Access to Justice Forum September 8, 2016 - Campaign for Equal ... [PDF]

Access to Justice Forum September 8, 2016 presented by

Written Materials from Presenters

Oregon Access to Justice Forum Short Bios of Panelists and Speakers September 8, 2016, 9:00am – 5:00pm Wells Ashby is a Circuit Court Judge in Deschutes County, Oregon. Judge Ashby was elected to the bench in 2010 and handles criminal, civil and family law cases. Judge Ashby is a member of the Oregon Uniform Trial Court Rules Committee, the Deschutes County Family Law Advisory Committee and the Deschutes County Domestic Violence Council. He also serves as the presiding judge for the Deschutes County Domestic Violence Deferred Sentencing Program. Prior to joining the bench, Judge Ashby practiced law in Oregon, Idaho and Colorado as a prosecutor, criminal defense attorney and civil litigator. Chief Justice Thomas A. Balmer is Oregon’s 43rd Chief Justice and began service on May 1, 2012. He was first appointed to the Oregon Supreme Court by Governor John Kitzhaber in 2001; he was elected in 2002 and re‐elected in 2008 and 2014. Chief Justice Balmer practiced with the Portland law firm of Ater Wynne LLP and its predecessor firm, Lindsay, Hart, Neil & Weigler from 1982‐93 and 1997‐2001, and also served as Managing Partner. He was Deputy Attorney General of Oregon from 1993‐97. Earlier in his career, he was a Trial Attorney with the Antitrust Division of the U.S. Department of Justice and an associate with Wald, Harkrader & Ross (Washington, D.C.) and Choate, Hall & Stewart (Boston, MA). Chief Justice Balmer received his J.D. from the University of Chicago Law School in 1977 and his A.B. from Oberlin College in 1974. He has been as an Adjunct Professor of Law at Northwestern School of Law of Lewis & Clark College and an Adjunct Professor of Political Science at Lewis & Clark College. He is the author of numerous articles, book reviews, book chapters, and op‐ed columns on antitrust, constitutional law, and other topics. Judith Baker is the Director of the Legal Services Program (LSP) of the Oregon State Bar and the Director of the Oregon Law Foundation. The LSP is charged with the administration of filing fee funds allocated by the legislature to support legal aid. The LSP is responsible for establishing the standards and guidelines for legal services programs and providing oversight of the funded legal services providers in accordance with established evaluation methods. The Oregon Law Foundation, which distributes IOLTA funds to legal aid and other law related public interest projects. Judith is the current President of the National Association of IOLTA programs. She is a frequent speaker on issues relating to legal services for the poor in Oregon. She is a 1990 graduate of University of North Dakota Law School. She has two children and is an avid mountaineer. Sherri R. Carter is the Executive Officer/Clerk of the Los Angeles Superior Court. Carter formerly served as the Court Executive Officer for the Riverside Superior Court. She also served as the Executive Officer and Clerk of Court of the U.S. District Court for the Central District of California, the largest federal district in the nation, and as the Trial Court Executive and Clerk of Court for the Eighth Circuit Court for the State of Utah. Carter graduated summa cum laude with a degree in business administration from the University of California at Riverside. 1

Elisa J. Dozono is a litigation and government relations partner at Miller Nash Graham & Dunn LLP, recognized by her peers as one of the top 25 women "Oregon Super Lawyers" by Law & Politics. Prior to joining Miller Nash, she spent 11 years in public affairs with the Port of Portland, former Portland Mayor Vera Katz, and former Oregon Governor John Kitzhaber, and Clinton/Gore '96. A former extern for the Honorable Ann Aiken of the U.S. District Court of Oregon, Ms. Dozono is a co‐founder and member of the Oregon Asian Pacific American Bar Association, and has served on several state and federal judicial screening committees. Ms. Dozono is chair of the Metro Exposition Recreation Commission, former chair of the Oregon State Lottery Commission, and founding board president and emeritus director of Emerge Oregon, the premier program for recruiting and training Democratic women to run for office. She has also served on the board of directors of the Albina Opportunities Corporation and Cascade AIDS Project, chaired the City Club's research committee regarding marijuana ballot measures, and sat on the City of Portland Central City Urban Renewal Area Committee and MLS/AAA Baseball Task Force. As chair of her firm's pro bono committee, Ms. Dozono regularly speaks on panels regarding pro bono and diversity in the legal profession. She received the Oregon State Bar New Lawyers Division Pro Bono Challenge Award for the Highest Level of Pro Bono Service in 2011, and the firm's Cliff Carlsen Award for Pro Bono Service in 2008. Judge Timothy Gerking is the presiding judge of the Jackson County Circuit Court. Before his appointment to the court in 2010, he practiced civil litigation as a partner with the law firm of Brophy, Schmor, Gerking, Brophy, Paradis & Maddox in Medford. Judge Gerking was admitted to practice in Oregon in 1979 and was previously admitted in the state of Arizona where he began his legal career in 1974. He is a past Vice President of the Oregon State Bar Board of Governors and has served on numerous bar‐related boards, committees, and work groups. He is also a past statewide Co‐chair for the Campaign for Equal Justice, which provides financial support to legal aid efforts to enhance access to justice across the state. He received an undergraduate degree from the University of Arizona and a JD from Arizona State University Law School. Jeff Hall was appointed Trial Court Administrator for the Deschutes County Circuit Court in July, 2012. Hall leads all of the non‐judicial staff of the Circuit Court, with responsibility for the Court’s records, case related financials, jurors, and the Court’s budget. The Deschutes County Circuit Court is a general jurisdiction trial court. Following four years with the Maricopa Superior Court in Arizona to begin his career, Hall worked for the Washington State Administrative Office of the Courts (AOC) 1991‐1995. He served as Benton and Franklin Counties Superior Court Administrator from 1995 to 2002. Hall rejoined the Washington AOC in 2002 to serve in various capacities, including State Court Administrator from 2008 through 2012. Hall is a graduate of Seattle University where he earned Bachelor degrees in Humanities and Criminal Justice. He received a Masters degree in Judicial Administration in 1988 from the University of Denver, College of Law.

2

Ed Johnson became the director of litigation at Oregon Law Center at the start of 2014, after working as a state support unit attorney at OLC for 12 years, where he provided statewide leadership on housing litigation issues. Before that he worked as a staff attorney at Legal Aid Services of Oregon and a litigation Associate at Kay, Scholer, Fierman, Hays & Handler, in New York City. He is a graduate of Miami University and Columbia University School of Law. Ed started working on statewide systemic issues related to fee deferrals in the early 2000’s. He worked with legal aid staff attorneys, assigned to serve clients in all 36 Oregon counties, to study the fee deferral practices statewide. They prepared a report for the courts. He has worked on statewide matters related to CJO 10‐045 adopted by then‐Chief Justice Demuniz, and CJO 12‐12‐078, adopted by Chief Justice Thomas Balmer. He is a frequent presenter on issues related to housing and litigation. Heather Kemper received her undergraduate degree from Oregon State University and her J.D. from Syracuse University College of Law. Heather is new to the position of Statewide Pro Bono Manager at Legal Aid Services of Oregon (LASO). Heather was a Supervising Attorney with the Hillsboro Regional Office of Oregon Law Center where she specialized in family law and breaking the cycle of domestic violence. Heather supervised two pro bono clinics which both utilized pro bono resources from large high‐tech corporations. Bret Knewtson is a 2003 graduate of Lewis and Clark Law School. He initially specialized in personal and small business bankruptcy protection for three years. Starting in 2006 or 2007 the focus of his practice was on substantive debt collection defense and the related FDCPA cases. His office is located in the Washington County, Portland Oregon Metro area near Tanasbourne. Maureen McKnight is the Chief Family Court Judge in Multnomah County, Oregon, handling family, juvenile, and criminal matters. Prior to her appointment to the bench in March 2002, she worked for Oregon’s legal aid programs for over two decades. In that role she handled individual cases as well as provided statewide assistance on policy and litigation matters involving family law and later served as Director of the Multnomah County Office of Legal Aid Services of Oregon. Her interest both before and after taking the bench has focused on systemic family law issues affecting low‐income Oregonians, including access to justice issues, operation of the state's child support program, and the response of Oregon's communities to domestic violence. She was involved as an attorney with a wide range of legislative efforts and as a judge and attorney has authored and presented materials on self‐representation, legislation, the Family Abuse Prevention Act, the Violence Against Women Act, modifications, child support, and evidence. She is a member of the Oregon Judicial Department’s (OJD) Statewide Family Law Advisory Committee, chairing its Self‐Representation Subcommittee. She is also a member of OJD’s Judicial Education Committee, several Oregon eCourt committees, and the Advisory Board for the Gateway Center for Domestic Violence Services. She is the recipient of awards for advocating improvement in Oregon’s Child Support Program (2002), for Public Service to the Oregon State Bar (2000), and for Promoting Women in the Legal

3

Profession and the Community (Oregon Women Lawyers’ 2000 Justice Betty Roberts Award). Judge McKnight is a 1979 graduate of the University of Oregon School of Law. Janice Morgan is the Executive Director of Legal Aid Services of Oregon (LASO). Janice became the Executive Director of LASO in 2011, after having served as a legal aid lawyer in a number of different capacities since 1983. She came to Oregon in 1998 to become the director of Legal Aid’s Farmworker Program. Janice earned her degree in political science at Mount Holyoke College in 1980 and a law degree from Georgetown University in 1983. Janice is a frequent speaker on access to justice in Oregon. Daniel Parr is an attorney and the Communication and Outreach Manager of the Oregon Judicial Department (OJD). Daniel oversees the OJD eFiling system working with court staff and filers to improve the system. Daniel is also involved in OJD's judicial education programs, access to justice efforts, and procedural fairness. Elizabeth Perris was an active United States Bankruptcy Judge for the District of Oregon, for over 30 years (1984 ‐ January 2015) and served on recall until her full retirement in January, 2016. She received her A.B. from the University of California, Berkeley, in 1972 and her J.D. from the University of California, Davis, in 1975. She has been an Adjunct Professor at Lewis & Clark College of Law (2005 ‐ 2006, 2008 ‐ 2009) and Willamette University School of Law (1998). She was a member of the Bankruptcy Appellate Panel for the Ninth Circuit from 1988 ‐ 1993 and 1998 ‐ 2005. From 1976 ‐ 1984 she worked in Oregon as a bankruptcy court law clerk, served as a bankruptcy trustee and an attorney in private practice specializing in bankruptcy. Elizabeth Perris has been involved in pro bono work throughout her legal career. She started as a volunteer lawyer for the Senior Law Project. Then she served on the initial board of the Oregon Law Foundation. She has been involved in the Bankruptcy Law Clinic since its inception approximately 20 years ago, both as a volunteer speaker and by assisting in the recruitment and recognition of volunteer attorneys. She helped develop bankruptcy services for low income Oregonians in Bend and Pendleton. Currently she is assisting in expanding the scope of the services of the Bankruptcy Clinic to include options for dealing with student loans. Caroline Ponzini (Cara) is an experienced family law attorney in Bend, Oregon. She opened Juniper Family Law in May of 2016 to offer her clients a wide variety of family law services and dispute resolution options. Caroline is currently the President of the Deschutes County Bar Association (DCBA) and newly appointed chair of the DCBA’s Family Law Committee. She also serves on the Deschutes County Access to Justice Committee and is interested in making the courts more accessible to family law litigants of all backgrounds. Caroline has a long standing commitment to promoting the well‐being of families within her community. She currently serves as the Vice President of the board of directors of Grandma's House of Central Oregon and has volunteered her time providing peer support to women experiencing postpartum depression and anxiety through Baby Blues Connection. Caroline graduated from Lewis & Clark Law School in 2009 where she served as a clinical intern at the Western Resources Legal Center, 4

Co‐Chaired the Asian Pacific American Law Students Association, and was Associate Editor for the Animal Law Review. Karsten H. Rasmussen has been a judge with the Lane County Circuit Court since 1999 and presiding judge since 2012. Judge Rasmussen graduated with a B.A. from the University of Oregon in 1978, Phi Beta Kappa, an M.A. from the University of Chicago with honors in 1980, and a J.D. from the University of Oregon School of Law in 1983. He has been a member of the Oregon State Bar since 1983 and was a member of the Oregon State Senate from 1993 to 1995. Judge Rasmussen currently chairs the Chief Justice’s Court Re‐Engineering and Efficiencies Workgroup. He is a member of the statewide managing panel for the Oregon Complex Litigation Court and co‐creator and member of the 2nd Judicial District Commercial Court. He has adjudicated complex commercial matters in personal injury, medical malpractice, land use, Indian gaming, mold, business, employment, and construction cases. He has held over 800 formal mediations, including multi‐million dollar settlements in major neonatal medical malpractice claims, products liability cases, and personal injury claims. Prior to joining the Circuit Court, he practiced civil litigation for 16 years throughout Oregon. Judge Rasmussen teaches Oregon Civil Procedure, Insurance Law, and a legal history course at the University of Oregon School of Law. Dan Rayfield is a partner with the law firm Nelson MacNeil Rayfield Trial Attorneys PC. Centrally located in the Willamette Valley, Dan practices across the state representing individuals in plaintiff personal injury and police misconduct cases. Outside his law practice, Dan serves as a State Representative in the Oregon Legislature. He was first elected in 2014 and represents Oregon House District 16, encompassing Corvallis, Philomath, and Oregon State University. Dan currently serves as the Majority Whip for the House Democratic Caucus. He received his B.S. from Western Oregon University and his J.D. from Willamette College of Law. Emily Rena Dozier became a staff attorney at the Salem Regional Office of the Oregon Law Center in 2015, after clerking for the Honorable Martha Walters. As a law student, she worked as a summer law clerk at OLC, in Portland, and as a legal intern at Safe Horizon Domestic Violence Law Project, in New York. She has an undergraduate degree from Reed College, a PHD from the University of Chicago, and a law degree from Columbia University School of Law. As a staff attorney working in a legal aid office in Salem, Emily brings information about the day‐to‐ day experiences of low‐income people seeking fee deferrals in Oregon courts. Richard Slottee graduated from the University of Oregon Law School in 1972 and joined Multnomah County Legal Aid Services as a staff attorney. In 1978 he went to work at Lewis and Clark Law School as a professor and Director of the Lewis and Clark Legal Clinic. The Legal Clinic taught practical lawyering skills to law students through the pro bono representation of low income clients. While he has represented clients with a wide array of legal issues, his focus at the Legal Clinic was on consumer issues and Chapter 7 bankruptcy. When the Legal Clinic closed at the end of 2014, Dick joined Portland State University Student Legal Services. He has lived in the Portland area his entire life. 5

David Thornburgh became the executive director of OLC in 2001, after working as the director of litigation for Legal Aid Services of Oregon for 7 years. He started as a staff attorney at legal aid in 1979 serving Native American clients. He received his undergraduate and law degrees from the University of Oregon. He participated in several groups that studied and made recommendations related to the statewide service delivery structure for legal aid in Oregon starting in 1995. He provided leadership in the planning and implementation of the statewide strategic plans for legal aid that were adopted in 2002, 2007, 2013, and 2016. He has been a frequent presenter at state and national events on issues related to access to justice.

6

Access to Justice Innovation in Los Angeles County (Pages A1 – A227) Panelists  Sherri R. Carter, Executive Officer and Clerk, Los Angeles County (CA) Superior Court 1. Problems and Recommendations for High Volume Dockets: A Report of the High Volume Case Working Group to the CCJ Civil Justice Improvements Committee 2. Call to Action: Achieving Civil Justice for All 3. Cases Without Counsel: Our Recommendations After Listening to the Litigants 4. Cases Without Counsel: Research on Experiences of Self‐Representation in U.S. Family Court 5. Civil Justice Initiative: The Landscape of Civil Litigation in State Courts

Access to Justice Innovation in Los Angeles County A1

Problems and Recommendations for High Volume Dockets: A Report of the High Volume Case Working Group to The CCJ Civil Justice Improvements Committee1 Introduction As NCSC's recently completed study, The Landscape of Civil Litigation in State Courts reflects, the civil business of state courts has changed dramatically over the last few decades: State court case loads are dominated by lower-value contract and small claims cases rather than high-value commercial and tort cases. Only one in four cases has attorneys representing both the plaintiff and the defendant. Only a tiny proportion of cases are adjudicated on the merits, and almost all of those are bench trials in small claims and other civil cases.2 This transformation is evident in “ high volume” dockets that present enormous challenges to litigants, judges and court administrators.3 The huge volume of cases, mostly consisting of lower-value contract cases, landlord /tenant and debt collection filings, presents one challenge.4 Nationally, landlord/tenant cases number in the millions every year.5 Debt collection filings, which also number in the millions nationally, reflect the burgeoning business of third-party debt buyers. . A second challenge is the lack of representation for, and sophistication of, most defendants in these cases, which creates unique management problems and asymmetries between the parties. If left unaddressed, these challenges threaten the integrity of judicial processes and can thwart Acknowledgement: This report was produced by a working group comprised of CJI Committee members Hannah E. M. Lieberman and Linda Sandstrom Simard and Ed Marks (Executive Director, New Mexico Legal Aid). 2 Paula Hannaford-Agor et al., The Landscape of Civil Litigation in State Courts 35 (NCSC, 2015) [hereinafter Landscape]. 3 There are other “high volume” courts outside the scope of the CCJ mandate (e.g., domestic relations), for which some of the recommendations offered here may be applicable. 4 The Landscape study found that contract cases made up between 64 and 80 percent of the civil caseloads in the jurisdictions that were the subject of the study. Thirty-seven percent (37%) of those were debt collection cases, 29 percent were landlord/tenant, and another 17 percent were foreclosure matters. Id. at 17-19. 5 For example, a 2008 study estimated that approximately 300,000 eviction cases were filed in New York City annually. Jessica K. Steinberg, Demand Side Reform in the Poor People's Court, 47 CONN. L. REV. 741, 750 n.22 (2015) [hereinafter Steinberg] (citing Rashida Abuwala & Donald J. Farole, The Perception of Self-Represented Tenants in a Community-Based Housing Court, 44 CT. REV. 56 (2008). This is not only an urban problem. The Quincy Housing Court in Massachusetts handles 1,280 cases annually. James D. Greiner et al., The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future, 126 HARV. L. REV. 901, 917 (2013) [hereinafter Greiner]. See also LANDSCAPE, supra note 1, at 17-19 (contract and small claims cases comprised 80 percent (as an average) of caseloads in studied jurisdictions). The study notes that some of the small claims cases are also likely debt collection cases. That means that, in those ten jurisdictions alone, debt collection cases numbered in the hundreds of thousands, and landlord/tenant cases exceeded 100,000. 1

1


meaningful examination of basic facts and claims.6 The outcomes in high volume dockets typically have serious and long-lasting consequences for litigants. Although the average dollar value of the debt collection and small claims cases handled annually is low,7 a civil judgment can stand in the way of housing, employment and income. Data-miners check and report court records for prospective employers, landlords and creditors. With jobs, shelter and wages hanging in the balance,8 generally for persons of limited means, it is critical that the judgment be the product of a fair and adequate process.9 Postjudgment enforcement efforts including wage garnishment follow on the heels of civil judgments in these cases and should likewise conform to applicable state and federal law. Studies reveal, however, that recurrent practices in many jurisdictions undermine the adequacy or fairness of the operations and results of such high volume dockets. The working group, tasked with developing recommendations regarding high volume dockets, put together this me moran du m to (1) identify the unique characteristics of these cases and dockets; (2) define the most pressing problems they present; and (3) suggest some initial responses for possible inclusion in the final report of the CCJ Civil Justice Improvements Committee. We are motivated by a sense of urgency. A judicial system that is not readily navigated by many, and where outcomes are too frequently not based on a full and fair ventilation of the underlying facts of the case, will lose its integrity and legitimacy. It is thus ultimately our strong commitment to and respect for our system of justice that underlies this effort. In putting together this outline, we are mindful of the scope of the CCJ Committee Unlike other types of cases discussed in the Landscape, delay and litigation expenses are typically not problems in these courts. Trials are infrequent; discovery rarely occurs and when it does, is limited and streamlined. Greiner, supra note 5, at 915-16 (noting simplified rules and standardized forms used in landlord/tenant courts and the rarity of evidentiary hearings, including trials). Indeed, the Landscape study indicated a 42 percent higher default rate and a trebling of dismissals over the past two decades, leading the authors to conclude that “very little formal adjudication is taking place in state courts at all.” LANDSCAPE, supra note 1, at 23. 7 LANDSCAPE, supra note 1, at 35. 8 See Mary Spector, Litigating Consumer Debt Collection: A Study, 31 BANKING & FINANCIAL SERVICES POLICY REPORT 1, 3 (2012) [hereinafter Spector, Litigating]; Greiner, supra 5 at 914, 916, and n. 59. A quick online inquiry reveals the substantial business of record searching, which includes court records. Courts have responded to the increase in efforts to obtain bulk data in varying ways; some charge a fee for the information and restrict its resale. More information can be obtained at the NCSC Privacy/Public Access to Court Records—State Links at http://www.ncsc.org/Topics/Access-and-Fairness/Pravacy-Public-Access-to-Court-Records/State-LOinks.aspx. . Improper garnishments increase the harm of improper practices. FEDERAL TRADE COMMISSION, REPAIRING A BROKEN SYSTEM: PROTECTING CONSUMERS IN DEBT COLLECTION LITIGATION ii (2010), available at https://www.ftc.gov/reports/repairing-broken-system-protecting-consumers-debt-collection-litigation [hereinafter FTC REPORT]. 6

9

James D. Greiner et al., Engaging Financially-Distressed Consumers, FEDERAL RESERVE BANK OF BOSTON, COMMUNITY AND BANKING, Summer 2015, available at https://www.bostonfed.org/commdev/c&b/2015/summer/greiner-jimenez-lupica-engaging-financially-distressedconsumers.htm.

2


mission. Our recommendations focus on changes that court systems can achieve (perhaps to varying degrees based on resources and need) through changes to court administration, operations, rules or "culture" (practices that may have developed over time but are not embodied in law or formal policies). They include suggestions for innovative partnerships and new uses of technology, and reflect recognition that court personnel, including judges, have opportunities to use the "bully pulpit" to educate the public and policymakers about the challenges facing the court system. We have steered away from recommendations that would likely require legislation or significant substantive changes in the law. In keeping with our mission, we have concentrated on possible roles for courts in improving the management of high volume dockets. Distinctive Characteristics of High Volume Dockets Cases filed in high-volume court dockets tend to share a number of common characteristics. The factual and legal issues alleged in the pleadings tend to be highly repetitive. Plaintiffs are likely to be represented by an attorney who often handles a high volume of similar cases.10 Debt collection plaintiffs are almost always corporate entities rather than individual litigants, and landlord/tenant plaintiffs are usually so. Plaintiffs are thus likely to have significantly greater knowledge of formal and informal court practices and far greater resources, including access to both case-specific and general information, than defendants. Defendants, in contrast, are likely to be self-represented individuals,11 who are often of low or modest income. These defendants often face additional barriers that impede effective navigation of the civil justice system and their ability to present an effective defense.12 Barriers may include limited literacy; limited English proficiency; cognitive impairments including mental 10

See LANDSCAPE, supra note 1, at 31-32 (of almost 650,000 cases, plaintiffs were represented by counsel in 92 percent of cases compared with 24 percent of defendants). Greiner, supra note 5, at 908, n. 26 (over 90 percent of evictors represented by counsel); Carroll Seron et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City Housing Court: Results of a Randomized Experiment, 35 L. & SOC’Y REV. 419, 421 (2001) (indicating that 98 percent of landlords had legal representation compared to 12 percent of tenants). See also Mary Spector, Defaults and Details Exploring the Impact of Debt Collection Litigation on Consumers and Courts, 6 VA. L & BUS. REV. 257, 285 (2011) [hereinafter Spector, Debt, Defaults & Details] (noting the concentration of cases in the hands of a few high-volume law firms). 11 The vast majority of tenants are not represented by counsel. See LANDSCAPE, supra note 1, at 32; see also Steinberg, supra note 5, at 751. Among the statistics cited in the article, a 2008 study revealed that 88 percent of tenants in New York City did not have counsel, while 98 percent of their landlords were represented. Id. at n. 23, 24 (with similar statistics for other jurisdictions including Maine, California, New Hampshire and Illinois). In Maryland, a 2011 report indicated that 95 percent of tenants – approximately 601,751 litigants - were self-represented. Id. 12 Steinberg, supra note 5, at 758-59 (“Tenants with mental disabilities, victims of domestic violence, overwhelmed single mothers, non-English speakers, and the mentally ill flood the courts and exacerbate the inadequacy of selfrepresentation;” “Even in courts where pro se litigants are the rule rather than the exception, judges and other court players routinely disregard the narrative-style testimony of unrepresented litigants…”); see also id. at 756 “[In Baltimore Housing Court] … judges typically reject the way pro se litigants speak – through narrative – and automatically deem their stories legally irrelevant;” Paris R. Baldacci, Assuring Access to Justice: The Role of the Judge in Assisting Pro Se Litigants in Litigating Their Cases in New York City’s Housing Court, 3 CARDOZO PUB. POL’Y & ETHICS J.659, 662-665 (2006) [hereinafter Baldacci].

3


illness; and distrust of the courts based on prior experience or upbringing in a different culture. Many defendants are uncomfortable with the adversarial process and may adopt a non-linear approach to story narration that does not lend itself well to court proceedings. They are likely to be ill-equipped to handle formal court proceedings, specialized rules of evidence and procedure, complex or technical federal and state laws or rules related to standing, burdens of proof, and the availability of a wide range of defenses, mitigating circumstances, or opportunities for negotiation or settlement.13 Common Problems Experienced in High Volume Dockets Well-documented, serious, recurrent problems face courts and litigants in high volume dockets. These include inadequate service, insufficient information available to litigants, overcrowded and confusing courtrooms, inadequate explanations to litigants concerning the role of counsel, and insufficient court scrutiny of plaintiff claims. Additional problems that contribute to high default rates and erroneous civil judgments are specific to consumer debt collection cases. These problems are discussed below in roughly the order that cases move from initiation to resolution. Inadequate Service The Landscape study notes that “traditional procedures for serving notice in civil lawsuits are functionally obsolete, especially in suits against individuals. Typical methods of serving process are riddled with inaccuracies and inadequacies.”14 State Attorneys General, including those in New York (2009), California (2013) and Minnesota (2014) have pursued large-scale fraud where hundreds or thousands of persons were not properly served and therefore did not receive notice of the pendency of a Complaint against them.15 These fraudulent practices taint untold numbers 13

For example, landlord tenant cases may require application of federal and states statutes, regulations and common law involving a variety of types of housing (federal subsidies, public housing, private landlord-tenant, condominium). The wide ambit of issues addressed in landlord-tenant disputes can include non-payment of rent; sub-standard conditions; accommodations for persons with disabilities; state laws that protect rights of first purchase; relocation assistance; or the obligations of governmental subsidy providers, to name a few. See also Greiner, supra note 5, at 915 ("The substantive law applicable in summary eviction cases bears notable complexity. Sources of relevant law include federal statutes, federal regulations, state statutes, state regulations, and state common law. Content includes, for example, non-waivable warranties, allocations of duties that can be shifted only by means of written agreements, dependent covenants, and procedural requirements regarding the service and content of the 'notice to quit', the initial document the would-be evictor must serve on the occupant as a precursor to a formal court action.") 14 LANDSCAPE, supra note 1, at 2. 15 See, e.g., Press Release, The Office [Minnesota] Attorney General Lori Swanson, Attorney General Swanson Sues Legal Process Server for Engaging in “Sewer Service,” (Nov. 6, 2014), http://www.ag.state.mn.us/Office/PressRelease/20141106SewerService.asp; Press Release, Attorney General Cuomo Announces Arrest of Long Island Business Owner for Denying Thousands of New Yorkers Their Day in Court, (Apr. 14, 2009), http://web.archive.org/web/201O1117070043/http://www.ag.ny.gov/mediacenter/2009/apr/aprl4a09.html (also announced intent to sue law firm that used the process server to serve over 28,000 summons and complaints); Press Release, Attorney General Kamala D. Harris Announces Suit Against JP Morgan chase for Fraudulent and Unlawful Debt-Collection Practices (May 9, 2013), http://oag.ca.gov/news/pressrelease/attorney-general -kamala-d-harris-announces-suit-against-jpmorgan-chase; See also People v. Zmod Process Corp. DBA Am. Legal Process & Singler, Index No. 2009-4228 (Erie County Sup. Ct., Apr. 2009) (Civil suit

4


of individual cases.16 Victims of “sewer service” may not be aware that they were sued until garnishments, asset seizures or evictions are attempted or a judgment appears on a credit report, at which time it may be extraordinarily difficult, if not impossible to vacate the judgment and restore the individual to the status quo ante. Debt collection dockets have especially high default rates,17 which have increased substantially over the past 20 years.18 Studies show that, in more than half of default cases, consumers had good faith defenses to collection.19 Other studies suggest that defaults decrease when litigants have more information. Thus it cannot be assumed that defaults are a de facto “admission” of liability or no contest. Indeed, many cases result in voluntary and involuntary dismissals after the defendants appeared.20 Insufficient Litigant Information Many litigants lack sufficient information to enable them to navigate court processes effectively or efficiently, making each step frustrating both for the litigant and for court staff. Frontline court staff often cannot provide detailed information to help litigants answer a complaint; understand how, when and where to present the facts of their cases; understand what will happen in the courtroom and how to respond; distinguish between court employees and other players including lawyers for the opposing party; and understand the language of the law and the courts. For their part, court staff also need assistance with self-represented litigants, many of whom need alleged more than 100,000 instances of sewer service in New York. Defendants thereby lost their opportunity to defend and had default judgments entered against them). People v. Singler & Zmod Process Corp. dba Am. Legal Process, Inc. (Apr. 2009) (felony complaint); In re Pfau v. Forster & Garbus et al., Index No. 2009-8236 (Erie County Sup. Ct., July 2009) (civil petition to vacate default judgments obtained against consumers in debt collection cases filed against numerous attorney collectors who used American Legal Process to serve process and obtained default judgments in New York); MFY LEGAL SERVICES, JUSTICE DISSERVED: A PRELIMINARY ANALYSIS OF THE EXCEPTIONALLY LOW APPEARANCE RATE BY DEFENDANTS IN LAWSUITS FILED IN THE CIVIL COURT IN THE COUNTY OF NEW YORK, (2008), http://www.mfy.org/wp-content/uploads/reports/Justice_Disserved.pdf (personal service achieved in only six percent of civil debt collection cases in King and Queen Counties, NY). 16 See, e.g. Capital Development Group LLC v. Marcus Jackson et al, 142 Daily Wash. L. Rptr. 2645 (D.C. Super. Ct. Oct. 2014 (Kravitz, J., dismissing landlord's eviction case due to false attestation of service of mandatory 30 day notice, and awarding fees to defendant's counsel, stated: ''To the extent the conduct exhibited here. . .may not be unique. . .it is all the more important that the intended message of deterrence emanating from the court's award of reasonable attorney's fees and costs be heard loud and clear by those who would consider litigating other landlord-tenant cases in [this] bad faith manner. . .Perhaps most concerning about the bad faith litigation tactics exhibited here is the reality that the fatal legal and factual deficiencies in the plaintiff's claim likely never would have come to light. . .without counsel. . ."). 17 FTC REPORT, supra note 9, at 7 (estimates from 60% to 95%). See also Holland, Peter A., “Junk Justice: A Statistical Analysis of 4,400 Lawsuits Filed by Debt Buyers”, University of Maryland Francis King Carey School of Law Legal Studies Research Paper No. 2014-13 [hereinafter HOLLAND], http://ssrn.com/abstract=2406289 at 192. 18 LANDSCAPE, supra note 1, at 26. 19 Spector, Debt, Defaults and Details, supra note 10, at 272; Spector, Litigating, supra note 8, at 3. Federal and state laws may provide defenses. Forty-two states supplement the federal Fair Debt Collection Act with legislation governing debt collection. Spector, Litigating, supra note 8, at 2. 20 Spector, Debts, Defaults and Details, supra note 10, at 263.

5


more assistance than staff have time to provide. Staff also need assistance to attend to litigants who are confused, upset, angry or have mental or cognitive impairments. Staff often need coaching to understand non-English speakers and respond in ways that bridge cultural differences; to identify the line between “legal advice” and “legal information;” and to adhere to appropriate boundaries about the litigant’s case (e.g., seeming to challenge the legitimacy of positions, asking questions such as “why did you default?” or “why do you need more time?”).21 Overcrowded, confusing courtroom environments In high-volume dockets, large numbers of cases are often scheduled for the same block of time. Courtrooms then become very crowded. Docket calls in the courtroom to determine who is present before the judge takes the bench are often fast-paced and hard to hear and understand. Litigants may miss their case call because they don’t hear it, don’t understand what is required of them, don’t recognize their case by number or plaintiff name or because their name is mispronounced. They can become distracted by competing activities such as loud interruptions from counsel looking for opposing parties. Default judgments are often sought and entered quickly after an apparent lack of response.22 Calling large numbers of cases at the same time frequently means that many parties experience long wait times before their case is called. This is difficult for everyone, lawyers included, but particularly burdensome on persons who are employed, disabled, elderly or frail, or have childcare needs. The sequence of handling cases after the initial call may seem skewed to benefit the attorneys, particularly those who have many cases (easily dozens per day) on the calendar. Lack of explanations concerning the role of plaintiff counsel The behavior of plaintiffs’ attorneys in the courthouse often leads to coerced or misunderstood settlements. Attorneys who regularly handle landlord/tenant or consumer debt cases in significant volume may occupy desks or places in the well of the court, hallways, or public areas adjacent to the courtroom. Sometimes the positioning of their desks suggests to a newcomer that they have an official court role. To move cases along, judges may encourage parties to return to the hallway to explore settlement possibilities. Litigants often read this as judicial pressure to settle23 or they may unnecessarily acquiesce to opposing counsel demands because they 21

Baldacci, supra note 12, at 665. NEW YORK COUNTY LAWYERS’ ASSOCIATION, THE NEW YORK CITY HOUSING COURT IN THE 21ST CENTURY: CAN IT BETTER ADDRESS THE PROBLEMS BEFORE IT? 13 (2005) [hereinafter NEW YORK COUNTY LAWYERS’ ASSOCIATION]. 23 See, e.g., Russell Engler, Out of Sight and Out of Line: The Need for Regulation of Lawyers’ Negotiation with Unrepresented Poor Persons, 85 CAL. L. REV. 79, 120 (1997) [hereinafter Engler] (litigants told by judges to try to work out the dispute in the hall); Baldacci, supra note12, at 665 (primary conversation of pro se litigants in 22

6


mistakenly assume that the attorney with whom they are speaking is connected to the court. Studies have documented repeated instances of lawyers violating the ethical rules against advising unrepresented opponents, or misrepresenting the law.24 This practice has been well documented for years in both densely populated urban areas and smaller communities.25 As a result of the hallway negotiations, judges often do not obtain complete information from both sides to ensure a legally correct judgment on the facts and the law. When presenting a settlement for court review, attorneys opposing self-represented litigants tend to dominate the courtroom colloquy.26 Self-represented litigants also may not appreciate the far-reaching implications of choices in how a case is resolved and recorded in court records when they agree to settle (e.g., dismissal, entry of judgment).27 Pro se litigant difficulties at trial Pro se litigants are often unable to present their stories effectively because they do not know how to present facts in technically acceptable forms. The legal vocabulary is unfamiliar. They do not know how to respond to objections, particularly those asserting lack of relevance or hearsay. They may have difficulty getting documents admitted. Those who are from non-American cultures or speak a language other than English may narrate events in ways to which judges and opposing counsel are not accustomed. As a result, their stories may not emerge fully or coherently. Problems specific to consumer debt collection cases The explosion of consumer debt collection cases, fueled by the proliferation of third party debt buyers and bulk filings, has created additional procedural challenges for judges and litigants. For example, the practice of buying debt instruments in bulk from original and subsequent creditors landlord/tenant court is a rushed interchanged with the landlord’s attorney in the hallway). 24 NEW YORK COUNTY LAWYERS’ ASSOCIATION, supra note 22, at 12. 25 E.g., Greiner, supra note 5, at 942-43; Baldacci, supra note 12, at 665; Joe Lamport, Hallway Settlements in Housing Court, GOTHAM GAZETTE (Dec. 19, 2005), http://www.gothamgazette.com/index.php/about/3083-hallwaysettlements-in-housing-court. See also Erica Fox, Alone in the Hallway: Challenges to Effective Self-Representation in Negotiation, 1 HARV. NEGOTIATION L. REV. 85 (1992). We are not suggesting that court personnel directly participate in these documented abuses and overreaching. However, such unchecked practices lead to court cultures that reward litigant asymmetries, enable unscrupulous attorneys to engage in unethical practices and undermine the adequacy and fairness of the fact-finding process, thereby preventing fair resolution of disputes. 26 NEW YORK COUNTY LAWYERS’ ASSOCIATION, supra note 22, at 13. Self-represented litigants often cannot present their cases effectively and are therefore effectively silenced in court proceedings because they cannot translate their narrative into legally acceptable forms. Their difficulties include unfamiliar vocabulary; problems with evidence (e.g., legal relevance, hearsay objections, difficulty getting documents admitted, dealing with objections); cultural differences in narrating facts). 27 Greiner, supra note 5, at 916. See also, HOLLAND, supra at 200, 224, citing comments of a Maryland Assistant Attorney General that settlement discussions between plaintiffs’ attorneys and unrepresented defendants open the door to settlements “on terms defendants] do not understand and cannot afford”; NEW YORK COUNTY LAWYERS’ ASSOCIATION, THE NEW YORK CITY HOUSING COURT IN THE 21ST CENTURY: CAN IT BETTER ADDRESS THE PROBLEMS BEFORE IT? 13 (2005) [hereinafter NEW YORK COUNTY LAWYERS’ ASSOCIATION].

7


means that debt buyers often cannot show, and may not have, ownership of the debt or accurate information about the debt.28 Studies have shown debt buyers/collectors often cannot substantiate the chain of title or legitimacy of the amount claimed.29 This fundamental lack of proof has implications at every stage of the proceedings. Specifically, complaints often do not meet basic “fact” pleading requirements including identification of the original creditor and original debt, date of the default, the chain of title or connection between the plaintiff and the original lender, relevant contract terms, or the portion of the amount sought attributable to penalties, and interest or attorneys’ fees.30 Without identification of the original creditor or terms, defendants may not recognize the transaction, assume it to be an error and will therefore not respond. Studies suggest that defaults decrease when litigants have more information, so it cannot be assumed that defaults are a de facto “admission” of liability or no contest.31 In addition, bulk debt collectors often sue on debts when the suit is legally or factually precluded including those in which the statute of limitations has expired, the debt has been discharged in bankruptcy, has been satisfied, or is not that of the person sued.32 Exacerbating the legal insufficiencies of the claims themselves, well-documented instances of sharp litigation practices on the part of some debt collection attorneys may also serve to keep 28

At the time of the bulk sale, the buyer typically acquires a computerized record of often hundreds of transactions, with only the names, addresses of consumers, account numbers and total amount allegedly owed. The information is “rarely sufficient to support a judgment against the consumer.” Spector, Debts, Defaults and Details, supra note 10, at 259. See also FTC REPORT, supra note 9; Spector, Litigating, supra note 8, at I, 2; Jamie S. Hopkins, Maryland Court Dismisses 3,168 Debt-Collection Cases, BALT. SUN (Oct. 11, 2012), http://articles.baltimoresun.com/2012-10-11/news/bs-bz-debt-collection-cases-dismissed-20121011_1_debt-collection-cases-judgeben-c-clyburn-maryland-court (Maryland court dismissed 3,168 debt collection cases and ordered liens released as part of a class action settlement. The debt collection firm was alleged to have been unlicensed, sued for wrong amounts, sued for debt barred by limitations, and included private social security numbers in public filings. The firm was also ordered to pay penalties and damages.); Jamie S. Hopkins, A Push for More Proof in Debt Collection Lawsuits, BALT. SUN (July 24, 2011), http://articles.baltimoresun.com/2011-07-24/business/bs-bz-debt-collectionoverhaul-20110724_1_debt-buyers-debt-cases-past-due-consumer-debts; Lippman, C.J., Law Day Remarks: Consumer Credit Reforms (Apr. 30, 2014) [hereinafter Lippman]. 29 Id. See also DISTRICT COUNCIL 37, MUNICIPAL EMPLOYEES LEGAL SERVICES, DEBT COLLECTION ABUSE: 10 TIPS FOR WORKING FAMILIES 4 (2010), http://www.dc37.net/benefits/health/pdf/MELS_DebtCollectionAbuse.pdf (citing their report that found that debt buyers failed to provide documentation in over 94% of the MELS cases in an 18 month period in which a debt buyer sued a consumer; 27% were not properly served and 50% were beyond the statute of limitations). 30 Lippman, supra note 28at 2-3 (plaintiff debt buyers file lawsuits "based on little more than boilerplate language and a few fields of data from a spreadsheet. All too often, these credit card debts are several years old, have been resold multiple times, and critical documents like the original credit agreement and account statements are missing. By the time these so-called "zombie" debts show up in court, it is extremely difficult for debtors – 98 percent of whom are unrepresented - to assess the validity of the claims against them: whether they actually owe the debt at issue, whether the amount due is correct, and whether the plaintiff is the actual owner of the debt. As a result, many debtors who receive court papers fail to appear in court. 31 Replacing the notice pleading standard with a fact pleading standard on a pilot basis in two counties resulted in significantly lower default rates. PAULA HANNAFORD-AGOR ET AL., NEW HAMPSHIRE: IMPACT OF THE PROPORTIONAL DISCOVERY/AUTOMATIC DISCLOSURE (PAD) PILOT RULES 10-12 (Aug. 19, 2013). 32 Spector, Litigating, supra note 8, at 1-2.

8


relevant information from the trial judge. For example, collection attorneys often do not expect defendants to appear in court on the hearing date, and when defendants do appear, the attorneys frequently claim lack of preparedness and seek continuances that are costly for litigants and inefficient for courts.33 There have been documented instances of recurrent choice of inconvenient forums or improper venue by the same high volume collection attorneys.34 Some high-volume collection attorneys have engaged in documented practices of “robo-signing” including automated signing of incorrect or false affidavits, inclusion of unlawful rates of interest and claims for improper fees.35 Debt collectors also have high rates of non-compliance with state bonding requirements, which in some jurisdictions provide a defense or an affirmative counter-claim in response to the collection effort.36 Recommendations The following recommendations are taken from research and information gathered from various jurisdictions. We give particular emphasis to practices that have demonstrated results but also include recommendations from attorneys who have direct experience with these high volume dockets and those emerging from studies conducted by the Federal Trade Commission and the federal Consumer Financial Protection Bureau. The recommendations will hopefully advance the three-fold focus of the Committee's charge: to reduce delay and cost and to achieve fairness. We realize that one size does not fit all, but believe these can be tailored to fit varying circumstances of different jurisdictions. As in the above section, we provide recommendations that may be appropriate generally for high volume dockets and those that are intended to address the unique challenges presented by consumer debt collection cases. We focus on changes that we believe many courts can implement through rules or other policy changes, but also include proposed changes that judges or other court personnel might want to discuss with others, including the public and policy makers, following the model of New York's Chief Judge Lippman. We have tried to avoid recommendations that are likely to require statutory change (although that varies state by state).37 We also have considered the cost, complexities and benefits to 33

FTC REPORT, supra note 22, at 14. This is not a new problem. See Engler, supra note 23, at 120 (plaintiffs' attorneys routinely continue cases where defendants appear, increasing the likelihood of default). 34 See, e.g., Marisa Kwiatkowski, Judges Call for an End to Marion County's Small Claims Court System, INDYSTAR (July 12, 2014), http://www.indystar.com/story/news/2014/07/12/judges-call-end-marion-countys-smallclaims-court-system/12585307/ (describing law suits and investigations of widespread consumer debt filings in jurisdictions where the defendant did not sign the contract, do business, work or have other contact on which jurisdiction could be based). 35 Spector, Litigation, supra note8, at 10. Data suggests that collection efforts may be disproportionately targeted at vulnerable populations: studies have found that debt cases are concentrated in cities and counties with significant minority populations, lower median income, and communities with lower rates of home ownership. Spector, Debt, Defaults and Details, supra note 10, at 273. 36 Spector, Debt, Defaults and Details, supra note 10 at 280-281. 37 These recommendations do not address the opportunities offered or challenges faced by “problem solving” courts. The growth of such specialized courts underscores the extent to which the courts are called upon to address problems that have both legal and non-legal dimensions, as well as individual and community-wide impact. Although beyond the scope of these recommendations and this Report, we encourage courts to examine successful

9


the courts and parties of established and emerging technologies that could help address identified challenges. We are confident that others will have refinements or additions to these recommendations, particularly in the area of technology. General Recommendations Recommendation 1: Ensure that Constitutional notice requirements are met.38 

Require or incentivize process servers to use and document GPS records and smartphone photographs to document service location and time. Such systems should have protections against forgery, such as systems that are proprietary to the courts and capable of independently verifying real-time upload locations. If requiring use of GPS documentation exceeds a court's rule-making authority,39 the court could incentivize use of such proof through a rule that would confer a presumption of validity for service that is supported by GPS documentation. Note that some process servers are using their capacity to "geotag" as a marketing device that provides additional assurance of the validity of service, reinforcing the reasonableness of such a requirement.40



Utilize a procedure such as that adopted in New York City that requires plaintiffs in consumer collection cases to provide the court with a stamped envelope addressed to the defendant with a return address to the Clerk of the Court. The envelope contains a standardized notice of the lawsuit, which the court mails. The Court will not enter a default judgment in instances where the notice is returned to the court as undeliverable, addressee unknown, etc.41



Conduct random audits; announce the fact that the court will be doing this periodically.42



Institute penalties for improper service, such as: impose court and other costs incurred

experiments in which courts have joined with community organizations and others to find broad-based solutions to the problems they are eventually called upon to resolve. See, e.g., JUDGE HENRY NOWAK, BUFFALO HOUSING COURT REFORM PROJECT: 2006 REPORT (2006), http://www.nycourts.gov/courts/8jd/pdfs/housing/Oishei_Final_Report.pdf. 38 FTC REPORT, supra note 9, at iii, 9-10, n. 23 et seq. Despite lack of comprehensive national evidence, the FTC had sufficient information to recommend that states strengthen protections against inadequate service. See also, id. at n. 14, 15. 39 There may be states in which some variant of a GPS requirement can be effectuated by court rule. At least one state – New York – proceeded through administrative rulemaking and legislation. It now has a law that process servers much retain GPS-based records to document service – a product of a Department of Consumer Affairs regulation requiring process servicers to log all service attempts with an electronic system such as GPS and legislation passed by the New York City Council. 40 See, e.g., CERTIFIED SERVE, https://certifiedserve.com/GPS-Introduction.php (last visited Nov. 11, 2015). 41 22 NYCR §§ 208.6(h), 208.14-a (2014). Following implementation of this rule, more consumers appeared to defend actions and many said that the notice was the only one they got about the lawsuit. 42 FTC REPORT, supra note 9, at 10, n. 30, noting that such an audit in Cook County, Illinois revealed significant problems.

10


by opposing party and the court as a result of moving forward with cases in which the plaintiff had reason to know that service was not properly effectuated; post notices of entities or persons who commit sewer service in prominent places in the courthouse and in local legal publications or newspapers. 

Require parallel electronic service via court-controlled e-filing portals to allow and confirm electronic delivery and acknowledgement of receipt of summons, complaint and other documents for parties with verifiable smart phone numbers or email accounts.



Encourage actions of consumer protection agencies and other policy makers, including legislators, to examine the issue of inadequate service and the desirability of additional protections.



In jurisdictions that require licensing or bonding of professional process servers, maintain and post lists of licensed entities. Refuse to accept service from professional process servers who are unlicensed or who have not documented that they have paid the required bond.

Recommendation 2: Provide information to self-represented litigants about court processes, options and expectations through a variety of portals/sources. 

Notice of the availability of such services should accompany the first communication from the court; perhaps required as a form with service of the Complaint or Summons.



Inform litigants that they may seek reasonable accommodations for physical or mental disabilities with the first court communication. Provide defendants with a form to indicate that they have special needs that require a reasonable accommodation or assistance.43



Notices and information should be available in languages that are spoken by significant numbers of litigants and community members.



Such services should be available on-site and remotely, including web-based and potentially at off-site, community-based locations. Web-based services should include an interactive portal, where a court employee or other informed person provides interactive guidance. The court, alone or in partnership with others, could develop webinars or other canned presentations on common questions or concerns.



The information should include a step-by-step guide to how particular court processes work. Such a presentation could be offered in video form with an opportunity to select a language preference.

43

Greiner, supra note 5, at 33.

11




The information should include sources for additional legal assistance in the community.



In light of observations that unrepresented individuals often have difficulty using selfhelp materials, consider "reimagined" tools that draw from other disciplines and take into account other impediments that self-represented persons face, including cognitive, psychological and emotional challenges. Use simple illustrations to explain court layout, logistics and players.44



Deliver clinics or workshops on-site and/or in the community on the basics of relevant laws and procedures (e.g., landlord-tenant; debt collection) and how the court system works. For example, the Los Angeles Superior Court system offers consumer debt workshops at two of its courthouses which are conducted by legal aid organizations and a county consumer protection agency. Court clerk's offices and self-help centers throughout the county distribute flyers and information about the workshops. They also provide workshops for both tenants and landlords (separately). The workshops for landlords are organized to guide participants through each stage of the litigation process.45

Recommendation 3: Develop an interactive system for triaging cases to proper dockets/pathways, notifying litigants of deadlines and hearings and completion of other pre-trial requirements. 

Develop an automated system that takes the litigant through a series of steps (guided pathway) starting with filing a Complaint and an Answer. Based on “Turbo T ax" and A to J models, the system could achieve multiple functions: (1) initial triage placing a matter into the correct docket or pathway; (2) increased adequacy of filings requiring completion of standardized forms that require the plaintiff to establish basic service and standing requirements; (3) assistance with answers, including standardized questions that lead to the inclusion of common defenses or counterclaims. The assistance should include an explanation of next steps, options and choices, such as whether the litigant wants a jury trial. This tool could be made available on the Internet and accessible after initial filing/response as a private portal, so that litigants could continue to handle much of their case remotely. Examples of forms that would translate issues into claims are included in the Appendix. Although such an automated "triaging" system may be well suited to high volume dockets where there tends to be an identifiable universe of issues and defenses, some litigants may have

44

James d. Greiner et al., Engaging Financially-Distressed Consumers, FEDERAL RESERVE BANK OF BOSTON, COMMUNITY AND BANKING, Summer 2015, available at https://www.bostonfed.org/commdev/c&b/2015/summer/greiner-jimenez-lupica-engaging-financially-distressedconsumers.htm. 45 Los Angeles Superior Court Self-Help Center, available at http://www.lacourt.org/selfhelp/selfhelp.aspx.

12


difficulty using such a system. Therefore, a qualified person should be available to assist those for whom such a system is difficult and a bail-out option for persons who cannot use it or lack reliable access to a computer. The system be accessible in jurisdiction- appropriate multiple languages. 

Notify litigants of court dates and other deadlines via text messaging.

Recommendation 4: Develop opportunities for optional remote responses and hearings.46 

Develop on-line systems for pre-litigation resolution of disputes incorporating user- friendly plain language systems such as Hiil.org's Rechtwijzer 2.0 on-line dispute resolution platform now being implemented for use in the Netherlands and England.



Provide assisted access to such systems at court-authorized locations for parties otherwise unable to access or use the systems on their own and provide a "bail out" option for persons whose circumstances (e.g., disability, cultural background, lack of reliable computer access) preclude effective use of such systems.



Develop systems, including periodic evaluation or monitoring by persons who are neither court personnel nor associated with either party, to ensure that the above systems are not manipulated to coerce or mislead less sophisticated litigants.



Develop capacity for pro-se friendly on-line filing and answering of complaints. Integrate with the triaging system described above. R e m o t e f i l i n g o p p o r t u n i t i e s may enable litigants to avoid trips to the courthouse and facilitate expeditious processing by court personnel.



For cases or hearings that are procedural or involve very few witnesses or documents, provide opportunities for remote appearances through video-conferencing, skype, face time or other on-line mechanisms. Work with community-based resources, such as libraries, to provide appropriate spaces where litigants who otherwise lack access to technology could participate in hearings remotely. Consider training a cadre of lay persons to assist such litigants with using the technology (a remote version of the Court Navigator pilot described in note 61, below).

Recommendation 5: Provide for exchange of information between parties via the Internet.47

Recommendation 6: Limit circumstances that tend to intimidate self-represented persons or 46

This would avoid loss of work time, avoidance of costly transportation, promote efficiency for all parties. It may only be suitable if persons have adequate access to, and familiarity/comfort with technology, and therefore should be offered as an option and not as a requirement. See FTC REPORT, supra note 9, at 13. 47 See FTC REPORT, supra note 9, at 13, n. 12. (noting caveats).

