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    Wisconsin Lawyer
    December 01, 2000

    Wisconsin Lawyer December 2000: Going Pro Se

    Going Pro Se

    Judge

    by Ann M. Zimmerman


    Many litigants today are exercising their constitutional right to self-representation, and judges, lawyers, and court personnel find coping with them quite challenging. To address these challenges and provide citizens with better access to justice, many states have created pro se assistance programs that range from simple forms assistance to elaborate courthouse self-help centers. In Wisconsin, Supreme Court Chief Justice Shirley Abrahamson is spearheading a movement to provide pro se assistance services to self-represented litigants and the legal community at both the local and state levels.


    Self-representation on the Rise

    Twenty-five years ago, self-representation was an anomaly. According to a 1974-76 study of domestic relations cases in Connecticut, only 2.7 percent of these cases involved a self-represented litigant.1 Today, self-representation - particularly in domestic relations cases - appears to be becoming the norm.

    Research conducted for the American Bar Association (ABA) in Maricopa County (Phoenix), Ariz., indicates that in 88 percent of all 1990 divorce cases at least one of the litigants was self-represented.2 Both parties were pro se in slightly more than half of these cases. In 1991-92, the National Center for State Courts found that neither party was represented in 18 percent of all domestic relations cases in 16 large urban trial courts.3

    Wisconsin Pro Se Assistance Programs

    Currently, there are at least six Wisconsin counties that have pro se assistance programs in place, with a district-wide assistance program in the pipeline.

    In Milwaukee County, attorney Ernesto Romero established the Wisconsin Family Justice Clinic, which provides bilingual services such as community service referrals, forms assistance, and help with procedural matters. Volunteer attorneys staff the clinic, located within the county courthouse, for one hour, five days a week. Free family law forms also are available through the clinic's Web site at http://www.firms.findlaw.com/County/. Romero recently became director of litigation services for Milwaukee County. He will coordinate court operations related to interpretive services and activities of pro se litigants.

    The Dane County Bar Association, under the leadership of Dane County Family Court Commissioner Mary Beth Keppel, recently established a Family Law Assistance Center in the Dane County Courthouse. Modeled after the Milwaukee program, the assistance center also uses volunteer lawyers one day a week to help self-represented family law litigants with referrals, forms, and procedures. Contact Keppel at (608) 266-4166 or attorney Leslie Shear of Murphy & Desmond at (608) 257-7181 for more information.

    Richland County's Resource Center uses lay volunteers to assist self-represented individuals with simple divorce cases. According to Henk Newenhouse, a lay volunteer at the center, the local bar provides radio advertisements for the Resource Center. More information is available from Richland County Circuit Court Judge Edward E. Leineweber at (608) 647-2626.

    The Chippewa County Free Legal Clinic is held once a month in the local public library. Self-represented individuals first meet with a coordinator, who assigns them to then meet with attorneys knowledgeable in a specific area of law. The attorneys answer general questions and provide basic legal information to participants. The Chippewa program is modeled after a similar program in Eau Claire County. In Chippewa County, Lucie Usher, an attorney with Garvey, Anderson, Johnson, Geraci & Mirr, can be contacted at (715) 834-3425. In Eau Claire County, contact attorney Peter Grosskopf, of Grosskopf & Black, at (715) 835-6196.

    The Waukesha County Circuit Court recently received a grant from the Milwaukee Foundation and hired a coordinator to develop its court assistance program. The county is working in partnership with the nonprofit Wisconsin Correctional Services, and the first goal of the program is to provide initial filings assistance to self-represented family law litigants. Contact Chief Judge Kathryn W. Foster, Waukesha County Circuit Court, at (262) 548-7539 for additional information.

    A team in the Tenth Judicial Administrative District, made up of 13 northwestern Wisconsin counties, is developing a pro se assistance program for its entire region. Team members are considering a four-tier approach to implementing services. For example, level one services might include information on how the legal process operates and a roster of local attorneys. Level two services may include forms and instructions. Level three services may include informational seminars, while level four services might provide a self-help legal center. Please contact District Court Administrator Greg Moore at (715) 839-4826 for more information.

