Going Pro Se
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by Ann M. Zimmerman
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Many litigants today are exercising their
constitutional right to self-representation, and judges, lawyers, and
court personnel find coping with them quite challenging. To address
these challenges and provide citizens with better access to justice,
many states have created pro se assistance programs that range from
simple forms assistance to elaborate courthouse self-help centers. In Wisconsin, Supreme Court Chief Justice Shirley
Abrahamson is spearheading a movement to provide pro se assistance
services to self-represented litigants and the legal community at both
the local and state levels.
Self-representation on the Rise
Twenty-five years ago, self-representation was an anomaly. According
to a 1974-76 study of domestic relations cases in Connecticut, only 2.7
percent of these cases involved a self-represented litigant.1 Today, self-representation - particularly in
domestic relations cases - appears to be becoming the norm.
Research conducted for the American Bar Association (ABA) in Maricopa
County (Phoenix), Ariz., indicates that in 88 percent of all 1990
divorce cases at least one of the litigants was self-represented.2 Both parties were pro se in slightly more than
half of these cases. In 1991-92, the National Center for State Courts
found that neither party was represented in 18 percent of all domestic
relations cases in 16 large urban trial courts.3
Wisconsin Pro Se Assistance Programs
Currently, there are at least six Wisconsin counties that have pro se
assistance programs in place, with a district-wide assistance program in
the pipeline.
In Milwaukee County, attorney Ernesto Romero established the
Wisconsin Family Justice Clinic, which provides bilingual services such
as community service referrals, forms assistance, and help with
procedural matters. Volunteer attorneys staff the clinic, located within
the county courthouse, for one hour, five days a week. Free family law
forms also are available through the clinic's Web site at http://www.firms.findlaw.com/County/.
Romero recently became director of litigation services for Milwaukee
County. He will coordinate court operations related to interpretive
services and activities of pro se litigants.
The Dane County Bar Association, under the leadership of Dane County
Family Court Commissioner Mary Beth Keppel, recently established a
Family Law Assistance Center in the Dane County Courthouse. Modeled
after the Milwaukee program, the assistance center also uses volunteer
lawyers one day a week to help self-represented family law litigants
with referrals, forms, and procedures. Contact Keppel at (608) 266-4166
or attorney Leslie Shear of Murphy & Desmond at (608) 257-7181 for
more information.
Richland County's Resource Center uses lay volunteers to assist
self-represented individuals with simple divorce cases. According to
Henk Newenhouse, a lay volunteer at the center, the local bar provides
radio advertisements for the Resource Center. More information is
available from Richland County Circuit Court Judge Edward E. Leineweber
at (608) 647-2626.
The Chippewa County Free Legal Clinic is held once a month in the
local public library. Self-represented individuals first meet with a
coordinator, who assigns them to then meet with attorneys knowledgeable
in a specific area of law. The attorneys answer general questions and
provide basic legal information to participants. The Chippewa program is
modeled after a similar program in Eau Claire County. In Chippewa
County, Lucie Usher, an attorney with Garvey, Anderson, Johnson, Geraci
& Mirr, can be contacted at (715) 834-3425. In Eau Claire County,
contact attorney Peter Grosskopf, of Grosskopf & Black, at (715)
835-6196.
The Waukesha County Circuit Court recently received a grant from the
Milwaukee Foundation and hired a coordinator to develop its court
assistance program. The county is working in partnership with the
nonprofit Wisconsin Correctional Services, and the first goal of the
program is to provide initial filings assistance to self-represented
family law litigants. Contact Chief Judge Kathryn W. Foster, Waukesha
County Circuit Court, at (262) 548-7539 for additional information.
A team in the Tenth Judicial Administrative District, made up of 13
northwestern Wisconsin counties, is developing a pro se assistance
program for its entire region. Team members are considering a four-tier
approach to implementing services. For example, level one services might
include information on how the legal process operates and a roster of
local attorneys. Level two services may include forms and instructions.
Level three services may include informational seminars, while level
four services might provide a self-help legal center. Please contact
District Court Administrator Greg Moore at (715) 839-4826 for more
information.
