A day-long meeting of leaders in the Bar is exploring the dimensions of the problems concerning the growing phenomenon of the self-represented in Michigan courts, and examining a variety of proposed solutions. This post will be updated throughout the day.
Keynote address by State Court Administrator Chad Schmucker: The current State Court Administrative Office (SCAO) self-help forms site gets 1200-1300 hits a day. It is "not very good," lacking even some of the most needed forms, but an improved version is coming in a few months. Courts are a finite resource and an inept response to the dealing with the self-represented in courts hurts everyone, including the practicing bar. A key initiative underway that will help is the introduction of performance measures in trial courts, using data to improve service for everyone, in order to promote "smart courts." Schmucker offers the Kent County circuit court website performance measures as an example of what's coming. He sees this as an impetus for "monumental improvement" of Michigan's courts.
Erika Davis, Co-Chair of Justice Initiatives, introduced Linda Rexer, Executive Director of the Michigan State Bar Foundation and Co-Chair of the Solutions on Self-Help Task Force reported that the Task Force has 90 people working on 20 workgroups, with key involvement by the State Court Administrative Office. One workgroup is piloting a self-help website, soon to be launched. The website is in response to the discovery that over the years 158 nonprofit, volunteer-driven or governmental self-help websites (not including commercial operations) have cropped up, with content that is often inappropriate or stale. Other workgroups are working on self-help centers, developing curricula for judges and training for librarians, and examining the need to adapt rules and policies and forms to meet the problem. Rexer emphasized that the bulk of the users of self-help resources cannot afford lawyers.
Angela Tripp, Michigan Poverty Law Center, described the process and protocols used for developing the content on the pilot website, "Michigan Law Help." The development process has been aided greatly by assistance from the Illinois Legal AId program, whose online assistance component, which includes automated interviews, has proven to be very successful, averaging over 120,000 "hits" per month. (The program has become widely accepted as a useful resource in Illinois, including by the practicing bar.) Tripp takes the summit participants on a "tour" of the draft website, which includes links to lawyer referral services and other community resources.
Chris Hastings, chair of the Unauthorized Practice of Law committee, describes the development of a proposed definition of the practice of law (PDF), which will be presented to and considered by the State Bar's Representative Assembly this Saturday. The internet and Dressel v. Ameribank together have confused the legal landscape concerning the unauthorized practice of law, heightening the need for a coherent, workable definition, while complicating the ability to achieve it. Hastings asserts the MIchigan has the weakest arsenal for fighting the unauthorized practice of law of all 50 states, based on the statute and case law.
Berrien County Circuit Judge Al Butzbaugh lauds the State Court Administrative Office, Chad Schmucker, Dawn Monk, and Dawn McCarty for their efforts in support of the self-help Task Force, in particular the order mandating the acceptance of SCAO forms. Judge Butzbaugh relates the phenomenal presence of the self-represented in the Berrien County trial court, which underscores the importance of the local self-help center. He introduces the topic of "unbundling," in which an attorney handles some but not all aspects of a case. Judges traditionally have opposed unbundling, preferring to have attorneys responsible for all aspects of the case, but Butzbaugh sees unbundling as a win-win-win (client-attorney-judge) because it will reduce the percentage of the unrepresented. He also sees e-filing as an important element of addressing the self-help problem. Judge Butzbaugh emphasized the need to help judges understand that judicial neutrality does not mean that judges cannot help manage the needs of the unrepresented and that judicial education is an important part of the self-help task force work.
Linda Rexer points out the important distinction giving legal advice and providing information, and that the task force is very sensitive to the distinction in the development of its training and materials.
John Greacen, self-representative expert/consultant, presents "What We Know About Self-Represented Litigants." The vast majority are poor, but in some affluent, university areas, more affluent people may choose to self-represent. The majority are women. A high percentage have internet access. The majority are petitioners, except in landlord-tenant context.
Why do people choose to self-represent? 1) Believe they can't afford a lawyer. 2) Believe case is simple enough to handle on their own (this percentage is close to the "can't afford" reason). 3) Don't want to pay a lawyer. 4. Believe lawyer will slow things down. 5. Don't trust lawyers (tiny percentage).
Why is self-representation happening at such a pace today? It is not a phenomenon exclusive to the legal profession. "Disintermediation" is occurring culture-wide. Early example -- pumping your own gas. Other signs of do-it-yourself phenomenon: selling own home, home improvement, trading stocks, self-medicating and self-diagnosing, home schooling.
- In Maricopa county in 1980, 24% of domestic relations cases had a least one party in pro per; 1985, 47%; 1991, 88%.
- Statistics show rational choices, with self-representation occurring most often in simple cases.
- One study recorded a high level of communication effectiveness (8.7 on 10 point scale) in self-represented cases. Studies also record a higher level of satisfaction among the self-represented. Hypothesis: speaking for yourself is more satisfying than having someone speak for you. Less likely to seek interim relief or modification, more likely to report understanding. 70% would self-represent again.
- Probate cases take 4 times longer for self-represented; family cases take 30% less time.
- Self-representation dramatically affects rates of jury trials (+), motion hearings (-), and continuances (-).
- Time from filing to disposition: self-representation speeds up time, except in college towns where "the Ph.D's slow things down."
- Most states today devote significant resources to the self-represented.
Greacen stressed the distinction between the giving of legal information and the giving of legal advice, with only minor variations from state to state. Basic principle: forms and alternatives can be presented, but no recommendation on alternatives.
- Michigan is at forefront of training for court staff on this distinction.
- Pro Bono Net's Law Help Interactive is the state of the art.
- Triage is a critical function in helping those who want to self-represent, as is assistance in dispute resolution.
- Some states are providing services by phone rather than in person. Alaska experience shows that the phone interactions are more efficient.
- Costs/savings of providing assistance to self-represented: savings vary widely, but all services are cost effective.
Lawyer opposition. "The self-respresented are not potential clients, when they are forced to use lawyer they become accounts receivable." "Most pro bono lawyers don't want to represent a party in these cases -- e.g. high conflict family law cases that never end." Lawyer opposition to assistance to self-represneted dissipates over time, and lawyers benefit. Unbundled or limited scope representation is evolving into a new legal specialty.
Judicial opposition. Also dissipates over time, because the cases take less time when appropriate help is offered.
Trends: remote service delivery; self-represented services preserved even in tight budget times; judicial branch policy statmeents regarding judge conduct of hearings and proactive solicitation of information from the self-represented.
Michigan in the mainstream in its efforts.
Unique Michigan characteristics: taking advantage of others' successes; broad-based consortium; long-term commitment to maintaining quality of materials; recognizing importance of e-filing component.
What we're missing: greater emphasis on unbundling.
The future: expanded use of technology, mobile devices. Keep eye on the goal of services to 100% of persons with a legal services need.
Recommendation: Test remote services delivery model, because it will not be possible to have a local self-help center in all 83 counties.
Terri Stangl, Justice Initiatives Co-Chair on Unbundling, leads a discussion of the current state of the ethics opinions and rules concerning limited scope representation, and what changes might be needed to make such representation part of an overall strategy for dealing with the problem of self-representation. John Greacen points out some practical steps that can be taken, including, for example, courts keeping lists of attorneys who agree to provide limited scope representation.
Prof. Michael Bryce of UDM Law School presented on Turner v. Rogers, which he believes opens the door to dramatic improvements in self-representation services. He is an advocate of specialty courts as a vehicle for providing more effective legal services, within the new framework of Turner. Bryce worries that self-help, an essential of the strategy of providing access to justice to all who need it, might, if we're not careful, sap energy and attention from the vital need for pro bono.