Conference Background and Agenda
Recommendations from Boston Bar Association Task
Force on
Unrepresented Litigants
1.
The Availability of Lawyers Must be Increased
This
investigation suggests that pro se litigants are at a disadvantage, except in
those proceedings where the process is designed for unrepresented parties.
The advantage of representation by a trained, experienced, independent
lawyer cannot be offset except in rare circumstances.
Accordingly, the first and most important Recommendations of the Task
force are to:
- Increase
funding for legal services programs for those who cannot afford to hire a
lawyer;
- Increase
the pro bono services available from members of the bar and channel the
resources into:
- Full
representation of indigent clients;
- Lawyer
for a Day Programs;
- Private
attorney service as case screeners and mediators; and
- Support
for the training and educational activities set out below;
- Recruit,
train, and make available panels of lawyers willing to undertake
representation on a reduced fee, sliding scale basis depending on the
ability of the client to pay, as well as at no fee;
- Make
accurate, up-to-date information about available lawyer referral resources
readily available to courts and administrative agencies, including
specialized panels in areas such as family law or bankruptcy, which must be
identified or developed;
- Support and encourage the unbundling of legal services such that litigants can pay for and receive advice or discrete service for the separate phases of litigation.
2.
Courthouse Must be More Accessible and User-Friendly
At present
virtually all courthouses in Massachusetts are unfamiliar, even hostile
environments to the general public. Our
courthouses must be designed and operated to welcome, educate, and provide
justice to the public.
- Information
Booth: There should be an information booth inside the entrance
to each courthouse to answer questions and give direction to the public.
- Signs
and Schedules: Signs and schedules should be clearly posted so that an
unsophisticated, first-time visitor can know where to go, at what time, and
find his or her way.
- Courthouse
Schedules: Courthouse schedules must be designed to accommodate not
just lawyers, but also the general public.
- For
many types of cases, hearings should be scheduled at specific times
staggered throughout the day so that all parties and their lawyers are
reached with a minimum of waiting time.
- Categories
of cases, where the volume can be very heavy and in which unrepresented
parties predominate, should not all be scheduled for hearing at the same
time such that a fair, orderly and efficient disposition of the cases
becomes extremely difficult.
- Consideration should be given to separate and less formal sessions-in which the judge can explain the process and take an active role in making it more user-friendly-where pro se litigants can be more easily accommodated.
3.
Educational and Explanatory Materials Should be Produced and Effectively
Distributed
Availability
of educational materials for unrepresented parties is haphazard in most cases.
Even in subject areas where good materials have been prepared, the
materials are not printed or made available in any systematic way.
Some types of cases are so technical that education and training may not
allow an unrepresented party to advocate effectively for him or herself.
However, the following channels of communication must be used to their
fullest effect:
- Website: Use of the World Wide Web to distribute directions and
descriptions of courts and substantive or procedural information is a unique
opportunity. The website should
be reviewed and approved by the courts to ensure accuracy, updating and
acceptance. The present website
maintained by the Trial Court should be expanded and monitors for access
should be made available at courthouses. (This report cites, www.neighborhoodlaw.org
a website designed and maintained by Neighborhood Legal Services of Lynn as
a good example of what can and should be done.)
- Brochures: A full inventory of all existing materials should be
undertaken. More brochures need
to be drafted. These brochures should explain the nature of the judicial
process, the applicable rules and procedures and the standards of conduct
expected of all parties, whether or not represented by counsel.
The brochures should be prominently displayed not only at each
courthouse, but also at libraries, schools, churches, community centers, and
other locations in communities. The
bar should take a leading role in writing the brochures, but there must be
input from the courts. The
Office of the Chief Justice for Administration should take an active role in
this venture.
- Videos: One video can inexpensively and efficiently educate
large numbers of viewers about basic procedure and substance.
People are accustomed to learning information through this medium.
The videos should be prepared and approved by each department of the
Trial Court, to be shown at courthouses and made available for purchase,
rental, or borrowing from libraries, courthouses, schools, and lawyers’
offices. Such videos already in
existence should be gathered and catalogued.
- Telephone Hotline: At present, the telephone is the most accessible, user-friendly medium for the communication of information about logistics, procedures, or substantive rights critical for unrepresented litigants. A staffed telephone hotline easily accessed by virtually the entire population from home or nearby, must be used to its fullest potential.
4.
Court Staff Must be Trained and Assigned to Deal Effectively and Directly
with the Public
The Task
Force found that court staff at all levels in all courts believe that
unrepresented litigants present particular challenges and call for special
attention. With a few notable
exceptions, the response from court staff ahs developed court-by-court,
person-by-person, with little training or planning. The time has come to plan and implement a careful strategy to
make the court staff a more effective resource for the general public.
Keeping in mind the enormous demands already made on the staff to keep
the courts moving, we recommend:
1.
Assignment of
Responsibility for Unrepresented Litigants.: Each
clerk’s office should designate at least one staff member to be the primary
resource for unrepresented parties. The
designated staff member should be assigned primarily to the counter rather than
to the courtroom functions.
2.
Training and
Guidance:
All court staff should be trained to respond with a special sensitivity
to unrepresented members of the public. Court
staff must be assured that they can assist unrepresented parties, and instructed
where to draw the line. Materials,
such as ethical opinions should be circulated to assist court staff and training
should be provided on compliance with the court rules and procedure.
5.
