SELF-REPRESENTED LITIGANTS

NEW MEXICO STATEWIDE CONFERENCE

PERSPECTIVES ON THE PRO SE PHENOMENON:
SCRIPT FOR A PANEL DISCUSSION

Note: The above Script was prepared by John Greacen, Director of the New
Mexico Administrative Office of the Courts, for the New Mexico Conference on
Pro Se, presented in January 2001. The Script, while not necessarily reflecting the
actual workshop, provides an excellent summary of, and introduction to this
important issue.

Among the issues discussed below are:

From the judges and court staff perspective:

lack of understanding of rules of procedure, rules of evidence, and courtroom

protocol by self-represented litigants
papers are not complete or correct causing delay in the courtroom
litigants have difficulty presenting their position without getting emotionally
involved
difficulty in remaining fair and impartial when one party is represented by
counsel and the other is not
discomfort after ruling against a pro se litigant due to procedural non-compliance
ex parte communications
the use of court staff time
difficulty in drawing the line between giving legal information and legal advice

From the lawyers perspective:

waiting in court on a trailing docket while a pro se litigant in another case wastes
everyones time and my clients money
difficulty in knowing how to conduct myself when the other party is
unrepresented. If I raise all objections, the process goes nowhere, yet, I have a
duty to represent my client.
danger that the pro se litigant thinks I represent him or her too
worry over future problems that might arise at a later date and be harder and more
expensive to resolve if matters are not correctly resolved at the beginning
concern that pro se assistance efforts will undermine the role of the bar and take
away business
From the self-represented litigants perspective:

lack of information and the inability to get the right forms or information for what
I need to do
confusion and intimidation
fear to move forward with my case
belief that I cannot afford a lawyer
lack of respect from judges, court staff, and attorneys

PANEL SCRIPT

Moderator: So, what is going on out there? What is this self-represented litigant
phenomenon? Is it something new or something the courts have always been
dealing with?

Judge: Actually, both. Most cases have always been handled without lawyers in
courts of limited jurisdiction - traffic, small claims, landlord-tenant. But
increasingly, people are representing themselves in more complex cases in which
they used to be represented by lawyers. It occurs most often in domestic relations
cases today, but it is certainly not limited to DR, and there is no telling where the
trend might lead.

Moderator: Is this trend toward self-representation unique to the courts or is it

part of something larger?

Judge: The trend is certainly not unique to people coming into the courts. Every
where you look you see other examples where people chose to do-it-themselves.
Consider these examples: pumping your own gas, doing your own home repairs,
for sale by owner real estate transactions, stocking trading without the advice of
a broker, home schooling. In fact, sociologists have given a name to this
phenomenon - disintermediation - cutting out the professional intermediary.

Moderator: OK, so we know the courts are not alone, but do we have any data on
what types of cases tend to involve self-represented litigants?

Self Help Staff: In 1991, the ABA conducted a study in Maricopa County
(Phoenix) Arizona, which showed a consistent increase in self-representation in
DR cases. In 1980 at least one self-represented litigant was involved in 27% of the
cases. In 1985, that had increased to 48%, and by 1991 the number rose to 88%.
Some of the most recent data from Maricopa County shows that 60% of DR cases
have no lawyers, 30% have one lawyer, and only 10% have lawyers on both sides.
Moderator: What about New Mexico. Do we have any data on self-
representation in our state courts?

Self Help Staff: Our data is very limited at this point. The Self-Represented
Litigants Working Group distributed surveys to the courts last fall in an attempt to
gather some data on self-representation. Many, but not all, jurisdictions
contributed input. For the most part, results are based on responses from self-
represented litigants in the district courts and metropolitan court.

The surveys revealed that most self-represented litigants were female, 54% were
between the ages of 22 -40, and 61% had dependents. 66% of the self-represented
litigants completed high school, and 58% reported that they lived in an urban area.

