coordinator who tracks the service/ usage.

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User Fees: In Arizona, the cost to the user ranges from $0 to $20 for generated forms. In Utah, the cost is $10. The kiosks will take debit cards, credit cards, and cash. Start-Up Costs: Refer to contacts listed below for additional information about costs and lease arrangements with the vendor, North Communications. This is a good example of a public-private partnership in a court program designed to meet the needs of the pro se litigant. In this instance, the court doesn't own the equipment; the vendor does. User fees go back to the vendor to maintain and support the system. Arizona: The program, as it exists today, has not been evaluated. However, a pilot test was initially conducted through a grant from the State Justice Institute, using three kiosks. Interviews with users showed: (1) they liked the on-screen keyboard and thought instructions were good and simple to follow; (2) they liked the ability to repeat items they had difficulty with; and (3) they said that the kiosk often offered information on procedures or legal issues that court clerks could or would not provide. There were no problems noted regarding accuracy, processing or acceptance by judges and commissioners. Currently, the vendor provides Arizona with statistics on number and types of transactions. For the month of July 1997, 4,565 people had accessed the current 25 kiosks throughout the state. Utah: A formal evaluation has not been conducted. However, Utah has programmed a voluntary customer survey into the touch screen after a transaction has been completed, and those results are also provided by the vendor. For the month ending June 1997, users (a total of 1,190) responded to the following questions: "Did you find the information you were looking for?"

Yes 50% (n=86) No 50% (n=85) "Was the system easy to use?"

Yes 67% (n=95) No 33% (n=47) "Did you find the legal terms easy to understand?"

Yes 61% (n=78) No 39% (n=50) "Would you recommend this system to your family and friends?"

Yes 71% (n=60) No 29% (n=25) Jeannie Lynch Heather Fisher Court Management Specialist Information Services Arizona Supreme Court Office of State Court Administrator Administrative Office of the Courts 230 South 500 East, Suite 300 1501 West Washington, Suite 410 Salt Lake City, Utah 84102 Phoenix, Arizona 85007-3327 (801) 578-3831 FAX (801)578-3859 (602) 542-9554 FAX (602) 542-9480

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Source: AJS/JMI survey; telephone interviews (Agnes Felton and Dennis Metrick, Arizona; Heather Fisher, Utah); paper: Executive Summary: SJI Arizona QuickCourt Evaluation; paper, Applying Kiosk Technology to Courts–The Arizona QuickCourt System (1996); report from North Communications: Utah User Response Statistics Summary (July 16, 1997).

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DOMESTIC VIOLENCE CLINIC (LOS ANGELES SUPERIOR COURT BRANCH OFFICE,

TORRANCE, CALIFORNIA)

To assist victims of domestic violence or harassment in completing forms for obtaining temporary restraining orders. Pro se litigants representing themselves–regardless of financial status. Approximately 75-80 percent of those coming into the clinic are women. There are also some juveniles who use the clinic's services. Documents prepared by the clinic are California Judicial Council forms. They are also available on computer in Legal Solutions. Forms may be handwritten or typed. The court also provides pamphlets that have information about shelters and community help hotlines. The Domestic Violence Clinic is located in Room 545 of the Torrance Courthouse. It is staffed by volunteers and interns from local colleges who assist pro se litigants in filling out temporary restraining orders and civil harassment orders for the court. Legal advice is not given at the clinic. During intake, the volunteer or intern will: (1) screen for eligibility in jurisdiction; (2) ask if there are any other cases pending, e.g. paternity or divorce, which would disqualify the person for assistance; and (3) fill out an information sheet based on questions to the respondent, resulting in a court-ready TRO. The forms are then reviewed by a judicial assistant (clerk to the judge) to make sure nothing is missed, such as dates and specific instances. The completed document is submitted to the judge, who then will either grant or deny the application. Hours of operation are 8:30 a.m. to 3:30 p.m., Monday through Friday. Oversight for the clinic is provided by a court staff assistant/volunteer coordinator. The clinic is staffed with 10 to 14 volunteers/interns per month. Volunteers work as little as four hours per week to more than 20 hours per week. Volunteers are referred to the program through senior citizens' centers, newspaper ads, and local colleges who approve the program for internships in the areas of law or sociology. Each volunteer receives at least two hours of individualized training from the court staff assistant.

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This is a court-operated program that has no source of income. The furniture and computer were all donated by various people and organizations. The updates for Legal Solutions software are donated by a law firm. Volunteers come from the community and from local colleges. They run the program, which was started six years ago by the Los Angeles Superior Court Clerk's office. This program has not been evaluated. Donna Peale Staff Assistant/Volunteer Coordinator Torrance Superior Court Southwest District 825 Maple Avenue, Room 100 Torrance, California 90503 (310) 222-8809 FAX (310) 782-7326 Source: AJS/JMI survey; telephone interview and correspondence with Donna Peale.

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FAMILY LAW PRO PER CLINIC

(SUPERIOR AND MUNICIPAL COURTS, VENTURA, CALIFORNIA)

To provide individual legal assistance and advice to unrepresented litigants by offering help in completing and understanding court forms and procedures. Unrepresented litigants (without regard to income) involved in family proceedings, including dissolution, child support, child custody, visitation proceedings, restraining orders, paternity, and fee waivers. Brochures describing court procedures and remedies

Self-help sample forms' binders (i.e., petition for dissolution, legal separation and nullity,

petition for summary dissolution, orders to show cause, domestic violence and harassment restraining orders, etc.)

Court forms

Counter staff assistance (including bilingual)

Pro bono assistance

Child and spousal support calculations

Assistance with orders after hearings

Referrals to low-cost and no-cost services in the community

Services at this evening clinic are provided at no cost on a once-a-week basis. Each sign-in clinic is capped at 75 participants, although the demand is often greater than slots in the program. The clinic begins with a mandatory orientation for all participants to explain how the family court works, what forms need to be prepared, what to do when the court calls their case, and what happens as the case goes through the system. During the orientation, an attorney uses overhead transparencies to provide line-by-line assistance in completing the forms and in answering simple legal questions. An adjacent children's waiting room is staffed by volunteers during clinic hours so parents can give their undivided attention to the clinic's staff. An intake form is completed by each client upon arrival at the clinic and is used to determine the proper referral for services. Volunteers experienced in family law, i.e., an attorney, paralegal, law clerk, or law student "triage" each intake form, and they are sorted into categories: petition for dissolution, petition to establish paternity, an order to show cause to establish or modify custody or support, domestic violence and temporary restraining order, district attorney child support assistance, and individual assistance from a lawyer.

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Clients are then called in the order in which they checked in under one of those categories. If they feel they can complete their forms without additional assistance, they are directed to the self-help binders containing instructions and sample forms. Before clients leave the clinic, a filing clerk examines pleadings for completeness and files them the same night without the need for a return visit to the court. One day a week, the family law court calendars are devoted to pro per litigants. In a hands-on approach, a volunteer family law attorney, a law clerk, and the court's document examiner are located near the courtrooms that day to assist litigants as requested by the court. A second afternoon clinic has recently been added at a branch court in Simi Valley which currently is seeing 15 people per week. This clinic is also experiencing a weekly increase in usage. The court employs a family law facilitator, a permanent position funded by the state. The attorney hired for this position has responsibility for the clinic operation and also provides support to the family law judges. This program is comprised of volunteers, including court staff, family law attorneys, paralegals, legal secretaries, and law students. Volunteers provide assistance with pre- and postfiling information about court procedures. Representatives from the district attorney's Child Support Division and Victim Services Division are available for consultation and help with issues of support and domestic violence. Costs for this program come out of the court's operating budget; no new budget funds were allocated. Two positions were reallocated: one clerical position became a document examiner and one law clerk became program intake staff. In addition, one-half clerical staff assistance has been devoted to the project. The two-and-one-half reallocated positions and related supplies cost $87,089. This program is a good example of community partnerships with the Ventura Family Law Bar, Pepperdine University School of Law, and Ventura College of Law. The Bar recruited volunteer attorneys, paralegals, and legal secretaries for the clinic and to draft a volunteer handbook. All attorney services are donated to the clinic pro bono. The law schools provide students who are teamed with experienced family law attorneys. Evaluation (from Development, Implementation and Evaluation of a Family Law Self-Help Clinic, May 1997, by Jeanne Caughell, Deputy Executive Officer, Ventura County Superior and Municipal Courts) This in-house evaluation was based on 342 exit survey forms and 1,782 clinic intake forms between September 10, 1996 and February 25, 1997. Participants overwhelmingly indicated a high level of satisfaction with assistance provided at the clinic. A total of 325 individuals (95 percent) stated the services were very helpful; 15 felt they were somewhat helpful; and one stated the clinic was not helpful because he/she was not seen that evening and was asked to return to a subsequent clinic. The volunteer attorneys, paralegals, law students, and clerks were perceived to be caring individuals who were impartial and supportive. Respondents to the survey repeatedly praised the volunteers who were willing to spend many hours helping parties resolve their concerns. The report also finds that: "Pro per litigants are better prepared when they arrive in the

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courtroom; are better able to communicate with the court; have a better understanding of the process; and are able to move through the process more quickly. As a result, the courts are more understandable and accessible to the litigants, thereby inspiring public trust and confidence." Judge John R. Smiley, a Ventura family law judge, says, "The programs are unclogging the system, lowering the level of hostility, and humanizing an adversarial process." Florence Prushan Assistant Executive Officer Ventura County Superior and Municipal Courts 800 South Victoria Avenue P. O. Box 6489 Ventura, California 93006-6489 (805) 654-2965 FAX (805) 654-5110 Source: AJS/JMI survey; telephone interview; report prepared by Jeanne Caughell, Ventura County Superior and Municipal Courts: Development, Implementation and Evaluation of a Family Law Self-Help Clinic (1997).

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INFORMATION AND REFERRAL OFFICE (DENVER DISTRICT COURT, DENVER, COLORADO)

To alleviate the workload for the clerk's office staff by providing an outside resource for

self-represented litigants who have legal questions or concerns on domestic relations issues.

To alleviate the burden of work on the judges in the courtroom.

To provide quality information to the pro se litigant in the domestic relations area.

Any self-represented litigant (regardless of income) seeking assistance in the areas of divorce, custody, child support, and related family law matters. Packets of forms with instructions

Assistance with filling out forms

Video on "How to Handle a Divorce" (being made)

Community referrals

Pro bono attorney assistance, available three to four days per week

The pro se litigant is directed to this one-person office for assistance and instructions in completing court forms, which are for sale at the referral office. Hours are 10 a.m. to 4 p.m., five days a week. Information is also given over the telephone. User-friendly forms have been revised by a court judicial officer, and plans are underway to simplify the forms even further. The dissolution packets of information are also available in Spanish. Pro bono legal assistance is also provided three to four days a week for walk-in litigants. There are two part-time paralegal positions in the referral office. Office is closed during lunch hour. Approximately $30,000 per year in salaries, supplies, and equipment. This amount is covered by the fees collected for forms and instructions, which range from $5 (child support decree changes) to $30 (complex divorce).

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This is solely a court-based initiative. The program has not been evaluated. Cindy Epstein Director Information and Referral Office Denver District Court Room 280A City-County Building 1437 Bannock Street Denver, Colorado 80202 (303) 640-2402 FAX (303) 640-2089 Source: AJS/JMI survey (Miles Flesche); telephone interviews (Miles Flesche and Cindy Epstein).

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PRO SE LEGAL SERVICES UNIT (17TH JUDICIAL CIRCUIT COURT, FAMILY DIVISION,

FT. LAUDERDALE, FLORIDA)

To assist the pro se litigant with meaningful access to the court, thereby lessening the amount of confusion and frustration on the public's part. Pro se litigants representing themselves in the area of domestic relations: Dissolution

Paternity

Child support

Custody and visitation issues

Technical assistance and information on available remedies

Instruction on court processes

Proper forms and direction in proper completion of forms

Five licensed staff attorneys provide assistance and advice on available legal remedies, proper forms, documentation, filing and court procedures. Litigants are advised that the intake attorneys do not represent them in their individual case and are present solely to assist in providing access to the legal process. All assistance is given on a one-to-one basis. Referral for pro se services comes from Legal Aid, the clerk's office, the judiciary, private counsel, and social services. In addition, walk-in services are provided on a first-come, first-serve basis, based upon availability of legal staff. Additional appointments are set as necessary. Pro se litigants seeking assistance are first scheduled for a screening appointment where an attorney assists the litigant in identifying the proper course of action and provides the proper documents. A follow-up appointment is set with the litigant to review the documents to make sure they are complete and to provide procedural direction. Foreign language interpreters are available on an as-needed basis. Family Court Pro Se Services staff persons are also available to notarize the completed petition and accompanying documents, enabling the petitioners to file the same day they come to court. Attorneys also assist domestic violence injunction petitioners. Eight full-time court staff members, including five staff attorneys.

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$400,000 per year for salaries, equipment, supplies, space, etc. The majority of funds come from the county. Approximately 25 percent is from state funds. Bar members have been involved in committee work on a state level as well as on a local level. The program has not been evaluated. Currently, demand for this service outstrips available resources. The court sees an average of 1,300 self-represented litigants per month. Thomas A. Genung Family Court Administrator Office of the Court Administrator 17th Judicial Circuit 201 SE 6th Street, Suite 565 Ft. Lauderdale, Florida 33301 (954) 831-6782 FAX (954) 831-6061 Source: AJS/JMI survey; informational booklet: Seventeenth Judicial Circuit: Support Services Division (1995).