    Business newspapers and magazines also have noted these increases. According to a 1993 Wall Street Journal article, 53 percent of the litigants in family law cases in Des Moines, Iowa, were self-represented, and a whopping 88 percent of the family law litigants in Washington, D.C., were representing themselves.4 More recently, Time magazine indicated that the percentage of self-represented litigants in divorce, custody, and abuse cases ranges from 60 to 90 percent, which is an increase of approximately 50 percent over the past decade.5

    This trend is apparent in Wisconsin as well. In a 1999 statewide survey of clerks of court,6 98 percent of the respondents noted increases in the number of self-represented litigants over the preceding five years. While most clerks characterized these increases as moderate, nearly 20 percent considered them dramatic. As with other states that have studied the issue, Wisconsin experienced the greatest increase in the area of family law. Recent management reports from the First and Tenth Judicial Administrative districts indicate the percentage of family law cases involving self-represented litigants in 1999 was 72 percent and 53 percent, respectively.7

    Identifying the Self-represented

    According to the ABA's 1990 research, it is primarily younger, lower-income people without children and little, if any, real estate or property, who choose to represent themselves.8 However, it does not necessarily follow that self-represented litigants have little education. Rather, the ABA's study indicated that most self-represented litigants have completed some college course work. Furthermore, the number of middle-income people opting for self-representation is on the rise. In 1996, a quarter of the respondents in a study commissioned by the New York State Bar Association were self-represented.9 The study indicated that these pro se litigants were "better educated and on the more highly compensated end of the middle income spectrum."10

    Reasons for Self-representation

    Several reasons exist for the increase in self-representation. First, the reality is that many individuals above and below the poverty line simply cannot afford an attorney. For those individuals below the poverty line, recent cutbacks in government funding for legal aid has reduced the types and quality of legal services available.11 There also is a greater number of people today above the poverty line who are ineligible for government-sponsored legal aid, yet unable to afford legal services. While some of these so-called "working poor" may hold misperceptions about the cost of legal representation, it cannot be denied that many of them turn to self-representation out of necessity.12

    Second, as a nation we are in the midst of a do-it-yourself era, which has been extended to do-it-yourself law. Just as one now can obtain from the Internet a wealth of information on booking a vacation without a travel agent, one can download instructions and forms for completing a divorce without an attorney from Web sites like The Law Store, of MyLawyer.com ("serving the pro se community"). The recent proliferation of court television shows further serves to demystify legal proceedings and give citizens confidence to attempt going it alone. Chief Judge Kathryn W. Foster of the Waukesha County Circuit Court has witnessed this firsthand. "When lay people watch television programs like 'Judge Judy' or 'The People's Court,' it gives them a false sense of confidence that they can successfully represent themselves in court," notes Foster.

    Third, anti-lawyer sentiment is alive and well. A 1999 Gallup poll shows that, with respect to honesty and ethics, lawyers ranked 37th out of 45 professions, just edging out gun salesmen, telemarketers, and car salesmen, to name a few.13 Popular movies like "Erin Brockovich" also are not helpful in instilling public trust in attorneys. The sentiment evoked by such movies is "Why hire an unfeeling, money-grubbing buffoon when you can take care of the matter yourself?"

    Challenges Created by Self- representation

    Many self-represented litigants quickly find that it is hard to be meaningfully heard. Procedural and substantive laws are complex - even to lawyers. Untrained individuals find it difficult or impossible to understand and navigate their way around them. Even simple legal terms like "contest" can cause confusion and devastating consequences. 14 Frequently rebuffed when they turn to judges and other court personnel for answers to their myriad questions, self-represented litigants are undeniably deprived of access to justice.

