Among the issues discussed below are:
From the judge’s and court staff perspective:
· lack of understanding of rules of procedure, rules of evidence, and courtroom protocol by self-represented litigants
· papers are not complete or correct causing delay in the courtroom
· litigants have difficulty presenting their position without getting emotionally involved
· difficulty in remaining fair and impartial when one party is represented by counsel and the other is not
· discomfort after ruling against a pro se litigant due to procedural non-compliance
· ex parte communications
· the use of court staff time
· difficulty in drawing the line between giving legal information and legal advice
From the lawyer’s perspective:
· waiting in court on a trailing docket while a pro se litigant in another case wastes everyone’s time and my client’s money
· difficulty in knowing how to conduct myself when the other party is unrepresented. If I raise all objections, the process goes nowhere, yet, I have a duty to represent my client.
· danger that the pro se litigant thinks I represent him or her too
· worry over future problems that might arise at a later date and be harder and more expensive to resolve if matters are not correctly resolved at the beginning
· concern that pro se assistance efforts will undermine the role of the bar and take away business
From the self-represented litigant’s perspective:
· lack of information and the inability to get the right forms or information for what I need to do
· confusion and intimidation
· fear to move forward with my case
· belief that I cannot afford a lawyer
· lack of respect from judges, court staff, and attorneys
Moderator: So, what is going on out there? What is this self-represented litigant phenomenon? Is it something new or something the courts have always been dealing with?
Judge: Actually, both. Most cases have always been handled without lawyers in courts of limited jurisdiction - traffic, small claims, landlord-tenant. But increasingly, people are representing themselves in more complex cases in which they used to be represented by lawyers. It occurs most often in domestic relations cases today, but it is certainly not limited to DR, and there is no telling where the trend might lead.
Moderator: Is this trend toward self-representation unique to the courts or is it part of something larger?
Judge: The trend is certainly not unique to people coming into the courts. Every where you look you see other examples where people chose to “do-it-themselves”. Consider these examples: pumping your own gas, doing your own home repairs, “for sale by owner” real estate transactions, stocking trading without the advice of a broker, home schooling. In fact, sociologists have given a name to this phenomenon - “disintermediation” - cutting out the professional intermediary.
Moderator: OK, so we know the courts are not alone, but do we have any data on what types of cases tend to involve self-represented litigants?
Self Help Staff: In 1991, the ABA conducted a study in Maricopa County (Phoenix) Arizona, which showed a consistent increase in self-representation in DR cases. In 1980 at least one self-represented litigant was involved in 27% of the cases. In 1985, that had increased to 48%, and by 1991 the number rose to 88%. Some of the most recent data from Maricopa County shows that 60% of DR cases have no lawyers, 30% have one lawyer, and only 10% have lawyers on both sides.
Moderator: What about New Mexico. Do we have any data on self-representation in our state courts?
Self Help Staff: Our data is very limited at this point.
The Self-Represented Litigants Working Group distributed surveys to the
courts last fall in an attempt to gather some data on self-representation.
Many, but not all, jurisdictions contributed input. For the most
part, results are based on responses from self-represented litigants in
the district courts and metropolitan court.
The surveys revealed that most self-represented litigants were female, 54% were between the ages of 22 -40, and 61% had dependents. 66% of the self-represented litigants completed high school, and 58% reported that they lived in an urban area.
The racial and ethnic composition of self-represented litigants were self-reported as follows: 38 % Caucasian, 47% Hispanic, 6% Native American, and 3% African American.
Of the self-represented litigants in the survey, 41% earned less than $15K annually. 33% earned between $15K to $30K. 7% earned between 30K to $45K, and 6% earned over 45K. Income data was not available for 10% of the self-represented litigants in the survey.
Moderator: Did the surveys provide any insights into the types of cases involved, or why the litigants chose to represent themselves?
Self Help Staff: The overwhelming number of surveys (76%) involved domestic relations cases. 30% of the litigants reported that they did consult with an attorney about their situation, but 79% reported that they chose to represent themselves because they couldn’t afford an attorney.
Moderator: Did the surveys show whether the self-represented litigants used any of the court services currently available to them?
