Self Help Programs --Self Help Programs --Why This Is a Leadership Issue Why This Is a Leadership Issue
and the Basicsand the BasicsNACM 2006 Annual MeetingNACM 2006 Annual Meeting
Fort Lauderdale, FloridaFort Lauderdale, Florida
Katherine AltenederKatherine AltenederJohn GreacenJohn GreacenSusan LedraySusan LedrayJennifer KeiserJennifer KeiserJuly 13th, 2006July 13th, 2006
Some FactsSome Facts
Demographics of Self Represented Demographics of Self Represented LitigantsLitigants
Income and education level vary by location
Majority are poor
Majority have a high school education
Majority are women
Majority are petitioners, not respondents
High percentage have Internet access
Why don’t they have a lawyer?
Believe they can’t afford oneBelieve they can’t afford one
Believe the case is simple enough to Believe the case is simple enough to handle on their ownhandle on their own
Don’t want to pay a lawyerDon’t want to pay a lawyer
Lawyer will slow everything downLawyer will slow everything down
Don’t trust lawyersDon’t trust lawyers
Increase in frequency
Maricopa County domestic relations cases domestic relations cases24% in 1980
47% in 1985 88% in 1991
Washington state – annual increase from 1995 - 2001Washington state – annual increase from 1995 - 2001Dissolution w/out children - +1.3% Dissolution with children - +0.8% Paternity, Domestic violence, Torts and commercial, Property rights – flat
NCSC statistical summary in handout
DisintermediationDisintermediation
Pumping gasPumping gas
Fixing homesFixing homes
Selling own homeSelling own home
Trading stocks without broker’s adviceTrading stocks without broker’s advice
Self medicatingSelf medicating
Home schoolingHome schooling
Representing themselves in courtRepresenting themselves in court
Differential rates of self-representationDifferential rates of self-representation
California 2001California 2001
Small claims 91.1
Infractions 83.1
Unlawful detainer 81.1
Family 35.3
Civil < $25,000 11.5
Motor vehicle torts 6.1
Felony property crimes 4.5
Juvenile dependency 0.3
Likelihood of eventLikelihood of eventBoth unrepresented v. at least one notBoth unrepresented v. at least one not
(Washington 2001)
Dissolutions with children Dissolutions with children Non-jury trialNon-jury trial 2.1% 2.1% 41.9% 41.9% Motion hearingMotion hearing 37.3%37.3% 74.7%74.7%ContinuanceContinuance 1.5% 1.5% 35.6%35.6%
Dissolutions without children Dissolutions without children Non-jury trialNon-jury trial 1.0% 1.0% 40.1% 40.1% Motion hearingMotion hearing 23.4%23.4% 57.7%57.7%ContinuanceContinuance 0.1% 0.1% 24.3%24.3%
Minutes required for hearingMinutes required for hearingBoth unrepresented v. at least one notBoth unrepresented v. at least one not
(California 2001)(California 2001)
Probate 3.4 17.2 +400%
Felony/personFelony/person 14.0 14.0 37.737.7 +169%+169%
M V tortsM V torts 16.1 16.1 22.322.3 +45% +45%
Family 15.8 12.2 -30%
Small claims 15.5 10.4 -49%
Drug 6.8 4.3 -58%
Unlwfl detainer 13.0 5.7 -128%
Felony/property 8.8Felony/property 8.8 3.7 3.7 -138% -138%
Time from filing to dispositionTime from filing to disposition
Washington state 2001Washington state 2001
Dissolution with childrenDissolution with children
345 days v. 136 days 345 days v. 136 days
Dissolution without childrenDissolution without children
283 days v. 111 days283 days v. 111 days
National Center for State CourtsNational Center for State Courts
similar findings for four of five courtssimilar findings for four of five courts
Other Research Results
Same level of satisfaction as represented litigants (64% v. 63%)
Much lower dissatisfaction (16% v. 29%)
Less likely to seek interim relief
Less likely to seek modification of decree
More likely to report that they understand the decree
70% would self-represent again
Typical Problems Encountered by Typical Problems Encountered by Self Represented LitigantsSelf Represented Litigants
Lack of understanding of the law, court Lack of understanding of the law, court procedures, and the language we speakprocedures, and the language we speakInability to obtain information, forms and Inability to obtain information, forms and instructions instructions Difficulty drafting appropriate documentsDifficulty drafting appropriate documentsIgnorance of duty to move case forwardIgnorance of duty to move case forwardDifficulty assembling evidence and Difficulty assembling evidence and presenting a case to the courtpresenting a case to the courtDifficulty drafting proposed ordersDifficulty drafting proposed ordersDifficulty enforcing court ordersDifficulty enforcing court orders
