shlep: the Self-Help Law ExPress

I know this may be a bit beyond the scope of this blog but I ran across a new law review article that may be of interest to scholars who are interested in the right of self-representation.  I’m posting the abstract for the article.

Georgetown Journal of International Law
Spring, 2009

SELF-REPRESENTATION IN THE INTERNATIONAL ARENA: REMOVING A FALSE RIGHT OF SPECTACLE
40 Georgetown Journal of International Law 919 (2009)
Eugene Cerruti

Recent historical scholarship has demonstrated that the practice of self-representation at common law was developed and promoted not to secure a valued right to the accused but rather to compromise the defendant’s ability to present an effective defense–by denying him an effective right to be represented by counsel. The Supreme Court in Faretta v. California stood this history on its head in order to read into the Sixth Amendment an implied right to self-representation equal to the now preeminent right to counsel. The Faretta doctrine was carelessly adopted yet has been resolutely defended by the Supreme Court, to the almost universal chagrin of those most directly affected by its commands. The recent Supreme Court case of Indiana v. Edwards is only a modest retreat from the pointless imposition on the lower courts of a structurally and normatively incompatible right within the context of the contemporary counsel-driven system of criminal justice.

A putative right to self-representation silently entered international law via a back door at Nuremberg as a result of that tribunal’s near-wholesale adoption of the apparent rights and protocols of the common law adversarial system. It was subsequently adopted in the International Covenant on Civil and Political Rights as one of the standard “rights of the accused” but never actually put into effect in international law until the creation of the various war crimes tribunals of the last two decades. The right to self-representation has almost immediately replicated its experience in American law by creating a shameful series of disreputable prosecutions. It has become another example of a feature of the adversarial system, like that of the lay jury, which does not travel well–or at all–to the international arena. The structural and normative groundings of the international system make the right even more inapposite there than it now is in the common law system. This article calls on the International Criminal Court, the new standard-bearer of international criminal justice, to take advantage of the upcoming seven-year review of its rules and procedures to strike from its Articles a practice that has been reduced to little more than a perverse right of spectacle.

    A new report from the State Bar of Wisconsin‘s Access to Justice Committee showcases the findings of the State’s “first comprehensive legal needs study of low-income residents,” and makes recommendations for closing the justice gap between the State’s rich and poor. “Bridging the Justice Gap: Wisconsin’s Unmet Legal Needs: Final Report,” Access to Justice Study Committee, State Bar of Wisconsin (March 9, 2007, 26 pp, pdf.; webpage)  The Report’s recommendations cover a broad array of goals and assign tasks for various segments of the legal profession and the government.  (via SelfHelpSupport.org)

Here are the broad recommendations: 

1. Funding from the State of Wisconsin is necessary to help close the Justice Gap and must be adequate to meet the needs of at least those who are currently turned away due to lack of funding.
2. A permanent Wisconsin Access to Justice Commission should be established.
3. Self-help centers for unrepresented litigants should be established in every courthouse in Wisconsin.
4. Expanded use of nonlawyer advocates before Wisconsin courts and agencies must be explored. [“The Wisconsin Supreme Court should modify ethics rules and procedural rules to permit paralegals to advocate in court and before agencies on a limited basis.]”
5. Client contributions to the cost of services may be an appropriate means of expanding access to justice for residents who can afford to do so.
6. Increasing Wisconsin’s already high court filing fees is not an appropriate means of expanding access to justice.
7. The current $50 assessment on attorneys to help pay for civil legal services to the poor should be retained and the exemption for judges should be removed.
8. Expanded efforts to increase the already substantial pro bono contributions of Wisconsin lawyers should be explored.

  In addition, the Report sets forth many tasks for the State Bar, the legislature and the courts.  Lawyers, their firms, and law schools have assignments, too, in the campaign to close the justice gap.  Suggestions for increasing the provision of unbundled legal services and volunteer advice programs are outlined. Below the fold, we provide excerpts that flesh out some of the most important recommendations, including the major role suggested for the State’s two law schools.