13


create confusion about the roles of the court and counsel. 

Provide clear physical separation of counsel from court personnel and services (e.g., no counsel desks, no negotiations with self-represented opposing parties in the well of the courtroom; no storage of collection attorney file boxes in courtroom).



Clear signage should reinforce physical separation of court personnel and counsel.



Provide standardized guidelines to all litigants and counsel regarding how settlement discussions may be conducted and the consequences of settlement. Affirm that the litigants have the right to trial in a way that doesn't suggest that going to trial is something to be feared. Make it clear that the lawyers are not court personnel.



Adopt a program like New York City's Court Navigator Program that includes making volunteer assistance available to self-represented litigants for "hallway" settlement discussions. See infra at p. 15 (Recommendation 12).



Before accepting settlements, judges should ascertain that both parties understand what they are signing and its implications. It might be helpful to develop a standard set of protocols/questions that both sides answer orally based on clear criteria and incorporating information to avoid common misunderstandings. The inquiry might be analogous to the inquiry a judge makes before accepting a plea in a criminal case or a highly truncated version of the “fair, reasonable and adequate” determination judges make in approving a class action settlement.48 Such a review could be integrated readily into a Court Navigator type program.



Give litigants the opportunity to seek legal guidance from an on-site or immediately accessible on-line resource regarding settlement/mediation process and results before final agreement is reached. See infra at p. 15 (Recommendation 12).



Organize dockets so as not to benefit any category of litigant (for example, volume-driven attorneys) at the expense of other litigants and attorneys. Scheduling cases at predesignated intervals instead of requiring everyone to appear all at once should benefit litigants and court personnel, including interpreters.



Establish automated data tracking systems to flag cases with outcomes that exceed predetermined variances compared to standard baselines weighted for amounts in controversy, and defendants' educational levels, age, gender, primary languages, zip codes etc. Require heightened review by a judge or court staff attorney of proposed settlement agreements which exceed the predicted ranges of outcomes before judgment can be made final.

48

Id. at 14, 16; see also Engler, supra note 23, at i, 43-44.

14


Recommendation 7: Develop an electronic or other user-friendly "sign in" system to reduce possibility that a litigant will fail to respond when case is called.

Recommendation 8: Establish statewide procedures and forms for standard filings and consistent venue (e.g., avoid concurrent jurisdiction of multiple courts in same system).49 Standardized forms should: 

Be available online, at court and at other sites where litigants can receive free assistance.50



Use plain English.



Include check-off lists for standing and other basic claim elements, potential common defenses, and ability to assert counterclaims.51



Include form discovery requests (including requests to conduct discovery where not available as a matter of right).

Recommendation 9: Provide adequate access for persons with limited English proficiency. 

Multi-lingual notice on each point of contact with the court (summons, complaint, subpoena, etc.) in jurisdictions where there is a significant non-English speaking population.



Multi-lingual signage at the courthouse.



Basic forms should be available in multiple languages.



Staff at self- help centers should be able to access language assistance promptly.



Front-line staff should be able to communicate with litigants in widely spoken languages in addition to English. Have adequate access to on-demand telephone interpreter services for infrequently encountered languages.



First filers should be required to provide known language information about any party at time of filing. Courts should use the information to provide the appropriate notice (see above) and language-sensitive scheduling, where possible.



Institute simple interpreter request processes. Process should not be dependent on request of litigant but should be used by court personnel and judges when it is needed.

49

See, e.g., Virginia’s statewide forms for landlord-tenant and consumer cases, which can generally be found at http://www.courts.state.va.us/forms/home.html. See also Mass. Unif. Summ. Process R., available at http://www.lawlib.state.mass.us/source/mass/rules/tc/summaryprocessrules.html. 50 E.g., Washington State adopted Court Rule GR 34 regarding uniform fee waivers. See Jafar v. Webb, 177 W.2d 520 (2013); Sobota v. Mahlik, 2015 WL 2260852 (Wash. Ct. App. 2015). 51 22 NYCR §§ 208.6(h), 208.14-a (2014). See Maria Aspan, Top New York Judge Toughens Debt-Collection Lawsuit Rules, NEW ECONOMY PROJECT (Apr. 30, 2014), http://www.neweconomynyc.org/2014/04/top-new-yorkjudge-toughens-debt-collection-lawsuit-rules/.

15




Qualified language assistance should be free in all cases involving LEP parties or witnesses who complete an IFP form, including mediations, settlement conferences, other ancillary proceedings and court services.



Courts should not use relatives, opposing parties, friends, or other "casual interpreters". Courts must never use children to interpret.



Courts should seek to avoid delays and continuances to obtain interpreters, so that LEP litigants do not make unnecessary trips to court and so court time is not wasted.



Judges and other court personnel should receive cultural competency training that includes ways non-English speakers or persons from different cultures narrate events.



Courts should explore high quality video remote interpreting systems, especially for languages other than Spanish and for courts located away from high LEP population centers.52

Recommendation 10: Enable judges and judicial staff to have immediate electronic access to case records and to enter dispositions and other information into the system from the bench.53 

Electronic records should significantly reduce the risk of lost or misfiled paper. Electronic records should be available on-line.



Access to electronic records will enable judges to ascertain a party's adherence to procedural rules before entering an Order and could facilitate identification of recurrent problems.



Electronic records and record-keeping systems could simplify and speed up communications between the court and litigants/attorneys.

Recommendation 11: Provide training to enable judges to guide cases involving selfrepresented litigants more actively. Groups including the Pro Se Implementation Committee of the Minnesota Conference of Judges (2002) and the Idaho Committee to Increase Access to the Courts (2002) have recommended ways that judges should explain the process, legal issues (claims, defenses and elements of each), and evidence. These recommendations generally encourage judges to take a substantially more active role in guiding the fact-finding process. 54 Judges reported success using similar strategies.55 52

See generally STANDARDS FOR LANGUAGE ACCESS IN COURTS (Am. Bar Assoc.). See JTC RESOURCE BULLETIN, MAKING THE CASE FOR JUDICIAL TOOLS 6 (Dec. 5, 2014). 54 Discussed in greater length at Baldacci, supra note 12, at 670-71. 55 Id. at 671-72. In Turner, the Supreme Court has suggested that, where liberty or other constitutionally-protected interests are at stake, such increased “judicial engagement” may be required to ensure that self-represented litigants receive adequate procedural safeguards. Turner v. Rogers 131 S. Ct. 1507 (2011). See also Steinberg, supra note 5, at 790-92 (arguing that explosion of self-representation requires judges to assume burdens of litigation traditionally left to parties including notice, availability of defenses, how to elicit factual information, making sure that required 53

16


Generally, the recommendations include: 

Review order and protocols of an evidentiary hearing at the beginning of hearing.



Explain elements of claims and defenses that each side will need to demonstrate to get the relief they are seeking.



Explain the burden of proof and what that means in simple, lay terms.



Explain the kind of evidence that may or may not be considered.56 Consider rules that emphasize weight, rather than traditional technical standards of "admissibility." 57



Permit litigants to offer narrative testimony. 58



Question pro se litigant to obtain general information about litigant's story (claims/defenses).



Avoid questions that encourage pro se litigants to admit liability or settle.



Assist self-represented litigants to establish the foundational requirements of claims and defenses by probing for the facts when they are not otherwise clear.



Consider a standard interrogatory form that judges would follow to establish entitlement to claim and whether defenses exist. Given limited or no discovery in many jurisdictions, judges don't get benefit of developed facts.59



Provide training on cultural competency, mental capacity/disability.

Recommendation 12: Foster opportunities for self-represented litigants to secure assistance, including "unbundled representation" for all stages of the litigation process. Many of the problems identified in this document would be eliminated or substantially reduced if both parties to a dispute were represented by lawyers.60 Courts can play a helpful role in facilitating findings can be made. 56 See Baldacci, supra note 12, at 671-72 (citing PRO SE IMPLEMENTATION COMMITTEE OF THE MINNESOTA CONFERENCE OF JUDGES; IDAHO COMMITTEE TO INCREASE ACCESS TO THE COURTS PROTOCOL). 57 Steinberg, supra note 5, at 747; Baldacci, supra note 12, at 680-84. 58 See Steinberg, supra note 5, at 756. 59 See FTC REPORT, supra note 9, at 26. 60 See Greiner, supra note 5, at 903 (randomized study found having a lawyer makes a difference in retention of housing and increased positive outcomes for tenants); see also Seron, supra note 10 (only 22% of represented tenants had final judgments against them, compared with 51% of tenants without legal representation). The Greiner study also found that defendants' representation didn't significantly add to the burden on the court in terms of number of motions or rulings, although it did increase the time the case the case took. Griener, supra note 5, at 932, et seq. The FTC also notes that access to counsel would improve outcomes in debt collection cases and provides examples of courthouse-based programs that exist in several states (New York, Illinois and Massachusetts) and are often staffed by a combination of pro bono and legal services attorneys. Such programs are most effective when they offer litigants full representation or meaningful on-going guidance over the entire course of their case, rather than simply helping them complete an initial complaint or answer. See also Rosmarin, Tr. V at

17


opportunities that make counsel available to persons who want counsel in civil matters but are unable to afford representation. We encourage courts to collaborate with stakeholders to secure access to representation for civil litigants. We also recommend that courts continue to develop robust collaborations with legal aid and other providers to facilitate informed and balanced case development, presentation and resolution. Examples include: 

Subject-specific self-help centers (e.g., consumer, small claims) where volunteer lawyers provide "unbundled" services, assisting with discrete and limited tasks to help litigants successfully navigate the process. The lawyers could enter a limited appearance to develop or draft pleadings (claims, defenses, counterclaims), write/argue motions, respond to or ask for discovery, gather evidence, prepare a litigant about how to talk to the court or present the case; offer trial assistance, review settlement agreements, and/or accompany a litigant to talk to the opposing counsel, etc.61 The assistance should be available to help a litigant at any stage of the litigant's case.62 Information about such opportunities should be made available to litigants at the courthouse and in the first communication(s) the litigant receives about the pendency of a lawsuit. Self-help centers staffed by volunteers and legal aid programs already exist in some state courts (e.g., Superior Court of the District of Columbia); this recommendation would broaden the scope of services such centers typically provide.



New York City's "Court Navigator Program", launched as a pilot project in 2014, where college students, law students and other volunteers assist self- represented litigants in housing court proceedings, including helping litigants explain facts to judges (when the judges ask) and opposing counsel, helping litigants organize their papers, and securing other litigant needs, such as interpreters. 63



Law school and legal aid projects that expand attorney availability to those who currently cannot afford representation. Support for such projects could include providing space and logistical support through "attorney of the day" programs and explaining to the public and decision-makers how access to lawyers benefits the justice system and society.

Additional Recommendations Specific to Consumer Debt Collection Cases 50-52; but see Debski, Tr.V at 29 (claiming that such programs may unethically involve poaching clients or soliciting clients at the courthouse steps while they're in an emotional state"). 61 We encourage incorporating explicit approval in Rules of Professional Responsibility for this type of “unbundled assistance.” 62 See Steinberg, supra note 5, at 785 (the availability of “unbundled” services tends to drop off as litigation continues; litigant satisfaction with unbundled service declines over time as cases progress and become more complex). See also FTC REPORT, supra note 9, at 13. 63 See, e.g., NEW YORK CITY HOUSING COURT, COURT NAVIGATOR PROGRAM, www.courts.state.ny.us/courts/NYC/housing/rap_prospective.shtml (last visited, Nov. 11, 2015) The program has an online manual which could provide a model.

18


Recommendation 1: Establish template forms, accessible electronically, that require demonstration of right to collect (standing), basis of relief sought and amount and timeliness. The form could be used in any of the electronic or court-based access points described above. Require that consumer debt collector's complaints contain: • Identity of original creditor; • Date of default or charge off; • Amount due at time of default; • Name of current owner; • Original contract or, if not attached, at least relevant terms; • Chain of ownership; •

Affirmative statement that the claim is not time-barred under applicable State law or applicable statute of limitations;

• Amount currently due broken down by principal, interest and fees;64 • Attestation that the plaintiff has verified defendant's current address; • In states where bonding or licensing is required of process servers, attestation to their compliance with state requirements;65 • Provide sufficient verifiable information with or attached to the Complaint so recipient can identify original debt, original signature, debt amount and billing statement.66

Recommendation 2: Provide standardized answer forms, containing check-off list for common defenses. Examples are included in the Appendix and have been adopted in some jurisdictions, including New York. Recommendation 3: Adopt rule awarding defendants costs of preparing for and attending hearings that are cancelled or postponed at request of collecting party, including lost wages and costs of transportation.67 64

See, e.g., MASS. ANN. LAWS UNIF. SMALL CLAIMS R. 2(a), 2(b); MICH. CT. R. 3.101; N.C. GEN. STAT. §§ 58-70-115, 58-70-145, 58-70-150, 58-70-155 (2009); see also FAIRFAX COUNTY, VIRGINIA GENERAL DISTRICT COURT BEST PRACTICES: DEFAULT JUDGMENTS/DEBT BUYERS AND PURCHASED DEBT-DEFAULT JUDGMENT CHECKLIST (2009); State of Connecticut Judicial Branch, Report OR THE Bench/Bar Small Claims Committee at 4.10 (2009). The FTC has also recommended that states adopt such requirements, citing comments of judges who decried the inadequacy of information in debt collection complaints). FTC REPORT, supra note 9, at iii, 16, 30; see also Spector, Litigating, supra 8 at 4. 65 Based on Spector Litigating discussion regarding rampant violations in Texas at 5-6. 66 MD. C T . R. 3-306; Danner v. Discover Bank, 99 Ark. App. 71, 72 (Ark. Ct. App. 2007). 67

See, e.g., FTC REPORT, supra note 9 at 14, 22 (with example from Blair County, PA judge who reported that if

19


Recommendation 4: Adopt rule that requires plaintiffs to complete standard checklists to demonstrate they are entitled to default judgments.68 Models for such standard checklists have been adopted in a number of states, including those listed in the notes. Include a requirement that plaintiff attest, under penalties of perjury, that it consulted reliable sources in an effort to locate the defendant.69 This may be substantially satisfied with adoption of standardized Complaints that require much of the information be provided at the outset. Recommendation 5: Courts should issue a standardized notice that goes to a debtor when a creditor seeks a court Order to permit garnishment of bank accounts. The notice would give the debtor an opportunity to indicate that the funds in the account to which garnishment is directed are exempt from garnishment (SSI, veteran's benefits, etc.).70

collector fails to appear at mandatory conciliation conference, case is dismissed with prejudice); MASS. ANN. LAWS. UNIF. SMALL CLAIMS R. 7(c) (judgment for defendant must be entered if defendant appears and plaintiff does not appear, is not ready to proceed and no good cause for continuance). 68 See, FAIRFAX COUNTY [VIRGINIA] GENERAL DISTRICT COURT BEST PRACTICES: DEFAULT JUDGMENTS/DEBT BUYERS (2009), https://www.ftc.gov/sites/default/files/filings/initiatives/312/091119bestpractices.pdf. Fairfax County incorporated many of its "best practices" regarding default judgments and debt buyers into the Court's Administrative Procedures Manual. Such a practice may be helpful to judges and court personnel. See also MASS. ANN. LAWS UNIF. SMALL CLAIMS R. 7(d); Small Claims Default Judgment Checklist provided in Trial Court of the Commonwealth of Massachusetts District Court Department Memorandum from Hon. Lynda M. Connolly, Chief Justice (Sept. 11, 2009); N.C. GEN. STAT. §§ 58-70-155 (2009); NEW YORK CITY CIV. CT. DIRECTIVES AND PROCEDURES DRP-182 (May 13, 2009). 69 MASS. ANN. LAWS UNIF. SMALL CLAIMS R. 2(b), cited in Spector, Debts, Defaults, and Doubts, supra note 10 at 261 & n. 14. 70 FTC REPORT, supra note 9, at 35.

20


CALL TO ACTION:

Achieving Civil Justice for All Recommendations to the Conference of Chief Justices by the Civil Justice Improvements Committee


CALL TO ACTION:

Achieving Civil Justice for All Recommendations to the Conference of Chief Justices by the Civil Justice Improvements Committee


Copyright 2016 National Center for State Courts 300 Newport Avenue Williamsburg, VA 23185

ncsc.org/civil Access to Justice Innovation in Los Angeles County A24

CONTENTS 1

CCJ Civil Justice

Improvements Committee

2

The Call

4

A Strategic Response

8

Underlying Realities

15

Recommendations

39

Bench and Bar Leaders Hold the Key

43

Appendices

43

Notes

44

Acknowledgements


CCJ CIVIL JUSTICE IMPROVEMENTS COMMITTEE Hon. Thomas A. Balmer, Chair

Tom Falahee

Hon. Chase T. Rogers

Chief Justice

Asst. General Counsel

Chief Justice

Supreme Court of Oregon

Ford Motor Company

Supreme Court of Connecticut

Hon. Jerome Abrams

Hon. Daryl L. Hecht

Linda Sandstrom Simard

District Court Judge

Justice

Professor

Dakota County, Minnesota

Supreme Court of Iowa

Suffolk University Law School

Thomas Y. Allman

Hon. Nathan L. Hecht

Executive Vice President

Chief Justice

Todd A. Smith

& General Counsel (Retired)

Supreme Court of Texas

Attorney–Powers, Rogers,

BASF Corporation

Hon. Steven M. Houran

Hon. Jennifer D. Bailey

Superior Court Judge

Administrative Judge,

Strafford County, New Hampshire

Circuit Civil Division 11th Judicial Circuit of Florida

Wallace B. Jefferson Attorney–Alexander, Debose,

Daniel J. Becker

Jefferson & Townsend

State Court Administrator

Texas

Utah Administrative Office of the Courts Kim Brunner Executive Vice President & General Counsel (Retired) State Farm Insurance Companies Colin F. Campbell Attorney–Osborn Maledon Arizona Sherri R. Carter Court Executive Officer/Clerk Superior Court of California, Los Angeles County David E. Christensen Attorney–Christensen Law Michigan Michael V. Ciresi

Hon. Eileen A. Kato

Massachusetts

and Smith, PC Illinois Larry D. Thompson John A. Sibley Professor of Law University of Georgia School of Law

EX-OFFICIO

District Court Judge

Mary McQueen

King County, Washington

President

David G. Leitch

National Center for State Courts

Global General Counsel

Rebecca Love Kourlis

Bank of America

Executive Director

Hannah Lieberman Executive Director D.C. Neighborhood Legal Services Program Donna M. Melby Attorney–Paul Hastings, LLP California Tommy D. Preston, Jr. Director National Strategy & Engagement, Boeing

IAALS

FEDERAL COURTS LIAISON Hon. Richard W. Story United State District Court Judge Northern District of Georgia

ABA TIPS SECTION LIAISON Robert S. Peck

Attorney–Ciresi & Conlin, LLP

President

Minnesota

Center for Constitutional Litigation, PC


The Call Americans deserve a civil legal process that can fairly and promptly

Civil justice touches every aspect of our lives and society, from public safety to fair housing to the smooth transaction of business.

resolve disputes for everyone—rich or poor, individuals or businesses, in matters large or small. Yet our civil justice system often fails to meet this standard. Runaway costs, delays, and complexity are undermining public confidence and denying people the justice they seek. This has to change. Navigating civil courts, as they operate now, can be daunting. Those who enter the system confront a maze-like process that costs too much and takes too long. While three-quarters of judgments are smaller than $5,200, the expense of litigation often greatly exceeds that amount. Small, uncomplicated matters that make up the overwhelming majority of cases can take years to resolve. Fearing the process is futile, many give up on pursuing justice altogether. We’ve come to expect the services we use to steadily improve in step with our needs and new technologies. But in our civil justice system, these changes have largely not arrived. Many courts lack any of the user-friendly support we rely on in other sectors. To the extent technology is used, it simply digitizes a cumbersome process without making it easier. If our civil courts don’t change how they work, they will meet the fate of travel agents or hometown newspapers, entities undone by new competition and customer expectations—but never adequately replaced. Meanwhile, private entities are filling the void. Individuals and businesses today have many options for resolving disputes outside of court, including private judges for hire, arbitration and online legal services, most of which do not require an attorney to navigate. But these alternatives can’t guarantee a transparent and impartial process. These alternative forums are not necessarily bound by existing law nor do they contribute to creating new law and shaping 21st century justice. In short, they are not sufficiently democratic.

2

CALL TO ACTION: ACHIEVING CIVIL JUSTICE FOR ALL


Civil justice touches every aspect of our lives and society, from public safety to fair housing to the smooth transaction of business. For centuries, Americans have relied on an impartial judge or jury to resolve conflicts according to a set of rules that govern everyone equally. This framework is still the most reliable and democratic path to justice—and a vital affirmation that we live in a society where our rights are recognized and protected. Which is why our legal community has a responsibility to fix the system while preserving the best of our 200year tradition.

For centuries, Americans have relied on an impartial judge or jury to resolve conflicts according to a set of rules that govern everyone equally.

Restoring public confidence means rethinking how our courts work in fundamental ways. Citizens must be placed at the center of the system. They must be heard, respected, and capable of getting a just result, not just in theory but also in everyday practice. Courts need to embrace new procedures and technologies. They must give each matter the resources it needs—no more, no less—and prudently shepherd the cases our system faces now. It’s time for our system to evolve. Our citizens deserve it. Our democracy depends on it.

THE CALL


3

A Strategic Response Our legal system promises the just, speedy, and inexpensive resolution

This Report of the Civil Justice Improvements (CJI) Committee provides a roadmap for restoring function and faith in a system that is too important to lose.

of civil cases. Too often, however, it does not live up to that promise. This Report of the Civil Justice Improvements (CJI) Committee provides a roadmap for restoring function and faith in a system that is too important to lose. The Recommendations contained in this report are premised on the belief that courts can again be the best choice for every citizen: affordable for all, efficient for all, and fair for all.

WHY THE CIVIL JUSTICE IMPROVEMENTS COMMITTEE AND THIS REPORT? The impetus for the CJI Committee and this Report is twofold. First, state courts are well aware of the cost, delay, and unpredictability of civil litigation. Such complaints have been raised repeatedly, and legitimately, for more than a century. Yet efforts at reform have fallen short, and over the last several decades the dramatic rise in self-represented litigants and strained court budgets from two severe recessions have further hampered our ability to promptly and efficiently resolve cases. The lack of coherent attempts to address problems in the civil justice system has prompted many litigants to seek solutions outside of the courts and, in some instances, to forgo legal remedies entirely. As a result, public trust and confidence in the courts have decreased. Second, on a more positive note, dedicated and inventive court leaders from a handful of states recently have taken concrete steps toward change. They are updating court rules and procedures, using technology to empower litigants and court staff, and rethinking longstanding orthodoxies about the process for resolving civil cases. States (including Arizona, Colorado, New Hampshire, Minnesota, and Utah) have changed their civil rules and procedures to require

4



mandatory disclosure of relevant documents, to curb excessive discovery, and to streamline the process for resolving discovery disputes and other routine motions. A dozen other states have implemented civil justice reforms over the past

THE CJI COMMITTEE MEMBERS AND GUIDING PRINCIPLES

five years, either on a “pilot” or statewide basis.

With the assistance of the National Center for State

Many of those reforms have now received in-

Courts (NCSC) and IAALS, the Institute for the

depth evaluations to assess their impact on cost,

Advancement of the American Legal System, the CCJ

disposition time, and litigant satisfaction. Most of

named a diverse 23-member Committee to research

those efforts, however, have focused on discrete

and prepare the recommendations contained in

stages of litigation (pleading, discovery) or on

this Report. Committee members included a broad

specific types of cases (business, complex litigation),

cross-section of key players in the civil litigation

rather than on the civil justice process overall.

process, including trial and appellate court judges, trial and state court administrators, experienced

The Conference of Chief Justices (CCJ) determined

civil lawyers representing the plaintiff and defense

that, given the profound challenges facing the

bars and legal aid, representatives of corporate legal

civil justice system and the recent spate of reform

departments, and legal academics.

efforts, the time was right to examine the civil justice system holistically, consider the impact and

The Committee followed a set of eight fundamental

outside assessments of the recent pilot projects, and

principles aimed at achieving demonstrable civil

develop a comprehensive set of recommendations

justice improvements that are consistent with each

for civil justice reform to meet the needs of the

state’s existing substantive law.

21st century. At its 2013 Midyear Meeting, the CCJ adopted a resolution authorizing the creation of the CJI Committee. The Committee was charged with “developing guidelines and best practices for civil litigation based upon evidence derived from state pilot projects and from other applicable research, and informed by implemented rule changes and stakeholder input; and making recommendations as necessary in the area of caseflow management for

The time was right to examine the civil justice system … and develop a comprehensive set of recommendations for civil justice reform to meet the needs of the 21st century.

the purpose of improving the civil justice system in state courts.”

A STRATEGIC RESPONSE


5

THE WORK OF THE COMMITTEE, SUBCOMMITTEES, AND STAFF

Two subcommittees undertook the bulk of the

The Committee worked tirelessly over more than

and efficient civil process, including development

18 months to examine and incorporate relevant insight from courts around the country. Committee members reviewed existing research on the state of the civil justice system in American courts and extensive additional fieldwork by NCSC on the current civil docket; recent reform efforts, including evaluations of a number of state pilot projects; and technology, process, and organizational innovations. The Committee members thoughtfully debated the pros and cons of many reform proposals and the institutional challenges to implementing change in the civil justice system, bringing the lessons learned from their own experience as lawyers, judges, and administrators.

Committee’s work. Judge Jerome Abrams, an experienced civil litigator and now trial court judge in Minnesota, led the Rules & Litigation Subcommittee. That subcommittee focused on the role of court rules and procedures in achieving a just of recommendations regarding court and judicial management of cases; right sizing the process to meet the needs of cases; early identification of issues for resolution; the role of discovery; and civil case resolution whether by way of settlement or trial. Judge Jennifer Bailey, the Administrative Judge of the Circuit Civil Division in Miami with 24 years of experience as a trial judge, chaired the Court Operations Subcommittee. That subcommittee examined the role of the internal infrastructure of the courts—including routine business practices, staffing and staff training, and technology— in moving cases toward resolution, so that trial judges can focus their attention on ensuring fair and

Strong leadership and bold action are needed to transform our system for the 21st century. With this Report, we have worked to provide the necessary insight, guidance, and impetus to achieve that goal.

cost-effective justice for litigants. The subcommittee also considered the special issues of procedural fairness that often arise in “high-volume” civil cases, such as debt collection, landlord-tenant, and foreclosure matters, where one party often is not represented by a lawyer. And the subcommittee looked at innovative programs based on technology interfaces that some courts are using to assist selfrepresented litigants in a variety of civil cases. The subcommittees held monthly conference calls to discuss discrete issues related to their respective work. Individual committee members circulated white papers, suggestions, and discussion documents. Spirited conversations led members to reexamine long-held views about the civil justice system, in light of the changing nature of the civil justice caseload, innovations in procedures and operations from around the country, the rise of selfrepresented litigants, and the challenge and promise of technology. The full CJI Committee met in four

6



plenary sessions to share insights and preliminary proposals. Gradually, Committee members reached a solid consensus on the Recommendations set out in this Report. In presenting this Report, the Committee is

FUNDAMENTAL FRAMEWORK/PRINCIPLES FOR CJI COMMITTEE RECOMMENDATIONS

indebted to the State Justice Institute, which supported the Committee’s work with a generous

1. Recommendations should aim to achieve

grant. Likewise, the Committee is grateful for

demonstrable improvements with respect to

substantive expertise and logistical support from

the expenditure of time and costs to resolve

NCSC and IAALS, without whose help this project

civil cases.

could never have been started, much less completed. The President of the NCSC, Mary McQueen, and the Executive Director of IAALS, Rebecca Love Kourlis, served as ex-officio members of the Committee

2. Outcomes from recommendations should be consistent with existing substantive law. 3. Recommendations should protect, support, and

and provided invaluable guidance and assistance

preserve litigants’ constitutional right to a civil

throughout the project. The Committee is most

jury trial and honor procedural due process.

deeply indebted to the Committee staff, whose excellent work, tenacity, and good spirits brought

4. Recommendations should be capable of

the preparation of this Report to a successful

implementation within a broad range of local

conclusion: the Committee Reporter, Senior Judge

legal cultures and practices.

Gregory E. Mize (D.C. Superior Court); Brittany K.T. Kauffman and Corina D. Gerety of IAALS; and Paula Hannaford-Agor, Shelley Spacek Miller, Scott Graves, and Brenda Otto of the NCSC. Strong leadership and bold action are needed to transform our system for the 21st century. With this Report, we have worked to provide the necessary insight, guidance, and impetus to achieve that

5. Recommendations should be supported by data, experiences of Committee members, and/or “extreme common sense.” 6. Recommendations should not systematically favor plaintiffs or defendants, types of litigants, or represented or unrepresented litigants. 7. Recommendations should promote effective

goal. The Recommendations identify steps that

and economic utilization of resources while

state courts can take now—and in the months and

maintaining basic fairness.

years ahead—to make the civil justice system more accessible, affordable, and fair for all. To empower

8. Recommendations should enhance public

courts to meet the needs of Americans in all

confidence in the courts and the perception

jurisdictions, the Recommendations are crafted to

of justice.

work across local legal cultures and overcome the significant financial and operational roadblocks to change. With concerted action, we can realize the promise of civil justice for all. Respectfully submitted by the Civil Justice Improvements Committee, July 2016

A STRATEGIC RESPONSE


7

Underlying Realities The reality of litigation costs routinely exceeding the value of cases explains the relatively low rate of dispositions involving any form of formal adjudication.

THE CIVIL LITIGATION LANDSCAPE Successful solutions only arise from clear-eyed understanding of the problem. To inform the deliberations of the CCJ Civil Justice Improvements Committee, the NCSC undertook a multijurisdictional study of civil caseloads in state courts. The Landscape of Civil Litigation in State Courts focused on non-domestic civil cases disposed between July 1, 2012, and June 30, 2013, in state courts exercising civil jurisdiction in 10 urban counties. The dataset, encompassing nearly one million cases, reflects approximately 5 percent of civil cases nationally. The Landscape findings presented a very different picture of civil litigation than most lawyers and judges envisioned based on their own experiences and on common criticisms of the American civil justice system. Although high-value tort and commercial contract disputes are the predominant focus of contemporary debates, collectively they comprised only a small proportion of the Landscape caseload. Nearly two-thirds (64 percent) of the caseload was contract cases. The vast majority of those were debt collection, landlord/ tenant, and mortgage foreclosure cases (39 percent, 27 percent, and 17 percent, respectively). An additional 16 percent of civil caseloads were small claims cases involving disputes valued at $12,000 or less, and 9 percent were characterized as “other civil” cases involving agency appeals and domestic or criminal-related cases. Only 7 percent were tort cases, and 1 percent were real property cases. The composition of contemporary civil caseloads stands in marked contrast to caseloads of two decades ago. The NCSC undertook secondary analysis comparing the the Landscape data with civil cases disposed in 1992 in 45 urban general jurisdiction courts. the 1992 Civil Justice Survey of State Courts, the ratio of tort to contract cases was approximately 1 to 1. In the Landscape dataset, this ratio had increased to 1 to 7. While population-adjusted contract filings fluctuate somewhat due to economic conditions, they have generally

8



remained fairly flat over the past 30 years. Tort

the assumption that many bench trials involve

cases, in contrast, have largely evaporated.

adjudication of complex, high-stakes cases.

To the extent that damage awards recorded in final

Most cases were disposed through a non-

judgments are a reliable measure of the monetary

adjudicative process. A judgment was entered in

value of civil cases, the cases in the Landscape

nearly half (46 percent) of the Landscape cases,

dataset involved relatively modest sums. In contrast

most of which were likely default judgments. One-

to widespread perceptions that much civil litigation

third of cases were dismissed (possibly following a

involves high-value commercial and tort cases,

settlement, although only 10 percent were explicitly

only 0.2 percent had judgments that exceeded

coded by the courts as settlements). Summary

$500,000 and only 165 cases (less than 0.1 percent)

judgment is a much less favored disposition in

had judgments that exceeded $1 million. Instead,

state courts compared to federal courts. Only 1

90 percent of all judgments entered were less

percent were disposed by summary judgment.

than $25,000; 75 percent were less than $5,200.

1

Hence, for most litigants, the costs of litigating a case through trial would greatly exceed the monetary value of the case. In some instances, the

Most of these would have been default judgments in debt collection cases, but the plaintiff instead chose to pursue summary judgment, presumably to minimize the risk of post-disposition challenges.

costs of even initiating the lawsuit or making an

The traditional view of the adversarial system

appearance as a defendant would exceed the value

assumes the presence of competent attorneys

of the case. The reality of litigation costs routinely

zealously representing both parties. One of the

exceeding the value of cases explains the relatively

most striking findings in the Landscape dataset,

low rate of dispositions involving any form of

therefore, was the relatively large proportion

formal adjudication. Only 4 percent of cases were

of cases (76 percent) in which at least one party

disposed by bench or jury trial, summary judgment,

was unrepresented, usually the defendant. Tort

or binding arbitration. The overwhelming majority

cases were the only case type in which attorneys

(97 percent) of these were bench trials, almost half

represented both parties in a majority (64 percent)

of which (46 percent) took place in small claims

of cases. Surprisingly, small claims dockets in

or other civil cases. Three-quarters of judgments

the Landscape courts had an unexpectedly high

entered in contract cases following a bench trial

proportion (76 percent) of plaintiffs who were

were less than $1,800. This is not to say these cases

represented by attorneys. This suggests that small

are insignificant to the parties. Indeed, the stakes in

claims courts, which were originally developed as a

many cases involve fundamentals like employment

forum for self-represented litigants to access courts

and shelter. However, the judgment data contradicts

through simplified procedures, have become the

UNDERLYING REALITIES


9

forum of choice for attorney-represented plaintiffs in debt collection cases. Approximately three-quarters of cases were

IMPLICATIONS FOR STATE COURTS

disposed in just over one year (372 days), and half

The picture of civil litigation that emerges from

were disposed in just under four months (113 days).

the Landscape dataset confirms the longstanding

Nevertheless, small claims were the only case type

criticism that the civil justice system takes too

that came close to complying with the Model Time

long and costs too much. Some litigants with

Standards for State Trial Courts. Tort cases were the

meritorious claims and defenses are effectively

worst case category in terms of compliance with

denied access to justice in state courts because it

the Standards. On average, tort cases took 16 months

is beyond their financial means to litigate. Others,

(486 days) to resolve and only 69 percent were

who have the resources and legal sophistication

disposed within 540 days of filing compared to 98

to do so, are opting for alternatives to the civil

percent recommended by the Standards.

justice system either preemptively through contract provisions (e.g., for consumer products and services, employment, and health care) or,

CASELOAD COMPOSITION

after filing a case in court, through private ADR services. In response to these realities, courts Other/Unknown must improve in terms of efficiency, cost, and convenience to the public so that those we serve

Small have confidence that the court system is an Claims attractive option to achieve justice in civil cases.

11% 24%

The vast majority of civil cases that remain in Real Property state courts are debt collection, landlord/tenant, foreclosure, and small claims cases. State courts are the preferred forums for plaintiffs inTort these cases

16%

for the simple reason that state courts still hold a

Real property cases

monopoly on procedures to enforce judgments in

Other Contract most jurisdictions. Securing a judgment from a court

comprised 1%

7%

19%

of competent jurisdiction is the mandatory first step to being able to initiate garnishment or asset seizure

Mortgage Foreclosure

proceedings. The majority of defendants in these

11%

cases are unrepresented. Even if defendants might

11%

have the financial resources to hire a lawyer, many

Landlord/Tenant

would not because the cost of the lawyer exceeds the potential judgment. The idealized picture of

Contract

the adversarial system in which bothDebt parties are Collection Debt Collection

Tort

Landlord/Tenant

Real Property


Small Claims

Other Contract

Other/Unknown

represented by competent attorneys who can assert all legitimate claims and defenses is, more often than not, an illusion. State court budgets experienced dramatic cuts during the economic recessions both in 2001–2003 and in 2008–2009, and there is no expectation

Source: NCSC Landscape of Civil Litigation in

among state court policymakers that state court

State Courts (2015).

10



budgets will return to pre-2008 recession levels.

tion threaten to erode a publicly accessible body

These budget cuts, combined with constitutional

of precedents governing civil cases. Diminished

and statutory provisions that prioritize criminal and

common law will leave future litigants without clear

domestic cases over civil dockets, have undermined

standards for negotiating civil transactions, settling

courts’ discretion to allocate resources to improved

cases, or conforming their conduct to clear legal

civil case management. As both the quantity and

rules. The privatization of civil litigation likewise

quality of adjudicatory services provided by state

undermines the ability of the legislative and execu-

courts decline, it is unlikely that state legislators

tive branches of government to respond effectively

will be persuaded to augment budgets to support

to changing societal circumstances that become

civil caseloads.

apparent through claims filed in state courts.

These trends have severe implications for the future

Because the civil justice system directly touches

of the civil justice system and for public trust and

everyone in contemporary American society—

confidence in state courts. The cost and delays of

through cases involving housing, food, education,

civil litigation effectively deny access to justice for

employment, household services, consumer

many members of our society, undermining the

products, personal finance, and other commercial

legitimacy of the courts as a fair and effective forum

transactions—ineffective civil case management

to resolve disputes. Reductions in the proportion

has an even more pervasive effect on public trust

of civil cases resolved through formal adjudica-

and confidence than the criminal justice system.

PERCENTAGE OF CASES WITH ATTORNEY REPRESENTATION 100%

80%

60%

40%

20%

0%

Tort Plaintiff

Real Property Defendant


Both

Other Civil

Contract

Small Claims

Source: NCSC Landscape of Civil Litigation in State Courts (2015).


11

If state court policymakers aim to restore the role

ensure the forward momentum of civil cases toward

of state courts as the primary forum for dispute

resolution. For judges faced with heavy caseloads,

resolution, civil justice reform can no longer be

the prospect is just too daunting. Unless litigants

delayed or merely implemented incrementally

are clamoring for attention, most judges are willing

through changes in rules of civil procedure. Instead,

to assume that the case will resolve itself without

dramatic changes in court operations now must

additional interference.

involve considerably greater court oversight of caseflow management to control costs, reduce delays, and ensure fairness for litigants.

IMPERATIVE RESPONSES

Recognizing that few judges have the luxury of a caseload small enough to permit individual judicial attention in every case, the Recommendations promote the expansion of responsibility for managing civil cases from the judge as an individual to the court as a collective institution. The term “court”

The Recommendations in this report spring from

encompasses the entire complement of courthouse

the realities made clear by the Landscape data as

personnel—judges, staff, and infrastructure

well as the experiences of pilot projects and rule

resources including information technology. The

changes around the country. They are founded on

Recommendations envision a civil justice system

the premise that current civil justice processes are

in which civil case automation plays a large role in

largely not working for litigants. A core contributing

supporting teams of court personnel as they triage

factor is that lawyers too often control the pace of

cases to experienced court staff and/or judicial officers

litigation. This has led to unnecessary delays in

as needed to address the needs of each case. Routine

case resolution. Thus, the leading Recommendation

case activity, such as scheduling and monitoring

advocates that courts take definitive responsibility

compliance with deadlines, can be automated,

for managing civil cases from filing to disposition.

permitting specially trained court staff to perform

This includes effective enforcement of rules and

basic case management responsibilities under the

administrative orders designed to promote the

guidance of legally trained case managers. This in turn

just, prompt, and inexpensive resolution of civil

will free the judge to focus on tasks that require the

cases. That Recommendation is the lynchpin for all

unique expertise of a judicial officer, such as issuing

that follow.

decisions on dispositive motions and conducting evidentiary hearings, including bench and jury trials.

THE ENTIRE COURT MUST LEAD CASE MANAGEMENT The concept of effective civil caseflow management

ONE-SIZE-FITS-ALL IS NOT WORKING

is not new. It has been a hallmark of court

The Recommendations also recognize that uniform

administration for nearly half a century, but it

rules that apply to all civil cases are not optimally

has not been solidly institutionalized in most

designed for most civil cases. They provide too much

jurisdictions. Instead, a common trajectory for

process for the vast majority of cases, including

implementation of civil caseflow reform is an initial

uncontested cases. And they provide too little

period of education and adoption, followed by

management for complex cases that comprise a small

predictable improvements in civil case processing.

proportion of civil caseloads, but which inevitably

However, as new judges rotate into civil calendar

require a disproportionate amount of attention from

assignments, the lessons previously learned tend

the court.2 Instead, cases should be “right-sized”

to be forgotten and the court reverts to its previous

and triaged into appropriate pathways at filing.

practices. One of the primary reasons for this

However, those pathways should be flexible enough

backsliding is the heavy reliance on the trial judge to

to permit reassignment if the needs of the case change over time.

12



TRADITIONAL DIFFERENTIATED CASE MANAGEMENT IS NOT ENOUGH The pathway approach described in the Recommendations improves existing court structures and differentiated case management (DCM) systems. Many court systems are currently characterized by a tiered structure of general and limited jurisdiction courts that limit where civil cases can be filed based on case type or amount-incontroversy or both. DCM is a rule-based system that, at varying times after filing, assigns civil cases to case-processing tracks, usually based on case type or amount-in-controversy. Each DCM track features its own case-processing rules concerning presumptive deadlines for case events.

It is imperative that courts develop rules and procedures for promptly assigning all cases to pathways designed to give each case the amount of attention that properly fits the case’s needs.

Tiered court systems and DCM offer little flexibility once the initial decision has been made concerning the court in which to file or the assigned DCM track. A case filed in the general jurisdiction court cannot gain access to procedures or programs offered to cases in the limited jurisdiction court and vice versa. A case assigned to one DCM track usually cannot be reassigned later to another track. The rules and procedures for each court or DCM track typically apply to all cases within that court or track, even if a case would benefit from management under rules or procedures from another court or track. DCM’s traditional three-track system often falters in application because, in some courts, tracking does not happen unless or until there is a case management conference. Thus, the benefits of early, tailored case management occur only in the small percentage of cases where such a conference is held. And if a properly tagged case does not receive corresponding staff and infrastructure support, the fruits of non-judicial case management are lost.

swer was filed in less than half of cases in which the amount-in-controversy exceeded $300,000; the remaining cases were uncontested and thus did not require a great deal of court involvement.3 Although case type and amount-in-controversy were both significant predictors of the likelihood of future discovery disputes during the litigation (often cited as time-consuming case events for judges), other factors, including the representation status of the litigants, were stronger predictors of the need for court involvement in the case. For these reasons it is imperative that courts develop rules and procedures for promptly assigning all cases to pathways designed to give each case the amount of attention that properly fits the case’s needs. As importantly, courts must implement business practices that ensure that rules and procedures are enforced. Rules and procedures for each pathway should move each case toward resolution in an expeditious manner. For example,

Furthermore, experience has found that case type

empirical research shows that fact-pleading

and amount-in-controversy—the two factors most

standards and robust mandatory disclosures induce

often used to define the jurisdiction of courts in

litigants to identify key issues in dispute more

tiered systems or DCM procedures—do not reliably

promptly and help inform litigants about the merits

forecast the amount of judicial management that

of their respective claims and defenses.4 Other rules

each case demands. In Utah, for example, an an-

and procedures that have been shown to be effective



13

are presumptive restrictions on the scope of necessary discovery and strictly enforced deadlines. These promote completion of key stages of litigation up to and including trials.5

CLOSE ATTENTION TO HIGH-VOLUME DOCKETS It is axiomatic that court rules, procedures, and business practices are critical for maintaining forward momentum in cases where all litigants are fully engaged in the adversarial process to resolve their disputed issues. These rubrics are even more critical in the substantial proportion of civil caseloads comprised of uncontested cases and cases involving large asymmetries in legal expertise. While most of these cases resolve relatively quickly, the Landscape study makes clear that significant numbers of cases languish on civil calendars for long periods of time for no apparent reason. Research shows that poor management of highvolume dockets can especially affect unrepresented parties.6 The Recommendations advocate improved rules, procedures, and business practices that trigger closer and more effective review of the adequacy of claims in high-volume dockets.

Court rules, procedures, and business practices are critical for maintaining forward momentum in cases.

14



Recommendations These realities illustrate the urgent need for change. It is imperative that court leaders move promptly to improve caseflow management to control costs, reduce delays, and ensure fairness for litigants, and embrace tools and methods that align with the realities of modern civil dockets. Toward those ends, these Recommendations present a broad range of practices that each state can embrace in ways that fit local legal culture and resources. The Recommendations are set forth under these topical headings: • Exercise Ultimate Responsibility • Triage Case Filings with Mandatory Pathway Assignments • Strategically Deploy Court Personnel and Resources • Use Technology Wisely • Focus Attention on High-Volume and Uncontested Cases • Provide Superior Access for Litigants The Recommendations aim to create a future where: • Each case receives the court attention necessary for efficient and just resolution;

These Recommendations intentionally use the verbs “must” and “should.” “Must“ is used to convey an action that is essential and compelling in response to contemporary issues confronting civil case managers. “Should” is used to convey an action that is important and advisable to undertake. Hence, “must-do” Recommendations are immediately necessary because they go to the heart of improving caseflow and reducing unnecessary cost and delay. “Should-do” Recommendations are also necessary but may have to await the availability of such things as enabling authority or additional resources.

• Teams of judges, court attorneys, and professionally trained staff manage the case from filing to disposition; • Litigants understand the process and make informed decisions about their cases; • Justice is not only fair but convenient, timely, and less costly; • Modern technology replaces paper and redundancy; and • Civil justice is not considered an insider’s game fraught with outdated rules and procedures. In sum, the recommendations provide courts with a roadmap to make justice for all a reality.

RECOMMENDATIONS


15

EXERCISE ULTIMATE RESPONSIBILITY ents may favor delay rather than efficiency. In short,

RECOMMENDATION 1 Courts must take responsibility for managing civil cases from time of filing to disposition. 1.1 Throughout the life of each case, courts must effectively communicate to litigants all requirements for reaching just and prompt case resolution. These requirements, whether mandated by rule or administrative order, should at a minimum include a firm date for commencing trial and mandatory disclosures of essential information. 1.2 Courts must enforce rules and

adversarial strategizing can undermine the achievement of fair, economical, and timely outcomes. It is time to shift this paradigm. The Landscape of Civil Litigation makes clear that relying on parties to self-manage litigation is often inadequate. At the core of the Committee’s Recommendations is the premise that the courts ultimately must be responsible for ensuring access to civil justice. Once a case is filed in court, it becomes the court’s responsibility to manage the case toward a just and timely resolution. When we say “courts” must take responsibility, we mean judges, court managers, and indeed the whole judicial branch, because the factors producing unnecessary costs and delays have become deeply

administrative orders that are designed

imbedded in our legal system. Primary case re-

to promote the just, prompt, and

sponsibility means active and continuing court

inexpensive resolution of civil cases.

oversight that is proportionate to case needs. This right-sized case management involves having the

1.3 To effectively achieve case management

most appropriate court official perform the task at

responsibility, courts should undertake a

hand and supporting that person with the necessary

thorough statewide civil docket inventory.

technology and training to manage the case toward resolution. At every point in the life of a case, the right person in the court should have responsibility for the case.

COMMENTARY

RE: 1.1

Our civil justice system has historically expected lit-

The court, including its personnel and IT systems,

igants to drive the pace of civil litigation by request-

must work in conjunction with individual judges to

ing court involvement as issues arise. This often

manage each case toward resolution. Progress in

results in delay as litigants wait in line for attention

resolving each case is generally tied both to court

from a passive court—be it for rulings on motions, a

events and to judicial decisions. Effective caseflow

requested hearing, or even setting a trial date. The

management involves establishing presumptive

wait-for-a-problem paradigm effectively shields

deadlines for key case stages, including a firm

courts from responsibility for the pace of litigation.

trial date. In overseeing civil cases, relevant court

It also presents a special challenge for self-rep-

personnel should be accessible, responsive to case

resented litigants who are trying to understand

needs, and engaged with the parties—emphasizing

and navigate the system. The party-take-the-lead

efficiency and timely resolution.

culture can encourage delay strategies by attorneys, whose own interests and the interests of their cli-

16



RE: 1.2

RE: 1.3

During numerous meetings, Committee members

Courts cannot meaningfully address an issue

voiced strong concern (and every participating trial

without first knowing its contours. Analyzing the

lawyer expressed frustration) that, despite the

existing civil caseload provides these contours and

existence of well-conceived rules of civil procedure

gives court leaders a basis for informed decisions

in every jurisdiction, judges too often do not enforce

about what needs to be done to ensure civil docket

the rules. These perceptions are supported by em-

progression.

pirical studies showing that attorneys want judges to hold practitioners accountable to the expectations of the rules. For example, the chart below summabar about court enforcement of mandatory dis-

KEY RESOURCES FOR RECOMMENDATION 1

closure rules.

Task Force on the Escalating Costs of Civil

rizes results of a 2009 survey of the Arizona trial

Litigation, Washington State Bar Ass’n, Final

Surely, whenever it is customary to ignore compli-

Report to the Board of Governors (2015).

ance with rules “designed to secure the just, speedy, and inexpensive determination of every action

Inst. for Advancement of the Am. Legal Sys.,

and proceeding,”7 cost and delay in civil litigation

Survey of the Arizona Bench & Bar on the

will continue.

Arizona Rules of Civil Procedure (2010).

COURT ENFORCEMENT OF DISCLOSURE RULES (N=691*)

4%

18%

20%

36%

22%

0%

100%

Almost Always

Occasionally

Often

Almost Never

*Responses for judges and lawyers with experience with the Rules. Source: IAALS Survey of the Arizona Bench and Bar on the Arizona Rules of Civil Procedure (2010).

Half the Time

ALMOST ALWAYS

RECOMMENDATIONS

OFTEN

HALF THE TIME

OCCASIONALLY

ALMOST NEVER


17

With the advent of e-filing, civil cover sheets, and

RECOMMENDATION 2 Beginning at the time each civil case is filed, courts must match resources with the needs of the case.

electronic case management systems, courts can use technology to begin to right size case management at the time of filing. Technology can also help identify later changes in a case’s characteristics that may justify management adjustments. This recommendation, together with Recommenda-

COMMENTARY

tion 1, add up to an imperative: Every case must have an appropriate plan beginning at the time of filing,

Virtually all states have followed the federal mod-

and the entire court system must execute the plan

el and adopted a single set of rules, usually similar

until the case is resolved.

and often identical to the federal rules, to govern procedure in civil cases. Unfortunately, this pervasive one-size-fits-all approach too often fails to recognize and respond effectively to individual case needs.

KEY RESOURCES FOR RECOMMENDATION 2 Victor E. Flango & Thomas M. Clarke,

The one-size-fits-all mentality exhibits itself at

Reimagining Courts: A Design for the Twenty-

multiple levels. Even where innovative rules are im-

First Century (2015).

plemented with the best of intentions, judges often continue to apply the same set of rules and mindset to the cases before them. When the same approach is used in every case, judicial and staff resources are misdirected toward cases that do not need that kind

Inst. for Advancement of the Am. Legal Sys. & Am. Coll. of Trial Lawyers, Reforming our Civil Justice System: A Report on Progress and Promise (2015).

of attention. Conversely, cases requiring more assis-

Brian Ostrom & Roger Hanson, National Center

tance may not get the attention they require because

for State Courts, Achieving High Performance: A

they are lumped in with the rest of the cases and

Framework for Courts (2010).

receive the same level of treatment. Hence, the civil justice system repeatedly imposes unnecessary, time-consuming steps, making it inaccessible for many litigants. Courts need to move beyond monolithic methods and recognize the importance of adapting court process to case needs. The Committee calls for a “right sizing” of court resources. Right sizing aligns rules, procedures, and court personnel with the needs

Corina D. Gerety & Logan Cornett, Inst. for the Advancement of the Am. Legal Sys., Momentum for Change: The Impact of the Colorado Civil Access Pilot Project (2014). Paula Hannaford-Agor & Cynthia G. Lee, Utah: Impact of the Revisions to Rule 26 on Discovery Practice in the Utah District Courts, Final Report (2015).

and characteristics of similarly situated cases. As a result, cases get the amount of process needed—no more, no less. With right sizing, judges tailor their oversight to the specific needs of cases. Administrators align court resources to case requirements —coordinating the roles of judges, staff, and infrastructure.

