top Mass. Judge praises pro se efforts, but prefers lawyers for all

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On Thursday, Margaret H. Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, gave her Annual Address to the Massachusetts Bar Association (Nov. 30, 2006, pdf; MassCourts Press Release).  As an article in yesterday’s Boston Herald suggests, a significant part of the Address concerned the issue of unrepresented litigants in the Massachusetts courts. (“Some Civil Courts Short on Legal Help, Dec. 1, 2006) [Note: If you click “read the rest of this entry” below, you will find the entire section of Justice Marshall’s Address dealing with this topic.]

ScalesRichPoor  Noting that 70% of litigants in Housing, Family and Probate Courts appear without counsel, Chief Justice Marshall proudly states that “Massachsetts is emerging as a national leader in addressing the challenges presented by self-represented litigants.”  As examples, she points to the brand new “limited representation” [unbundling] pilot project in the Probate and Family Courts of two counties (see our prior post) — with the good news that response of the Bar has been “overhwelming, and positive” — and to volunteer Lawyer-for-a-day projects in housing courts.  

CJ Marshall then notes” “Despite our best efforts and those of the bar, many litigants remain unable to afford an attorney. What of them?”  Her answer: “the excellent handbook providing critical information to those who represent themeselves, including information onhow to obtain counsel” which has been sent to every civil court clerk and law library in the State, and is available online.  [Ed. note: see “Representing Yourself in a Civil Case: Things to Consider When Going to Court” (81 pp, pdf) and MassCourts Self Help website

Although I do wonder whether the Bar has used its “best efforts” to make legal services affordable to all (e.g., how much fee-cutting has gone on?), I join the Chief Justice in applauding Massachusetts’ efforts to help those who appear pro se in their courts and to help spread the concept and use of unbundled legal services.  I am concerned, however, with Chief Justice Marshall’s statement:

“. . . we recognize that litigants are best served when they are represented by counsel.  Securing represerntation for all parties, in all civil cases, remains our goal.”

Granted, she is addressing the bar association and perhaps needs to placate those who fear that the self-help movement is taking away work that rightly belongs to the lawyer guild.  But, shouldn’t she be fighting that attitude, not perpetuating it?  The mantra “litigants are best served when they are represented by counsel” is simply overbroad, and sounds much too much like the approach voiced by the Massachusetts Bar President in 2001. 

wolfDude Edwin P. Ryan, Jr., told a statewide conference on pro se litigants, in March 2001, that the numbers being cited might be “greatly exaggerated;” that the unrepesented often got special advantanges in court (which might persuade represented litigants not to use lawyers next time); and, therefore, that the Bar Association would be creating, for the courts to distribute, “suitable educational materials” which would help every litigant understand the need to have a lawyer and would help match pro se litigants with lawyers willing to take their case “on mutually-agreeable terms.”  See the resulting article, “Educating pro se litigants on the need for counsel” (Mass.Bar, May 3, 2001), which also seems to disparage the use of simplified forms and procedures, as well as the provision of assistance to the unrepresented on navigating the system.

There are many situations where a lawyer is very helpful and even necessary for a litigant to get justice and uphold his or her rights.  But, as stated on our About SHLEP page, Americans should not have to pay a “lawyer tax” every time we go to court.  (My decade practicing Main Street law has left me certain that, in the kinds of cases most encountered by the average member of the public, lawyers often do no better advocacy at court than their client — sometimes, with a little guidance — could have done, while making the matter more contentious and extended.) 

We should be working toward a system where as many cases as possible can be handled by individuals themselves, when that is their choice or their financial necessity.  Article XI of the Massachusetts Constitution states that every subject of the Commonwealth “ought to obtain right and justice freely, and without being obliged to purchase it, completely, and without any denial, promptly, and without delay, comfortably to the laws.”  (emphasis added)  At a minimum Article XI should mean that persons — even those who can purportedly “afford” to hire a lawyer — should not have to retain counsel unnecessarily.   Similarly, the taxpayer should not be asked to pay for lawyers to serve “the poor,” in cases where forms of self-help assistance can provide information and services adequate to resolve a legal matter.   Lawyers should not hold the key to the Courthouse door.  Those courts belong to you and me.

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Excerpt on the issue of parties in court without lawyers, by Margaret H. Marshall, Chief Justice, Supreme Judicial Court, Nov. 30, 2006, Annual Address to the Massachusetts Bar Association (Nov. 30, 2006):

We have accelerated efforts to help the thousands of litigants who represent themselves in court, even as we recognize that litigants are best served when they are represented by counsel. Securing representation for all parties, in all civil cases, remains our goal. But that is not the present reality. In 2006, for example, some seventy-seven percent of litigants appearing in our housing courts, and a similar percentage of litigants in our probate and family courts, were not represented by counsel.

To help address that challenge, we recently launched the limited assistance representation pilot project in the Suffolk and Hampden Divisions of the Probate and Family Court. With the support of this Bar Association and others, the project was developed by the Supreme Judicial Court’s Steering Committee on Self-Represented Litigants, chaired by Appeals Court Justice Cynthia J. Cohen. Limited assistance representation is just that. It permits attorneys and their clients to decide in a particular case which issues or which court hearings an attorney will handle for the client, without requiring the attorney to participate in every aspect of the proceeding.

The pilot project has been underway for a few short weeks. The response has been overwhelming, and positive. Already three hundred attorneys have attended information sessions held in Boston, in Chatham, and in Springfield to qualify attorneys to represent clients on a limited basis in the pilot courts. So many attorneys want to participate that the Steering Committee is hard at work to meet the demand. Attorneys who practice in other courts have also inquired about expanding the pilot program. Massachusetts is emerging as a national leader in addressing the challenges presented by self-represented litigants.

The bar has helped in other ways. In our trial courts, week after week, volunteer lawyers have stepped forward to advise and assist litigants as they seek to resolve their disputes. Most recently a “lawyer-for-a-day” program has been instituted in the Northeast Division of the Housing Court in Lawrence. I look forward to visiting that court next month to see first-hand the work of these dedicated volunteers.

But despite our best efforts and those of the bar, many litigants remain unable to afford an attorney. What of them? The Steering Committee recently published an excellent handbook providing critical information to those who represent themselves, including information on how to obtain counsel. It has been sent to every civil clerk’s office and every law library in the Commonwealth. It may also be found on the Trial Court’s intranet and internet websites.  [Ed. note: see “Representing Yourself in a Civil Case: Things to Consider When Going to Court” (81 pp, pdf) and MassCourts Self Help website]  Ellen O’Connor, the Director of the Judicial Institute, led the working group that developed this important resource guide.

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