    It is a mantra used  by staff in courthouses and libraries throughout the English-speaking world: “We can give you legal information but not legal advice.”  E.g., see the Delaware State Court We Can/We Cannot page; John Greacen’s Judicature article (2000); and Iowa’s Guidelines & Instructions for Clerks Who Assist Pro Se Litigants in Iowa’s Courts (2000, 42-pp pdf).  As you might suspect, making the distinction can be quite difficult — frustrating to both court personnel and pro se litigants.

 The Arizona Supreme Court decided last year to do something about the problem. Noting that “With the increase of self-represented litigants in Arizona, the issue of how to provide assistance and information to court customers without giving legal advice is becoming more critical and urgent,” it established a Task Force on Legal Advice-Legal Information.  Earlier this month, the Task Force issued:

• its Final Report (March 2007, 6 pp pdf), which notes in fn. 1 that “Although Arizona Rules of Court define ‘practice of law’ and ‘unauthorized practice of law,’ the Rules do not define ‘legal advice.’”
• a GUIDE TO COURT CUSTOMER ASSISTANCE: Legal Advice – Legal Information Guidelines for Arizona Court Personnel (March 2007, 67-pp pdf; with a 40-page Glossary of Terms)
• a Question and Response Handbook (March 2007, 59-pp pdf).
• Signage [Ed. Note: This is a one-page Welcome / We Can / We Cannot sign, made difficult to read by having the Seal of the Supreme Court appear behind the message.  As I do whenever I see such lists, I wonder if the Task Force argued over “We May” and We Can”.]

The Task Force documents will surely be helpful for court personnel who worry about crossing the info/advise line (and about being sued for UPL).  I am, nonetheless, a bit concerned that the tone is too stingy with useful information.  For example: The Handbook says: “When you are uncertain if you are being asked to give legal advice, please suggest that the one asking the question consult an attorney.”  Telling a pro se litigant to consult an attorney to answer one borderline question will seldom be helpful.  I’d say “bend over backward — or stick out your neck — to help them.”

Also worrisome is the following pair of Questions and Answers in the Handbook:

1. Q. I can’t afford an attorney. Can you tell me what to do?
   A. Court personnel are not allowed to give legal advice and cannot guess what might be in a court customer’s best interests. Court personnel must remain neutral; there may be a list of local resources of attorneys who will work for a reduced fee or no fee.
2. Q. Should I get a lawyer?
   A. Parties are not required to have a lawyer to file papers or participate in a court case. Court personnel cannot advise a party whether the party should hire a lawyer, nor may they recommend a specific lawyer. The State Bar of Arizona provides a lawyer referral number at 602-252-4804 or 866-482-9227 and the local County Bar Association may have a referral number. Some courts provide a list of local attorneys and there may be a list of local resources of attorneys who will work for a reduced fee or no fee.

Both answers seem strangely incomplete in a Handbook specifically created to help the unrepresented litigant in Arizona.  As we have said on our Getting Self-Help Help page, Arizona has been a trailblazer in creating online and in-court Self Help Centers, and the State has a network of Self-Help Centers, located in courthouses in at least a dozen counties.  A pro se litigant who complains he or she cannot afford a lawyer or who asks whether a lawyer is needed, ought to — in addition to being told about attorney options — be pointed to the Self-Help Center down the hall (or across the room), which surely has relevant information and assistance.  To respond by only suggesting they seek out a list of lawyers or the Bar Association’s referral program is inexplicable (unless, of course, the Arizona Bar controlled the Task Force).  

• If you are a practitioner/professional interested in this topic, please note that SelfHelpSupport.org‘s April Webinar is “on Legal Advice vs. Legal Information.”  Two experts, John Greacen and Judy Meadows will present it on April 30, 2007 from 3-4:30 pm (EST) [I assume they mean EDST]. You need to be an SHS or SRLN member (it’s free and has many other benefits). You can sign up now by emailing anorris [AT] ncsc.dni.us. 

Below the fold, I have reproduced the Task Force definitions of “legal advice” and “legal information.”  