18



TRIAGE CASE FILINGS WITH MANDATORY PATHWAY ASSIGNMENTS those characteristics and needs will lead to efficien-

RECOMMENDATION 3 Courts should use a mandatory pathwayassignment system to achieve right-sized case management. 3.1 To best align court management practices and resources, courts should utilize a three-pathway approach: Streamlined, Complex, and General. 3.2 To ensure that court practices and resources are aligned for all cases throughout the life of the case, courts must triage cases at the time of filing based on case characteristics and issues. 3.3 Courts should make the pathway assignments mandatory upon filing. 3.4 Courts must include flexibility in the

cies in time, scale, and structure. To achieve these efficiencies, it is critical that the pathway approach be implemented at the individual case level and consistently managed on a systemwide basis from the time of filing. Implementing this right-size approach is similar to, but distinct from, differentiated case management. DCM is a longstanding case management technique that applies different rules and procedures to different cases based on established criteria. In some jurisdictions the track determination is made by the judge at the initial case management conference. Where assignment to a track is more automatic or administratively determined at the time of filing, it is usually based merely on case type or amount-in-controversy. There has been a general assumption that a majority of cases will fall in a middle track, and it is the exceptional case that needs more or less process.

pathway approach so that a case can

While the tracks and their definitions may be in the

be transferred to a more appropriate

rules, it commonly falls upon the judges to assign

pathway if significant needs arise or

cases to an appropriate track. Case automation or

circumstances change.

staff systems are rarely in place to ensure assign-

3.5 Alternative dispute resolution mechanisms can be useful on any of the pathways provided that they facilitate the just, prompt, and inexpensive disposition of civil cases.

ment and right-sized management, or to evaluate use of the tracking system. Thus, while DCM is an important concept upon which these Recommendations build, in practice it has fallen short of its potential. The right-sized case management approach recommended here embodies a more modern approach than DCM by (1) using case characteristics beyond case type and amount-in-controversy, (2)

COMMENTARY

requiring case triaging at time of filing, (3) recog-

The premise behind the pathway approach is that

nizing that the great majority of civil filings pres-

different types of cases need different levels of case management and different rules-driven processes. Data and experience tell us that cases can be grouped by their characteristics and needs. Tailoring

ent uncomplicated facts and legal issues, and (4) requiring utilization of court resources at all levels, including non-judicial staff and technology, to manage cases from the time of filing until disposition.

the involvement of judges and professional staff to

RECOMMENDATIONS


19

that are voluntary. Hence, the Committee

THE PATHWAY APPROACH

recommends mandatory application of a triage-to-

The pathway approach differs from and improves upon DCM in several fundamental respects. The pathway approach:

to this right-sized treatment, courts can achieve

• Relies on case characteristics other than just case type and amount-in-controversy to triage cases onto a presumptive pathway at the time of filing. • Provides flexibility and continuity by relying on automated case monitoring to assure cases remain on the appropriate pathway as indicated by the need for more or less judicial involvement in moving toward resolution. • Enables judges to do more substantive case work by relying on trained court staff and technology to assign all cases promptly at filing.

pathway system. When all civil cases are subject maximum cost-saving and timesaving benefits.

RE: 3.4 While mandatory assignment is critical, the Committee recognizes that right sizing is dynamic. It contemplates that a case may take an off ramp to another pathway as a case unfolds and issues change. This flexibility comes from active participation of the court and litigants in assessing case needs and ensuring those needs are met.

RE: 3.5 In some jurisdictions, the availability of alternative dispute resolution (ADR) mechanisms is viewed as an invaluable tool for litigants to resolve civil cases quickly and less expensively than traditional court procedures. In others, it is viewed as an expensive

RE: 3.2

barrier that impedes access to a fair resolution of the case. To the extent that ADR provides litigants

Right-sized case management emphasizes trans-

with additional options for resolving cases, it can be

parent application of case triaging early and

employed on any of the pathways, but it is imper-

throughout the process with a focus on case char-

ative that it not be an opportunity for additional

acteristics all along the way. Pathway assignment

cost and delay.

at filing provides the opportunity for improved efficiencies because assignment does not turn on designation by the judge at a case management conference, which may not occur or be needed in every case. Entry point triage can be accomplished by non-judicial personnel, based upon the identified case characteristics and through the use of more advanced technology and training. Triage is done more

KEY RESOURCES FOR RECOMMENDATION 3 Victor E. Flango & Thomas M. Clarke, Reimagining Courts: A Design for the Twenty-First Century (2015).

effectively early in the process, with a focus on case

Inst. for the Adv. of the Am. Legal Sys. &

issues and not only on case type or monetary value.

American College of Trial Lawyers, Reforming Our Civil Justice System: A Report on Progress

RE: 3.3

and Promise (2015).

There has been much experimentation around

Corina D. Gerety & Logan Cornett, Inst. for

the country with different processes for case designation upon filing, particularly for cases with simpler issues. Courts and parties invariably underutilize (and sometimes ignore) innovations

20

the Adv. of the Am. Legal Sys., Momentum for Change: The Impact of the Colorado Civil Access Pilot Project (2014).



RECOMMENDATION 4 Courts should implement a Streamlined Pathway for cases that present uncomplicated facts and legal issues and require minimal

STREAMLINED PATHWAY CASE CHARACTERISTICS • Limited number of parties

judicial intervention but close court supervision.

• Routine issues related to liability and damages

4.1 A well-established Streamlined Pathway

• Few anticipated pretrial motions

conserves resources by automatically calendaring core case processes. This approach should include the flexibility

• Limited need for discovery • Few witnesses

to allow court involvement and/or

• Minimal documentary evidence

management as necessary.

• Anticipated trial length of one to two days

4.2 At an early point in each case, the court should establish deadlines to complete key case stages including a firm trial date. The recommended time to disposition for the Streamlined Pathway is 6 to 8 months. 4.3 To keep the discovery process proportional to the needs of the case, courts should require mandatory disclosures as an early opportunity to clarify issues, with enumerated and limited discovery thereafter. 4.4 Judges must manage trials in an efficient and time-sensitive manner so that trials are an affordable option for litigants who desire a decision on the merits.

appeals from small claims decisions. For these simpler cases, it is critical that the process not add costs for the parties, particularly when a large percentage of cases end early in the pretrial process. Significantly, the Landscape of Civil Litigation informs us that 85 percent of all civil case filings fit within this category.

RE: 4.1 The Streamlined Pathway approach recognizes resource limits. Resource intensive processes like case management conferences are rarely necessary in simple cases. Instead, the court should establish by rule presumptive deadlines for the completion of key case stages and monitor compliance through a management system powered by technology. At the

COMMENTARY Streamlined civil cases are those with a limited number of parties, routine issues related to liability and damages, few anticipated pretrial motions, limited need for discovery, few witnesses, minimal documentary evidence and anticipated trial length of one to two days. Streamlined pathway cases

same time, the process should be flexible and allow court involvement, including judges, as necessary. For example, a case manager or judge can schedule a management conference to address critical issues that might crop up in an initially simple case.

RE: 4.2

would likely include these case types: automobile

Too many simple cases languish on state court

tort, intentional tort, premises liability, tort-other,

dockets, without forward momentum or resolution.

insurance coverage claims arising out of claims

At or soon after filing, the court should send the

listed above, landlord/tenant, buyer plaintiff,

parties notice of the presumptive deadlines for key

seller plaintiff, consumer debt, other contract, and

case stages, including a firm trial date. The parties

RECOMMENDATIONS


21

may always come to the court to fashion a differ-

RE: 4.4

ent schedule if there is good cause. This pathway

While the vast majority of cases are resolved with-

contemplates conventional fact finding by either the court or a jury, with a judgment on the record and the ability to appeal. Because this process is intended for the vast majority of cases in the state courts, it is important that the process ensure a final judgment and right to appeal to safeguard the rights of litigants and to gain buy-in from attorneys.

RE: 4.3

out trial, if parties in a Streamlined Pathway case want to go to trial, the court should ensure that option is accessible. Because trial is a costly event in litigation, it is critical that trials be managed in a time-sensitive manner. Once a trial begins in a case, the trial judge should give top priority to trial matters, making presentation of evidence and juror time fit into full and consecutive days of business. A thorough pretrial conference can address outstand-

Mandatory disclosures provide an important oppor-

ing motions and evidentiary issues so that time

tunity in streamlined cases to focus the parties and

is not wasted and a verdict can be reached in one

discovery early in the case. With robust, meaning-

or two days.

ful initial disclosures, the parties can then decide what additional discovery, if any, is necessary. The attributes of streamlined cases put them in this pathway for the very reason that the nature of the dispute is not factually complex. Thus, streamlined rules should include presumptive discovery limits, because such limits build in proportionality. Where additional information is needed to make decisions about trial or settlement, the parties can obtain

KEY RESOURCES FOR RECOMMENDATION 4 Paula Hannaford-Agor & Cynthia G. Lee, Utah: Impact of the Revisions to Rule 26 on Discovery Practice in the Utah District Courts, Final Report (2015).

additional discovery with a showing of good cause.

Corina D. Gerety & Logan Cornett, Inst. for the

Presumptive discovery maximums have worked well

Advancement of the Am. Legal Sys., Momentum

in various states, including Utah and Texas, where

for Change: The Impact of the Colorado Civil

there are enumerated limits on deposition hours,

Access Pilot Project (2014).

interrogatories, requests for production, and requests for admission.

Paula Hannaford-Agor, et al., Nat’l Ctr. for State Courts, Civil Justice Initiative, New Hampshire: Impact of the Proportional Discovery/Automatic Disclosure (PAD) Pilot Rules (2013).

Because this process is intended for the vast majority of cases in the state courts, it is important that the process ensure a final judgment and right to appeal to safeguard the rights of litigants and to gain buy-in from attorneys.

22



COMMENTARY

RECOMMENDATION 5 Courts should implement a Complex Pathway for cases that present multiple legal and factual issues, involve many parties, or otherwise are likely to require close court supervision. 5.1 Courts should assign a single judge to

The Complex Pathway provides right-sized process for those cases that are complicated in a variety of ways. Such cases may be legally complex or logistically complex, or they may involve complex evidence, numerous witnesses, and/or high interpersonal conflict. Cases in this pathway may include multi-party medical malpractice, class actions,

complex cases for the life of the case, so

antitrust, multi-party commercial cases, securities,

they can be actively managed from filing

environmental torts, construction defect, product

through resolution.

liability, and mass torts. While these cases comprise

5.2 The judge should hold an early case management conference, followed by continuing periodic conferences or other informal monitoring. 5.3 At an early point in each case, the judge should establish deadlines for the completion of key case stages, including a firm trial date. 5.4 At the case management conference,

a very small percentage (generally no more than 3%) of most civil dockets, they tend to utilize the highest percentage of court resources. Some jurisdictions have developed a variety of specialized courts, such as business courts, commercial courts, and complex litigation courts. They often employ case management techniques recommended for the Complex Pathway in response to longstanding recognition of the problems complex cases can pose for effective civil case processing. While imple-

the judge should also require the parties

mentation of a mandatory pathway assignment sys-

to develop a detailed discovery plan

tem may not necessarily replace a specialized court

that responds to the needs of the case,

with the Complex Pathway, courts should align their

including mandatory disclosures, staged

case assignment criteria for the specialized court to

discovery, plans for the preservation

those for the Complex Pathway. As many business

and production of electronically stored

and commercial court judges have discovered, not

information, identification of custodians,

all cases featuring business-to-business litigants

and search parameters.

or issues related to commercial transactions re-

5.5 Courts should establish informal communications with the parties regarding dispositive motions and possible settlement, so as to encourage early identification and narrowing of the issues for more effective briefing, timely court rulings, and party agreement. 5.6 Judges must manage trials in an efficient

quire intensive case management. Conversely, some cases that do not meet the assignment criteria for a business or commercial court do involve one or more indicators of complexity and should receive close individual attention.

RE: 5.1 To ensure proportionality for complex cases, a single judge should be assigned for the life of these cases.

and time-sensitive manner so that trials

Judges can do much to prevent undue cost and delay.

are an affordable option for litigants who

A one-judge-from-filing-through-resolution policy

desire a decision on the merits.

preserves judicial resources by avoiding the need for a fresh learning curve whenever a complex case

RECOMMENDATIONS


23

returns to court for a judicial ruling. The parties are

RE: 5.4

also better served if a single judge is engaged on a

Once a discovery plan is determined, the court must

regular basis. During the course of the case, attorneys can build upon prior communications rather than repeat them.

continue to monitor progress over the course of discovery. Everyone involved in the litigation, and particularly the court, has a continuing responsibility to move the case forward according to established

COMPLEX PATHWAY CASE CHARACTERISTICS • Complex law • Numerous parties • Numerous witnesses • Voluminous documentary evidence • High interpersonal conflict

plans and proportionality principles. Litigation expense in complex lawsuits, especially discovery costs, easily can spin out of control absent a shepherding hand and guiding principles. Thus, proportionality must be a guiding standard in discovery and the entire pretrial process to ensure that the case does not result in undue cost and delay. While proportionality is a theme that runs across all of the pathways, in the complex pathway this concept is more surgical. Given the complexities inherent in these cases, proportionality standards should

RE: 5.2 Research and experience confirms the importance of having a mandatory case management conference early in the life of complex cases. Case conferences provide an ideal opportunity to narrow the issues, discuss and focus dispositive motions prior to filing, and identify and address discovery issues before they grow into disputes. Periodic communications with the court create the opportunity for settlement momentum and reassessment of pathway designa-

be applied to rein in time and expense while still recognizing that some legal and evidentiary issues require time to sort out. Mandatory disclosures can also play a critical role in identifying the issues in the litigation early, so that additional discovery can be tailored and proportional, although it is possible that the disclosures, like some discovery, will need to occur in phases.

RE: 5.5

tion if complexities are eliminated. For the Colorado

Courts should utilize informal processes, such as

Civil Access Pilot Project, the focus on early, active,

conference calls with counsel, to encourage narrow-

and ongoing judicial management of complex cases

ing of the issues and concise briefing that in turn

was essential and received more positive feedback

can promote more efficient and effective rulings

than any other part of the project.

by the court.

RE: 5.3

RE: 5.6

Cases in which the parties are held accountable for

Judges must lead the effort to avoid unnecessary

completing necessary pretrial tasks tend to resolve

time consumption during trials. A robust pretrial

more quickly. The longer a case goes on, the more it

conference should address outstanding motions and

costs. Effective oversight and enforcement of dead-

evidentiary issues so that the trial itself is con-

lines by a vigilant civil case management team can

ducted as efficiently as possible. The court and the

significantly reduce cost and delay.

parties should consider agreeing to time limits for

24



trial segments. Once a trial begins, the trial judge should give top priority to trial matters, making presentation of evidence and juror time fit into full and consecutive days of business.

KEY RESOURCES FOR RECOMMENDATION 5 Nat’l Ctr. for State Courts, Dimensions of Complexity, Civil Action, Vol. 3, No. 1 (Winter 2004). Jordan Singer, Suffolk Superior Court Business Litigation Session Pilot Project: Final Report on the 2012 Attorney Survey (2012). Natalie Anne Knowlton & Richard P. Holme, Inst. for Advancement of the Am. Legal Sys. & Am. Coll. of Trial Lawyers, Working Smarter, Not Harder: How Excellent Judges Manage Cases (2014). Corina D. Gerety & Logan Cornett, Inst. for the Advancement of the Am. Legal Sys., Momentum for Change: The Impact of the Colorado Civil Access Pilot Project (2014).

To ensure proportionality for complex cases, a single judge should be assigned for the life of these cases. Judges can do much to prevent undue cost and delay.

RECOMMENDATIONS


25

COMMENTARY

RECOMMENDATION 6 Courts should implement a General Pathway for cases whose characteristics do not justify assignment to either the Streamlined or Complex Pathway. 6.1 At an early point in each case, the

Like the other pathways, the goal of the General Pathway is to determine and provide “right-sized” resources for timely disposition. The General Pathway provides the right amount of process for the cases that are not simple, but also are not complex. Thus, General Pathway cases are those cases that are principally identified by what they are not, as

court should establish deadlines for the

they do not fit into either the Streamlined Pathway

completion of key case stages including a

or the Complex Pathway. Nevertheless, the Gen-

firm trial date. The recommended time to

eral Pathway is not another route to “litigation as

disposition for the General Pathway is 12

we know it.” Like the streamlined cases, discovery

to 18 months.

and motions for these cases can become dispropor-

6.2 The judge should hold an early case management conference upon request of the parties. The court and the parties must work together to move these cases forward, with the court having the

tionate, with efforts to discover more than what is needed to support claims and defenses. The goal for this pathway is to provide right-sized process with increased judicial involvement as needed to ensure that cases progress toward efficient resolution.

ultimate responsibility to guard against

As with the other case pathways, at an early point in

cost and delay.

each case courts should set a firm trial date. Pro-

6.3 Courts should require mandatory disclosures and tailored additional discovery.

portional discovery, initial disclosures, and tailored additional discovery are also essential for keeping General Pathway cases on track.

6.4 Courts should utilize expedited approaches to resolving discovery disputes to ensure cases in this pathway do not become more complex than they need to be. 6.5 Courts should establish informal communications with the parties regarding dispositive motions and possible settlement, so as to encourage early identification and narrowing of the issues for more effective briefing, timely court rulings, and party agreement. 6.6

Judges must manage trials in an efficient and time-sensitive manner so that trials are an affordable option for litigants who desire a decision on the merits.

RE: 6.1 to 6.3 The cases in the General Pathway may need more active management than streamlined cases. A judge may need to be involved from the beginning to understand unusual issues in the case, discuss the anticipated pretrial path, set initial parameters for discovery, and be available to resolve disputes as they arise. The court and the parties can then work together to move these cases forward, with the court having the ultimate responsibility to guard against cost and delay. A court’s consistent and clear application of proportionality principles early in cases can have a leavening affect on discovery decisions made in law offices. Parties and attorneys typically make their decisions about what discovery to do next without court involvement. A steady court policy with respect to proportionality provides deliberating parties and attorneys with guidance.

26



RE: 6.4 to 6.5 As in the Complex Pathway, courts should utilize informal processes, such as conference calls with counsel, to encourage narrowing of the issues and

STRATEGICALLY DEPLOY COURT PERSONNEL AND RESOURCES

concise briefing that in turn can promote more efficient and effective rulings by the court. In addition, an in-person case management conference can play a critical role in reducing cost and delay by affording the judge and parties the opportunity to have an in-depth discussion regarding the issues and case needs. Without doubt, alternative dispute resolution (ADR) is an important development in modern civil practice. However, to avoid it becoming an unnecessary hurdle or cost escalator, its appropriateness should be considered on a case-by-case basis. That said, settlement discussions are a critical aspect of case management, and the court should ensure that there is a discussion of settlement at an appropriate time, tailored to the needs of the case.

RECOMMENDATION 7 Courts should develop civil case management teams consisting of a responsible judge supported by appropriately trained staff. 7.1 Courts should conduct a thorough examination of their civil case business practices to determine the degree of discretion required for each management task. These tasks should be performed by persons whose experience and skills correspond with the task requirements. 7.2 Courts should delegate administrative authority to specially trained staff to make routine case management decisions.

RE: 6.6 As with the other pathways, trial judges play a crucial role in containing litigation costs and conserving juror time by making time management a high priority once a trial begins.

COMMENTARY Recommendation 1 sets forth the fundamental premise that courts are primarily responsible for the fair and prompt resolution of each case. This


is not the responsibility of the judge alone. Active

Paula Hannaford-Agor & Cynthia G. Lee, Utah:

and supervised staff. The Committee rejects the

Impact of the Revisions to Rule 26 on Discovery

proposition that a judge must manage every aspect

Practice in the Utah District Courts, Final

of a case after its filing. Instead, the Committee

Report (2015).

endorses the proposition that court personnel, from

Steven S. Gensler & Lee H. Rosenthal, The Reappearing Judge, 61 U. Kan. L. Rev. 849 (2013).

case management at its best is a team effort aided by technology and appropriately trained

court staff to judge, be utilized to act at the “top of their skill set.” Team case management works. Utah’s implementation of team case management resulted in a 54 percent reduction in the average age of pending civil cases from 335 days to 192 days (and a 54 percent reduction for all case types over that same period) despite considerably higher caseloads. In Miami,

RECOMMENDATIONS


27

team case management resulted in a 25 percent increase in resolved foreclosure cases compared consistently at six months, twelve months, and eighteen months during the foreclosure crisis, and the successful resolution of a 50,000 case backlog. Specialized business courts across the country use team case management with similar success. In Atlanta, business court efforts resulted in a 65 percent faster disposition time for complex contract cases and a 56 percent faster time for

KEY RESOURCES FOR RECOMMENDATION 7 Lee Suskin & Daniel Hall, A Case Study: Reengineering Utah’s Courts Through the Lens of the Principles of Judicial Administration (2012). Fulton County Superior Court, Business Court: 2014 Annual Report (2014).

complex business tort cases.

RE: 7.1 Using court management teams effectively requires that the court conduct a thorough examination of civil case business practices to determine the degree of discretion required for each. Based upon that examination, courts can develop policies and practices to identify case management responsibilities appropriately assignable to professional court staff or automated processes. Matching management tasks to the skill level of the personnel allows administrators to execute protocols and deadlines and judges to focus on matters that require judicial discretion. Evaluating what is needed and who should do it brings organization to the system and minimizes complexities and redundancies in court

The fair and prompt resolution of each case… is not the responsibility of the judge alone. Active case management at its best is a team effort aided by technology and appropriately trained and supervised staff.

structure and personnel.

RE: 7.2 Delegation and automation of routine case management responsibilities will generate time for judges to make decisions that require their unique authority, expertise, and discretion.

28



administrators must partner with the bar to create

RECOMMENDATION 8 For right-size case management to become the norm, not the exception, courts must provide judges and court staff with training that specifically supports and empowers right-sized case management. Courts should partner with bar leaders to create programs that educate

CLE programs and bench/bar conferences that help practitioners understand why changes are being undertaken and what will be expected of lawyers. Bar organizations, like the judicial branch, must design and offer education programs to inform their members about important aspects of the new practices being implemented in the courts.

lawyers about the requirements of newly instituted case management practices.

COMMENTARY Judicial training is not a regular practice in every jurisdiction. To improve, and in some instances reengineer, civil case management, jurisdictions should establish a comprehensive judicial training program. The Committee advocates a civil

KEY RESOURCES FOR RECOMMENDATION 8 Lee Suskin & Daniel Hall, A Case Study: Reengineering Utah’s Courts Through the Lens of the Principles of Judicial Administration (2012). Report of the Iowa Civil Justice Reform Task Force: Reforming the Iowa Civil Justice System (2012).

case management-training program that includes web-based training modules, regular training of new judges and sitting judges, and a system for identifying judges who could benefit from additional training. Accumulated learning from the private sector suggests that the skill sets required for staff will change rapidly and radically over the next several years. Staff training must keep up with the impact of technology improvements and consumer expectations. For example, court staff should be trained to provide appropriate help to self-represented litigants. Related to that, litigants should be given an opportunity to perform many court transactions online. Even with well-designed websites and interfaces, users can become confused or lost while trying to complete these transactions. Staff training should include instruction on answering user questions and solving user process problems. The understanding and cooperation of lawyers can significantly influence the effectiveness of any pilot projects, rule changes, or case management processes that court leaders launch. Judges and court

RECOMMENDATIONS


29

To build public trust in the courts and improve

RECOMMENDATION 9 Courts should establish judicial assignment criteria that are objective, transparent, and mindful of a judge’s experience in effective case management.

case management effectiveness, it is incumbent upon court leaders to avoid politicization of the assignment process. In assigning judges to various civil case dockets, court leaders should consider a composite of factors including (1) demonstrated case management skills, (2) litigation experience, (3) previous training, (4) specialized knowledge, (5) interest, (6) reputation with respect to neutrality,

COMMENTARY

and (6) professional standing within the trial bar.

The Committee recognizes the variety of legal cultures and customs that exist across the breadth atives described in these Recommendations, the

KEY RESOURCE FOR RECOMMENDATION 9

Committee trusts that all court leaders will make

Lee Suskin & Daniel Hall, A Case Study:

judicial competence a high priority. Court leaders

Reengineering Utah’s Courts Through the Lens of

should consider a judge’s particular skill sets when

the Principles of Judicial Administration (2012).

of our country. Given the case management imper-

assigning judges to preside over civil cases. For many years, in most jurisdictions, the sole criterion for judicial assignment was seniority and a judge’s request for an assignment. The judge’s experience or training were not top priorities.

FACTORS TO CONSIDER IN JUDICIAL ASSIGNMENT CRITERIA • Demonstrated case management skills • Civil case litigation experience • Previous civil litigation training • Specialized knowledge • Interest in civil litigation • Reputation with respect to neutrality • Professional standing with the trial bar

30



USE TECHNOLOGY WISELY

online case filing and electronic case management is an important beginning, but just a beginning. Enterprises as diverse as commercial air carriers, online retailers, and motor vehicle registrars

RECOMMENDATION 10

have demonstrated ways to manage hundreds of thousands of transactions and communications.

Courts must take full advantage of technology

What stands in the way of courts following suit?

to implement right-sized case management and

If it involves lack of leadership, the Committee

achieve useful litigant-court interaction.

trusts that this Report and these Recommendations will embolden chief justices and state court

10.1 Courts must use technology to support

administrators to fill that void.

a court-wide, teamwork approach to case management. 10.2 Courts must use technology to establish

RE: 10.1 Modern data management systems and court-

business processes that ensure forward

oriented innovations, such as e-filing, e-scheduling,

momentum of civil cases.

e-service, and e-courtesy, provide opportunities for

10.3 To measure progress in reducing unnecessary cost and delay, courts must regularly collect and use standardized, real-time information about civil case management. 10.4 Courts should use information technology to inventory and analyze their existing civil dockets. 10.5 Courts should publish measurement data as a way to increase transparency and accountability, thereby encouraging trust and confidence in the courts.

COMMENTARY This recommendation is fundamental to achieving effective case management. To implement rightsized case management, courts must have refined capacities to organize case data, notify interested

personnel coordination not only within courthouses but also across entire jurisdictions.

RE: 10.2 To move cases efficiently towards resolution, case management automation should, at a minimum, (1) generate deadlines for case action based on court rules, (2) alert judges and court staff to missed deadlines, (3) provide digital data and searchable options for scheduled events, and (4) trigger appropriate compliance orders. Courts should seek to upgrade their current software to achieve that functionality and include those requirements when they acquire new software.

RE: 10.3 Experience and research tell us that one cannot manage what is unknown. Smart data collection is central to the effective administration of justice and can significantly improve decision making.

persons of requirements and events, monitor rules

Although court administrators appreciate the

compliance, expand litigant understanding, and

importance of recordkeeping and performance

prompt judges to take necessary actions. To meet

measurement, few judges routinely collect or use

these urgent needs, courts must fully employ

data measurements or analytical reports. As made

information technologies to manage data and

clear in previous Recommendations, the entire

business processes. It is time for courts to catch

court system acting as a team must collect and

up with the private sector. The expanding use of

use data to improve civil caseflow management

RECOMMENDATIONS


31

representative picture of civil caseloads nationally,

KEY FUNCTIONS OF CASE MANAGEMENT AUTOMATION

each court system should gain a firm understanding

• Generate deadlines for case action based on court rules

take an active, even a proactive, approach to mana-

• Alert judges and court staff to missed deadlines

An inventory should not be a one-time effort.

• Provide digital data and searchable options for scheduled events

effectiveness of previous management efforts and

• Trigger appropriate compliance orders

of its current civil case landscape. Using technology for this purpose will increase the ability of courts to ging for efficiency and effectiveness.

Courts can regularly use inventories to gauge the “get ahead” of upcoming caseload trends.

RE: 10.5 The NCSC and the Justice at Stake consortium

and reduce unnecessary costs and delay. This can be accomplished by enlisting court system actors at different levels and positions in developing the measurement program, by communicating the purpose and importance of the information to all court staff, and by appointing a responsible oversight officer to ensure accuracy and consistency. Courts must systematically collect data on two types of measures. The first is descriptive information about the court’s cases, processes, and people. The second is court performance information, dictated by defined goals and desired outcomes.

commissioned a national opinion survey to identify what citizens around the country think about courts and court funding. The ultimate purpose of the project, entitled Funding Justice: Strategies and Messages for Restoring Court Funding, was to create a messaging guide to help court leaders craft more effective communications to state policymakers and the general public about the functions and resource needs of courts. Citizen focus groups indicated that certain narratives tend to generate more positive public attitudes to courts. These include (1) courts are effective stewards of resources, (2) the courts’ core mission is delivery of fair and timely justice, and (3) courts are transparent about how their

To promote comparability and analytical capacity,

funding is spent. In light of these findings, the

courts must use standardized performance mea-

Committee believes that smart civil case manage-

sures, such as CourTools, as the presumptive mea-

ment, demonstrated by published caseflow data,

sures, departing from them only where there is

can lead to increased public trust in the courts.

good reason to do so. Consistency—in terms of what data are collected, how they are collected, and when they are collected—is essential for obtaining valid measures upon which the court and its stakeholders can rely.

RE: 10.4 As mentioned above, one cannot manage what is unknown. This is true at both the macro the micro levels. A “30,000 foot” view allows court personnel to consider the reality of their caseload when making management decisions. As the Landscape of Civil Litigation provided the CJI Committee a

32



KEY RESOURCES FOR RECOMMENDATION 10 John Matthias & Larry Webster, Business Process

FOCUS ATTENTION ON HIGH-VOLUME AND UNCONTESTED CASES

Case Automation Studies (2013). James Cabral et al., Using Technology to Enhance Access to Justice, 26 Harv. J.L. & Tech. 241 (2012).

RECOMMENDATION 11 Courts must devote special attention to

Lee Suskin & Daniel Hall, A Case Study:

high-volume civil dockets that are typically

Reengineering Utah’s Courts Through the Lens of

composed of cases involving consumer debt,

the Principles of Judicial Administration (2012).

landlord-tenant, and other contract claims.

Dan Becker, Reengineering: Utah’s Experience

11.1 Courts must implement systems to ensure

in Centralized Transcript Management, Future

that the entry of final judgments complies

Trends (2012).

with basic procedural requirements for notice, standing, timeliness, and

Nat’l Center for St. Cts., Why Measure

sufficiency of documentation supporting

Performance? (2005).

the relief sought.

Danielle Fox, Hisashi Yamagata & Pamela Harris,

11.2 Courts must ensure that litigants have

From Performance Measurement to Performance

access to accurate and understandable

Management: Lessons From a Maryland Circuit

information about court processes and

Court, 35 Just. Sys. J. 87 (2014).

appropriate tools such as standardized

John Greacen, Backlog Performance Measurement–A Success Story in New Jersey, 46 Judges J. (2007). Nat’l Center for St. Cts. & Just. at Stake, Funding Justice: Strategies and Messages for Restoring Court Funding (2013).

court forms and checklists for pleadings and discovery requests. 11.3 C ourts should ensure that the courtroom environment for proceedings on highvolume dockets minimizes the risk that litigants will be confused or distracted by over-crowding, excessive noise, or inadequate case calls. 11.4 C ourts should, to the extent feasible, prevent opportunities for self-represented persons to become confused about the roles of the court and opposing counsel.

COMMENTARY State court caseloads are dominated by lower-value contract and small claims cases rather than highvalue commercial or tort cases. Many courts assign these cases to specialized court calendars such as landlord/tenant, consumer debt collection, mortgage

RECOMMENDATIONS


33

foreclosure, and small claims dockets. Many of

RE: 11.3

these cases exhibit similar characteristics. For

Courts often employ block calendaring on high-

example, few cases are adjudicated on the merits, and almost all of those are bench trials. Although plaintiffs are generally represented by attorneys, defendants in these cases are overwhelmingly self-represented, creating an asymmetry in legal expertise that, without effective court oversight, can easily result in unjust case outcomes. Although most cases would be assigned to the Streamlined Pathway under these Recommendations, courts should attend to signs that suggest a case might benefit from additional court involvement. Indicators can include the raising of novel claims or defenses that merit closer scrutiny.

RE: 11.1 Recent federal investigations and agency studies have found widespread instances of judgments entered in cases in which the defendant did not receive notice of the complaint or the plaintiff failed to demonstrate standing to bring suit or adequate documentation of compliance with statutory requirements for timeliness or the basis for the relief sought. Courts have an obligation to implement practices that prevent such abuse.

RE: 11.2

volume dockets in which large numbers of cases are scheduled for the same period of time. The result is often overcrowded, noisy, and potentially chaotic environments in which litigants may not hear their case when it is called or may become distracted by competing activities in the courtroom. Frequently, courts sequence cases after the initial call to benefit attorneys, resulting in long wait times for self-represented litigants. The use of electronic sign-in systems can help ensure that litigants are not mistakenly overlooked and that their cases are heard in a timely manner.

RE: 11.4 Self-represented litigants often lack understanding about the respective roles of the court and opposing counsel. They may acquiesce to opposing counsel demands because they mistakenly assume that the opposing counsel is connected to the court. As a result, judges may not obtain complete information from both sides to ensure a legally correct judgment on the facts and the law. Selfrepresented litigants also may not appreciate the far-reaching implications of agreeing to settle a case (e.g., dismissal, entry of judgment). To curb misunderstandings, courts should provide clear

This recommendation complements Recommenda-

physical separation of counsel from court personnel

tion 13 with respect to making court services more

and services, and standardized guidelines to all

accessible to litigants. Self-represented litigants

litigants and counsel concerning how settlement

need access to accurate information about court

negotiations are conducted and the consequences

processes, including trained court staff that can

of settlement. Before accepting settlements, judges

help them navigate the civil justice system. This

should ascertain that both parties understand the

information should be available electronically or in

agreement and its implications.

person at the courthouse, and at other sites where litigants can receive free assistance. Standardized forms should use plain English and include checkoff lists for basic claim elements, potential common defenses, and the ability to assert counter-claims.

34




RECOMMENDATION 12

Federal Trade Commission, Repairing a Broken

assure steady, timely progress toward resolution.

System: Protecting Consumers in Debt Collection Litigation (2010).

Courts must manage uncontested cases to

12.1 To prevent uncontested cases from languishing on the docket, courts should

Mary Spector, Defaults and Details Exploring

monitor case activity and identify

the Impact of Debt Collection Litigation

uncontested cases in a timely manner.

on Consumers and Courts, 6 Va. L. & Bus.

Once uncontested status is confirmed,

Rev. 257 (2011).

courts should prompt plaintiffs to move for dismissal or final judgment.

Paris R. Baldacci, Assuring Access to Justice: The Role of the Judge in Assisting Pro Se

12.2 Final judgments must meet the same

Litigation in Litigating Their Cases in New York

standards for due process and proof as

City’s Housing Court, 3 Cardozo Pub. Pol’y &

contested cases.

Ethics J. 659 (2006). New York County Law. Ass’n., The New York City Housing Court in the 21st Century: Can It Better Address the Problems Before It? (2005).

COMMENTARY

Russell Engler, Out of Sight and Out of Line:

Uncontested cases comprise a substantial proportion

The Need for Regulation of Lawyers’ Negotiation with Self-represented Poor Persons, 85 Cal. L. Rev. 79 (1997).

of civil caseloads. In the Landscape of Civil Litigation in State Courts, the NCSC was able to confirm that default judgments comprised 20 percent of dispositions, and an additional 35 percent of cases were dismissed without prejudice. Many of these cases were abandoned by the plaintiff, or the parties reached a settlement but failed to notify the court. Other studies of civil caseloads also suggest that uncontested cases comprise a substantial portion of civil cases (e.g., 45 percent of civil cases subject to the New Hampshire Proportional Discovery/ Automatic Disclosure (PAD) Rules, 84 percent of civil cases subject to Utah Rule 26). Without effective oversight, these cases can languish on court dockets indefinitely. For example, more than one-quarter of the Landscape cases that were dismissed without prejudice were pending at least 18 months before they were dismissed.

RE 12.1 To resolve uncontested matters promptly yet fairly requires focused court action. Case management systems should be configured to identify uncon-

RECOMMENDATIONS


35

tested cases shortly after the deadline for filing an answer or appearance has elapsed. If the plaintiff fails to file a timely motion for default or summary judgment, the court should order the plaintiff to file such a motion within a specified period of time. If such a motion is not filed, the court should dismiss the case for lack of prosecution. The court should monitor compliance with the order and carry out enforcement as needed.

RE 12.2 Recent studies of consumer debt collection, mortgage foreclosure, and other cases that are frequently managed on high-volume dockets found that judgments entered in uncontested cases were often invalid. In many instances, the plaintiff failed to

KEY RESOURCES FOR RECOMMENDATION 12 Fed. Trade Commission, Repairing a Broken System: Protecting Consumers in Debt Collection Litigation (2010). Mary Spector, Defaults and Details Exploring the Impact of Debt Collection Litigation on Consumers and Courts, 6 Va. L. & Bus. Rev. 257 (2011). Press Release, The Office [Minnesota] Attorney General Lori Swanson, Attorney General Swanson Sues Legal Process Server for Engaging in “Sewer Service” (Nov. 6, 2014).

provide sufficient notice of the suit to the defendant.

Press Release, Attorney General Cuomo

Other investigations found that plaintiffs could not

Announces Arrest of Long Island Business Owner

prove ownership of the debt or provide accurate

for Denying Thousands of New Yorkers Their Day

information about the amount owed. To prevent

in Court (Apr. 14, 2009).

abuses, courts should implement rules to require or incentivize process servers to use smart technology to document service location and time. Courts should also require plaintiffs to provide an affidavit and supporting documentation of the legitimacy of

Press Release, New York State Unified Court System, Chief Judge Announces Comprehensive Reforms to Promote Equal Justice for New York Consumers in Debt Cases (April 30, 2014).

the claim with the motion for default or summary

Fairfax County [Virginia] General District,

judgment. Before issuing a final judgment, the court

Court Best Practices: Default Judgments/Debt

should review those materials to ensure that the

Buyers (2009).

plaintiff is entitled to the relief sought.

36



PROVIDE SUPERIOR ACCESS FOR LITIGANTS RECOMMENDATION 13

port for a wide array of online services, including a capacity for citizens to ask questions online about court processes.

RE: 13.1 Courts should simplify court forms and develop

Courts must take all necessary steps to increase

online “intelligent forms” that enable litigants to

convenience to litigants by simplifying the

create pleadings and other documents in a manner

court-litigant interface and creating on-demand

that resembles a Turbo Tax interactive dialogue.

court assistance services.

Forms should be available in languages commonly

13.1 Courts must simplify court-litigant interfaces and screen out unnecessary technical complexities to the greatest extent possible. 13.2 Courts should establish Internet portals and stand-alone kiosks to facilitate litigant access to court services. 13.3 Courts should provide real-time assistance for navigating the litigation process.

spoken in the jurisdiction. Processes associated with the forms (attaching documents, making payments, etc.) should be simplified as much as possible.

RE: 13.2 To improve citizen understanding of court services, courts should install information stations inside and outside of courthouses as well as online. To expand the availability of important court information, courts might partner with private enterprises and public service providers, such as libraries and senior

13.4 Judges should promote the use of remote audio and video services for case hearings

centers, to install interactive, web-based, court business portals at the host locations.

and case management meetings.

RE: 13.3 Courts should create online, real-time court assis-

COMMENTARY The importance of “access to substantive justice” is inherent in the mission of the CJI Committee and underpins all of these Recommendations. Recommendation 13 addresses “access” in terms of making the civil justice system less expensive and more convenient to the public. To mitigate access problems, we must know what they are. We also need to know how the public wants us to fix them. A national poll by NCSC in 2014 found that a high percentage of responders thought courts were not doing enough to help self-represented litigants, were out of touch, and were not using technology effectively. Responders frequently cited the time required to interact with the courts, lack of available ADR, and apprehensiveness in dealing with court processes. The poll found strong sup-

RECOMMENDATIONS

tance services, such as online chat services, and 800-number help lines. Litigant assistance should also include clear signage at court facilities to guide litigants to any on-site navigator personnel. Online resolution programs also offer opportunities for remote and real-time case resolution.

RE: 13.4 Vast numbers of self-represented litigants navigate the civil justice system every year. However, travel costs and work absences associated with attending a court hearing can deter self-represented litigants from effectively pursuing or defending their legal rights. The use of remote hearings has the potential to increase access to justice for low-income individuals who have to miss work to be at the courthouse on every court date. Audio or videoconferencing


37

can mitigate these obstacles, offering significant cost savings for litigants and generally resulting in increased access to justice through courts that “extend beyond courthouse walls.” The growing prevalence of smart phones enables participants to join audio or videoconferences from any location. To the extent possible and appropriate, courts should expand the use of telephone communication for civil case conferences, appearances, and other straightforward case events. If a hearing or case event presents a variety of complexities, remote communication capacities should expand to accommodate those circumstances. In such instances video conferencing may be more

KEY RESOURCES FOR RECOMMENDATION 13 Tom Clarke, Building a Litigant Portal: Business and Technical Requirements (2015). Legal Services Corporation, Report of the Summit on the Use of Technology to Expand Access to Justice (2013). James Cabral et al., Using Technology to Enhance Access to Justice, 26 Harv. J.L. & Tech. 241 (2012). World Bank Index, Doing Business 2015: Going Beyond Efficiency (2015).

fitting than telephone conferencing. The visual

United Kingdom Civil Justice Council, Online

component may facilitate reference to documents

Dispute Resolution for Low Value Civil

and items under discussion, foster more natural

Claims (2015).

conversation among the participants, and enable the court to “read” unspoken messages. For example the video may reveal that a litigant is confused or

Oregon Judicial Department, 2011-2014 Oregon Judicial Branch: A Four-Year Report (2014).

that a party would like an opportunity to talk but is

Administrative Conference of the United States,

having trouble getting into the conversation.

Handbook on Best Practices for Using Video Teleconferencing in Adjudicatory Hearings (2015).

38



Bench and Bar Leaders Hold the Key This Report makes clear that state courts cannot simply use comfortable old methods to administer justice in the millions of civil cases now pending. These Recommendations tell state courts “what” they must do to address the challenges they face now. While many of the Recommendations to reduce delay and improve access to justice can be implemented within existing budgets and under current rules of procedure, others will require steadfast, strong leadership to achieve these goals. The next step is to develop a strategy for “how” court leaders can overcome barriers to needed changes and actually deliver better civil justice. A key to implementing these Recommendations is to persuade civil justice actors that there is a problem and it belongs to all of us. As Chief Justice Roberts stated in his most recent year-end report on the federal judiciary, it is “the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.” The Committee is confident that when a critical mass of judges and lawyers honestly confront the unvarnished facts about the civil justice system, bench and bar members will be moved to become problem solvers. We know that successful problem solving is preceded by careful prob-

“We like comfortable old shoes out of style and worn through as they may be and dread having a new pair…. None of us like to learn new ways of doing things (but) the convulsive change in society confronts our profession with the urgent challenge to get our house in order if we are to renew the public’s confidence in the American Justice system that safeguards and protects individual rights and liberties.” — J ustice William J. Brennan, Jr. Improving the Administration of Justice Today, address to the Section of Judicial Administration, American Bar Association, 1958.

lem definition. The CJI Committee began its work with a comprehensive empirical study of the current state of civil litigation across the country. The national snapshot of civil litigation undertaken in the NCSC’s Landscape of Civil Litigation provides a model for problem identification, big-picture visioning, and strategic planning by state and local courts. The Committee urges state courts to undertake their own landscape study. Such a study will not only enable court leaders to diagnose the volume and characteristics of civil case dockets across the state, but will also help identify major barriers to reducing cost, delay, and inefficiency in civil litigation. Leaders can then sequence and execute strategies to surmount those barriers.

BENCH AND BAR LEADERS HOLD THE KEY


39

COURT STRATEGIES

series of recommendations to make courts afford-

Initially, the Committee urges court leaders to build

ity and cooperation infuse the recommendations.

internal support for change. This advice derives

Significantly, the report closes by saying, “The Task

from the experience of the Committee during its

Force urges the Board [of Governors] not only to

two years of work. Thanks to the Landscape of Civil

adopt these recommendations, but to help educate

Litigation, this diverse group of judges, court man-

the judges and lawyers who will be responsible for

agers, trial practitioners, and organization leaders

making the recommendations a reality.” 8

started their work with an accurate picture of the civil litigation system. Simultaneously, from across the country, we collected a sampling of best practices that demonstrate smart case management and superior citizen access to justice. We then closely analyzed and discussed the data over the course of several in-person, plenary meetings and innumerable conference calls and email exchanges. What resulted? Unanimous and enthusiastic support for major civil justice improvements. And, for each participant, there arose intense convictions: The quality and vitality of the civil justice system is severely threatened. Now is the time for strong leadership by

able and accessible. The principles of proportional-

In addition to state and local bar associations, national organizations have a role in promoting the recommendations contained here. For example, during the years spent producing this Report, several respected lawyer groups provided significant input to CJI Committee members and staff. These include the American Board of Trial Advocates, the American Civil Trial Roundtable, the American College of Trial Lawyers, the National Creditors Bar Association, IAALS Advisory Groups, the Association of General Counsel, and the NCSC’s General Counsel Committee, Lawyers’ Committee, and Young Law-

all chief justices and court administrators.

yers’ Committee. Some of these groups have state

Behind this report, there stands a fundamental

to implement recommendations that fit their state

tenet: frontline judges and administrators must

or locality. Those alliances can also lead to focus

have the opportunity to ponder facts about the civil

groups that educate key constituencies about the

justice system in their state and strategize about the

state’s civil justice needs, and the demonstrated ef-

recommendations here. Once that opportunity and

fectiveness of the recommendations collected here.

those deliberations occur, a wellspring of support

Advocates for any recommendations can use the

for civil justice improvement will take shape with-

findings, proposals, and evidence-based resources

in the judiciary. With a supportive judicial branch,

in this report to build trust among legislators, exec-

tough issues will not only be faced and courthouse

utive branch leaders, and the general public.

improvements undertaken, a unified judiciary will also facilitate external stakeholder participation.

STAKEHOLDER STRATEGIES

counterparts that can collaborate with court leaders

Since the civil justice system serves large segments of society, these Recommendations have constituencies beyond the legal community. Households, businesses, civic institutions, vendors, and consumers are key stakeholders. Thought leaders and respected voices within those larger communities

As the Chief Justice suggested, court improvement

must be educated about the Recommendations and

efforts must involve the bar. The Washington State

encouraged to join our call to action.

Bar provides a prime example of lawyers, sobered by evidence of growing civil litigation costs, taking bold actions to improve the fair resolution of cases. After four years of labor, the Bar’s Task Force on the Escalating Costs of Civil Litigation last year issued a

40



FUTURE ASSISTANCE Recognizing that organizational change is a process, not an event, the NCSC and IAALS will collaborate

KEY RESOURCES FOR TAKING NEXT STEPS

to assist court leaders who want to implement civil

Brittany K.T. Kauffman, Change the Culture,

justice change. They are taking steps to help move

Change the System: Top Ten Cultural Shifts

the Recommendations into action. During the

Needed to Create the Courts of Tomorrow (2015).

planned implementation phase, they hope to: • Develop a directory of experts (judges, administrators, lawyers, and national experts) with proven experience in successfully implementing change in the civil justice system. • Provide technical assistance to jurisdictions wishing to adopt any CJI recommendations. • Create an Implementation Roadmap for court

Brian Ostron, Roger Hanson & Kevin Burke, Becoming a High Performance Court, 26(4) Court Manager 35-43. Eric T. Washington & Lisa R. VanDeVeer, Court Governance—The Critical Role of Strategic Management (2013). Mary McQueen, Governance: The Final Frontier, Harvard Executive Session for Court Leaders in the 21st Century (2013).

leaders to use in developing a strategy for implementing civil justice improvements. • Launch an online “community” for users to communicate with experienced court leaders who have successfully implemented change. • Maintain a directory of successful projects for court leaders to use in initiating change.

John P. Kotter, Leading Change— Why Transformation Efforts Fail, Harv. Bus. Rev. (Jan. 2007). Nat’l Center for St. Cts. & Just. at Stake, Funding Justice: Strategies and Messages for Restoring Court Funding (2013).

• Identify technologies that support civil justice improvement and work with the court technology industry to develop new applications to support civil justice improvement. • Continue to evaluate and document efforts to improve the civil justice system. • Identify and coordinate with other national groups committed to improving efficient and accessible civil justice.

BENCH AND BAR LEADERS HOLD THE KEY


41

42



APPENDICES

NOTES

Over the course of its deliberations, the CJI

1. These values varied somewhat based on case

Committee developed a number of working papers

type; three-quarters of real property judgments,

and internal discussion briefs, which provide

for example, were less than $106,000 and three-

further background and context in support of the

quarters of torts were less than $12,200.

Recommendations. These materials and other resources are available as appendices to this report at: ncsc.org/civil.

2. Based on the Landscape of Civil Litigation in State Courts, NCSC staff estimate that 85 percent or more of civil cases could be more effectively

Appendix A: A Day in the Life of a Judge:

managed using streamlined or simplified

Descriptions of Judicial Tasks under each Pathway

procedures. Complex cases, in contrast,

Appendix B: NCSC Business Rules Visualization Tool Appendix C: The Pathway Approach: Draft Rules and Example Rules from Around the Country Appendix D: Pilot Projects, Rule Changes, and Other Innovations in State Courts Around the Country

generally consisted of no more than 3 percent of civil caseloads. 3. Paula Hannaford-Agor & Cynthia G. Lee, Utah: Impact of the Revisions to Rule 26 on the Discovery Practice in the Utah District Courts 9 (April 2015). 4. Id. at 24-25, 36-38,53-56; Paula Hannaford-Agor

Appendix E: Best Practices for Courts and Parties

et al., New Hampshire: Impact of the Proportional

Regarding Electronic Discovery in State Courts

Discovery/Automatic Disclosure (PAD) Pilot Rules 1718 (Aug. 19, 2013); Peggy E. Bruggman, Reducing

Appendix F: The Role of Proportionality in Reducing

the Costs of Civil Litigation: Discovery Reform 29-46

the Cost of Civil Litigation 5. Hannaford-Agor & Lee, supra note 3, at 14-21. Appendix G: Remote Conferencing—Findings and Recommendations

6. Hannah E. M. Lieberman, Linda Sandstrom Simard & Ed Marks, Problems and Recommenda-

Appendix H: Judicial Assignment Criteria for

tions for High Volume Dockets: A Report of the High

Pathway Dockets

Volume Case Subcommittee to the CCJ Civil Justice

Appendix I: Problems and Recommendations for

Improvements Committee (2016).

High-Volume Dockets

7. Rule 1, Federal Rules of Civil Procedure.

Appendix J: Best Practices for Trial Management

8. Task Force on the Escalating Costs of Civil Litigation, Final Report to the Board of Governors 45 (June 15, 2015) (emphasis added).

APPENDICES & NOTES


43

ACKNOWLEDGEMENTS CJI COMMITTEE STAFF Judge Gregory E. Mize

Shelley Spacek Miller, JD

(Committee Reporter)

Research Analyst

Judicial Fellow


National Center for State Courts Paula Hannaford-Agor, JD

Corina Gerety, JD

Director, Center for Juries Studies

Director of Research


IAALS

Scott E. Graves, PhD

Brittany Kauffman, JD

Court Research Associate

Director, Rule One Initiative


IAALS


FUTURE ASSISTANCE The NCSC and IAALS are committed to assisting court leaders in implementing the Recommendations in this report. For more information, please visit ncsc.org/civil.

DISCLAIMER This project was supported by a grant from the State Justice Institute (SJI-13-P-201). Points of view or opinions in this document are those of the authors and do not necessarily reflect the official position or policies of the State Justice Institute, the Conference of Chief Justices, the National Cover photo by Rae Allen

Center for State Courts, or IAALS.