    Court personnel frequently find themselves at the front end of self-representation issues, since a first stop for self-represented individuals often is the clerk of court's office. Caught in a quandry of trying to provide meaningful access to the courts while not violating laws and ethical codes prohibiting the unauthorized practice of law, court personnel are left in the sometimes precarious position of distinguishing between appropriately given information and legal advice.15

    In family law cases, "the inquiries pertain most often to procedural steps and forms completion; answers to these questions provide information [and] not legal advice," notes Marathon County clerk of court Donna Seidel. But, Seidel states, "In the area of small claims actions, the line can more frequently get blurred when a pro se litigant first seeks help with a forms completion question and then continues in the direction of what amount of claim he or she may be entitled to." While some local efforts have been made to clear up confusion and limit demands on staff time through the development of form and instruction packets, court staff "get frustrated when the individual being served does not understand why some questions cannot be answered as the requester would like," Seidel says.

    Judges are required "to balance the duty of impartiality in appearance and fact with the duty to provide a fair and meaningful hearing."16 In addition, this balancing act is to be conducted timely and efficiently. Clearly, this delicate balancing act becomes even more fragile when one or both of the litigants does not understand much of the procedural and substantive laws governing his or her case.

    Meeting the Challenges of Self-Represented Litigants in Wisconsin

    According to Wisconsin Chief Justice Shirley Abrahamson, self-representation poses problems for all of us. "For attorneys and court personnel, self-representation causes administrative, ethical, and legal problems. For litigants, the problem is that of access to justice. How we deal with these problems will positively or negatively affect public trust and confidence in the legal community," Abrahamson says.

    To study the issue of self-representation in Wisconsin, the chief justice last year appointed a working group comprised of judges, lawyers, court personnel, law professors, and others. After attending a national conference sponsored in part by the American Judicature Society and ABA Standing Committee on the Delivery of Legal Services and much deliberation over the last year, the working group recently submitted to the chief justice a report entitled "Meeting the Challenge of Self-represented Litigants in Wisconsin." The report details (in an innovative framework that considers the entire court process) the challenges posed by self-representation, identifies potential methods for addressing the issue on a local basis, and makes specific recommendations for consideration by the state court system for statewide implementation.

    More specifically, the report identifies six opportunities for offering programs or services to self-represented litigants and affected court personnel. For example, there are opportunities to inform and refer litigants before they file a case without an attorney. Here, the objectives are to ensure that self-represented litigants understand the risks and responsibilities of proceeding without an attorney and to refer those interested to lawyers or community service agencies for assistance. According to the report, these tasks may possibly be accomplished by developing informational brochures and local attorney rosters to be kept on file in courthouses.

    Another opportunity is to help court personnel manage cases involving self-represented litigants by possibly developing local rules on standard procedure for self-represented litigant cases and/or supplying court personnel and others with frequent training opportunities that review the legal, ethical, and case management issues germane to cases involving self-representation.

    Some of the report's recommendations involve thorny legal dilemmas, such as possibly revising the law on the unbundling of legal services, establishing supreme court guidance to court staff who provide assistance to self-represented litigants, and changing ethics rules for attorneys who volunteer their time in pro se assistance centers. Others are perhaps more feasible and readily acceptable, like hiring an individual to simplify all Wisconsin family law forms for access via the Internet and establishing local assistance centers staffed by lay and attorney volunteers.

    "One of my biggest hopes in addressing the issue of self-representation in Wisconsin is to inspire the legal and volunteer communities to work locally to provide innovative assistance at all levels to those affected by the challenges presented by the state's self-represented litigants population," notes Abrahamson.

    Divorce cases in which one or both litigants are self-represented commonly provide judges with such challenges, points out Chief Judge Edward R. Brunner of the Barron County Circuit Court. "The easier case is when both parties represent themselves," states Brunner. In such a case, Brunner typically swears both parties in and takes testimony, eliciting the necessary information from which to decide the case. He then either makes a ruling or is able to work out an agreement between the parties. In the past, Brunner then instructed the parties to draft the order. "But, even with the help of a fill-in-the-blanks form, the parties were unable to accurately reflect the court's orders," causing delays and continuances while the parties tried again and again.

