American Judges Association
Date of this Version
For several years, judges, court staff, and a growing number of lawyers have recognized that at least one party is not represented by a lawyer in a sizeable portion of family law and smaller civil cases. Often both parties are self-represented. Two underlying factors associated with self-represented litigation— the relative scarcity of affordable legal services and an increased “do-it-yourself” attitude by many litigants—are fairly self-evident. What is less clear is how best to ensure that these litigants have sufficient access to the justice system to be able to resolve legal problems fairly and effectively. Courts and legal service providers have tried a variety of approaches to address the needs of self-represented litigants. Some maintain that the best solution is to steer litigants back toward competent legal counsel and so have focused their efforts on promoting greater lawyer participation in pro bono programs and securing adequate funding for legal services agencies. Some provide self-represented litigants with basic materials and legal resources such as simplified forms and instructions to help litigants maneuver their way through the civil justice system. Still others champion the use of alternative dispute resolution programs, trying to divert self-represented litigants away from the more adversarial and procedurally complex venue of traditional court proceedings. Although each of these approaches can claim some measure of success, it is clear that none has been fully effective. This article describes how the influx of self-represented litigants has forced many within the court and legal communities to reconsider some of the fundamental premises on which the civil justice system is based and to respond in new and creative ways to changing litigant demands on existing court and legal resources. It focuses on changes to the delivery of legal services to low- and moderate-income people, especially the emergence of “unbundled” legal services, and addresses the practical implications related to the distinction between legal information and legal advice. Finally, it describes how judges and court staff are rethinking the conceptual design of the civil justice system and addressing specific factors associated with legal complexity and the inherent limitations of laypersons that create barriers to access for self-represented litigants.
Published in Court Review: The Journal of the American Judges Association, 39:4 (2003), pp. 8-16. Copyright © 2003 National Center for State Courts. Used by permission. Online at http://aja.ncsc.dni.us/htdocs/publications.htm.