Paula Burch sees the problem every day in her Dallas court clerk’s office: self-represented (or “pro se”) litigants struggling to fill out the forms needed to get their day in court.
It pains her to watch them — but not as much as it pains them to learn how to be their own attorney. The vast majority have little knowledge of the law or interest in navigating their case through the complex legal system. They simply can’t afford a lawyer, and Legal Aid in Texas only serves those who earn up to a mere 125 percent above the poverty line.
“I have compassion,” says Burch, the filing supervisor in the Dallas County District Clerk's office. “Especially for the elderly people who come in and don’t know how to use the internet or anything.” But she’s barred from telling them anything that might resemble legal advice, so all she can say is, “You need to go to the library.”
Last week, Burch went to the first-ever Texas Forum on Self-Represented Litigants and the Courts looking for guidance on how the system could be improved. The two-day affair, held at the Dallas Bar Association’s Belo Mansion, brought together a diverse group of legal professionals, from attorneys to judges to legal aid experts to law librarians. The objective: to strategize about how to create a system that can accommodate the increasing number of pro se litigants.
Keynote speaker Jess Dickinson, an associate justice on the Mississippi Supreme Court, called the self-represented litigant movement “blood kin” to the efforts to bolster Legal Aid and similar access to justice efforts. The problem of decreasing legal services for the poor is getting worse in Texas — ranked 43rd nationally — and fast. The primary source of funds for civil legal aid in Texas — interest from trust accounts, client money that Texas attorneys are required to pool — dropped from $20 million in 2007 to $5.5 million in 2009 due to falling interest rates.
“Legal aid is able to help two out of seven to eight people who need it — if that,” says Jonathan Vickery of Texas Access to Justice Foundation, and in most cases what they get is limited to a little advice, not true representation. “So what are people to do when they are facing loss of their children, eviction from their home, where do they go?”
Texas Supreme Court Chief Justice Wallace Jefferson, who also spoke at the conference, previewed the issue in an op-ed that ran in The Dallas Morning News and the Houston Chronicle. He wrote: “These pro se litigants must navigate the tangle of rules and precedent of their own, often forfeiting their rights on legal technicalities that might easily have been cured. Because there is no adequate system in place to assist self-represented citizens seeking access to the courts, confusion and frustration reigns for the litigant, the courts and court personnel.”
Vickery summed up the problem this way: “Texas is behind in developing self-represented strategies. States from Wyoming to Arizona to California to New Jersey have innovative programs to provide real access to pro se litigants.” He says of the court system, “We’re not here just to serve attorneys. Attorneys developed and designed the system, and it’s a system that keeps lay people out.”
Of course, attorneys would also benefit from a system that could better absorb these individuals. According to Stewart Gagnon, a senior partner with the Fulbright & Jaworsk law firm, “Every time a self-represented person comes in, they take up an hour to an hour and a half of court staff time, and all that does is slow down the process.” The Bexar County Civil District Courts saw 1,639 pro se litigants in March alone — approximately 31 per day.
The biggest strides toward improving the system for pro se litigants have come in Travis County, the only county in the state with a functioning self-help legal center. The momentum hasn't always favored pro se litigants, though. In 2008, Bexar County planned to open a similar facility, but some private attorneys, fearing loss of income, banded together and successfully lobbied commissioners to shut it down before it ever opened.
Others are doing what they can to provide access. In Lubbock County, Judge Judy Parker says they are developing a do-it-yourself system comparable to Turbo Tax for legal forms. Fort Bend County Clerk Dianne Wilson has posted every document ever recorded in her office online, and she says a local judge has provided fill-in-the-blank scripts for what to say in court when seeking an uncontested divorce.
Lisa Rush, manager of the Travis County Law Library & Courthouse Self-Help Center, says members of the legal community “need to re-examine who their customers are” as an increasing number of lay people are researching cases on their own. She has scaled back on expenses for law books and invested in bolstering the library’s online presence. Williamson County Justice of the Peace Dain Johnson, who says 90 percent of his cases are pro se litigants, has noticed a similar trend. “I don’t Twitter, and I’m not on Facebook,” he says. “But people ask if I could have a blog on small claims court.”
Even in Travis County — where the efforts of Travis County Judge Lora Livingston (who also acted as master of ceremonies at the forum) and others have opened up their local system more than the rest of the state — plenty of work lies ahead. “There are certainly more things we could do,” Livingston says. “Right now we have half-time staff people; we could make that full-time. We could have more staff. We could have language interpreters, which we currently don’t have. I can think of a long list of things.”
People representing themselves who need to do research can access only 15 staffed law libraries in all of Texas. (“I don’t consider that closet of books being a judge’s desk a law library,” Rush says). Finding the funds to create more should be relatively easy: State law allows funds for libraries to be raised by attaching a fee of up to $35 for court filings.
But, of course, even with the right books, legal language reads like hieroglyphics to many pro se litigants. Some divorces are not only contested but quite messy. And aside from an online protective order form recently adopted by the Texas Supreme Court that cannot be thrown out, not all judges are willing to accept online forms.
On a panel addressing problems facing advocates, Gagnon, who helped plan the forum, stated the case frankly. First, he said, pro se litigants need more than just better forms — they often they need someone to actually speak to them. Second, advocates shouldn’t be (or be perceived to be) in the business of putting lawyers out of business. For those who can afford one, hiring a lawyer is still the best option. Third, an effort needs to be made to inform the public of the serious problems, especially in family courts, presented by an anemic legal aid system and rising pro se representation — Gagnon says, "It's going to shut down our court system." Finally, lawyers need to realize that they are pricing themselves out of the market.
As a solution to that final point, Gagnon and others recommend that instead of ratcheting up their rates, lawyers look to profit by “unbundling” themselves and taking on limited scope representation — in which they assist a pro se litigant with just a portion of their case, whether it's advice and counsel or help with assembling forms.
“If everybody leaves here with a plan, or at least the commitment to create a plan, it will be successful,” Livingston said at the event. A committee will gather this week to compile the ideas generated by the forum and will present a formal report to the Texas Access to Justice Commission on May 4.
In the meantime, Burch will continue to watch the steady stream of lower-income and elderly individals struggle in her court office, but hopefully with a new sense of what her role is when it comes to dealing with self-represented litigants — and what it could be.