   We’ve frequently stressed the important (and often difficult) role that judges have in the process of assuring fair access to justice for the self-represented litigant (e.g., here and there).  Attempting to help the pro se party [called pro pers in some western states] understand law and procedure and effectively present their case, while maintaining neutrality toward all parties to a suit, takes agility and skill, and an appropriate temperament. (see our post earlier this week on Ghostwriting in NJ)  Judges in the California court system were given a great tool for understanding and fulfilling this role with the publication of a 245-page guide called “Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers.” (CA Administrative Office of the Courts, Center for Families, Children and the Courts, January 2007) (via SelfHelpSupport.org, where members can access the document)

This benchguide covers the following topics, in addition to providing sample scripts to use in many situations:

1. Self-represented litigants: Who are they and what do they face when they come to court? [note: 450,000 people use self-help resources annually in California]
2. Expanding access to the court without compromising neutrality
3. California law applicable to a judge’s ethical duties in dealing with SRLs
4. Solutions for evidentiary Challenges
5. Caseflow management
6. Courtroom and hearing management   
7. Settling cases
8. Special due process considerations
9. Communication tools
10. Avoiding unintended bias
11. Addressing litigant mental health issues in the courtroom
12. Judicial leadership in access to justice

For a document with similar goals, check out How Can Judges Communicate Effectively With Self-Represented Litigants? (compiled by the American Judicature Society, 64 pp. pdf).  Further helpful resources that we have discussed here at shlep include:

• Jona Goldschmidt‘s “Judicial Assistance to Self-Represented Parties: Lessons from the Canadian Experience“ (2006, 44-pp, pdf.).  
• Statement of Principles on Self Represented Litigants and Accused Persons (Canadian Judicial Council, 2006, 12 pp. pdf),
• the Supreme Court of Queensland’s Equal Treatment Benchbook,
• The Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, approved by the Justices of the Massachusetts Supreme Judicial Court in April, 2006.

A new study looks at felony defendants in state and federal court. Contrary to common beliefs that criminal defendants who choose to represent themselves are mentally ill and/or foolish, the author finds that they do pretty well — sometimes even better than represented defendants. Erica J. Hashimoto, Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant. North Carolina Law Review, Forthcoming (45 N. Car. L. Rev. 423). Available at SSRN: http://ssrn.com/abstract=901610

IN her biennial State of the Judiciary Address given to the 150 joint members of the State Legislature, Chief Justice Karla Gray called for the legislators’ help in “[meeting] our constituents’ needs for – and constitutional guarantees to – quality and reasonably timely justice.” (Newspaper Article, 1 page). Proposed items in the Judiciary’s 2007-2009 budget include:

$3.9 million to upgrade Information-Technology Systems across District Courts and Courts of Limited Jurisdiction

$1.6 million to address pay-equity issues amongst all court staff

~$400,000 for children’s advocacy programs

$300,000 to improve security in District Courts

$250,000 for additional staff to the Supreme Court

OF the $250,000 for additional staff, a portion would be used towards hiring a pro se law clerk who, along with an appelate mediator, would help “resolve a significant portion of [the Courts’] caseload.” House Bill 60 (HTML document, 2 pages) addresses the proposed Self-Help Law Program to be administered by the Supreme Court, enumerating a number of charges along with the bill’s purpose:

(1) providing all Montanans with user-friendly information about Montana’s civil law, courts, and legal system;

(2) providing state-level, self-help legal resources, tools, information, and training materials on a statewide basis in a cost-effective manner emphasizing technology and volunteer services; and

(3) facilitating the efficient use of judicial resources in civil court proceedings that involve self-represented litigants.

THE bill details a $1 million appropriations note to provide education and resources for 2 years. Passed with unanimous, bi-partisan support by the 2006 Law and Justice Interim Committee which created the bill by order of 2005 Senate Joint Resolution 6 (HTML document, 2 pages); HB60 is yet to be heard by the House Judiciary Committee of the 60th Legislative Session. SJR6 coincided with the Legal Needs Survey of 2005 (PDF Document, 4 pages) conducted by the State Bar which concluded that approximately 83% of the 207,501 unmet legal needs of low-income Montanan Households receive no attention from an attorney. Chief Justice Gray was singing a very similar tune in her original testimony to the Law and Justice Interim Committee in 2006:

“Right and justice shall be administered without denial or delay. For families and low income people in your district, your constituents, my constituents, the people of the state of Montana, the need is huge. The access to justice community has leveraged every hour, every nickel, about ten times farther than anyone else anywhere in the country trying to address these issues. [Myself] personally, and the courts of this state, have nudged, cajoled, encouraged, and semi-coerced lawyers into meeting their professional obligation of rendering pro bono service and the Legislature can take it to the bank that the court will keep doing that, but the fact is, there are never going to be enough pro bono lawyers to represent every low income person in our great state who has legal problems and needs to get into court.”