Court Staff: Surprisingly, about two-thirds of the litigants reported that they had not used any of the court aides available to them, such as forms, brochures, videos, or resource centers.
Moderator: Although the data is limited, it seems to suggest that most self-represented litigants believe they have no choice but to represent themselves, and that they do so with very little help from the courts. What is the impact of larger numbers of self-represented litigants on the court process? Court Staff, what is your experience as a court clerk?
Court Staff: My experience is more work and more frustration. Self-represented litigants want more of my time and more information than lawyers do. They need me to tell them what to do. Thank goodness we have a Pro Se Division to which I can refer them. Some self-represented litigants present special problems – some are very difficult to deal with, some are very hard to communicate with because they do not speak English, they do not understand our terminology, or they are intimidated by the process so that you can never be sure whether or not they understand what you are saying.
Moderator: Court Staff, what is it like to be part of the Pro Se Division in the Second Judicial District?
Court Staff: Our experience is just as my colleague describes hers, but more so. We are swamped. We provide fifteen minutes for each litigant. We take them on a first come, first serve basis. We are busy from morning till closing time. And on most days, we have to turn people away. This isn’t surprising since we have anecdotal data suggesting that about half of DR cases have at least one pro se litigant.
Moderator: In the course of your day, Judge Shepherd, you are called upon to preside over cases with and without the assistance of lawyers. Is it safe to say, that a case moves much more easily through the court when lawyers are involved?
Judge: Absolutely. It’s no secret that our legal system can be complicated. It simply is not reasonable to expect pro se litigants to handle their cases as effectively as lawyers would.
Moderator: What are the special problems that you encounter as a judge?
Judge: Many self represented persons lack understanding
of rules of procedure, rules of evidence, and courtroom protocol.
Many come to court without the papers or evidence they need to present
their case. Papers are not complete or correct causing delay in the
courtroom. Many litigants have difficulty presenting their position
without getting emotionally involved. When there are two unrepresented
parties, they often get sidetracked on personal arguments. After
all, these people are in court because they could not work out their problems
on their own. I often have difficulty remaining fair and impartial
when one party is represented by counsel and the other is not.
Moderator: Attorney, what are the issues for a lawyer?
Attorney: I dread going to court and finding out that there are several pro se cases ahead of mine. It takes the judge a lot more time to get those cases decided, and my client’s case is delayed and my time is wasted. I also have difficulty dealing with the unrepresented party. What am I allowed and not allowed to say and do with him or her? How should I handle myself in court when the other side is not represented? If I keep objecting to his or her questions and statements the case will go nowhere, but I have an obligation to represent my client.
Moderator: With that said, what can the bench and bar do to encourage people to use lawyers?
Judge: Some judges make every effort to personally encourage self-represented litigants to hire lawyers at the outset of the proceedings. Around the country, some courts put out information sheets or directories to help people locate attorneys who might be able to handle specific types of cases at reduced rates. For example, in Maricopa County, the court has prepared a loose leaf book of attorney information - one page per attorney - where an attorney can set forth his or her qualifications, experience, areas of concentration, and fixed or hourly rates. New Mexico’s self-represented litigants working group has explored the idea of developing similar directories in this state.
Moderator: When a litigant comes to court without a lawyer, it seems the court has little choice but to encourage the litigant to get a lawyer and provide some assistance in locating a lawyer for those who are interested. But as we heard a minute ago, most people who don’t use a lawyer simply do not believe they can afford one. Do you think there’s any truth to that?
Attorney: Whether it’s true or not, I think the perception is there and must be dealt with. In the domestic relations area, the average divorce with two lawyers involved probably costs about $ 10,000 to $20,000. As lawyers, we know those costs are certainly reasonable for the work involved, but it’s also easy to see why a person of modest means may conclude that he or she simply cannot afford a lawyer.
Moderator: If cost is a major motivator for someone who chooses not to hire a lawyer, is there anything the bar can do to reduce the cost of legal representation?