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Business newspapers and magazines also have noted these increases.
According to a 1993 Wall Street Journal article, 53 percent of the
litigants in family law cases in Des Moines, Iowa, were
self-represented, and a whopping 88 percent of the family law litigants
in Washington, D.C., were representing themselves.4 More recently, Time magazine indicated that the
percentage of self-represented litigants in divorce, custody, and abuse
cases ranges from 60 to 90 percent, which is an increase of
approximately 50 percent over the past decade.5
This trend is apparent in Wisconsin as well. In a 1999 statewide
survey of clerks of court,6 98 percent of
the respondents noted increases in the number of self-represented
litigants over the preceding five years. While most clerks characterized
these increases as moderate, nearly 20 percent considered them dramatic.
As with other states that have studied the issue, Wisconsin experienced
the greatest increase in the area of family law. Recent management
reports from the First and Tenth Judicial Administrative districts
indicate the percentage of family law cases involving self-represented
litigants in 1999 was 72 percent and 53 percent, respectively.7
Identifying the Self-represented
According to the ABA's 1990 research, it is primarily younger,
lower-income people without children and little, if any, real estate or
property, who choose to represent themselves.8 However, it does not necessarily follow that
self-represented litigants have little education. Rather, the ABA's
study indicated that most self-represented litigants have completed some
college course work. Furthermore, the number of middle-income people
opting for self-representation is on the rise. In 1996, a quarter of the
respondents in a study commissioned by the New York State Bar
Association were self-represented.9 The
study indicated that these pro se litigants were "better educated and on
the more highly compensated end of the middle income spectrum."10
Reasons for Self-representation
Several reasons exist for the increase in self-representation. First,
the reality is that many individuals above and below the poverty line
simply cannot afford an attorney. For those individuals below the
poverty line, recent cutbacks in government funding for legal aid has
reduced the types and quality of legal services available.11 There also is a greater number of people today
above the poverty line who are ineligible for government-sponsored legal
aid, yet unable to afford legal services. While some of these so-called
"working poor" may hold misperceptions about the cost of legal
representation, it cannot be denied that many of them turn to
self-representation out of necessity.12
Second, as a nation we are in the midst of a do-it-yourself era,
which has been extended to do-it-yourself law. Just as one now can
obtain from the Internet a wealth of information on booking a vacation
without a travel agent, one can download instructions and forms for
completing a divorce without an attorney from Web sites like The Law
Store, of MyLawyer.com ("serving the pro se community"). The recent
proliferation of court television shows further serves to demystify
legal proceedings and give citizens confidence to attempt going it
alone. Chief Judge Kathryn W. Foster of the Waukesha County Circuit
Court has witnessed this firsthand. "When lay people watch television
programs like 'Judge Judy' or 'The People's Court,' it gives them a
false sense of confidence that they can successfully represent
themselves in court," notes Foster.
Third, anti-lawyer sentiment is alive and well. A 1999 Gallup poll
shows that, with respect to honesty and ethics, lawyers ranked 37th out
of 45 professions, just edging out gun salesmen, telemarketers, and car
salesmen, to name a few.13 Popular movies
like "Erin Brockovich" also are not helpful in instilling public trust
in attorneys. The sentiment evoked by such movies is "Why hire an
unfeeling, money-grubbing buffoon when you can take care of the matter
yourself?"
Challenges Created by Self- representation
Many self-represented litigants quickly find that it is hard to be
meaningfully heard. Procedural and substantive laws are complex - even
to lawyers. Untrained individuals find it difficult or impossible to
understand and navigate their way around them. Even simple legal terms
like "contest" can cause confusion and devastating consequences. 14 Frequently rebuffed when they turn to judges and
other court personnel for answers to their myriad questions,
self-represented litigants are undeniably deprived of access to
justice.