SHE has given the people of Montana, and their legislators, time and time again her expert opinion on what the legal needs are for low-income Montanans. Chief Justice Karla Gray’s message of dire need has been championed repeatedly, only time will tell how many people in positions of power have listened; they have until April 27th.

Last June, I started observing and taking statistics on patron questions at
our courthouse library.  My goal was to get an idea of how the library is
used by the courthouse, legal and lay communities.  The questions that
required more substantive responses—some significant interaction such as
educating a patron on the types of legal information resources available—
gave me the opportunity to get a glimmer of the legal information needs of
our patrons.

The largest portion of such questions, 40%, were general in nature, e.g. not
related to any specific area of law.  Examples of such questions include how
to generally research a legal issue or use an electronic database.  
Significant question subject areas included family law (10%), real property
(6%), guardianship of minors (6%) and government law (6%).  Interestingly,
the largest specific category was legal procedure (13%).  Typically, the
questions asked in this area were requests for forms or for materials
explaining how to perform a certain procedure, e.g. filing a mechanics lien;
obtaining an emergency court date, statutes of limitations and how to bring
an appeal.

These numbers are not the result of a scientific survey.  They also do not
distinguish between whether or not a questioner was an attorney or pro se.  
(If I had to guess I would say the break down would be 40% attorney and 60%
pro se).  I do think they raise an important point that many people using
the courthouse, and especially pro se’s are in need of instruction in the use of legal resources as well as the courthouse procedures.

How many cases are being handled by people without lawyers? The answer varies by state and by type of case. Madelynn Herman, a researcher at the National Center for State Courts, summarized a number of studies in a memorandum, “Pro Se: Self-Represented Litigants, Pro Se Statistics,” Sept. 25, 2006.

A large number of domestic relations cases have at least one party who is not represented by an attorney. Here are some percentages (with the jurisdiction and date of the study in parentheses):

• 49% of petitioners and 81% of respondents (Utah 2006)
• at least one party in almost 70% of cases (New Hampshire 2004)
• 67% of petitioners at time of filing, 80% at time of disposition (California 2004)
• 73% (Florida 2001)
• 70% (Wisconsin 2000)

While people have a right to represent themselves, there are certainly many people who represent themselves only because they don’t have the financial resources to hire someone. A case currently in the Washington Court of Appeals addresses whether a woman should have had court-appointed counsel in a proceeding at which she lost custody of her children. The Washington State Bar Association is considering whether to file an amicus brief in the case, In re Marriage of King. (See Trial Ad Notes post.)

Small claims courts are set up for people to handle their own cases. In fact, in some matters, people may not be represented. So it’s not surprising that a study in Utah (2006) found 99% of the petitioners and 99% of respondents in small claims court were self-represented.

For civil cases overall, a New Hampshire study (2004) found at least one party was self-represented in 85% of cases in district court and 48% of cases in superior court.

A California study (2004) reported 4.3 million self-represented court users.

Page 13 of this month’s ‘Montana Lawyer’ (pdf, 40 pg.) features the 2006 pro bono report compiled by a VISTA working with the State Bar. His report concludes that the two most effective organized pro bono programs come from court-administered (read: mandated) programs like in Silver Bow County (Butte) and local-firm administered programs like in Billings. What are the most effective ways of galvanizing attorney support in your area?

The court-administered program in Butte simply uses an alphabetical list of attorneys who are members of the local bar organization. Clerks of court and other employees of the judicial system contact the next lawyer on the list when a pro bono need arises, only severely mitigating circumstances (upcoming trial dates or illness) are permitted to excuse an attorney from his/her duty. When local attorneys do not cooperate, the 2nd Judicial District Judges then make the calls which most often results in full cooperation. Essentially, the program is effective due to the top-level support offerred by the Judges and their court staff.