Attorney: One idea that is gaining momentum around the country is to encourage members of the bar to provide what is called “unbundled” legal services - representation for only part of a case without assuming responsibility for the whole litigation. For example, a lawyer might prepare forms, or review forms prepared by parties, or prepare an agreement on one issue (such as vested pension rights), or counsel a party on how to conduct himself or herself in court. The working group has been exploring the use of unbundled legal services in New Mexico, and in fact, the practice has probably been in use for sometime in a limited way. The Supreme Court recently published proposed amendments to the Rules of Professional Conduct to authorize the practice on a statewide basis. You can find a copy of the proposed rule amendments in your conference notebooks.
Moderator: Aside from reducing the cost of legal representation, can we provide free legal services to those who cannot afford a lawyer even at a reduced rate?
Attorney: It’s just not realistic to think that legal services organizations can provide this scope of representation. With reduced federal funding from the Legal Services Corporation, I doubt that legal services organizations can even begin to handle all of these cases. Legal services has concluded that it must devote some of its resources to helping persons to represent themselves. They just do not have the funding to provide lawyers for everyone who needs one and is qualified.
Moderator: What about pro bono services from the private bar?
Attorney: I doubt that there will ever be enough pro bono hours available to address the problem, but it is an important part of the solution. For those cases that do not qualify under legal services guidelines, efforts are sometimes made to refer individuals to lawyers who are willing to take a case on a pro bono or reduced-fee basis.
Court Staff: The Second Judicial District’s pro se program does work in cooperation with the Albuquerque Bar Association’s Volunteer Lawyer’s Assistance Program to provide assistance to pro se litigants. The State Bar’s Lawyers Care program administers a similar effort refer low-income individuals to attorneys willing to take cases on a pro bono or reduced-fee basis.
Moderator: Are there any other ways that the bar can provide pro bono assistance?
Attorney: There are a number of local bar associations that sponsor seminars for persons planning to represent themselves - explaining the process and the basic law, perhaps distributing officially approved forms. The program in the Eleventh Judicial District in Farmington and Gallup has received national recognition. It brings together volunteer lawyers, mediators, child support enforcement officials, persons from the county clerk’s office to help with transfers of real estate and from the MVD to transfer automobiles, process services, and court staff. The State Bar holds similar seminars and sponsors a legal advice call-in program in conjunction with KOB-TV. The working group has explored the possibility of amendments to the MCLE Rules to authorize some limited credit for attorneys who participate in such programs, and participation in such programs may also qualify toward the aspirational goal of 50 hours of pro bono service contained in the Rules of Professional Conduct.
Moderator: Is there a downside to any of these bar programs designed to assist individuals who want to go to court without a lawyer?
Attorney: There is some concern among members of the bar that pro se assistance efforts might actually encourage more self-representation. For this reason, some local bar programs limit their assistance to low-income individuals below the poverty line. Although it’s not clear whether pro se assistance actually discourages the use of lawyers, it is certainly also possible that pro se assistance efforts used in conjunction with the expanded use of unbundled legal services might lead to the use of more lawyers.
Moderator: From what we’ve heard so far, it’s clear that much has been done, and much more can be done, to encourage people to hire lawyers. But it also seems clear that a certain segment of the population will inevitably come into court without a lawyer either because they don’t think that can afford one or they simply do not want one. What can the courts do for these people to represent themselves effectively - for their own sake and for the sake of the court?
Court Staff: Probably the most common form of assistance is for courts to provide standard, easy-to-use forms. Some courts also provide information packets, setting forth basic jurisdictional requirements, legal principles, and court procedures. The AOC is working with the First Judicial District to develop videotaped vignettes to familiarize self-represented litigants with court procedures. The AOC is in the process of developing standardized pro se forms for use in uncontested DR cases, and the Court of Appeals has also revised the forms and informational packets that it offers to self-represented litigants. The AOC will translate its forms into Spanish once the Supreme Court adopts final versions of the forms.
Moderator: Can any of these processes be used to warn litigants of areas in which it is essential to obtain legal advice?
Court Staff: Yes, the proposed forms contain those sorts of warnings. For instance, they point out that if one of the spouses has a retirement or pension fund, the case presents special legal issues requiring the assistance of a lawyer.