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FAMILY LAW SELF-HELP PROGRAM (FAMILY DIVISION, TWELFTH JUDICIAL CIRCUIT,

SARASOTA, FLORIDA)

To assist the litigant who has either elected not to use an attorney or cannot afford an

attorney. To better utilize the court's time by not setting cases on a court docket that are not ready.

Domestic relations issues, including dissolution of marriage (with and without children), name changes, stepparent adoptions, contempt, and modifications. Forms and procedural information

Legal reference information and referrals

Scheduling of hearings

A pro se litigant is directed to the Family Law Self-Help intake officer, who reviews the litigant's file. If all appropriate documents have been filed, a hearing will be scheduled. If additional paperwork is needed, the litigant is told which documents must still be completed before a hearing can be set. The intake officer cannot make a determination of the legal sufficiency of the documents. This program is part of a statewide family court initiative. One intake officer. $25,000 per year covers salaries, equipment, supplies, etc.

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This is a court program, but the intake officer does a great deal of networking with social service agencies in the community and with the local bar. An evaluation of the program has not been done at this time. Monthly statistics are compiled by type of court case, initial request, and remedy. In one recent month, 84 litigants were seen by the intake officer; almost 60 percent of this number requested information on dissolution of marriage. Pamela Larrick Intake Officer Family Law Self-Help Program P. O. Box 48927 Sarasota, Florida 34230 (941) 951-5090 FAX (941) 364-4723 Source: AJS/JMI survey; telephone interview; court brochure: Twelfth Judicial Circuit Family Division Family Law Self-Help Program.

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ACCESS INITIATIVE (SUPREME COURT OF FLORIDA)

To increase public access to the state's justice system. Books, brochures and forms explaining Florida law to laypersons

Forms in such areas of the law as divorce

Information on legal remedies

As part of its access initiative, the Florida Supreme Court is using the Internet as a "statewide electronic courthouse," and the World Wide Web has become a tool for distributing court-related information directly to the public. An Internet "Self-Help Center" is now on-line, which offers a large number of books, brochures and forms explaining Florida law to the lay person and pro se litigant. Step-by-step instructions for filing papers for an uncomplicated divorce is one example of assistance for the unrepresented. The court is working on similar documents for wills, trusts, and appointing a legal guardian. In an expansion of this concept, some of Florida's major cities are experimenting with Self-Help Centers linked together through the Internet, with the Florida Supreme Court acting as the focal point of information and support material. In the next phase of development, the Supreme Court is working on dual-use interactive software–interactive programs that can be used on the Internet and on any computer to help pro se litigants fill out legal forms. New methods of creating interactive animations (Macromedia's Director and Shockwave) now make it possible for in-house staff to create dual-use programs at a fraction of the cost previously required. This technology provides visual and audio assistance in filling out forms, which can then be printed from any computer printer. The document could then be filed on-line with the clerk's office, using a "digital signature" or special coding that allows the party to electronically sign a document. The use of home pages, created by lawyers who work for the Florida Supreme Court, is a good example of new technology that does not have to cost a lot of money.

For additional information on Florida's home pages and Self-Help Center, see: http://www.firn.edu/supct

http://www.firn.edu/supct/selfhelp.html Less than $10,000 for equipment. Web page design was handled entirely in-house at no additional cost.

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Law and Communications Schools of Florida State University

This program has not yet been evaluated. Robert Craig Waters Executive Assistant to the Chief Justice Supreme Court of Florida 500 S. Duval Street Tallahassee, Florida 32399-1925 (904) 488-0007 FAX (904) 922-6625 E-mail: s-0665@wpgate.courts.state.fl.us Source: AJS/JMI survey; telephone interview; press booklet published by the Supreme Court: Celebrating 150 Years of Supreme Court History (1997).

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DOMESTIC AND FAMILY-RELATED PRO SE ASSISTANCE PROJECTS

(ADMINISTRATIVE OFFICE OF THE COURTS, ANNAPOLIS, MARYLAND)

To establish full and equal access to the Maryland courts by providing litigants with the tools and services necessary to represent their interests fairly and equitably within the judicial process. Low income, self-represented litigants in family law cases. Standardized forms and pleadings with accompanying instructions have been developed by the judiciary and are available in courthouses and community facilities throughout the state, as well as on-line through the People's Law Library of Maryland (http://www.peoples-law.com). Direct legal assistance to pro se litigants is provided through the following programs: Law Student Project. Through a partnership with the University of Maryland Law School

Family Law Clinic, legal information and advice is provided to income-qualified pro se litigants by using law students supervised by their clinical supervisors.

Courthouse Legal Assistance Program. Through a partnership with the Women's Law

Center and local bar foundations, legal information and advice is provided to income-qualified pro se litigants.

Family Case Coordinators. These positions are used to develop and maintain

differentiated case management tracks in family law cases and to provide legal information to pro se litigants.

Pro Se Telephone Line. Through a partnership with the Women's Law Center, a

statewide, toll-free telephone service has been established to respond to pro se inquiries. The lines are staffed by experienced family law attorneys four days per week.

Family Law Assistance Project. In partnership with Maryland Volunteer Lawyers, Inc.,

classes are presented without charge to divorcing litigants at courthouses in the evening. In addition, the attorney conducting the program enters into a limited representation agreement with the participants at no cost to render legal advice.

Domestic Violence Legal Assistance. This program was developed with a Violence

Against Women grant and in partnership with the House of Ruth, Inc. and The Women's Law Center. On-site legal services, including representation, are provided to all domestic violence victims seeking protective relief at no cost to the litigant.

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In addition, state judiciary funds are now supporting seven family law master positions in those jurisdictions which cannot afford these supplemental judicial resources at the local level. These masters are providing assistance to pro se litigants. The state judiciary is appropriating more than $1.6 million annually to support locally directed programs to the family law pro se litigant. An evaluation was conducted of the Law Student Project by a private contractor and is available from the contact person. A formal evaluation of the Domestic Violence Legal Assistance project will be conducted prior to the termination of the grant period in 1998. No other program or project has been formally evaluated. Frank Broccolina Deputy State Court Administrator Administrative Office of the Courts Robert C. Murphy Courts of Appeal Building Annapolis, Maryland 21401 (410) 260-1290 FAX (410) 974-5577 E-mail: frank.broccolina@courts.state.md.us Source: AJS/JMI survey (Peter J. Lally); telephone interview and correspondence (Frank Broccolina).

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LEGAL ACCESS POINT (HENNEPIN COUNTY DISTRICT COURT, MINNEAPOLIS,

MINNESOTA)

Note: This program is one of several initiatives now underway designed to improve services available to unrepresented litigants in Hennepin County. In December 1996, the court opened its Self-Help Center to the public. To provide brief, legal consultation for self-represented litigants currently in the system through a partnership between the court and the Bar Association. Pro se litigants who wish to represent themselves in the following areas: Small claims

Landlord/tenant issues

Family issues

Civil

Criminal

Probate

Provide legal consultation in the areas of housing, consumer, and debtor/creditor law

where there is an increasing number of pro se litigants. However, in order to establish a self-funding model, consultation is not limited to these areas.

Provide brochures on community-based legal services

Provide fact sheets written by Legal Aid Society attorneys in the following areas:

consumer issues, family, housing, juveniles, seniors, and government benefits The Legal Access Point (LAP) is operated by the Hennepin County Bar Association and works in conjunction with the Self-Help Service Center of the Hennepin County District Court. The program is meant to serve clients who cannot afford market-rate attorney fees and who need some initial guidance as they seek to pursue a solution to a legal issue. Other pro se individuals may use the services also. Referrals to LAP come predominately from within the court. Judges and staff are encouraged to send self-represented litigants to the center. The program uses two established programs–Lawyer Referral and Information Service (LRIS) and Volunteer Lawyers Network (VLN)–where procedures have been established and refined over time. Attorneys from the Bar are on site at the Self-Help Center from 9 a.m. to 1 p.m. (9-11 is lawyer referral; 11-1 is for indigents). Pro se litigants are given a 15-minute consultation or assessment of their legal situation; attorneys do not assist in preparing documents.

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The Bar Association provides volunteer attorneys five days a week, and a clerk at the Self-Help Center provides general assistance, including an initial evaluation. The court provides the space, and the county and state bars provide the volunteer attorneys pro bono. Administrative costs from April through December 1997 were approximately $30,000. Hennepin County District Court has budgeted $20,000 to continue the program in 1998. Hennepin County District Court

Bar associations (county and state)

Legal Aid Society

Hennepin County Law Library

Public library

Exit surveys have been collected, and the Bar Association will be providing evaluation results and statistics on number of prose litigations using this procedure in the fall of 1997. Elisabeth Steinbring Coordinator for Pro Se/Pro Bono Services Hennepin County District Court C-800 Government Center 300 South 6th Street Minneapolis, Minnesota 55487-0421 (612) 348-2041 FAX (612) 348-9685 Source: AJS/JMI survey; telephone interview; report: Hennepin County District Court Fourth Judicial District: Pro Se/ Pro Bono Services, 1996 Year End Report.

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FAMILY DIVISION PUBLIC INFORMATION VIDEOTAPES

(SUPERIOR COURT OF NEW JERSEY, ESSEX VICINAGE, NEWARK, NEW JERSY)

To demystify the Family Division judicial process and enable pro se litigants to comfortably navigate the court system. Pro se child support and domestic violence cases. Educational videotapes on child support and domestic violence for courthouse viewing and community distribution. The program is comprised of the following: Child support videotapes (five to seven minutes long) How to file for child support, what documents to bring to the courthouse, where to go in

the court complex, and what will occur at the hearing

How to increase and decrease child support awards

Domestic violence videotapes (five to seven minutes long) Procedural steps for obtaining a temporary restraining order

Procedural steps for obtaining a final restraining order

The tapes are shown at several sites in the court complex, including the Family Division, jurors' lounge, and the law library. Tapes are also mailed to community agencies such as community mental health centers and battered women's shelters. Plans are underway to show the tapes in a newly developed Information and Community Relations Center and to translate them into linguistic-minority languages. One staff person is responsible for tape display.

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The Trial Court Administrator and Vicinage Complementary Dispute Resolution coordinator developed a public information grant proposal and submitted it to the Interest on Lawyer's Trust Accounts (IOLTA) Fund. An IOLTA Fund grant financed the videotapes. Each tape cost $3,500 for preparation and production, and $1,700 for scripting, editing, music, captions, and role plays. The videotapes are solely a court-based initiative. Anecdotal responses have been collected, but the program has not been formally evaluated. Michele Bertran Vicinage Complementary Dispute Resolution Coordinator Superior Court of New Jersey–Essex Vicinage 50 West Market Street Newark, New Jersey 07102 (973) 621-4872 FAX (973) 621-5912 Source: AJS/JMI Survey and written comments from Michele Bertran.

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PRO SE SERVICES OFFICE (SECOND JUDICIAL DISTRICT COURT,

ALBUQUERQUE, NEW MEXICO)

To assist the self-represented litigant with procedural matters and provide referrals to various legal resources in the community. Pro se litigants coming into the court who need assistance in the areas of domestic relations, civil case appeals, and conservatorship. Brochures on domestic relations (filing a motion, child support, petition for divorce and

custody)

Formal and informal probate packets

Information on how to appeal a civil case

Examples of summons and subpoenas

This in-court program begins when a self-represented litigant first arrives at the clerk's counter of the courthouse. The litigant is directed to the pro se office where a paralegal listens and gives "direction" to the client. If there are issues that cannot be resolved, the client is referred to the staff attorney in the chief judge's office. If necessary, an appointment is made for the client to see a volunteer lawyer provided by the local bar (pro bono). Attorney referrals are not given out through the pro se office. Other districts in the state provide similar assistance to pro se litigants. The program is staffed daily by a supervised paralegal and volunteer lawyers who come into the office on Tuesdays and Thursdays from 9-11 a.m. The budget for this program is drawn from general operating funds and includes the salary of one paralegal and cost of materials (approximately $31,000). Each of the 13 districts in New Mexico monitor their own operating budgets for similar services. However, not all districts have a pro se division.

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The Albuquerque Volunteer Lawyers Association provides pro bono attorneys; a committee of the local bar makes recommendations about procedures, forms, etc. The program has not been evaluated. However, statistics collected indicate that the office is seeing approximately 120 people per month. Loretta Lopez Berman Administrative Staff Attorney Second Judicial District P. O. Box 488 Albuquerque, New Mexico 87103 (505) 841-7499 FAX (505) 841-7446 Source: AJS/JMI survey (Thomas J. Ruiz); telephone interview (Loretta L. Berman).

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PETITION PREPARATION (NEW YORK CITY FAMILY COURT)

To provide assistance in document preparation to the self-represented litigant, regardless of financial status. Pro se litigants representing themselves in Family Court in the following categories: Order of protection in a domestic violence proceeding

Child and spousal support

Establishment of paternity

Custody or visitation relief

Petitions for guardianship of a minor

Materials and services are provided in both English and Spanish. Information is given regarding options (in both civil and criminal proceedings). Brochures from community and social service agencies are available. A self-represented litigant in Family Court is directed to a petition clerk (or "court assistant") who will interview the litigant and prepare the petition or document required for a proceeding in Family Court. The court assistant does not give legal advice but will prepare the petition– on computer–based on statements made in the interview with the litigant. The Family Court provides training to the court assistants in gender and ethnic sensitivity and instructions in how to frame allegations. The Family Court in New York is composed of courts in five different boroughs, with a total of approximately 100 court assistants throughout the city. Each borough has a different number of court assistants (depending upon volume). This civil service position requires a minimum high school education, although many of these positions are filled by those with college degrees. Each court assistant position has an average salary/fringe of $35,000. Operational costs also include the computers.

