When I started practice (decades ago), the family case pro se rate was single digits, and most were parties who could not afford a lawyer and did not qualify for a no-charge legal services lawyer. There was no collaborative practice, no limited scope representation, and no family law mediation.
It Is a Different World Today
We now refer to pro se parties as self-represented litigants (SRL) rather than pro se. The estimated number of SRLs statewide is 70 percent. Legal service programs have faced funding cuts that limit no-charge representation in family cases.
SRLs include large numbers of individuals who could readily afford to hire a lawyer, but choose not to hire one. However, both limited scope, including collaborative practice, and mediation are now available process options and provide additional choices for clients.
Why Such a Radical Change?
There is no one reason.
A general decline in public opinion about the value of lawyers has occurred – too many people see lawyers as increasing conflict and cost rather than solving problems. Per-case fees continue to rise which affects the affordability of lawyers at many income levels, not just those at low income and poverty levels.
In addition, the internet has fostered a sense of do-it-yourself as the starting point for many parties in lieu of professional services. This DIY approach by the public in the legal realm is reinforced by readily available check-box forms and online resources.
If any other business went from 95 percent to 30 percent of the market share, that business would either shut down or acknowledge the crisis and follow up with internal analysis, consumer surveys, and professional research to identify the issues and make plans for change to regain market share and profitability.
As a profession, lawyers have been slow to change. Most family lawyers still do retainers with deposits and hourly rates. Fees continue to rise. Many only offer full representation. This traditional approach by family lawyers continues despite the fact that the vast majority of our potential clients are choosing to navigate their divorce, paternity, or post-judgment actions with no legal assistance.
This has downsides for the parties as well as the legal profession. DIY can result in decisions made under pressure or threats from the other party, without adequate knowledge of the law and/or the legal or financial ramifications of decisions. It has also created a challenge for courts and staff who are dealing daily with the flood of SRLs trying to navigate their legal process without guidance or expertise.
What Can We Do About It?
First and foremost, we have to be open to self-reflection and change. This includes putting oneself in the shoes of the client and asking and listening to their needs and goals and assess whether we are providing value – does the process work for the client or is the client just being fit into our process?
Though there will always be a core of couples who want or need the traditional litigation/positional bargaining approach, the numbers continue to dwindle. If the majority of couples do not see value in this traditional approach, it is up to us to offer alternatives that provide value from their perspective.
A key change is to offer a variety of legal services and scope of services. This also means looking at alternative billing approaches, including flat fee and point-of-service (pay-as-you-go) options.
If any other business went from 95 percent to 30 percent of the market share, it would either shut down, or make plans for change to regain market share and profitability.
Initial client consultations need to evolve from a brief sales pitch about hiring the lawyer, to listening and educating the individual about all of their process options to involve clients in choosing and creating a process and working relationship that works for them. These options include limited-scope representation, e.g., consulting, drafting assistance, document review and advice, and other services that do not entail full representation.
Wisconsin has a statute, Wis. Stat. section 802.045, affirming limited scope and sample court forms that provide guidance and ease of use. This includes the specific option of collaborative practice, an out-of-court negotiation process in which each party retains an individual lawyer with the limitation that neither lawyer can participate in litigation.
The Wisconsin Supreme Court recently recognized the changing culture of family law with SCR 20:2.4, effective July 1, 2017. This trend-setting rule allows a lawyer serving as a mediator with couples in family law cases to neutrally draft and file all legal documents necessary for their agreement and implementation with the informed consent of both parties.
The rule also addresses neutrality and the role of a lawyer mediator, including no representation, legal advice, or advocacy. Hopefully,e-filing will soon support this rule with a filing category for lawyers to eFile as mediators to further assist parties.
As lawyers become trained in the mediation process and learn the skill of neutral drafting, they can be prepared to offer this joint neutral service to couples who would otherwise choose DIY. Initial meetings will also need to change since the potential lawyer mediator meets with the couple together to provide education, rather than giving legal advice to one of the parties.
Another necessary change for family lawyers is understanding and incorporating the value of interdisciplinary teamwork. This has been a cornerstone of collaborative practice, and it is growing in both mediation and traditional cases. Involving a child specialist and/or financial neutral reinforces the potential value of the process for the couple. Providing the best-trained professionals to address issues to minimize legal cost and maximize outcomes for families helps parties see the value of legal expertise as well.
Looking in the Mirror
There are valuable services we can offer to the public in the wide spectrum between (1) two lawyers providing traditional representation and (2) do-it-yourself.
Many SRLs could afford to retain a lawyer, but they want an alternative to the traditional adversarial system. Though most new lawyers have learned about alternative dispute resolution (ADR) options as part of their law school education and have less to unlearn than those of us with many years of traditional practice, we all need to look at these options.
The rising SRL numbers make it clear we cannot continue to blame internet sites, self-help mindset, technology, court forms, etc. for declining representation rates. We need to look in the mirror.
To avoid obsolescence, we have to listen to consumers, change our business models, learn new skills, and find ways to educate the public and provide the value our legal knowledge and expertise can bring to those with family law concerns.
The future of our family law profession depends on it!