Moderator: What about one-on-one assistance from court staff?
Court Staff: Some courts have created special desks or units for self-represented litigants to answer their questions about forms or process. Other courts are exploring the process of designating a specific individual who can provide one-on-one assistance to individuals before they go into court.
Moderator: Aren’t court staff involving themselves in the unauthorized practice of law when they help individual litigants?
Court Staff: That certainly is a concern, but the New Mexico Supreme Court has adopted a specific set of guidelines to assist court staff in drawing the line between legal information and legal advice. A copy of those guidelines are included in the conference notebook.
Moderator: What other programs are courts developing to assist self-represented litigants?
Court Staff: Courts around the country are trying to automate their self-help support programs - putting them on the Internet, providing forms in an interactive format where the litigant answers questions and the program automatically fills in the blanks on the forms. The AOC is currently experimenting with the use of interactive forms, and is seeking funding for an on-line resource center.
Moderator: You have been involved with a lot of these litigants. Do you think that most of them understand what is going on? Or are they just creating more problems for themselves, and for the courts, in the future?
Court Staff: John, my experience is that a lot of these people can handle their cases themselves, given enough information. Surprisingly enough, the research from Arizona shows that self-represented litigants are less likely that represented litigants to come back to court to reopen their cases. But there are certainly some litigants who are utterly incapable of handling their own cases. The poorest, least educated, most traumatized of them cannot do an effective job of representing themselves, no matter how many forms and booklets we give them.
Moderator: So, what can we do for them?
Court Staff: I would hope that these are the persons to whom legal services will devote their limited resources. Other options are family members, priests, public libraries, community centers, domestic abuse centers – any place where people can obtain competent translation services and the help of caring fellow citizens. It would be great if we had some way of identifying these persons and focusing our Lawyers Care resources on them.
Moderator: Okay, so we have a lot of interesting ideas on the table. Tell us again, why are we doing this?
Judge: For our own good. We need to reduce the burden of these cases on the judges and court staff so that their time is not consumed with them and they have adequate time for other cases. We have the obligation to make sure that all cases get resolved fairly and expeditiously. We need to make sure that the public experiences the court system as one open to all people who come to the courts for service.
Moderator: But if we provide all these nice forms and special services, won’t we encourage more people to represent themselves? Aren’t we encouraging a trend we don’t really believe is wise?
Judge: As we pointed out before, the trend is not
unique to the courts and I doubt that we have much to do with it.
We can ignore what is happening - keeping the general jurisdiction courts
inhospitable to people who represent themselves. All that will do
is make us all miserable. Long lines. Postponed hearings. Waiting
in court for the judge to slog through one of these cases. Frustration.
Reduced public respect for the courts. Adverse reactions from the
legislature. Or we can take steps to make the process
easier for the self-represented. There is always the possibility
that it might marginally increase self-representation. But it is
also possible that by working together the bench and bar can improve the
public’s perception of the legal system and actually increase the use of
lawyers. The societal changes we are seeing today are a real challenge
for the courts and the legal profession. We can either resist the
change to our detriment, or adjust to the change for the benefit of all
Moderator: Counsel, from the court’s perspective, the need to make changes seems clear, but the courts can’t do it alone can they? Don’t we need a much more collaborative effort between the bench and bar?
Attorney: Absolutely. This isn’t a court issue, and it’s not a bar issue. This is a challenge that the bench and bar must face together. Addressing the needs of self-represented litigants is not about getting rid of lawyers, it’s about getting citizens the legal services they need. Working collaboratively, we will surely come up with better solutions than if the courts and lawyers work in isolation. If we work as a team, I have no doubt that we can increase access to legal services and, as a result, improve access to the courts. That’s something we all have an interest in achieving.
Credit should be given to the panel participants, AOC Director John Greacen, Metropolitan Court Judge Denise Barela Shepherd, Twila Larkin, Esq., K.C. Maxwell, Esq., Second Judicial District Pro Se Clinic Program Director Tina Sibbitt, Esq., and Second Judicial District Court Clerk Georgia Sedillo, none of whom, however, should necessarily be viewed as holding the general views here expressed.
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