Enhancing Access to Justice for the Self-Represented

Linda RexerExecutive Director

Michigan State Bar FoundationPresentation to SBM CJI – 10/2/09

Topics to be covered Introductory information about pro se Pro se as part of a continuum of services MSBF pro se study/recommendations Past SBM-ATJ-JI pro se work National pro se efforts and resources Current MI pro se efforts/plans Pro se issues and CJI discussion

Questions to be thinking about

What are benefits of more support for pro se? What cautions should those working on pro se

keep in mind? What issues related to pro se have the CJI

Initiatives encountered? What roles could CJI play re pro se? What other suggestions do folks have?

Introductory Information

What we know about self-represented litigants (J. Greacen MJI training 3/09) Majority are poor Majority are women Majority are petitioners, not respondents Majority have a high school education High percentage have Internet access

What we know, continued

Top reasons given for proceeding pro se: “I can’t afford to hire a lawyer.” “My case is simple enough to handle myself.”

Likelihood of prevailing is more related to procedural complexity than substantive complexity of the matter

High satisfaction by the self-represented Increased frequency of self-representation

What we know continued

Grand Rapids Legal Assistance Center - 2008 58% = household incomes under $20,000 14% = household incomes over $40,000 18% = less than high school education 35% = high school completion 32% = some college but no degree 16% = college degree Funding is combination of public/private money 3.5 FTE paid staff + 3.0 volunteers

What we know continued

Grand Rapids LAC 2008 34,000+ patrons served in 2008 (up 4,000) 75% needed court forms 72% needed help completing court forms 9% had employment, immigration other needs 4% had housing issues (7% of phone patrons) 3% had consumer problems (5% phone) 78% had family law issues (50% phone)

What we know continued

Berrien County Legal Resource Center 2009 Opened 4/09; served 1300+ thru 9/09 39% needed forms; 25% general legal info 23% needed help completing court forms 10% = housing issues; 5% consumer, other 66% had family law issues + 10% PPOs 17% < high school; 39% graduated h.s. 25% some college; 19% graduated college 44% <$10K/yr; 64% <$20K/yr; 12%>$40K/yr Public/private $; 1.0 FTE paid staff + volunteers

What we know continued

Illinois Legal Aid Online ( state, web based) Popular automated documents and resources

Uncontested divorce Small estate Child support modification Order of protection Guardianship Stop wage assignment, other letters to creditors Durable power of attorney (property, health care) Unemployment benefits

Continuum of Service

Pro se is not “instead” of full representation by a lawyer

Some cases resolved efficiently by pro se Others need

Advice and/or limited legal assistance Mediation Full Representation

Continuum continued

Courts report high numbers of self-represented; not tracked statewide by SCAO in MI MI 1999 SBM survey of many (not all ) MI courts showed

many courts with over 40% pro se litigants, with a number of courts over 70%

Examples from other states CA: 67% divorce petitioners, 80% at dissolution MA: >75% family, probate cases = at least 1 party Fl: 1 party pro se up from 66% (99) to 73% (01)

NY Times Article, April, 2009: “In a Downturn, More Act as Their Own Lawyers”

MSBF Pro Se Study

Increased interest by courts in self-help to deal with reality of large numbers of unrepresented

Increased number of duplicative requests for clinics and self-help/other materials

Increased number of grant requests for self-help centers Start up funding for: Grand Rapids, Lansing (now

closed), Washtenaw County, Berrien(Another new program = Oakland Co. Court Help Desk)

MSBF Study continued

Only about 180 legal aid lawyers in MI One legal aid lawyer for every 17,666 low-

income persons (<200% FPL) 3.1 million low-income people in Michigan

below 200% FPL; includes 40% of MI kids 200% FPL = $29,140 for a family of 2 Modest income persons just above >200%

FPL also feel they cannot afford a lawyer

MSBF Study continued

MSBF hired Court Management Associates to compile information about existing self-help programs, materials and technology in Michigan, articulate findings from the study and make recommendations. This information will help the Foundation make wise grant decisions as well as identify opportunities that may assist the Foundation, its grantees and others in maximizing and coordinating self-help systems in Michigan.

MSBF Study continued

Types of resources identified Web-based resources Court-related resources Legal aid clinics and other pro se support Self-help centers Local bar associations Faith-based programs

MSBF Study continued

Websites in MI offering self-help support 294 web sites identified, including courts, legal

assistance centers and legal aid Of these 158 offered some form of self-help

Only 42% of these linked to SCAO self-help page Only 26% linked to any other self-help page 23 represented a program which a patron could

access in person and 1 was a telephone hotline 8% with program; 92% website only

Many sites were unintuitive; many links were broken; many materials were not up to date

MSBF Study continued

Web sites continued SCAO self-help web site is fairly extensive and can

access SCAO forms which are fillable; it is a “drill down” PDF-laden site

www.michiganlegalaid.org also has a fair amount of content and has a range of fillable PDF SCAO forms

State Bar self help site has a range of content mixed with state bar entity information, most PDF-driven

Some legal assistance centers, legal aid programs and court sites have good content

MSBF Study continued

Websites continued Of 103 FOC & Circuit Court sites

27 had own step by step family law procedures 37 had own family law forms on their sites

Of 158 web sites offering self help resources 38 provided information on housing 62 provided information on family law 52 had information on consumer law

MSBF Study continued

Illinois Legal Aid Online statewide web site Legal resources written for lower-literacy users Legal information in 25 areas of law Easy-to-use interactive forms (56) with non-legal terms for

questions that automatically populate forms Spanish resources Self-help instructions for common legal problems Multimedia training, video tutorials & live chat help Powerful user-friendly search engine Referrals to legal and other services Web site is basis for local legal assistance centers >1 million users per year

MSBF Study continued

MJI offers judges, court staff pro se training Collected 9 pages of questions from court

clerks listing questions pro se people ask them

Collected bar, court, legal aid and legal assistance center self-help materials Hard copies collected fill three 5 inch binders Many additional web links without hard copies Hundreds of brochures/packets collected with

many duplicate materials produced by multiple entities, e.g. divorce without children

MSBF Study continued

Findings Highlights 1. Large numbers of people represent themselves, and most

do not have any assistance with doing so. Moreover, this need has not yet been quantified because generally courts do not track this information.