Copyright 2016 National Center for State Courts 300 Newport Avenue Williamsburg, VA 23185

ncsc.org/civil


cases without counsel

OUR RECOMMENDATIONS AFTER LISTENING TO THE LITIGANTS




OUR RECOMMENDATIONS AFTER LISTENING TO THE LITIGANTS Natalie Anne Knowlton Director, Honoring Families Initiative

May 2016 This report was developed under grant number SJI-15-N-001 from the State Justice Institute. Points of view expressed herein are those of the Institute for the Advancement of the American Legal System and do not necessarily represent the official position or policies of the State Justice Institute. For reprint permission please contact IAALS. Copyright © 2016 IAALS, the Institute for the Advancement of the American Legal System. All rights reserved. Access to Justice Innovation in Los Angeles County A74

IAALS—Institute for the Advancement of the American Legal System John Moye Hall, 2060 South Gaylord Way, Denver, CO 80208 Phone: 303-871-6600 http://iaals.du.edu IAALS, the Institute for the Advancement of the American Legal System, is a national, independent research center at the University of Denver dedicated to facilitating continuous improvement and advancing excellence in the American legal system. We are a “think tank” that goes one step further—we are practical and solution oriented. Our mission is to forge innovative solutions to problems in our system in collaboration with the best minds in the country. By leveraging a unique blend of empirical and legal research, innovative solutions, broad-based collaboration, communications, and ongoing measurement in strategically selected, high-impact areas, IAALS is empowering others with the knowledge, models, and will to advance a more accessible, efficient, and accountable American legal system. Rebecca Love Kourlis Natalie Anne Knowlton Janet L. Drobinske Corina D. Gerety Logan Cornett

Executive Director Director, Honoring Families Initiative Legal Assistant, Honoring Families Initiative Director of Research Research Analyst

Honoring Families is an initiative of IAALS dedicated to developing and promulgating evidence-informed processes and options for families involved in divorce, separation, or parental responsibility cases that enable better outcomes for children and that provide greater accessibility, efficiency, and fairness for all parties, including those without counsel. Access to Justice Innovation in Los Angeles County A75

ACKNOWLEDGEMENTS The IAALS Honoring Families Initiative would like to thank members of the HFI Advisory Committee for their consummate commitment, dedication, and expertise, as well as the expert guests and esteemed self-represented litigants who participated in the August 2015 Cases Without Counsel convening. IAALS would also like to thank the Bohemian Foundation, the State Justice Institute, the State of Oregon, the Tennessee Access to Justice Commission, and William J. Howe III, Esq., for their generous financial support of the Cases Without Counsel study, the CWC convening, and this report. Finally, this effort would not have been possible but for the Cases Without Counsel study participants. The stories and voices of self-represented litigants inspired us, and the narratives of court staff and judges reminded us that our family courts are comprised of a dedicated cadre of men and women. These voices shaped this report.



TABLE OF CONTENTS E xecutive S ummary �� 1 I ntroduction �� 3 B ackground & R esearch O verview �� 4 C hanging

the

C onversation

on

S elf -R epresentation �� 5

R ecommendations

for

C ourt C ommunities �� 7

R ecommendations

for

L egal C ommunities �� 23

R ecommendations

for

B roader C ommunities �� 31

C onclusion �� 32


1

EXECUTIVE SUMMARY Many litigants navigating state family courts today are without attorney representation—in some courts, these numbers are increasing. Justice system stakeholders have made significant efforts in the last decade to develop self-help information, resources, and programs for those without representation. All too often, however, litigants are left out of conversations on how to improve the process for others like them. IAALS, through its Honoring Families Initiative, undertook a qualitative empirical research study designed to explore the issue of self-representation from the litigants’ perspective. Cases Without Counsel: Experiences of Self-Representation in U.S. Family Court gathered detailed narratives directly from family court self-represented litigants and those who engage with litigants in the court through one-on-one interviews. The study findings (detailed in an accompanying research report) present an array of suggestions for how to better serve litigants without lawyers:

For Court Communities SELF-HELP RESOURCES FOR SELF-REPRESENTED LITIGANTS: • Increase Availability of Targeted Self-Help Resources • Explore Virtual & Innovative Means of Delivering Self-Help Resources • Facilitate Litigant Awareness of Available Resources • Assign a Liaison or Navigator to Guide Litigants through the Process PROCESS & PROCEDURE CHANGES IN FAMILY COURT: • Simplify Components of the Process • Establish Triage/Differentiated Case Management Systems • Incorporate Trauma-Informed Practices & Processes TRAINING & EDUCATION FOR COURT STAKEHOLDERS: • Guidance for Court Staff on Providing Legal Information • Guidance for Judges on Navigating Hearings & Trials • Guidance on the Unique Needs of Family Court Self-Represented Litigants • Training on Vicarious Trauma & Stress Management


2

For Legal Communities AVAILABILITY & ACCESSIBILITY OF LEGAL SERVICES: • Unbundled Legal Services • Innovative Billing Structures • Legal Aid & Pro Bono Services • Non-Attorney Models of Legal Services Delivery ENGAGING WITH CLIENTS & POTENTIAL CLIENTS • Addressing Negative Perceptions of Attorney Involvement in Family Cases • Messaging about the Role of the Family Law Attorney & Valued Added to the Process

For Broader Communities FACILITATE ACCESS TO SELF-HELP RESOURCES & SERVICES FOR DIVORCING OR SEPARATING FAMILIES The various stakeholder recommendations are presented alongside materials and resources for those interested in learning more or implementing various components in their respective jurisdictions. Fundamentally, the report suggests a change in the conversation on self-representation. It is no longer enough to bemoan the fact that there are insufficient legal services dollars and people to serve these litigants or to naively assume that they will all find lawyers in some future-to-come. Rather, we must accept that these litigants are now the customers of the system and are on the increase. System stakeholders must accept the onus of shared responsibility for helping selfrepresented litigants through the process. IAALS, therefore, encourages court, legal, and broader community stakeholders to view these recommendations as blueprints for a coordinated response to better assist self-represented litigants in family court and a means through which to fulfill this shared responsibility.


3

INTRODUCTION Many litigants navigating state family courts today are without attorney representation, and, in many jurisdictions, these numbers are growing. Anecdotes and data collected from judges, court staff, and others in the family court system show that self-represented litigants encounter numerous challenges navigating the system without an attorney. We also understand from family justice system stakeholders the impact that increasing numbers of litigants without lawyers are having on often overburdened and underfunded court systems. In response to these challenges, courts and others who work in and with family courts have undertaken substantial efforts to increase resources and programs for self-represented litigants. All too often, however, the insights and experiences of the court system users are assumed or implied. Furthermore, despite the increasing dialogue on client-centric services and systems, litigants are rarely involved in stakeholder conversations on how to improve the process for people like them. To encourage and facilitate a more client-centric justice system, the Institute for the Advancement of the American Legal System at the University of Denver2 (“IAALS”) gathered narratives and experiences directly from self-represented litigants in family court and those in the courts who serve them. The Cases Without Counsel: Experiences of Self-Representation in U.S. Family Court (“Cases Without Counsel” and “CWC”) study complements decades of comprehensive research on self-representation that have yielded an array of expert recommendations and suggestions for how to better serve those who navigate our courts without lawyers. Engaging litigants in this conversation allows stakeholders in the family justice system to consider the issue in a more holistic and informed manner. This report contains a variety of recommendations for how courts, legal services providers, and communities can best serve self-represented litigants in family cases, informed by the Cases Without Counsel study. We begin with a concise overview of the research methodology and process through which IAALS vetted the CWC study data and engaged additional experts to identify practical recommendations. The report then sets the stage by suggesting a change in the conversation on self-representation, away from a piecemeal stakeholder-by-stakeholder response and toward a comprehensive strategy in which all stakeholders—court, legal, and broader community partners—share the responsibility for ensuring that litigants without lawyers can meaningfully access our nation’s family courts. Readers are encouraged, therefore, to view the recommendations for court communities, legal communities, and broader communities that follow, as blueprints for a coordinated response, as opposed to stand-alone suggestions. Interspersed in these sections are resources that stakeholders can reference to learn more about or leverage to implement the various recommendations. Finally, throughout the report, narratives from Cases Without Counsel interviews are referenced, both to support the commentary and to ensure that the voices of the court users are not lost.

1 FCS1. 2 IAALS, the Institute for the Advancement of the American Legal System, is a national, independent research center at the University of Denver dedicated to facilitating continuous improvement and advancing excellence in the American legal system. IAALS has four initiative areas, one of which is the Honoring Families Initiative (HFI). HFI is dedicated to promoting news ways to handle divorce, separation, and allocation of parental responsibility issues that ensure better outcomes for children, lessadversarial approaches for spouses/parents, and greater accessibility, efficiency, and fairness for everyone involved in the family court process, including those who navigate the system without a lawyer. Learn more about IAALS and HFI at http://iaals.du.edu.

We make assumptions about litigants and what their needs are without truly, truly knowing what they are. And, I think we all try to be very sympathetic to them, but we can’t know their experience.1 Cases Without Counsel Judge Participant


4

BACKGROUND & RESEARCH OVERVIEW The National Center for State Courts (“NCSC”) recently analyzed the landscape of civil litigation, finding broadly that “[t]he idealized picture of an adversarial system in which both parties are represented by competent attorneys who can assert all legitimate claims and defenses is an illusion.”3 While the NCSC’s effort was focused on civil cases, evidence suggests that in many state courts, self-representation rates are among the highest in family cases.4 Despite the changing face of family court users, however, court systems continue to be structured on the assumption that both parties are represented.5 To contribute to the robust national conversation on how family courts and practitioners can best serve litigants outside of the traditional picture of two represented parties, the IAALS Honoring Families Initiative launched a qualitative empirical research study exploring the issue of self-representation in the United States from the litigants’ perspective. Cases Without Counsel involved one-on-one interviews with those who represented themselves in family court, as well as court professionals who routinely engage with self-represented litigants in the course of their work.6 Consistent themes emerged across the Cases Without Counsel interviews, providing a unique window of insight into the world of self-representation. The voices and experiences of the litigants and court participants with whom the IAALS study team7 spoke shed new light on potential solutions and innovations that would allow stakeholders to better serve

3 Paula Hannaford-Agor et al., Nat’l Ctr. for State Cts., The Landscape of Civil Litigation in State Courts vi (2015), available at http://www.ncsc.org/~/media/Files/PDF/Research/CivilJusticeReport-2015.ashx. 4 E.g., Thomas M. Clarke, Litigant Portals Provide a New Approach to Help Self-Represented Litigants, in Trends in State Courts: Leadership & Technology 41 (Carol R. Flango et al. eds., 2015) [hereinafter Clarke, Litigant Portals], available at http://www. ncsc.org/~/media/Microsites/Files/Trends%202015/Trends%20in%20State%20Court%202015%20Web.ashx. 5 As part of a 2005 National Center for State Courts and State Justice Institute Summit on The Future of Self-Represented Litigation, Richard Zorza framed the issue as follows: “By making it effectively impossible for those without lawyers to assert their claims and defenses, or even tell their stories, the system both strips people of their rights and blocks the path for drawing attention to and removing the underlying inequities. Under this system, the promise of justice is therefore illusory for most, and the value of legislative attempts to improve the underlying substantive rules for a just society are undercut by the inability of so many to enforce those rules.” Richard Zorza, Towards National Networking and Support for Innovation in Access to Justice for SelfRepresented Litigants: An Analysis of Needs, Strategy, and Options, in The Future of Self-Represented Litigation: Report from the March 2005 Summit 119-132, 120 (Paula Hannaford-Agor ed., 2005), available at http://www.srln.org/node/301. A decade later, this continues to be the reality in some state courts. 6 The study was active in four U.S. jurisdictions: Multnomah County, OR; Larimer County, CO; Davidson County, TN; and Franklin County, MA. In total, across the four participating jurisdictions, the study included interviews with 128 self-represented litigant participants and 49 individuals who routinely interact with litigants in the course of their court duties in the study jurisdictions. Natalie Anne Knowlton, Logan Cornett, Corina Gerety & Janet Drobinske, Inst. for the Advancement of the Am. Legal Sys., Cases Without Counsel: Research on Experiences of Self-Representation in U.S. Family Court (2016), available at http://iaals.du.edu/sites/default/files/documents/publications/cases_without_counsel_research_ report.pdf [hereinafter Cases Without Counsel: Research]. Cases Without Counsel was generally modeled on a qualitative research study undertaken by Dr. Julie Macfarlane in Canada. Dr. Macfarlane created the National Self-Represented Litigants Project, which began with interviews and focus groups with more than 250 self-represented litigants in civil and family cases. Dr. Macfarlane published study findings and recommendations in 2013, but since then, the Project has continued to collect data and information from Canadian self-represented litigants. Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants Final Report (2013), available at https://representingyourselfcanada.files.wordpress.com/2014/05/nsrlp-srl-research-study-final-report.pdf; Erin Chesney et al., Tracking the Continuing Trends of the Self-Represented Litigant Phenomenon: Data from the National Self-Represented Litigants Project, 2014-2015 (2015), available at https://representingyourselfcanada.files.wordpress. com/2015/05/nsrlp-intake-report-2015.pdf. 7 The primary members of the IAALS study team were: Natalie Anne Knowlton (Director of the Honoring Families Initiative), Corina Gerety (Director of Research), Logan Cornett (Research Analyst), and Janet Drobinske (Legal Assistant and CWC Project Manager). IAALS and the study team would like to also thank the exceptional Research Assistants who helped with various aspects of the CWC data collection and analysis: Amanda Cloninger and Erica Merten at Smith College School for Social Work, and John Mallory at the University of Denver.


5 families who are without and/or need legal representation.8 High-level, preliminary findings from the study, in addition to other facets of HFI’s work and research in the area of divorce and separation, formed the basis of a comprehensive IAALS convening of diverse stakeholders, including academics, social scientists, judges, psychologists, court administrators, private practitioners, and self-represented litigants.9 A range of recommendations for reform emerged from the two-day conversation, which was innovative in and of itself for actively engaging litigants in discussions of justice system improvements.10 The CWC study findings provide the foundation for an expansive compilation of recommendations and innovations, informed by a variety of sources.11 Some of the forthcoming recommendations are not new. However, some of these programs also are not commonplace, suggesting that there is significant opportunity for innovation and improvement across jurisdictions. Accompanying the recommendations enumerated in this report are resources and existing examples that courts, family law practitioners, community partners, and others can leverage in continuing the conversation on how best to serve family court litigants. It is HFI’s hope that these recommendations and resources help stakeholders ensure greater accessibility, efficiency, and fairness for everyone involved in the family court process, including those who navigate the system without a lawyer.

CHANGING THE CONVERSATION ON SELF-REPRESENTATION Shared Responsibility & Coordinated Response The growing number of self-represented litigants in state family courts and the ongoing conversation about how best to serve them highlights a natural tension between the legal profession and the court community as to who bears responsibility for ushering litigants through the family justice system. One CWC court participant articulated the issue as follows: Until they [self-represented litigants] get the information that they need to do what they need to do, it is going to always be an issue. And as long as we can’t give it to them, it’s going to always be an issue. So we’re either going to have to change the system, its processes, or we’re going to have to go back to the days you just need to get a lawyer … right now we’re just stuck in the middle.12

8 The comprehensive, semi-structured interview protocol explored various facets of self-representation. In addition, participants were specifically asked the following question: “If you could make one major change with respect to the process and procedures that you experienced in your case, what would you want to tell policy-makers?” Cases Without Counsel Research, supra note 6, at Appendix A-C. 9 The IAALS process is at the core of the organization’s success, and an inherent component of that process involves working with stakeholders to develop innovative models designed to address the areas of concern in our legal system. About, IAALS, http:// iaals.du.edu/about (last visited April 5, 2016). 10 Natalie Anne Knowlton, IAALS Meeting Highlights Experiences of Self-Represented Litigants, IAALS Online (Aug. 27, 2015), http://iaals.du.edu/blog/iaals-meeting-highlights-experiences-self-represented-litigants. 11 It will be clearly noted where specific recommendations comport with findings from the Cases Without Counsel study and suggestions for reform offered by self-represented litigant and court participants. The suggestions and resources contained in this report are also influenced by IAALS’ ongoing monitoring of research, innovations, and expert commentary in the area of divorce and separation. 12 DCS4.


6 Court response to this issue generally falls somewhere on the spectrum between doing everything possible and doing virtually nothing to help self-represented litigants navigate the family court process.13 Bar organization and individual attorney responses similarly range from proactively developing solutions to increase the availability of legal services to entrenched resistance to court efforts and non-traditional suggestions for legal services delivery. And, the role and responsibility of the broader community in assisting those transitioning through divorce or separation is often overlooked. Regardless of where stakeholders in a particular jurisdiction fall on these spectrums, the overall impetus across jurisdictions arguably remains solely with the self-represented litigant to proceed knowledgeably and appropriately through the process.14 In essence, the responsibility is on the users of the system to figure out how to use a system that was fundamentally not designed for their use. There are some litigants who choose to self-represent and knowingly take on this responsibility. Most research suggests, however, that these litigants are in the minority—the bulk of those who are facing the family justice system without an attorney are doing so out of financial necessity. To expect these individuals to be self-sufficient necessitates that courts put into place a structure that enables self-sufficiency, whether this is achieved through simplification, increased information, case-specific guidance, or another approach.15 Self-represented litigants should not bear responsibility for creating an infrastructure that facilitates self-sufficiency; rather, this is the responsibility of courts, legal service providers,

13 Although bar associations in many jurisdictions are supportive of courts in their efforts to assist self-represented litigants, it is not uncommon for there to be criticism from members of the bar with respect to these efforts. See William Hornsby et al., SelfRepresented Litigants and the Ethics of Lawyers, Judges, and Court Staff, in The Future of Self-Represented Litigation, supra note 5, at 74-75; see also Deborah L. Rhode, Access to Justice: An Agenda for Legal Education and Research, 62 J. Legal Educ. 531, 533 (2013) (“[t]he organized bar has a much stronger economic interest in promoting lawyers’ services than in promoting research and policies that support greater reliance on qualified non-lawyers and procedural simplification.”). 14 The definition of “self-help”—“the action or process of doing things to improve yourself or to solve your problems without the help of others”—squarely places responsibility on the individual needing help. Self-help, Merriam-Webster, http://www. merriam-webster.com/dictionary/self%E2%80%93help (last visited April 5, 2016). Some commentators point to the desirability of litigant self-sufficiency—for example, the “Los Angeles Superior Court’s self-help model begins with the presumption that litigants have the capacity to make decisions, fill out their own paperwork and make wise choices as to the course of action to pursue.” Kathleen Dixon & Margaret Little, Self-Help Centers: The Approach of the Los Angeles Superior Court, in Innovations for SelfRepresented Litigants 51, 60 (Bonnie Rose Hough & Pamela Cardullo Ortiz eds., 2011). 15 As Kathleen Dixon & Margaret Little recognize with respect to their work with self-represented litigants, “most people are more capable than the courts and attorneys, including legal aid attorneys, have traditionally assumed.” Dixon & Little, supra note 14, at 60. The CWC participants are fully representative of this sentiment. However, most state family courts are inherently complex and remain so even in the face of form, process, and language simplification efforts. But see John A. Clarke & Bryan D. Borys, Usability is Free: Improving Efficiency by Making the Court More User Friendly, in Future Trends in State Courts 76 (Carol R. Flango et al. eds, 2011), available at http://www.ncsc.org/~/media/Files/PDF/Information%20and%20Resources/TRENDS_book2011.ashx (suggesting that self-help and self-sufficiency are not for every litigant).

[W]e’re either going to have to change the system, its processes, or we’re going to have to go back to the days you just need to get a lawyer … right now we’re just stuck in the middle. Cases Without Counsel Court Participant Access to Justice Innovation in Los Angeles County A84

7 and the community.16 While this is widely recognized conceptually, there are many more opportunities to put this shared responsibility into practice. Many of the recommendations discussed in this report echo those that commentators have been making for years. The fact that we are continuing to have these conversations illustrates the ongoing need for family justice system stakeholders to act in a more coordinated way. The implications of failing to follow through on this fundamental responsibility are stark. Consistent with other research, a substantial portion of CWC self-represented litigant participants discussed feeling at a disadvantage and/ or experiencing bias in the family court process as a result of being without representation.17 Perception is reality and the perceptions formed through a single negative experience can have long-term impacts on how that person views the system as a whole in the future.18 To the extent these perceptions of disadvantage and bias are accompanied by concrete, real impacts on outcomes potentially resulting from self-representation,19 the credibility of the family justice system and the promise for resolution it holds for countless families is jeopardized. IAALS encourages stakeholders to consider how the recommendations that follow can be leveraged in partnership with other justice system stakeholders as part of a coordinated, holistic response to best meet the needs of self-represented litigants in family cases.

RECOMMENDATIONS FOR COURT COMMUNITIES Self-Help Resources

for

Self-Represented Litigants

In the absence of or in addition to affordable legal services, self-represented litigants benefit from having legal information and resources to help them navigate the court process. 20 Broadly speaking, self-represented litigants who participated in the CWC study described actively working to research issues and identify resources; more than 90 percent of litigants reported using at least one resource and more than 85 percent leveraged multiple resources to help them understand and navigate the process.21 While the available resources differed by study jurisdiction and usage among interviewed family

16 Recommendations recently released by the Conference of Chief Justices (“CCJ”) Civil Justice Improvements Committee touch on a similar issue with respect to historical responsibility for driving the pace of civil litigation: “Our civil justice system has historically expected litigants to drive the pace of civil litigation by moving for court involvement as issues arise …. The wait-fora-problem paradigm effectively shields courts from responsibility for the pace of litigation. It also presents a special challenge for self-represented litigants who are trying to understand and navigate the system…. It is time to shift this paradigm.... relying on parties to self-manage litigation is often inadequate…. the courts must be ultimately responsible for assuring access to civil justice.” Conf. of Chief Justices, Civil Justice Improvements Comm., Recommendations to Reduce Cost and Delay in the Delivery of Civil Justice 3 (Feb. 1, 2016) (on file with author) [hereinafter CCJ CJI Recommendations]. 17 Cases Without Counsel Research, supra note 6, at pp. 43-44. 18 See, e.g., Pamela Cardullo Ortiz, Family Law Self-Help Centers: Access Enhancing Fairness, in Innovations in Family Law Practice 87, 87-88 (Kelly Browe Olson & Nancy Ver Steegh eds., 2008) (“[I]t is the perception of fairness upon which the efficacy of the judiciary depends.”); Katherine Vaughan et al., Citizens Advice, Responsive Justice: How citizens experience the justice system (November 2015), available at https://www.citizensadvice.org.uk/Global/CitizensAdvice/ Crime%20and%20Justice%20Publications/Responsivejustice.pdf. 19 Cases Without Counsel Research, supra note 6, at p. 44. Linda Klein, ABA Coalition for Justice, Report on the Survey of Judges on the Impact of the Economic Downturn on Representation in the Courts (Preliminary) 10-13 (July 12, 2010), available at http://www.americanbar.org/content/dam/aba/migrated/JusticeCenter/PublicDocuments/ CoalitionforJusticeSurveyReport.authcheckdam.pdf. 20 See, e.g., John M. Greacen, Self Represented Litigants and Court and Legal Services Responses to Their Needs: What We Know 2 (2003), available at http://www.srln.org/node/453/paper-self-represented-litigants-and-court-and-legalservices-responses-their-needs-what-we (“Self represented litigants universally appreciate court and legal service programs that provide them with forms, information, or advice.”). 21 Cases Without Counsel Research, supra note 6, at p. 26.


8 court users, the general sentiment was that the resources were more helpful than unhelpful.22 Access to resources of various types also played a positive role in CWC litigants’ assessment of their ability to self-represent.23 As stated by one court participant, self-represented litigants “are not attorneys so they are at a disadvantage already,”24 and providing as much information as possible is a means through which to address the imbalance.

Increase Availability of Targeted Self-Help Resources Across the study jurisdictions, CWC litigants cited substantial difficulty with key portions of the process: knowing what to expect, understanding the stages of the process, navigating required forms and other paperwork, and preparing for and participating in trial.25 “It would have been nice,” said one litigant participant, “to have had more information about what to expect or how to go through the process before the judge.”26 Similarly, another participant noted: “The more documents and information that could be provided to people like me would be super helpful.”27 Not surprisingly, then, a common recommendation emerging from CWC litigants and court participants centered on increasing the number and types of self-help resources available to self-represented litigants. Countless courts around the country have taken to developing and expanding self-help tools and the menu of potential services is broad, including: dedicated self-help staff/centers;28 educational classes and workshops; facilitators; instructions; flowcharts; etc.29 Commentators have acknowledged the benefits of making legal information and self-help resources available30; research has also shown that these efforts are beneficial to courts in the form of cost savings.31 Furthermore, flow charts, instructions, informational videos, educational sessions, and other self-help resources should be tailored to actively address the particularly problematic components of the process. One-on-one self-help service providers, although needing to be versed in any aspect of the process with which litigants request assistance or information, should also be prepared to focus efforts on ensuring litigants are comfortable with these high-impact portions of the process.

22 The CWC research report discusses themes related to online resources, in-court resources, legal assistance, and the role of friends and family. Id. at pp. 26-30. 23 The second most commonly referenced factor influencing self-representation was the litigants’ assessment of and/or confidence in their ability to represent themselves. Id. at pp.16-17. 24 LCS13. 25 Cases Without Counsel Research, supra note 6, at pp. 30-32; see also infra page 23. 26 L53. 27 M14. 28 These have become fixtures in many courts, facilitating one-on-one interactions between court staff and self-represented litigants. See, e.g., Jud. Council of Cal., Task Force on Self-Represented Litigants, Implementation Task Force: Final Report (Oct. 2014), available at http://www.courts.ca.gov/partners/documents/EA-SRLTaskForce_FinalReport.pdf. 29 See John M. Greacen, Resources to Assist Self-Represented Litigants: A Fifty-State Review of the “State of the Art” (2011); Ortiz, supra note 18. 30 See, e.g., Am. Bar Ass’n, Standing Comm. on the Delivery of Legal Services, The Self-Help Center Census: A National Survey (Aug. 2014), available at http://www.americanbar.org/content/dam/aba/administrative/delivery_legal_ services/ls_del_self_help_center_census.authcheckdam.pdf. 31 Preliminary research on self-help services in the San Joaquin Valley (CA) courts found that “self-help services provided to selfrepresented litigants produce economic savings for courts and for litigants.” John M. Greacen, The benefits and costs of programs to assist self-represented litigants, 50 Judges J. 15, 15 (2011).


9

Resources: þ J ohn M. Greacen’s Fifty-State Review of the “State of the Art” presents a variety of tools and strategies that courts can leverage to ensure that a continuum of services is available to meet the needs of selfrepresented litigants. þ Th e Self-Represented Litigation Network Best Practices in Court-Based Programs for the Self-Represented is a thorough compilation of efforts that are worthy of broad replication. The guide includes references to and contact information for court self-help centers, forms/documentation reforms, training curricula, and post-decree practices, as well as bar efforts concerning unbundled legal services and pro bono/ volunteer programs. þ Th e American Bar Association Standing Committee on the Delivery of Legal Services’ Self-Help Center Census includes survey-based information on the structure and operation of self-help centers in states around the country, including staffing and funding models. þ Th e National Center for State Court’s Self-Representation microsite contains a state-by-state compilation of self-help information and resources, with direct links to these centers and programs.

Explore Virtual & Innovative Means of Delivering Self-Help Resources New technologies are changing the way courts, attorneys, and other service providers interface with self-represented litigants. While not all those who need resources have internet access32 nor is every self-represented litigant technologically savvy, a vast number of family court litigants access resources online. Among CWC litigants, online sources of information—including both court-affiliated and independent websites—were the most utilized source of information, and many participants indicated these resources were helpful.33 Many courts already make some degree of information and self-help resources available online; others are moving beyond simply posting static information on websites, using virtual and interactive tools to assist self-represented litigants. For example, online document assembly programs enable self-represented litigants to compile and complete forms.34 Virtual self-help centers facilitate information exchange and one-on-one interactions between staff and self-represented litigants. Additionally, game-like programs and applications are being developed to provide “hands-on” experience navigating the more procedurally difficult aspects of the process.35

32 With onsite court computer terminals, the benefit of online information and interactive virtual tools are not limited to those with internet access at home. 33 Cases Without Counsel Research, supra note 6, at pp. 26-27. 34 Many of these programs operate by posing easy-to-understand questions, the answers to which automatically populate court forms. See, e.g., Claudia Johnson, Online Document Assembly Initiatives to Aid the Self-Represented, in Innovations for SelfRepresented Litigants 97, supra note 14. 35 The NuLawLab at Northeastern University School of Law developed an interactive, online game that simulates various aspects of legal proceedings, helping players better understand how to get ready for a hearing, what happens in court, how to present evidence, and how to conduct cross-examination. The game is being hosted and tested in one jurisdiction, and usage data will be analyzed and results incorporated into new iterations in expanded jurisdictions. RePresent: Online Game for Self-Represented Litigants, NuLawLab, http://www.nulawlab.org/view/online-simulation-for-self-represented-parties (last visited April 5, 2016).


10

Resources: þ R ePresent is an online, interactive game designed to teach self-represented litigants what to do before court and how to proceed in trial. Developed by the NuLawLab, the program is currently available through CTLawHelp.org with plans to expand to other jurisdictions in the future. þ Th e Contra Costa County Virtual Self-Help Law Center provides an online platform through which selfrepresented litigants can access comprehensive information and resources. A video library conveys the written information contained on the site through tutorials and videos. þ I n February 2016, the Orange County Superior Court launched the Self-Help Portal and My Court Card online program, through which self-represented litigants can: access forms and instructions; sign up for workshops; and receive reminders of important case events. Self-represented litigants can reference their My Court Card during interactions at the self-help center, allowing staff to quickly pull up case-specific details and information. þ Th e Center on Court Access to Justice For All maintains a Technology microsite that contains articles, reports, and other information on how to best use technology to deliver information and services to court users. þ Th e Legal Services Corporation Report of The Summit on the Use of Technology to Expand Access to Justice and accompanying white papers enumerate a variety of ways in which courts and legal service providers can improve access to justice using technology.

For many experts working in this area, the litigant portal is the core strategy for best leveraging technology to serve selfrepresented litigants.36 As a threshold matter, a litigant portal would help an individual identify whether s/he has a legal problem and, if so, what kind.37 (A self-represented litigant in a family case, therefore, may engage with the portal at a different position than one who has yet to identify the legal problems.38) Once a legal problem has been identified or for litigants who appreciate the nature of their legal issue, a litigant portal would then serve a variety of potentially non-linear functions centered on helping people identify options, potential outcomes, and available legal and non-legal resources.39 Litigant portals also provide an opportunity for courts to “triage” litigants and cases.40

36 See, e.g., Clarke, Litigant Portals, supra note 4; Legal Serv. Corp., Report of the Summit on the Use of Technology to Expand Access to Justice (2013), available at http://www.lsc.gov/sites/default/files/LSC_Tech%20Summit%20Report_2013. pdf. The National Center for State Courts is currently moving forward on developing technical standards to support litigant portal modules. Thomas M. Clarke, Nat’l Ctr. for State Cts., Building a Litigant Portal: Business and Technical Requirements 4-5 (2015), available at http://www.srln.org/system/files/attachments/Report%20Building%20a%20Litigant%20 Portal%20(Clarke%202015).pdf. 37 Clarke, Litigant Portals, supra note 4, at 41 (“Typically, the litigant needs to determine if their legal problem should be resolved through the court system at all.”); see also Rebecca L. Sandefur, Am. Bar Found., Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study 13-14 (2014), available at http://www. americanbarfoundation.org/uploads/cms/documents/sandefur_accessing_justice_in_the_contemporary_usa._aug._2014.pdf (exploring how many Americans do not perceive their civil justice situation as legal issues). 38 It is entirely feasible, however, that a family court litigant could present with additional civil and criminal legal problems. 39 See Clarke, Technical Requirements, supra note 36. 40 Tom Clarke et al., Nat’l Ctr. for State Cts., Triage Protocols for Litigant Portals: A Coordinated Strategy Between Courts and Service Providers (2013) [hereinafter Clarke et al., Triage Protocols], available at http://www. srln.org/system/files/attachments/Triage_Protocols_for_Litigant_Portals__A_Coordinated_Strategy_Between_Courts_and_ Service_Providers.pdf.


11

Resources: þ I n Building a Litigant Portal: Business and Technical Requirements, Thomas Clarke discusses how justice system stakeholders can move the litigant portal from concept to reality in a coordinated manner. þ T riage Protocols for Litigant Portals explores how formal court triage processes can be integrated into litigant portals. The authors propose a general approach to protocols for various case types, including divorce cases.

Facilitate Litigant Awareness of Available Resources The CWC study jurisdictions naturally differed in the number and type of resources available to self-represented litigants, but in all four of the jurisdictions the IAALS study team spoke with litigants who were unaware of key resources offered in or through the court.41 Among the litigant participants’ recommendations for policy-makers, one of the more commonly cited called on courts to make clearer—and as early as possible—the resources that are available to family court litigants. According to one participant, “I know they can’t give legal advice, but if they could list the resources out there, that would be a big help because people would know where to look.”42 This finding illustrated a fundamental reality for courts and other justice system stakeholders: information and resources are of no use to litigants who are not aware they exist. While seemingly obvious, this nevertheless highlights important considerations regarding the role of the court and other stakeholders in calling attention to and increasing awareness of existing resources for self-represented litigants.43 For the most part, the onus is on litigants to research and locate self-help resources; however, this approach may disadvantage less-savvy or educated litigants. It is also in the court’s best interest to have self-represented litigants armed with as many self-help resources as are available. While many factors might contribute to gaps between existing resources and intended recipients, there is nevertheless an opportunity for courts and communities to make more explicit the entirety of resources available to help litigants move through and prepare for the family court process. To the extent that courts have allocated staff and funds to these efforts, clear and strategic placement, as well as outreach to litigants, would be beneficial.

41 In the more extreme instances of this disconnect, a few study participants were not aware of in-court self-help staff that were steps away from where these litigants filed their forms. 42 L11. 43 According to one commentator, the logical flow of questioning to assess the effectiveness of programs designed to assist selfrepresented litigants begins with “Access to the service—did clients learn of the service and were they about to access it?” Greacen, supra note 20, at 13-15.

It would have been nice to have had more information about what to expect or how to go through the process before the judge. Cases Without Counsel Self-Represented Litigant Participant


12

Resources: þ S uggestions from Cases Without Counsel Study Participants: • Require the filing party or the court to enclose information with the pleadings on where to find legal advice and other resources. • Hold a mandatory orientation session (which could be completed virtually) that focuses on, among other things: what litigants can expect; what the court expects litigants to prove; how the court expects individuals to present evidence; and what legal or other support resources are available in the jurisdiction.

Assign a Liaison or Navigator to Guide Litigants through the Process As one of the functions that might be built into a litigant portal or as part of an in-person effort to provide one-on-one assistance, a number of CWC litigant and court participants alike referenced a similar concept: a navigator or advisor that could guide them through the process. The concept that participants described can be distinguished conceptually from that of a self-help center or other one-onone self-help resource in that a navigator would proactively work with self-represented litigants throughout the course of a case, as opposed to reactively assist litigants at discrete portions of a case in response to a specific request. Related programs, however, build on the self-help center model, dispatching assistance in response to a self-represented litigant inquiry or request. One CWC litigant remarked: “In the legal world, there should be a tour guide.”44 Numerous courts are experimenting with or exploring this kind of assistance for self-represented litigants, some leveraging litigant portals or like technology.45

Resources: þ Th e New York City Housing Court Navigator Program provides self-represented litigants in landlord-tenant and consumer debt cases with a specially trained, non-lawyer Court Navigator. These individuals assist eligible litigants in understanding what to expect in the process, completing court forms, and accessing other services. A preliminary 2014 evaluation of the program found that navigators provided “valued practical assistance to litigants and to judges.” þ Th e Arizona Commission on Access to Justice has recommended the development of a Court Navigator Pilot Project for self-represented litigants in family cases. As envisioned, the Pilot Project would be implemented in Maricopa County and would leverage undergrads from Arizona State University.

44 D13. 45 My Court Card Portal, Super. Ct. Cal. Cnty. of Orange, https://selfhelp.occourts.org (last visited April 5, 2016).


13

Process & Procedure Changes

in

Family Court

An increasing number of family courts are exploring ways in which court processes and procedures can be more responsive to the needs of litigants without lawyers in family cases. Some of these efforts are specifically intended to address self-represented litigants; others are more broadly responsive to the unique nature of family cases and the unique needs of family court litigants.

Simplify Components of the Process Many courts are exploring simplification and related efforts designed to make the process and various components of the process more user-friendly. According to one commentator, “simplification is the heart of access to justice, and it is also the heart of profitable business practices.”46 Simplification was a commonly cited recommendation among both CWC litigants and court staff, with one court participant remarking: “Simplify the process and make it easier. If you do that, I think you get rid of a lot of frustration, which gets rid of a lot of anger.”47 A judge participant suggested that the process might be broken down “in plain language and manageable steps for people, so that they’re not so overwhelmed; so that things get accomplished versus throwing up their hands.”48 Simplification in theory and in practice for the many courts that are moving down this path can take a variety of forms. One of the more established tools is streamlined processes for “simple” or “non-complex” cases. These procedures vary significantly by state, but often necessitate that parties have no minor children and little to no shared assets, property, or debt.49 Similar procedures are available in some states for uncontested cases more broadly—not just those without children or other issues.50 CWC litigant and court participant narratives support the notion that parties with simple cases—e.g., those involving no assets, property, or children—are more confident navigating the court process without an attorney.51

46 Letter from Katherine Alteneder, Self-Represented Litigation Network Coordinator, to Katy Englehart, Am. Bar Ass’n (Dec. 20, 2014), available at http://www.americanbar.org/content/dam/aba/images/office_president/self_represented_litigation_network. pdf. 47 LCS11. 48 LCS4. 49 Other limitations might include years of marriage, no issues of material fact, no claims to spousal support, etc. 50 See, e.g., Mass. G.L. ch.208 §1A (2016) (setting forth a simplified procedure for joint petitions for divorce accompanied by a sworn affidavit to the effect that the marriage is irretrievably broken and accompanied by a notarized separation agreement). 51 See, e.g., Ore. Rev. Stat. § 107.485 (2016) (setting forth a summary dissolution procedure for cases in which the duration of the marriage is under 10 years and in which there are no minor children, no interest in real property, no unpaid obligations in excess of $15,000, no claims for spousal support, no interest in personal property over $30,000); Colo. Rev. Stat. § 14-10-120.3 (2016) (setting forth a simplified procedure for cases in which there are no minor children, no genuine issue as to any material fact, and either no marital property to be divided or parties have entered into an agreement on the division). In Tennessee, the Supreme Court has approved Agreed Divorce Instructions for parties a) with no children under 18; b) who do not own buildings, land, or a business together; and c) who do not have retirement benefits. Court-Approved Divorce Forms-Instructions to Divorce Forms, Tenn. St. Cts., http://www.tncourts.gov/sites/default/files/docs/agreed_divorce_instructions_-_march_2012.pdf (last visited April 5, 2016).


14

Resources: þ S ome state summary procedures are eligible to litigants meeting certain threshold criteria, such as Oregon’s Summary Dissolution of Marriage/Domestic Partnership and Tennessee’s Agreed Divorce process. Others are more broadly eligible to parties in agreement on all issues, such as Massachusetts’ simplified procedure.

Presenting evidence and participating in trial was one of the more frequently referenced sources of difficulty for CWC self-represented litigants.52 Only a few judge participants reported not encountering challenges applying the Rules of Evidence to cases involving self-represented litigants, and CWC judges also agreed that difficulties presenting evidence can disadvantage self-represented litigants and potentially impact outcomes.53 A few family courts have addressed these challenges by introducing procedures that relax requirements for offering testimony and presenting evidence. Some of these processes envision the potential for limited attorney involvement through an unbundled legal services model;54 others are designed specifically for two self-represented parties.55 Many commentators suggest that the informal trial processes merely formalize the informal practices that judges have begun employing in hearings involving self-represented litigants. CWC judge participants similarly described relaxing evidentiary rules and processes in cases in which both parties are self-represented.56 A related approach involves building presumptive relaxations into family court rules, putting the impetus on parties to opt into the full array of evidentiary rules rather than giving parties the opportunity to opt out.57

52 Cases Without Counsel Research, supra note 6, at pp. 34-37. 53 Id. at p. 36. 54 An attorney’s role in the Deschutes County Informal Domestic Relations Trial is to provide a brief narrative queuing potentially relevant issues and questions for the judge to explore with the litigant. Informal Domestic Relations Trial, Deschutes Cnty. Cir. Ct. Or. Judicial Dep’t, http://courts.oregon.gov/Deschutes/services/famlaw/Pages/Informal-Domestic-Relations-Trials.aspx (last visited April 5, 2016). 55 Rule 10 of the Wyoming Expedited Marriage Dissolution Pilot Project Rule applies when both parties are self-represented. In the Matter of the Adoption of Temporary Rules for Expedited Marriage Dissolution Cases, Wyo. Sup. Ct. (June 27, 2014), https://www. courts.state.wy.us/Documents/CourtRules/Orders%5Cexpmardis%5Cexpmardis_2014062700.pdf. 56 Cases Without Counsel Research, supra note 6, at pp. 36-37. 57 Idaho R. Family L. P. 102.B (2016); Ariz. R. Family L. P. 2 (2016).

Simplify the process and make it easier. If you do that, I think you get rid of a lot of frustration, which gets rid of a lot of anger. Cases Without Counsel Court Participant


15

Resources: þ S treamlined Family Court Rules: Driven in part by an effort to increase self-represented litigants’ access to and understanding of family court rules, the Idaho Rules of Family Law Procedure set forth in a complete and logical manner all the rules that are applicable to family cases, so that self-represented litigants (and others) do not have to dig through separate sets of rules to understand the family court process. þ R elaxed Standards of Evidence: The Arizona Rules of Family Law Procedure provide that, in most instances, parties must affirmatively opt into strict compliance with the Arizona Rules of Evidence. If neither party opts in, the presumption is that relevant evidence is admissible, with some restrictions. The Idaho Rules of Family Law Procedure establish a similar presumption, in addition to simplifying access to the complete body of rules governing family cases. þ S implified and Informal Trial Processes: Several states now have enacted simplified or informal trial processes for litigants in family cases. Idaho’s Informal Custody Trial is available if both parties consent and provides for a more free-flowing exchange between parties and the judge. Furthermore, any documents can be presented to the court, for judicial determination as to what weight, if any, to give submitted documents. Similar processes have been enacted in Oregon and Alaska.

Form simplification is a common effort in state courts,58 which can encompass alterations to existing court forms, replacing complicated legal terminology with lay-friendly terms, streamlining the number of forms required for family court litigants, and pairing forms with detailed and easy-to-understand instructions. Additionally, there is a technology component to form simplification, as a number of state courts are exploring interactive and/or auto-fill-type forms designed to decrease the likelihood of self-represented litigant errors or omissions.59

Resources: þ W ith respect to simplifying the language used in rules, forms, and other court materials, the Federal Plain Language Guidelines provide a useful starting point for courts looking to make forms, instructions, and other court communications more accessible to self-represented litigants. þ Th e Superior Court of Orange County provides litigants with electronic, interactive Family Law Smart Forms that are independent of internet access. The Oregon Judicial Department recently introduced iForms which use an interactive interview tool to help litigants fill out court forms. þ Th e Washington Courts have converted the domestic relations pattern forms into plain language forms which self-represented litigants can begin filing May 1, 2016.

58 Greacen, supra note 29, at 22 (finding in a review of state court websites that “virtually every state has made a serious, wellintentioned attempt to simplify the language of their forms.”). 59 See infra page 7.


16

Establish Triage/Differentiated Case Management Systems It is widely recognized that not all family cases are alike or require commensurate levels of judicial and court staff involvement.60 In order to best assist litigants, but also to maximize valuable court time and resources, many commentators have suggested a triage system for family cases and litigants. The goal of such a system is to identify, at an early stage in the process, the needs of each family and, as quickly and efficiently as possible, to put the family on the most appropriate path through the court system, including services and interventions that are tailored to the specific needs of each family. Triage systems, also referred to as differentiated case management in some jurisdictions,61 can take on a variety of forms, from a court-wide, established structure for handling like cases to a case-by-case assessment by a judge. The look and feel of a family court’s triage system will, of course, vary depending on the size, organization, and culture in a specific jurisdiction.

Resources: þ Th e National Center for State Courts developed a model screening tool for courts interested in pursuing divorce case triage. The tool is specifically designed to help courts identify litigants and cases that need minimal or no court assistance—in other words, uncontested cases. It is intended to be flexible for purposes of easily adapting to the specific circumstances in a jurisdiction. þ I n collaboration with the Association of Family and Conciliation Courts, Connecticut’s Judicial BranchCSSD Family Services Unit developed the Family Civil Intake Assessment Screen Project—a research-based screening instrument to identify efficient and appropriate paths through the court system based on each family’s need. þ Th e Montgomery County Circuit Court (Maryland) has long had a comprehensive differentiated case management system in place for a variety of civil and criminal case types, and the Family Division Differentiated Case Management Plan establishes six distinct tracks for family cases.

Incorporate Trauma-Informed Practices & Processes Divorce or separation is often an emotional and destabilizing event. Many CWC litigants discussed experiencing emotional difficulties navigating the family court process, including stress, nervousness, and anxiety.62 Participants who spoke unfavorably of their experience in the process also described feeling intimidated, isolated, scared, hopeless, and

60 A threshold CCJ Civil Justice Improvements Committee recommendation is: “Beginning at the time each civil case is filed, courts must match resources with the needs of the case.” The triage framework that the Committee presents is centered on a threepathway approach for Streamlined, Complex, and General cases. The assignment to one of these tracks would ideally be made upon filing, but flexibility would ensure that cases can be transferred to a more appropriate track if and when circumstances warrant a change. CCJ CJI Recommendations, supra note 16, at 5, 7-15. See also The High Performance Court and Divorce Case Triage, Nat’l Ctr. for State Cts., http://www.ncsc.org/divorcecasetriage (last visited April 5, 2016); Dixon & Little, supra note 14, at 67-70. 61 For some commentators the two terms are distinct from one another. See, e.g., CCJ CJI Recommendations, supra note 16, at 7-8 (explaining that “[t]he right-sized case management approach recommended here embodies a more modern approach than DCM by (1) requiring utilization of court resources at all levels, including non-judicial staff and technology, to manage cases from the time of filing until disposition, (2) using case characteristics beyond case type and amount in controversy, and (3) recognizing the great majority of civil filings present uncomplicated facts and legal issues.”); Clarke et al., Triage Protocols, supra note 40, at 1 (noting how “triage takes differentiated case management to new levels of sophistication.”). 62 Cases Without Counsel Research, supra note 6, at pp. 47-48.


17

vulnerable.63 For some of the CWC participants, the courtroom and the courthouse contributed to feelings of stress and fear.64 Furthermore, a few participants indicated that their compromised emotional state during the process affected what they were able to achieve through the court process.65 Many would argue that the court system is largely ill-equipped (and perhaps not the venue through which) to manage litigants’ emotional issues. Research and literature emerging in the criminal and juvenile court contexts, however, shed light on how trauma impacts litigants’ interactions with and perceptions of the court system.66 Courts moving to a trauma-informed approach recognize the role that trauma can play in how litigants experience the system and perceive those with whom they interact in the system. Among the techniques courts might explore in furtherance of a trauma-informed approach: evidence-based tools to screen for trauma exposure and symptoms;67 coordination of all cases involving one family;68 and interdisciplinary and community-based partnerships.69 Even small changes to the courtroom environment and the formality that characterizes this environment can foster a more welcoming, trust-inspiring, and healing environment for litigants in divorce and separation cases.70 The U.S. Department of Health and Human Services recognizes that “[t]he courtroom setting can be intimidating, even for individuals who have not experienced violence and trauma in their lives. Many practices may be perceived as shocking and dehumanizing to someone experiencing the court for the first time.”71 “The courtroom is our home,” a CWC judge participant observed. “We’re very comfortable in our home, and everyone else who comes into our home is not nearly as comfortable.”72 These and other trauma-informed processes may better enable family justice system stakeholders to assist all family court litigants, but especially those who do not have the logistical/administrative support and the emotional buffer from which many represented litigants benefit. While much of the literature on trauma-informed court practices is geared toward juvenile courts and treatment courts, there are direct applications for all courts who hear cases involving families. Additionally, being responsive to the trauma that parents in family court are experiencing may help in reducing the potentially detrimental impacts of divorce and separation on children. 63 Id. at pp. 47-48. 64 Id. at p. 47. 65 Id. at pp. 46-47. 66 Shawn C. Marsh & Carly B. Dierkhising, Toward a Conceptual Framework for Trauma-Informed Practice in Juvenile and Family Courts, 22 Juv. and Family Justice Today 19, 19 (2013) (discussing how a “shift in how we view people in crisis reflects core values of a public health perspective which emphasizes health and well-being, and subsequently reframes what responses are likely to be most effective in promoting healing and recovery. Through the public health lens, when one views those appearing before the court as almost always injured in some way, a universal precautions approach then becomes necessary in our work.”). 67 Family Court Tool Kit: Trauma and Child Development – Court Implications, Fla. Cts., http://www.flcourts.org/resources-andservices/court-improvement/judicial-toolkits/family-court-toolkit/court-implications.stml (last visited April 5, 2016). 68 See id.; In re Report of the Family Court Steering Comm., 794 So. 2d 518, 522 (Fla. 2001) (“Cases involving inter-related family law issues should be consolidated or coordinated to maximize use of court resources to avoid conflicting decisions and to minimize inconvenience to the families.”); Project ONE Key Principles, Nat’l Council on Juv. & Family Ct. J., http://www.ncjfcj.org/sites/ default/files/Project_ONE_Key_Principles_July_2012.pdf (last visited April 5, 2016). 69 Kristine Buffington et al., Nat’l Council of Juv. & Family Ct. J., Ten Things Every Juvenile Court Judge Should Know About Trauma and Delinquency 12 (2010), available at http://www.ncjfcj.org/sites/default/files/trauma%20bulletin_0. pdf (“Trauma-informed systems require successful and respectful partnerships between youth, families, professionals, and other stakeholders.”). 70 For example, the physical placement of the judge behind the bench—often at a distance from litigants and elevated above those in the courtroom—can incite feelings of isolation, unworthiness, and fear in trauma victims/survivors. Substance Abuse and Mental Health Serv. Admin., Essential Components of Trauma-Informed Judicial Practice (2013), available at http:// www.nasmhpd.org/sites/default/files/JudgesEssential_5%201%202013finaldraft.pdf [hereinafter Essential Components]. 71 Id. at 7. 72 MCS1.


18

Resources: þ Th e National Council of Juvenile and Family Court Judges’ Preparing for a Trauma Consultation in your Juvenile and Family Court outlines a framework for a trauma-informed court which can be instructive for all courts routinely engaging with self-represented litigants in divorce and separation cases. þ Th e U.S. Substance Abuse and Mental Health Services Administration, through the National Center for Trauma-Informed Care, offers resources on trauma-informed care, including Essential Components of Trauma-informed Judicial Practice. This Guide contains specific explanations of how the courtroom environment (and other aspects of the litigant’s experience) can come across to victims of trauma, and how processes might be modified to reduce these negative reactions. þ Th e Florida Courts Family Court Tool Kit: Trauma and Child Development contains online resources on trauma, how it impacts children and adolescents in the system, and how courts can move toward a more responsive and informed approach. þ Th e National Child Traumatic Stress Network has developed a Bench Card for the Trauma-Informed Judge. While geared specifically toward judges who work with children and youth, the questions and guidelines contained in the Bench Card have application to divorce and separation litigants.

Training & Education

for

Court Stakeholders

Litigants are not the only family justice system stakeholders facing challenges navigating the increasing numbers of self-represented litigants. Judges, court staff, and attorneys are also adjusting to the changing landscape of family court.73 Training and continuing education efforts, therefore, have become an increasingly important means of providing guidance on and ensuring consistency in how stakeholders engage with self-represented litigants.

Guidance for Court Staff on Providing Legal Information CWC self-represented litigants reported that they commonly accessed in-person court staff as a resource—filing clerks, judicial clerks, self-help center staff, and others who routinely interact with self-represented litigants.74 Broadly speaking, participants were likely to express that these individuals were helpful. The most frequently referenced challenges, however, 73 Clarke & Borys, supra note 15, at 76 (“Over the past few decades, American trial courts have seen an explosion in the breadth of their responsibilities: from a focus on recordkeeping as clerk of court, to administration of a complex administrative support system, to support for managing the flow of cases through the court, to a sudden recent burgeoning of responsibilities, many of which are new to the justice system….”) (citations omitted). 74 Cases Without Counsel Research, supra note 6, at pp. 27-28.

The courtroom is our home. We’re very comfortable in our home, and everyone else who comes into our home is not nearly as comfortable. Cases Without Counsel Judge Participant Access to Justice Innovation in Los Angeles County A96

19 centered on court staff ’s reluctance to provide information—or at least what self-represented litigants perceived to constitute legal information as opposed to legal advice. Court staff study participants discussed the difficulties associated with providing information without crossing the line into advice, and several called for increased guidance and training on the issue. In the absence of such guidance, CWC narratives suggest that court staff may err on the side of caution and in the process deny litigants important information to which they are entitled and which may not be available elsewhere.75

Resources: þ I n establishing the Self-Represented Litigant Coordinators positions, the Colorado Supreme Court enacted a Chief Justice Directive Concerning Colorado Courts’ Self-Represented Litigant Assistance. The CJD provides detailed guidance both on what court staff may provide by way of information and also on the services that are prohibited on the grounds that they constitute legal advice. Additionally, the CJD contains a template notice for self-represented litigants, defining the information and services that staff can and cannot provide. þ Th e California Judicial Council manual May I Help You? Legal Advice vs. Legal Information serves as a concise resource for clerks with an accompanying sign display to which staff and litigants can refer during interactions. þ Th e Massachusetts Trial Court’s Serving the Self-Represented Litigant: A Guide By and For Massachusetts Court Staff contains useful and practical information for best providing assistance to court users, including how to navigate the line between advice and information. þ

Strategies from Cases Without Counsel Study Participants: Court participants acknowledged the often tricky line between providing litigants with legal information to which they are entitled and guarding against providing guidance that would constitute the unauthorized practice of law. Some of these individuals offered strategies for navigating this line that go beyond simply echoing an inability to give legal advice:76 • Direct litigants to available resources in the court. • Outline all possible options and avenues. • Steer away from any and all questions containing the word “should” or, alternatively, from using the word “should” in a response.