Court personnel frequently find themselves at the front end of
self-representation issues, since a first stop for self-represented
individuals often is the clerk of court's office. Caught in a quandry of
trying to provide meaningful access to the courts while not violating
laws and ethical codes prohibiting the unauthorized practice of law,
court personnel are left in the sometimes precarious position of
distinguishing between appropriately given information and legal
advice.15
In family law cases, "the inquiries pertain most often to procedural
steps and forms completion; answers to these questions provide
information [and] not legal advice," notes Marathon County clerk of
court Donna Seidel. But, Seidel states, "In the area of small claims
actions, the line can more frequently get blurred when a pro se litigant
first seeks help with a forms completion question and then continues in
the direction of what amount of claim he or she may be entitled to."
While some local efforts have been made to clear up confusion and limit
demands on staff time through the development of form and instruction
packets, court staff "get frustrated when the individual being served
does not understand why some questions cannot be answered as the
requester would like," Seidel says.
Judges are required "to balance the duty of impartiality in
appearance and fact with the duty to provide a fair and meaningful
hearing."16 In addition, this balancing act
is to be conducted timely and efficiently. Clearly, this delicate
balancing act becomes even more fragile when one or both of the
litigants does not understand much of the procedural and substantive
laws governing his or her case.
Meeting the Challenges of Self-Represented
Litigants in Wisconsin
According to Wisconsin Chief Justice Shirley Abrahamson,
self-representation poses problems for all of us. "For attorneys and
court personnel, self-representation causes administrative, ethical, and
legal problems. For litigants, the problem is that of access to justice.
How we deal with these problems will positively or negatively affect
public trust and confidence in the legal community," Abrahamson
says.
To study the issue of self-representation in Wisconsin, the chief
justice last year appointed a working group comprised of judges,
lawyers, court personnel, law professors, and others. After attending a
national conference sponsored in part by the American Judicature Society
and ABA Standing Committee on the Delivery of Legal Services and much
deliberation over the last year, the working group recently submitted to
the chief justice a report entitled "Meeting the Challenge of
Self-represented Litigants in Wisconsin." The report details (in an
innovative framework that considers the entire court process) the
challenges posed by self-representation, identifies potential methods
for addressing the issue on a local basis, and makes specific
recommendations for consideration by the state court system for
statewide implementation.
More specifically, the report identifies six opportunities for
offering programs or services to self-represented litigants and affected
court personnel. For example, there are opportunities to inform and
refer litigants before they file a case without an attorney. Here, the
objectives are to ensure that self-represented litigants understand the
risks and responsibilities of proceeding without an attorney and to
refer those interested to lawyers or community service agencies for
assistance. According to the report, these tasks may possibly be
accomplished by developing informational brochures and local attorney
rosters to be kept on file in courthouses.
Another opportunity is to help court personnel manage cases involving
self-represented litigants by possibly developing local rules on
standard procedure for self-represented litigant cases and/or supplying
court personnel and others with frequent training opportunities that
review the legal, ethical, and case management issues germane to cases
involving self-representation.
Some of the report's recommendations involve thorny legal dilemmas,
such as possibly revising the law on the unbundling of legal services,
establishing supreme court guidance to court staff who provide
assistance to self-represented litigants, and changing ethics rules for
attorneys who volunteer their time in pro se assistance centers. Others
are perhaps more feasible and readily acceptable, like hiring an
individual to simplify all Wisconsin family law forms for access via the
Internet and establishing local assistance centers staffed by lay and
attorney volunteers.
"One of my biggest hopes in addressing the issue of
self-representation in Wisconsin is to inspire the legal and volunteer
communities to work locally to provide innovative assistance at all
levels to those affected by the challenges presented by the state's
self-represented litigants population," notes Abrahamson.
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Divorce cases in which one or both litigants are self-represented
commonly provide judges with such challenges, points out Chief Judge
Edward R. Brunner of the Barron County Circuit Court. "The easier case
is when both parties represent themselves," states Brunner. In such a
case, Brunner typically swears both parties in and takes testimony,
eliciting the necessary information from which to decide the case. He
then either makes a ruling or is able to work out an agreement between
the parties. In the past, Brunner then instructed the parties to draft
the order. "But, even with the help of a fill-in-the-blanks form, the
parties were unable to accurately reflect the court's orders," causing
delays and continuances while the parties tried again and again.
