Project
Introduction
The U.S. system of government, admired around the world as a
model of democracy, is grounded in the rule of law. In theory,
justice is available readily and equally to all. In practice,
access to justice is easier for some than for others, and for
those unable to afford legal services, justice may be difficult
to obtain at all. The American ideal for justice is not unreasonable
or unattainable. It can be achieved by systematically removing
the unnecessary, simplifying the necessary, and rethinking processes
from the standpoints of those who must use them.
Today an increasing flood of people, numbering in the hundreds
of thousands, have begun to try to handle their own court cases
rather than rely on lawyers. However, modern court systems in
the United States are too complex for all but the most sophisticated
non-lawyer. Courts, in their efforts to improve access to justice,
have inadvertently made the system more complex by adding more
procedural layers and rules.
Civil justice reform in the United States has failed to address
the problems faced by self-represented litigants in their efforts
to obtain access to the justice system. Although the great majority
of cases filed by self-represented litigants are factually and
legally uncomplicated, many litigants in these simple cases
struggle to navigate through an unfamiliar and procedurally
complex court system. Court systems employ difficult, even arcane
terminology, and impose highly technical requirements to prosecute
or defend cases. To date, most approaches to this problem have
failed to address this inherent complexity from the “customer’s”
perspective.
To address these shortcomings, the National Center for State
Courts (NCSC) has joined with the Illinois Institute of Technology’s
Institute of Design and the Chicago-Kent College of Law to draw
upon the most advanced design techniques and the power of the
Internet to fundamentally reengineer, from the customer’s perspective,
civil court processes in which self-represented litigants seek
access to judicial services.
Our project arises out of a Concept
paper and grant proposal
to the State Justice Institute submitted by the National Center
for State Courts on June 19, 2000 in partnership with Chicago-Kent
College of Law and the Institute of Design. The problem we address
in our project is best described in the following quote from
the “Need for the Project” section of the Program
Narrative written by the National Center for State Courts:
Perhaps the most fundamental
criticism Americans make of the civil courts is that they
are not affordable. In the NCSC’s 1999 national public opinion
survey 68 percent of the public said that it is not affordable
to bring a case to court. Eighty-seven percent said that obtaining
legal representation contributes “a lot” to the cost of going
to court. A majority of survey respondents also believed that
the complexity of the law contributes “a lot” to the cost
of going to court. (How the Public Views the State Courts,
1999)
Increasing Number of Pro Se Cases
The most visible consequence of unaffordability
is the growth in the number of self-represented litigants
appearing in state courts, especially, but not exclusively,
in limited jurisdiction courts and domestic relations cases.
(Goerdt, 1995) In the mid-1990s at least one party was self-represented
in more than two-thirds of domestic relations cases in California
and in nearly 90 percent of divorce cases in Phoenix, Arizona
and Washington, DC. (Goldschmidt, 1998) In her remarks at
the National Conference on Pro Se Litigation, Scottsdale,
Arizona (Nov. 18-21, 1999), Justice Barbara Pariente of the
Florida Supreme Court reported that half of the cases filed
in family court are entirely pro se, and over 80% have at
least one pro se litigant. The implications of these increases
for judges and court staff go far beyond the simple need for
additional staff and resources to manage these cases. Most
courts report that pro se cases require a disproportionate
amount of time and court resources because many litigants
are unprepared or have inaccurate or incomplete information
about how to proceed.
Perceived Inaccessibility
The volume of legal problems that are
not being brought to the civil justice system is a measure
of the public’s perception of the inaccessibility of existing
civil processes. A majority of Americans report legal problems
that they did not seek to resolve through the public court
system, typically because of a fear of the costs involved
or a view that “the justice system would not help.” (Consortium
on Legal Services, 1994) The consequences of a lack of access
are particularly acute for the poor because their legal needs
relate to the essentials of life: “shelter, minimum levels
of income and entitlements, unemployment compensation, disability
allowances, child support, education, matrimonial relief and
health care.” (Committee to Improve the Availability, 1991)
Judges, court managers, and others attending the National
Conference on Public Trust and Confidence in the Justice System
ranked re-thinking the role of lawyers as the second highest
priority for national action.
Public Expectations
There is more to the story than excessive
legal costs. The public now has experience and confidence
in transacting business directly with large and complex organizations
like banks and stockbrokers. The role of the middleman is
shrinking. Public expectations of easy and direct access in
non-court contexts will inevitably affect the state courts.
Already the majority of Americans believe that they can represent
themselves in court if they want to. (How the Public Views
the State Courts, 1999)
Failure of Traditional Responses
Civil justice reform in the United States
has failed to address the problems that self-represented litigants
experience and create for judges and court staff. The traditional
reform mechanism has been to give judges greater control over
the legal process by imposing case management rules on attorneys.
Such reforms sidestep the needs of self-represented litigants.
Moreover, traditional court reforms may actually exacerbate
the problems of self-represented litigants by making the legal
process more complex, and thus less easily navigated by litigants
without lawyers.
Assistance programs are the traditional way of providing relief
to pro se litigants. Such programs are only marginally successful
in making self-represented litigants effective consumers of
court services. Self-represented litigants will always be
second-class participants in traditional court processes because
of the legal complexity of those processes. Provision of assistance,
whether delivered in the form of simplified court forms and
instructions or through self-help centers, cannot place a
pro se litigant on an equal footing with litigants with legal
representation. And, often, pro se assistance programs do
not satisfy the sense of entitlement to act as one’s own attorney
that motivates many self-represented litigants.
In addition, pro se assistance programs often highlight the
ethical dilemmas that arise in traditional court processes
when one party to a dispute has a lawyer and the other party
does not. The two parties are inherently unevenly matched.
To place the parties on a more equal footing the court seeks
to aid the self-represented litigant. No ethical rule can
provide a judge a clear answer to the question “just how far
can one go without compromising oneself or the court process?”
(Miller, 1999)
A New Approach to System Reform
Our analysis, as summarized above, leads
us to propose a partnership and a two-pronged strategy to
better meet the needs of self-represented litigants. This
project brings together the respective expertise of the National
Center for State Courts in court management, of the Illinois
Institute of Technology’s Institute of Design in systems design,
and of the Chicago-Kent College of Law in computer and Internet
technology. Together, they will reduce the complexity of court
processes through a systemic, human-centered design process
that works from the ground up. The design process is sensitive
to the cultural, language, educational background, and computer
literacy of people who choose or need to represent themselves
in court. The design process generates and develops concepts
that are: “different - freshly imagined to match the best
of new technology to emerging needs and interests, better
- thoroughly and systematically thought through for all users,
and right - sensitively positioned to meet environmental,
personal, social and cultural needs.” (Owen, 1998) The new
processes will also be designed in a way that maximizes equitable
and fair treatment of all litigants.
In August 2000, the following four organizations agreed to fund
a three phase, two year project to redesign courts from the customer’s
perspective: the State Justice Institute, the Open Society Institute,
the Center for Access to the Courts through Technology, and, the
Justice Web Collaboratory.
The Project
Meeting the Needs of Self-Represented Litigants: A Consumer
Based Approach (Access to Justice) has three phases extending
over 18 months:
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Phase Two
- Systems Planning and Design: Employ the latest system
design methodology to redesign court processes, removing barriers
and providing self-represented litigants with efficient and
effective access to the justice system; and,
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