75 See also John M. Greacen, Services for Self-Represented Litigants in Arkansas: A Report to the Arkansas Access to Justice Commission 15-16 (July 26, 2013), available at http://www.arkansasjustice.org/sites/default/files/file%20attachments/ Arkansas%20Final%20Report%207-26-13.pdf (finding that “[t]he instinctive reaction of Arkansas clerks that any inquiry constitutes a request for legal advice is so strong that they do not treat domestic violence petitions differently, even though they are required by state law to provide ‘clerical assistance’ with respect to those cases.”). 76 A number of CWC self-represented litigants discussed hearing court staff respond to questions with some version of “I cannot provide legal advice.” Cases Without Counsel Research, supra note 6, at p. 27. While an accurate and understandable disclosure, simply making this declaration without additional efforts proved to be less than constructive for a number of the study participants commenting on this issue.


20 Guidance for Judges on Navigating Hearings & Trials Although the CWC study included a limited number of judge interviews, one of the fairly consistent themes that emerged from those participants was that applying the Rules of Evidence can be problematic in cases involving self-represented litigants.77 It also appears that while relaxing evidentiary rules and trial procedures is a common strategy—both among CWC participants and beyond—there is arguably little consistency from jurisdiction to jurisdiction, let alone from courtroom to courtroom. Most importantly, it is here that outcomes can be affected, and CWC findings were consistent with other research suggesting that self-represented litigants’ difficulty or inability getting evidence before the court can and does impact final case outcomes.78

Resources: þ N ational judicial education leaders, the National Council of Juvenile and Family Court Judges and the National Judicial College frequently offer courses—online and in person—for judges on best practices handling cases with self-represented litigants. þ Th e National Center for State Courts Ensuring the Right to Be Heard for Self-Represented Litigants: Judicial Curriculum contains a series of modules designed to assist judges in managing cases involving selfrepresented litigants. The Self-Represented Litigation Network Judicial Curricula builds on this effort. þ J udicial ethics and education are among the programs explored in the Self-Represented Litigation Network’s Best Practices in Court-Based Programs for the Self-Represented. þ S trategies from Cases Without Counsel Study Participants: Judge participants offered numerous strategies for handling cases with one or more self-represented litigants: • Actively asking questions during a hearing was among the most commonly referenced practiced. “If I don’t have the information I need, I ask,” one participant explained, “because I feel that the decision needs to be made on full information, not information just because the attorney knows what to ask.”79 • Similarly, many of the CWC judges make a point of explaining rules and processes to self-represented litigants. One interviewee noted: “I explain a lot from the bench … I explain a lot and if anybody seems like they don’t understand, I explain it again and I answer any questions they have.”80 • A few judge participants mentioned the benefit of using cases with represented parties to serve as an example for how trial is conducted. A participant described, “If I have a case with a lawyer and a selfrepresented litigant … I let the lawyer go first, even if it’s not the way I normally do it, to give them a model.”81

77 Id. at p. 36. 78 Id. at p. 44. 79 LCS4. 80 LCS3. 81

Id.


21

Guidance on the Unique Needs of Family Court Self-Represented Litigants Without an attorney serving as an intermediary, self-represented litigants in family cases frequently and directly interact with court staff, judges, opposing counsel, and other family justice system stakeholders. These case types involve highly emotional issues and high stakes. Those who interact with self-represented litigants in family cases, therefore, would benefit from education and training geared specifically to the unique needs of and challenges faced by these individuals. Trauma-Informed Approach to Litigant Interaction— Several CWC litigant participants gave policy-maker recommendations that centered on sensitivity-related factors, with one individual urging: This isn’t just a number that you’re pushing through; this is people’s lives. And I know they’ve been doing that a really long time … but I haven’t, it’s my first or second time going through this and I’m scared and I’m really intimidated. And people being rude at the courthouse … it doesn’t help.82 As previously discussed, litigants benefit from court processes that are sensitive and responsive to the trauma they may have experienced. Similarly, judge and court staff attitudes, behaviors, and communication habits can either alienate selfrepresented litigants or engage them in a meaningful and emotionally safe manner.83 Domestic Violence—Relatedly, all system stakeholders should receive education in domestic violence; for example, how to identify domestic violence, what procedures are and are not appropriate for domestic violence survivors, and how to best interact with victims. One CWC litigant described interacting with numerous attorneys (court-provided and privately retained) and judges who did not exhibit an adequate understanding of or appreciation for the violence characterizing her situation. This individual explained: “Things a DV victim does do not make sense unless someone is trained in domestic violence.”84

82 M13. 83 Essential Components, supra note 70, at 2-8. See also Fern A. Fisher, Educating the Judiciary on Self-Represented Litigant Issues, in Innovations for Self-Represented Litigants, supra note 14. 84 M24.

Things a DV victim does do not make sense unless someone is trained in domestic violence. Cases Without Counsel Self-Represented Litigant Participant


22

Resources: þ Th e U.S. Substance Abuse and Mental Health Services Administration’s Essential Components of Traumainformed Judicial Practice contains practical suggestions for how judges can communicate with litigants and behave in the courtroom, in a manner that is sensitive to litigants’ trauma. þ Th e National Judicial Institute on Domestic Violence conducts interactive, skills-based domestic violence workshops for judges and judicial officers. The Institute is a partnership among the National Council of Juvenile and Family Court Judges and the U.S. Department of Justice, Office on Violence Against Women, and Futures Without Violence. þ Th e Battered Women’s Justice Project provides technical assistance and training on domestic violence that includes ideas for implementation and showcases the work of innovative jurisdictions.

Training on Vicarious Trauma & Stress Management Several CWC court participants spoke of encountering distressed or disgruntled litigants in the course of their day-to-day work. These narratives highlight that court personnel can be on the receiving end of poor treatment and disrespectful behavior—not just litigants. Just as judges and court personnel should be sensitive to the trauma court users have experienced, family justice system stakeholders, including attorneys, should be aware of the vicarious trauma they can experience from interacting and working with families and individuals under extreme stress.85

Resources: þ Th e National Center for State Court Judicial Stress Resource Guide is a compilation of literature on a variety of stress-related topics, including materials on stress management.

85 Peter G. Jaffe et al., Vicarious Trauma in Judges: The Personal Challenge of Dispensing Justice, 54 Juv. & Fam. Ct. J. 1 (2003).


23

RECOMMENDATIONS FOR LEGAL COMMUNITIES Availability & Accessibility

of Legal

Services

In a justice system fundamentally premised on the involvement of attorneys, exploring innovations designed to facilitate involvement of attorneys and/or increase the availability and accessibility of legal services remains of paramount importance. In terms of suggestions for policy makers, court and litigant CWC participants most commonly cited availability of affordable legal services. “Nobody should ever have to go through a case involving their children alone, ever,” said one self-represented litigant. “When you’re battling over—litigating over—somebody’s life, something so important as that, nobody should be unrepresented.”86 The cost of representation, however, is prohibitive for many family court litigants. Issues of cost and affordability featured prominently in the vast majority of CWC participants’ stories. Financial considerations were the most consistently referenced motivation for proceeding without an attorney, with approximately 94 percent of litigants indicating that the decision to represent themselves was influenced or driven by these issues.87 Furthermore, a strong majority of CWC litigants questioned on the issue expressed a desire for legal assistance. In short, the study findings are consistent with the picture painted by other research that self-representation is largely a necessity borne by financial circumstances as opposed to a preference.

Unbundled Legal Services Unbundled legal services or limited scope representation is spreading as a viable practice model88 that holds the potential to be attractive to a wide range of family court litigants who might otherwise self-represent for a variety of reasons. As previously discussed, for many CWC participants, full-scale representation was simply cost prohibitive or it did not take priority over other financial obligations.89 Some participants, however, described interactions with an attorney short of securing representation, and the most common strategy cited for obtaining legal advice was taking advantage of initial

86 L32. 87 Nearly three-quarters of self-represented litigant Cases Without Counsel participants for whom income data is available reported an annual income of $40,000 or less. Just under half indicated an annual income of $20,000 or under and approximately 27 percent indicated an income between $20,000 and $40,000. Cases Without Counsel Research, supra note 6, at pp. 13-15. 88 Little research has been done on the efficacy of this practice model. One recent study, however, found that practitioners offering unbundled legal services cited benefits, including attracting new clients and opportunities for full representation where a matter turned out to be more complex than the client initially estimated. Ipsos MORI, Qualitative research exploring experiences and perceptions of unbundled legal services 48-49 (2015), available at https://www.ipsos-mori.com/Assets/Docs/ Publications/sri-crime-unbundled-legal-services-2015.pdf. 89 The notion that one might be able to afford legal services but prioritizes other uses for the money (referred to as “cost priority” in the CWC research reports) resonated with approximately 20 percent of participants. Cases Without Counsel Research, supra note 6, at p. 15.

Nobody should ever have to go through a case involving their children alone, ever. When you’re battling over—litigating over— somebody’s life, something so important as that, nobody should be unrepresented. Cases Without Counsel Self-Represented Litigant Participant


24 or periodic consultations.90 While none of the participants used the terms “unbundled legal services,” “limited scope representation,” or related iterations, the Cases Without Counsel narratives suggest that some litigants are already taking advantage of non-traditional models of receiving legal advice. An option for attorney involvement on a more limited guidance or task basis could increase the probability that individuals could afford legal services or would want to pay for such services, whichever the case may be. Findings from the CWC study also highlight a number of discrete, high-impact areas with which self-represented litigants struggled. For family law attorneys looking to establish an unbundled legal services practice, understanding the points of tension in the process can provide a useful starting point from which practitioners can develop service plans and message to potential clients about those services: • Forms, filings, and other required paperwork were a common source of difficulty, and self-represented litigants struggled with the volume of forms, knowing what to include in the forms, and compiling accompanying documentation. Several interviewees reported that their forms were returned (sometimes repeatedly).91 • Litigant comments with respect to preparing for and participating in hearings or trial demonstrate that participants often found this aspect of the process difficult and/or frustrating. Discussions often included reference to knowing what to expect in court, knowing what was expected of them by the court, and understanding how to present evidence.92 • Broadly, many CWC participants had difficulty navigating the process and knowing what to expect at various stages of the process.93 While the ethics rules in most states allow attorneys to offer unbundled legal services,94 the model appears slow to take hold, despite a nationwide surplus of attorneys on one hand and a nationwide demand for legal services on the other.95 According to one Cases Without Counsel judge participant: “I think it’s ‘all or nothing’ with the attorneys. They’re taking the whole case or they’re not …. As far as a change, attorneys really need to look at a way to unbundle their services so that they could counsel people; advise them on what the basic issues are.”96

90 Id. at pp. 28-29. 91 Id. at pp. 32-33. 92 Id. at pp. 34-37. 93 Id. at pp. 30-32. 94 Pro Se Unbundling Resource Center – Ethics Opinions, Am. Bar Ass’n Standing Comm. on the Delivery of Legal Serv., http:// www.americanbar.org/groups/delivery_legal_services/resources/pro_se_unbundling_resource_center/ethics_opinions.html (last visited April 5, 2016). 95 See, e.g., Elizabeth Olson, Burdened With Debt, Law School Graduates Struggle in Job Market, N.Y. Times, Apr. 26, 2015, http:// www.nytimes.com/2015/04/27/business/dealbook/burdened-with-debt-law-school-graduates-struggle-in-job-market.html?_r=0; Dimitra Kessenides, Jobs Are Still Scarce for New Law School Grads, Bloomberg Bus. (June 20, 2014, 6:44 AM), http://www. bloomberg.com/news/articles/2014-06-20/the-employment-rate-falls-again-for-recent-law-school-graduates; Mark Koba, Courtroom Drama: Too Many Lawyers, Too Few Jobs, CNBC (Mar. 21, 2013, 12:01 PM), http://www.cnbc.com/id/100569350. 96 LCS5.


25

Resources: þ U nbundling Legal Services: Options for Clients, Courts & Counsel: In partnership with the Association of Family and Conciliation Courts, the IAALS Honoring Families Initiative developed a series of guides and toolkits on unbundled legal services, each tailored to a specific family justice system stakeholder. • Lawyers: This FAQ-styled toolkit is a resource for family law practitioners who are interested in learning more about unbundled legal services and/or implementing this service delivery model into an existing practice. • Court Leadership: The support of the courts is essential in order for unbundled legal services to take hold, and this guide can assist chief justices, chief judges, and other court leaders in helping close the justice gap through hands-on encouragement and support of this service delivery model. • Non-Legal Professionals: Self-represented litigants in family court come into contact with a variety of non-legal professionals, such as custody evaluators. This guide aims to help these family justice system stakeholders understand unbundled legal services and how to leverage this model in order to best serve their clients. • Consumers: This toolkit aims to educate the self-represented litigant with an understanding of the legal services options available through unbundled legal services, so that litigants are empowered to locate and take advantage of affordable legal services. þ Th e American Bar Association Standing Committee on the Delivery of Legal Services Pro Se/Unbundling Resource Center is designed for all justice system stakeholders, and contains information and guidance on unbundled legal services and related issues in self-representation. Subpages provide practitioners with targeted information on discrete tasks: • Providing advice and counseling • Document preparation • Limited appearances þ Th e American Bar Association Standing Committee on the Delivery of Legal Services issued An Analysis of Rules that Enable Lawyers to Serve Self-Represented Litigants. The white paper explores state rules of conduct and procedure, and other laws that enable attorneys to provide limited scope representation. þ Th e Justice Café by The Manely Firm, PC is a growing practice model, offering à la carte services for $75 an hour to family law litigants, including research, advice, document drafting, and representation in various settings.

Innovative Billing Structures Unbundled legal services-type practices change the model through which legal services are delivered; alternative billing structures change the manner through which legal services are priced.97 Flat- or fixed-fee billing is an emerging practice model, with some practitioners arguing this model encourages efficiencies in the process as compared to, for example,

97 This is part of a larger trend in legal services. See, e.g., Robert E. Hirshon, The Billable Hour is Dead. Long Live …?, 30 GP Solo (2013), available at http://www.americanbar.org/publications/gp_solo/2013/january_february/billable_hour_dead_long_live. html; Leigh McMullan Abramson, Is the Billable Hour Obsolete?, Atlantic (Oct. 15, 2015), available at http://www.theatlantic. com/business/archive/2015/10/billable-hours/410611.


26 hourly billing.98 There is an ongoing debate among family law practitioners as to whether these matters are appropriate case types in which to diverge from the billable hour, given the highly variable nature of family cases, which makes accurately estimating legal costs difficult.99 However, some practitioners have tried it and successfully so.100 Another emerging billing model—perhaps less institutionalized than flat-rate billing—purports to give clients an opportunity to suggest deviations from the agreed-upon fees in response to whether clients believe an attorney has delivered on the value promised.101 While these and other alternatives to the traditional hourly based billing model do not necessarily entail a reduction in the cost of legal services, they do provide a degree of cost predictability for family court litigants. The CWC interviews with judges and court staff in study jurisdictions suggested that some litigants may perceive legal help to be unattainable, and the uncertainty of legal fees may play into the discussion of affordability.102 To the extent that alternative billing structures are transparent at the outset of a case, family court litigants may be better able to prioritize and devote limited resources to legal services. Furthermore, billing structures that are responsive to litigant perceptions of value could foster increased trust and confidence in attorneys and legal services providers.

Resources: þ Th e American Bar Association Legal Access Job Corps Task Force Resource Center is a repository for innovative legal projects and programs focused on improving access to legal services, including incubators/ residency programs, solo/small firms, modest means programs, and mentoring projects. The Center is also continuously updated with latest developments from the Task Force Catalyst Grant program. þ Th e Chicago Bar Foundation, in conjunction with the Justice Entrepreneurs Project, published a step-bystep toolkit to assist practitioners in pricing services for low- and moderate-income clients.

98 Some argue that hourly billing, at best, does not actively drive efficiencies, and, at worst, encourages inefficiencies. E.g., Michael Sherman, Fixed-Fee Engagements in Litigation Cases: Why and How, LawPractice Today (July 2010), available at http:// apps.americanbar.org/lpm/lpt/articles/ftr07104.shtml (“If I am billing by the hour, I have no incentive to implement internal procedures to complete work efficiently. In fact, I have a major disincentive from implementing such procedures! If my prices are set on a fixed-fee basis, I have an incentive to put systems in place to complete the work as efficiently as possible. Obviously, efficiency should not trump effectiveness when representing the client’s interests. But, as long as we are not being efficient at the expense of effectively representing our clients’ best interests, then implementing such internal processes and procedures will allow us to become more profitable.”). 99 See id. 100 Said one practitioner who offers flat fees in family cases: “When other lawyers try to convince me that you can’t charge fixed fees in litigation cases because they are too unpredictable, it makes me wonder how many cases they have litigated. Of course, the cases are often unpredictable. But they are predictably unpredictable within predictable parameters! So, factor that in to your fee.” Id. 101 Valorem Law Group, with firms in Chicago (IL) and San Jose (CA), practices what the firm calls “Value Adjustment Line” billing. Value Adjustment Line, Valorem Law Group, http://www.valoremlaw.com/value-adjustment-line (last visited April 5, 2016); see also Pricing, Summit Law Group, http://www.summitlaw.com/our-story/pricing (last visited April 5, 2016). 102 Cases Without Counsel Research, supra note 6, at p. 14.

I think it’s ‘all or nothing’ with the attorneys. They’re taking the whole case or they’re not…. As far as a change, attorneys really need to look at a way to unbundle their services so that they could counsel people; advise them on what the basic issues are. Cases Without Counsel Judge Participant Access to Justice Innovation in Los Angeles County A104

27 Legal Aid & Pro Bono Services Among CWC participants, very few reported receiving legal advice or representation through legal aid services, private pro bono services, and/or law school clinics. Of those who indicated they attempted to access these resources, many reported that they could not due to issues of ineligibility or unavailability. In order to increase the availability of legal aid and pro bono services—without increases in financial and human resources to staff these services103—some commentators are calling on family law practitioners and other stakeholders to explore amendments to the rules of professional responsibility that are responsive to the growing reality of self-representation. With respect to legal services organizations, conflict of interest realities arguably hinder the already-limited ability of these organizations to serve people. In a 2011 survey, two-thirds of poverty-lawyer respondents indicated that “the Rules of Professional Responsibility were inadequate in addressing their particular needs, citing the failure to address conflict of interest questions when representation is of limited scope [and] when the respondent’s legal aid organization is the only resource for the prospective client.”104 One commentator succinctly articulates the issue as follows: Unfortunately, the Model Rules infrequently acknowledge the unique challenges of providing legal services to indigent clients in settings that do not resemble the traditional lawyering model. The rules provide very little guidance about fulfilling professional responsibilities when lawyers attempt to serve poor or disadvantaged litigants in high volume settings that occur outside of traditional law offices.105 Furthermore, with respect to pro bono programs and efforts by the private bar to increase low- or no-cost legal services, the ABA Model Rules of Professional Conduct impart on attorneys “a professional responsibility to provide legal services to those unable to pay.”106 This responsibility is couched, however, in a voluntary service requirement. While a few states have more robust pro bono requirements, most states broadly follow the Model Rule’s aspirational service suggestion107— the result of which is that there are arguably few concrete incentives in the Model Rules for practitioners to provide pro bono services, short of altruistic motivators.108

103 Increasing funding for legal aid or increasing pro bono resources is undoubtedly a valid and highly desired outcome, explaining why it is an oft-cited avenue of reform. Recommendations centered on an increase in funding for legal aid services are laudable, but cannot alone comprise a realistic response to the growing justice gap. According to Legal Services Corporation (“LSC”) President Jim Sandman, funding for LSC is at an all-time low compared to the need, and national legal aid offices turn away an estimated 50 percent of the people who come to them seeking help. Rachel Lippmann, Legal Services Corporation president: U.S. has defaulted on pledge of equal justice under law, St. Louis Pub. Radio (Mar. 2, 2016), http://news.stlpublicradio.org/post/legalservices-corporation-president-us-has-defaulted-pledge-equal-justice-under-law; LSC Funding, Legal Services Corporation, http://www.lsc.gov/lsc-funding (last visited April 5, 2016). See also David W. Stark, Colorado Survey on Pro Bono Participation, 45 Colo. Law. 57, 57 (2016) (“For every two income-eligible Coloradoans who find their way to Colorado Legal Services, one is turned away.”). Similarly, the supply of pro bono services is also not filling the need for affordable legal services that exists today. While the availability and rate of pro bono services is a bit more difficult to determine than legal aid sources, some evidence exists that the rate of these services has actually declined over the last decade. The American Lawyer reported that pro bono hours of Am Law 200 firms in FY2008 was approximately 5.56M, compared to approximately 4.89M in FY2011. Scott Cummings and Rebecca Sandefur suggest that “[t]he drop in total hours is tantamount to losing roughly 340 full-time lawyers dedicated to pro bono service. In a legal aid system with roughly 7900 lawyers total, that is a significant loss.” Scott L. Cummings & Rebecca L. Sandefur, Beyond the Numbers; What We Know—and Should Know—About American Pro Bono, 7 Harvard L. & Pol’y Rev. 83, 110 (2013) (citations omitted). See also Standing Committee on Pro Bono & Public Service and the Center for Pro Bono, Am. Bar Ass’n, https://apps.americanbar.org/legalservices/probono/reporting/pbreporting.html (detailing state pro bono reporting policies) [hereinafter Center for Pro Bono]. 104 Marcia Henry, Poverty Law Advocates are Wrestling with Ethics Questions in Their Legal Aid Practice, Shriver Brief, Mar. 14, 2011, http://www.theshriverbrief.org/2011/03/articles/legal-aid/poverty-law-advocates-are-wrestling-with-ethics-questions-intheir-legal-aid-practice/. 105 Louis S. Rulli, Roadblocks to Access to Justice: Reforming Ethical Rules to Meet the Special Needs of Low-Income Clients, 17 U. of Penn. J. Law & Social Change 348, 357-58 (2014), available at http://scholarship.law.upenn.edu/cgi/viewcontent. cgi?article=1175&context=jlasc. 106 Model Rules of Prof’l Conduct 6.1 (2016). 107 Center for Pro Bono, supra note 103. 108 See, e.g., Richard Zorza, The Need for Economic and Regulatory Incentives for Access to Justice, Access to Justice Blog (Jan. 1, Access to Justice Innovation 2016), http://accesstojustice.net/2016/01/01/the-need-for-economic-and-regulatory-incentives-for-access-to-justice/.

in Los Angeles County A105

28 While there are a variety of complicated factors feeding into the limited availability of public and private low- to no-cost legal services, the reality is that these models are not currently viable options for most litigants. To the extent that these models appear among potential solutions in justice gap conversations, legal and court communities most likely must move beyond reliance on illusory suggestions of funding increases. Regulatory changes may better allow these tools to serve families who need or would benefit from attorney assistance in their family case.

Resources: þ Th e American Bar Association Standing Committee on Pro Bono & Public Service and the Center for Pro Bono maintains a comprehensive listing of state pro bono reporting requirements. The site also includes a variety of resources for individual attorneys and bar leaders interested in increasing and regulating pro bono activity in their jurisdiction. þ N ew York has made great strides in pro bono services, and the New York State Courts Access to Justice Program 2015 Report details the myriad programs through which state pro bono and other volunteer providers are working to expand access. þ P robono.net provides pro bono and legal services attorneys with resources that are regional, national, and international in scope. The organization also directs individual attorneys to volunteer opportunities in their state and hosts a blog dedicated to connecting justice communities.

Non-Attorney Models of Legal Services Delivery There are important conversations occurring around the country with respect to creating new categories of legal services providers. Generally driven by concerns over substantial unmet legal needs in state jurisdictions, these proposals envision authorizing non-attorneys to provide limited-scope legal advice. In a first of its kind role, the Washington State Bar Association regulates the nurse-practitioner-like Limited License Legal Technicians (LLLTs), who are now currently active in providing family law litigants with document assistance, support navigating the process, and perform other discrete tasks enumerated by the Washington State Bar Association.109 A number of other states are exploring this innovation, in light of the pressing need for affordable legal services.110

109 Limited License Legal Technician Program, Wash. St. Bar Ass’n, http://www.wsba.org/licensing-and-lawyer-conduct/limitedlicenses/legal-technicians (last visited April 5, 2016). 110 The Utah Supreme Court has greenlit the development of a similar program. Utah St. Cts., Sup. Ct. Task Force to Examine Limited Legal Licensing (Nov. 18, 2015), available at http://www.utcourts.gov/committees/limited_legal/Supreme%20 Court%20Task%20Force%20to%20Examine%20Limited%20Legal%20Licensing.pdf; see also Debra Cassens Weiss, Utah Supreme Court backs licensed paralegal practitioners, ABA J. (Dec. 16, 2015), available at http://www.abajournal.com/news/article/utah_ supreme_court_backs_limited_practitioner_paralegals. Colorado, Connecticut, Florida, Michigan, and New Mexico, among others, are also exploring this model. Am. Bar Ass’n Comm’n on the Future of Legal Serv., Issues Paper Concerning New Categories of Legal Services Providers (Oct. 16, 2015); see also Anna L. Endter, State Activities Related to Limited License Legal Professionals, Gallagher Law Library: Univ. Wash. School of Law (updated June 21, 2014), https://lib.law.washington. Access to Justice Innovation edu/content/guides/StateLimLicLegPro (last visited April 5, 2016).


29 The Cases Without Counsel semi-structured interview protocol included a line of inquiry designed to assess whether study participants might have been receptive to receiving assistance from an authorized non-attorney professional. Large numbers of self-represented litigants across jurisdictions responded favorably to this proposition. “It’s better to have someone that at least has some working knowledge of the system,” said one individual, rather “than trying to navigate it alone when you know nothing.”111 Another remarked, “When you’re going through it, honestly, at that point, anybody— whether they’re a lawyer or not—if they’re qualified to give you that advice, you would appreciate it.”112 While the CWC data is limited to the perspectives of study participants, it nevertheless supplements this conversation, by highlighting a broad desire for in-person assistance from someone who has experience in and/or knowledge of the family court process and can provide case-specific advice. There are too few examples to reference best practices with respect to this model; however, regulation, training, and oversight are important components of these conversations.

Resources: þ Th e Washington State Bar Association is a pioneer in this area, having authorized and regulated Limited License Legal Technicians (LLLTs) as non-lawyer providers of discrete and limited legal advice. The Bar’s LLLT website can serve as a resource for other jurisdictions exploring this service model; it also maintains an up-to-date directory of practicing Technicians. þ I n fall of 2015, the American Bar Association Commission on the Future of Legal Services published an Issue Paper Concerning New Categories of Legal Services Providers that concisely summarizes various models of providing litigants with legal services and law-related services that jurisdictions have implemented. þ I n February 2016, the American Bar Association House of Delegates approved Resolution 105 enumerating Model Regulatory Objectives. Proposed by the Commission on the Future of Legal Services, the Objectives seek to guide states in regulating traditional and non-traditional legal services models. þ R ebecca L. Sandefur and Thomas M. Clarke, through the Roles Beyond Lawyers Project, have begun the dialogue on creating a framework for evaluating programs in which non-lawyers provide assistance traditionally offered only by attorneys.

111 D32. 112 L39.

When you’re going through it, honestly, at that point, anybody— whether they’re a lawyer or not—if they’re qualified to give you that advice, you would appreciate it. Cases Without Counsel Self-Represented Litigant Participant Access to Justice Innovation in Los Angeles County A107

30

Engaging

with

Clients & Potential Clients

Addressing Negative Perceptions of Attorney Involvement in Family Cases Overwhelmingly, the self-represented litigants who participated in the CWC study would have welcomed an attorney’s assistance for parts of or the whole case. A few litigants did, however, raise issues and concerns with respect to perceptions of and prior interactions with attorneys. For some, these experiences and perceptions influenced the decision to self-represent. One of the themes emerging from the CWC narratives on this front is a sense—resulting from actual experience or perception—that attorneys increase conflict and animosity between parties.113 Relatedly, of the one quarter of CWC litigants who expressed a preference for self-representing, a majority indicated this preference was influenced by the desire to maintain or achieve an amicable relationship with the other party.114 Family cases are unique in that, when children are involved, the parties are guaranteed to have a long-term relationship with one another, increasing the importance of fostering an ongoing amicable relationship between parents. Perceptions of attorneys and attorney involvement in the court process is important and presents an opportunity for the legal profession—as individual members and as a whole—to reframe the value that an attorney adds to the process. Individual practitioners can better message to clients about services that are appropriate for, and would appeal to, individuals wishing to maintain or foster an amicable relationship. Furthermore, family law practitioners can better message to clients about their approach to family cases, highlighting an emphasis on non-adversarial, problem-solvingfocused resolution to disputes.115

Messaging about the Role of the Family Law Attorney & Value Added to the Process Furthermore, the CWC findings highlight opportunities for family law attorneys to reframe the way in which they message about their role, which extends beyond simply litigating family cases.116 Some CWC participants who described their case as straightforward or simple seemed to convey more confidence in their ability to proceed without an attorney. Similarly, a number of those who had reached an agreement with the other party or believed an agreement could be reached indicated a preference for handling the matter themselves. There is an opportunity for family law attorneys to highlight the administrative, information-gathering, and problem-solving roles from which these litigants in particular benefit. Relatedly, the emotional stress that divorce litigants experience is often high, and one of the roles of the family law attorney is to “help[ ] a client in emotional turmoil to engage in effective planning despite the fact that it is difficult.”117 Some CWC litigants explicitly discussed how having an attorney may have reduced some of the emotional distress associated with the family court process. The “attorney as buffer” concept highlights an important role for family law practitioners to consider in messaging about how they can best serve family law clients. 113 Cases Without Counsel Research, supra note 6, at p. 21. 114 Id. at pp. 18-19. 115 Research on attorney negotiation styles indicates that “the perceived effectiveness of lawyers drop rather dramatically as the level of adversarial behavior rises.” Andrea Kupfer Schneider & Nancy Mills, The Ineffective Family Lawyer, in Innovations in Family Law Practice 13, 17 (Kelly Browe Olson & Nancy Ver Steegh eds., 2008). 116 See, e.g., Am. Acad. of Matrimonial Lawyers, Bounds of Advocacy: Goals for Family Lawyers (2000), available at http:// www.aaml.org/library/publications/19/bounds-advocacy. With decades of well-established research on the impact on children of parental conflict during divorce or separation, it is well-understood that a family law attorney does so much more for clients than resolve cases through litigation. There are important implications for legal educators, therefore, on curricula for law students that address the various roles that a family law attorney must fill. Mary E. O’Connell & J. Herbie DiFonzo, The Family Law Education Reform Project Final Report, 44 Fam. Ct. Rev. 524 (2006). 117 O’Connell & DiFonzo, supra note 116, at 528.


31

RECOMMENDATIONS FOR BROADER COMMUNITIES There is an important but often overlooked role for communities and community partners in responding to the needs of self-represented litigants in the family justice system. Courts and legal professionals serve and rely on the communities in which they sit. Because whole communities are impacted by how members of a family reorganize through divorce or separation, communities also have a responsibility to assist family justice system stakeholders in developing solutions that serve self-represented litigants.118

Facilitate Access to Self-Help Resources & Services for Divorcing or Separating Families Churches, neighborhood groups, and other community-based organizations and service providers can play an important role in helping self-represented litigants navigate both the process and personal aspects of a family case—for example, providing or facilitating access to self-help resources, hosting informational workshops, and offering support groups for those experiencing divorce or separation. Furthermore, the emotional issues underlying many family cases present an opportunity for mental health professionals to partner with court and legal communities to deliver therapeutic services. There is also a role for the community in facilitating and/or providing a forum for out-of-court models for resolving divorce- and separation-related matters. While out-of-court mediation services are now commonplace in communities, new holistic and interdisciplinary models are being developed that fit well in the community setting.119

Resources: þ Th e Center for Out-of-Court Divorce model that IAALS developed and implemented is designed to operate in the community, serving families through a holistic, interdisciplinary approach. While the model does not foreclose attorney participation, it is a promising solution for self-represented litigants transitioning through divorce or separation.

118 See Kourlis et al., Inst. for the Advancement of the Am. Legal Sys., IAALS’ Honoring Families Initiative: Courts and Communities Helping Families in Transition Arising from Separation or Divorce (2013), available at http://iaals. du.edu/honoring-families/publications/courts-and-communities-helping-families-transition-arising-separation. 119 The Center for Out-of-Court Divorce – Denver: Positive Solutions for Families in Transition offers Denver-area families a proven family centered approach, working in partnership with the local courts. Through the Center, families with children can take advantage of financial and legal education, mediation, and individual family counseling. The Center also provides post-decree support services. Ctr. for Out-of-Court Divorce – Denver, http://centerforoutofcourtdivorce.org/ (last visited April 5, 2016).


32

CONCLUSION The Cases Without Counsel narratives highlight that self-represented litigants frequently encounter challenges navigating the family court process without an attorney—and further, that many of those who self-represent do so out of financial necessity, not choice. Narratives from those who work in the courts with self-represented litigants also suggest that case outcomes can be affected as a result of self-representation. These findings supplement commentary and research on self-representation that are more than a decade old and suggest that, while many stakeholders are solution oriented, the fundamental issue—how to best help users access a system that is not designed for their direct use—has gone largely unaddressed in many jurisdictions. Fortunately, the CWC study also highlights an opportunity for family justice system stakeholders in the courts, legal profession, or broader community to work together in a coordinated fashion to better meet the needs of self-represented litigants. Piecemeal approaches by a single stakeholder group alone will not preclude us from having the same conversations a decade from now on the deleterious impacts of selfrepresentation on those who have no options other than to self-represent. Finally, the CWC study provides unique, first-hand insight into how self-represented litigants experience the family court system. A threshold matter in redesigning a client-centric family court system is soliciting the perspective of the user and taking it into consideration during conversations on how best to serve others like them. The recommendations contained in this report leverage those perspectives, and it is IAALS’ hope that family court users will become an integral part of conversations on the family justice system going forward.


Institute for the Advancement of the American Legal System University of Denver John Moye Hall, 2060 South Gaylord Way Denver, CO 80208 Access to Justice Innovation Phone: 303.871.6600 http://iaals.du.edu



RESEARCH ON EXPERIENCES OF SELF-REPRESENTATION IN U.S. FAMILY COURT




RESEARCH ON EXPERIENCES OF SELF-REPRESENTATION IN U.S. FAMILY COURT

Natalie Anne Knowlton

Director, Honoring Families Initiative

Logan Cornett

Research Analyst

Corina D. Gerety

Director of Research

Janet L. Drobinske

Legal Assistant, Honoring Families Initiative

May 2016 This report was developed under grant number SJI-15-N-001 from the State Justice Institute. Points of view expressed herein are those of the Institute for the Advancement of the American Legal System and do not necessarily represent the official position or policies of the State Justice Institute. For reprint permission please contact IAALS. Copyright © 2016 IAALS, the Institute for the Advancement of the American Legal System. All rights reserved. Access to Justice Innovation in Los Angeles County A114

IAALS—Institute for the Advancement of the American Legal System John Moye Hall, 2060 South Gaylord Way, Denver, CO 80208 Phone: 303-871-6600 http://iaals.du.edu IAALS, the Institute for the Advancement of the American Legal System, is a national, independent research center at the University of Denver dedicated to facilitating continuous improvement and advancing excellence in the American legal system. We are a “think tank” that goes one step further—we are practical and solution oriented. Our mission is to forge innovative solutions to problems in our system in collaboration with the best minds in the country. By leveraging a unique blend of empirical and legal research, innovative solutions, broad-based collaboration, communications, and ongoing measurement in strategically selected, high-impact areas, IAALS is empowering others with the knowledge, models, and will to advance a more accessible, efficient, and accountable American legal system. Rebecca Love Kourlis Natalie Anne Knowlton Corina D. Gerety Logan Cornett Janet L. Drobinske

Executive Director Director, Honoring Families Initiative Director of Research Research Analyst Legal Assistant, Honoring Families Initiative

Honoring Families is an initiative of IAALS dedicated to developing and promulgating evidence-informed processes and options for families involved in divorce, separation, or parental responsibility cases that enable better outcomes for children and that provide greater accessibility, efficiency, and fairness for all parties, including those without counsel. Access to Justice Innovation in Los Angeles County A115

ACKNOWLEDGEMENTS This research was made possible by the generous contributions of the following organizations and individuals: The Bohemian Foundation The State Justice Institute The State of Oregon William J. Howe, III The Tennessee Access to Justice Commission Larimer County District Court Multnomah County Circuit Court Davidson County Circuit Court Juvenile Court of Metropolitan Nashville and Davidson County Franklin County Family and Probate Court Dr. Julie Macfarlane Sue Rice Dr. Marsha Kline Pruett Erica Merten Amanda Cloninger John Mallory Judith Luevano Juarez Caitlin Anderson The many individuals within the courts and administrative offices who supported this work. Above all, countless thanks to the litigant and court professional study participants. The stories and voices of selfrepresented litigants inspired us, and the narratives of court staff and judges reminded us that our family courts are comprised of a dedicated cadre of men and women.

Y our P articipation M eans E verything .



TABLE OF CONTENTS E x e c u t i v e S u mm a r y �� 1 I n t r o d u c t i o n �� 4 P a r t O n e : M e t h o d o l o g y & P a r t i c i pa n t s �� 5 P a r t T w o : F a c t o r s M o t i vat i n g a n d I n f l u e n c i n g t h e D e c i s i o n t o S e l f -R e p r e s e n t ��12 P a r t T h r e e : E x p e r i e n c e s N av i g at i n g

the

P r o c e s s �� 26

Part Four: Interactions with Others, Challenges Encountered, and the Role of Emotion i n S e l f -R e p r e s e n tat i o n �� 40 C o n c l u s i o n �� 52 A ppendix A: J udge -S pecific S ervice P rovider I nterview P rotocol �� 53 A ppendix B: C ourt S taff -S pecific S ervice P rovider I nterview P rotocol �� 55 A ppendix C: S elf -R epresented L itigant I nterview P rotocol �� 57


1

EXECUTIVE SUMMARY The Issue Every year, hundreds of thousands of people enter United States courts seeking a divorce, separation, or resolution of a child-related dispute (e.g., custody or child support).1 Family cases are the way in which the vast majority of Americans will be involved with our courts over the course of their lives. Some individuals hire a lawyer to represent them in the process. However, a large—and by all estimates growing—number do not have legal representation for portions or all of their case.2 In some courts, upwards of 80-90% of family cases involve at least one self-represented party.3 In many cases, both parties lack the assistance of an attorney. As the system was originally designed for represented parties, difficulties ensue for litigants and courts alike when parties are not represented. As a result, courts have responded in a range of ways. All too often, however, litigants themselves are not part of this conversation.

The Study Cases Without Counsel: Experiences of Self-Representation in U.S. Family Court (“Cases Without Counsel” or “CWC”) is a qualitative empirical research study exploring the issue of self-representation in the United States from the litigants’ perspective. Through one-on-one extended interviews, the study collected information and narratives directly from 128 individuals who have represented themselves in family court in one of four jurisdictions (listed from West to East): Multnomah County, Oregon; Larimer County, Colorado; Davidson County, Tennessee; and Franklin County, Massachusetts. Additionally, to create an appropriate context for the litigant experience, the IAALS study team interviewed 49 judicial and non-judicial professionals who routinely engage and interact with self-represented litigants in those jurisdictions. The voices of participants provide a rare window of insight into the world of self-representation. This report focuses on consistent themes that emerged across jurisdictions, which will be useful as family courts, lawyers, and communities across the country navigate how best to serve litigants outside of the traditional picture of two represented parties.

The Results The individual experiences of self-represented litigants in family court vary considerably. There are countless factors at play—some beyond the sphere of control of courts, the organized bar, and public policymakers. Nevertheless, discussions with litigants and court professionals in four very different states allowed the Cases Without Counsel study to capture 1

See Robert C. LaFountain, Nat’l Ctr. for State Cts., Examining the Work of State Courts: An Overview of 2013 State Court Caseloads 4-8 (2015), available at http://www.courtstatistics.org/~/media/Microsites/Files/CSP/EWSC_ CSP_2015.ashx.

2 Jud. Council of Cal., Task Force on Self-Represented Litigants, Implementation Task Force: Final Report 2-3 (October 2014) (discussing the rise in self-representation in various states over the last 30 years), available as Attachment A at http://www.courts.ca.gov/partners/documents/EA-SRLTaskForce_FinalReport.pdf.) 3

Id.

4 M24.

It feels really good to know that at least my voice will be heard… I’ve felt very powerless.4 – Cases Without Counsel Self-Represented Litigant Participant Access to Justice Innovation in Los Angeles County A119

2

broad themes that bear on the issue of self-representation from those most directly affected. Most importantly, the study highlights a very real justice gap within the United States and gives urgency to the challenge of creating client-centric family law courts and processes. The study includes a relatively diverse group of litigant participants, though largely with the benefit of familiarity with the English language and American culture. The IAALS study team found that, in general, participants were rational, resourceful, and articulate with respect to their situations. The following are the major themes revealed through the study. These themes arose time and again in the interviews, and thus constitute strong findings with respect to participants generally even if they do not describe every individual’s experience.

Reasons for Not Having an Attorney • Self-represented litigants in family court largely desire legal assistance, advice, and representation but it is not an option for them due to the cost and having other financial priorities. Attorney services are out of reach, while free and reduced-cost services are not readily available to many who need assistance. • While cost is the predominant factor, there are other considerations. ere is a certain level of concern about how the involvement of an attorney will affect the ongoing ºº Th relationship of the parties, whether based on perception or prior experience. ere is some sentiment concerning the desire to have a voice in the process (i.e., to tell their story to ºº Th the court in their own words).

The Family Court Process from the Litigants’ Perspective • Bringing difficult family situations to a formal courthouse can leave litigants feeling intimidated, isolated, and vulnerable. • Self-represented litigants grapple with understanding the process, what to expect, and what is expected of them. They describe feeling lost or “in the dark,” relating both to the individual steps and the big picture of the case. • Given the personal importance of their cases, litigants actively work to identify and utilize resources to help them understand the law and the court process. However, resources leveraged do not always address topics clearly or effectively enough to eliminate the need for more specific guidance. e internet is one of the most important sources of information for litigants, although they find inºº Th person assistance to be invaluable. e helpfulness of court staff varies, and the sometimes fuzzy line between legal information and ºº Th legal advice poses a challenge for both courts and litigants. ºº Litigants sometimes avail themselves of attorney consultations for assistance. • The paperwork can become overwhelming. Forms, while helpful, are not sufficient because many are unclear about the appropriate content to include when completing them. The cycle of litigant mistakes and court rejections is taxing for both. • Litigants struggle with how to present their case to the court, including hearing or trial preparation, evidentiary matters, and courtroom procedures. • Not surprisingly, proceeding without an attorney is easier for those who have a simple case or previous court experience. It is also easier for those who are well-connected personally or those who are educated and/or engaged in professional work. • Generally, self-represented litigants report positive interactions with court professionals and more negative interactions with opposing counsel.


3 Effects of Self-Representation • Self-represented litigants feel they are at a disadvantage as compared to represented parties. ourt professionals who pressure self-represented litigants to get a lawyer leave the impression that ºº C the process will not be fair to those who are self-represented. ºº Litigants can feel outmatched by opposing counsel. istakes due to lack of knowledge or experience lead to a litigant’s sense that they are harming their ºº M case or jeopardizing their rights by not engaging legal counsel. • Self-representation can negatively impact outcomes. By implication, this can directly affect children in family law cases. ºº J udges confirm that the inability to effectively present their case from an evidentiary standpoint works against self-represented litigants. ºº S ome litigants have described simply giving up their rights when faced with the reality of the court process, including the time and energy required. • Self-representation adds substantial stress and anxiety to an already taxing emotional period in the life of a family. itigants dealing with personal and professional obligations while their family is in transition must ºº L also take on functions and responsibilities that otherwise would have fallen to a trained professional. ttorneys can alleviate the pressure to get everything right and can serve as a buffer, allowing litigants ºº A the time and emotional space to process emotional issues outside of court. • Nevertheless, those who are able to succeed without incurring the expense of an attorney come out of the process with a feeling of empowerment. Finally, as those at the center of an issue can best speak to what changes would make a positive difference, an important piece of the Cases Without Counsel study involved asking both litigant and court professional participants their suggestions for improving the system. These suggestions are contained in a companion Honoring Families Initiative publication setting forth recommendations for moving forward. Reflecting a collective responsibility to address the challenges of self-representation, Cases Without Counsel: Our Recommendations after Listening to the Litigants includes the input of a variety of family justice system stakeholders.5

5 Natalie Anne Knowlton, Inst. for the Advancement of the Am. Legal Sys., Cases Without Counsel: Our Recommendations after Listening to the Litigants (2016).


4

INTRODUCTION Cases Without Counsel: Experiences of Self-Representation in U.S. Family Court (“Cases Without Counsel” or “CWC”) is a qualitative empirical research study exploring the issue of self-representation in the United States from the litigants’ perspective.6 The study includes data from in-depth interviews with 128 self-represented litigants and 49 court professionals in four family courts (listed from West to East): Multnomah County, Oregon; Larimer County, Colorado; Davidson County, Tennessee; and Franklin County, Massachusetts. The decision to collect qualitative data rather than quantitative data was strategic. Qualitative research is designed to explore experiences, behaviors, perceptions, and feelings from the participants’ perspective and in the participants’ own words. It is especially useful when there is neither theoretical nor empirical consensus around an issue. Such clarity is often lacking when an issue develops rapidly, as has the self-represented litigant experience. While the findings are not statistically representative of the views of all self-represented litigants and the court professionals who interact with them, this inquiry allowed the study team to gather detailed and nuanced information on a complex issue, while reducing the number of presuppositions necessary to direct the data gathering. The participants relayed their own truths within the context of their experiences of proceeding through the family court process without legal representation. The Cases Without Counsel study was generally modeled on a comprehensive qualitative study undertaken by Dr. Julie Macfarlane in three Canadian provinces (“Macfarlane study”), which grew into the National Self-Represented Litigants Project.7 The IAALS study team aimed to similarly illuminate the self-represented litigant experience, with a focus on U.S. courts. The following research report contains consistent themes that emerged across jurisdictions through the voices of participants. It begins with the study’s methodology and the demographics of study participants. Then, three parts explore different aspects of the self-represented litigant experience: 1) reasons for not having an attorney; 2) perspectives on navigating the family court process; and 3) effects of self-representation. Each of the substantive parts is followed by broader considerations, drawing from the national commentary on the topic. With the close connection between this study and the Canadian counterpart, this report contains comparative insights where relevant. The IAALS study team hopes that, as a result of this study, litigants’ voices will continue to be more clearly heard and included in the important conversation about how to improve the family court system.

6 In keeping with the relevant literature, this report uses the term self-represented to describe the litigant study population. The IAALS study team recognizes the other terms used to refer to litigants without legal counsel (e.g., pro se) and acknowledges that some litigants feel they lack any sort of representation (e.g., unrepresented). 7 Dr. Julie Macfarlane began with a qualitative study consisting of interviews and focus groups with more than 250 self-represented litigants in civil and family cases, and ultimately formed the National Self-Represented Litigants Project (NSRLP). Dr. Macfarlane published study findings and recommendations in 2013, but since then has continued to collect data and information from Canadian self-represented litigants. New intake data, including a comparison to the 2013 demographic data, was published in 2015. Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants Final Report (2013), available at https://representingyourselfcanada.files.wordpress. com/2014/05/nsrlp-srl-research-study-final-report.pdf; Erin Chesney et al., Tracking the Continuing Trends of the Self-Represented Litigant Phenomenon: Data from the National Self-Represented Litigants Project, 2014-2015 (2015), available at https://representingyourselfcanada.files.wordpress.com/2015/05/nsrlp-intake-report-2015.pdf. NSRLP also connects self-represented litigants with resources, provides education, and facilitates dialogue on this issue. Dr. Macfarlane and former Project Manager Sue Rice lent their expertise as consultants to the IAALS study team, providing ongoing feedback on study methodology and data analysis from the perspective of researchers who have already walked the complex path of obtaining in-depth information from litigants.


5

PART ONE METHODOLOGY & PARTICIPANTS Participating Jurisdictions The Cases Without Counsel study was active in the family courts in four U.S. jurisdictions:8 • Multnomah County, Oregon: Multnomah County is part of the Portland metropolitan area and is Oregon’s most populous county, with a population of approximately 776,700. With respect to Multnomah’s residents: 81% identify as Caucasian; 7% identify as Asian; and 6% identify as Black/African American. Moreover, 11% identify as Hispanic or Latino.9 Per capita annual income is approximately $31,000, and 40% of the population is college educated. Domestic relations matters in Multnomah County are handled in a dedicated family court in downtown Portland, which also has jurisdiction over juvenile, domestic violence, probate, and civil commitment matters. • Larimer County, Colorado: Larimer County includes the following Colorado municipalities: Fort Collins, Loveland, Estes Park, Berthoud, Wellington, and Timnath. County population is approximately 324,000, of which 93% identify as Caucasian. In addition, 11% identify as Hispanic or Latino. Per capita annual income is also approximately $31,000, and 44% of the county’s population is college educated. All domestic relations matters in Larimer County are heard in the Larimer County District Court, located in Fort Collins. District Court judges handle a diversified docket of domestic relations, civil, criminal, probate, juvenile, and mental health cases, with magistrate judges assigned to domestic and juvenile cases. • Davidson County, Tennessee: Davidson County has a population of approximately 668,000, with Nashville as its county seat and most populous city. Approximately two-thirds of Davidson County’s population identify as Caucasian, and 28% identify as Black or African American. Per capita annual income is $29,000, and 37% of the population is college educated. Generally speaking, the Circuit Court handles divorce cases and related child issues, specifically in the Third and Fourth divisions; unmarried parents seeking to resolve parentage, parenting time, child support, and/or custody issues must petition the Juvenile Court. • Franklin County, Massachusetts: Franklin County is a rural jurisdiction in western Massachusetts. With a population of 70,800, Franklin County is the least-populous county on the Massachusetts mainland. Ninety-five percent of the population identify as Caucasian. Annual per capita income is $29,600, and 34% of the population is college educated. Family cases are handled in the Franklin County Probate and Family Court, located in the city of Greenfield. The IAALS study team selected study jurisdictions on the basis of two primary factors. First, the courts in study jurisdictions had to express a willingness to participate, including support from court leadership. This entailed supporting IAALS’ access to public case filing records and facilitating interviews with judges and court staff. Second, the study team sought to achieve some measure of diversity across jurisdictions in terms of geographic location, population demographics, court resources available for self-represented litigants, and manner of processing and handling family cases. While participating jurisdictions are not representative of family courts across the country, the diversity provides a better sense of which themes may be specific to a jurisdiction and which themes may be more universal.

8 The statistics that follow are based on U.S. Census data and U.S. Census Bureau estimates. United States Census Bureau QuickFacts, http://www.census.gov/quickfacts (last visited April 5, 2016). 9 Race and ethnicity in the U.S. Census are considered separate and distinct identities, with Hispanic or Latino origin asked as a separate question.


6

Judges

and

Court Staff

Recruitment Within participating courts, IAALS researchers worked with a designated liaison to identify appropriate and willing judge and court staff participants. The court liaison also coordinated interview scheduling and facilitated the logistics of researcher visits.