Now, Brunner sits down with the parties and helps them fill in the
order's blanks. "I know that some judges and lawyers feel that I provide
too much assistance to self-represented litigants when I do this, but I
am careful not to favor either party," Brunner explains. Furthermore,
"the system is burdened when these litigants fail to get the orders
timely drafted or when poorly drafted orders result in otherwise
unnecessary post-judgment hearings to 'clear up' matters. That is why
taking a little extra time at a final hearing actually better serves the
litigants and the system," Brunner notes.
The more difficult divorce case is when only one party is
self-represented, because it is hard to appear impartial when one must
"lean over the bench" to help move a bewildered litigant's case along,
Brunner says. These cases also are time-consuming. Even if a lawyer
drafts the order, Brunner finds himself "in the position of having to
double-check the order against the transcript to assure accuracy. Had
both litigants been represented, their lawyers would have confirmed the
accuracy of the orders. Judges are challenged in these cases to see that
justice is done and maintain the appearance of impartiality."
Dealing with ill-prepared and uninformed litigants can be extremely
frustrating and time-consuming for lawyers at virtually every stage in a
case, from initial filings to appeal.17
This is particularly true in divorce cases, asserts Rebecca Erhardt, a
family law attorney at Boardman Law Firm in Madison. "Everybody sees
through a filter of emotion when they're getting divorced, which makes
it extremely difficult for the self-represented litigant to focus on and
evaluate the relevant issues at hand."
Additionally, while it may seem that lawyers have the advantage in a
case against a pro se litigant, it is not necessarily true. "Sometimes
my client ends up paying me to educate the other side with respect to
property division or child custody laws, and I feel that I need to bend
over backwards not to take advantage of the unrepresented opponent,"
explains Erhardt. Although Erhardt acknowledges that some divorces are
quite simple, as when there are no children or significant property
involved, she still strongly encourages the other side to hire an
attorney to review a stipulated settlement agreement for fairness.
According to Erhardt, having attorneys on both sides helps to keep the
case on the proper track.
Self-representation Solutions
Many states have implemented pro se assistance services to meet the
challenges presented by self-representation. A wide variety of services
are offered, depending on state and local needs and resources. Staffed
or unstaffed courthouse assistance centers, educational clinics, lawyer
and community service referral programs, and technological assistance
are the most common types of services available to the pro se
community.
The Self-Service Center in Maricopa County (Phoenix), Ariz.,18 is frequently touted as a model pro se
assistance program for other states. Court forms, instructions, and
educational materials are made available to those who need them without
regard to their ability to retain an attorney for representation. Lawyer
referrals, access to community services, and the assistance of mediators
also are available. The court's information can be obtained from an
automated telephone system, or online via the Internet. Domestic
relations and probate cases are covered by the Maricopa system. The
program is sponsored by many groups, including members of the bench,
court staff, the bar community, business, and social service
agencies.
Another respected pro se assistance program is the Family Law Pro Per
Clinic in Ventura, Calif.19 Here, the
program is limited to family law proceedings. An evening clinic with
childcare is provided at no cost once a week. It provides brochures
describing court procedures, self-help sample forms binders, bilingual
counter staff assistance, and referrals to community services. The
Ventura program is staffed primarily by volunteers, including court
staff, family law attorneys, paralegals, legal secretaries, and law
students.
Conclusion
For better or worse, self-represented litigants are here to stay. The
dilemmas they pose to the legal community are undeniable. Solutions are
available, however, and have been implemented nationally and locally;
yet, much work remains. The goal of achieving the proper balance between
providing access to courts and the efficient, ethical, and lawful
administration of justice is imperative to establishing public trust and
confidence in our legal system.
Initiative to Improve Trust and Confidence
in Wisconsin's Legal System
Former jurors, offenders and their families, and civil litigants
voiced their opinions about the Wisconsin justice system as part of a
year-long project led by the courts, the legal profession, and the
community. Their goal was to identify areas in the justice system where
confidence or basic understanding is most lacking.