Why We Care About the Why We Care About the Experience of Self Represented Experience of Self Represented
LitigantsLitigants
Citizens Use Different Criteria for Citizens Use Different Criteria for Evaluating the Outcome of a Court Evaluating the Outcome of a Court
ProceedingProceeding
National Center for State Courts, National Center for State Courts, Trust and Trust and Confidence in the California Courts 2005Confidence in the California Courts 2005 Litigants focus on the fairness of the court Litigants focus on the fairness of the court process in assessing a court hearing (procedural process in assessing a court hearing (procedural justice)justice)Attorneys are more concerned with the fairness Attorneys are more concerned with the fairness of the of the outcomesoutcomes of the cases than with the of the cases than with the fairness of the process by which the outcomes fairness of the process by which the outcomes are attained.are attained.
Components of “Procedural Components of “Procedural Justice” – Professor Tom TylerJustice” – Professor Tom Tyler
Interpersonal respect – persons in the court are Interpersonal respect – persons in the court are treated with dignity and respect and their rights treated with dignity and respect and their rights are protected.are protected.Neutrality – judges are honest and impartial Neutrality – judges are honest and impartial decision makers who base decisions on facts.decision makers who base decisions on facts.Participation – parties have the opportunity to Participation – parties have the opportunity to express their views to decision makers, directly express their views to decision makers, directly or indirectly.or indirectly.Trustworthiness – judges are benevolent; they Trustworthiness – judges are benevolent; they are motivated to treat you fairly, are sincerely are motivated to treat you fairly, are sincerely concerned with the needs of the parties, and concerned with the needs of the parties, and consider their sides of the story.consider their sides of the story.
The Ultimate GoalThe Ultimate Goal
Justice should not depend upon one’s Justice should not depend upon one’s ability or willingness to hire an attorneyability or willingness to hire an attorney
We Have Two ChoicesWe Have Two Choices
To complain about the phenomenon and To complain about the phenomenon and do nothing to improve the experience of do nothing to improve the experience of self represented litigantsself represented litigants
To take steps to accommodate the needs To take steps to accommodate the needs of these litigants –of these litigants –– To help them obtain whatever relief they are To help them obtain whatever relief they are
entitled to under the facts and the lawentitled to under the facts and the law– To help us to operate more effectively and To help us to operate more effectively and
efficientlyefficiently
Reasons to Have a Self Help Reasons to Have a Self Help CenterCenter
People like them; enhance public trust and People like them; enhance public trust and confidence.confidence.Responsive to concerns of commissioners Responsive to concerns of commissioners and legislatures; they refer constituents.and legislatures; they refer constituents.One stop for information and referral.One stop for information and referral.Reduction in delays and dismissals.Reduction in delays and dismissals.Improved quality of information given to Improved quality of information given to judgesjudgesReduced time spent by administrative and Reduced time spent by administrative and judicial staff screening casesjudicial staff screening cases
Reasons to Have a Self Help Reasons to Have a Self Help CenterCenter
Deflect pro se parties needing help to a Deflect pro se parties needing help to a more appropriate place. Expertise, more appropriate place. Expertise, training, time, resources.training, time, resources.
Learn barriers people face and address Learn barriers people face and address them.them.
Stimulate partnerships with libraries, bar, Stimulate partnerships with libraries, bar, legal services, others.legal services, others.