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The Family Court works closely with the Victims Service Agency, which makes staff available on a daily basis; the court supplies office space. Volunteers are also enlisted from the community, and the Association of Bar of City of New York Committee on Children and the Law has produced Introductory Guide to the New York City Family Court, a booklet for the court to distribute. This program has not been evaluated. Frank D. Argano First Deputy Chief Clerk New York City Family Court 60 Lafayette Street New York, New York 10003 (212) 374-3585 FAX (212) 374-2565 Source: AJS/JMI survey; telephone interview.

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FAMILY LAW FACILITATOR PROGRAM (SUPERIOR COURT, KING COUNTY, SEATTLE WASHINGTON)

To increase access to the courts for pro se litigants by providing the services of a family law facilitator at the courthouse. Domestic relations litigants involved in divorce, custody, or child support issues. Explain court procedures and assist litigants in obtaining proper forms

Provide instruction sheets relating to various domestic actions

Review forms after they have been filled out by litigants to make sure they are complete

Act as a court-based resource agent for pro se litigants

Provide information on services available from community-based agencies

Assist judges and family law commissioners in helping pro se litigants comply with court

procedures Sell forms packets (new service)

Before this program was instituted, the statistics for King County showed that nearly three-quarters of the domestic relations cases involved at least one pro se party. Prior to the facilitator program, services for pro se litigants were limited to the assistance provided by the Clerk's office staff, do-it-yourself forms available in the King County Law Library, and listings of low-fee attorneys. The result was a lack of adequate services for the pro se litigant, which adversely affected litigation outcomes and resulted in frustration and disillusionment with the system. The current program consists of a family law facilitator who can assist pro se litigants involved in a family law court action such as divorce, legal separation, child support modification or adjustment, parenting plan modification, nonparental custody, family law motions, temporary orders, and restraining orders. Program staff provide information on starting a family law court action and on court rules, procedures, and case schedules; offer lists of what mandatory forms are needed and where to get them; review completed forms; calculate child support based on information provided by litigants; and provide information on other court and community resources. Facilitators do not assist with domestic violence protection orders, paternity, adoptions, guardianships, juvenile dependency matters, bankruptcy, wills, probate, evictions, name changes, or traffic

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citations. They can only assist individuals who know what kind of legal action they want to start. Facilitators cannot give legal advice or tell litigants what legal action would be appropriate, fill out forms or tell litigants how to fill them out, assist in trial preparation, or predict the outcome of the case or how judges/commissioners will rule. Walk-in hours are Monday - Friday, from 9-11 a.m., for five- to ten-minute meetings. Questions will also be answered over the telephone. Afternoon appointments are available for those who have met with a facilitator at least once before as a walk-in. Information on where to obtain forms for family law actions is also distributed, as is a legal resource list with listings for both low-income persons and resources available regardless of income. King County now provides facilitator services at two sites–downtown and at a satellite Regional Justice Center in Kent. Staffing consists of a family law facilitator, who is a paralegal (1.5 positions downtown; 1 position in Kent) and a full-time intake specialist, who does the initial screening of litigants (1 position at both sites). Funds for this program were initially provided by the state. The program is now supported by a surcharge (capped at $10 by the legislature) on domestic filing fees. The approximately $94,000 in filing fees collected per year in King County just cover the costs of staffing (salary and benefits) for the downtown program. The cost of the satellite court's program staffing was picked up as part of the court's operating budget in 1997. The local bar association initially helped with training and consultation. The program is guided by a steering committee composed of the facilitators, court managers, judicial officers, Office of Child Support personnel, community representatives, prosecutors, and defense staff. An initial evaluation–essentially a feasibility study–was conducted by Urban Policy Research, a Seattle-based consulting firm working collaboratively with Evergreen Legal Services in 1994. Components of the evaluation consisted of pre- and post-surveys of court representatives at each of the seven pilot sites (including King County), ongoing written and telephone communication with individual Court Facilitators, and collection and analysis of the characteristics and service needs of pro se litigants who received project services. The evaluation confirmed that the court facilitator model could absorb some of the workload previously done by court clerk staff and could improve the processing and outcomes of domestic cases. Currently, King County is generating monthly reports on volume, demographics, and services provided. Approximately 30-50 pro se litigants are assisted every day by each facilitator program. In 1996, the downtown office assisted 2,479 litigants in person; an additional 2,579 persons were given information by telephone.

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Linda K. Ridge Director Regional Justice Center King County 401 Fourth Avenue North MS RJC-203 Kent, Washington 98032-4429 (206) 205-2582 FAX (206) 205-2585 E-mail address: linda.ridge@metrokc.gov Source: AJS/JMI survey; telephone interview; instruction sheet: King County Family Law Facilitators; report: Court Facilitator Pilot Project Evaluation Final Report, Urban Policy Research (1994).

POLICY

RECOMMENDATIONS

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POLICY RECOMMENDATIONS

While there is much we do not know about pro se litigation, this study provides a deeper understanding of the issues as they relate to the various stakeholders in the litigation process. The policy choices to be made affect real people with problems they consider serious. They are people who have come to the justice system with the expectation, not necessarily that they will prevail, but that they will be treated fairly. It is critical, therefore, for the legitimacy of the court as an institution that unrepresented members of the public perceive that justice was, in fact, done from their first contact with court staff until their case disposition. The following policy recommendations are arranged by their relevancy to particular stakeholders in the justice system. This format will enable each segment of the courts community and others to focus on those matters that most affect them, but the issues presented and the policies designed to address them must ultimately be approached through a collaborative effort.

I COURTS SHOULD PROVIDE SELF-REPRESENTED LITIGANTS WITH

INFORMATION AND SERVICES TO ENABLE THEM TO USE THE COURT The justice system must take steps to address the growth of pro se litigation and its effect upon the litigants themselves as well as the court and court staff. This phenomenon and the courts' response to it–or lack thereof–is critical in that it directly affects the public's trust and confidence in the courts. Simply put, we can no longer tolerate a justice system that consists of procedures, forms, and practices that are known to only a select few in our society. Constitutional principles protecting the rights of due process, access to courts, open courts, and self-representation require that all litigants be provided a meaningful opportunity to be heard. At the same time, sound court management practice are necessary to maximize both efficient caseflow and the fairness of all court proceedings. Providing self-represented litigants with information regarding appropriate court procedures is not inconsistent with the court's organizational interest in efficiency. Rather, providing such needed and often-requested information to the public will not only improve the efficiency of a judge's pro se caseload, but will also enhance the time to disposition of the remainder of the docket. Courts should, therefore, render assistance in a variety of forms to persons who represent themselves and seek judicial relief on their claims or defenses. These include instructional programs, referrals to lawyer and dispute resolution professionals and services outside the courtroom, reasonable judicial assistance policies and protocols inside the courtroom, and appropriate statutes and rules to enable courts to adapt to the growth of self-representation. The programs described in this guidebook illustrate the creative approaches some courts have taken to fulfill their duty to provide each litigant with a meaningful opportunity to be heard.

GENERALRECOMMENDATONS

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II COURTS SHOULD STUDY THE COMPOSITION AND GREATEST NEEDS OF THE

SELF-REPRESENTED LITIGANTS THEY SERVE, AND DESIGN SERVICES TO EFFECTIVELY MEET THOSE NEEDS

A wide range of pro se assistance programs and services already exists in many states, some examples of which have been described. A reading of these program descriptions shows that most of them target different populations of self-represented litigants and types of cases. In determining what form of assistance program is most appropriate, it should be recognized that the needs of each jurisdiction will be unique. Careful study and consultation among relevant stakeholders and groups should precede any design or implementation of a pro se assistance program. Pilot programs should first be established that target areas of greatest need from the standpoint of the litigants and the court. Members of the public, the judiciary, court managers and support staff, the bar, self-represented litigants, and other relevant groups or entities should be included in the process of designing and improving pro se assistance programs.

III DEVELOPMENT OF PROGRAMS TO ASSIST SELF-REPRESENTED LITIGANTS

SHOULD BE A COLLABORATIVE EFFORT OF THE BENCH, COURT STAFF, THE BAR, AND THE PUBLIC

Pro se litigation affects the judiciary, court staff, the bar, and the public. Each stakeholder group has an interest in the efficient flow of litigation and should be heard when a court considers programs or procedural changes affecting the self-represented litigant. While it may seem obvious that representatives of the aforementioned groups should participate in the development of programs and policies in this area, it is also true that self-represented litigants' views regarding their experiences with the justice system can contribute to the design of effective pro se assistance programs. Since the nature of cases and the pro se assistance programs implemented for these case types differ in many respects, judges' and lawyers' input on the needs of the litigants and the court should be considered in the design and implementation of such programs. Court resources in many jurisdictions, however, are inadequate to support the design and implementation of pro se assistance programs. The bar and its members, as officers of the court, have valuable human resources and should collaborate with the court to develop effective pro se assistance programs. Community groups, law schools, volunteers, and others should also participate in the collaborative effort to establish effective assistance programs.

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IV COURTS, IN CONJUNCTION WITH THE BAR, SHOULD ESTABLISH POLICIES TO

GUIDE COURT STAFF IN ASSISTING SELF-REPRESENTED LITIGANTS Court staff are prohibited–by unauthorized practice of law rules and court policies– from practicing law or providing legal advice. These prohibitions have deterred court staff from rendering assistance to the public regarding court forms, procedures, and court practices, to the detriment of self-represented litigants and the general public. Court staff should not work under the fear that whatever assistance they provide may be misinterpreted by the court or the bar as the practice of law or the giving of legal advice. Courts, therefore, in conjunction with the bar, should establish guidelines for court staff that specifically delineate the nature and extent of the assistance they are able to provide. The guidelines should include adequate examples of assistance that are either permissible or impermissible.

V STATE COURT SYSTEMS AND LOCAL COURTS SHOULD TRAIN COURT STAFF

ON HOW TO ASSIST SELF-REPRESENTED LITIGANTS Not only do most courts lack specific guidelines to guide court staff in assisting self-represented litigants–aside from the admonition "do not give legal advice"–they also provide no training on how court staff should assist pro se litigants. Until recently, there has been no need for such training. With the recent growth in pro se litigation, however, there is now a greater need for such training. Written guidelines are inadequate to guide court staff on how they should assist pro se litigants. Training programs for court staff, including the use of role-playing and other educational techniques, are necessary to enhance the quality of service court staff are able to provide self-represented litigants.

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VI SIMPLIFIED COURT FORMS SHOULD BE DEVELOPED FOR CASES INVOLVING

SELF-REPRESENTED LITIGANTS, AND JUDGES SHOULD HAVE THE AUTHORITY TO RELAX PROCEDURAL AND EVIDENTIARY RULES WHEN NECESSARY TO

ENSURE FAIRNESS. Self-represented litigants should be expected to be familiar with the relevant legal practices and procedures pertaining to their case. Current rules of procedures and evidence, however, are far too complex to be understood by lay persons. Yet, it is essential to due process and the protection of the rights of accessible and open courts, and of self-representation–as well as to the efficient management of the court's caseload–that self-represented litigants understand the process of making a claim or a defense, and that they receive the opportunity for a meaningful hearing. One way of addressing this dilemma is the development of simplified court forms. These not only will serve to enhance the efficiency of the litigation process, but will also enhance the fairness of legal proceedings. When used by most self-represented litigants, they will also benefit court staff by giving them more time to conduct their normal duties. Likewise, judges should relax the rules of procedure and evidence where fairness dictates and no prejudice will result to the represented adversary. This approach will also serve to promote trust and confidence in the court, and avoid the bitter feelings on the part of many self-represented litigants who have in the past been frustrated by the unwitting application of technical rules against them.

VII JUDGES SHOULD PROVIDE REASONABLE ASSISTANCE TO SELF-

REPRESENTED LITIGANTS IN THE COURTROOM Judges have a duty to maintain impartiality with respect to the parties in litigation. Judges also have a duty to ensure litigants' rights to a meaningful opportunity to be heard. One of the major challenges to courts from pro se litigation is to balance these rights and obligations appropriately. In the case of self-represented litigants who are unfamiliar with the law, the rules of procedure, and the rules of evidence, out-of-court assistance programs alone may be inadequate to assure their right to a meaningful hearing. Judges should also provide reasonable assistance to self-represented litigants in the courtroom. This includes reasonable assistance in the presentation of a self-represented litigant's claim or defense. Judges should determine the limits of such assistance in light of their duty to remain impartial and the litigants' right to represent themselves in a meaningful hearing.

FOR JUDGES

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VIII EACH STATE SHOULD ESTABLISH JUDICIAL PROTOCOLS TO GUIDE JUDGES

ASSISTING SELF-REPRESENTED LITIGANTS Judges currently use individual strategies for handling pro se litigants, ranging from providing no assistance to providing proactive assistance. There appears to be no uniformity among judges and courts regarding the handling of self-represented litigants. Judges are in need of guidance on the most effective and ethically permissible strategies for assisting self-represented litigants. The use of uniform court protocols to guide judges in the management of pro se litigation will serve to make case-processing more efficient and will assure uniformity and fairness in the treatment of self-represented litigants among all the judges of a given court.