    Now, Brunner sits down with the parties and helps them fill in the order's blanks. "I know that some judges and lawyers feel that I provide too much assistance to self-represented litigants when I do this, but I am careful not to favor either party," Brunner explains. Furthermore, "the system is burdened when these litigants fail to get the orders timely drafted or when poorly drafted orders result in otherwise unnecessary post-judgment hearings to 'clear up' matters. That is why taking a little extra time at a final hearing actually better serves the litigants and the system," Brunner notes.

    The more difficult divorce case is when only one party is self-represented, because it is hard to appear impartial when one must "lean over the bench" to help move a bewildered litigant's case along, Brunner says. These cases also are time-consuming. Even if a lawyer drafts the order, Brunner finds himself "in the position of having to double-check the order against the transcript to assure accuracy. Had both litigants been represented, their lawyers would have confirmed the accuracy of the orders. Judges are challenged in these cases to see that justice is done and maintain the appearance of impartiality."

    Dealing with ill-prepared and uninformed litigants can be extremely frustrating and time-consuming for lawyers at virtually every stage in a case, from initial filings to appeal.17 This is particularly true in divorce cases, asserts Rebecca Erhardt, a family law attorney at Boardman Law Firm in Madison. "Everybody sees through a filter of emotion when they're getting divorced, which makes it extremely difficult for the self-represented litigant to focus on and evaluate the relevant issues at hand."

    Additionally, while it may seem that lawyers have the advantage in a case against a pro se litigant, it is not necessarily true. "Sometimes my client ends up paying me to educate the other side with respect to property division or child custody laws, and I feel that I need to bend over backwards not to take advantage of the unrepresented opponent," explains Erhardt. Although Erhardt acknowledges that some divorces are quite simple, as when there are no children or significant property involved, she still strongly encourages the other side to hire an attorney to review a stipulated settlement agreement for fairness. According to Erhardt, having attorneys on both sides helps to keep the case on the proper track.

    Self-representation Solutions

    Many states have implemented pro se assistance services to meet the challenges presented by self-representation. A wide variety of services are offered, depending on state and local needs and resources. Staffed or unstaffed courthouse assistance centers, educational clinics, lawyer and community service referral programs, and technological assistance are the most common types of services available to the pro se community.

    The Self-Service Center in Maricopa County (Phoenix), Ariz.,18 is frequently touted as a model pro se assistance program for other states. Court forms, instructions, and educational materials are made available to those who need them without regard to their ability to retain an attorney for representation. Lawyer referrals, access to community services, and the assistance of mediators also are available. The court's information can be obtained from an automated telephone system, or online via the Internet. Domestic relations and probate cases are covered by the Maricopa system. The program is sponsored by many groups, including members of the bench, court staff, the bar community, business, and social service agencies.

    Another respected pro se assistance program is the Family Law Pro Per Clinic in Ventura, Calif.19 Here, the program is limited to family law proceedings. An evening clinic with childcare is provided at no cost once a week. It provides brochures describing court procedures, self-help sample forms binders, bilingual counter staff assistance, and referrals to community services. The Ventura program is staffed primarily by volunteers, including court staff, family law attorneys, paralegals, legal secretaries, and law students.

    Conclusion

    For better or worse, self-represented litigants are here to stay. The dilemmas they pose to the legal community are undeniable. Solutions are available, however, and have been implemented nationally and locally; yet, much work remains. The goal of achieving the proper balance between providing access to courts and the efficient, ethical, and lawful administration of justice is imperative to establishing public trust and confidence in our legal system.

    Initiative to Improve Trust and Confidence in Wisconsin's Legal System

    Former jurors, offenders and their families, and civil litigants voiced their opinions about the Wisconsin justice system as part of a year-long project led by the courts, the legal profession, and the community. Their goal was to identify areas in the justice system where confidence or basic understanding is most lacking.