Court Service Provider Participants Considering all jurisdictions together, the study included interviews with 49 individuals who routinely interact with self-represented litigants in the course of their court duties. Twelve of these individuals were judicial officers and 37 were non-judicial personnel. With respect to the latter, these participants came from a wide swath of roles within participating courts, including clerks’ office staff and leadership (54%), judges’ staff (22%), court case management or dispute resolution staff (19%), and staff whose role consists solely of assisting self-represented litigants (5%). Together, these judge and court staff interviews capture a variety of perspectives from within these courts. Figure 1, Breakdown of Court Staff and Judicial Officer Interviewees

11

Judge Judicial Officers (n = 12)

1

Magistrate Judge

20

Clerk's office staff and leadership Court Staff (n = 37)

8

Judge's staff 7

Court case management or dispute resolution staff 2

Self-represented litigant staff 0

5

10

15

20

25


7

Self-Represented Litigants Recruitment Researchers accessed publicly available case filing records in each participating jurisdiction to identify contact information for parties to family cases in which: • One or more of the following family10 case types was at issue: divorce/dissolution (including civil unions); separation; child custody, visitation, or allocation of parental responsibility; child support; spousal support, alimony, or maintenance; • The filing date fell between July 1, 2013, and June 30, 2014;11 and • There was an indication in the record that both parties had notice of the case. To ensure that only appropriate individual parties were included in the recruitment lists, researchers removed references to government agencies, organizations, and other third-party entities, as well as references involving individuals with correctional facility or foreign addresses,12 duplicate records, and invalid addresses. The most crucial criterion for inclusion in the study—whether a party represented him or herself—could not be identified from the court records.13 For this reason, the study team asked recipients of recruitment materials to selfidentify as a party who proceeded without legal representation for any portion of their family case. The study defined self-representation broadly, to include litigants who were represented at some point in the case, because any person representing themselves at least part of the time would have a perspective on self-representation, and perhaps those having experience with attorneys in their case could provide unique insights into self-representation. The CWC study also aimed to explore why people may have lost their attorney or obtained an attorney during the process. The outreach strategy evolved over the course of the study due to challenges in connecting with the family court selfrepresented litigant population. The study team hypothesized that slow participation rates may have been a function of any one or a combination of variables, including: limited time and energy for individuals focused on meeting the needs of families without the help of a spouse or significant other; reticence to recount (and thus re-live) what may have been a difficult and emotionally charged experience; a wariness of discussing the details of their court experience with a third party (a sentiment perhaps compounded by unfamiliarity with IAALS and its mission); and a lack of grounding in the empirical research process and the ends to be achieved thereby. Initially, postcards were mailed to randomly selected subsets of the recruitment lists; ultimately, personalized letters were distributed, offering a monetary gesture of appreciation for participation.14 Because responses to these materials remained relatively slow across jurisdictions, every individual in each recruitment list received at least one outreach letter, with many receiving multiple letters over the course of the study period. The mailings helped to ensure that the study reached

10 To the extent possible, the Cases Without Counsel study focused on divorce, separation, and parental responsibility cases. We recognize, however, the interconnected nature of these case types with related matters such as guardianship, juvenile delinquency, dependency, truancy, paternity, child abuse and neglect, and civil protection orders. 11 This timeframe was selected with the hope of generating a mix of respondents with completed and ongoing cases. 12 “Prisoners” are considered a “vulnerable population,” which IAALS did not seek Institutional Review Board approval to study. 13 There is a lack of a consistent definition for what constitutes a self-represented litigant and a corresponding inconsistency among many jurisdictions in terms of how state courts count self-represented litigant numbers. See Nat’l Ctr. for State Cts., Developing Standardized Definitions and Counting Rules for Cases With Self-Represented Litigants (2013), available at http://www.courtstatistics.org/~/media/Microsites/Files/CSP/Other%20Pages/SRL%20Project%20%20Final%20 Report%20121913.ashx. In order to ensure that the study’s broad definition of self-representation was consistent across study jurisdictions, we did not use participating courts’ case management data in helping identify self-represented litigant participants. 14 Participants could select a $25 gift card either from Amazon (delivered electronically and immediately) or American Express (delivered via postal mail and shortly after the conclusion of the interview). These choices were offered in order to be responsive to varying levels of internet access and personal preference.


8 a broad spectrum of litigants and yielded about 85% of respondents. To prompt participation by individuals engaged with and thinking about their cases, there was also an in-court recruitment component that yielded the remaining 15% of respondents. Specifically, posters and postcards were sent to each courthouse for hanging and distribution. Depending on the particular jurisdiction or particular court staff member within the jurisdiction, the approach varied from active discussion of the study to passive availability of the materials. While the practical realities of recruiting self-represented litigants for study participation made sampling bias an inevitability, it was not apparent from the data that participants were biased in any particular direction.

Self-Represented Litigant Participants In total, the study included interviews with128 self-represented litigant participants from the four study jurisdictions: 54 from Larimer County, Colorado; 31 from Davidson County, Tennessee; 30 from Multnomah County, Oregon; and 13 from Franklin County, Massachusetts. Figure 2 below presents a summary of participant case information across all jurisdictions. Figure 2, Self-Represented Litigant Case Information

50.4%

Plaintiff/Petitioner Party Type (n = 127)

39.4%

Defendant/Respondent Joint Petitioner

10.2% 29.13%

Ongoing

Case Status (n = 127)

70.87%

Completed Representation Status of the Interviewee (n = 127)

Represented for parts of the case

25.2% 74.8%

No representation 29.8%

Represented for the entire case Representation Status of the Other Party (n = 124)

Represented for parts of the case

47.6%

No representation Not sure

Reached Some Level of Agreement with the Other Party (n = 123)

20.2%

2.4% 42.3%

Yes

57.7%

No

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Exactly half of the participants were the plaintiff/petitioner in their case, while slightly fewer (39%) were the defendant/ respondent and a much smaller proportion filed a joint petition (10%). Almost three-quarters (71%) reported that their case was completed, while the remainder had an ongoing case (29%). With respect to representation status, a full threeAccess to Justice Innovation in Los Angeles County A126

9 quarters reported representing themselves for the entire case, while the remaining 25% reported having representation for part but not all of their case. About half of the interviewees (48%) indicated that the other party self-represented for the entire case; smaller proportions indicated that the other party had attorney representation either for the entire case (30%) or for parts of the case (20%). Most participants (58%) had not reached any sort of agreement with the other party, either before or during the court process. Participants also represented a range of demographic characteristics. Figure 3 presents a detailed breakdown of selfrepresented litigant participant demographic characteristics. Figure 3, Self-Represented Litigant Demographic Characteristics

62.5%

Women

Gender (n = 123)

37.5%

Men

9.5%

No children

25.4%

One Number of Children (n = 121)

27.0%

Two

23.0%

Three

11.9%

Four

3.2%

Five or more

72.8%

Caucasian Race (n = 121)

14.4%

Black or African American

8.8%

Other

4.0%

Multiracial Hispanic or Latino/a (n = 120)

6.7%

Yes

93.3%

No 5.6%

Primary School High School Diploma or GED

12.9%

Certificate Program

3.2%

Education (n = 119)

30.6%

Some College Study

8.1%

Associates Degree

28.2%

Undergraduate Degree 11.3%

Graduate Degree

43.4%

Under $20K 27.0%

$20K to $40K Annual Individual Income (n = 117)

15.6%

$40K to $60K

6.6%

$60K to $80K

4.1%

$80K to $100K

0.8%

$100K to $120K

2.5%

$120K or More

0%

10%

20%

30%

40%

50% Access 60% to70% 90% 100% Justice80% Innovation


10 Just under two-thirds (63%) were women, while the remaining third (38%) were men. Participant family sizes were mixed, with about one-quarter each having one (25%), two (27%), or three (23%) children. About three-quarters (73%) identified as White, while the next largest group identified as Black or African American (14%).15 Participants were largely educated, with half (48%) having a college degree and about another third (31%) having had some college study. Participants tended toward the lower end of the economic spectrum, as nearly half (43%) reported an annual income below $20,000 and only 14% reported earning more than $60,000 per year. Litigant participants were quite homogeneous when it came to country of origin and native language. The vast majority (93%) cited the United States as their country of origin.16 A similar proportion (92%) of participants indicated English was their first language.17 This could be a function of the nature of the study and recruitment materials. Presumably, the challenges of self-representation would be greater for those unfamiliar with American culture and/or non-English speakers.

Materials, Procedure,

and

Analysis

Interview Protocols The IAALS study team developed three separate semi-structured interview protocols: one for judges;18 one for court staff;19 and one for self-represented litigants.20 The particular questions in the protocols were tailored to capture the unique perspective of each participant group. Generally speaking, each protocol addressed the same issues and contained questions designed to elicit responses on the following topics: • Demographic information • Self-represented litigant expectations • Factors influencing/motivations for self-representation • Impacts of self-representation (on courts, cases, and litigants) • Positive aspects of the family court process/experience • Difficulties/frustrations in the family court process/experience • Recommendations (for courts, court staff, and other family justice system stakeholders) All interviews concluded with an opportunity for participants to provide additional feedback or to address issues not already covered during the interview. Participants were also informed that they could contact IAALS researchers after the conclusion of the interview with additional thoughts or comments.

15 The race categories used in this study were mirrored after the US Census. 16 Other participant countries of origin include Canada, China, Colombia, England, Lebanon, Mexico, and South Sudan. 17 Other participant first languages include Arabic, Chinese, Sign Language, Spanish, and Tribal Language. 18 Appendix A. 19 Appendix B. 20 Appendix C.


11 Interview Procedures Judge and court staff interviews were conducted in person, onsite at the courthouse, and were generally scheduled for 30 minutes, though some interviews were shorter and some slightly longer.21 All litigant interviews were conducted telephonically and were scheduled for one hour; as was the case with judge and court staff interviews, the actual duration of self-represented litigant interviews varied considerably. Interviews were conducted in English, with the exception of four self-represented litigant interviews which were conducted at least partially in Spanish with the assistance of a interpreter. Prior to beginning each interview, the researcher conducting the interview reviewed the consent form with participants and provided an opportunity for questions related to participation. Part of the consent process entailed requesting permission to be audio recorded for the purposes of obtaining a full, accurate transcript to facilitate analysis. All those who consented were audio recorded; for the few who did not consent, the researcher took detailed notes during the interview.

Data Analysis and Reporting The IAALS study team reviewed a series of subsets of interviews and used those, along with protocol-specific topics, to generate a coding scheme to facilitate data organization and identification of emerging themes. As is consistent with qualitative analysis practices, the team took an iterative approach to developing the coding scheme, adding and revising codes at various stages of the analysis process in order to ensure a complete and fully defined coding scheme. All interviews were coded and analyzed using QSR NVivo qualitative analysis software. This effort aims to capture and bring to life the voice of the litigant. Accordingly, the results of the study are mainly presented through direct quotes from the interviews. Included quotes were selected as an accurate articulation of a particular sentiment, experience, or theme emerging from the data more broadly. Generally working from transcripts of audio recordings, the quotations are word-for-word, with the correction of minor grammatical/typographical errors and the elimination of filler words common in speech but distracting in written form (e.g., “um” or “uh”). Finally, as a function of the extensive amount of data collected and in an attempt to make the findings relevant to the largest possible audience, the study team focused on themes common across all study jurisdictions for the purpose of this report. In communicating the results, quantifiers such as many and few are used to indicate how often an experience or viewpoint arose during the discussion for our group of participants. These descriptions should not be read to measure prevalence among the entire population of self-represented litigants or judicial and court staff, particularly in light of the semi-structured interview format in which topics were raised and discussed organically and therefore not every issue was addressed by every individual. Nevertheless, the reader is encouraged to be mindful about how the findings and the recommendations highlighted here might apply to the issue of self-representation more universally.

21 Due to scheduling constraints, one interview was attended by four court staff members and, thus, was more of a focus group setting.


12

PART T WO FACTORS MOTIVATING AND INFLUENCING THE DECISION TO SELF-REPRESENT An exploration of the issues surrounding self-representation in family courts necessarily begins with the factors that litigants weigh and consider in deciding whether to obtain counsel or represent themselves. These factors provide insight into the situations, perceptions, and needs of family court litigants. It is important to note that this section focuses on self-represented litigant (SRL) participants’ decision-making process at the outset of the case—or at the outset of self-representation if a lawyer was initially involved—and unless otherwise indicated does not address how the initial assessment may or may not have changed once they were actually moving forward with self-representation. Indeed, consistent across jurisdictions, more than 85% of self-represented litigant participants who commented on the issue expressed their desire for legal assistance in the form of advice and/or representation. The Cases Without Counsel study revealed four main, interconnected themes with respect to factors considered in deciding on self-representation: 1) financial issues; 2) the assessment of one’s ability to self-represent; 3) a preference for self-representing; and 4) experience with and perceptions of attorneys. This report takes a dive into the nuances that emerged within each of these four main themes. Although each theme is addressed separately, the decision to selfrepresent is often multifaceted, involving a blend of reasons. In fact, self-represented litigant interviewees cited an average of 2.7 motivators in this discussion. In addition, there is some unavoidable overlap across the various themes, a function of organizing complex data into categories. For example, the same perception, attitude, or issue may be raised by one person in relation to their perceived ability to handle the case and by another person in relation to a past experience with an attorney. Topics are discussed within each relevant theme, even if they appear elsewhere.

Financial Considerations Across jurisdictions, issues pertaining to the cost and affordability of legal services featured prominently in the vast majority of self-represented litigant participants’ stories. With just over 90% of all participants indicating that financial issues were influential—if not determinative—in this decision, it was the most consistently referenced motivation for proceeding without an attorney. Indeed, concern over finances came through clearly in the interviews: • “The retainer fee was kind of steep for a single mother.”23 • “Cost was the number one driver in my decision.”24 • “It’s too expensive.”25 • “It was a financial thing.”

• “It was more of a financial issue—most things are today.”27 • “Cost was the largest factor.”28 • “The money was definitely the biggest part of it.”29

26

22 D3. 23 M6. 24 D34. 25 L36. 26 M5. 27 D5.


13 Some litigant participants referred to the financial issue broadly, without elaborating on the point. Many of the interviews, however, explicitly explored the line between affordability and cost priority—in other words, differentiating between one’s ability to afford legal counsel and one’s preference for allocating money elsewhere. The two sections that follow explore each of these facets of the financial motivation to self-represent.

(In)Ability to Afford Legal Representation Most self-represented litigant participants for whom finances were a factor in self-representation expressed that affordability was an issue for them. To put the comments into context, the portion of participants who specifically raised affordability concerns (in contrast to discussing financial concerns more generally) was just under 60% for those with a personal annual income of under $20,000 and about 50% for those with an income between $20,000 and $40,000. The proportion of individuals who raised affordability concerns then leveled off over the next three income categories (between $40,000 and $100,000) at nearly 40%. According to one litigant participant, “it was out of my reach to even think about hiring an attorney.”28 Another, in describing how she came to be self-represented, explained: “It’s not really a decision, it’s a financial barrier—you can’t give what you don’t have.”29 The notion that self-representation is less a decision than a necessity was echoed by a number of other interviewees. One reported: “it wasn’t optional, and it’s still not optional to go spend $4,000 or $5,000 on an attorney—that’s more of a luxury really.”30 Another individual stated: “I would have never tried to represent myself if I had been able to afford an attorney.”31 A few interviewees explicitly touched on how the division of a single household into two played into their assessment of whether they could afford an attorney. One study participant, a nurse, commented: “I had lost the income of my spouse at that time. My focus was really on making sure that I was able to keep my home, able to keep my vehicle—those things that I needed in order to continue making a living.”32 A small-business owner described how, “between the circumstance of the separation and assuring that there was adequate support for two households” he had depleted much of his financial reserves.33 Similarly, a newly single mother portrayed her situation as follows: “I had just given up half of everything I’d ever owned…I also had a hefty mortgage payment that nobody else was helping me with, and helping kids with college.… So, I didn’t have money to go get an attorney.”34 Most interviewees who stated that they could not afford legal representation did not comment further as to how they made this assessment. A few respondents, however, did describe having expended effort, time, and/or resources in the course of determining that representation was not an option financially. “It cost me 50 bucks to find out I couldn’t afford a lawyer,” said one self-represented litigant.35 Several participants described having an attorney at some point in the process, but running out of funds to maintain representation. “Once I pretty much figured out that my funds were drawn on the lawyer that I had,” said one litigant, “I talked to a few other lawyers, I did some quick research and just decided that I’m going to have to go it on my own.…I had already applied for another loan to try to get another lawyer and I was denied the loan.”36 Another participant 28 M30. 29 D25. 30 D30. 31 D14. 32 L53. 33 F13. 34 D30. 35 M18. 36 F1.


14 reported that after accruing $6,000 in legal fees, her attorney refused to continue without additional payment. This individual was unable to afford representation from that point forward. A third litigant told a similar story of having to proceed without an attorney after accruing $8,000 in legal fees, the entirety of which he still owes. The inability to afford an attorney was also the factor that court participants estimated to be the most common driver of self-representation. According to one court staff participant, “most of the people that I talk with want legal help and advice, and they can’t afford it.”37 “Nine times out of ten,” explains another court staff participant, “they simply can’t afford [an attorney].”38 According to one judge, for most of the litigants who appear before him, self-representation is “a necessity born of their financial situation versus the desire to represent themselves.”39 This sentiment was echoed by other court participants. “People don’t have ready cash for the retainer,” said a participating judge, “so even if they could potentially afford it over time, they don’t have the money that a lawyer wants to get into a case.”40 This individual’s prior experience in family law practice suggested that even the simplest case requires a retainer of $3,000 or more, and from her vantage point on the bench, attorneys’ fees are commonly between $10,000 and $20,000 in family cases. She noted, “I never see fees less than $5,000 at the end of a case.”41 Another judge remembered practicing law before joining the family court bench: “I practiced and I was amazed at how much I was needing to charge people to have a law practice.…It’s so expensive. I don’t think I could afford a lawyer.”42 A third judge mentioned having college-educated adult children who would not be able to afford more than a one-time consultation should they find themselves enmeshed in a family case. Related to the issue of affordability, several court participants commented on litigants’ perceptions that legal help is unattainable. One court staff interviewee cited an awareness issue, opining that some litigants do not fully understand what is involved in getting legal counsel or how much it actually costs. With respect to the process of finding and vetting a potential family law attorney, another court participant remarked, “very few pro se litigants would even know how to start.”43 The uncertainty of legal fees in family cases may also play into this discussion of affordability. One judge participant responded that “expense and, somewhat, the uncertainty of the expense of the attorneys,” is the most common driver of self-representation.44 He suggested that uncertainty concerning fees may be perpetuated by horror stories, shared among family and friends, of runaway legal fees in a divorce case. Concerning the issue of free or low-cost legal assistance, “There are some people who just don’t have money to be able to get [representation], and then there are other people who don’t understand that they actually would qualify for some help.”45 However, running counter to that impression, a participant who was disabled and on Social Security detailed extensive efforts consisting of calling Legal Aid, contacting a host of private attorneys, asking the court where to locate legal resources, etc. Ultimately, he explained, “everywhere I tried to go it was like a no-go; it was like a roadblock that I couldn’t get over.”46

37 MCS6. 38 FCS6. 39 LCS1. 40 LCS3. 41

Id.

42 DCS1. 43 FCS5. 44 LCS5. 45 MCS1. 46 F7.


15 Cost Priority and/or Cost Savings Cost priority—that is, the notion that one might be able to afford legal services, but prioritizes other uses for the money— resonated with about 20% of participants. These individuals expressed that they weighed how to prioritize available resources and reduce transaction costs. According to one individual interviewed, “I was 100% motivated by the fact that I didn’t want to spend the money unnecessarily. I had the money; I could have [hired an attorney], but I chose not to.”47 Notably, there were participants who considered financial priorities even when obtaining representation was not realistically a financial option. Indeed, the issue was frequently discussed by those who reported an annual income of less than $40,000. “Even if I had had the money to hire an attorney,” said an interviewee, “I would have done a little bit more research to see how difficult the process was to do it for myself—because, why spend the money if it’s not necessary?”48 Several interviewees referenced children as being influential in this cost-benefit assessment: • “As I was having conversations with the attorneys, it became clear to me that representation was not an efficient use of resources that were very, very limited that I could actually be using toward my children.”49 • “I’d much rather put that money toward supporting children than trying to fight to get them.”50 • “We have kids in college, and there just wasn’t any reason to spend money on something—we just didn’t need it.”51 For at least one individual, the cost-benefit assessment was made jointly with the opposing party. She explained: My ex-partner and I looked at the expenses involved in each of us having a lawyer. We looked at the expenses of one of us having a lawyer and one not having a lawyer. We looked at the expenses of being represented for paperwork, by a paralegal, just to make the process clear so that we didn’t have to return. And that’s the method that we chose.52 Another, who—at the time of the divorce—found himself and his spouse facing a rent and a mortgage, payments on two vehicles, and two insurance policies, concluded the money that would have been spent on an attorney would be better spent split between themselves. A few participants talked about how cost concerns motivated them to research what representing themselves would entail. “I think if attorneys were $20 an hour it would have been a no-brainer to have somebody else do it for me,” said an interviewee, “but at $300 an hour, it became ‘I think I can carve out some time to do this.’”53 Another participant explained: “I could see right off the bat it’s going to cost me $20,000, so I better go do some research. It’s going to be worth my time to go find out about my case.”54 The issue of cost priority also arose in almost 20% of the court participant interviews. “The common misconception is people representing themselves must be poor,” explained one court staff interviewee: “It used to be, if you had the money you hired an attorney. Now people are like, ‘Do I really want to spend that money on an attorney?’ So, it’s just become a much wider spectrum.”55 This individual described this shift as largely having occurred when the market turned in the last recession. 47 D26. 48 L53. 49 F13. 50 M12. 51 L40. 52 M5. 53 M10. 54 M1. 55 LCS12.


16

Assessment

of and

Confidence

in

Ability

to

Represent Oneself

While financial reasons featured prominently in the vast majority of study participants’ stories, the second most commonly referenced consideration in self-representation was the litigants’ assessment of and/or confidence in their ability to represent themselves, a factor for approximately 60% of self-represented litigant participants. This factor was also referenced frequently in the court professionals’ interviews. Litigant interviewees reported a number of considerations relevant to assessing their ability to self-represent, including case complexity, access to help, familiarity with courts and the process, and education and professional experience. The sections below explore each of these considerations.

Level of Case Complexity Just over 40% of self-represented litigant interviewees engaged in a discussion about the complexity of their case. Individuals who described their case as easy, simple, straightforward, or using a similar descriptor seemed to convey more confidence in their abilities. Some cited the absence of assets, property, and/or children as contributing to their sense that the case would be easy or straightforward enough to handle without representation. “There were no children involved, no custody, no alimony,” one individual explained, commenting that “even if attorneys were reasonable, financially reasonable, I wouldn’t have gone that route anyway.”56 Said another interviewee, “The most important fact of it was that I believed it’d be a very simple case. We were only married for a short period of time…no children, or assets, or alimony.”57 Several interviewees similarly expressed that they felt there was nothing for the parties to fight over. Court staff participants, too, suggested that the complexity of issues in a case influences litigant decisions around selfrepresentation. In fact, about 40% of court participants thought case complexity was influential in terms of litigant perceptions of their ability to represent themselves.

Access to Help Whether or not an individual had access to resources—legal or non-legal, online or in-person, court or community— was also influential for some self-represented litigant interviewees. This might include the advice of family members or friends, depending on the litigant’s specific connections. “I think another influencing factor,” offered a participant, “was that I had a friend that had gone through the same process and kind of was able to point me in the right direction in terms of accessing online information and…kind of mentored me through the process.”58 One self-represented litigant found utility in having attorney friends and family available for questions, noting that he and his spouse “had a couple of people in each of our corners that we could turn to.”59 In a few instances, participants consulted attorneys who explicitly suggested that the case could be handled without legal representation, which in turn influenced perceptions of ability to self-represent. One litigant went to an attorney who, after passing along resources and providing insight on how to conduct the necessary research, suggested to the individual: “It’s not worth you paying me to do this stuff when you can do it by yourself.”60 Another participant explained: “I did some research on my own and I thought I understood what the issues were and how to proceed and so then I did consult with an attorney to say ‘Am I on the right track here?’ and they said ‘Yes.’ So that made me feel I had confidence to do it.”61

56 L43. 57 L33. 58 L59. 59 L15. 60 L20. 61 M8.


17 A few court professionals connected litigants’ assessments of their ability to the availability of resources, including court forms and instructions. “For people who don’t have that much money, whatever that means, they’re going to do it themselves,” explained one court staff participant.62 He went on to say, “Those are the people who may be educated or savvy on the computer and will look at the forms and say ‘I could do this.’”63 Another participant suggested that litigants seem to perceive that if there is an available form, “they must be able to do it themselves.”64 Interestingly, however, litigant interviewees themselves did not make a connection between the availability of court forms and instructions and the decision to self-represent. Rather, it was the reassurance provided by a human contact that gave them confidence in their ability to proceed without an attorney.

Familiarity with Courts or Legal Processes Personal experience with and in the court system also appeared to be influential for several study participants. For one litigant, assistance received through legal aid services in a prior child support case helped him better understand the paperwork required in a more recent family case. Another participant expressed the following perspective: “My first divorce, that’s really what gave me the impression that this wasn’t that difficult, and that if you just kind of did some research, you could figure it out.”65 For one interviewee, now a Ph.D. in public health, prior employment in the court system was influential: “It was sort of demystified for me that I worked with judges, and so I respected their authority but they didn’t intimidate me. I think all of that was kind of part of what made me feel like I could represent myself.”66 Another reported that professional experience in law offices contributed to his familiarity with the process and comfort navigating it without an attorney.

Level of Education and Professional Experience Education and professional experience also came into play during several participants’ comments on their confidence in their ability to self-represent. The majority (78%) of self-represented litigant study participants had at least some college study, with 41% holding a degree (29% undergraduate and 12% graduate). As stated by an interviewee with a bachelor’s degree in nursing, “I really feel like because of my education level, that had a lot of influence on my ability to get through the paperwork and kind of understand it.”67 This individual envisioned how “somebody with a lower education level would possibly be confused by the questions [in the paperwork] or the whole process, mainly because it is very overwhelming and parts of it can be really confusing if you’re not able to…get the gist of what they’re talking about.”68 Another self-represented litigant, a student close to earning an undergraduate degree, explained, “I’m used to trying to research things very intensively, find accurate and reliable information, just being resourceful…how to ask the right questions to the right people. I’m an educated person. I’ve kind of been through it, and it was all of that that really helped me in the end.”69 One participant—employed in the business and consulting industry—was able to leverage his day-to-day analysis and presentation experience during the court process: “I also present all the time. I present my work, my knowledge, my logic, and what the expected outcome is. And because I can do that, it served me when I was in court.”70 “I’m professionally 62 FCS7. 63

Id.

64 MCS5. 65 M10. 66 M8. 67 L53. 68

Id.

69 M6. 70 F13.


18 educated and spent ten years in the professional world,” said another, who relied on professional experience reviewing legal paperwork to navigate her family case.71 Likewise, an office manager cited his extensive experience in the office environment, remarking: “Certainly, I’m not afraid of paperwork and the process of keeping track of all that sort of thing, which, I think, in a large part is easily half of the battle.”72

Preference

for

Handling

the

Matter

without an

Attorney

For the most part, CWC participants did not wish to represent themselves, and in fact, would have welcomed the involvement of an attorney. Nevertheless, just under one-quarter of self-represented litigant participants expressed a preference to handle the matter without attorney representation. In other words, regardless of whether they felt they could represent themselves, they felt as if they wanted to represent themselves. The underlying sentiments driving litigants’ preference to self-represent included the relationship between the parties, agreement between the parties, a desire to retain control, and a do-it-yourself mentality.

Relationship Between Parties Many interviewees discussed the amicable nature of their relationship with the other party—or the desire to achieve an amicable relationship—in relation to a preference for proceeding without representation. “The whole point of trying to do it without an attorney was to…come to an agreement jointly,” said one participant, “so that…we would be able to communicate regarding kid matters.”73 This individual goes on to explain: “I didn’t want to ruin the relationship…or what was left of it, so the decision to file [without an attorney] was mostly so that we could maintain a good relationship.74 For some participants, refraining from seeking representation in order to maintain a positive relationship was a joint decision with the other party. “My ex-husband and I, we decided to do this,” explained one individual: He had gone through the courts before, and he was familiar with how ugly things could get, and neither of us felt that. And so, we thought, why even open the can of worms? We don’t want to be influenced to the point where somebody says, ‘No, you need to get this.’ We didn’t want that. We wanted to keep it as honorable as possible.75 With respect to his relationship with the other party, another participant remarked: “The foundation is we both have a history of working together to solve problems.…That really created an environment of ‘how do we do this together,’ as opposed to sitting on opposite sides of a legal argument.”76 “We were actually still pretty close when we started the process,” said a third individual, “so we didn’t want it to be messy, and we didn’t want other people controlling our fate.”77 Another participant’s intention with proceeding without an attorney was to be as “agreeable as possible” without putting herself at a financial disadvantage. “Getting my own attorney was Plan B,” she noted, “but Plan A was seeing if my exhusband and I could work through it amicably first.”78 Other litigants pursued self-representation in response to the other side not having an attorney. “The other party kept insisting that we not get attorneys, and that it might be easier, it might be cheaper if we didn’t get attorneys,” explained 71 D26. 72 L35. 73 L17. 74

Id.

75 L42. 76 L4. 77 L15. 78 L58.


19 one litigant. This individual went along with the suggestion in hopes that “maybe if I cooperated we could solve it, get something out of the whole thing—friendship or at least try to divide things equally, where we walk away with some respect.”79 One litigant felt “fairly confident” that her ex-husband would not pursue legal help. She noted, however: “I think I would have been more inclined to get legal help if he had—I probably would have sought out a lawyer.”80 Court participants also touched on the idea that parties who got along or were in agreement on issues may prefer to proceed without an attorney. In one judge participant’s perspective, “people who are getting along well don’t need attorneys because they can work out the agreement.”81 A court staff participant opined: “Especially if you have an amicable split—those are usually going to be the ones that are like ‘we can do this on our own.’”82 Another court staff interviewee offered the following perspective: “Even those that do have assets and debts that need to be divided, a lot of them, I think, are used to working it out so they don’t need an attorney for that.”83

Agreement with Other Party Reached or Anticipated Relatedly, a few self-represented litigants simply preferred to handle the matter themselves based on the fact that an agreement had been reached—or the belief that an agreement could be reached—with the other party without the assistance of an attorney. To put these comments into context, approximately 42% of all self-represented litigant participants reported having reached some degree of agreement with the opposing party either before or during the court process.84 “We just were in 100% agreement on everything,” said one participant. “There was no reason to have an attorney.”85 Another individual explained, “It seemed like if we could come to agreement then there was kind of a path laid out that [the other party] could follow to file the divorce, and you didn’t have to use an attorney. That seemed a lot more reasonable cost wise.”86 Similarly, a participant described how she and the other party “didn’t want to be trying to finance a lawyer when we thought that we could agree on most everything ourselves.”87

Desire to Retain Control over Case A few participants referenced a desire to have control over the case, for a variety of reasons. According to one litigant, “I didn’t want my case kind of being taken over by somebody who maybe didn’t quite understand where I wanted to be and where I wanted to go with it.”88 Another simply stated: “I felt like I wanted the control.”89 “It felt really important to me,” said yet another, “so I don’t know that I would have felt comfortable just handing it over and expecting someone to know exactly what I wanted in every nuance of it.”90 A litigant commented, “By the time I hired the private attorney, I was two and a half years into my fight and I had so much mud in the water, so to speak, that it was hard for [my attorney] to

79 L29. 80 M22. 81 LCS4. 82 LCS12. 83 LCS6. 84 It should be noted that not all of these agreements necessarily held up through to the end of the court process. Further, a majority of participants (58%) indicated that no agreement was reached before the case concluded. 85 L40. 86 L22. 87 L25. 88 L17. 89 L51. 90 M14.


20 decipher it, and that’s when I decided the best person to tell my story to the judge is me.”91 Echoing this sentiment, another interviewee explained, “I feel like even if I was represented by an attorney, no one—not even an attorney—could explain it or tell it how I would, how I was able to tell the judge.”92 One individual—driven by prior experience with an attorney in a family law case—expressed: “You’ve got to have the power over your own case. You’ve got to be the person telling the story, because an attorney won’t—and, in all fairness, can’t—represent you entirely the way you would like to be represented.”93 Expanding on this perspective, the participant discussed the unique nature of a family case. “[E]ven if you have an attorney that’s really trying to do their best for you,” he said, “they can’t know every detail of your situation. Family matters are years in the building… How can any attorney be expected to know and understand so many years of interaction?”94

Do-it-Yourself Mentality Following from the litigant participants’ comments on the desire to retain control and speak for themselves, court professionals (many of whom were concentrated in Franklin County) commonly cited a do-it-yourself mentality as being influential for litigants. Describing these “do-it-yourselfers,” one court staff participant explained: “People who are used to handling things themselves, they really see this as another thing you do yourself. If you need a new shed, you build your new shed. If you need to change your child support order, you do it yourself.”95 This individual goes on to note a new culture: “I’ve especially seen it with a new generation of people in their thirties…They read on the internet, they understand things, they’re pretty well-prepared usually.”96 Another professional made a similar comment but related it to a more traditional mentality: “There are people out here who just want to do things on their own, and they get really, really mad if someone brings them into court and tries to air their laundry. And they’re not going to put one penny towards an attorney…There’s an old-time culture of taking care of business by yourself.”97 Citing the impact of technology on self-represented litigants’ assessment of their ability to represent themselves, one judge participant described seeing a “Home Depot” mentality. Said this individual, “It’s just sort of an evolving emphasis on self-sufficiency and self-involvement, I think, that coupled with technology makes people think [self-representation is] a good starting place.”98 This interviewee went on to suggest, “I think younger people in particular, they’re used to getting information quickly online in chunks and that’s their expectation for the court. And the court’s been slow—really slow— in responding.”99 Relatedly, one court staff participant offered the following perspective: “I think with the internet, TV, all of those media kind of public viewing sites…I do think the perception has definitely shifted to, ‘yeah, I can do this.’”100

91 D8. 92 D3. 93 M6. 94

Id.

95 FCS1. 96

Id.

97 FCS7. 98 MCS2. 99

Id.

100 FCS8.


21

Experience

with and

Perceptions

of

Attorneys/Attorney Involvement

About 20% of self-represented litigant participants indicated that prior experiences with or perceptions of attorneys influenced their decision about hiring a lawyer in their family case. Approximately half of participants who were asked reported that they had retained a lawyer in the past—that is, before the case at issue in the study. Other participants’ remarks suggested that dissatisfaction with attorney involvement in the subject family case influenced the decision to selfrepresent. The comments generally fall into one of two categories: a sense that the attorney either increased conflict and animosity between the parties or did not bring value to the process. One litigant recounted her experience with an attorney in an earlier divorce: Our two attorneys set the whole thing up and they kept us angry at each other. They would refuse to address critical things that were causing a lot of strife between us because they knew that the more they could keep us not communicating, the more they could be in control of the situation. So seeing that has really ruffled my feathers, and I will never, ever, ever again let an attorney have full rein in my case.101 Likewise, a participant who had previously been divorced remembered that the attorneys involved in the prior case “wanted us to pit ourselves against each other, and that’s not what it was about.”102 This experience turned him off to the idea of hiring an attorney in his more recent family case. A couple of participants expressed similar sentiment in relation to why they did not continue with their attorneys in the case at hand: • “I just wanted an amicable separation and ending of the relationship, and so did my ex-husband. We didn’t want to go through litigation; we just wanted to decide to do it a certain way and then have the process go through as easily and quickly as possible. I didn’t like that the attorney was very aggressive.”103 • “[T]here was just basically a kind of tit-for-tat between the two attorneys, my representative and my ex’s attorney on the most insignificant factors…and I just found that that was such an inefficient use of limited resources.”104 With respect to the value proposition, one participant found an attorney in a prior divorce to be of very little help. “I decided this time when I filed,” said the interviewee, “to not go that route and pay for somebody who wasn’t going to be helpful.”105 This feeling was echoed by a handful of litigants in discussing why they decided to self-represent after having an attorney in the case at issue: • “I just felt like I wasn’t getting my money’s worth…she wasn’t doing a whole lot.”106 • “I was doing all the work for him and paying him.”107 • “The lawyer…didn’t listen to me and didn’t understand what I was saying. I felt like I was much more in charge of the situation than [my attorney] would be even if she had had the time and desire to actually listen to the facts of the matter.”108

101 M6. 102 L52. 103 D20. 104 F13. 105 L13. 106 M15. 107 L10. 108 F12.


22 For a few self-represented litigant participants, perceptions of—as opposed to actual experience with—attorneys influenced their decision concerning self-representation. One interviewee felt “there was absolutely no reason to have a lawyer; it just adds more complication to the process.”109 Participants also connected attorney involvement to perceptions of increased levels of acrimony and related concepts, discussed above. Court participants also talked about the impact of litigants’ perceptions of attorneys, perhaps even to a greater degree than did the self-represented litigants themselves. In one court staff participant’s view, “A lot of people have very negative views of attorneys, and there are some bad attorneys out there, so I don’t blame them.”110 Another court interviewee suggested: I think that there’s a perception that lawyers are going to make people more angry with each other and cause it to be a bigger fight over things. So, that’s a matter of perception about what lawyers do—people don’t seem to understand that lawyers can negotiate on their behalf; that it’s not all about litigation.111

Reflections

on

Motivations

Financial issues—especially those related to affordability—were the most commonly referenced factor driving Cases Without Counsel litigant participants to represent themselves, even if other considerations also played a role. These findings are consistent with that of the Macfarlane study, which found that “[b]y far, the most consistently cited reason for self-representation was the inability to afford to retain, or to continue to retain, legal counsel.”112 This is all the more striking in light of Macfarlane’s observation that “Some people are uncomfortable acknowledging a lack of financial resources, for obvious reasons.”113 The Canadian study respondents also touched on similar nuances as did CWC respondents with respect to financial motivators, discussing exhaustion of financial resources, frustration with the dearth of affordable services, difficultly maintaining representation, and related themes.114 Additionally, the CWC findings are largely consistent with volumes of research coalescing around the now well-known national reality that litigants, especially those in family court, often cannot meet the high fees set by private attorneys. The cost of representation in a family case is difficult to assess, particularly with all of the variables that may play into the final tally. However, estimating a low hourly fee of $100,115 it is easy to imagine the monthly and cumulative burden that legal fees would place on a litigant earning $1,666 a month pre-tax ($20,000 annually)—particularly for divorce and separation litigants whose case type implies a change in financial circumstances and who often have children. Indeed, 43% of CWC study participants reported earning less than $20,000 per year, despite the fact that about 80% of participants had more than a high school education.

109 L40. 110 LCS8. 111 FCS1. 112 More than 90% of the Canadian study sample referred to financial reasons. Macfarlane, supra note 7, at 39. 113 Id. 114 Id. at 39-44. 115 A recent effort to gauge the cost of divorce across the states suggested that the average hourly attorney fee is $260 in Oregon, $230 in Colorado, $200 in Massachusetts, and $304 in Tennessee. Elyssa Kirkham, The Best and Worst States to Get a Low-Cost Divorce, MSN.com (Feb. 3, 2016), http://www.msn.com/en-us/money/everydaymoney/the-best-and-worst-states-to-get-a-low-costdivorce/ss-BBp3Rb5. In California, the average family law attorney charges approximately $300 or more an hour, with retainer requirements of approximately $5,000. Bonnie Hough, Self-Represented Litigants in Family Law: The Response of California’s Courts, 1 Cal. L. Rev. 15, 16 (2010), available at http://www.courts.ca.gov/documents/01_15_Hough.pdf.


23 Furthermore, the 2008 financial crisis affected an estimated 40% of American households.116 An American Bar Association survey of judges, administered in late 2009, found that 60% of respondents reported an increase in selfrepresentation immediately after the recession, and 49% reported an increase in domestic relations case filings.117 The effects of the recession were widespread, substantially affecting employment and retirement for millions of Americans.118 Some commentators have cited changes in consumer spending patterns post-recession,119 suggesting a focus on saving that perhaps influences litigants’ thinking with respect to legal services expenditures. One CWC participant commented: “I’m saving myself a lot of money that I don’t have.”120 Indeed, as in the CWC study, court professionals who took part in the Macfarlane study “emphasized that if they needed to retain counsel they would be in the same position…unable to afford legal counsel.”121 In the context of legal representation, the financial reality for individuals is exacerbated by the limited supply of free and low-cost legal services.122 There were those in the CWC study who indicated representation was not necessarily cost-prohibitive, but who represented themselves in order to preserve or allocate elsewhere financial resources. This theme was also consistent with Macfarlane study findings,123 as she explains: “There is a reluctance to pay rates of $350-400 an hour for work that the client often feels that they have little control over, and no real means of scrutinizing whether they are receiving value-formoney.”124 The intangible nature of legal services and litigant difficulties perceiving the value of such services similarly came through in CWC interviews, with one court staff respondent suggesting litigants “want to know, if they’re going to spend X number of dollars, what are they going to get for that?”125 He went on to explain: “You pay the plumber, you pay the guy to shovel the snow, to fix your roof, but that’s the tangible thing. You see what you get.” Predictability—or lack thereof—also plays into this conversation. Referencing an example put forth by a CWC court professional, a criminal defense attorney can sit down with a third-offense DUI client and predict the sentence with some degree of certainty, whereas a family lawyer has far less ability to predict outcomes in a divorce or separation case.

116 Michael D. Hurd & Susann Rohwedder, Effects of the Financial Crisis and Great Recession on American Households 21 (Nat’l Bureau of Econ. Research, Working Paper No. 16407, 2010), available at http://www.nber.org/papers/w16407.pdf. 117 Linda Klein, ABA Coalition for Justice, Report on the Survey of Judges on the Impact of the Economic Downturn on Representation in the Courts (Preliminary) 2-3 (July 12, 2010), available at http://www.americanbar.org/content/dam/ aba/migrated/JusticeCenter/PublicDocuments/CoalitionforJusticeSurveyReport.authcheckdam.pdf . 118 See Hurd & Rohwedder, supra note 119, at 2. See, e.g., Kathleen Madigan, Post-Recession, Have U.S. Consumers Abandoned Their ‘Shop ‘Til You Drop’ Mentality?, Wall St. J. 119 (Apr. 14, 2015, 3:58 PM), http://blogs.wsj.com/economics/2015/04/14/post-recession-have-u-s-consumers-abandoned-theirshop-til-you-drop-mentality; Jeff Guo, These charts show just how historically bad the recession was for U.S. consumers, Wash. Post (Oct. 3, 2014), https://www.washingtonpost.com/news/storyline/wp/2014/10/03/these-charts-show-just-how-historically-badthe-recession-was-for-u-s-consumers/. 120 L20. 121 Macfarlane, supra note 7, at 40. 122 According to Legal Services Corporation, the largest funder of civil legal aid in the country, “The demand for legal aid far outstrips the resources available….Recent studies indicated that legal aid offices turn away 50 percent or more of those seeking help. The size of the population eligible for legal assistance has increased dramatically from 2007.” About LSC—Who We Are, Legal Serv. Corp., http://www.lsc.gov/about-lsc/who-we-are (last visited April 5, 2016). 123 Macfarlane, supra note 7, at 40-41. 124 Id. at 40. 125 FCS5.


24 While financial motivators for self-representation predominated among litigant respondents, the CWC study illustrated that it is a multifaceted decision. For example, self-represented litigant respondents sometimes indicated a desire to represent themselves or confidence in their ability to represent themselves in conjunction with financial motivators. Participants in the Cases Without Counsel study discussed financial issues in a fashion similar to Macfarlane’s Canadian self-represented litigants: “While cost was clearly a major factor in self-representation for almost every respondent, many [self-represented litigants] were explicit about their inability to pay for legal counsel, while others were more circumspect and advanced a range of blended reasons for self-representation of which money was just one.”126 The CWC interviews—of both litigants and court professionals—suggest that a litigant’s perception of case complexity influences his or her confidence in navigating the system without an attorney, with higher levels of confidence for simpler cases. Of those CWC litigant interviews in which case complexity was discussed,127 80% reported that this influenced their decision to proceed without an attorney. This issue has been discussed elsewhere in the research and literature on self-representation.128 Broadly speaking, high numbers (approximately 60%) of CWC litigant participants expressed a positive assessment of their ability to represent themselves at the outset of the case, with many specifically citing familiarity with the process, level of education, or professional experience as factors in that assessment. The Macfarlane study similarly found that confidence in ability “was often associated with prior experiences that the individual believed equipped them well for tackling a court procedure.”129 Additionally, among those respondents, “the largest group expressing initial confidence had university degrees[.]”130 Indeed, CWC participants with graduate degrees expressed confidence in their abilities at a rate of about 80%. It is worth noting that only 10% of participants in Macfarlane’s study expressed “confidence from the outset that they could handle their case themselves.”131 As described above, much higher numbers of CWC litigant participants indicated they felt confident in their abilities, at least at the outset. The reason for this difference is not clear, but it is one of only a few areas of divergence.132 Though not specifically asked, some CWC participants described how the assessment of their ability changed over time. While there were participants whose confidence increased over the course of the case simply by virtue of increasing familiarity with the court process, the general sentiment among CWC participants addressing this issue was one of becoming deflated, which broadly aligns with Macfarlane’s finding that some self-represented litigants “began with a sense of confidence, which usually drained away quickly when faced with the reality of the court process.”133

126 Macfarlane, supra note 7, at 39. 127 Case complexity was discussed in 49% of all CWC litigant interviews. 128 See, e.g., Bonnie Rose Hough & Laurie D. Zelon, Self-Represented Litigants: Challenges and Opportunities for Access to Justice, 47 Judges J. 30 (2008). 129 Macfarlane, supra note 7, at 48. 130 Id. at 50. 131 Id. at 48. 132 It is important to note that neither interview protocol contained a direct prompt to inquire about levels of confidence; rather, the discussions concerning confidence arose naturally from the questions on motivations and expectations. See infra app. C and Macfarlane, supra note 7, app. E at 133-34. 133 Id. at 50.


25 As discussed above, CWC study participants generally did not prefer to handle their case without an attorney—a perspective shared even by many of those who felt confident in their ability to self-represent. It seems that higher numbers of Macfarlane study respondents “expressed a personal determination to take their matter forward themselves” than did CWC litigant participants, with some becoming increasingly resolute as the case progressed.134 Still, there was a group of CWC litigant participants who did express a desire to represent themselves. Further, a desire to maintain or facilitate an amicable relationship with the other party seemed to be influential for those with a preference to self-represent. In other words, the perception for these individuals was that involving an attorney would work counter to the goal of maintaining amicability. Certainly, some CWC participants explicitly articulated this belief; others simply implied it by virtue of connecting their decision to self-represent with the goal of maintaining an amicable relationship. CWC participants who commented negatively on experiences with attorneys or perceptions of attorneys gave explanations that were consistent with Macfarlane’s findings, detailing feelings that counsel “did nothing,” made mistakes or was otherwise incompetent, or did not listen or communicate.135 While it is not possible to substantiate respondent claims related to attorney competence, lack of or inadequate communication between clients and counsel featured throughout the stories of those with negative perceptions, potentially indicating that the litigant did not know or sufficiently understand what the attorney was doing, which in turn fostered sentiments of attorney laziness or incompetence. Though some participants recounted negative perceptions of or experiences with attorneys, most would have welcomed an attorney’s assistance for parts of or the whole case. As noted above, the desire for legal advice or representation was substantial among CWC litigant participants, with more than 85% of those commenting on the issue expressing a desire for such legal assistance. Taken together, the Cases Without Counsel narratives on factors influencing self-representation suggest that study participants did not so much leave attorneys out of the family court process; rather, attorneys effectively removed themselves by pricing services out of the reach of these litigants. Additionally, for the small but definitive subgroup of respondents for whom this was not the case, the benefits that an attorney might bring to the table were outweighed by the questionable impact (perceived or real) that attorney involvement might have on the case. This suggests opportunities for the private bar and public legal service providers for delivering, messaging, and marketing legal representation.

134 Approximately one in five Canadian study participants expressed this view. Among most of these individuals, Macfarlane notes that “a common rationalization was that no lawyer could possibly understand the case, and what it meant to them, as well as they did themselves.” Id. at 49. Among CWC litigant participants, only a few came to this conclusion—the bulk expressing a preference for handling the matter cited issues pertaining to the other party. 135 Id. at 44-48.


26

PART THREE EXPERIENCES NAVIGATING THE PROCESS An express goal of the Cases Without Counsel study was to give self-represented litigants the opportunity to detail their experiences in making their way through the family court process. This section presents consistent themes that emerged across jurisdictions concerning litigant approaches and strategies in bringing their cases to resolution. Specifically, interviews discussed sources of help and guidance; the opaque nature of the legal process; difficulties completing and filing paperwork; and facing in-court appearances. The types and availability of resources vary from jurisdiction to jurisdiction, and this report does not address the resources specific to each jurisdiction.136 Rather, the consistent information presented here can help ensure that the dialogue on self-represented litigant resources includes the perspective of litigants, as well as court staff and judges.

Preparing

and

Seeking Sources

of

Advice, Information,

and

Support

The vast majority of self-represented litigant study participants actively worked to identify resources and conduct research. Over 90% of self-represented litigant participants reported using at least one resource to help them understand and navigate the process; more than 85% leveraged multiple resources. This section discusses common themes related to online resources, in-court resources, legal assistance, and friends and family. With respect to each of these categories, the general sentiment was that—to the extent available—resources were more helpful than unhelpful. However, each category also has important challenges for litigants, outlined below. The underlying challenge for all resources seems to be tailoring general advice to a specific situation.

Online Resources The internet—including both court-affiliated and independent websites—was the most utilized source of information for litigant participants, with almost three-quarters reporting seeking help online. Study participants spoke of accessing forms online where available,137 in addition to researching substantive legal issues and obtaining guidance on the family court process. Just over two thirds of all study participants indicated that online resources were helpful. “Online is by far the easiest today,” said one individual, who conducted the bulk of her research using online sources.138 Another described: “The county, I believe—or maybe it’s the state bar—has all the documents online with instructions, and I can’t tell you how valuable that was as a resource. It was pretty amazing, and I don’t think most people know that it exists.”139 For a few, internet search engines were the best resource they encountered during the process. When asked, one participant responded, “Google. I mean, I went online and I looked up [the state’s] laws for child support and I downloaded the handbook. And I read it cover to cover.”140 This was especially true for the internet-savvy: “You can do it online. You can find out anything online.”141 136 Though not relevant to the aims of this broad report, IAALS will provide each jurisdiction with a report detailing findings on relevant resources. 137 In the Davidson County Circuit Court, forms are available to self-represented litigants only for couples who have no dependent children, land, businesses, or retirement benefits and are in agreement on the division of property and debt (“Agreed Divorce”). Court-Approved Divorce Forms-Instructions to Divorce Forms, Tenn. St. Cts., http://www.tncourts.gov/sites/default/files/docs/ agreed_divorce_instructions_-_march_2012.pdf (last visited April 5, 2016). 138 L1. 139 M10. 140 D25. 141 M15.


27 Nevertheless, while helpful, such resources were not necessarily sufficient. Drawbacks discussed include limited availability of information and difficulty finding the information available (navigability issues). In terms of the former, some litigants did not find online resources to be enough to get them through the process. One study participant explained: “I don’t recall from my situation having internet resources that I could use to help me navigate this on my own.”142 “There’s not as much information on [the court’s] website as I wish there was,” expressed another litigant.143 In terms of navigability, several study participants across jurisdictions commented on difficulties locating the desired forms and information through online sources. Said one self-represented litigant, “It wasn’t self-evident; it wasn’t userfriendly or intuitive in any way to find the forms you were looking for and then to understand which ones you should be using.”144 Another participant noted: “I just think that even the web interface for that could be much simpler.”145 “I did look at them,” one litigant said, referring to the court’s web pages, “but they’re messy…and hard to navigate.”146

Court Staff and In-Court Resources Court clerks, judicial clerks, dedicated self-help center staff, and other in-court resources such as law libraries and informational programs were also commonly accessed sources of information where available. Participants were likely to indicate such in-court resources were useful, particularly in the sense that they found it helpful to work with a live, knowledgeable person and to be able to ask questions specific to their situations. The main referenced challenge centered on court staff erring on the side of caution in walking the line between providing legal information and legal advice. Several self-represented litigant participants reported hearing court staff provide stock responses to the effect of “I cannot give legal advice.” “Even just kind of basic questions I had,” said one self-represented litigant, “they weren’t able to give me assistance because it would be legal advice.”147 According to another participant, “Every time you would try to ask a question, I got told: ‘We can’t give you advice; we can’t help you. Figure it out; look it up.’”148 Yet another noted: “They have this absolute knee jerk, ‘We don’t give legal advice’ response, and so you can’t even ask them ‘Which form do I file first?’…Any question you ask, they say ‘we’re not giving legal advice.’”149 Finally, a study participant offered: “I noticed there were a lot of questions about process.…The people at the courthouse, I didn’t feel like they were skilled at or empowered to answer those types of questions.”150 This highlights a discrepancy in understanding between litigants and court staff concerning what questions can appropriately be answered. Court staff also reflected on the line between legal information and legal advice when litigants seek answers to their questions. There were those who expressed a more withholding attitude: Our number one problem…is [self-represented litigants] want us to tell them what to do, which is a natural – it’s a natural thing. Anytime, if you go to an auto body shop, you want them to tell you what to do. You come to court, I want the clerk’s office to tell me what to do, tell me how to do this. And that is our issue with a lot of it because there is – we can get you there but I can’t tell you the rules of the court. I can’t tell you, you know, when you’re supposed to file something. I can’t tell you the time limits…you have to follow. I can’t tell you all those things, so that to us is the number one issue.151

142 D32. 143 M6. 144 F13. 145 L46. 146 M23. 147 L53. 148 L38. 149 M8. 150 M14. 151 DCS4.


28 And others who reported being more forthcoming: [A former judge] said it was simple. “Never make any statements that involve the word ‘should.’” I think that was borderline brilliant. What you really ought to do, what you should do, no, no, no. Here are three options that seem to fit the scenario that you’re presenting. The strategy that’s involved in doing one of those is the decision you have to make. I think the strategy is one of the things that falls into – I can give you options but I can’t suggest a strategy.152 Attitudes and understandings were found to vary not only from individual to individual but also based on court culture.153 However, across jurisdictions, the tension is certainly real. As one court staff participant framed the issue: “The biggest problem [is that] these people have legitimate legal questions that the court can’t answer.”154 Briefly, it should also be noted that there were study participants who did not have knowledge of some of the in-court resources available, even after their case had concluded.