IX STATE COURT SYSTEMS AND NATIONAL JUDICIAL EDUCATION PROVIDERS

SHOULD DEVELOP EDUCATIONAL PROGRAMS FOR JUDGES ON METHODS OF HANDLING SELF-REPRESENTED LITIGANTS

The issue of appropriate management of self-represented litigants has only recently come to the fore. Until now, judges have not received the benefit of educational programs on this subject. The management of self-represented litigants may differ depending on case type, relief sought, and type of litigant. As research into this subject and our understanding of it develops, judges need to be provided the results of that research and the latest techniques regarding the most effective and ethical manner of managing proceedings involving self-represented litigants, including those seeking to obstruct the judicial process. Courts, state court administrators, court managers, and judicial educators should develop such judicial education programs on the methods of managing self-represented litigants.

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X

THE LEGAL PROFESSION SHOULD ASSIST THE COURT IN DEVELOPING PRO SE ASSISTANCE PROGRAMS

Lawyers have recently encountered a growing number of self-represented litigants as their adversaries. They have sometimes complained that some judges have breached their duty of impartiality by assisting these litigants in the courtroom. As officers of the court, lawyers have a duty to assist the court in improving the administration of justice. While expansion of pro bono representation is worthwhile, this should not be the sole means by which the bar is involved in addressing the pro se phenomenon. The development of pro se assistance programs will benefit the litigants by providing them with needed information, and will likewise enhance efficient processing of the court's caseload. Reaching that goal will also be in the interest of members of the bar. Such programs will also serve to provide self-represented litigants with information regarding access to available legal representation. Lawyers have resources and knowledge that will benefit pro se assistance programs. The better pretrial assistance programs are, the less assistance to pro se litigants will be necessary by the trial judge. Lawyers, therefore, can and should assist in the development of pro se assistance programs.

XI RULES GOVERNING THE UNAUTHORIZED PRACTICE OF LAW SHOULD TAKE INTO CONSIDERATION THE NECESSARY ASSISTANCE PROVIDED BY COURT

STAFF TO SELF-REPRESENTED LITIGANTS The prohibition of unauthorized practice of law is a laudatory goal based upon protection of the public. Such prohibitions, however, when applied to court staff, discourage court staff from rendering assistance to self-represented litigants that does not constitute the giving of legal advice or the practice of law. The unauthorized practice of law prohibitions, while necessary, should be modified to take into consideration the necessity for court staff to assist self-represented litigants. They should not preclude legal and procedural information pertinent to their case. The bar should work with judges and court staff to delineate appropriate court staff assistance, and eliminate them from existing provisions defining the unauthorized practice of law.

XII THE BAR SHOULD ENHANCE THE DELIVERY OF PRO BONO AND UNBUNDLED

OR LIMITED LEGAL SERVICES, ESPECIALLY IN FAMILY LAW Lawyers should expand pro bono programs by focusing on specific case areas where the greatest need exists for representation of pro se litigants. It should not, however, be a goal to eliminate pro se litigation as such. In many jurisdictions there is a great need for representation in family law, where litigants are frequently unrepresented. Enhancement of pro bono legal services in the family law area will promote greater fairness to, and meaningful hearings for, litigants who would otherwise appear pro se and risk the possibility of a less-than-meaningful hearing.

FOR THE BAR

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XIII

COURT STAFF SHOULD BE PROTECTED BY QUALIFIED IMMUNITY FOR ACTS TAKEN TO ASSIST SELF-REPRESENTED LITIGANTS

Clerks of court perform a variety of functions. These include ministerial functions and quasijudicial functions. Under current law in many states, clerks performing quasijudicial functions involving the exercise of some discretion are generally protected by judicial immunity for such acts. Clerks carrying out a ministerial function, i.e., one prescribed by statute or court rule, are not cloaked with judicial immunity for such acts. Acts taken by court staff to assist pro se litigants are neither ministerial (unless prescribed by statute or court rule) or quasijudicial, and, therefore, could subject them to civil liability. Court staff should, therefore, be protected from civil liability for acts taken to assist self-represented litigants. This will obviate their current reluctance to afford such assistance. That protection should be in the nature of a statutory immunity for negligent acts taken in connection with assistance provided pro se litigants, but not for acts of gross negligence or recklessness.

XIV COURT FUNDING AT THE STATE AND LOCAL LEVELS SHOULD BE PROVIDED TO

ESTABLISH PROGRAMS TO ASSIST SELF-REPRESENTED LITIGANTS Adoption of a pro se assistance program like those described in this guidebook will enable courts to more efficiently manage their case loads and ensure litigants will be afforded a meaningful opportunity to be heard. Most importantly, such programs will promote public trust and confidence in the courts.

***** These recommendations call for extensive participation among all stakeholders involved in the pro se litigation process. Judges, court managers, court staff, the bar, and self-represented litigants themselves will need to collaborate in the undertakings proposed here. The role of a state legislature or local government is just as critical in providing the financial resources for the programs and services needed to assist litigants in their exercise of their constitutional right to self-representation.

FOR THELEGISLATURE AND

LOCALGOVERNMENTS

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APPENDICES

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APPENDIX I: JUDGES' SURVEY AND RESULTS*

1. I am a (check one):

Judge of a general jurisdiction court 89 (69%) Judge of limited jurisdiction court 36 (28%) Justice of the peace 2 (1.6%) Court commissioner, referee, judge pro tempore, bench officer 1 (.8%) Other (please describe) 1 (.8%)

2. The population of the area served by my court is (check one):

Mostly urban 23 (18%) Mostly rural 38 (29.2%) Urban and suburban 32 (25%) Rural and suburban 37 (29%)

3. My current assignment is to handle (check all that apply):

General civil 105 (79%) Felonies 82 (62%) Small claims 50 (38%) Misdemeanors 79 (59.4%) Landlord/tenant 60 (45.1%) Appeals from 57 (43%) Domestic relations/family 81 (70%) limited jurisdiction courts Traffic 54 (41%) Specialized court 7 (5.3%) Juvenile 60 (45.1%) (e.g., housing court)

Other cases that involve pro se litigants: 4. I have served on the bench for:

Less than five years 25 (19%) 16 to 20 years 15 (11.3%) 5 to 10 years 39 (29.3%) Over 20 years 14 (11%) 11 to 15 years 40 (30.1%)

5. Based on my experience, over the past five years the overall population of pro se litigants in my court has:

Increased greatly 40 (30.1%) Stayed about the same 45 (34%) Increased moderately 46 (35%) Decreased 2 (1.5%)

6. While we seek information in this survey about your personal strategies for handling pro se litigants in later questions, please state here whether the court has any written or unwritten courtwide (i.e., covering all judges in your local court, or in all courts of the state) policies, administrative orders, or rules governing the manner in which pro se litigants should be handled by judges (a) in the courtroom or (b) in the litigation process generally?

Yes (Please attach a copy of the policy) 11 (9%) No (If the policy is not in writing, please summarize the 117 (91.4%)

policy in the space below): * Survey was not randomly administered; results not generalizeable.

JUDGES' SURVEYSurveys mailed 612

Surveys received 133Response rate 22%

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The overwhelming number of respondents report that no written or unwritten courtwide policy exists in their court for handling self-represented litigants. Some judges, rather than providing a summary of their court's unwritten policy if there is one, instead wrote to summarize their personal strategies. Others recited their state's law on the subject, noting that pro se's are to be treated like any other litigants or attorneys. Some said they followed this rule, but that the "reality" of the situation was that "great latitude" is given to them. Some noted the content of their cautionary admonitions to the self-represented to obtain counsel. In criminal cases, some judges noted their general policy of appointing standby counsel over the defendant's objection. 7. (a) What are the principal problems or issues that you face, as a judge, when one of the parties in a lawsuit is represented by counsel but the other party is appearing pro se? Judges said the principal problems where one party appears pro se include (1) delays, (2) maintaining impartiality, along with the attendant problems of (3) attorney impatience, (4) pro se feeling he is being "railroaded," (5) maintaining "control" over the pro se litigant, (6) getting the pro se to comply with summary' judgment procedures, discovery rules, court reporting requirements, and evidentiary (e.g., hearsay) rules, (7) the related problem that the rules of procedure and evidence "often get in the way of the truth," (8) reluctance of counsel to "press his advantage" over the pro se, especially in a jury trial, as well as (9) instances of "overkill" by attorneys, and (10) maintaining contact with the pro se litigant. Lack of knowledge or and noncompliance with rules often results in their "feelings of isolation" or "a failure of proof in most cases, and an embittered pro se litigant." References were also made to the judges' personal feelings of "discomfort" after having to rule against a self-represented litigant due to procedural non-compliance, and the "unfairness" of having to do so. (b) What are the principal problems or issues that you face, as a judge, when all of the parties in a lawsuit are appearing pro se? While many of the same problems were cited where both parties appear pro se and some judges said the problems "just doubled," some judges noted that this situation is "actually easier." This is, as one judge put it, because "I can ask questions of each sides' witnesses and conduct proceedings a bit less formally and still get at the evidence so as to be able to make a fair ruling." Another said, "It's amazing how much evidence can be presented without attorneys. Much more effective. Lawyers try to hide evidence much of the time." Judges also mentioned the problems of (1) the court having to do all the research for the parties, (2) the time to teach the parties court procedures, and (3) the greater difficulty of controlling the litigants (e.g., keeping parties from getting into arguments with witnesses; "emotions sometimes get out of hand"). Some of the more cynical judges referred to the problems of "baby-sitting the pro se litigants", the "chaos–[pro se'sl belief that rules do not apply to them, the emotional "grudges" they have to deal with, and "making sense out of nonsense." 8. For each of the following stages of litigation, please indicate what, if any, specific strategies you have personally developed for handling pro se litigants in your court and briefly describe that strategy. (Skip any section that may not apply because of the nature of the cases you handle). (a) Initial pleadings (i.e., complaints and answers): Some of the strategies suggested for pro se pleadings problems included: (1) the judge

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acting as a mediator with a view toward settling the case, (2) sending a letter explaining the fact of dismissal or other consequences unless rules are complied with or information is submitted, (3) providing complaint forms (some with "fill in the blanks" or box checkoffs), (4) disregarding or relaxing pleading formalities, (5) scheduling a case management conference, (6) liberally interpreting letters to the court, (7) granting a one-time continuance, (8) providing brochure summarizing rules, (9) providing clerks' assistance, (10) granting "one warning," after which dismissal is entered, and (11) ordering a more definite statement. (b) Pretrial proceedings (e.g., resolution of discovery issues, exchange of exhibits and witness lists, status calls, arraignments, settlement conferences, etc.): Some of the strategies suggested for pretrial proceeding were: (1) conducting all such conferences on the record, (2) holding such conferences in open court, (3) scheduling multiple pretrials where necessary, (4) explaining legal theories to keep evidence relevant, (5) explaining rationale for evidentiary rules, (6) informing pro se of consequences of rule noncompliance, (7) providing clerks' assistance, (8) providing mediators, (9) judicial mediation, (10) clear ("Plain English") written and verbal instructions, (11) use of instructional videotape, and (12) including with notice of trial date explanation that this is a "do or die" date and warning that all evidence and witnesses must be presented. (c) Notice of hearings: The judges refer to various means of providing notices of hearings to pro se litigants. These include (1) ordinary mail (only), (2) mail plus a telephone call from the clerk's office, (3) "notice cards" given in person, in both Spanish and English, and color-coded by courtroom, and (4) personal service by police officers. As to who sends out written notices, some judges (1) insist that pro se's send out the notices, (2) send out a notice themselves, (3) ask the clerk's office to do so, while (3) some ask the clerk's office to "assist" the self-represented litigants to send out their notices. One judge noted that his court uses form notices that contain "standard warnings" regarding the consequences of not appearing or other noncompliance. The responses indicate that maintaining contact (i.e., a correct address) with a pro se litigant is often difficult. (d) Motions and hearings on motions: Some judges suggest that the best manner of handling motions and hearings on motions is to conduct all proceedings on the record. Others suggest "informality" be used "where possible." Others note that they use "no oral arguments on motions unless specifically requested and are evidentiary issues." They "skip these since the parties don't know the law or how to find it." Some judges allow oral motions, while others "have them brief and argue motions with same strictness as an attorney." The judges state that often the self-represented do not provide opposing counsel with copies of their motions. The judges find themselves relaxing procedural requirements "so long as documents are readily legible and substantively sufficient." Some admit they "help them present their cases," while "walking a fine line" between assistance and impartiality. (e) Presentation of evidence at trial: Many judges said they briefly explain trial procedures to self-represented litigants before a hearing, including the manner of presentation of evidence, the hearsay rule, marking exhibits, and other procedural matters. Some will do this a week or more before trial.