Alternative Dispute Resolution Should be Expanded for Unrepresented
Parties
Alternative dispute resolution techniques can be very effective and efficient for unrepresented parties in many circumstances. The rules of evidence and procedure tend to predominate in a formal court setting, presenting serious hurdles to unrepresented parties. There are notable exceptions where there is a severe imbalance in power or a history of violence between the parties (specifically domestic violence) makes the case improper for mediation. We propose the following:
- Community
Dispute Resolution: Alternative forms of dispute resolution should be made
available in the community before either party get to court.
Mediations or conciliations can be held at community centers during
evening or weekend hours without interfering for extended periods with the
everyday lives of unrepresented parties.
- Preliminary
Diversion: For matters that do reach the courts, mediation or
conciliation should be the first step for most types of disputes where such
efforts have not already been made.
- Training: Mediators or others who preside at alternative dispute
resolution hearings must be trained to decline to handle those cases which
are not appropriate for mediation (e.g. domestic violence), and to elicit a
full story from each side.
- Private
Bar Participation: A program should be developed whereby members of the
private bar serve as on-site screeners/mediators for cases in which both
parties are unrepresented. The
purpose of this intervention would be to resolve the dispute early, if
possible to provide guidance to the parties on the future conduct of
litigation.
All litigants must be reminded that mediation is voluntary.
Court programs should consider the use of checklists or other forms of
the fathering of information by the neutral in dispute intervention in order to
aid the neutral in discussing with unrepresented parties relevant factual
circumstances and issues which might go unaddressed with such tools.
6.
Judges Should Not Allow Lack of Representation to Result in Miscarriage
of Justice
Where one
or more parties to a matter is unrepresented, a judge has a heighten
responsibility to ensure that the proceedings are fair.
- Guidelines: Judges should be provided with and encouraged to use a
model statement to pro se litigants. The
purpose is to inform unrepresented parties of the risks of proceeding
without counsel, and to inform them of the ground rules.
- Explain
Rules and Provide Opportunity to Comply: Where appropriate,
judges should explain procedural or evidentiary problems in simple terms,
and consider the granting of a recess or continuance to allow the
unrepresented party to obtain counsel or find a way to overcome the problem.
- Review
of Settlement Agreements: Where unrepresented parties are involved in a case, a
judge should review with care any settlement, such as a settlement of
contempt or abuse complaint, which could result in imprisonment.
If a party (particularly an unrepresented party) appears to have a
language barrier, the judge should have the agreement translated or
explained in the party’s primary language.
The court should require the interpreter to certify that the
agreement has been translated.
- Support: Judges should be offered support and training in dealing
with unrepresented litigants, including materials addressing the particular
needs of unrepresented parties, opportunities to discuss and consider in a
formal way the particular challenges of unrepresented parties, and
assistance in recognizing parties who may be in need of services, and
therefore may be at a disadvantage.
- Case Management Conferences: Case management conferences should be mandatory at the outset of certain types of cases.
7.
The District Court and Boston Municipal Court Should Have Expanded Equity
Jurisdiction
Our
“community courts,” which deal often with cases involving domestic abuse,
landlord/tenant, and neighbor disputes, see large numbers of unrepresented
parties. Existing equity
jurisdiction for abuse prevention, housing matters, or small claims should be
expanded. These courts should be
given equitable jurisdiction so they can resolve their matters in practical,
efficient ways.
8.
Some Changes Required to Adjust to Unrepresented Parties are Fundamental
and Widespread, Requiring Comprehensive Systemic Changes
- Standardized
and Simplified Forms:
Each court should review the standard forms available for common
categories of cases with a goal of making standard forms available to the
general public for as many matters as possible.
- Unrepresented
Litigants with Linguistic, Cultural, or Physical Barriers: Each court must recognize and accommodate the growing
population of non-English speaking people (and specifically, litigants).
Disabled person is also increasing asserting their right to use the
courts on an equal basis with others. Signs,
forms, and directions should be made available in a variety of common
languages. Interpreters and
bi-lingual personnel must be recruited.
Printed materials must be made available in an alternative format for
those with visual disabilities who want to advocate for their rights.
- Make Procedures Simple, Self-Executing: Court procedures should be as simple, straightforward, and self-executing as possible. If there are technical requirements, not easily understood by non-lawyers, they should be streamlined and explained as much as possible.
9.
Implementation
The Task
Force recommends that the Supreme Judicial Court establish a standing committee
to address issues relating to unrepresented litigants.
The Task Force would include representatives for each of the departments
of the Trial court, a representative for the office of the Chief Justice for
Administration and Management, and representatives of the bar.
Reproduced from:
BOSTON BAR ASSOCIATION
TASK FORCE ON UNREPRESENTED LITIGANTS
Report on Pro Se Litigation August, 1999
By: Mary K. Ryan. President, Boston Bar Association; Edward Notis-McConarty, Chair Task Force
The
“Task Force” was established following a 1996 recommendation by the
Massachusetts Commission on Equal Justice to study the issues surrounding pro se
litigation in a quest to respond to the dramatic increase in parties appearing
without lawyers in its courts. This recommendation is to be adopted into the
Strategic Plan 2001 to reaffirm that part of its core mission to enhance the
profession of law by promoting equal access to justice. Data was collected via
surveys from Probate and Family Court, District and Boston Municipal Courts, and
various law, cultural and difference community projects. The initial task force
findings included the confirmation of an increased number of litigants without
lawyers; the new challenges that these parties added to a system not adequately
equipped to handle; court personnel confusion in handling non lawyer requests;
financial constraints which causes many parties to proceed pro se, the need to
assist, organize and combine approaches that might better assist pro se
litigants and the changes requires to accommodate unrepresented litigants if
there is an ongoing commitment with clear responsibilities assigned to the
institution.
Boston Bar
Association
16 Beacon Street
Boston, MA 02111
www.massbar.org