Legal Advice and Representation About half of study participants reported that they had experience working with an attorney in their case, whether through formal representation for some of the case or interaction with an attorney in their family case short of securing representation. Among these participants, negative experiences outnumbered the positive. Litigants who described negative interactions with their attorneys focused on feelings of being treated poorly, perceptions that the attorney did not add value to the process, questions about competency and ability, and difficulty with attorney fees. To illustrate: • “[H]e was a jerk, you know? And I, even at the end when I got the $9,000 bill, I was just like, ‘If I would’ve known I was paying you this much, I never would’ve let you yell at me.’”155 • “I think [my lawyer] is a travesty to the attorneys that actually do work.…I paid too much money for somebody to just leave me high and dry.”156 • “I gave her a $3,000 retainer fee and she billed – my bill right now stands at just under $12,000 for two days in court, most of it was paperwork and she was pretty much ripping me off.”157 • “I thought [things submitted to prove the case] could have been helpful, why are we not using these things?...[A]nd then there was information that was submitted that wasn’t accurate.”158 Litigants detailing positive experiences with attorneys touched on the benefits of having representation from a substantive and procedural standpoint, but also in terms of having assurance and emotional support. One litigant participant, who hired an attorney after being self-represented, described having representation as a “huge stress relief,” explaining: “I can call my attorney and if I have a question on anything that I might not know the answer to or might be a little insecure about…she’ll walk me through the process, and I’ll be taken care of right.”159 Another, who obtained representation for the 152 FCS3. 153 For example, Larimer County is subject to a Chief Justice Directive encouraging the provision of assistance to self-represented litigants and specifically outlining what constitutes acceptable and prohibited conduct. This document also provides educational information to litigants concerning what kinds of questions they can expect to have answered. Colo. C. J. Directive 13-01 (June 12, 2013), available at https://www.courts.state.co.us/Courts/Supreme_Court/Directives/13-01.pdf. In contrast, the Davidson County Juvenile Court has a disclaimer for self-represented litigants affirming an understanding that any questions are best directed to an attorney. Pro Se Disclaimer, Juv. Ct. Clerk, Metro. Nashville & Davidson County (2014), available at http:// juvenilecourtclerk.nashville.gov/wp-content/uploads/2014/10/ProSe-Disclaimer.pdf). 154 LCS10. 155 M25. 156 D13. 157 F4. 158 L35. 159 D5.


29 final three months of the case, described his attorney as a “voice of reason” and a “buffer,” providing the right amount of information to make informed decisions but not burdening him with all of the details when he was “in a fog.”160 Some study participants beyond those who were formally represented in their case reported having received legal advice. The most common strategy participants cited for obtaining legal advice was taking advantage of initial or periodic consultations—whether free or paid. Participants described using consultations for guidance, strategy, and document review, suggesting some creativity in exploring non-traditional means of securing legal services. Most of those employing this approach found consultation(s) to be useful—for a few litigants, the limited advice was just what the participant needed to move forward on his or her own. Of his multiple consultations, one participant remarked: “I think the amount of lawyer help that I had was kind of perfect.”161 Another self-represented litigant, who kept some funds on file with an attorney and consulted periodically throughout her family case, noted “It was really, really, really comforting to me—I don’t think I could have done it myself without having access to that guidance.”162 This data highlights that litigants perceive legal advice—at any level—to be emotionally supportive, helping them to navigate the process with less stress. Very few self-represented litigant study participants reported receiving legal advice or representation through legal aid services, free or reduced-cost representation by a private attorney, or law school clinics. Many who attempted to access these resources could not, due to issues of ineligibility or unavailability. • “I applied for legal aid to the point where they knew me on a first name basis, and they denied me every time.…They didn’t have the staff or the time.”163 • “The local Legal Aid Society only did divorces where there was physical abuse involved.”164 • “[The opposing party] actually had a legal aid lawyer, so I couldn’t even apply because of conflict of interest.”165 • “I called legal aid here and they couldn’t represent me—ever—because they represented my ex-wife in the divorce. So, I just had to do it by myself.”166 • “I’ve tried plenty of times to find a pro bono attorney and I keep getting told I make too much money.”167 • “Most of [the attorneys] had said that they don’t deal with child custody issues, so it was kind of hard to find a free attorney.”168 • “I keep trying to go back to [the law clinic] but they are full—they’re not taking on any more cases now.”169

Friends and Family Another resource participants discussed was friends and family. These litigants reported seeking either legal guidance or in-person emotional support at the courthouse from these individuals. Litigant interviewees sought help from friends and family members with various levels of experience, including divorce attorneys, others who had been through the family court process, and those with no legal experience. There were mixed— if not predominantly negative—reviews on the legal advice provided by friends and family. Nevertheless, some found 160 L29. 161 M16. 162 M14. 163 L19. 164 D14. 165 M26. 166 M30. 167 D2. 168 D12. 169 D2.


30 receiving help with paperwork to be useful. Those who commented on the helpfulness of having friends and family for emotional support largely reported positive experiences. According to one participant, who brought his fiancée to the courthouse, “it keeps you at an even keel where you’re not too antsy or anticipating too much, or [too] emotional.”170 “I did find it helpful,” said another study participant, “very helpful, for the support and knowing that I’m not going there alone and trying to understand the situation alone.”171 Yet another interviewee recounted: “I had a couple friends show up just to give me a little bit of moral support and comfort. Not that they could do anything other than give me a hug, but it was good to have them at least there.”172 Court staff participants, too, referenced the benefits to litigants of having friends and family with them in the courthouse. However, these participants also discussed the challenges associated with the presence of individuals who are not a party to the case. One court staff respondent explained: “We get plenty of cases where people bring their family, their friends. Sometimes it’s a good thing. Every so often, it’s a bad thing because one side is jealous that maybe so-and-so is with the boyfriend that caused their relationship to break up, and now they’re going to sit there and look at that person in court.”173 In another individual’s experience, “sometimes the support person will do more talking than the actual litigant, and we have to quickly tell that person, ‘No.’”174 “I do believe that a lot of people do bring people in because they don’t understand the process,” said a different court staff participant, “but if they are not a party to the case and they are starting to really cause some conflict, I will ask them to please sit down.”175

Understanding

the

Flow

and

Stages

of the

Family Court Process

The interviews suggest that a great many self-represented litigants struggle with understanding how to navigate the process and knowing what to expect at various stages. Said one participant: “The entire process was extremely difficult… But, as far as the actual divorce and trying to navigate through that to even get to a court date and trying to get some kind of resolution that was fair, that was impossible without an attorney.”176 Some described a sense of feeling lost or being in the dark. One participant, citing her lack of understanding around the process as the most stressful part of the court experience, opined: If you were going on a trip, you would get a map and you would know where you were going. You would have a destination. You would know the route you were taking. The most stressful part is that I didn’t really have an understanding of that until almost the end of the process.177 Similarly, another remarked: It felt very much like wandering through a room with no lights on, and you’d bump into something, you’d ask somebody about it, and they’d shine a little flashlight and say, ‘go that way.’…Nobody ever turned the lights on in the whole room to give us an idea of exactly what it should look like and how the process should look.178 170 D13. 171 F7. 172 M6. 173 FCS5. 174 DCS7. 175 LCS11. 176 D32. 177 M14. 178 L4.


31 “You kind of sit in the dark…when you don’t have a lawyer,” explained a participant, “and that’s kind of hard because you don’t really know what’s happening.”179 Litigant study participants also discussed the uncertainty that accompanied this overarching lack of understanding. In the words of one participant, “There were just so many unknowns, just trying to sort through things and read through things on your own—it was incredibly stressful.”180 Another litigant described being anxious that there was something obscure—a form, deadline, or some other expectation about which she had no knowledge or way of knowing—that would impact the flow or outcome of her case. Similarly, for one participant, the uncertainty he experienced in his divorce case became all-consuming: Just wondering if you’re doing everything right and being meticulous enough…Is there another step that I should be taking? Is there a motion I could be putting in that would allow them to not do this? Is there something I could be doing…it’s the predominating thought in your mind…everything else in your life becomes a momentary distraction.181 “I have a Master’s Degree—technical stuff I can usually navigate,” another participant explained, “but it was very nervewracking because this is a really important situation. You want to do it right, you don’t want to get yourself in trouble, and you don’t want to get in trouble with the court.”182 A few participants discussed how their gaps in understanding of or knowledge about the process impacted their case. For example, describing his experience, one participant recounted: “You make a lot of mistakes—and that’s part of why things have been coming out so wrong, because I made a lot of mistakes. And the court cuts you no slack…it’s to the point where I’m like, ‘I give up my rights’ because it’s so wrong.”183 Another participant remarked, “I told the judge about that, that I was on Social Security for a learning disability, and they still didn’t really care. They still went on. Me having a lawyer would have helped me understand a lot more and possibly get visitations with my daughter.”184 Court staff and judges also commented on frustrations that they perceived to be related to self-represented litigant gaps in understanding of and expectations about the process. From the perspective of one court staff participant, “a lot of the frustration is that…they’ve done step one, they’ve done step two, and didn’t know there was a step three.”185 Another court staff participant suggested: “They want to know everything that’s going to happen as soon as they get here, through the whole process, and you can’t possibly give them all that information.”186 This participant highlighted the positive impact of helping self-represented litigants understand the process, to the extent possible: Just like when you go to the doctor and you understand what’s happening. It really just calms everyone down. I’m not saying what’s going to happen—what the judge is going to decide. What I’m saying is, if they understand the procedure, it makes more sense and they kind of just settle down.187 A few litigants raised the issue that legal terms and sophisticated technical language contributed to gaps in their understanding and expectations of the process. From one self-represented participant’s perspective, “The whole system 179 D30. 180 L39. 181 F1. 182 L22. 183 L19. 184 F7. 185 D8. 186 FCS4. 187 Id.


32 is really such an intellectualized system that it is very difficult to get it without having studied it. It really is like speaking another language.”188 Another explained: Lawyers have written the documents…so they know the verbiage and they know what this is for and what that’s for. But, for me to try to read through all of that and then actually comprehend what is going on, it may take me hours and I may not even get it because I don’t have the training.189 In discussing the esoteric legal terminology encountered in the process, another interviewee suggested: “It’s almost like a self-enforcing economy—you write laws in a language that the average person can’t understand and then you have to pay for someone to interpret those for you.”190 “Even if you were a high school graduate or perhaps even a college graduate,” suggested a court staff participant, “if you’ve never had contact with a court system before, there’s a whole world of terminology that people aren’t familiar with, and it makes it really difficult.”191

Completing Forms, Filings,

and

Other Paperwork

Another common thread appearing throughout many litigant interviews was difficulty with forms, filings, and other paperwork required in their family court case: • “I didn’t know anything about the paperwork.”192 • “The stack of paperwork that you get and trying to get everything together is a little overwhelming.”193 • “In the middle of it, you kind of feel like you’re just drowning in paperwork.”194 • “Just trying to accumulate the right documentation was stressful.”195 • “The hardest thing, the most time-consuming, was those forms.”196 • “The amount of paperwork, the format that they want things written in and the amount of things that have to be notarized is insane.”197 • “I think the most difficult were the forms—they just went on and on and on.”198 • “It sure is a lot of paperwork…It’s so easy to get married—it takes one signature on a little piece of paper— and to get divorced is so hard.”199 Delving deeper into litigant challenges related to case paperwork, self-represented litigants commonly cited difficulty understanding how to fill out forms, making the point that form availability is important but not sufficient. “I think, honestly, the most intimidating part of the process,” one participant explained, “was the paperwork and trying to understand what information was required.”200 This individual went on to note that it is not a matter of being educated:

188 M16. 189 D13. 190 L46. 191 FCS2. 192 D5. 193 L24. 194 L39. 195 M5. 196 L42. 197 M12. 198 L42. 199 L25. 200 L17.


33 “I have a graduate degree…and even for me, it was very, very challenging.” Furthermore, those who identified a portion of the process for which attorney assistance would have been particularly desirable frequently mentioned completing and filing documents and forms. Agreeing that the paperwork was “stressful,” another participant recounted, “I had to submit income statements and also the documentation for child custody. And I wish I had an attorney there to explain all of it.”201 Whether because they made mistakes, omitted necessary information, or submitted the wrong form altogether, several self-represented litigant interviewees reported having their paperwork returned, sometimes cycling through several iterations before the court accepted the forms. One participant remembered: “[T]he mistakes I made partway through the process made me have to resubmit and re-document, and delay things.”202 Understanding the reasons for the rejection and/or how to cure errors was not always apparent. A few litigant participants commented that the court did not always adhere to expectations concerning documentation. One described having spent “a ridiculous amount of time filling out paperwork and putting documents together, and then when it came to ultimately filing those things, they weren’t even considered, or accepted, or filed at all.”203 Another noted that “it was difficult to discern what the court wanted, and we wound up filling out quite a bit of paperwork that wasn’t used because the website indicated that we would need it.”204 Judge and court staff participants similarly suggested that forms, paperwork, and other court documents were a substantial source of frustration for self-represented litigants, largely mirroring the themes litigant interviewees reported. Said one court staff participant, “The forms are too technical; the instructions…[are] as clear as they can be, but they’re legal forms. Attorneys go to school and learn all of this legal stuff, and you have a party that’s coming in with maybe a high school education at best trying to do these forms.”205 “They do get a little frustrated,” said a court clerk, “because they may have to come several times or redo a document.”206 As would be expected, this individual noted, this situation happens for self-represented litigants “more than if someone’s represented by counsel—they’re not going to have to go through that.” With respect to the frequency with which some self-represented litigants’ paperwork is returned, one court clerk explained: “It’s rare that they get the forms correct on the first go around, and often they’re still not correct on the fourth or fifth go around—and that becomes very frustrating for them.”207 Another described sitting with self-represented litigants in the hall and going through forms to identify errors. “Many times,” said this individual, “they have to go right back down to the clerk’s office and start fresh.”208 The overlap between the litigant and court participant comments on this subject paint a picture of inefficiencies in rounds of filing, review, rejection, and return.

201 L60. 202 L59. 203 L41. 204 M5. 205 MCS8. 206 DCS12. 207 MCS5. 208 DCS15.


34

Preparing

for

Trial

and

Participating

in

Hearings

Of the litigant participants who reported their case was completed, just under half of were unable to reach any degree of agreement in their case, indicating that the issue(s) in dispute were resolved in court. Though the interviews did not always directly address whether the litigant had participated in court hearings, many interviewees indicated having done so. Litigant comments surrounding court appearances demonstrate that participants often found this aspect of the process to be difficult and a source of frustration. Knowing what to expect in court—or what was expected of them in court—was problematic for some litigants. One study participant explained: “I wasn’t sure if I would be asked questions about the reasons for divorce, or if I would be having to defend myself on any point.”209 Another participant described: “When I was summoned, there was no breakdown of what I needed to bring to court.” He went on to explain that when the court date arrived, “There were a few things that I didn’t have that I needed.…And then I went from there, because they obviously gave me an idea of what I needed at that point.” A third questioned: “How can I be prepared? What kind of questions are you going to ask me? What kind of stuff should I bring? What kind of proof do I need? You don’t really know any of that stuff going into it.”210 One interviewee remembered struggling to identify and present relevant evidence: “I felt like I needed to have a lawyer’s level of knowledge to know what to expect.”211 Some litigants specifically discussed difficulties associated with introducing and presenting evidence. Recalling her experience amassing trial exhibits, one participant remarked: “I had to know what wording to use, why [it was] relevant to the case, and then present the evidence. So, that was very difficult, very frustrating, mainly because I didn’t know what to expect or what I needed to have for that.”212 Another participant described the court as “a very structured environment that is not layperson-friendly.”213 This individual suggested that an “attorney’s support there would have taken away a lot of the anxiety I was feeling, just making sure that I wasn’t going to get knocked out of court for having the wrong document.” One self-represented litigant remembered feeling more comfortable after she was four or five exhibits into the trial and had begun figuring out what the judge was looking for on both the process and evidentiary fronts. This individual opined, however, that “somebody with a lower education level would be a lot more intimidated and might not be able to get their point across.”214 She explained that the opposing party in her case had a lower level of education and went on to suggest: “I think to some degree it was to my benefit that they had a lower education because they weren’t able to respond appropriately or understand the process as well as I was.”

209 L33. 210 M13. 211 L53. 212 Id. 213 F13. 214 L53.


35 Judge and court staff participants echoed the stories of many litigant participants, often observing struggles with trial preparation, evidentiary matters, and other courtroom procedures. With respect to evidence, according to one judicial participant, “They don’t know what it is; they don’t know how to present it.”215 “Just the mechanics of presenting evidence, they don’t know,” recounted another, explaining: That’s perfectly logical, I mean, how would they know?…They have a whole course in law school on evidence and still, people are lawyers and they don’t understand… Why should they care about it? They shouldn’t, they’re not lawyers; they don’t care about those things. And they, as human beings, they shouldn’t—but I have to, and that’s my job, and I can’t give up that role.216 Court staff and judicial officers perceived self-represented litigants as struggling with a range of evidentiary-related issues: • Completing and exchanging requisite pretrial disclosures; • Conducting discovery; • Compiling and submitting exhibits; • Identifying relevant evidence; • Entering documents and other materials into evidence; • Distinguishing between relevant and irrelevant evidence; • Remembering to bring admissible evidence to court; • Conducting cross-examination; and • Asserting evidentiary objections. Broadly speaking, one judge suggested: “I think they understand generally what the law is, assuming it’s not something more complicated…but they don’t know properly how to get the case before the court.”217 Several court participants commented on the perceived root of these difficulties. In one participant’s opinion, “The biggest problem that they have is figuring out what they need to say to the court to argue their case.”218 This individual and other court staff described a frequently occurring scene: self-represented litigants having serious difficulty distinguishing between non-legal and legal issues. For example, another court staff participant noted: “It’s the inability to focus on a legal issue that’s before the court that is such a challenge for pro se litigants, because they bring to it a lifetime of issues and problems that they want a solution for.”219 A judge participant remarked: “I know that very frequently people get very frustrated when I’m cutting them off because they’re telling me something I don’t need to know.”220 A court staff participant reported witnessing a similar situation: “When they’re [in court], they couldn’t care less about procedure and rules. All they want to do is get to their story. They don’t understand why sometimes the judge will cut them off when all they’re trying to do is tell their side of the story.”221 This individual suggested that a common litigant reaction to this scenario boils down to the following sentiment: “‘There is no way you’re going to be able to come to a fair conclusion in my case if you don’t hear what I have to say.’”

215 LCS2. 216 LCS1. 217 LCS2. 218 DCS8. 219 FCS6. 220 MCS1. 221 DCS7.


36 Another judge—suggesting that the most common self-represented litigant frustration is “feeling like they didn’t get to tell me about all their feelings”—explained: They want to—and I do let people—vent to some extent. But, there are time limits and relevance issues, and, also, I don’t like to escalate hearings by letting people bring in all sorts of accusations and things…I want people to have a chance to speak and have their story heard, because sometimes just that in itself can make people relax and feel like they got a fair hearing. But I can’t do that; I can’t let them stand up and slander each other, and it’s not productive to do that.222 Judicial participants were specifically asked for their perspective on applying the Rules of Evidence to cases involving self-represented litigants. Only a few reported not encountering challenges. “I don’t have a problem being pretty active with self-represented litigants,” noted one judge participant, explaining, “I think judges err usually the other way; I think judges err by not being active enough. And I think that’s not neutral because that gives one party who’s smarter or savvier or more computer literate a big advantage over another party.”223 However, by approximately three to one, judicial respondents indicated that the rules of evidence can be problematic in cases involving self-represented litigants. This judge goes on to suggest: “I’ve thought sometimes we should just come up with some really simplified way of doing evidence, but that’s not the way our legal system works…it makes things more and more complicated rather than more and more simple usually.”224 Another judge broadly suggested: “You have to bifurcate out two self-represented from one self-represented and one lawyer; you have to differentiate that experience.”225 With respect to those cases in which both parties are self-represented, interviewees described relaxing evidentiary rules and procedures. “If they’re both self-represented,” said a judge participant, “the rules of evidence get real loose simply because the people don’t know when to object to hearsay or anything else, and if somebody’s not objecting, the court’s probably going to let the evidence in.”226 Another noted, “When they’re both self-represented, I probably give them a little more leeway.”227 Some commented on challenges that arise in cases where one litigant is self-represented and the other has an attorney. “What happens at that point,” said one participant, “is that the objections get asserted by the lawyer…on the other hand, the self-represented person doesn’t know to object, and so the lawyer feels free to try to elicit anything that they can get that’s going to help their case which would not otherwise be in. So, that part is very problematic.”228 Another judge described: “[W]hen you have a lawyer, they’ll make all sorts of objections and the other side won’t have a clue as to what objections they could make. And one thing I won’t do is make objections for people.”229

222 LCS3. 223 Id. 224 Id. 225 MCS2. 226 DCS2. 227 LCS4. 228 MCS1. 229 LCS3.


37 Several judge participants acknowledged the natural tension between ensuring a fair process and upholding established rules and standards. One participant, describing the nature of the judicial role during hearings involving self-represented litigants, explained: “[W]hat we’re doing is being sort of mediators/litigators, because we’re asking questions we need to know to make a decision, rather than having other people ask them, so everything gets a little fuzzy and that’s problematic in many respects.”230 Another judge echoed this sentiment: “There is a certain…advisor kind of role that we have, and actually I mostly find that enjoyable but it’s also exhausting because you’re constantly on and you’re constantly trying to be as evenhanded as you can and, at the same time, help people get a fair hearing and being careful not to be overbearing or over-instructing.”231

Reflections

on

Experiences

By and large, CWC study participants found resources for self-represented litigants—to the varying degree available in each jurisdiction—to be helpful. Nevertheless, many described having considerable difficulties. Understanding what to expect from the process, either at the beginning or moving from one stage to another, was one of the most frequently discussed challenges. Similarly, the Macfarlane study found that self-represented litigants often did not know what to expect when entering the process.232 Macfarlane’s study also described frustrations concerning the accessibility and usability of online resources,233as well as difficulty knowing which form(s) to use and the negative consequences associated with incorrectly or inadequately completed forms.234 In addition, the Canadian study made findings with respect to navigating the line between legal information and legal advice, concluding that “in the absence of clear directions that determined how much assistance of this type they should give,” those in the court charged with providing self-represented litigants with information “had little choice but to err on the side of withholding.”235 Finally, and not surprisingly, multiple facets of trial preparation and participation were sources of difficulty and frustration for CWC litigant participants due to a lack of understanding. This is a frequently recurring theme in the self-represented litigant literature. A 2009 American Bar Association (ABA) survey of state trial court judges detailed the cumulative perspective of almost 1,000 judges on the issue of self-represented litigant participation at trial: • 94% of respondents indicated that failure to present necessary evidence was a common problem; • 89% said that ineffective witness examination was an issue for self-represented litigants; • 81% cited self-represented litigant failures to properly object to evidence as problematic; and • 77% referenced ineffective arguments mounted by self-represented litigants.236 The ABA survey findings illustrated that not only were the aforementioned issues challenging for self-represented litigants, it was these areas in which litigants were negatively impacted by not having representation.237 As discussed in Part Four, CWC judge participants expressed similar sentiments with respect to the negative impact on outcomes that can result from self-representation.238

230 MCS1. 231 MCS3. 232 Macfarlane, supra note 7, at 53-55. 233 Id. at 63-67. 234 Id. at 56-63. 235 Id. at 69. 236 Klein, supra note 120, at 3, 11-13. 237 Id. 238 See infra p. 44.


38 CWC judge study participants also reported difficulties interacting with self-represented litigants at trial. A substantial and increasing body of training and guidance has emerged over the last decade for assisting judicial officers with conducting trials involving self-represented litigants.239 However, concerns with respect to the appearance of impropriety, trial flow when one party is represented, and other issues stemming from self-represented litigants’ inability to grasp procedural and evidentiary processes were common points of discussion in the CWC judge participant interviews. From the court perspective, inefficiencies and frustrations also emerged in CWC narratives with respect to selfrepresented litigant participation in hearings and trials. This qualitative data is consistent with much of the quantitative literature. For example, 90% of judges surveyed as part of an Arkansas self-represented litigant needs assessment study indicated that “cases with one or more self-represented parties are handled less efficiently than those with attorneys on both sides.”240 Pressed further on the issue, respondents cited issues pertaining to expenditures of staff time and slowed procedures, among other things.241 A majority (78%) of respondents to the 2009 ABA survey of judges indicated that the court is negatively impacted when parties are not represented.242 A recent docket study of dissolution cases in Maricopa County, Arizona, found that two-thirds of continuances were due to parties not being prepared to proceed with trial.243 The issue of the complex language of the courts and law arose frequently among the litigants in Macfarlane’s study during conversations on forms244 and in the context of court hearings.245 Some CWC litigants and court participants also touched on the impact abstruse language can have on litigant understanding of the process and its various components. It is not a stretch to imagine how this lack of understanding can translate into accessibility issues for the self-represented. The CWC study highlights the struggles litigants and courts face in terms of several broad aspects of the court process; other studies have detailed the many tasks that litigants must engage in.246 For example, one study identified almost 200 discrete tasks that self-represented litigants must perform in civil cases.247

239 The ABA Model Code of Judicial Conduct was amended in 2007 to reflect that making “reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard” is not a violation of Rule 2.2 regarding fairness and impartiality. Am. Bar Ass’n, Model Code of Judicial Conduct . r. 2.2 cmt. 4 (2011). Many states have amended codes of judicial conduct in accordance with or similar to the Model Code. See, e.g., Tenn. Code Jud. Conduct R. 2.2 cmt. 4 (2012); Colo. Code Jud. Conduct 2.2 cmt. 4 (2010); Mass. Sup. Jud. Ct. r. 2.2 cmt. 4, r. 2.6(A) cmt. 1(A) (2016). 240 John M. Greacen, Services for Self-Represented Litigants in Arkansas: A Report to the Arkansas Access to Justice Commission 11 (July 26, 2013), available at http://www.arkansasjustice.org/sites/default/files/file%20attachments/Arkansas%20 Final%20Report%207-26-13.pdf. 241 The study author notes a discrepancy with the sentiment regarding slowed procedures: “Every empirical study of this question conducted in the United States shows the opposite result – cases with two attorneys on average take substantially longer to reach disposition than cases with at least one unrepresented party.” Id. 242 Klein, supra note 120, at 3-4, 10-13. 243 The study examined a sample pool containing 113 case files that shared the following characteristics: dissolution cases; involving children/ with a decree of dissolution issued before June 30, 2013, and issued through trial; and in which both parties are selfrepresented. Judicial officers were also interviewed, to supplement the information obtained in the case sample pool. Nicole Zoe Garcia, Examining Dissolutions Amongst Self-Represented Litigants in the Superior Court of Arizona in Maricopa County 20-23 (May 2014), available at http://ncsc.contentdm.oclc.org/cdm/singleitem/collection/accessfair/id/344/ rec/12. 244 “Virtually every SRL in the sample” reported Macfarlane, “complained that they found the language in the court forms confusing, complex,” with some self-represented litigants finding the language “simply incomprehensible – referring to terms and concepts with which they were unfamiliar.” Macfarlane, supra note 7, at 60. 245 Many self-represented litigants in the Canadian study “commented about the impact of legal language used by judges and lawyers which they felt distanced them from the proceedings and made it hard for them to be sure they were following what was happening in the courtroom.” Id. at 97. 246 Commentators have warned that “courts routinely underestimate the tasks required for self-representation” and that is certainly not the intent here. Laura K. Abel, Evidence-Based Access to Justice, 13 Univ. of Penn. J. L. & Soc. Change 295, 305 (2010). 247 Id.


39 The discussion during CWC litigant interviews raises questions with respect to whether available resources and sources of legal information are adequately geared toward helping litigants anticipate what needs to be done and understand how to do it. CWC participants routinely discussed uncertainties with respect to what came next in the process, what information to include in forms and other submissions, and what the court expected for hearings—among other things. For these litigants, the resources that they leveraged to help them with their family cases did not always address these topics clearly or effectively enough, or at all. Indeed, a primary conclusion emerging from the 2013 Maricopa County, Arizona, docket study was that “somehow, somewhere along the way, the parties are failing to get or receive specific information that would ultimately make the trial process easier on the parties and the judges.”248 Courts in the study jurisdictions and across the country are responding to the reality of self-representation, and a growing number of courts, attorneys, and bar associations are leveraging innovative models to increase the availability of legal services for litigants. However, to the extent that the findings detailed above on litigant difficulties align with literature and cited research efforts that are nearing a decade old—if not older—it is clear that there is still much work to be done, for the benefit of all those involved in the family justice system.

248 Garcia, supra note 247, at 31.


40

PART FOUR INTERACTIONS WITH OTHERS, CHALLENGES ENCOUNTERED, AND THE ROLE OF EMOTION IN SELF-REPRESENTATION For litigants, there is far more to self-representing in a family case than simply attempting to maneuver through the legal steps of the case. Working without an attorney means contact with various players in the court process, dealing with issues inherent to being a layperson working within a system designed for legal experts, and trying to maintain equilibrium during an extremely taxing period in their lives. The Cases Without Counsel study sought to inquire about each of these issues—the interactions with others, the challenges encountered, and the emotional landscape—in interviews with both litigants and court professionals. To be certain, the interviews demonstrate that the pool of possible experiences is both wide and deep, with many variables affecting litigant perceptions.

Interacting

with

Others

in the

Process

Throughout the course of their family case, CWC litigant participants interacted with numerous people in the process— court clerks, dispute resolution staff, self-help center staff, judicial officers, and opposing counsel. This section examines the quality of such interactions as interviewees navigated the family court process.

Interactions between Self-Represented Litigants and Court Professionals Participants articulated a variety of impressions regarding interactions with individuals working in the courts. Notably, however, they were far more likely to describe these interactions in a positive light than a negative one. In fact, reports of positive experiences outnumbered the negative by approximately three to one: • “Everybody I interacted with was gracious, professional…used initiative coming forward with good suggestions. I just want to celebrate them all.”249 • “They were very polite and very courteous with me.”250 • “They were all very nice, friendly, accommodating, very generous with their time and advice. It was a good experience from that standpoint.”251 • “I think people going through [divorce]—it’s very emotional and can be high stress for a lot of people. And I just thought they were really professional and helpful through all of it.”252 • “They were great; everybody was great.”253 • “I felt like everybody was really cool. I absolutely love the judge…It was a good experience, actually.”254 • “Every time we dealt with somebody within that system, they were very friendly and helpful.”255

249 F12. 250 L1. 251 L59. 252 L25. 253 M1. 254 M3. 255 L4.


41 Of those who reported having a negative experience, a portion opined that the unpleasant treatment or lack of respect stemmed from their status as a self-represented litigant. One individual, who felt the judge treated her poorly, suggested, “I don’t know what [an attorney] would’ve done differently than me, but it’s something about being represented that they take you more seriously.”256 Another stated, “a lot of the judges there, they don’t respect people that represent themselves, nor do they allow people that represent themselves to talk…[it was] like I wasn’t being heard.”257 One participant spoke with a lawyer in the courthouse after the hearing, who explained to this individual that “there are certain judges that if you come in and are not represented, they don’t take your case seriously.”258 A few litigants described how treatment by court professionals impacted their behavior. Describing his experience in the clerk’s office, one self-represented litigant suggested that court staff become irritated when people do not know the process: “They get so many of the same questions…I feel like they’re kind of frustrated because people are coming in constantly, just bringing them paperwork.” He continued, “I didn’t really like asking too many questions in that office because I feel like they’re frustrated, they kind of have an attitude because they have so many of the same questions or people getting confused.”259 This individual’s response to the perceived frustration was to refrain from asking questions. On the other hand, “the personality, the friendliness” of court staff in one litigant’s jurisdiction made her feel more comfortable engaging with staff.260 Not all litigant participants reported having a purely positive or negative experience. Many described a mixture of favorable and unfavorable treatment, suggesting that interactions naturally vary from time to time and person to person. One litigant participant related, “It depended on what clerk you got at the desk and what mood she was in for the day to determine what information she’s going to tell you.”261

Interactions between Self-Represented Litigants and Opposing Counsel About half of self-represented litigant participants had interactions with opposing counsel—approximately 20% reported that the other party in their case was represented by an attorney part of the time and just under 30% indicated that the other party was represented from beginning to end. Those participants reported a variety of experiences, although there were about three times as many reports of negative interactions as there were positive. The majority of participants’ negative experiences in this context centered on poor treatment by opposing counsel. Said one litigant in response to an inquiry into which parts of the process were most stressful or difficult to handle without an attorney: “I think interacting with the other counsel. That was horrible and just really emotionally draining.”262 Selfrepresented litigant participants used, among others, the following descriptors in their narratives around encounters with opposing counsel: • “disrespectful”

• “rude”

• “dishonest”

• “underhanded”

• “aggressive”

• “brash”

• “unfair”

• “intimidating”

• “bully”

256 D11. 257 D38. 258 M12. 259 M13. 260 L49. 261 D25. 262 L46.


42 Another common thread for litigant participants who recounted unfavorable experiences with opposing counsel was the sentiment that opposing counsel made the situation more difficult than necessary or otherwise did not participate constructively in the process. An interviewee described thinking that opposing counsel did not have the other party’s interests in mind: “I think it would have gone much quicker and a lot smoother,” explained this participant, “if my exwife’s interests had been represented more by her attorney and [it] may have just helped us through it, as opposed to creating a somewhat competitive atmosphere.”263 He goes on to explain: I think [the opposing party] was glad to have someone putting a voice to her, but we would meet outside of the attorney and I’d say, ‘Hey, what’s going on, this is crazy’ and she would more or less agree.…Because my ex-wife is reasonable and we have a pretty good relationship, I think, we were able to work through it, but in a tighter, more pressure cooker relationship that could have really been horrible.264 A third participant detailed numerous attempts to settle with the other party, to no avail: “Why is it that, when I’m representing myself, [opposing] attorneys just won’t even give me the time of day? They won’t look at me, they won’t talk to me—nothing.”265 Several study participants felt as if opposing counsel purposely created unnecessary delays, played games, or excluded them from essential steps in the process. Reported experiences with opposing counsel were not all negative, however. Among individuals detailing positive narratives, reports of opposing counsel exhibiting favorable or respectful treatment was the most common theme. One litigant said: I think, considering the circumstances…[the other party’s attorney] maintained a professional air. And, so we were able to meet and talk at times when necessary…I didn’t have high expectations that he was going to be really friendly. But, at the same time, he was courteous and respected my position even though I was self-representing.266 Several litigant participants commented on opposing counsel’s helpful contributions. According to one self-represented litigant, “Once my ex retained an attorney, it became really easy to rely on him to do the paperwork generation, which basically shifted that burden onto her attorney.”267 Several others made similar comments with respect to the benefit of relying on opposing counsel to generate and process paperwork.

263 Id. 264 Id. 265 M6. 266 F13. 267 M10.


43

Perceptions

of

Bias

and

Disadvantage

in the

Court Process

In addition to sentiments surrounding interactions with court professionals and opposing counsel, a substantial portion of self-represented litigant participants discussed feeling at a disadvantage and experiencing bias in the court process resulting from being without representation. Further, some of the feedback from court staff and judges aligns with this perception.

Pressure to Have an Attorney One experience litigant participants commonly relayed involved court staff and judges admonishing them to get an attorney. “[With] the first judge, it did not go well at all,” explained one litigant: She actually told me twice that I needed to get a lawyer…She made it sound like that was her ruling— that I had to get a lawyer or they weren’t going to welcome me back into court. She sided with him and I felt like it was just because he had the lawyer, because she told me twice I needed to get one.268 Another felt as if “nothing I said was valued or educated enough.” This individual went on to explain, “every time I brought something up, ‘well, if you had a lawyer, you wouldn’t have to do this.’”269 Yet another described, “I kind of lost it after the first judge. She told me to get a lawyer twice and I’m like, ‘OK, great, so I’ve lost—I’ve already lost.’”270 Relatedly, some self-represented litigants spoke of opposing counsel in terms of feeling overwhelmed or outmatched. Said one litigant participant, “I felt like because they had—the other side had—a lawyer, I didn’t really stand a chance.”271 Another described her experience at trial: “I wasn’t at her level, she’s an attorney…doing what she has to do to protect her client.”272 “I knew that I was totally overmatched,” recounted one litigant, noting, “Her attorney was very experienced. She’s been in the field for 30 years, and she knew exactly what to do. And I knew nothing about what to do, and that was apparent from the very beginning.”273 Finally, in discussing the outcome of her family case, another self-represented litigant described getting “out-lawyered.”

Established Relationships between Lawyers and Judges For several litigant participants, an obvious relationship between the judge and opposing counsel fostered or fueled perceptions of unfairness. Said a participant, “One thing that I found out is that the lawyer and the judge were friends, and the whole time I was in court, I was the outcast, and she was cutting up and laughing with the attorney.”274 Another, who described her jurisdiction as having remnants of the “old boy system,” specifically hired an attorney for part of her case who she knew had a personal relationship with the judge on her case: “I tried to play into that ‘good old boy’ scenario, just making sure I had the right people in my court.”275 A third described, “I felt like I wasn’t heard, but I didn’t feel like I was even given a fair chance. It’s like the judge and attorney probably knew each other and I was like an outsider.”276

268 M21. 269 D2. 270 M21. 271 M21. 272 M1. 273 D14. 274 D22. 275 D8. 276 M2.


44 A few court participants also touched on this issue. “They’ll feel like the process is unfair,” explained one judge participant, “because the lawyer almost always will know me, and I’ll know the lawyer…So the feeling, I think, is why it’s a real struggle to make sure that the person feels like they got a fair hearing.”277 A court staff interviewee detailed a telephone conversation she had with a self-represented litigant distressed at having noticed that the opposing attorney practiced frequently in the court and feeling that this relationship with the court resulted in the attorney having complete advantage. This participant noted, “That was a reminder that there are some who feel that they are terribly disadvantaged because it’s the other side being represented.”278

Impact on Outcomes There appears to be some consistency to the perception that self-represented litigants are at a disadvantage, related to challenges in understanding, gathering, presenting, and admitting the factual support for their position. Across jurisdictions, a broad majority of court interviewees, both judges and court staff, who commented on the issue articulated that self-represented litigants are not knowledgeable about the proper process for getting evidence before the court, which can and does impact final case outcomes. “I think it can tremendously affect the ultimate outcome,” said one participating judge.279 “If I don’t get the information I need to make a decision,” said another, “then it absolutely does.”280 According to a third judge participant: As a general rule, if people have lawyers…we get the exhibits we need, we get the outside information we need and almost always they’ll bring other witnesses to tell us other things to verify what people are saying, so we get a much broader range of information from which to make a decision. And, so, I think that people who are represented generally have better outcomes.281 One judge expressed that the most personally frustrating aspect of handling cases involving self-represented litigants is not having enough evidence on which to make an informed decision. “All I want to do is make a good decision based on all the information, especially with respect to kids,” said this individual, who went on to explain: “I often feel like I just don’t know enough, and so I’m shooting in the dark. But I have to make a decision. So that’s very frustrating.”282 One court staff participant noted: “If you can afford an attorney here, you’re going to get a better outcome.”283

277 LCS3. 278 FCS6. 279 DCS3. 280 FCS1. 281 MCS1. 282 LCS3. 283 FCS12.


45

Interplay

between

Personal Issues

and

Process Issues

Not surprisingly, more than half of self-represented litigant study participants discussed experiencing emotional difficulties navigating the family court process. Stress, nervousness, and anxiety were the most commonly referenced feelings. One self-represented litigant participant explained, “I was mostly nervous because I was afraid that if I did something wrong it might hinder my ability to see my children or to be a part of their lives.”284 Another stated, “The emotional ups and downs of the stress of it…it can be debilitating, I’ll say that, and without any exaggeration. It can be debilitating when you have that amount of stuff, your life, your children, hanging over your head—and it’s in the balance of your hands.”285

Time Spent on Case Preparation Some litigant interviewees reported they had to devote a great deal of time researching and preparing for their family case, which contributed to feelings of stress and and being overwhelmed. “There’s a lot of research,” one participant exclaimed, noting, “It wasn’t, ‘Oh, I can browse and spend a couple hours tonight and do this’; it was hours and hours of research.”286 Some litigants further expounded on the impact of having to dedicate sizeable amounts of time managing a family court case while also taking care of financial, professional, and personal obligations. As one participant remarked, “It takes up a majority of my time, like, any little bit of time—which I don’t have. I work full time and I have four kids, so it’s always chaotic, and so trying to do that on any little bit of time that I have—taking up all lunches, any breaks, even work time, in your added time that you do have.”287 “Even when I’m not doing direct work,” one individual explained, “there [is] just a lot, a lot of thought and pen put to paper about arguments, sway, opinions, possible factors, possible witnesses, possible arguments that they’re going to bring up, possible defenses for the possible arguments that I think they might possibly bring up. Yes, it was daily.”288 For many litigant interviewees with children, the effects of the amount of time required to research and keep up with case activities were compounded. “It’s stressful,” said one individual, “because you have to stay on top of everything… you’re constantly trying to research things…it’s exhausting and when you’re exhausted and you’re the head of household, it’s going to wear on your kids.”289 This study participant describes settling her custody case because she did not have “any more juice to fight.” Another explained, “I have no days off without my children.” He cited difficulty finding “time to research this, do this stuff, go to the law library, print out the resources, spend dedicated time…strictly thinking about what to do.”290 Another remarked, “It causes a strain because it’s to the point where you’re so focused on that, that it’s hard to pull yourself away and balance everything.”291 “It was time-consuming,” described a participant: “It left me with little time for my daughter.”292

284 D5. 285 F1. 286 L32. 287 M4. 288 F1. 289 L11. 290 F1. 291 L19. 292 M17.


46 The Emotional Nature of Family Cases A few self-represented litigants discussed the impact that their compromised emotional state during their family case had on their experience and what they were able to achieve through the court process. One litigant acknowledged, “I spent a lot of time doing the papers and redoing them, because I didn’t feel confident that I was getting it right.…I was in a bad situation after everything that had happened.”293 This individual opined, “If I was to sit down today and had to fill them out, it probably wouldn’t be nearly as difficult as it was at that time.” Another self-represented litigant participant said, “The stuff that I had to go over was so traumatic and emotional that as soon as I would sit down to start assembling my case, I would just be so upset that I just couldn’t even focus.” “I actually asked a friend of mine to help me just type the damn thing because I knew what I wanted to say,” this participant explained, “but I just could not stay focused enough without getting upset to type it all out.”294 Speaking more broadly, one participant reflected, “The fact that you are the one going through it, I think, limits your perspective…I don’t know if you can foresee what some of the problems may be when you’re deciding and making agreements.” Another described walking around in a fog, “and you have all your baggage and you don’t really know what’s going on.”295 She talked about the desire to have someone next to her: “If I would have had somebody say to me, ‘Are you sure about that?’ just one time, I might have said, ‘No, not really.’”296 A lack of social support can exacerbate the emotional stress. In recounting her experience, one participant said: My family situation just really dissolved all at once with my divorce, and it was really scary. I had no support. I had no family structure. I had nobody. It was just me with my son. It’s intimidating. I certainly went out trying to locate somebody to talk to, just somebody to listen to me…The problem is that everybody’s situation is so unique; nobody wants to touch it. Nobody wants to talk about it. Nobody wants to hear it. It’s traumatic.297 Court participants, too, spoke of the impact of personal and emotional issues on self-represented litigants’ capacity to navigate the process. One court clerk interviewee gathered from her interactions with self-represented litigants: “If they’re unstable or not in a good position in their life at that point, I think it’s harder for them to listen to me.”298 Another remarked, “No matter what, once you’ve put those emotions in there, everything is just overwhelming.” At this point, the individual suggested, the process from the self-represented litigant’s vantage point is “so impossible to understand because you’re so focused on how you feel and what you want to happen that it’s hard to see the big picture.”299 The toll exacted by the sensitive nature of family cases is not limited to the litigants themselves; rather, some court interviewees reported that self-represented litigants can let their emotions get the better of them when interacting with court staff and judges. Said one judge participant, “When people are coming in with an attitude and everybody in the office is bending over backwards trying to help them, that’s pretty frustrating and you finally give up on them.”300 “When I have people at the counter calling me the “B word” or saying “F you” because something didn’t happen right in court, that’s my frustration,” explained a court staff participant, remarking, “I get frustrated that people don’t give you [the same courtesy] you’ve given them.”301 293 L43. 294 M6. 295 L5. 296 Id. 297 M6. 298 MCS7. 299 LCS12. 300 DCS2. 301 DCS10.


47 A few litigant participants separated the emotional issues of a divorce from the challenges of self-representation, expressing that the former was the primary source of difficulty. As one participant concluded, “At the end of the day the difficulty is the fact that you’re breaking up with someone—that’s the difficult part.”302 Another commented, “[R]epresenting myself didn’t stress me out; the situation in general is stressful.”303

Feelings Associated with the Process Many litigant participants had emotional responses tied to the process of self-representing. Given the long list of challenges stemming from navigating a family case without an attorney, it is unsurprising that many such responses were negative. Participants who spoke unfavorably of their experience in the process described feeling intimidated, isolated, scared, hopeless, and vulnerable. Several related their feelings to the lack of available resources. “I felt very intimidated,” explained a participant, “but I also felt like I had absolutely no choice, like there is nothing out there for me.”304 “I knew I didn’t know what I was doing,” said another participant, “and that really made me both angry and feel helpless.”305 One participant opined, “I think that if I would not have represented myself and I would have had a lawyer do it, I would have not felt so vulnerable, so bullied, and so much like I had to give up everything.”306 Describing her experience, a third litigant commented: First of all, it’s an extremely emotional time for most people, to go through a divorce. You’re either already confused—How am I going to survive? What am I going to do? How am I going to get through this? Where am I going to go? You’re already thinking all of those things in your head, and then you’re put into this extremely terrifying situation with the courthouse and no help.307 For some, the courtroom and courthouse environment contributed to feelings of stress or fear. “The court atmosphere itself is stressful,” said one individual, “nobody wants to be there.” Another described the courtroom as “a cold, sterile environment—it’s worse than a hospital.”308 “Even though you’ve been there a million times,” said a participant, “there’s always an anxiety factor to it all.”309 A court staff participant observed that, from a litigants’ perspective, the courthouse is “a different world.” Although negative emotions and feelings prevailed when litigant participants discussed their experiences representing themselves, a sizeable proportion expressed some emotional benefit to getting through the process on their own. By a wide margin, the most commonly cited positive impact of self-representing was a feeling of accomplishment or empowerment. “To be able to go through it feels like you’re stepping up, you’re growing up, you’re doing this for yourself,” remarked one litigant. “You’re becoming a better person because of the steps that you’re taking. It does make you feel pretty good about yourself in the end, even though it’s one of the most difficult situations you could ever be put in.”310 Similarly, another individual commented: “It made me feel logical, like ‘I’m a business professional; I don’t need to go spend several thousand dollars for somebody to tell me that this paperwork’s OK.’”311 Yet another remarked:

302 M10. 303 F8. 304 F1. 305 D14. 306 L5. 307 F14. 308 D30. 309 F11. 310 L13. 311 D26.


48 It made me feel like I could make autonomous decisions in my life without having to involve legal processes other than just for the documentation. So, that was in itself empowering, being able to say “I don’t want to be married to this person” and then having kind of minimal complications to make that true.312 For some, this feeling of empowerment was recognized in retrospect, after the obstacles of the case had been tackled. “I would say part of it was overwhelming,” explained one study participant who also noted that, “another part would be empowering to know that I did that for myself; that I was able to achieve the outcome that I had hoped for.”313 Similarly, a participant described: “At first I was really nervous, but after, I felt kind of empowered; I was like, ‘Wow, I can do this!’”314

The Emotional Benefits of Having an Attorney Some study participants discussed how having an attorney or source of legal support may have reduced some of the emotional distress associated with the family court process. This could manifest itself in alleviating the burden and anxiety associated with trying to get everything right. According to one litigant, “It is stressful, I think, especially doing it on your own, because you don’t have that other person doing all that research for you, filling out all the paperwork for you.”315 Another suggested: “The attorney’s support there would have taken away a lot of the anxiety I was feeling, just making sure that I wasn’t going to get knocked out of the court for having the wrong document.”316 Similarly, another selfrepresented litigant commented, “not having the representation, I didn’t have that security blanket—somebody that’s there in my corner and literally to help me out and making sure that [I'm not] done wrong and that I don't make a mistake.”317 This could also manifest itself in providing an emotional buffer, allowing the litigant to process emotions without having those emotions affect the case. One individual, admitting he was unable to think clearly in the situation due to the emotions associated with the end of his marriage, described the potential benefit of having an attorney as having someone who is not enmeshed in the personal aspects of the case. A participant who had an attorney before running out of funds to maintain representation, remarked, “That was the most stressful part of the whole thing…I can’t hand everything else to somebody else and say ‘OK…I’m gonna go deal with my emotions over here; you deal with the nuts and bolts of the trial.’”318 This individual went on to suggest: “I think a large portion of [the stress] could have been set to the side a lot easier had I had that person that I could call and say, ‘How do I need to feel about this?’ and they could give me that reassurance.”319

312 M5. 313 M23. 314 L14. 315 M21. 316 F13. 317 D5. 318 F1. 319 Id.


49

Reflections

on Interactions,

Challenges,

and

Emotions

The Cases Without Counsel narratives highlight a host of nuanced issues that, taken together, suggest that feelings of being at a disadvantage or concerns with respect to fairness were relatively common among self-represented litigant study participants. The Macfarlane study reached similar conclusions, detailing participant feelings of being judged, treated differently, or otherwise disadvantaged on the basis of not having representation.320 A considerable proportion of CWC self-represented litigant participants did not feel as if the process was fair or afforded them equal standing with represented parties. It is easy to imagine that, for these individuals, their vision of the court system becomes one of distrust and dissatisfaction. Recent research efforts illustrate that there is room for improvement with respect to increasing public trust and confidence in U.S. courts, particularly because the data demonstrate that monetary issues dominate motivations for self-representing. A late-2015 public opinion survey conducted on behalf of the National Center for State Courts (NCSC) broadly found “a disturbingly pervasive belief in an unequal justice system that systematically produces different results based on race, income, and other socio-economic factors.”321 Additionally, an overwhelming majority of the NCSC public opinion survey respondents (91%) agreed with the sentiment: “You are more likely to win [sic] court with a lawyer by your side.”322 Indeed, some of the relevant literature suggests there are valid reasons to think that representation status affects the fairness of the process. The narratives from participating CWC judges and court staff support other research findings with respect to the impact of self-representation on case outcomes.323 In the 2009 ABA survey of state trial judges, 62% of respondents reported that self-represented litigants are negatively impacted and that outcomes are worse for these individuals than their counterparts with representation.324 Similar findings emerged in a 2012 study of self-representation in Arkansas, in which 80% of surveyed judges indicated that “self-representation has a negative impact on case outcomes.”325 An important characteristic of these and similar studies is that “[w]e are seeing the issue from the point of view of the judge, the person who often is the finder of fact and who will ultimately determine an appropriate judgment. This is a direct measure on the impact to the case.”326

320 Macfarlane, supra note 7, 110-11 (noting that many self-represented litigants who participated in the study “appraise their experience in a rational and balanced way in coming to the conclusion that the justice system is ‘broken’. Their basic complaint is clear—that instead of a user-friendly, practical means of resolving disputes the courts offer a false promise of ‘access to justice’.”). 321 Memorandum from GBA Strategies to the Nat’l Ctr. for State Cts., Analysis of National Survey of Registered Voters 1 (November 17, 2015), available at http://www.ncsc.org/~/media/Files/PDF/Topics/Public%20Trust%20and%20Confidence/SoSC_2015_ Survey%20Analysis.ashx [hereinafter NCSC Survey Analysis]; The State of State Courts: A 2015 NCSC Public Opinion Survey, Nat’l Ctr. for State Cts., http://www.ncsc.org/2015survey (last visited April 5, 2016). A similar survey was conducted in England and Wales last year, finding, among other points, that “one in five people who have been involved in courts say they came out with a worse opinion of them than when they started” and also that “less than half (48 per cent) of people believe that if they had to go to court, their outcome would be fair. Katherine Vaughan et al., Citizens Advice, Responsive Justice: How citizens experience the justice system 2 (November 2015). 322 NCSC Survey Analysis, supra note 325, at 5. 323 See, e.g., Russell Engler, The Toughest Nut: Handling Cases Pitting Unrepresented Litigants Against Represented Ones, 62 Juv. & Fam. Ct. J. 10, 11 (2011) (“Studies consistently show that representation is an important variable affecting case outcomes, including in the area of domestic relations.”); see also Abel, supra note 250. Klein, supra note 120, at 4. Broadly speaking, the study found “strong consensus that parties are hurt by failure to present 324 necessary evidence, suffer from procedural errors, are ineffective when examining witnesses, and fail to properly object to evidence.” Id. at 11. 325 Greacen, supra note 244, at 11. 326 Klein, supra note 120, at 3.