Billings’ successful pro bono program can be attributed to the firm-administered policies by Crowley, Haughey, Hanson, Toole & Dietrich, whose attorneys averaged almost 40 hours of legal advice or representation administered without any expectation of fees. Although Rule 6.1 of Montana’s Rules of Professional Conduct suggests that it is each attorney’s professional responsibility to provide 50 hours of pro bono service, it is neither a requirement nor enforcable by existing State Bar practices. The Crowley firm’s commitment to service is thus highly commendable and should serve as a model for other firms.

What does this report have to do with self-representation? Well, the more attorneys are involved with free legal services, the higher the likelihood that Montana will begin to take the legislative steps necessary to allow for activities like unbundled legal services and lawyer staffed self-help workstations. The more firms and courts are recognized for their commitment to service, the more incentive exists for lawyers to provide pro bono hours any way they can. As of now, only one courthouse workstation (in the state capital of Helena) can be maintained due to a dearth of volunteers. Montana Legal Services Association has made an effort to open a second workstation in the University town of Missoula, where law students can provide the volunteer hours necessary to sustain such an endeavour. But MLSA can only do so much, and because attorneys exist and are encouraged to provide service everywhere in Montana, they are a relatively untapped yet potentially valuable resource for the pro se community.

Because unbundling is yet to take off in Montana, the report also notes that pro bono representation is an effective means of relieving the pro se docket, especially in family law cases for which the Bar offers discounted or free resources in the form of Form Books and a mentoring service through which pro bono lawyers can receive advice from more expereinced attorneys who have dealt with the nuances of specific case types. What kind of resources are offered by your local bar to assist attorneys and how do these relate to the pro se litigant?

A recent article in Future Trends in State Courts 2006, “The Anti-Government Movement Today”  (National Center for State Courts, by Charles A. Ericksen and Anne E. Skove), has a well-footnoted discussion of the malicious mischief being perpetrated in courts and other government bodies by the Anti-Government Movement.  The tactics amount to “paper terrorism” — “the use of fraudulent legal documents and filings, as well as the misuse of legitimate documents and filings, in order to intimidate, harass and coerce public officials, law enforcement officers and private citizens.” (from “Sovereign Citizen” Movement, at the Anti-Defamation League’s law enforcement website; and see our post “coordinated pro se tax-haters clogging up the courts, Oct. 13, 2006)

  In the Future Trends article, Ericksen and Stove explain Redemption Scams, which are bogus claims on money supposedly owed to individuals by the Government.  The Scams have become widespread, thanks to “self-help materials” being produced or used by jailed militia members in our nation’s prison’s (with “handbooks circulating among inmates, audiotapes and books available for purchase, seminars offered across the country, and information on the Internet”).  Thanks to basic human greed, the Redemption procedures are being tried by “a range of people, many of whom may not have ties to anti-government groups.”  The article also describes in detail a “Particularly troubling and difficult to stem” tide of filings with state corporation commissions. 

Noting that prison inmates pose special challenges (especially those already serving life without parole), the authors suggest coordinated efforts with courts, prosecutors, state agencies, and prison staff working together to identify and stem frivolous filings.  They also discuss concerns that acts of violence may again be use.  The article ends cautioning that “those responsible for court security must keep such groups and tactics on their radar screens, and be aware of these issues when planning security measures.”

The Self Represented Litigation Network has released a report that can help anyone working to improve, or wanting to learn more about, the array of services, programs and policies that exist to assist litigants appearing at court without lawyers.  Titled Best Practices in Court-Based Programs for the Self Represented: Concepts, Attributes, and Issues for Exploration (Dec. 4, 2006, 44 pp pdf.), the document states that better services for pro se litigants can greatly enhance both access to justice and effective operation of the judicial system.  It then describes 41 Best Practices that “have been identified by the Self-Represented Litigation Network as likely to be effective and generally worthy of broad replication.”

  The spotlighted practices are grouped into eight broad categories: 1) self-help centers and services; 2) forms, document assembly, and e-filing; 3) practices in the courtroom; 4) discretee services, pro bono and volunteer programs; 5) judicial ethics and education; 6) post-order practices; 7) court management and evaluation practices; and 8) jurisdiction-wide strategic practices. (via SelfHelpSupport.org)  

The report names each practice, fully describes the Concept, lists Suggested Attributes for a successful model, and outlines Issues for Exploration and Evaluation.  Although advising that “Each jurisdiction should consider its own experiences and needs in developing a strategy or program”, the Best Practices report notes that “the choice as to which innovations should receive the highest priority may best be driven by an analysis of the most urgent areas of need, and of which stakeholders are most ready to move forward.”  It then suggests that 

“As a strategic matter, the creation of self-help centers, of standardized forms, and the establishment of rules clarification and training for judges, court staff and attorneys are viewed as having early broad enabling impact.”