The study was led by a committee that convened in August 1999 to
identify issues that affect the public's trust and confidence in the
Wisconsin justice system. The committee recently issued its findings and
strategies for improvement in its October report, "Public Trust and
Confidence in the Justice System: The Wisconsin Initiative." The five
recommended actions set forth in the action plan are:
1) Provide equal treatment in the justice system
2) Encourage judicial/attorney involvement in the community
3) Enhance satisfaction with the juvenile justice system
4) Increase empathy in the justice system
5) Improve the selection and treatment of jurors
To devise the action plan, the committee reviewed recent national and
state research, and members used their own experience and expertise. The
committee then hosted focus groups in Milwaukee, Appleton, and La Crosse
to gather public input. Their work resulted in an action plan, which
will help to shape existing efforts of the State Bar, the courts, law
enforcement agencies, and community groups, and to offer strategies for
improving or expanding future efforts.
Chief Justice Shirley S. Abrahamson, Director of State Courts J.
Denis Moran, Wisconsin League of Women Voters President Kathy Johnson,
and State Bar President Leonard L. Loeb appointed the committee's
members, who included three attorneys, three judges, one clerk of court,
and three nonlawyer members of the public. Outagamie County Circuit
Court Judge Joseph M. Troy, who is also chief judge of the Eighth
Judicial Administrative District, served as chair.
"Examining the state of public trust and confidence in the judicial
system has been an enlightening and humbling experience. We have
confirmed that we are doing some things very well. Most citizens are
confident that the Wisconsin justice system is free from overt bias and
dishonesty," said Troy. "It is humbling, however, to learn of the deep
alienation felt by some citizens and to realize that we have solid
improvements to make in educating people about their system of
justice."
The committee also recommended convening a leadership forum in 2001
to join the leaders of the judiciary, the legal profession, law
enforcement, local government, and community groups to discuss the
plan's implementation.
For more information, contact Trina E. Gray, (608) 250-6025, tgray@wisbar.org; or Linda Barth,
(608) 250-6140, lbarth@wisbar.org, at the State Bar
of Wisconsin.
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Ann M. Zimmerman, U.W. 1993, formerly worked as an assistant
attorney general at the Wisconsin Department of Justice. She now works
as a freelance writer.
Endnotes
1 Meeting the Challenge
of Pro Se Litigation: A Report and Guidebook for Judges and Court
Managers (Meeting #1). American Judicature Society. Illinois: 1998,
p.8.
2 Id. at 8-9.
3 Id. at 8.
4 Woo, The Lawyerless:
More People Represent Themselves in Court, But is Justice Served?,
W. St. J. Aug. 17, 1993, at 1.
5 Ripley, Amanda, Who
Needs Laywers, Time, June 12, 2000, at 24.
6 Meeting the Challenge
of Pro Se Litigants in Wisconsin: Report to Chief Justice Shirley S.
Abrahamson (Meeting #2). Wisconsin: 2000 (p.3); handout from John
Voelker.
7 Id. at 3-4.
8 Meeting #1, at
1-12.
9 Id.
10 Id., quoting
Spencer, Middle-Income Consumers Seen Handling Legal Matters Pro
Se, N.Y. L. J., May 29, 1996, at 1.
11 Meeting #2, at
14.
12 Foster, Kathryn,
"Programs Assisting the Pro Se Litigants in Wisconsin." State Bar of
Wisconsin Annual Convention. Madison. June 29, 2000.
13 The Gallup Organization,
Gallup
Poll 1999.
14 "Wisconsin Courts Work
on Pro Se Plans." The Third Branch, Vol. 8, No. 3, at p. 4, Director of
State Courts Office. Wisconsin.
15 Greacen, John M., "'No
Legal Advice from Court Personnel?' What Does That Mean?" The Judges
Journal, Vol. 34, No. 1, at p. 10 (American Bar Association, Winter
1995).
16 Meeting #1 at
25.
17 Meeting #2 at
4.
18 Meeting #1 at
73.
19 Id. at 81.
Wisconsin Lawyer
