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
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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.
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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.
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.
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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.
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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.