Improve pro bono and bar programsImprove pro bono and bar programs
The Self Represented The Self Represented Litigant Friendly CourtLitigant Friendly Court
Courthouse facilitiesCourthouse facilities
Easy access to information and self help Easy access to information and self help services, brochures, and flyers. Think services, brochures, and flyers. Think about:about:– DemographicsDemographics– Education/literacy levelsEducation/literacy levels
Co-location of self help services and filing Co-location of self help services and filing counterscounters– Improves court experienceImproves court experience– Increases trust and confidenceIncreases trust and confidence
Courthouse facilitiesCourthouse facilities
Signage, Best Practices:Signage, Best Practices:– Post signs in the courthouse near entryways, in Post signs in the courthouse near entryways, in
clerks’ offices, and in other “points of entry” in the clerks’ offices, and in other “points of entry” in the courthouse that clearly direct litigants to the location courthouse that clearly direct litigants to the location of the self-help program within the courthouse.of the self-help program within the courthouse.
– Provide signage where the program is located clearly Provide signage where the program is located clearly identifying the program, in a manner that ensures that identifying the program, in a manner that ensures that the program location can be identified, even during the program location can be identified, even during hours when the program is closed.hours when the program is closed.
Courthouse facilitiesCourthouse facilities
Signage, best practices, continued:Signage, best practices, continued:– Include in signage: hours of operation, scope of Include in signage: hours of operation, scope of
services provided, and information about who is services provided, and information about who is eligible to take advantage of the program.eligible to take advantage of the program.
– Post in a clearly visible place information about where Post in a clearly visible place information about where litigants can turn for assistance when the program is litigants can turn for assistance when the program is closed, including telephone hotlines, lawyer referral closed, including telephone hotlines, lawyer referral service numbers, online resources, or other locations service numbers, online resources, or other locations in the courthouse where they may seek assistance.in the courthouse where they may seek assistance.
Information on how to navigate within the Information on how to navigate within the courthousecourthouse
Materials and InformationMaterials and Information
Be aware of learning styles & literacy issuesBe aware of learning styles & literacy issues– Spoon feed by incrementSpoon feed by increment– A-Z reference guidesA-Z reference guides
FormsForms– SHC cannot meaningfully operate without themSHC cannot meaningfully operate without them– If you don’t make your own, the public will use othersIf you don’t make your own, the public will use others– SimplifySimplify
Instructions for completing formsInstructions for completing forms– Accept that most don’t read themAccept that most don’t read them
Solution: embed in formsSolution: embed in forms– Simplify and use plain languageSimplify and use plain language
Materials and InformationMaterials and Information
Guides to court procedures and case Guides to court procedures and case preparation and presentation in court : the public preparation and presentation in court : the public love these!love these!– Segmented checklistsSegmented checklists– Make available at numerous points of contactMake available at numerous points of contact– Consider classesConsider classes
Legal source materials Legal source materials – Key citation listsKey citation lists– Case summariesCase summaries– Collaborate with librariansCollaborate with librarians
DigestsDigests
Internet Presentation of MaterialsInternet Presentation of Materials
The Power of the WebThe Power of the Web– Uniform informationUniform information
For staff and publicFor staff and public
– Easily UpdatedEasily Updated– Eliminates geographic and time barriersEliminates geographic and time barriers
Particular issues to design aroundParticular issues to design around– Navigation: two tiersNavigation: two tiers
Layperson, many of whom have limited reading and Layperson, many of whom have limited reading and writing skillswriting skills
System professionals, such as lawyers, courts staff, System professionals, such as lawyers, courts staff, social service providers etc.social service providers etc.
Internet Presentation of MaterialsInternet Presentation of Materials
– Technology: platforms; software; Technology: platforms; software; processor AND download speeds; printing processor AND download speeds; printing capabilities; etc.capabilities; etc.
SOLUTION: keep it simple!SOLUTION: keep it simple!
