Helping Pro Se Litigants to Help Themselves
This outline is designed to provide a brief overview of the trends in pro se litigation and the responses by the courts and the legal community, particularly in the area of technology. It is complemented by material on two websites.
Maryland Legal Assistance Network/MLSC
Ayne H. Crawley firstname.lastname@example.org 410-576-9494
Trends in Pro Se Litigation
It is the common experience of most court system in the United States that there has been a rising tide of pro se litigants flooding a justice system designed, in large part, for the traditional full representation model. Virtually all aspects of the system, from the rules to the training of judges and court staff to the physical layout of the courthouses themselves, have been oriented to cases in which knowledgeable attorneys represent the parties. The Conference of State Court Administrators recently characterized this trend as “ unprecedented and showing no signs of abating.”
WHAT IS THE NATIONAL PICTURE ON PRO SE LITIGATION?
(National Center on State Courts study of 16 large urban trial courts in 1991-1992 – Domestic Relations cases)
• 71% of cases had at least one unrepresented party. In 18% both parties were pro se litigants. (Both parties had
counsel in only 28% of cases.)
• The percentage of cases where both parties were pro se ranged from 1% in Dayton, OH to 47% in Oakland, CA
• The percentage of cases where both parties were represented ranged from 12% in Washington, DC to 47% in Des Moines, Iowa
(A California study of family matters from 1991 to 1995 found the following)
• One party appeared pro se in 2/3 of all domestic relations cases and in 40% of all child custody cases.
• California reports in 2001 that over 50% of the filings in custody and visitation are by pro se litigants. Urban courts report that approximately 80% of the new divorce filings are filed pro se.
A 1998 study by the Boston Bar Association found that 66% of the cases in Probate and Family Court in Boston involved at least 1 pro se party.
(Pro se litigation study on tort and general civil litigation in 45 urban trial courts reported in the Justice Statistics – Special report April 1995)
• Average of 3% of all tort cases had at least one pro se party
• In Chicago 30% (in 1994 and 25% in 1995) of all new general civil actions field for less than $10,000 of damages were filed pro se. Landlord tenant actions were filed pro se 28% of the time. In Maricopa County in Arizona the incidence of pro se litigants doubled in the period between 1980 (24% of cases had 1 pro se litigant) and 1985 (where the rate had reached 47%). By 1990, 88% of the cases involved at least one pro se litigant and no lawyers were involved in more than half of the divorces.
WHO GOES PRO SE?
(ABA Study of Family Law Pro Se, Maricopa County, AZ, 1993)
• Tend to have lower income ($50,000 or less in income substantially increases chances of pro se), but 20% said they could afford a lawyer
• Younger in age
• Higher Education (Most have some college)
• No children
• No real estate or personal property
• Married less than 10 years
WHY DO PEOPLE CHOOSE PRO SE?
(Data from the 1996 report of the Pro Se project operated by the University Of Maryland Law School)
• 57% said they could not afford a lawyer
• 18% said they did not wish to spend the money to hire a lawyer
• 21% said they believed that their case was simple and therefore they did not need an attorney
A 1998 ABA-commissioned study found some public beliefs that may influence the choice:
• 78% believe “It takes too long for the courts to do the job.”
• 77% believe “It costs too much to go to court.”
The 1994 ABA Study of Legal Needs found that:
• Predominate reasons for low-income households to not seeking legal help were:
• “it would not help”
• “costs too much”
• Predominate reasons for moderate-income households to not seeking legal help were:
• “”not really a problem”
• “can handle it on my own”
• “a lawyer cannot help”
Research in California indicates that pro per (pro se) representation is not solely due to financial limitations. And that “…a significant portion of the family law pro pers in California are not poor or poorly educated.” (Reported in the National Center on State Courts study of 16 large urban trial courts in 1991-1992 – Domestic Relations cases)
Attitudes toward Self-help and Control Over Problem-Solving - The consumer movement of the 1970’s appears to have been influential in creating a norm for empowering people to resolve their own problems. There is also widespread knowledge that an attorney is not required in order to go to court. In the American Bar Association’s Perceptions study, while only 26% were highly knowledgeable about the justice system, 88% of the respondents identified the following statement as inaccurate: “If you go to court, you are required to have a lawyer.”
The American Judicature Society report, Meeting the Challenge of Pro Se Litigation, identified anti-lawyer sentiment as well as the growth of do-it-yourself materials as key factors in the upward trend of pro se litigation.
There is also a perceived linkage between value and cost with the public identifying some areas as simple enough for self-representation. Do People Go Pro Se Because They Cannot Find a Lawyer? 69% agree with the statement that “It would be easy to get a lawyer if I need one.” (59% of those with income under $35,000) (ABA Legal Needs Study)
Attitudes toward Lawyers (ABA Legal Needs Study)
• 50% disagree that lawyers “try to help make a divorce simpler and less painful.” (21% were neutral)
• Interestingly there is more distrust that lawyers can “make a divorce simpler and less painful” among those with incomes above $75,000 (82%) than among those with income under $35,000 (63%).
• 45% believe that “Lawyers are more concerned with their own self promotion than their client’s best interest.”
(22% were neutral)
• 51% believe that “we would be better off with fewer lawyers”
• Overall, those with more experience with lawyers were more positive towards lawyers and the justice system.