2. Existing court forms and procedures are not easily understood by self-represented individuals, particularly those with literacy, language, and other barriers. Forms and instructions are written for lawyers in legalese, not to help lay persons. Document assembly resources, which can assist in reducing this barrier to self-representation, are few and limited.

3. There is a lack of uniformity in forms and procedures among jurisdictions. This impedes development of centralized resources to support self-represented litigants.

MSBF Study continued Findings Highlights continued

4. Some judges and court staff are responsive to the needs of self-represented litigants and some training has been made available to them. However, there is no comprehensive training program for judges and court staff to help them work more effectively with the self-represented. This promotes a wide disparity of treatment of self-represented litigants from jurisdiction to jurisdiction.

5. There are some good web resources available to assist self-represented individuals, but many web resources are incomplete, ineffective, and not well- maintained.

6. A wide range of self-help resources exist, including brochures, forms packets, websites, court staff assistance with procedures, self-help clinics, self-help centers, and legal aid programs providing limited assistance. However, there are gaps and duplication in these resources The content and quality are not uniform, and materials are not collected in a central place, which impedes sharing of them.

MSBF Study continued Findings Highlights continued

7. Michigan ethics standards do not facilitate unbundling because they do not clearly specify the extent to which and the conditions when discrete task representation is OK.

8. Where staffed self-help centers exist, many more self-represented individuals are able to receive assistance, reducing court time in working with the self-represented and increasing satisfaction among court personnel as well as the self represented. However, only a few staffed self-help centers exist in Michigan, with little support available for jurisdictions which want to develop a self-help center.

9. There is no established network for collaboration, planning, and support for those providing self-help assistance in Michigan.

10. There is a serious funding challenge, and those Michigan jurisdictions which have been successful in establishing self-help centers have had to draw upon a variety of funding resources, public and private..

MSBF Study continued Selected Recommendations

Enhance substance and availability of web-based resources for the self-represented

Develop a plan to integrate court, legal aid and bar web self-help resources.

Conduct a pilot to test "virtual" or "remote" self-help assistance via phone, chat, other means.

Conduct a pilot for a centralized public web portal, starting with frequently needed areas.

Improve understandability, accessibility and ease of use of frequently-used forms

Conduct a forms pilot identifying substantive areas where current state of frequently-used forms is causing problems and test improvements in a small number of courts (address Plain English, low literacy and language proficiency issues).

Encourage acceptance of SCAO forms in all jurisdictions

MSBF Study continued Selected Recommendations continued

Support design of pilot for more comprehensive curricula on services & responsiveness to the self-represented: for judges, court staff and self-help assistance providers

Collect existing self-help packets and materials from around the state

Ask committees of subject area experts (e.g. family law practitioners) to review materials/packets collected and recommended uniform packets for use on centralized web site

Support interaction and collaboration among those working to assist self-help

Establish a Michigan Self-Help Providers listserv and/or a Wiki Hold meetings/trainings for self-help providers and others to

share resources. Assist groups interested in establishing local self-help centers

Moving Forward

Initial meeting to discuss pro se issues MSBF, SBM, MJI, SCAO and MSC

SPB has discussed pro se Now CJI is discussing pro se SBM Crossroads Task Force ATJ Subcommittee

will discuss pro se MSBF will issue RFP for web site pilot MJI does judicial, court staff pro se training Stakeholders need to coordinate all of this

MI State Plan 2000 vs Now

From Unbundled work group: unbundling of legal services should be expressly

authorized in Michigan Status: not completed; lawyer and client may agree

on limited scope of representation for non-litigation matters, but attorney is on the hook for the entire representation in litigation unless a judge allows withdrawal MCR 2.117(C)(2)

From Self-Help work group: Develop “hallmarks” for self-help programs, protocols

for courts for assisting pro se litigants, enforce use of standardized forms

Status: not completed but some work done

National Resources ABA – Bob Echols, ATJ Support Center www.selfhelpsupport.org

Partners include NCSC and State Justice Inst. Library contains information from states that are ahead of

MI in advancing self-help Expert consultants to train in or assist states

MJI uses consultants for MI judges, court staff pro se training Examples of resources for courts/others are

Self-help best practices guide National training modules and tips for judges to be responsive

and help self-represented while maintaining neutrality National self-help bench book

Issues Remaining

Evaluation of efforts and track data Pilot centralized web based resources Resources for pro se support Change culture so pro se is on continuum Judicial, court staff comprehensive training Uniform high quality materials More uniformity, understandability of forms Unbundling and ethics issues System for coordination of pro se efforts Consider when/whether to add criminal pro se

Chief Justice Broderick, NH

From national ATJ speech, 2008 “The single biggest challenge confronting the

state courts in America in the first decade of the new century is the rising number of self-represented litigants…and the justice system…has an obligation to respond….Doing nothing will not diminish their growing number or ensure justice for those already in the system.”