    The study was led by a committee that convened in August 1999 to identify issues that affect the public's trust and confidence in the Wisconsin justice system. The committee recently issued its findings and strategies for improvement in its October report, "Public Trust and Confidence in the Justice System: The Wisconsin Initiative." The five recommended actions set forth in the action plan are:

    1) Provide equal treatment in the justice system

    2) Encourage judicial/attorney involvement in the community

    3) Enhance satisfaction with the juvenile justice system

    4) Increase empathy in the justice system

    5) Improve the selection and treatment of jurors

    To devise the action plan, the committee reviewed recent national and state research, and members used their own experience and expertise. The committee then hosted focus groups in Milwaukee, Appleton, and La Crosse to gather public input. Their work resulted in an action plan, which will help to shape existing efforts of the State Bar, the courts, law enforcement agencies, and community groups, and to offer strategies for improving or expanding future efforts.

    Chief Justice Shirley S. Abrahamson, Director of State Courts J. Denis Moran, Wisconsin League of Women Voters President Kathy Johnson, and State Bar President Leonard L. Loeb appointed the committee's members, who included three attorneys, three judges, one clerk of court, and three nonlawyer members of the public. Outagamie County Circuit Court Judge Joseph M. Troy, who is also chief judge of the Eighth Judicial Administrative District, served as chair.

    "Examining the state of public trust and confidence in the judicial system has been an enlightening and humbling experience. We have confirmed that we are doing some things very well. Most citizens are confident that the Wisconsin justice system is free from overt bias and dishonesty," said Troy. "It is humbling, however, to learn of the deep alienation felt by some citizens and to realize that we have solid improvements to make in educating people about their system of justice."

    The committee also recommended convening a leadership forum in 2001 to join the leaders of the judiciary, the legal profession, law enforcement, local government, and community groups to discuss the plan's implementation.

    For more information, contact Trina E. Gray, (608) 250-6025, tgray@wisbar.org; or Linda Barth, (608) 250-6140, lbarth@wisbar.org, at the State Bar of Wisconsin.




    Ann M. Zimmerman,
    U.W. 1993, formerly worked as an assistant attorney general at the Wisconsin Department of Justice. She now works as a freelance writer.


    Endnotes

    1 Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers (Meeting #1). American Judicature Society. Illinois: 1998, p.8.

    2 Id. at 8-9.

    3 Id. at 8.

    4 Woo, The Lawyerless: More People Represent Themselves in Court, But is Justice Served?, W. St. J. Aug. 17, 1993, at 1.

    5 Ripley, Amanda, Who Needs Laywers, Time, June 12, 2000, at 24.

    6 Meeting the Challenge of Pro Se Litigants in Wisconsin: Report to Chief Justice Shirley S. Abrahamson (Meeting #2). Wisconsin: 2000 (p.3); handout from John Voelker.

    7 Id. at 3-4.

    8 Meeting #1, at 1-12.

    9 Id.

    10 Id., quoting Spencer, Middle-Income Consumers Seen Handling Legal Matters Pro Se, N.Y. L. J., May 29, 1996, at 1.

    11 Meeting #2, at 14.

    12 Foster, Kathryn, "Programs Assisting the Pro Se Litigants in Wisconsin." State Bar of Wisconsin Annual Convention. Madison. June 29, 2000.

    13 The Gallup Organization, Gallup Poll 1999.

    14 "Wisconsin Courts Work on Pro Se Plans." The Third Branch, Vol. 8, No. 3, at p. 4, Director of State Courts Office. Wisconsin.

    15 Greacen, John M., "'No Legal Advice from Court Personnel?' What Does That Mean?" The Judges Journal, Vol. 34, No. 1, at p. 10 (American Bar Association, Winter 1995).

    16 Meeting #1 at 25.

    17 Meeting #2 at 4.

    18 Meeting #1 at 73.

    19 Id. at 81.


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