50 The personal and emotional issues that accompany family disputes also affect the self-represented litigant experience. The legal community often disregards or overlooks these non-legal outcomes; nevertheless, they are important components of the conversation because understanding the underlying emotional state of a person entrenched in a family case is essential to fully comprehending the experience of self-representing. One commentator urges: Not every outcome of interest is legal: consider, for example, comparative health outcomes between represented and unrepresented individuals, including the effects of the stress and uncertainty associated with navigating legal proceedings on depression and mental health more generally. Civil justice research must step back from narrow definitions of effectiveness that are limited to case outcomes and consider the broader, systemic effects of representation on individuals and those around them. 327 Macfarlane’s self-represented litigant interviewees328 described depression, physical ailments, and feelings of isolation: “SRL respondents described a wide range of impacts and consequences for them arising out of their decision to selfrepresent. Many if not most of these were unanticipated, at least to the degree that they became a problem.”329 These findings are largely consistent with CWC narratives, in which many participants described negative impacts on their mental health and broader lives, including their relationships with others. Anecdotally, questions arise as to whether many of the emotional and personal issues described by CWC and Canadian study litigants are a function of the nature of the underlying dispute than the act of self-representing. Certainly, family cases present complicated non-legal issues and impacts that are characteristic of the case type.330 A few of the CWC participants were explicit during their interviews in clarifying that stresses and negative feelings had more to do with their situation or with the process generally rather than with the act of self-representation. However, a larger number of participants described how the stress of having to process the paperwork, manage the case, and advocate in court, along with the uncertainty and confusion regarding steps in the process, were at the root of these negative emotions. In other words, the stress and related feelings resulted from having to take on the functions and responsibilities that otherwise would have fallen to an attorney.

327 Catherine R. Albiston & Rebecca L. Sandefur, Expanding the Empirical Study of Access to Justice, 2013 Wisc. L. Rev. 101, 110 (2013). 328 Sixty percent of the study participants were family litigants and 31% had a civil court case. Macfarlane, supra note 7, at 8. In contrast, all 128 CWC self-represented litigant participants had a family case. 329 Id. at 108. 330 While family issues are often especially emotional case types, research shows that civil justice situations broadly have wideranging non-legal impacts, including violence, damage to relationships, loss of confidence, fear, and damage to health. Rebecca L. Sandefur, Am. Bar Found., Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study 9-10 (2014), available at http://www.americanbarfoundation.org/uploads/cms/documents/sandefur_accessing_ justice_in_the_contemporary_usa._aug._2014.pdf (noting that almost half (47%) of the civil justice situations reported by study participants resulted in at least one of these consequences; approximately one fifth (21%) resulted in two or more).


51 Furthermore, the mental and emotional health distress that self-represented litigants in family cases experience may ultimately affect final case outcomes. A handful of the CWC litigant participants recognized that the emotional issues they were experiencing at the time compromised their ability to think clearly and prepare. These observations are consistent with behavioral and medical research that highlights the myriad ways in which stress impacts learning, memory, and health.331 While this reality is arguably true for all litigants—represented or not—those with an attorney have a reduced responsibility to compile paperwork, direct the flow of the case, formulate strategy, and interact with the court. The information gleaned from the CWC study regarding the interactions in and impacts of navigating the family court process without an attorney presents a panoramic view of the collective experience of self-representation, encompassing both the negative and the positive. Doubtless, the voices of self-represented litigants, court staff, and judges—those closest to the issues—provide a unique opportunity for the legal community and stakeholders to take into account reallife perspectives in discussions related to the growing numbers of self-represented litigants in family court. Surely, some aspects of the process already work well for those who self-represent; however, the CWC study demonstrates that there are areas of improvement that, if addressed, could benefit litigants and the legal community alike.

331 Stress also impacts learning, memory, and health. See Centre for Studies on Human Stress, http://www.humanstress.ca (last visited April 5, 2016); Serusha Govender & Sara Cheshire, Chronic stress can hurt your memory, cnn.com (June 19, 2014, 1:34 PM), http://www.cnn.com/2014/06/17/health/memory-stress-link (citing Cheryl D. Conrad, A Critical Review of Chronic Stress Effects on Spatial Learning and Memory, 34 Progress in Neuro-Psychopharmacology & Biological Psychiatry 742 (2010)).


52

CONCLUSION The Cases Without Counsel study builds upon and contributes to other research in this field, both qualitative and quantitative. The themes are consistent, and present a challenge to those committed to access to justice for all. It is the hope of the IAALS study team that hearing directly from affected individuals will spur positive action, starting with careful consideration of the recommendations contained in Cases Without Counsel: Our Recommendations after Listening to the Litigants.332

332 Natalie Anne Knowlton, Inst. for the Advancement of the Am. Legal Sys., Cases Without Counsel: Our Recommendations after Listening to the Litigants (2016).


53

APPENDIX A JUDGE-SPECIFIC SERVICE PROVIDER INTERVIEW PROTOCOL Demographic Questions 1. How long have you been at [your organization: fill in Larimer County Courthouse, etc.]? ☐☐ Less than 1 year

☐☐ 11-15 years

☐☐ 1-5 years

☐☐ More than 15 years

☐☐ 6-10 years 2. H ow long have you been doing this type of work (i.e., have you had a similar position or positions anywhere else? If so, how much time have you spent in these kinds of positions in total)? ☐☐ Less than 1 year

☐☐ 11-15 years

☐☐ 1-5 years


☐☐ 6-10 years

Interview Topic Guide 1. C ertainly, litigants come to court looking for a resolution of their case. Do you think the expectations of self-represented litigants are aligned with the actual court experience? 2. How prepared do self-represented litigants tend to be when they come to court? 3. How often do self-represented litigants have friends or family with them to help/support? 4. D o you find the line between providing information to move the process along and remaining neutral difficult to navigate? 5. What do you think are the most common motivations for self-representation? 6. D o you think self-representation has an impact on outcomes in family law cases? If so, can you describe the impact? 7. D o you think self-representation has an impact on the level of litigant satisfaction with the court process in family law cases? If so, can you describe the impact? 8. C ertainly evidentiary and other rules apply to all litigants, but we have heard some feedback suggesting there can be struggles when it comes to applying the rules to SRLs. Do you tend to agree or disagree with that sentiment? Can you speak about your experience in applying rules with SRLs? 9. What is the most common frustration for self-represented litigants? 10. What is your most common frustration when it comes to handling cases with SRL cases?


54 11. H ave you seen a change in the characteristics of SRLs coming to court? [Note to interviewer: We are defining change in the broadest of terms (i.e., tap into full experience in this kind of work, rather than limiting to a certain time range; we are also defining characteristics very broadly (i.e., demographics, numbers, etc.))] 12. Have you seen any other significant changes in the last 3-5 years that have impacted your work with SRLs? 13. I n many courts, there are large numbers of SRLs in family cases. What do you think this means for the court— now and into the future? 14. What part of the process [in terms of SRLs moving through the legal process in family cases] works well for you? 15. If you could make one major change, what would you want to tell policy-makers? 16. What do you find to be rewarding about this work? 17. Do you have any additional comments or thoughts before we end the interview today?


55

APPENDIX B COURT STAFF-SPECIFIC SERVICE PROVIDER INTERVIEW PROTOCOL Demographic Questions 1. What is your role (indicate all that apply with explanatory notes if necessary)? ☐☐ Court-annexed pro bono service provider

☐☐ Court-annexed mediator

☐☐ Court clerk

☐☐ Translator

☐☐ Court staff

☐☐ Other

☐☐ Non-judicial facilitator 2. How long have you been at your organization? ☐☐ Less than 1 year

☐☐ 11-15 years

☐☐ 1-5 years


☐☐ 6-10 years 3. H ow long have you been doing this type of work (i.e., have you had a similar position or positions anywhere else? If so, how much time have you spent in these kinds of positions in total)? ☐☐ Less than 1 year

☐☐ 11-15 years

☐☐ 1-5 years


☐☐ 6-10 years 4. Are you an attorney? ☐☐ Yes ☐☐ No

Interview Topic Guide 1. W hat do litigants come to you asking for/expecting? [Note to interviewer: perhaps phrase the question as “What do litigants come to court asking for/expecting?”] 2. F or most people, is this the first place they come to for help or have they gone somewhere else? [Note to interviewer: perhaps change phrasing to “Who/where in courthouse are litigants going first to ask for help?”] 3. How often do self-represented litigants have friends with them to help/support? 4. For non-attorneys: Do you find the line between providing information and giving advice difficult to navigate? 5. W here relevant: What has been the impact of [insert state statute/guide on court staff provision of information] on your interactions with SRLs?


56 6. What do you think are the most common motivations for self-representation? 7. D o you think self-representation has an impact on outcomes in family law cases? If so, can you describe the impact? 8. D o you think self-representation has an impact on the level of litigant satisfaction with the court process in family cases? If so, can you describe the impact? 9. What is the most common frustration for self-represented litigants? 10. What is your most common frustration when it comes to working with SRLs? 11. H ave you seen a change in the characteristics of SRLs coming to court? [Note to interviewer: we are defining change in the broadest of terms (i.e., tap into full experience in this kind of work, rather than limiting to a certain time range; we are also defining characteristics very broadly (i.e., demographics, numbers, etc.))] 12. Have you seen any other significant changes in the last 3-5 years that have impacted your work with SRLs? 13. I n many courts, there are large numbers of SRL in family cases. What do you think this means for the court— now and into the future? 14. What part of the process [of SRLs moving through the legal process in family cases] works well for you? 15. If you could make one major change, what would you want to tell policy-makers? 16. What do you find to be rewarding about this work? 17. Do you have any additional comments or thoughts before we end the interview today?


57

APPENDIX C SELF-REPRESENTED LITIGANT INTERVIEW PROTOCOL Demographic Questions 1. A re you the plaintiff/petitioner or the defendant/respondent in your case? (Please let us know if you have any questions about these terms.) ☐☐ Plaintiff/Petitioner ☐☐ Defendant/Respondent ☐☐ Joint Petitioner 2. Where are you in your case (with respect to process/procedure)? ___________ 3. Has the other side been represented by a lawyer? ☐☐ Not at any point in the case

☐☐ The entire case

☐☐ For part(s) of the case

☐☐ Not sure

4. Did you come to agreement with the other party at any time? ☐☐ Yes, before we began the court process ☐☐ Yes, at some point during the court process ☐☐ No 5. What is your personal income level from any source at the time of this interview? ☐☐ Under $20,000

☐☐ $80,000 to $99,999

☐☐ $20,000 to $39,999

☐☐ $100,000 to $119,999

☐☐ $40,000 to $59,999

☐☐ $120,000 or more

☐☐ $60,000 to $79,999

☐☐ Prefer not to answer

6. What is your occupation? 7. What is your highest level of education completed? ☐☐ Primary school

☐☐ Undergraduate degree

☐☐ High school diploma or GED

☐☐ Graduate degree

☐☐ Certificate program

☐☐ Prefer not to answer

☐☐ Some college study 8. What is your first language? 9. What is your country of origin? (If you immigrated to the U.S., where are you from?)


58 10. How do you identify yourself on the U.S. Census (select all applicable)? ☐☐ White ☐☐ Black or African American ☐☐ American Indian or Alaska Native ☐☐ Asian – Indian

☐☐ Pacific Islander – Native Hawaiian ☐☐ Pacific Islander – Other ☐☐ Other: ☐☐ Prefer not to answer

☐☐ Asian – Other 11. Do you identify as Hispanic, Latino, or of Spanish origin? ☐☐ Yes ☐☐ No ☐☐ Prefer not to answer 12. If you have ever had a lawyer in the past (before this case), was the experience: ☐☐ Positive

☐☐ Negative

☐☐ Neutral

☐☐ I have never retained a lawyer before this case

13. Did the experience you reported in Question 12 influence your decision about hiring a lawyer in this case? ☐☐ Yes

☐☐ Not sure

☐☐ No

☐☐ I have never retained a lawyer before this case

14. Have you been represented by a lawyer in this case? ☐☐ Not at any point in the case ☐☐ For part(s) of the case ☐☐ Not sure 15. If you answered “For part(s) of the case” in Question 14: a. How much have you spent on legal fees? b. How much of that is still owing? 16. In this case, have you used any of the following: ☐☐ Pro bono legal services

☐☐ Family or friends

☐☐ Alternative service agreements (e.g., Legal Zoom, Rocket Lawyer)

☐☐ Other sources of legal advice

☐☐ Unbundled legal services/ limited scope representation

☐☐ No ☐☐ Not sure


59

Interview Topic Guide Deciding to represent yourself 1. What were your expectations at the outset of this case regarding the court process and what you could achieve? 2. Tell me about how you came to represent yourself. 3. H ow, if at all, did the following factors influence how you came to be self-represented [Note to interviewer: if needed, preface each with an example.] a. Cost of hiring an attorney? b. Financial priority of hiring an attorney? c. Your assessment of your ability to represent yourself? d. Preference for handling the matter yourself? e. Dissatisfaction with prior legal representation? [Note to interviewer: the applicability of this question will depend on whether the interviewee indicated prior representation, above.] 4. If you could get legal advice or representation for particular portions of the process, would you? a. If yes, what would those portions be? b. If yes, do you feel the advice would need to come from an attorney or could it come from another type of professional authorized to give legal advice? c. If no, can you tell me why?

Resources 5. W hat resources have you used to help you with the legal process? [Note to interviewer: ask open-ended question then move to the following jurisdiction-specific prompts. When queuing prompts, please ask whether the interviewee knew about the resources, in addition to whether s/he used the resource.] 6. Tell me about the most helpful resource(s). 7. Tell me about the least helpful resource(s). 8. H ow do you feel you were treated by the people you encountered in the court process—for example, court staff, judges, and others with whom you may have spoken? 9. Did you bring family/friends with you to the courthouse for support?


60 Your experience and appraisal 10. H ow close was what happened in the legal process to what you expected? What are the major differences? [E.g., with respect to the court process, your interaction with the actors in the justice system, challenges, rewards.] 11. What parts of the process did you find to be the most stressful or difficult handling without an attorney? 12. What part of the process worked well for you? 13. How did representing yourself in this case make you feel? 14. Can you talk a bit more about the impact of representing yourself on your life? 15. What, if anything, was the impact of representing yourself on your children? 16. Can you talk about the time you have spent representing yourself in this case? 17. What advice would you give to someone else who was going to be representing themselves? 18. I f you could make one major change with respect to the process and procedures that you experienced in your case, what would you want to tell policy-makers? 19. Thinking of your experience as a self-represented litigant: a. What was your biggest surprise? b. What was your biggest disappointment? c. What was the best moment?


Institute for the Advancement of the American Legal System University of Denver John Moye Hall, 2060 South Gaylord Way Denver, CO 80208 Access to Justice Innovation Phone: 303.871.6600 http://iaals.du.edu




Acknowledgements This study was undertaken to inform the deliberations of the Conference of Chief Justices (CCJ) Civil Justice Improvements Committee as it developed recommendations based on evidence-based practices to improve civil case processing in state courts. We are grateful to the committee members and staff who asked probing questions that spurred us to mine the Landscape dataset for as much information as could possibly be gleaned. We are especially indebted to the Committee Chair, Chief Justice Thomas Balmer (Supreme Court of Oregon); the chairs of the Rules/Procedures and Court Operations subcommittees, Judge Jerome Abrams (First Judicial District Court, Minnesota), and Judge Jennifer D. Bailey (Eleventh Judicial Circuit, Florida); the Committee Reporter, Judge Gregory E. Mize (D.C. Superior Court); and Brittany Kauffman and Corina Gerety of the Institute for the Advancement of the American Legal System (IAALS), who shouldered far more than their fair share of research and administrative support for the Committee’s work. We are also immensely grateful to the state courts that participated in the study. It is a gross understatement to say that state courts today are operating under enormous pressure to manage voluminous caseloads with significantly reduced resources. We recognize that it is no small task for those courts to allocate scarce resources to extract case-level data from their case management systems and, as important, to answer detailed questions about computer codes

and formatting that is necessary to make sense of the data. Their willingness to do so is a testament to their commitment to maintaining the American civil justice system as a forum for the speedy, inexpensive, and just resolution of civil claims. No research project undertaken by the National Center for State Courts is ever solely the product of the professional staff assigned to that project. We relied heavily on guidance and support from colleagues who contributed many hours to this project brainstorming ideas, answering questions about related projects, reviewing report drafts, and generally offering encouragement throughout the process. We especially acknowledge the following individuals who were particularly helpful: Tom Clarke, Vice President, Research & Technology; Richard Schauffler, Director, Research Services; Neil LaFountain, Senior Court Research Analyst; Pamela Petrakis, Senior Administrative Manager; Brenda Otto, Program Specialist, and Bethany Bostron, Research Intern. Finally, both the CCJ Civil Justice Improvements Committee and the Landscape study were generously supported by a grant from the State Justice Institute (SJI-13-P-201). The views expressed in this report are those of the authors and do not necessarily represent those of the State Justice Institute, the National Center for State Courts, or the participating courts.

Access to Justice Innovation in Los Angeles Countyi A182

Table of Contents ACKNOWLEDGEMENTS

i

EXECUTIVE SUMMARY

iii

INTRODUCTION

1

Challenges Confronting the Civil Justice System

1

Civil Justice Improvement Efforts

4

AN INCOMPLETE PICTURE OF THE CIVIL JUSTICE SYSTEM

6

Data Definitions

8

Data Collection Priorities

9

Organizational Structure

10

PROJECT METHODOLOGY

14

FINDINGS

17

Caseload Composition

17

Case Dispositions

19

Case Outcomes and Judgment Amounts

23

Bench and Jury Trials

25

Time to Disposition

28

Representation Status of Litigants

31

CONCLUSIONS AND IMPLICATIONS FOR STATE COURTS

ii

35

Distorted Perceptions of Civil Litigation in State Courts

36

The Future of the Civil Justice System in State Courts?

37


Executive Summary Much of the debate concerning the American justice system focuses on procedural issues that add complexity to civil litigation, resulting in additional cost and delay and undermining access to justice. Many commentators are alarmed by the increasing privatization of the civil justice system and particularly by the dramatic decline in the rates of civil bench and jury trials. In addition, substantially reduced budgetary resources since the economic recession of 2008-2009 have exacerbated problems in civil case processing in many state courts. In response to these concerns, state and federal courts have implemented a variety of civil justice reform projects over the past decade. Some have focused on particular types or characteristics of civil cases such as business and complex litigation programs. Others have aimed at problematic stages of civil litigation, especially discovery. In 2013, the Conference of Chief Justices (CCJ) convened a Civil Justice Improvements Committee to assess the effectiveness of these efforts and to make recommendations concerning best practices for state courts. To inform the Committee’s deliberations, the National Center for State Courts (NCSC) undertook a study entitled The Landscape of Civil Litigation in State Courts to document case characteristics and outcomes in civil cases disposed in state courts. Differences among states concerning data definitions, data collection priorities, and organizational structures make it extremely difficult to provide national estimates of civil caseloads with sufficient granularity to answer the most pressing questions of state court

Many commentators are alarmed by the increasing privatization of the civil justice system and particularly by the dramatic decline in the rates of civil bench and jury trials. policymakers. The sample of courts in the Landscape study was intentionally selected to mirror the variety of organizational structures in state courts. The resulting Landscape dataset consisted of all non-domestic civil cases disposed between July 1, 2012 and June 30, 2013 in 152 courts with civil jurisdiction in 10 urban counties. The 925,344 cases comprise approximately five percent (5%) of state civil caseloads nationally.

FINDINGS The picture of civil caseloads that emerges from the Landscape study is very different than one might imagine from listening to current criticism about the American civil justice system. High-value tort and commercial contract disputes are the predominant focus of contemporary debates, but collectively they comprised only a small proportion of the Landscape caseload. In contrast, nearly two-thirds (64%) were contract cases, and more than half of those were debt collection (37%) and landlord/tenant cases (29%). An additional sixteen percent (16%) were small claims cases involving disputes valued at $12,000 or less,

Access to Justice Innovation in Los Angeles Countyiii A184

and nine percent (9%) were characterized as “other civil” cases involving agency appeals and domestic or criminal-related cases. Only seven percent (7%) were tort cases and one percent (1%) were real property cases. To the extent that damage awards recorded in the final judgment are a reliable measure of the monetary value of civil cases, the cases in the dataset involved relatively modest sums. Despite widespread perceptions that civil litigation involves high-value commercial and tort cases, only 357 cases (0.2%) had judgments that exceeded $500,000 and only 165 cases (less than 0.1%) had judgments that exceeded $1 million. Instead, three-quarters (75%) of all judgments were less than $5,200. These values varied somewhat based on case type; three-quarters of real property judgments, for example, were less than $106,000 and three-quarters of torts were less than $12,200. For most represented litigants, the costs of litigating a case through trial would greatly exceed the monetary value of the case. In some instances, the costs of even initiating the lawsuit or making an appearance as a defendant would exceed the value of the case. Litigation costs that routinely exceed the case value explain the low rate of dispositions involving any form of formal adjudication. Only four percent (4%) of cases were disposed by bench or jury trial, summary judgment, or binding arbitration. The overwhelming majority (97%) of these were bench trials, almost half

of which (46%) took place in small claims or other civil cases. Three-quarters of judgments entered in contract cases following a bench trial were less than half of those in small claims cases ($1,785 versus $3,900). This contradicts assertions that most bench trials involve adjudication over complex, high-stakes cases. Most cases were disposed through an administrative process. A judgment was entered in nearly half (46%) of the cases, most of which were likely default judgments. One-third of cases were dismissed, possibly following a settlement; ten percent (10%) were explicitly recorded as settlements. Summary judgment is a much less favored disposition in state courts compared to federal courts. Only one percent (1%) were disposed by summary judgment, and most of these would have been default judgments in debt collection cases except the plaintiff pursued summary judgment to minimize the risk of post-disposition challenges. A traditional hallmark of civil litigation is the presence of competent attorneys zealously representing both parties. One of the most striking findings in the dataset was the relatively large proportion of cases (76%) in which at least one party was self-represented, usually the defendant. Tort cases were the only ones in which a majority (64%) of cases had both parties represented by attorneys. Small claims dockets had an

At least one party was self-represented (usually the defendant) in more than three-quarters of the cases.

iv


The picture of civil litigation that emerges from the Landscape dataset confirms the longstanding criticism that the civil justice system takes too long and costs too much. unexpectedly high proportion (76%) of plaintiffs who were represented by attorneys, which suggests that small claims courts, which were originally developed as a forum for self-represented litigants to obtain access to courts through simplified procedures, have become the forum of choice for attorney-represented plaintiffs in lower-value debt collection cases. Approximately three-quarters of cases were disposed in just over one year (372 days), and half were disposed in just under four months (113 days). Nevertheless, small claims were the only case type that came close to complying with the Model Time Standards for State Trial Courts (Standards). Tort cases were the worst case category in terms of compliance with the Standards. On average, tort cases took 16 months (486 days) to resolve and only 69 percent were disposed within 540 days of filing compared to 98 percent recommended by the Standards.

IMPLICATIONS FOR STATE COURTS The picture of civil litigation that emerges from the Landscape dataset confirms the longstanding criticism that the civil justice system takes too long and costs too much. As a result, many litigants with meritorious claims and defenses are effectively denied access to justice in state courts because it is not economically feasible to litigate those cases. Most of the litigants who have the resources and legal sophistication to do so have already abandoned the civil justice system either preemptively through contract provisions (e.g., for consumer products and services, employment, and health care) or after filing a case in court through private ADR services. Ironically, private ADR is often provided by experienced trial lawyers and retired judges. The vast majority of civil cases that remain in state courts are debt collection, landlord/tenant, foreclosure, and small claims cases. State courts are the preferred forum for plaintiffs in these cases for the simple reason that in most jurisdictions state courts hold a monopoly on procedures to enforce judgments. Securing a judgment from a court of competent jurisdiction is the mandatory first step to being able to initiate garnishment or asset seizure proceedings. The majority of defendants in these cases, however, are self-represented. Even if defendants might have the financial resources to hire a lawyer to defend them in

Access to Justice Innovation in Los Angeles Countyv A186

court, most would not because the cost of the lawyer exceeds the potential judgment. The idealized picture of an adversarial system in which both parties are represented by competent attorneys who can assert all legitimate claims and defenses is an illusion. State court budgets experienced dramatic cuts during the economic recessions both in 2001–2003 and in 2008–2009, and there is no expectation among state court policymakers that state court budgets will return to pre-2008 recession levels. These budget cuts combined with constitutional and statutory provisions that prioritize criminal and domestic caseloads over civil caseloads have undermined courts’ discretion to allocate resources to improved civil case management. As both the quantity and quality of adjudicatory services provided by state courts decline, it becomes questionable whether state legislators will be persuaded to augment budgets to support civil caseloads. These trends have severe implications for the future of the civil justice system and for public trust and confidence in state courts. The cost and delays of civil litigation greatly outpace the monetary value of most cases filed in state courts, effectively denying access to justice for most litigants and undermining the legitimacy of the courts as a fair and effective forum to resolve disputes. Reductions in the proportion of civil

cases resolved through formal adjudication threaten to erode a publicly accessible body of law governing civil cases. Fewer common law precedents will leave future litigants with lessened standards for negotiating civil transactions or conforming their conduct in a responsible manner. The privatization of civil litigation likewise undermines the ability of the legislative and executive branches of government to respond effectively to developing societal circumstances that become apparent through claims filed in state courts. Because the civil justice system directly touches everyone in contemporary American society — through housing, food, education, employment, household services and products, personal finance, and commercial transactions — ineffective civil case management by state courts has an outsized effect on public trust and confidence compared to the criminal justice system. If state court policymakers are to return to the traditional role of state courts as the primary forum for dispute resolution, civil justice reform can no longer be delayed or even implemented incrementally through mere changes in rules of procedure. It is imperative that court leaders move with dispatch to improve civil case management with tools and methods that align with the realities of modern civil dockets to control costs, reduce delays, and ensure fairness for litigants.

Ineffective civil case management by state courts has an outsized effect on public trust and confidence.

vi


Introduction Concerns about the slow pace, high costs, procedural complexity, and lack of predictable outcomes associated with civil litigation have been raised repeatedly for more than a century.1 Many of the court reform efforts of the 20th century were intended to address these concerns even as courts struggled to manage rapidly expanding criminal, family, and juvenile caseloads. After the federal judiciary adopted uniform rules of civil procedure in 1934, the vast majority of state courts followed suit, enacting state rules of civil procedure that often mirrored the federal rules verbatim. In subsequent decades, courts experimented with a variety of procedural and administrative reforms to the civil justice system including simplified evidentiary requirements for small claims cases, front-loading discovery through automatic disclosure of witnesses and other key evidence supporting each party’s claims and defenses, differentiated caseflow management, increased judicial case management, and alternative dispute resolution (ADR) programs.

CHALLENGES CONFRONTING THE CIVIL JUSTICE SYSTEM Despite the good intentions, it is clear that these efforts have either been an inadequate response to current problems or have been rendered obsolete by new challenges confronting the civil justice system. In some instances, reform efforts have even created new problems. A detailed description of the myriad issues confronting the contemporary civil justice system is beyond the scope of this report and, in any case, would merely duplicate a great deal of scholarly work. Nevertheless, a brief summary of the most common complaints and some applicable responses helps to illustrate the scope of the problem.

• Pleadings. The complaint and answer are the formal court documents that initiate a civil case and articulate the factual and legal basis for any claims or defenses. Increasingly, courts have moved from notice pleading, in which plaintiffs merely state the initiation of a lawsuit, to fact pleading, in which plaintiffs are required to state the factual basis for the claim. Under a fact pleading standard, defendants likewise must state the factual basis for any legal defenses they plan to raise. The rationale for fact pleading rather than notice pleading is twofold. First, because both parties have knowledge of the factual basis for their opponent’s claims, they can prepare more promptly and efficiently for subsequent stages of the litigation process (e.g., discovery, settlement negotiations). Second, fact pleading is also intended to minimize frivolous litigation by requiring both parties to make a sufficient investigation of the facts before filing claims, thus preventing the expenditure of needless time, energy, and resources to defeat unsupported claims.2 In 2009, the U.S. Supreme Court further heightened the fact pleading standard. In federal courts, plaintiffs must now allege sufficient facts to allow a trial judge to determine the plausibility of a claim.3 This raises Seventh Amendment concerns that judicial plausibility assessments based on the factual content in pleadings will displace the role traditionally played by juries in a full evidentiary trial.4

1

Roscoe Pound is credited with first raising these concerns in an address to the American Bar Association in 1906. Roscoe Pound, Address at the American Bar Association Convention: The Causes of Popular Dissatisfaction with the Administration of Justice in A.B.A. Rep., pt. I, 395-417 (1906). 2 The ease with which litigants may assert legally or factually unsupported claims is a constant concern in the civil justice system. Civil justice reform leaders initially hailed efforts to impose sanctions on frivolous filings. However, many scholars have regretted the institution of such reforms due to satellite litigation over whether, in fact, the claims and/or defenses were known to be unsupported when filed. Joint comment by Helen Hershkoff et al. on Proposed Amendment to Federal Rules of Civil Procedure, to Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts, 7 (Feb. 25, 2014), available at http://www.afj.org/wp-content/uploads/2014/02/ProfessorsJoint-Comment.pdf. See also Lonny Hoffman, The Case Against the Lawsuit Abuse Reduction Act of 2011, 48 HOUSTON L. REV. 545 (2011). 3 See Ashcroft v. Iqbal, 556 U.S. 662 (2009) (holding Iqbal’s factual pleadings insufficient to state a claim); Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) (holding a complaint insufficient absent factual context to support plausibility for relief). 4 Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores, 88 NEB. L. REV. 261 (2009). Scholars have also examined Seventh Amendment consequences of heightened factual pleading requirements in securities fraud actions. Allan Horwich and Sean Siekken, Pleading Reform or Unconstitutional Encroachment: An Analysis of the Seventh Amendment Implications of the Private Securities Litigation Reform Act, 35 SEC. REG. L. J. 4 (2007).

Access to Justice Innovation in Los Angeles County1 A188

• Service of process. Traditional procedures for serving notice in civil lawsuits are functionally obsolete, especially in suits against individuals. Typical methods of serving process are riddled with inaccuracies and inadequacies. In some cases, private process service companies have undergone civil lawsuits and criminal prosecutions regarding service practices.5 One study of process service in New York’s King and Queen Counties found that personal service was achieved in only six percent of civil debt collection cases.6 Service of process via newspaper publication and/or posting on the courthouse door seems quaint in light of technological advancements. The consequences of inadequate service are especially damaging for individuals who only learn of a case through court orders authorizing award enforcement by garnishment or asset seizure following a default judgment. Technological advancements have alleviated some of the issues surrounding inadequate service of process. Electronic service provides a method of serving process for especially difficult-to-reach parties. The cost-saving potential of electronic service is also incredibly high. However, electronic service is not without its limitations with potential controversies over receipt of service and sufficiency of notice.7 • Discovery. While opinions on excessive discovery may vary from the plaintiff to the defense bar, several national surveys report a consensus that the time devoted to discovery is the primary cause of delay in the litigation process.8 Most state court

rules and case law permit discovery for anything that might lead to admissible evidence. This results in an unfocused, and often disproportionate, approach to discovery in which lawyers fail to identify key issues and spend time and effort investigating tangential issues. This expansive nature of discovery and the resulting delays translate to increased litigation costs. In fact, there are frequent complaints that discovery costs often dwarf the value of the case.9 The traditional law firm business model (based on the billable hour) and the lack of disciplinary action in response to excessive discovery filings encourages lawyers to do more discovery rather than smart discovery. • Electronically Stored Information (ESI). Evidence needed to support claims and defenses increasingly exists only in electronic format rather than live witness testimony, papers, or other tangible objects. The costs of ESI discovery include expenses associated with processing old data, reviewer complications based on qualitative differences between paper and electronic documents, and the production of documents.10 The expertise needed to organize, review and analyze electronic records is also very expensive, further increasing the costs of the discovery process. A lack of experience and knowledge on the part of judges and attorneys about how to assess and manage ESI discovery often leads to overly broad requests for production. The effects of over-production are especially felt in specialized areas of civil litigation such as business litiga-

5

See NEW YORK CITY BAR ASSOCIATION COMMITTEE ON NEW YORK CIVIL COURT COMMITTEE ON CONSUMER AFFAIRS, OUT OF SERVICE: A CALL TO FIX THE BROKEN SERVICE PROCESS INDUSTRY available at http://www.nycbar.org/pdf/report/uploads/ ProcessServiceReport4-10.pdf; Bernice Yeung, “Bay Area Residents Sue Process Servers for Failing to Deliver Lawsuits” CALIFORNIA WATCH (May 24, 2012); Press Release, New York State Office of the Attorney General, The New York State Attorney General Andrew M. Cuomo Announces Guilty Plea of Process Server Company Owner Who Denied Thousands of New Yorkers Their Day in Court (Jan. 15, 2010) available at http://www.ag.ny.gov/press-release/new-york-state-attorney-general-andrew-m-cuomo-announces-guilty-plea-process-server. 6 MFY LEGAL SERVICES, JUSTICE DISSERVED: A PRELIMINARY ANALYSIS OF THE EXCEPTIONALLY LOW APPEARANCE RATE BY DEFENDANTS IN LAWSUITS FILED IN THE CIVIL COURT OF THE CITY OF NEW YORK 6 (2008) available at http://www.mfy.org/wp-content/ uploads/reports/Justice_Disserved.pdf. 7 Ronald Hedges, Kenneth Rashbaum, and Adam Losey, Electronic Service of Process at Home and Abroad: Allowing Domestic Electronic Service of Process in the Federal Courts, 4. FED. CTS. L. REV. 55, 66, 72-73 (2011). 8 Based on responses of a national survey of the American College of Trial Lawyers, American Bar Association Litigation Section, and the National Employment Lawyers Association. Judicial responses to an accompanying survey also indicated that the time required to complete discovery was the source of the most significant delay in the litigation process. CORINA GERETY, EXCESS AND ACCESS: CONSENSUS ON THE AMERICAN CIVIL JUSTICE LANDSCAPE 11 (2011) [hereinafter EXCESS AND ACCESS]. 9 See Paula L. Hannaford-Agor & Nicole L. Waters, Estimating the Cost of Civil Litigation, 20(1) CASELOAD HIGHLIGHTS 1, 2013 [hereinafter CASELOAD HIGHLIGHTS]. 10 John Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 DUKE L. J. 547, 564-567 (2010).

2


tion. As the amount of ESI grows, concerns about costs associated with developing an efficient and effective ESI discovery process are paramount.11 • Expert evidence. Scientific or expert evidence is needed to support a growing proportion of claims in all types of civil cases with respect to both causation and damages. Procedures developed to govern the admissibility of expert evidence require judges, who are rarely subject matter experts, to make a twofold assessment: 1) the expert’s qualifications to opine on a given issue and 2) whether the expert’s opinion is sufficiently grounded in recognized science to be admissible in a court of law.12 This process has raised Seventh Amendment concerns related to judges usurping the jury’s role in making determinations about the weight of expert evidence.13 • Mandatory alternative dispute resolution (ADR). ADR encompasses a range of services including mediation, arbitration, and neutral case evaluation and is an integral part of virtually all civil litigation. It offers opportunities for litigants to settle their cases, usually in less time than a formal court hearing (trial) and often at less cost. Beginning in the early 1980s, many courts introduced procedural requirements that litigants engage in one or more forms of ADR, or at the very least consider doing so, especially in lowervalue cases (e.g., less than $50,000).14 ADR

programs are not without their critics.15 Some allege that mandatory ADR imposes an additional procedural hurdle on litigants and drives up the cost of litigation. Other complaints have focused on the qualifications of the professionals who conduct the ADR proceedings. The fees charged by ADR professionals also often exceed court fees.16 Because courts must ensure the quality of their mandatory arbitration programs, there are concerns that the maintenance costs for mandatory ADR programs will pass on unnecessary costs to all litigants. • Summary judgment. Summary judgment rulings in federal and state courts have broad implications for the civil justice system.17 The resolution of a case at the early stages of litigation both halts the unnecessary continuation of litigation and contributes to the expansion of discovery. Rule changes and subsequent case law have facilitated summary judgment rulings in recent decades,18 creating controversy as jurisprudence and rules continue to develop.19 Variations in local rules and ruling propensities of local judges can also complicate summary judgment procedures and make the summary judgment stage a source of uncertainty for litigants. • Perceived unpredictability in trial outcomes, especially jury verdicts. The proportion of civil cases disposed by trial has decreased dramat-

11

EXCESS AND ACCESS, supra note 8, at 14. Daubert v. Merrel Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), further defined the judicial gatekeeping role with respect to expert witness testimony. 13 See Allan Kanner and M. Ryan Casey, Daubert and the Disappearing Jury Trial, 69 U. PITT. L. REV. 281 (2007-2008) (discussing the impact of the Daubert ruling and subsequent seventh amendment concerns in the civil justice system). While it will not alleviate constitutional concerns, better training for trial judges making expert witness determinations can help ensure more knowledgeable determinations regarding the admissibility of expert witness testimony. See also Forensic Sciences: Judges as Gatekeepers, in JUDGES’ J. (Summer 2015) (publishing articles by scientific experts to provide knowledge to judges and lawyers to assess the reliability of expert evidence). 14 Oregon has a mandatory ADR provision for cases under 50,000. OR. REV. STAT. § 36.400 (3) (2011). New Hampshire requires mediation in small claims cases in which the jurisdictional amount is in excess of $5,000. N.H. Cir. Ct. R, Dist. Div. 4.29. Some jurisdictions classify certain summary jury trial programs as ADR programs. For examples of jurisdictions in which summary jury trials are classified as ADR programs, see PAULA HANNAFORD-AGOR et al., SHORT, SUMMARY, & EXPEDITED: THE EVOLUTION OF CIVIL JURY TRIALS (2012) [hereinafter SHORT, SUMMARY & EXPEDITED]. 15 Michael Heise, Why ADR Programs Aren’t More Appealing: An Empirical Perspective (Cornell Law Faculty Working Paper No. 51) available at http://scholarship.law.cornell.edu/clsops_papers/51/. 16 RAND CORP., ESCAPING THE COURTHOUSE, RB-9020 (1994) (available at http://www.rand.org/pubs/research_briefs/RB9020/index1.html). 17 See Brooke Coleman, Summary Judgment: What We Think We Know Versus What We Ought to Know, 43 LOY. U. CHI. L. J. 1 (2012) (describing various scholarship on summary judgment effects). 18 John Langbien, The Disappearance of Civil Trial in the United States, 122 YALE L.J. 522, 566-568 (2012). 19 For a succint analysis of summary judgment in the federal courts, see WILLIAM SCHWARZER et al., THE ANALYSIS AND DECISION OF SUMMARY JUDGMENT MOTIONS: A MONOGRAPH ON RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE (1991). 12


ically over the past 40 years.20 The reasons for the decline are numerous and, in some instances, quite subtle. They include increases in the availability of alternative dispute resolution (ADR) programs including contractually required binding arbitration in many consumer and employment contracts; the costs for discovery and pretrial stages of litigation, which have prompted some litigants to forego trials for a negotiated settlement; delays in scheduling trials due to the increased volume of civil cases without commensurate increases in court resources; and widespread public perceptions about the unpredictability of trial outcomes, especially in jury trials.21 Although empirical research confirms that jury trial verdicts are actually very predictable,22 the shift away from trial as the dominant mode of case disposition has likewise reduced the number of attorneys with jury trial experience. Consequently, attorneys are less qualified to assess the merits of their cases and to advise clients about taking cases to trial by jury.23 • Lack of court resources allocated to civil justice. Constitutional guarantees of a speedy trial in criminal cases tend to relegate civil matters to the bottom of scheduling priorities.24 This is exacerbated in tight budgetary cycles as courts may be operating under furloughs or reduced hours, further decreasing scheduling options for civil cases. Some courts have responded by creating specialized courts, especially for business or commercial litigation, to address the recent lack of court resources. Although these dockets and courts guarantee civil litigation its

own niche in court scheduling, sustaining the dockets may become challenging as there must be a sufficient case volume to justify the expenditures. Additionally, efforts to provide scheduling priorities within civil case categories might meet statutory requirements,25 but the bulk of civil litigation is then left last in line for scheduling.

CIVIL JUSTICE IMPROVEMENT EFFORTS The general complaint concerning these challenges is that collectively they contribute to unsustainable cost and delay in civil litigation, ultimately impeding access to justice. These problems have not been allowed to develop entirely unchecked, however. Across the country, court leaders have developed a variety of reform efforts to address issues in the civil justice system. For example, some states have designed and implemented programs targeting specific types of cases, especially related to business, commercial, or complex litigation. The California Judicial Council instituted a complex civil litigation pilot program in response to litigant concerns regarding the “time and expense needed to resolve complex cases, the consistency of decision making, and perceptions that the substantive law governing commercial transactions was becoming increasingly incoherent.”26 Fulton County, Georgia implemented a Business Court that moves complex contract and tort cases through the litigation process in half the amount of time the general docket moves the same types of cases.27 Other states have designed and implemented more tailored projects. In 2009, Colorado began developing pilot rules and procedures for the Colorado Civil Access Pilot Project (CAPP) applicable to business actions

20 Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIR. LEGAL ST. 459 (2004) [hereinafter The Vanishing Trial]. 21 The first issue of the Journal of Empirical Legal Studies published the papers presented at the ABA Vanishing Trial Symposium, which addressed these and other issues related to vanishing trials. 22 See generally NEIL VIDMAR & VALERIE P. HANS, AMERICAN JURIES: THE VERDICT (2007) (summarizing several decades of empirical research on juror decision-making in a variety of contexts and concluding that jury verdicts are largely rational and conform to the weight of the evidence presented at trial). 23 Tracy W. McCormack & Christopher J. Bodnar, Honesty is the Best Policy: It’s Time to Disclose Lack of Jury Trial Experience, 23 GEO. J. LEG. ETHICS 1 (Winter 2010). 24 U.S. CONST. amend VI. State constitutions also contain provisions guaranteeing the right to a speedy trial. See e.g. MO. CONST. art. I, § 18(a). 25 It should be noted that certain civil matters such as protective order hearings also have temporal scheduling requirements and supplant more generic civil matters in scheduling. For examples of these requirements see e.g., N. H. REV. STAT. ANN. § 173-B:3 (2014) (setting timeline for domestic violence protective order hearing); VA. CODE ANN, § 16.1-252 (2014) (setting timeline for removal hearings in child abuse and neglect matters). 26 Nat’l Center for St. Cts., Complex Litigation: Key Findings from the California Pilot Program, 3(1) CIVIL ACTION 1 (2004). 27 Sixty-five percent faster disposition time for complex contract cases and 56 percent faster disposition time for complex tort cases. FULTON COUNTY SUPERIOR COURT, BUSINESS COURT: 2014 ANNUAL REPORT 4 (2014).

4


in the Colorado district courts. The CAPP program focused on developing new procedures to streamline the pretrial discovery process and minimize expert witness costs.28 The final pilot rules were implemented in 2012 and have been authorized for application to cases filed through December 31, 2014.29 Similarly, New Jersey, Pennsylvania, and Texas have all undertaken efforts to coordinate the management of mass tort litigation through the promulgation of court rules. For example, the Supreme Court of New Jersey promulgated a rule enabling the unification of qualifying mass tort cases for central management purposes.30 The rule grants the Administrative Director of the Courts the power to develop criteria and procedures for unifying the mass tort litigation, subject to approval by the Court. Complex litigation centers generally serve as the clearinghouse for such litigation. Similar coordination efforts in the form of dedicated trial calendars have also taken place for landlord/tenant and mortgage foreclosure cases. Federal and state courts have also pursued procedural reforms on a broader scale. As discussed above, federal courts have heightened pleading standards. New Hampshire also altered their pleading standards (from notice pleading to fact pleading) in a two-county pilot program implemented in 2010. The pilot rules were subsequently adopted on a statewide basis effective March 1, 2013.31 Statewide rule

changes in Utah have altered the discovery process in a variety of ways including proportional discovery requirements and tiered discovery based on the amount in controversy.32 Discovery reforms have also taken place in the federal courts. The Seventh Circuit Electronic Discovery Pilot Program aims to reduce the rising costs of e-discovery through a myriad of reforms and is currently in phase three of its implementation.33 Some federal agencies are also focusing on civil justice improvement in certain types of cases. For example, the Consumer Financial Protection Bureau (CFPB) recently issued proposed rules of procedure for debt collection cases filed in state courts to address complaints concerning venue, service of process, and disclosure of the factual basis for debt collection claims.34 Research organizations such as the NCSC and the Institute for the Advancement of the American Legal System (IAALS) have also coordinated with pilot project jurisdictions to conduct comprehensive outcome and process evaluations of reform efforts. These implementation and evaluation reports are a crucial aspect of ensuring effective and efficient reforms of the civil justice system. This is especially the case as court leaders continue to take a proactive stance towards civil justice reform through efforts such as the Conference of Chief Justices (CCJ) Civil Justice Improvements Committee.35

28 State of Colorado Judicial Branch, A History and Overview of the Colorado Civil Access Pilot Project Applicable to Business Actions in District Court 3, available at http://www.courts.state.co.us/userfiles/file/Court_Probation/Educational_Resources/CAPP%20Overview%207-11-13.pdf. CORINA D. GERETY & LOGAN CORNETT, MOMENTUM FOR CHANGE: THE IMPACT OF THE COLORADO CIVIL ACCESS PILOT PROJECT (October 2014). 29 Id. at 2. 30 N. J. SUP. CT. R. 4:38A. 31 PAULA HANNAFORD-AGOR ET AL., NEW HAMPSHIRE: IMPACT OF THE PROPORTIONAL DISCOVERY/AUTOMATIC DISCLOSURE (PAD) PILOT RULES 2 (2013) [hereinafter NEW HAMPSHIRE PAD RULES REPORT]. 32 PAULA HANNAFORD-AGOR & CYNTHIA LEE, UTAH: IMPACT OF THE REVISIONS TO RULE 26 ON DISCOVERY PRACTICE IN THE UTAH DISTRICT COURTS (April 2015) [hereinafter UTAH RULE 26 REPORT]. For a synopsis of amendments to Utah’s Rules of Civil Procedure see IAALS, Utah Rules of Civil Procedure, http://iaals.du.edu/library/publications/utah-changes-to-civil-disclosure-and-discovery-rules (last visited April 14, 2014). 33 For information on the Seventh Circuit Pilot Program see the program’s website at http://www.discoverypilot.com/. 34 Advance Notice of Proposed Rulemaking from Consumer Financial Protection Bureau, 78 Fed. Reg. 218 (proposed Nov. 12, 2013) (to be codified at 12 CFR Part 1006). 35 In 2013, The Conference of Chief Justices created the Civil Justice Improvements Committee. The mission of the committee is to translate the lessons learned from state pilot projects, applicable research, and rule changes into guidelines and best practices for civil litigation. The committee’s mandate also includes the development of caseflow management reforms for the improvement of the state court civil justice system. Committee membership was finalized in the spring of 2014 and consists of judges, lawyers, academics, researchers, and court administrators with broad expertise related to civil litigation issues. The committee membership strikes a balance between the plaintiff and defense bars, trial and appellate judges, and court administrators with case management expertise. Both the National Center for State Courts (NCSC) and the Institute for the Advancement of the American Legal System (IAALS) provide research and logistical support to the committee. The Civil Justice Improvements Committee is conducting the bulk of its work through plenary meetings and subcommittees. This report is meant to provide an overview of the current landscape of civil litigation in state courts for the committee members.


An Incomplete Picture of the Civil Justice System filing-to-disposition time, is difficult to obtain. The most recent large-scale national study of civil caseloads is the 1992 Civil Justice Survey of State Courts (see Figure 1).37 In that study, the NCSC collected detailed information about civil cases disposed in 1992 in the general jurisdiction courts of 45 large, urban counties

The vast majority of civil cases in the United States are filed in state courts rather than federal courts.36 However, other than the actual number of filings, and sometimes number of dispositions, detailed information about civil caseloads in the United States such as caseload composition, case outcomes, and

Figure 1: 1992 Civil Justice Survey of State Courts, Case Types Automobile Tort

227,515

Premises Liability

65,492

Other Negligence

22,347

Medical Malpractice

18,452

Product Liability

12,857

Intentional Tort

10,879

Other Professional Malpractice

6,860

Toxic Substance

6,045

Unknown Tort

4,708

Slander/Libel

3,159

Seller Plaintiff (Debt Collection)

189,246


68,919

Buyer Plaintiff

44,744

Lease

20,687

Other Contract Fraud

18,656 15,927

Employment

8,159

Title Dispute

8,021

Other Real Property

6,707

Eminent Domain

4,631

Other Civil

2,299 Other

Real Property

Contract

Tort

36

In 2013, litigants filed approximately 16.9 million civil cases in state courts compared to 259,489 civil cases filed in U.S. District Courts. NCSC COURT STATISTICS PROJECT, EXAMINING THE WORK OF STATE COURTS, 2013 (2015) (this estimate includes probate and mental health filings in addition to general civil filings). Federal Judicial Caseload Statistics, Table C available at http://www.uscourts.gov/statistics-reports/ caseload-statistics-data-tables?tn=C&pn=All&t=68&m%5Bvalue%5D%5Bmonth%5D=12&y%5Bvalue%5D%5Byear%5D=2014. 37 The Civil Justice Survey of States Courts was a periodic study of civil litigation funded by the U.S. Department of Justice, Bureau of Justice Statistics (BJS). The statistical frame of estimating characteristics of cases filed in state courts based on filings in a sample of the 75 most populous counties was a technique employed by BJS to estimate national trends for a number of ongoing data collection efforts. Subsequent iterations of the Civil Justice Survey of State Courts (1998, 2001, and 2005) have focused exclusively on case characteristics and outcomes for bench and jury trials rather than the full range of possible case outcomes.

6


and used that information to estimate civil caseloads and case outcomes for the 75 most populous counties in the country.38 Of more than 750,000 civil cases disposed in the 75 most populous counties, it estimated that approximately half (49%) alleged tort claims, 48 percent alleged contract claims, and two percent were real property disputes. Automobile torts were the single largest subcategory of tort cases, accounting for nearly two-thirds (60%) of all tort cases. In contrast, product liability and medical malpractice cases, which generate some of greatest criticisms of the civil justice system, reflected only four percent of total civil cases combined. More than half (52%) of the contract cases were debt collection (seller-plaintiff) cases, and mortgage foreclosures accounted for another 18 percent of total civil cases.39 Settlement by the parties was the single most common outcome for a civil case (62%), compared to 14 percent default judgments, 10 percent dismissals for failure to prosecute, four percent transfers to

another court, four percent summary judgment, and only three percent judgments following a bench or jury trial (see Figure 2). Subsequent iterations of the Civil Justice Survey of State Courts focused exclusively on bench and jury trials. Consequently, more recent descriptions of civil justice caseloads have relied on aggregate statistics reported to the NCSC as part of the Court Statistics Project as well as studies of specific issues in individual state or local courts. For a variety of reasons, these types of studies are often unable to provide definitive answers to the most commonly asked questions. Part of the difficulty stems from the inability of many case management systems to collect and generate reports about civil caseloads. Most case management systems were initially developed to schedule and record case filings and events (e.g., hearings and trials) and report the progress of the case through the system in general terms. Although some of these

Figure 2: 1992 Civil Justice Survey of State Courts, Case Dispositions Settlement

62%

Default Judgment

14%

Dismissal

11%

Summary Judgment

4%

Transfer

4%

Arbitration Award

3%

Jury Trial

2%

Bench Trial

1%

Unknown Outcome