AJS Editorial

Courts and the self- represented—the road ahead

In spring 1998 AJS published a seminal study on self-representation, Meeting the Challenge of Pro Se Litigation:  A Report and Guidebook for Judges and Court Managers.  A Judicature editorial in July-August 1998 cited key findings of the study and urged courts to adopt programs and policies that facilitate the litigation process for those not represented by a lawyer.

Much has changed since then.  In 1999 AJS conducted a national conference on pro se litigation attended by 325 people from around the country. At the conference, state teams wrote action plans to better serve unrepresented litigants in their courts.  See "Meeting the pro se challenge-an update" on page 326 for details about what the teams have achieved since the conference.

Although much has been accomplished in the three years since Meeting the Challenge was published and the 18 months since the conference ended, some key issues need to be addressed by judicial leaders and court managers— among them better data collection, evaluation of assistance programs, the impact of unauthorized practice of law considerations on court staff, and dilemmas surrounding the role of the judge in pro se litigation.  Therefore, we make the following recommendations.

Collect statistics.  Prior to the 1999 national conference AJS asked state team members to tell us how many litigants were self-representing and what kinds of cases they were appearing in.  Almost all respondents had to give us their best estimates because their courts did not collect this information. State and local courts should collect the data they need to make informed policy decisions.  These data would be used to document the need for an assistance program to local government officials, the court, or the legislature, and design programs that meet actual needs while effectively allocating and using resources. 

Evaluate programs. Courts or other sponsors should evaluate their assistance programs. Components to be evaluated include customer satisfaction, program impact (e.g., are the self-represented moving more quickly through the system, are judges granting fewer continuances?), and program process (e.g., have bottlenecks or unintended consequences developed?).  Evaluation results can be used to refine existing programs and justify new ones, reallocate resources, and reassure funding sources that the program and spending are being monitored.

Address unauthorized practice of law concerns. Fears of crossing the boundary between legal information and legal advice often deter court staff from helping self-represented litigants. This is an inefficient response, given the burgeoning number of unrepresented litigants coming to court.  In his January-February 2001 Judicature article ("Legal information vs. legal advice: developments during the last five years"), New Mexico state court administrator John Greacen argues that court staff must be able to explain court processes and procedures to litigants and tell them how to bring their problems before the court.  However, because of the absolute duty of impartiality, court staff cannot advise litigants, for example, whether to bring their problems before the court, or what remedies to seek.

The legal information/legal advice boundary must be navigated by both attorney and nonattorney court staff.  While Greacen's recommendations apply to both, attorneys may find additional guidance in the American Bar Association Ethics 2000 Commission's recommended new Model Rule 6.5 that would relax standards governing conflicts of interest for lawyers providing short-term limited legal services in court-annexed and nonprofit programs.

Clarify the role of the judge.   Meeting the Challenge of Pro Se Litigation reported lack of agreement about their role among judges in the survey sample.  In the July-August 1998 editorial, AJS recommended that every state develop protocols to guide judges in helping pro se litigants.  Although that effort is moving slowly, guidance is emerging in case law, judicial ethics advisory opinions, and judicial discipline decisions (see the article on page 326 for details), and state judicial conferences are beginning to offer training on the issue.  However, programs that help self-represented litigants prepare for their court appearance and assure that forms and pleadings are accurate and complete can considerably lighten judges' burdens. AJS reiterates its 1998 position that courts should establish assistance programs.

The self-representation phenomenon is a reality courts must respond to in order to fulfill their mission to resolve disputes and maintain their legitimacy and credibility. Along with litigants represented by counsel, litigants without lawyers deserve facilitated, meaningful access to the justice system.