What’s where?What’s where?– State websites & local court websitesState websites & local court websites
Coordinate and be consistentCoordinate and be consistent– Clearly mark local practicesClearly mark local practices
Remember that the public will not make the Remember that the public will not make the distinctions you see – they just “google”distinctions you see – they just “google”
Self Help CentersSelf Help Centers
Services providedServices provided– Wide range of possible servicesWide range of possible services– Start, evaluate, revamp, expandStart, evaluate, revamp, expand– Referrals, forms, procedures, legal information, legal Referrals, forms, procedures, legal information, legal
advice, screening pleadings, writing/scribing, custom advice, screening pleadings, writing/scribing, custom pleadings, language assistance, understanding court pleadings, language assistance, understanding court notices/orders, prep for trial, ordersnotices/orders, prep for trial, orders
Alternative service delivery mechanismsAlternative service delivery mechanisms– Display materialsDisplay materials– One on one help (in person, email, phone)One on one help (in person, email, phone)– Workshops Workshops – ClinicsClinics– Videos/ Flash tutorialsVideos/ Flash tutorials– Document AssemblyDocument Assembly– WebsiteWebsite
Self Help CentersSelf Help Centers
Staffing alternativesStaffing alternatives– Review existing job classifications. Are new classifications Review existing job classifications. Are new classifications
needed?needed?– Court clerks vs. Court staff attorneys vs. Court paralegalsCourt clerks vs. Court staff attorneys vs. Court paralegals– VolunteersVolunteers– Staff from partner organizations Staff from partner organizations – Contract with another organizationContract with another organization– Supervision and responsibility issuesSupervision and responsibility issues
Security considerationsSecurity considerations– Angry, distressed, mentally ill peopleAngry, distressed, mentally ill people– Physical layout; panic buttons; security trainingPhysical layout; panic buttons; security training– TheftTheft
Role of Clerk’s OfficesRole of Clerk’s Offices
Don’t balkanize – integrate and triage!Don’t balkanize – integrate and triage!– Clerk’s Offices (CO) are the key to overall Clerk’s Offices (CO) are the key to overall
efficiency in courtsefficiency in courts– Coordinate delivery of information between Coordinate delivery of information between
Self Help Center (SHC) and COSelf Help Center (SHC) and CO– SHC is not an excuse to avoid responsibility SHC is not an excuse to avoid responsibility
for providing information and assistancefor providing information and assistance
Training and monitoring CO staffTraining and monitoring CO staff– Cross-train staff between CO and SHCCross-train staff between CO and SHC
Role of Clerk’s OfficesRole of Clerk’s Offices
– Capitalize on techniques and strategies Capitalize on techniques and strategies developed in the SHCdeveloped in the SHC
– Understand and recognize a continuum based Understand and recognize a continuum based on substantive knowledge in the distinction on substantive knowledge in the distinction between legal advice and legal informationbetween legal advice and legal information
Assigning experienced clerks to the front Assigning experienced clerks to the front countercounter– Experience leads to efficiencyExperience leads to efficiency– Experience reveals more legal informationExperience reveals more legal information
Self Represented Litigant Friendly Self Represented Litigant Friendly CourtroomsCourtrooms
Special calendarsSpecial calendarsPresence of supporting servicesPresence of supporting services– Additional courtroom staffAdditional courtroom staff– Self help center staffSelf help center staff– InterpretersInterpreters– Volunteer attorneysVolunteer attorneys– Social service personnelSocial service personnel
Judicial ethicsJudicial ethicsJudicial techniquesJudicial techniques
The Ethical ContextThe Ethical Context
ABA Model Code of Judicial ConductABA Model Code of Judicial ConductCanon 3B(7) requires a judge to “Canon 3B(7) requires a judge to “accord accord to every person who has a legal to every person who has a legal interest in a proceeding . . . the right interest in a proceeding . . . the right to be heard according to lawto be heard according to law.” .” Canon 2A requires the judge to “Canon 2A requires the judge to “act at all act at all times in a manner that promotes public times in a manner that promotes public confidence in the . . . impartiality of confidence in the . . . impartiality of the judiciarythe judiciary.” .”