The SRLN Best Practices report offers clear and concise information, if you’re wondering what functions a Courthouse Concierge Station might perform (and how to this useful service even more effective); what elements are needed for a successful Self-Help Center or Website; the Attributes of “Simple, easy to use and self-help friendly forms and documents”; the types of training needed for judges and court staffs; or the changes that are required in ethics rules for the system to effectively and fairly serve the self-represented.  Many additional topics are covered, including Rules in Support of Form and Process Standardization, Volunteer Attorney Involvement in Self-help Centers, Law Library as Resource Center, Rules or Clarifications in Support of Discrete Services, and court Rule and Procedure Simplification.

Our advice: bookmark this excellent report.

And, see our post What Have They Done for Me Lately?

This morning, the Canadian Judicial Council issued a Statement of Principles on Self Represented Litigants and Accused Persons (2006, 12 pp. pdf), with the goal of fostering equal access to justice and equal treatment under the law for those who appear in court without a lawyer (per CNW Group press release, Dec. 12, 2006).  The Statement emphasizes that all participants in the justice system — judges, court administrators, the self-represented, and members of the bar — have important roles to play and responsibilities.  

   Honourable Marc Monnin, Chief Justice of the Court of Queen’s Bench of Manitoba, and Chairperson of the drafting committee, pointed out that “the Principles are advisory in nature and are not intended to be a code of conduct. However, judges and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, whether or not they have legal representation.”  It is clear that CJC prefers that all parties be represented by lawyers, but it offers principles to follow if attempts to find representation for all are not successful.

Below are highlights from the Statement (including guidance for the Bar), which contains many more suggests and comments.     

My local paper, the Seattle Times has been investigating courts’ practices in sealing records in a series called “Your Courts, Their Secrets.” The latest focus of investigation is the guardianship system. Articles this week have discussed some horribly frustrating interactions when family members (often unrepresented) have tried to monitor the care professional guardians are providing their disabled loved ones. (See my post on Trial Ad Notes.)

That led me to look for some more information about guardianship (of adults, not children)…

Under “Bill 14“, a statute passed on Oct. 19, 2006, the Law Society of Upper Canada (“LSUC”) now has a Paralegal Standing Committee in place to set policy and administer a regulatory scheme that will go into effect on May 1, 2007.  Five of the 13 members are paralegals and three others are lay members of the Society.  (Law Times, “LSUC sets up paralegal committee,” Nov. 27, 2006; LSUC News Release) According to the Ontario Attorney General, Michael Bryant:   

“The Access to Justice Act will provide for paralegal regulation in order to give consumers a choice in qualified legal services while protecting people who get legal advice from non-lawyers. For the first time in Canada’s history, paralegals will be required to receive training, carry liability insurance and report to a public body that can investigate complaints.”

A Nov. 17, 2006 press release from the Ontario AG also asserts that “Ontario consumers looking for legal services are closer to having more choice and better protection, as the provincial government moves to solidify a new system for authorizing, empowering and regulating paralegals,” and goes on to explain (“New Era Begins with Pathbreaking Paralegal Regulation”):

“Under the act, the Law Society of Upper Canada, which regulates lawyers, will now also regulate paralegals.  If authorized by the Law Society, paralegals will continue to provide the services they are currently authorized to provide including representation in small claims court matters, traffic infractions and other provincial offences, and tribunals.”  

 The Ontario Bar is, apparently, quite pleased with its new role as regulator of legal services provided by paralegals.  (see LSUC Paralegal Information Page)  However, it’s difficult for consumer advocates who have watched the regulatory style of lawyers (and most other professions), and the Bar’s broad dislike of independent paralegals, to be universally sanguine about the regulatory scheme that is being established as a model in Ontario.    Many questions come to mind, but the most prominent are: