Charter

Background

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.

An increasing number of citizens are attempting to represent themselves in court without the aid of an attorney. “In the mid-1990’s, 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, D.C.” (Goldschmidt et al 1998).

As it was intended, “the Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must ‘be informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’ Although not stated in the Amendment in so many words, the right to self-representation – to make one’s own defense personally – is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.” (Farett v. State of California, 95 S. Ct. 2525, 2532 (1975) as cited in Goldschmidt 1999, 1). In fact, the complexity of the legal system prevents this right from being exercised easily. Self-represented (pro se) litigants encounter many difficulties in gaining access to the legal system.

Factors Restricting Access

Among a number of dauntingly restrictive factors are:

Economic barriers. Access to lawyers or advocates is stratified according to economic means. Pro se litigants are more likely to have low incomes and small claims, making it almost impossible to find a lawyer who will take their case. Nearly 68% of respondents to the Hearst survey did not believe that it was affordable to bring a case to court (How the Public Views the State Courts, A National Survey Funded by the Hearst Corporation. Proceedings of the 1999 National Conference on Public Trust and Confidence in the Justice System as quoted in Webster 2000, 3).

Complexity. Obtaining justice is a complicated process made unreasonably difficult by the sheer complexity of the legal system. Almost 83% of those asked in the Hearst Survey attributed the excessive cost of justice to be “more than a little” the product of complexity (Webster 2000, 4).

Intimidation. Many who come in contact with the legal system – not only litigants, but visitors and citizens seeking information – feel as though they are not heard, properly taken care of, or treated with dignity. The mandate of judicial neutrality justifies communication policies that create major informational barriers to litigants’ needs.

Lack of knowledge. Litigants may avoid costly legal representation by representing themselves, but if they do so, they must confront bewilderingly complex requirements, processes and events for which they are ill prepared by normal experience.

Language and understanding. Pro se litigants often face institutional barriers to communication and understanding: specialized legal jargon, procedures required to be completed in English when the litigant’s primary language is not English, and inadequate access for those with sight or hearing disabilities.

Distrust. Among pro se litigants, as among the general public, there is widespread low and waning confidence in the legal system. “If court leaders focus on the needs of judges, staff, and lawyers, rather than on the needs of the public when designing courthouses, court processes, and technology-based services, citizen trust and respect [for] judicial institutions is problematic” (Webster 2000, 2). When potential litigants are disenchanted and cynical, they are less likely to avail themselves of information, advice and help they consider suspect – and are more likely to try to make their own way through the legal system.

Commitments. Family commitments and work responsibilities often place an unmanageable burden on the amount of time self-represented litigants can dedicate to working on their cases or understanding what is
required of them. The effect may well be an unfair outcome if the self-represented litigant is pitted against a represented litigant.

Inconsistent information. Multiple sources of information and the variety of media forms used for dissemination frequently lead to inconsistencies that are difficult for the self-represented litigant to resolve (caused, for example, by failures to update revised instructions uniformly).

Costs of reform. Funds available to courts and legal service systems vary considerably among the states. Courts seldom have large discretionary funds for reforming obsolete systems, and cost effectiveness must be a key consideration for any changes.

Location. The location of a self-represented litigant’s residence in relation to the courthouse and his or her ability to travel can pose problems in keeping appointments, meeting court dates and simply gaining access to needed information. Costs of travel also are not insignificant when they well may include loss of pay for an entire day’s work.

Lack of uniformity. Laws governing pro se litigation are different from state to state. Further, individual court systems vary in size, volume and types of cases heard, demographics of residents, age of the court system, adaptability to change, and resources for making changes. These incompatibilities hamper the dissemination of improvements among court systems.

Relevant Trends

Among trends supporting the call for change are:

Changing Distributions of Wealth. The traditional American middle class society with its bell-curve concentration of middle class citizens is flattening and stretching out. The growing gap between wealthy and poor is placing additional strain on institutions committed to providing “safety nets” for poor and lower-income citizens.

Growing immigrant numbers and diversity. A growing immigrant population, coupled with greater diversification among entering immigrants, is precipitating an accelerating need for multi-lingual services in both volume and range.

Increasing litigation. An increasingly litigious society is filing cases far faster than the population growth (Webster 2000, 2, 3). Growing case loads indicate that social problems are not being adequately solved, and a public, ill-informed by inaccurate (but ubiquitous) media representations of the legal process, is going to the courts in ever-greater numbers.

Greater access to information technology. The percentage of Americans with access to computers and the ability to use them effectively in the information environment is climbing steadily. Computer literacy is increasing in parallel with the explosive growth of the computing industry.

Increasing expectations. Daily encounters with the computer-supported transaction processes routinely being innovated by service providers to the public (e.g., banks), is leading the public to expect like improvements and less complex interactions with all institutions, private and public – including the courts.

In spite of current restrictive factors and trends changing the playing field, the American ideal for justice is still reasonable and attainable. It can be achieved by systematically addressing current processes, removing the unnecessary, simplifying the necessary, and rethinking all from the standpoints of those who must use them.

Project Statement

Develop integrated concepts for improving access to justice for those who choose or are forced to represent themselves in court.

Using Structured Planning methodology, conduct an advanced planning project to develop concepts for an integrated system solution. The proposed solution should be sustainable, scalable and adaptable to changing needs.

Goals

As general guidelines the proposed solution should:

• Explore the full range of civil court processes, paying especial attention to the needs of representative, high-volume kinds of cases (e.g., divorce, tenant/landlord, child support, domestic abuse and small claims).
• Consider both high- and low-tech solutions as they are appropriate.
• Include ideas for systems, processes, tools and/or products including procedures, services, events, activities, organizational concepts and any relevant relationships among them.
• Enable self-represented litigants to use institutional artifacts and resources more effectively.
• Project possibilities for both public and private involvement as best suits the situation.
• Explore revolutionary as well as evolutionary ideas.
• Develop educational tools through which self-represented litigants may better access the legal system.
• Cater to the need for privacy.
• Help judges to be more efficient.
• Accommodate all users of projected concepts and provide for them in the design. Thoroughness is a step toward product integrity.
• Consider potential costs broadly; the proposal should not advocate unnecessary frills, but it should not sacrifice quality for low cost.
• Provide for adaptivity: adaptive at installation for users; adaptable by users to changing needs.
• Treat the planning problem as planning from the inside out; user needs come first, with priorities among users influencing decisions when necessary. Products, systems and services exist to meet user needs.
• Conceive the properties and features of elements of the system as a means to further trust and well-being in the community.
• Plan for means to communicate positive change in the evolving system. Help the courts to overcome the “Judge Judy” media image.
• Inspire confidence in the judicial system.

Overall, the solution should:

• Assume that the proposal can be acted upon as it is conceived. Do not underpropose on the assumption that a concept might be politically opposed.
• Demonstrate what might be achieved. The value of the proposal is in its ideas, not its direct attainability. Ideas that might not be attainable under today’s conditions may be highly successful tomorrow – if they are known.