ABA Joint Commission on ABA Joint Commission on Evaluation of the Model Code of Evaluation of the Model Code of
Judicial Conduct Judicial Conduct
Proposed Comment 3 to Rule 2.06 Proposed Comment 3 to Rule 2.06
To ensure impartiality and fairness to all parties, To ensure impartiality and fairness to all parties, a judge must be objective and open-minded, and a judge must be objective and open-minded, and must not show favoritism to anyone. must not show favoritism to anyone. It is not a It is not a violation of this Rule, however, for a judge to violation of this Rule, however, for a judge to make reasonable accommodations to ensure make reasonable accommodations to ensure pro se litigants the opportunity to have their pro se litigants the opportunity to have their matters fairly heard.matters fairly heard.
Typical Appellate Court Statement Typical Appellate Court Statement Concerning the Court’s Duty of Concerning the Court’s Duty of
Equal TreatmentEqual Treatment
“ “A litigant who chooses to proceed pro se A litigant who chooses to proceed pro se will be held to the same established rules will be held to the same established rules of procedure as trained counsel.” of procedure as trained counsel.”
Where the Duty of Equal Treatment Where the Duty of Equal Treatment Does ApplyDoes Apply
Substantive legal standardsSubstantive legal standards
Burden of proofBurden of proof
Competency of evidenceCompetency of evidence
Application of the statute of limitationsApplication of the statute of limitations
Application of “hard” procedural bars, such Application of “hard” procedural bars, such as the time for filing a notice of appealas the time for filing a notice of appeal
Rules of evidence and procedureRules of evidence and procedure
Where It Does Not ApplyWhere It Does Not Apply
Reasonable accommodations in the Reasonable accommodations in the courtroom to ensure the litigant’s ability to courtroom to ensure the litigant’s ability to present his or case to the court.present his or case to the court.
Courts disfavor defaults and prefer to Courts disfavor defaults and prefer to resolve a dispute on the merits of the case resolve a dispute on the merits of the case
Courts will make every effort to decipher Courts will make every effort to decipher the claims of a litigant even though they the claims of a litigant even though they are presented poorly and in improper formare presented poorly and in improper form
The RealityThe Reality
There is no reported appellate case finding There is no reported appellate case finding a judge’s specific accommodations to a judge’s specific accommodations to have gone too far; there are two or three have gone too far; there are two or three ethical opinions saying where not to goethical opinions saying where not to go
There are There are numerous numerous cases and opinions cases and opinions finding that judges did not provide finding that judges did not provide sufficient accommodation or mistreated sufficient accommodation or mistreated self-represented litigantsself-represented litigants
The Current Status of the LawThe Current Status of the Law
Trials judges have broad discretion to Trials judges have broad discretion to make or to refuse to make make or to refuse to make accommodations for self represented accommodations for self represented litigantslitigants
The challenge facing the appellate courts The challenge facing the appellate courts is to set the boundaries of this discretionis to set the boundaries of this discretion– What accommodations are required?What accommodations are required?– What accommodations are prohibited?What accommodations are prohibited?