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They also relax the rules of evidence "so long as it doesn't get too farfetched." Some indicated that the evidence comes in unless there are objections to it. In some cases, the judges themselves will raise such objections. The judges indicated that they often ask questions of witnesses. One judge swears in both pro se parties, and asks questions of each "sometimes at the same time." Judges also "guide" the pro se at times by "nudging them along by asking them if they want X to be marked and they want X to be admitted." One judge describes his procedure as: "If the pro se litigant testifies, I have him/her make a statement and dispense with questions and answers." Still others take a firmer approach: "I expect the rules of evidence will be enforced. I point out to the litigant that the rules must be the same for each side. Retain counsel or suffer the consequences." (f) Post-trial proceedings (e.g., sentencing, motions regarding judgment or verdict, notice of appeal, etc.): Most judges provide pro se litigants with an explanation of their appellate rights after the entry of judgment. Some provide them with access to copies of procedural rules or court publications that explain the appellate process. Others note these procedures in any final order. Still other judges take a firmer approach and state that they go "by the book," "leave all of these things to the pro se. It is up to him to find his way," and "They are on their own." 9. If you had the authority and funding to adopt a pro se assistance program of any kind for the litigants in your court or any other court, what would be the principal components of such a program? As with the answers to the preceding questions, the judges gave a variety of responses. Examples include: (1) educational programs; (2) improved legal services, (3) a public divorce attorney, (4) developing "short form" rules of procedure, evidence, and pleading, (5) use a "case facilitator," (6) pamphlets and brochures, (7) mandatory mediation," (8) information booth staff by a paralegal, (9) attorney advisors, (10) videotape training, (11) use of a multi-door courthouse, (12) use of liaison with social service agencies, (13) improved court forms, (14) (volunteer) attorney instructional classes at the courthouse, (15) short conferences to explain procedures and options, or (16) a resource center like the Maricopa County (AZ) model. Other judges take the opposite view, believing that such a program would "open the floodgates and attorneys would revolt"; or that they "would only encourage more pro se activity"; and that "we have already addressed the pro se litigants as far as possible." 10. If you could draft or implement rule change(s) in your jurisdiction relating to pro se litigation, what would you seek to accomplish through the new rules? As to their ideas for rule changes, the judges suggested requirements such as (1) at least one attorney must be involved in divorce cases with children, (2) mandatory attendance at instructional program, and (3) conducting a "minimal" level of pretrial preparation and discovery. Others suggested (4) making existing rules simpler, (5) prohibiting handwritten pleadings, (6) specific rules governing pro se litigation, (7) a "catch-all" justice rule "that allows deviation from the rest of the rules when the situation so requires," (8) requiring that the self-represented read existing rules, and (9) a rule allowing the court to refuse to file frivolous pleadings. Some anti-pro so judges suggest that pro se litigation not be encouraged, that "rules are not useful for pro se litigants," and that there is a need for a rule "outlawing pro se representation."

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11. Judges in some states have encountered "constitutionalists" who are opposed to the federal government and have established their own "common law courts." If you have had experience with this type of pro se litigant in your court, please state any special problems that they pose and your suggested solutions. Surprisingly, a fair number of judges have had experience with "constitutionalists." These litigants, often with a militia-like political agenda that includes non-recognition of the court's jurisdiction over them, often delay the proceedings with non-meritorious claims and contentions or "irrelevant and incomprehensible positions." Worse still, some of these litigants have been known to file suit or liens against judges. The judges' suggestions for handling these types of litigants include: (1) have the sheriff present, "who is ready to place the obstructionist in jail," (2) "clear explanations as to when that power will be utilized," (3) use of "extreme patience," (4) "give them enough time to 'vent' and then politely, but firmly, shut them off," (5) "keep them focused on the issues in the case and away from political issues," (6) rule promptly on the "barrage of motions" brought, (7) provide extra time for their trials, (8) address each issue raised, no matter how "farfetched," (9) "Get the guns before they get into the courtroom," and (10) always take the matters under advisement, and then promptly rule by written order. 12. Please share any additional thoughts you may have regarding pro se litigants that you have not already stated in response to the questions above: The additional remarks of the judges include some favoring greater access to the court for pro se litigants. Some judges note particular problematic areas, such as prisoner filings. The need for someone to screen pleadings is often mentioned. The comments also reflect a distinct anti-pro se litigant sentiment among the responding judges. They are described as "an increasing problem," they are "very time consuming," and they "get the ear of the media who then report inaccurate information that makes the judiciary look bad." These judges emphatically state that they are "opposed to socialized legal services," that "no one likes pro se litigants," and that, because there is the possibility of their "clogging our judicial system," there is a "need to limit their access if that does happen."

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APPENDIX II: COURT MANAGERS' SURVEY AND RESULTS*

Part I–General Information 1. The population of the area served by the court is:

Mostly urban 16 (17%) Urban and suburban 61 (65%) Mostly rural 5 (5%) Rural and suburban 12 (13%)

2. Please check the type of jurisdiction this court has:

General jurisdiction (court of record) 77 (80%) Limited jurisdiction (court not of record) 8 (8%) Other (please specify) 11 (12%) (consolidated courts)

3. Number of judicial positions in the court, including magistrates, commissioners, referees, etc.: Responses ranged from 1 to 312 (L.A. Superior Court) judicial positions 4. Number of full time equivalent (FTE) court staff positions (including clerk of court personnel): Responses ranged from 4 to 2570 (L.A. Superior Court) FTE court staff positions 5. Based on your experience, over the past five years, has the overall proportion of pro se litigants:

Increased greatly 44 (45%) Increased moderately 38 (39%) Stayed about the same 13 (13%) Decreased 2 (2%)

6. Please estimate the average daily proportion of court staff time that is devoted to addressing public requests for pro se-related matters (e.g., court procedures, rules, forms, etc):

1-25% 57 (66%) 26-50% 20 (23%) 51-100% 10 (11%)

7. Please rank the following categories of questions in the order in which the public most frequently asks for assistance from your court staff (1 = most frequently asked):

#1 Requests for appropriate court forms 36 (39%) #2 Requests for information regarding legal remedies 27 (28%)

* Survey was not randomly administered; results not generalizeable.

COURT MANAGERS'SURVEY

Surveys mailed 237Surveys received 98Response rate 41%

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#3 Logistical questions 26 (27%) #4 Assistance in filling out forms 3 (3%) #5 Other 3 (3%)

8. Please rank the following areas of law about which the public most frequently ask questions of court staff. (1 = most frequently asked):

#1 Domestic relations 55 (59%) #2 Traffic 11 (12%) #3 Other (prisoner rights, civil rights) 9 (9%) #4 Small Claims 8 (8%) #5 Criminal 7 (7%) #6 Post-trial/appeals 3 (3%) #7 Landlord-tenant 1 (1%) #8 Probate 1 (1%)

9. Has the court collected data regarding the frequency of cases in which at least one litigant in a case appears pro se?

Yes 22 (23%) No 74 (77%)

Part II–Policies Regarding Staff Assistance

10. Has the court established rules, policies, or instructions to guide court staff in responding (in full, in part, or not at all) to public requests for assistance regarding pro- se related questions?

Yes 50 (52%) No 47 (48%)

11. Are these policies or instructions in writing?

Yes 20 (38%) No 33 (62%)

(If the policy/instruction is not in writing, please summarize the policy/instruction in the space below):

Staff instructed not to give legal advice/prohibited by state law 23 (59%) Send or refer person elsewhere/consult attorney 7 (18%) Use designated person to provide procedural information 3 (8%) Staff advised at orientation/training how to deal with pro ses 2 (5%) Drafting procedures/manual 2 (5%) No specific policy/unavailable 2 (5%)

12. To your knowledge, has the state or local bar been consulted or involved in development of the court's policies relating to court staff assistance to the public?

Yes 23 (25%) No 72 (75%)

If yes, please describe the nature of the bar's involvement: Committee work/consultation/discussions 12 (50%) Provides pamphlets/information brochures 8 (33%) Serve as volunteers/pro bono assistance 4 (17%)

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13. Does the court's staff, in responding to public requests for assistance, furnish the public with any brochures or written materials regarding court procedures, remedies, or other law-related subjects?

Yes 69 (73%) No 26 (27%)

14. Does the court have any written or unwritten statewide or local court policies/ instructions, administrative orders, or rules governing the manner in which pro se litigants should be handled by the judges in the courtroom [ Yes (14) 16% No (72) 84%] or in the litigation process generally [ Yes (14) 20% No (55) 80%]? If either of your answer(s) are yes, please attach copy(s) of the policy/instruction. If the policy/ instruction is not in writing, please summarize it in the space below:

Local rules in effect 6 (43%) Special judge or staff assigned to pro se litigants 3 (22%) Policy is unknown 2 (14%) Parties in pro per are held to same standard as attorneys 1 (7%) Forms must conform 1 (7%) State policy in effect 1 (7%)

Part III–Pro Se Assistance Programs and Services

15. Please indicate the types of cases in which the following materials or services are provided by the court for pro se litigants (circle the types of materials or services that are applicable): Type of Materials or Services Types of Cases a. Court forms (legal language) All cases cited b. Court forms (plain English) Predominantely domestic relations, protective orders/family issues c. Court forms (other language) Eight jurisdictions provide Spanish forms d. Brochures describing court All cases cited procedures/remedies (English) e. Brochures describing court Spanish, when available procedures/remedies (other language) f. Counter staff assistance in filling Predominately small claims, domestic out forms relations g. Bi-lingual counter staff assistance Spanish, when available filling out forms h. Paralegal assigned to assist pro se Very infrequent use litigants i. Pro bono legal assistance provided by Predominately family law local bar

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j. Other (please describe): Attorney lists, mediation services 16. In your opinion, what materials or services listed in the response to Question 15 are the most effective in enabling the court to provide assistance to pro se litigants?

Court forms (plain English) 36 (27%) Counter staff assistance 20 (15%) Brochures (plain English) 17 (13%) Pro bono legal assistance 16 (12%) Instruction sheets 12 (9%) Paralegal assistance 8 (6%) Court forms (legal) 5 (4%) Bi-lingual assistance 5 (4%) Court forms (other language) 4 (3%) Brochures (other language) 3 (2%) Other:

Pro per clinic 3 (2%) Facilitators 1 (1%) List of attorneys 1 (1%) Special programs 1 (1%) 17. What obstacles, if any, has the court had to overcome to establish programs/ services for pro se litigants? (please indicate nature and source(s) of opposition to any of the programs):

Funding 19 (25%) Bar 12 (16%) Lack of personnel, equipment, space 10 (13%) Bench 9 (12%) Line between legal advice/procedures 8 (11%) Untrained staff/staff resistance 6 (8%) Internal problems/coordination 6 (8%) Difficulty satisfying pro se litigant 3 (4%) Language barriers 2 (3%)

18. What programs have been considered but not adopted? (please indicate nature and source(s) of opposition for programs considered but not adopted): Bench, bar or funding sited most often as obstacles.

Pro se kits/forms 5 (25%) Pro bono/volunteer programs 5 (25%) Kiosks 3 (15%) Mediation services 2 (10%) Video/classes 2 (10%) WEB page 1 (5%) Certification program for clerks 1 (5%) Self-help center 1 (5%)

19. (a) Have any of the court's pro se assistance programs been evaluated?

Yes 9 (9%) No 62 (63%)

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20. Program Description(s). The information requested on the next two pages is sought for each different pro se assistance program conducted by the court. If the court has more than one such program, please duplicate these pages and provide the information for each program. Out of 98 returned surveys, (44) 45% jurisdictions responded that they have pro se assistance program(s): A. Name/Title of Program State Court Program AZ Superior Court of Maricopa County Self-Service Center (Phoenix) CA Los Angeles Superior Court Dispute Resolution/Domestic Violence Assistance CA Sacramento Sup./Mun. Courts (2) Small Claims Family Law in Pro Per Clinic CA San Diego Superior Court (2) Family Law Alternative Voluntary Guardianship Services CA Santa Clara Superior Court Family Law Clinic CA Ventura County Sup/Mun. Courts Family Law Pro Per Clinic CO 20th Judicial District (Boulder) Pro Se Case Manager CO Denver District Court Information and Referral Office DC U.S. Court of Veteran Appeals Veterans Consortium Pro Bono Program FL 10th Judicial Circuit (Bartow) Family Court–Pro Se Division FL 17th Judicial Circuit (Ft. Lauderdale) Domestic Violence Intake Unit/Pro Se Legal Assist. FL 16th Judicial Circuit (Key West) Family Court Programs FL Escambia Cty. Clerk (Pensacola) Family Law FL 12th Judicial Circuit (Sarasota) Family Law Self-Help Program FL Supreme Court of Florida Access Initiative (state-wide plan in development) FL 13th Judicial Circuit (Tampa) Family Intake Unit HI District Court (Hilo) Staff Assistance with Handouts/ Brochures IA Polk District Court (Des Moines) (2) Polk County Bar Volunteer Project Pro Se Domestic Abuse IA Sixth Judicial Dist. (Cedar Rapids) Domestic Abuse Procedures KY Jefferson Cir/Dist Courts (Louisville) Inmate Packets MD Cir.Court for Baltimore Cty. (Towson) Pro Se Domestic Assistance Project MI U.S. District Court (Detroit) Pro Se Law Clerks MI Third Circuit Court (Detroit) Personal Protection Order Victim Assistance MI Ninth Circuit Court (Kalamazoo) (2) Friend of Court De Nova and Modification of Custody, Visitation and Support Domestic Assault Personal Protection Orders

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MN Hennepin County (Minneapolis) (4) Conciliation Court Mediation Pilot Project (Small Claims) Family Facilitator Program Pro Se Litigant Resource Center (Legal Access Point) Case Screening/Referral Pgrm. (Pilot Project) MO 22nd Judicial Circuit (St. Louis) Small Claims/Adult Abuse Program MT Lewis & Clark County (Helena) (3) Petitions for Order of Protection Small Claims in District Court, Summary Dissolutions ND South Central Jud. Dist. (Bismarck) Small Claims NJ Crim. Div. of Essex Cty. (Newark) Criminal Expungement Application Fam. Div. Video Presentation on filing, custody/ visitation, domestic violence, child support complaints NJ Fam. Div. of Passaic Cty. (Paterson) Pro Bono Legal Assistance Program NM Second Judicial Dist. (Albuquerque) Pro Se Services Office NY NY City Family Court Petition Preparation NY U. S. District Court (Syracuse) Staff Attorneys NC 26th Judicial District (Charlotte) Volunteer Lawyers Program OH Butler Cty. Dom. Rel. Ct. (Hamilton) Compliance Office RI Family Court (Providence) Domestic Abuse Prevention TN Shelby County (Memphis) Domestic Relations Petitions and Orders UT Utah State Courts (Ogden) Kiosk WA Whatcom Superior Ct. (Bellingham) Family Court Facilitator WA Snohomish Cty.Clk. Office (Everett) (2) Family Law Facilitator Domestic Violence Protection Order Program WA King County (Seattle) Family Law Facilitator Program WI Fifth Judicial District (Madison) How-To Brochures/User Friendly Forms Summary of 53 Pro Se Assistance Programs:

Family/Domestic Relations/Domestic Violence Programs 29 (55%) Small Claims/Dispute Resolution Programs 7 (13%) Other: 7 (13%)

Statewide Access Initiative Staff Assistance for All Cases (How-To Brochures) Inmate Assistance Case Screening Referral Program Criminal Expungement Application Program Kiosk Program (all cases) Voluntary Guardianship Program

Pro Se Office/LawClerk Assistance/Staff Attorneys 4 (8%) Bar or Pro Bono Programs 4 (8%) Self-Service/Resource Center 2 (4%)

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B. Target Population of Pro Se Litigants (check all that apply):

General Court 7 (9%) Small Claims 13 (18%) Landlord/Tenant 7 (9%) Domestic Relations 41 (55%) Other (specify): 7 (9%) (traffic, criminal, prisoner civil rights, probate)

C. What are the principal services provided for pro se litigants under this program?

Distribute/sell information/forms/instructions 16 (27%) Respond to procedural questions/assist with forms 15 (25%) Give referrals (legal and community) 8 (14%) Provide legal/paralegal or pro bono assistance 7 (12%) Domestic violence assistance/protocol 5 (8%) Provide technical service (kiosk, video, copy machines) 3 (6%) Law library 2 (3%) Arrange for interpreter/special needs 2 (3%) Mediation 1 (2%)

D. How is the program or service funded? (check all that apply)

Court 27 (35%) State Government 15 (20%) Local Government 12 (16%) Bar 9 (12%) Other 13 (17%) (pro bono svcs, grants, federal funds, United

Way) E. Who is responsible for administration/management of the program? (check all that apply)

Court 41 (68%) Bar 7 (12%) Volunteer 3 (5%) Combination/Other 9 (15%)

F. Who provides staff for the program? (check all that apply)

Court 37 (60%) Bar 9 (15%) Volunteer 6 (10%) Combination/Other 9 (15%)

G. What is the approximate number of full time equivalent (FTE) court staff members performing this program or service?

0 5 (11%) 6 - 10 2 (4.5%) .25-.50 4 ( 9%) 11 - 17 2 (4.5%)

1 16 (36%) Other 3 (6%) 1.5 - 5 13 (29%) (contract staff, volunteers)

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H. What is the average number of hours per month per FTE program staff member actually spent in providing this program or service?

0 3 (6%) .5 - 100 14 (29%) Over 200 1 (2%) 101-200 26 (54%) Unknown 4 (9%)

I. What is the approximate annual cost of the litigant assistance program (including salaries, fringe, equipment, supplies, space, etc.)?

Less than $100 2 (4%) $51,000 - $100,000 6 (14%) $100 - $10,000 11 (21%) Over $100,000 7 (15%) $11,000 - $50,000 12 (26%) Unknown 18 (39%)

J. From what budget(s) are the costs for this program paid? (Please describe approximate allocation of costs paid by each funding source).

Court operations 17 (35%) State 8 (17%) Filing/referral fees 7 (14%) Local government 7 (14%) Federal 5 (10%) Grants 2 (5%) In-kind 1 (2%) Bar 1 (2%) Donation of time 1 (2%)

K. If the program uses any new technologies (e.g., interactive kiosk, automated telephone services, internet access, etc.), please briefly indicate what technologies are used and comment on the court's experience with the technology. Technology cited:

Automated phone system 11 (41%) PC/software 6 (22%) Internet access 3 (11%) Kiosk 3 (11%) Video presentations/conferencing 2 (7.5%) Answering machine/fax 2 (7.5%)

L. If you had the authority and funding to adopt a pro se assistance program of any kind for the litigants in your court, what would be the principal components of such a program?

Equipment/technology (kiosk, automated phones, internet, pcs, software) 18 (29%)

Forms preparation assistance/trained staff 15 (24%) Lawyers/pro bono/paralegal assistance 13 (21%) General resource brochures/better materials for public 10 (16%) Protocol/input from judges 3 (4%) Bi-lingual assistance 2 (3%) Lawyer referral service 2 (3%)

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APPENDIX III: STATUTES AND CONSTITUTIONAL PROVISIONS

Federal Statutes 28 U.S.C. § 1654 "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." 28 U.S.C. § 452 "All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders."

State Statutes and Constitutional Provisions Alabama ALA. CONST. Art. I, § 10 "That no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party." ALA. CODE § 34-3-19 (1996) "The provisions of this article shall not be construed to prevent any person from conducting or managing his own case in any court in this state." Alaska ALASKA STAT. § 22.20.040 (1996) "An action or proceeding may be prosecuted or defended by a party in person or by attorney..." Arizona A.R.S. CONST. art. II, § 11 "Justice in all cases shall be administered openly..." Arkansas ARK. CONST. art. II, § 13 "Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws." California CAL. CONST. art. 1, § 3 "The people have the right to...petition government for redress of grievances..." Colorado C.R.S.A CONST. art. 2, § 6 "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character, and right and justice should be administered without sale, denial or delay." Connecticut CONN. CONST. art. I, § 10 "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." Delaware DEL. CONST. art. I, § 9 "All courts shall be open; and every man for an injury done him in his reputation, person, movable or immovable possessions shall have remedy by the due course of law, and justice administered according to the very right of the cause and the law of the land, without sale, denial, or unreasonable delay or expense."

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District of Columbia DC ST A CT Rule 47 "Nothing in these rules shall be construed to prevent any person who is without counsel from prosecuting or defending an appeal in which that person is a party." Florida FLA. CONST. art. I, § 21 "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay. Georgia GA. CONST. art. I, para. XII "No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state." Hawaii HAW. CONST. art. I, § 4 "No law shall be enacted...abridging...the right of the people...to petition the government for a redress of grievances." Idaho IDAHO CONST. art. I, § 18 "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice." Illinois ILL. CONST. art. I, § 12 "Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly." Indiana IND. CONST. art. I, § 12 "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay." Iowa I.C.A. CONST. art. I, § 20 "The people shall have the right to...petition for redress of grievances." Kansas KAN. CONST. Bill of Rights, § 18 "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay." Kentucky KY. CONST. § 14 "All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." Louisiana LA. CONST. art. I, § 22 "All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights." Maine ME. CONST. art. I, § 19 "Every person, for an injury inflicted on the person or the person's reputation, property or immunities, shall have a remedy by due course of law; and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay." Maine ME. CONST. art. I, § 20 "In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced; the party claiming the right may be heard by himself or herself and with counsel..."

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Maryland MD. CONST. Declaration of Rights, art. 19 "That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land." Massachusetts MASS. CONST. art. XI "Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws." Michigan MICH. CONST. art. I, § 13 "A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney." Minnesota MINN. CONST. art. I, § 8 "Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws." Mississippi MISS. CONST. art. III, § 25 "No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both." Missouri MO. CONST. art. I, § 14 "That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay." Montana MONT. CONST Art. II, § 16 "Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character...[r]ight and justice shall be administered without sale, denial, or delay." Montana MONT. CODE ANN. § 25-31-601. "Parties in justices court may appear and act in person or by attorney..." Nebraska NEB. CONST. art. I, § 13 "All courts shall be open, and every person, for any injury done him or her in his or her lands, goods, person, or reputation, shall have a remedy by due course of law and justice administered without denial or delay..." New Hampshire N.H. CONST. "Every subject of this state is Bill of Rights, art. 14 entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws." New Jersey N.J.S.A Const. art. I, § 18 "The people shall have the right to....Petition for redress of grievances." New Mexico N.M. SCT. RULE 2-107. "A party to any civil action may appear, prosecute, defend and appeal any proceeding..." New York McKinney's CPLR § 321 "A party...may prosecute or defend a civil action in person or by attorney..."

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North Carolina N.C. CONST. art. I, § 18 "All courts shall be open; every person for an injury done him in lands, goods, person, or his reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay." N.C. GEN. STAT. § 1-11 (1996) "A party may appear either in person or by attorney in actions or proceedings in which he is interested." North Dakota N.D.C.C. CONST. art. I, § 16 "All courts shall be open, and every man for an injury done him in his land, goods, person, or reputation, shall have remedy by due process of law, and right and justice administered without sale, denial or delay." Oklahoma OKLA. CONST. art. II, § 6 "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." Oregon OR. CONST. art. I, § 10. "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property or reputation." Pennsylvania PA. CONST. art. I, § 11 "All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay." Rhode Island R.I. CONST. art. I, § 5 "Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one's person, property, or character. Every person ought to obtain right and justice freely, and without purchase, completely and without denial; promptly and without delay; conformably to the laws." South Carolina S.C. CONST. art. I, § 9 "All courts shall be public, and every person shall have speedy remedy therein for wrongs sustained." S.C. CODE ANN. § 40-5-80 "This chapter shall not be construed so as to prevent a citizen from prosecuting or defending his own cause, if he so desires, or the cause of another, with leave of the court first had and obtained; provided, that he declare on oath, if required, that he neither has accepted nor will accept or take any fee, gratuity or reward on account of such prosecution or defense or for any other matter relating to the cause." South Dakota S.D. CONST. art. VI, § 20 "All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay." Tennessee TENN. CONST. art. I, § 17 "That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay." TENN CODE ANN § 23-1-109 "Any person may conduct and manage the person's own case in any court of this state." Texas TEX. CONST. art. I, § 13 "All courts shall be open, and every person for an injury

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done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Utah UTAH CONST. art. I, § 11 "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party." Vermont VT. CONST. ch. I, art 4 "Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; conformably to the laws." Washington WASH. CONST. art. I, § 10 "Justice in all cases shall be administered openly, and without unnecessary delay." West Virginia W. VA. CONST. art. III, § 17 "The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay." Wisconsin WIS. CONST. art. I, § 21(2) "In any court of this state, any suitor may prosecute or defend his suit either in his own proper person or by an attorney of the suitor's choice." Wyoming WYO. CONST. art. I, § 8 "All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay."

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APPENDIX IV: ANNOTATED BIBLIOGRAPHY

BRIAN BATTAGLIA, Explaining Small Claims Court to The Prospective Pro Se Litigant, 67-April Fla. B.J. 39 (1993).

According to the author, the Florida Bar, over the years, has been searching for ways to enhance its image with the general public. He suggests that another method of improving public confidence in the Florida Bar besides pro bono services is assisting pro se litigants by explaining the small claims court to them. The author suggests that by recognizing the pro se litigant at the lower court levels, the public in general will be less inclined to believe that attorneys are motivated purely by self-interest. JULIE M. BRADLOW, Procedural Due Process Rights of Pro Se Civil Litigants, 55 U. Chi. L. Rev. 659 (1988).

According to the author, the rule derived from Faretta v. California, stating that pro se criminal litigants should not receive special treatment, is constitutionally correct if limited to criminal cases.

She argues that, with respect to civil pro se litigants, the determination of how much due process is given should be measured on a sliding scale. At the very minimum, pro se litigants are entitled to have their pleadings liberally construed. Treatment of the pro se litigant by the court beyond this threshold should depend on a case-by-case analysis.

The author suggests that in every analysis, the court identify (1) the protected interest about which the pro se is litigating, (2) the judicial remedy sought by the litigant, and (3) the government's interest in conserving judicial resources, preserving the impartial role of the judge, and the need for reducing the great amount of frivolous pro se litigation.

As the weight of these factors increases, so should the process that is due in such a case. Although the author generally agrees with the current treatment of pro se litigants in civil cases, she believes that court application of a due process balancing test will ensure that pro se litigants have a meaningful opportunity to be heard. She fails, however, to provide examples to show how the balancing test would apply in a hypothetical case. CIRCUIT COURT OF COOK COUNTY PRO SE ADVISORY COMMITTEE, Report on Pro Se Litigation (Chicago: Circuit Court of Cook County, December, 1995).

This committee was established in 1995 to "study the impact and effectiveness of pro se litigation" in the courts of the circuit. It recommended a variety of educational and assistance procedures for pro se litigants. CONFERENCE OF CHIEF JUDGES, Report of the Minnesota Conference of Chief Judges Committee on the Treatment of Litigants and Pro Se Litigation (April 1996).

The primary report consists of the reports and recommendations of the family law, domestic-harassment, and conciliation court (small claims) subcommittees; it also includes an action plan. The committee's goal was "to encourage full legal representation for all litigants while justly and fairly treating those who, due to personal choice or their perception of legal services as cost prohibitive, choose to represent themselves in a legal action." ROBERT M. DANISZEWSKI, Coping with the Pro Se Litigant, N.H. B.J., March 1995, at

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46. This article discusses the rise in pro se representation over the last few years.

According to the author, the rise is due to the extraordinary increases in attorney fees, the public's general distrust of attorneys, and an overall increase in the litigious nature of our society.

The author suggests that initiating a case pro se does more harm than good because of the heavy burdens placed on the court and the general frustration of the court with the pro se litigant. The author highlights Austin v. Ellis, where the New Hampshire Supreme Court commended the trial court for its conduct in "relax[ing] the rules of evidence and mak[ing] a special effort to facilitate the [pro se] plaintiff's presentation of his case."

The author advocates the need for practitioners to acclimate themselves to the dynamics of pro se litigation, and for the courts to ensure that self-representation does not substantially affect the quality of justice. JOHN F. DECKER, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years After Faretta, 6 Seton Hall Const. L.J. 483 (1996).

This article discusses the development of the right to self-representation pre- and post-Faretta v. California. The article evaluates many important issues that concern the pro se litigant, such as: (1) the trial court's admonishments and other duties regarding the right to self-representation; (2) limitations on the right to self-representation such as the court's ability to appoint standby counsel; and (3) the traditional concerns that a pro se faces trying to comply with court procedure.

According to the author, the Supreme Court made an error when it decided Faretta. He points out that courts have a difficult job managing pro se litigation and remaining impartial. Although courts under Mckaskle v. Wiggins and its progeny can appoint standby counsel, the pro se litigant is not required to follow the standby counsel's advice. The author suggests the Supreme Court reconsider its ruling in Faretta. DAVID C. DONEHUE, Peters v. Gunn: Should the Illiterate Defendant Have a Right to Self-Representation, 57 Pitt. L. Rev. 211 (1995).

This article explores the case of Peters v. Gunn, where the defendant, having only a junior high school education and demonstrating a poor ability to read, was found to not have the capacity to represent himself.

According to the author, the right to self-representation is not an absolute right, and courts can consider the defendant's competency to disallow permission to proceed pro se. The author notes that courts may also terminate the right to proceed pro se when the defendant "deliberately engages in serious and obstructionist misconduct."

The author suggests that, in order to maintain the integrity of the civil justice system, illiteracy should be an exception to the right to proceed pro se. Allowing individuals who cannot possibly know how to represent themselves offends every notion of substantial justice and fair play. The author suggests a national court-adopted literacy test that will aid courts in determining when to deny a defendant's motion to proceed pro se. RUSSELL ENGLER, Out of Sight Out of Line: The Need for Regulation of Lawyers' Negotiations With Unrepresented Poor Persons, 85 Calif. L. Rev. 79 (1997).

This article discusses the ethical problems involved with giving advice to the unrepresented party or simply misleading the unrepresented party about matters of law. The issues are framed in the context of the New York City Housing Court, where negotiations with the unrepresented poor are commonplace.

The author suggests that lawyers frequently violate existing ethical rules against

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giving advice to unrepresented parties. He states that, because the unrepresented litigants often are poor, people of color, and women, attorneys tend to take advantage of them by giving misleading advice. The author advocates a strategy that combines enhanced enforcement of existing ethical rules, the formulation of additional ethical rules concerning negotiations with unrepresented parties, increased supervision by courts, and expanded provision of counsel in civil actions. EDWIN L. FELTER, JR., Litigants Without Lawyers, 25 Colo. Law. 23 (June 1996).

This article explores what constitutes the unauthorized practice of law in Colorado. The author notes that the Colorado Court of Appeals held that not all appearances in a representative capacity constitute the practice of law. According to the author, if the nature of the proceeding is neither judicial or quasijudicial, an appearance by a person not licensed to practice law is not improper.

The author advocates that (1) courts should assist in advising pro se litigants on procedural issues; (2) court forms should be simple and in plain English and Spanish; and (3) pro se litigants should be given easy-to-understand brochures to guide them through the case. MARTIN FOX, Judge Helps Pro Se Litigant Upset [Transit Authority] Fine for Beer-Bottle Violation, 8/25/94 N.Y.L.J. at 1.

The author discusses a judge's assistance to a pro se litigant in New York. In this case, the pro se litigant was not aware of precedent that would allow him to be successful in his litigation. According to the author, the judge gave the litigant "a greater degree of latitude" by providing him with precedent applicable to the case and, in accordance with the rule of that case, ruled in the pro se litigant's favor. MARK FRANK, Coaching Pro Pers: How Lawyers Can Help People Solve Their Problems Out of Court, 6/21/94 107 L.A. Daily J. n.118 at 6.

According to the author, the rising cost of litigation resulting from increased attorneys' fees caused an increase in the number of pro pers in the California courts. The author suggests that to keep the courts running more efficiently, some form of assistance should be given to the pro per.

Legal technicians and paralegals are not properly trained for such a task. Therefore, the author suggests unbundling legal services so that an attorney can contract only to perform specific tasks for the pro per. The author advocates that the role of the attorney could be contracted to being a coach or advisor during the difficult aspects of litigation. This would result in significantly lower cost to the pro per without the pro per giving up meaningful access to the courts. NAOMI GAYNOR, People v. Dennany: The Right to Self-Representation, 1995 Det. C. L. Rev. 255.

This article explores the right to self-representation by analyzing the development of the law since Faretta v. California. The author highlights the case of People v. Dennany, where the Michigan Supreme Court held that a defendant does not need to possess legal expertise to represent himself; he merely must be aware that he is required to follow the rules of evidence and the risks of self-representation.

The author advocates that courts, in the interest of providing a meaningful opportunity for a defendant to be heard, require the appointment of standby counsel for each individual that proceeds pro se. MATTHEW GOLDSTEIN, Supreme Court Plans Office to Aid Pro Se Litigants, 3/24/97 N.Y.L.J. 1 (col. 3).

According to the author, due to the need of the courthouse to become user friendly

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and to assist the growing number of self-represented litigants, the Supreme Court of Manhattan in New York will open an office staffed with permanent employees, volunteer attorneys, and law students to assist pro se litigants. JOHN M. GREACEN, 'No Legal Advice From Court Personnel': What Does That Mean?, The Judges' Journal, Winter 1995, at 10.

The author attempts to formulate guidelines for court staff to consider when self-represented litigants ask for assistance. He reviews caselaw defining the practice of law and develops five principles that court staff should keep in mind. These principles lead to his "Staff Guidelines for Providing Information." For further details, see page 41 of this Report and Guidebook. DOUGLAS L. GRUNDMYER, W.A. HARRINGTON, DAVID A HUNTER, AND BILL WISHARD, Rights and Privileges of Accused, 21A Am. Jur.2d Crim. L. 993 (1981).

According to the authors, under Faretta v. California and its progeny, the right to self-representation is supported by the structure of the Sixth Amendment. The article explains that a trial court is not justified in imposing counsel on a defendant against his will, unless it appears that the defendant is incompetent or sui juris, legally without ability to represent himself.

The authors discuss several aspects of a criminal defendant's choice to proceed pro se, such as (1) the inability of the defendant to later claim that his pro se status should be grounds to reverse his conviction, and (2) the manner in which a pro se defendant may choose to represent himself and still utilize such devices as standby counsel (where the attorney merely acts as advisor) or hybrid counsel (where the attorney acts as co-counsel). BRIAN L. HOLTZCLAW, Pro Se Litigants: Application of a Single Objective Standard Under FRCP 11 to Reduce Frivolous Litigation, 16 U. Puget Sound L. Rev. 1371 (1993).

According to the author, the 1983 amendment to Rule 11 of the Federal Rules of Civil Procedure was to remedy the failure of the previous version to effectively deter pleadings and other abuses, especially by pro se litigants.

The author states that, although the previous version of Rule 11 did not expressly refer to pro se litigants, the advisory committee included specific language in the amended rule including pro se litigants within its scope.

Previously, the rule required merely a subjective inquiry of the signer's good faith as measured by the objective test of the reasonableness of the inquiry behind the pleading. Courts can now consider the pro se litigant's circumstances based on what a reasonable pro se would do in (1) reasonably inquiring into the facts, (2) reasonably inquiring into the law, and (3) not filing the lawsuit for an improper purpose.

The author suggests the amended rule will aid in pro se litigants' access to the courts by allowing courts to remove the frivolous claims and allowing the meritorious claims to proceed. The author writes that pro se status should not be an excuse for failing to conform to procedural requirements or for filing vexatious claims. JAY JUDGE, Pro Se Litigant Gets Leeway on Service Procedures, 1/14/92 138 Chi. Daily L. Bull. at 2.

This article discusses the case of Poulaski v. Amtrak, 139 F.R.D. 107 in the Federal District Court for the Northern District of Illinois. The court held that a pro se litigant's failure to comply with the 120-day service requirement of the Federal Rules Of Civil Procedure did not mandate dismissal of the claim because the pro se litigant relied on the instructions of the court's administrative clerk staff. The court found that the pro se litigant, in relying on the instructions, demonstrated neither inadvertence nor half-heartiness, and his diligence in light of his pro se status required that his case not be

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dismissed. Judge Coffin Addresses the Kennebec-Somerset County Legal Secretaries Association, 11 Me. B.J. 388 (1996).

This article reports the comments praising Judge Frank Coffin at the annual recognition banquet to honor the good work of legal secretaries of central Maine. According to the article, Judge Coffin expressed his feelings of an overwhelming need for assistance of pro se litigants in the courts; he was pleased that this service was being performed by the legal secretaries association. The article comments on the fact that the assistance did not include giving legal advice, and was only assistance in filling out court forms. The article concludes by noting the need for similar services in all jurisdictions. HELEN B. KIM, Legal Education for the Pro Se Litigant: A Step Towards a Meaningful Right to Be Heard, 96 Yale L.J. 1641 (1987).

According to the author, Powell v. Alabama suggests that the due process clause mandates the right to counsel for civil litigants. In light of limited availability of court-appointed counsel, limited access to legal services, and ineffectiveness of self-help literature, the author advocates that lawyers and paralegals should assist the pro se litigants by educating them about their legal situation.

The author notes that due to ethical considerations, a class educating the pro se litigant should not result in a contractual attorney-client relationship, and the primary obligation of the lawyer or paralegal instructor is the duty to render information accurately. PATRICIA J. LAMKIN, Sale of Books or Forms to Enable Laymen to Achieve Legal Results Without Assistance of Attorneys as Unauthorized Practice of Law, 71 A.L.R.3d 1000 (1977).

The author discusses the use of publications or forms that aid persons representing themselves. She states that, because of most state laws on the unauthorized practice of law, publications are restricted from giving technical legal advice and this fact has caused many courts to ban the use of do-it-yourself-kits. Many paralegal or legal services have been found to engage in the unauthorized practice of law so often that the only domain left to them is to conduct a typing service. PAUL MCENROE, Going It Alone, Bench & Bar, Feb. 1996, at 17.

This article discusses the impact on the civil justice system of pro se litigation. The author suggests that from the very beginning of filing a compliant, pro se litigants put themselves at risk by venturing into a legal system with which they are unfamiliar without an attorney to represent them. Although the legal system needs a client base to support itself, the right of access to the courts for our nation's poor must be considered. The author argues that expanding legal services programs and pro bono services to aid in pro se access to the courts is warranted. JOSEPH M. MCLAUGHLIN, An Extension of the Right of Access: The Pro Se Litigant's Right to Notification of the Requirements of the Summary Judgment Rule, 55 Fordham L. Rev. 1109 (1987).

The author notes that under 28 U.S.C. § 1654, a litigant has the right to proceed pro se in federal civil litigation. He states that frequently the pro se litigant is not aware of the need to file affidavits in connection with a summary judgment motion. Therefore, he advocates that, if a litigant is to proceed pro se and yet have a meaningful opportunity to be heard, fairness dictates that the pro se litigant be afforded appropriate notification of the requirements of the summary judgment rule.

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According to the author, Bounds v. Smith, where the Supreme Court held that the right to access requires states to assist prisoners in filing legal papers in all cases, implies that pro se civil litigants should also receive assistance in resolving their disputes. Pro se civil litigants share many of the same attributes of prisoner litigants in that both are typically untrained in the law and do not have adequate resources to litigate without assistance of some kind. DAVID MEDINE, The Constitutional Right to Expert Assistance for Indigents in Civil Cases, 41 Hastings L.J. 281 (1990).

According to the author, two forms of expenses burden the indigent litigant: (1) Access fees, which include the cost of filing a lawsuit, service by a marshal or sheriff, jury demands, and (2) litigation fees, including attorney, laboratory, or expert witness fees. The author explains that although access fees have been greatly reduced or removed so that the indigent may have a meaningful opportunity to be heard, other fees have not had similar consideration.

He states that the ability to obtain an expert witness can be a decisive factor in any civil litigation. The author suggest that the failure of courts to assist the indigent in obtaining expert assistance is a form of wealth discrimination and violates the Fourteenth Amendment's equal protection clause. MICHAEL MOLINE, At a Loss In Family Court: Going It Alone Can Have Disastrous Consequences If Judges Fail To Intervene, Cal. Law. July 1996, at 17.

This article discusses how pro se litigants, because of a lack of understanding of court procedures, are potentially setting themselves up for rulings that might not otherwise have been made if they had obtained counsel. The author states that the only way to avoid the harsh results of litigating pro se is if the judge intervenes to provide some assistance or latitude to the pro se litigant. The author notes the great difficulty in the judge performing the task of maintaining fairness in the courtroom without appearing to favor the unrepresented party.

The author argues that, given the high risk of potential losses a pro se litigant might face, courts should remember that the pro se litigant could use some help. FORREST S. MOSTEN, Coaching the Pro Se Litigant: Unbundling Services of the Family Lawyer, Compleat Lawyer. Winter 1995, 12 at S1.

The author notes that in today's family courts, litigants want to have more control over the legal services they are buying. Because of the need to redefine the attorney/ client relationship to allow for clients to have more control and avoid the heavy cost of litigation, the author advocates unbundling legal services.

