Providing Help to the Self-Represented

Mar 1999

In recent years there has been an increase in New York and nationwide in the number of individuals who appear on their own behalf in litigation, some by choice but most because they cannot afford a lawyer, and legal services organizations lack the resources to assist them. Each year more than one million cases are filed in New York by "self-represented" (or pro se, as they are commonly called) litigants, and the number is growing. The vast majority of these litigants are unfamiliar with the jurisdictional limitations and procedural requirements of the different courts, not to mention the principles of substantive law governing their claims and defenses. Presumably each would benefit to some extent by legal counsel. Those most in need of counsel are more "unrepresented" than "self-represented." Can the swelling tide of pro se representation be stemmed? If not, what steps can the courts and the profession take to make it more likely that these proceedings reach a just, inexpensive and speedy outcome?

The answer to the first question, at least the short-term answer, appears to be ¡§no.¡¨ Legal services providers, who might otherwise represent many of these pro se litigants, have received less and less funding in the past decade; they have been compelled to shrink their staffs; and they must turn away many more potential clients than they can assist. The other primary provider of legal representation to poor persons, the private Bar, cannot alone fill the gap. While the Administrative Board¡¦s recent resolution exhorting lawyers to devote at least 20 hours of pro bono service each year may result in a greater pro bono commitment by the private Bar than is currently made, there will still be a huge unmet need of poor persons for help with critical legal problems relating to such matters as housing, social security and SSI, domestic relations, immigration and bankruptcy. The pro bono need is inexorably growing, as the number of poor persons in our affluent society paradoxically has increased, and regulatory reforms have exacerbated the legal complexities they continually face.1

So we have no alternative but to address the second question: How can the judiciary and the private Bar help the poor to help themselves in weaving their way through the maze of the judicial system? This Association provided a partial answer to that question in the fall of 1996 when, in response to the Civil Justice Crisis Plan devised by the Steering Committee on Legal Assistance, the Association established a Center for Self-Help, Information, Education and Legal Defense (known as ¡§SHIELD¡¨).

Under the direction of Mary Grein, SHIELD operates a phone center that receives calls and, depending on the nature of the caller¡¦s problem and the extent of his or her resources, refers the caller to an appropriate legal services organization, a social agency or the Association¡¦s Legal Referral Service. Some inquiries are handled by SHIELD itself, which provides requested information, including needed forms. In 1998, SHIELD answered 10,154 calls, roughly 850 a month. Most callers seek information regarding divorce and other family law matters. (It often takes two to three years to obtain representation by a legal services provider for an uncontested divorce.) In addition to supplying information over the phone, SHIELD conducts uncontested divorce workshops at 60 Centre Street and at the House of the Association.

Under the leadership of Chief Judge Kaye, the state court system has undertaken several initiatives, collectively referred to as ¡§CourtHelp,¡¨ to assist the ¡§self-represented.¡¨ Automated kiosks have been placed at three courthouses (the first, in collaboration with the Association, at 60 Centre Street) to provide basic information in both English and Spanish; a telephone hot-line was installed to respond to inquiries; a pilot court satellite office has been established in Long Island City to accept papers for filing; and community court resource centers have been placed in neighborhoods to distribute informational materials and direct inquiries. Last year, an Office of the Self-Represented was created in the New York County Supreme Court, Civil Term, to provide similar assistance.

These efforts have generated numerous opportunities for effective collaboration between the Association and the court system. For example, the Association has recruited lawyers from firms to staff the Office of the Self-Represented at 60 Centre Street during the lunch hour. The Association¡¦s Committee on Children and the Law published in 1997 an Introductory Guide to the New York City Family Court. The Public Service and Education Committee prepared a Tenant¡¦s Guide to Housing Court, and the Housing Court Committee has worked to simplify the forms used in that court. The Association has also published an informational pamphlet on filing for individual bankruptcy.

This past November, the Association, with support from the Office of Court Administration, submitted to the State Justice Institute a proposal to create a self-help technology network for community court resource centers, including video-teleconferencing and linking the Association¡¦s website with that of the Unified Court System to supply information in lay terms about family law and housing-related subjects. The proposal also contemplates training attorneys, law students and paralegals to conduct pro se uncontested divorce workshops at the community court resource centers.

There is still more that this Association and others can do. We can develop additional informational materials and forms for distribution to litigants who lack counsel. We can assist the court system in establishing guidelines as to what court staff may and may not do in assisting such individuals (including avoidance of conduct that might be found to be engaging in the unauthorized practice of law), and we can help train court staff to provide that assistance. Finally, we can participate in evaluation of the responsiveness and effectiveness of court-initiated endeavors in this area.

When all is said, providing help to the ¡§self-represented¡¨ is not a substitute for, but rather a necessary supplement to, more traditional forms of pro bono assistance. We must continue to seek increased and permanent funding for legal services providers and a greater contribution of time and talent by the private Bar, while we simultaneously help the poor to navigate through legal shoals without a lawyer. All of these efforts are required if we are even to approach satisfying our societal and professional responsibility to meet the compelling legal needs of the poorest of our neighbors.

1Although I refer throughout to ¡§poor¡¨ persons (generally defined in the legal services community as individuals whose income is less

than 125% of the federally declared poverty level), the discussion applies as well to individuals whose income may be slightly greater but who are nevertheless unable to afford a lawyer.