Judicial Techniques for Dealing Judicial Techniques for Dealing with Self Represented Litigants in with Self Represented Litigants in
the Courtroomthe Courtroom
Soon to be published California Soon to be published California benchbookbenchbook
Articles and booksArticles and books
National Judicial College course under National Judicial College course under developmentdevelopment
Proactive Case ManagementProactive Case Management
Review of all filings and follow up with litigantsReview of all filings and follow up with litigants– By whom: case managers, paralegals, DCM By whom: case managers, paralegals, DCM
coordinatorscoordinators– Why: caseflow, access to justice, trust and Why: caseflow, access to justice, trust and
confidenceconfidence
Court scheduling of matters rather than relying Court scheduling of matters rather than relying on SRLs to request hearingson SRLs to request hearings– Scheduling conferencesScheduling conferences– Paralegal lettersParalegal letters– DCM remindersDCM reminders
Proactive Case ManagementProactive Case Management
Assistance to litigants in settling their casesAssistance to litigants in settling their cases– MediationMediation– ArbitrationArbitration– FacilitationFacilitation– Scheduling conferencesScheduling conferences– Custody investigationsCustody investigations– Settlement conferences/pretrialsSettlement conferences/pretrials
Enabling litigants to leave the courthouse with Enabling litigants to leave the courthouse with an order in hand on the date of their first an order in hand on the date of their first appearanceappearance– Provides a written record of events for litigantProvides a written record of events for litigant– Reinforces memory of eventsReinforces memory of events
Judgments and Orders Judgments and Orders
Alternative ways for courts to prepare orders and Alternative ways for courts to prepare orders and judgments for SRLsjudgments for SRLs--Form orders, templates, judge/clerk prepares orderForm orders, templates, judge/clerk prepares order-Self-Help program staff prepare orders-Self-Help program staff prepare orders-Less time/effort to do orders yourself-Less time/effort to do orders yourself
Assistance in enforcing court ordersAssistance in enforcing court orders--Collection of a judgment; handouts and formsCollection of a judgment; handouts and forms-Contempt motions; forms -Contempt motions; forms -Set review/compliance hearings-Set review/compliance hearings
- Draft orders with consequences- Draft orders with consequences - Refer to law enforcement, child support, child protection, etc.- Refer to law enforcement, child support, child protection, etc.
Collaborations Collaborations
Legal Services ProgramsLegal Services Programs– Reduction of internal resources has created Reduction of internal resources has created
interest in developing creative collaborations, interest in developing creative collaborations, especially with courtsespecially with courts
– Experience serving target populationExperience serving target population
Private BarPrivate Bar– Unbundling and pro bono: terrific synergyUnbundling and pro bono: terrific synergy
Collaborations Collaborations
Social Service ProvidersSocial Service Providers– Improve efficiencies with targeted referralsImprove efficiencies with targeted referrals– Leverage resources by training for basic Leverage resources by training for basic
triagetriage
Public and Law LibrariesPublic and Law Libraries– Community hub of informationCommunity hub of information– Librarians are experts in disseminating Librarians are experts in disseminating
information to the publicinformation to the public
Procedural SimplificationProcedural Simplification
The objectiveThe objective
- - Reduction in work for everyoneReduction in work for everyone
- - SRL compliance with requirements improvesSRL compliance with requirements improves
An example from Minnesota for An example from Minnesota for uncontested divorces with childrenuncontested divorces with children
FundingFunding
Internal budget reallocationsInternal budget reallocations– Prioritize spendingPrioritize spending
State appropriationsState appropriations– Statewide plansStatewide plans
Title IV D reimbursementsTitle IV D reimbursements– Track child support activitiesTrack child support activities
GrantsGrants– Startup costsStartup costs
Pro Bono opportunitiesPro Bono opportunitiesPrivate donationsPrivate donations
Networking, Best Practices, and Networking, Best Practices, and Next Generation IssuesNext Generation Issues
NetworkingNetworkingSelfhelpsupport.orgSelfhelpsupport.orgSelf Represented Litigation NetworkSelf Represented Litigation NetworkLegal Services Corporation websiteLegal Services Corporation website
Best PracticesBest PracticesTrial Court Research and Improvement Trial Court Research and Improvement Consortium Executive Assessment ToolConsortium Executive Assessment ToolMaryland Best Practices PublicationMaryland Best Practices Publication
Networking, Best Practices, and Networking, Best Practices, and Next Generation IssuesNext Generation Issues
Next generation issuesNext generation issues
preparing litigants for the courtroompreparing litigants for the courtroom
developing effective triage systemsdeveloping effective triage systems
developing easy-to-use self assessment developing easy-to-use self assessment techniquestechniques
learning more about judge/litigant learning more about judge/litigant interactionsinteractions
SummarySummary
The challenge facing us as court leadersThe challenge facing us as court leaders
The rewards we have found when we The rewards we have found when we succeedsucceed