According to the author, the way legal services work today is that the client purchases complete representation which includes gathering facts, discovering the facts of the opposing party, researching law, drafting court documents and other papers, negotiation, etc. Unbundling–or allowing litigants to purchase what they direct the attorney to do and doing themselves what they think they are capable of doing–would provide for more effective access to the courts by individuals who file pro se. Confidence in the justice system can be maintained because pro se litigants would not believe that the justice system was against them. JAMES C. MURPHY, Access to Legal Remedies: The Crisis in Family Law, 8 BYU J. Pub. L. 123 (1993).

According to the author, the lack of legal assistance programs is a significant problem. The author notes that family law issues account for a significant amount of all requests for legal services among low-income people. He writes that the majority of applicants for legal services are not receiving legal assistance because of the

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overwhelming number of applicants for such services. The author states that the Supreme Court in Stanley v. Illinois recognized that the

right to full enjoyment of family relationships is a liberty interest protected under the Due Process Clause of the Fifth and Fourteenth Amendments. Therefore, the author advocates focusing existing court and government resources to assist pro se applicants in family court, and relaxing current rules on the unauthorized practice of law to allow more effective assistance of pro se litigants by paralegals. KIMBERLY A. OWENS, Right to Counsel–The Third Circuit Delivers Indigent Civil Litigants From "Exceptional Circumstances," 39 Vill. L. Rev. 1163 (1994).

According to the author, although there is no constitutional right to counsel for indigents in civil cases, under 28 U.S.C § 1915 federal courts do have the authority to request counsel for indigents in civil cases. She states, however, that most federal circuits require that as a prerequisite to considering appointment of an attorney to assist the indigent, the court must find that "exceptional circumstances" exist that justify appointed counsel. Yet, the federal circuits have not given guidance to judges regarding how to determine "exceptional circumstances."

In Tabron v. Grace, the Third Circuit removed the "exceptional circumstances" threshold in exchange for merely evaluating less-stringent factors, such as the difficulty of the particular legal issues involved, the necessity for extensive discovery, the ability of the indigent to present a meritorious claim, and whether the case centers on credibility issues. The author notes that the court in Tabron stated that the above factors are not exhaustive.

He argues that the Tabron decision removes the harsh rule of the undefined "exceptional circumstances" rule and gives courts greater guidance in what factors to consider in the appointment of counsel which, the author writes, will increase the number of attorney appointments allowing for speedier reduction of the federal docket. JOHN H. PEARSON, Mandatory Advisory Counsel for Pro Se Defendants: Maintaining Fairness In the Criminal Trial, 72 Calif. L. Rev. 697 (1984).

This article explores the Sixth Amendment's right to counsel in light of the right to self-representation announced in Faretta v. California. The author argues that a pro se litigant can never fully have a meaningful, fair opportunity to be heard without the assistance of counsel. Therefore, the author advocates mandatory advisory counsel for every criminal defendant that chooses to proceed pro se.

He suggests that if courts consider mandatory appointment of counsel, the role of the attorney must be defined, the appellate review of the defendant's errors in reliance on the attorney should be considered differently then the no-review rule of pro se defendants without advisory counsel, and rules regarding the advisory counsel/ defendant relationship should be designed to prevent hostility in the relationship. THEODORE POSTEL, Right to Be Represented By Non-lawyer, 9/22/87 133 Chi. Daily L. Bull. at 1.

This article discusses the Illinois Appellate Court decision of People v. Schwarz, 507 N.E.2d 1192, which held that the trial court did not err in refusing to allow the accused to be represented by his brother, who was not a licensed attorney, since the right to counsel of one's choice does not extend to nonattorneys. The article summarizes the development of the Sixth Amendment's right to counsel and concludes that most jurisdictions do not interpret the right to include the right to counsel by nonlawyers. THEODORE POSTEL, Extent of Judicial Assistance, 1/2/85 131 Chi. Daily L. Bull. at 1.

This article discusses the Illinois Appellate Court decision of Oko v. Rogers, 466 N.E.2d 658, which held that the plaintiff was not denied fair trial on the basis of

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defendant's pro se status, since there was no evidence that the judge conducted the defendant's case for him or failed to remain impartial. According to the author, the court in Oko found that, in order for a trial to proceed fairly, a pro se litigant should be treated with greater latitude than the court would treat a practicing attorney. However, the court must do so without overstepping its duty to remain fair to both sides. CHRISTOPHER S. RHEE, Pro Bono, Pro Se, 105 Yale L.J. 1719 (1996).

This article evaluates the public's growing disenchantment with the legal profession because of such beliefs as that attorneys only seek wealthy clients or that large firms have "hired guns," willing to advocate any position to advance clients' goals.

The author states that now more then ever the legal system must make greater commitments to public service and, in particular, pro bono representations. The author writes that by expanding pro bono representation by the bar, public confidence can be maintained. HOWARD M. RUBIN, The Civil Pro Se Litigant v. the Legal System, 20 Loy. U. Chi. L.J. 999 (1989).

The author notes the increases in pro se litigation, especially in family court, housing court, and consumer disputes. He describes how Illinois courts apply a strict standard to pro se litigants to comply with procedural rules, yet give the pro se litigant leniency with respect to pleadings in the interest of equity. The author notes that in order to adequately administer justice, pro se litigants are given extra time to litigate and that such continuances burden already backlogged courts. He reports that in 1972, Cook County established a special pro se branch of the small claims court, and argues that pro se branches should be encouraged in more jurisdictions. WILLIAM W. SCHWARZER, Let's Try a Pro Se and Small-Stakes Civil Calendar in the Federal Courts, FJC Directions, N.9, June 1996, at 14.

According to the author, with the ever-increasing numbers of pro se filings in federal courts, there exists a great need to lighten the burdens placed on these courts when faced with a pro se litigant.

The author advocates establishing a small-stakes civil calendar that would deal primarily with disposition of pro se cases. A pro se and small-stakes calendar will be more efficient and will expedite claims with less cost, which the author suggests is a good incentive for the litigants. Since the forum will be designed to deal with mostly pro se litigants, the judge could become more involved, and this would be another incentive for litigants. CASSANDRA SMITH, Doing It Yourself: Clinic Advises Citizens on How to Sue Police, 12/21/93 106 L.A. Daily J. n254 at 1.

According to the author, a clinic in South Central Los Angeles, founded by a nonattorney, was created to help assist pro se litigants file claims against the police.

The author states that the clinic assists in preparation of the pro se litigant's claim, as well as aiding pro se litigants in filing the claim. She notes that the clinic has operated with a few victories in favor of the pro se litigants whom the clinic helped. STATE BAR OF WISCONSIN, Report of Commission on the Delivery of Legal Services of the State Bar of Wisconsin (May 4, 1996).

The commission was formed to explore and make recommendations concerning ways to increase the availability of legal services to low- and moderate-income persons. It includes recommendations on establishing courthouse information resource centers to provide assistance in making the courts more accessible; it also recommends that the Wisconsin Supreme Court establish a statewide standing Pro Se Forms Committee

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responsible for collating existing pro se materials, creating new forms as needed in the different substantive areas, and establishing procedures to routinely and reliably update and disseminate pro se materials MARY M. TESTERMAN, Bankruptcy Paralegal Regulation and the Bankruptcy Reform Act Of 1994: Legitimate Legal Assistance Options for the Pro Se Bankruptcy Debtor, 23 Cal. Bankr. J. 37 (1996).

According to the Administrative Office of the United States Courts, the number of debtors filing pro se was 12.7 percent of total applications for Chapter 7 bankruptcy. The author states that the number of pro se applicants in federal bankruptcy courts gives rise to the need for qualified assistance to pro se litigants in order to maintain the efficiency of the federal docket.

Paralegals, the author argues, are not suitable to assist pro se bankruptcy petitioners because they are not skilled in all the particular nuances of bankruptcy law, and this should put the pro se consumer in the position of "buyer beware." The only legitimate assistance for pro se litigants is through volunteer attorney pro bono programs. The Unauthorized Practice of Law and Pro Se Divorce: An Empirical Analysis, 86 Yale L.J. 104 (1976).

According to the authors, (the staff of the law review), widespread adoption of no-fault divorce statues by most jurisdictions has significantly increased the number of pro se litigants. They evaluated 331 uncontested divorces from two Connecticut counties and determined that although a litigant may be better off represented by an attorney for matters that involve child custody, large amounts of property, and other difficult, contested issues, this was not necessary when the parties were in agreement as to the issues.

Rules regarding the unauthorized practice of law for a nonattorney service agency assisting pro se divorce litigants in uncontested cases are not warranted. Divorce kits should be used for uncontested divorce litigants. The reason for advocating divorce kits is that attorneys need only be consulted for significant matters of law, and the kits aid pro se divorce litigants at a low cost. VERNETTA L. WALKER, Legal Needs of the Public in the Future, 71-MAY Fla. B.J. 42 (1997).

This article addresses the emerging need to expand access to legal services to the nation's working poor due to the great impact this economic class will have on the legal system in the future. The author states that although legal aid provides a valuable service, it does not create a lawyer-client relationship that would provide the best means of assistance. The author therefore advocates that future legal service plans should enforce the lawyer-client relationship paid for by prepaid plans or subsidize limited scope engagement agreements by attorneys to handle specific client needs at modest fees. RYA W. ZOBEL, New Statutes Add to Challenges Posed by Pro Se Cases in the Federal Courts, FJC Directions, N.9, June 1996, at 1.

This article discusses significant changes in how federal courts respond to suits filed by prisoners. It focuses on two newly enacted statutes: the Prison Litigation Reform Act (PLRA), which mandates detailed procedures for dealing with prisoner civil rights cases, and the Antiterrorism and Effective Death Penalty Act (AEDPA), which centers around treatment of habeas corpus petitions and mandatory victim restitution.

According to the author, these statutes were enacted to curb the increasing numbers of prisoner pro se filings within the already overburdened federal court system.

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Programs to assist courts in evaluating pro se complaints, and educational programs designed to assist pro se litigants on how to comply with the new laws are planned in order for parties with legitimate claims to have access to the courts.

The author advocates that courts and administrative offices continue efforts to identify and promote responses to problems faced by pro se litigants in both the criminal and civil forum. This, the author writes, will "[e]nsure fairness and due process rights to unrepresented litigants." PAUL B. ZUYDHOEK, Litigation Against a Pro Se Litigant, Litigation, Summer 1989, 15 at 4.

This article discusses the burdensome impact that pro se litigants have on the civil justice system. According to the author, pro se litigants often waste the court's time by filing legally or factually frivolous claims.

The author states that because courts tend to be more lenient on pro se litigants, attorneys who litigate against the pro se must be aware of how to handle such litigation. He suggests that attorneys walk a fine line when dealing with the pro se litigant in order not to give the court any reason to allow the pro se status of the litigant to harm them. The author closes by advocating stiffer rules designed to prevent access of frivolous claims into court.

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APPENDIX V: ADDITIONAL RESOURCES

There are additional resources that may aid a court in developing effective programs and services to assist self-represented litigants. These include the following: The Ethics Field Book: Tools for Trainers (1996), a publication of the American

Judicature Society, is a guide for those who provide ethics training to court staff. It addresses the issue of court staff assisting self-represented litigants and ethics provisions relating to such practices.

Internet Web sites have been established by many courts, law schools, and state

and federal agencies to assist self-represented litigants. State Justice Institute-funded projects such as:

Connecticut Court Service Centers (SJI-98-N-034). Charisse E. Hutton, Deputy Director of Programs and Court Operations (860) 722-5885. The Connecticut Judicial Branch is designing and implementing a comprehensive statewide system of Court Service Centers to promote equal access to justice and increase access to court information and services for self-represented litigants. The centers will provide information about the court system and procedures, access to automated case information, simplified court forms, and a referral system to state social services, alternative dispute resolution programs, and attorneys. SJI funds will be used to help create an on-line system to enable the public to retrieve case record information easily.

Innovative Services to Increase the [D.C.] Court's Accessibility to Pro Se Litigants in Family Law Matters (SJI-93-12A-E-267). Maureen Thornton (202) 737-4700. The project developed several resources for use by pro se litigants in uncontested divorce, child support, and custody proceedings. The project products include two manuals with details instructions about the legal process, simplified court forms in a camera-ready kit, and two short videos about the law and the court process.

Pro Se Litigant Study (SJI-95-11E-A-158). Margaret J. Horvath, Deputy State Courts Administrator (Florida) (904) 488-6569. This project examined the needs of pro se litigants in family cases, the challenges faced by the courts in meeting those needs, and possible ways for Florida's courts to best respond to the increased number of pro se litigants appearing in family matters.

Enhancing Citizen Understanding of and Access to the Probate Process at D.C. Superior Court (SJI-93-12A-A-258). Constance G. Evans, Register of Wills, (202) 879-4800. The court developed a series of videotapes and informational brochures that explain the probate process for lay persons. The videotapes provide step-by-step instructions for the procedures and forms required to initiate and complete certain probate proceedings. In addition, an information kiosk with the capacity to direct the public, generate maps, instructions and forms and show the videotapes was designed and installed in the Probate Division.

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Interactive Informational Video for Public Use (SJI-95-12W-E-079). Laurie Milder, Special Counsel, Association of the Bar of the City of New York, (212) 382-6629. The project developed an interactive, informational, computerized video kiosk system for the Civil Branch of the Supreme Court in Manhattan. This system assists members of the public, lawyers, jurors, and pro se litigants who enter the courthouse by providing quick, readily accessible information about judicial and courtroom assignments; basic pro se court and government procedures, and jury service. These services are provided in English, Spanish, and Chinese. The kiosk also prints maps to guide people around the courthouse.