The racial and ethnic composition of self-represented litigants were self-reported as

follows: 38 % Caucasian, 47% Hispanic, 6% Native American, and 3% African
American.

Of the self-represented litigants in the survey, 41% earned less than $15K
annually. 33% earned between $15K to $30K. 7% earned between 30K to $45K,
and 6% earned over 45K. Income data was not available for 10% of the self-
represented litigants in the survey.

Moderator: Did the surveys provide any insights into the types of cases involved,
or why the litigants chose to represent themselves?

Self Help Staff: The overwhelming number of surveys (76%) involved domestic
relations cases. 30% of the litigants reported that they did consult with an attorney
about their situation, but 79% reported that they chose to represent themselves
because they couldnt afford an attorney.

Moderator: Did the surveys show whether the self-represented litigants used any
of the court services currently available to them?

Court Staff: Surprisingly, about two-thirds of the litigants reported that they had
not used any of the court aides available to them, such as forms, brochures, videos,
or resource centers.

Moderator: Although the data is limited, it seems to suggest that most self-
represented litigants believe they have no choice but to represent themselves, and
that they do so with very little help from the courts. What is the impact of larger
numbers of self-represented litigants on the court process? Court Staff, what is
your experience as a court clerk?

Court Staff: My experience is more work and more frustration. Self-represented

litigants want more of my time and more information than lawyers do. They need
me to tell them what to do. Thank goodness we have a Pro Se Division to which I
can refer them. Some self-represented litigants present special problems some
are very difficult to deal with, some are very hard to communicate with because
they do not speak English, they do not understand our terminology, or they are
intimidated by the process so that you can never be sure whether or not they
understand what you are saying.

Moderator: Court Staff, what is it like to be part of the Pro Se Division in the
Second Judicial District?

Court Staff: Our experience is just as my colleague describes hers, but more so.
We are swamped. We provide fifteen minutes for each litigant. We take them on a
first come, first serve basis. We are busy from morning till closing time. And on
most days, we have to turn people away. This isnt surprising since we have
anecdotal data suggesting that about half of DR cases have at least one pro se
litigant.

Moderator: In the course of your day, Judge Shepherd, you are called upon to
preside over cases with and without the assistance of lawyers. Is it safe to say, that
a case moves much more easily through the court when lawyers are involved?

Judge: Absolutely. Its no secret that our legal system can be complicated. It
simply is not reasonable to expect pro se litigants to handle their cases as
effectively as lawyers would.

Moderator: What are the special problems that you encounter as a judge?

Judge: Many self represented persons lack understanding of rules of procedure,

rules of evidence, and courtroom protocol. Many come to court without the papers
or evidence they need to present their case. Papers are not complete or correct
causing delay in the courtroom. Many litigants have difficulty presenting their
position without getting emotionally involved. When there are two unrepresented
parties, they often get sidetracked on personal arguments. After all, these people
are in court because they could not work out their problems on their own. I often
have difficulty remaining fair and impartial when one party is represented by
counsel and the other is not.

Moderator: Attorney, what are the issues for a lawyer?

Attorney: I dread going to court and finding out that there are several pro se cases
ahead of mine. It takes the judge a lot more time to get those cases decided, and
my clients case is delayed and my time is wasted. I also have difficulty dealing
with the unrepresented party. What am I allowed and not allowed to say and do
with him or her? How should I handle myself in court when the other side is not
represented? If I keep objecting to his or her questions and statements the case will
go nowhere, but I have an obligation to represent my client.

Moderator: With that said, what can the bench and bar do to encourage people to
use lawyers?

Judge: Some judges make every effort to personally encourage self-represented

litigants to hire lawyers at the outset of the proceedings. Around the country, some
courts put out information sheets or directories to help people locate attorneys who
might be able to handle specific types of cases at reduced rates. For example, in
Maricopa County, the court has prepared a loose leaf book of attorney information
- one page per attorney - where an attorney can set forth his or her qualifications,
experience, areas of concentration, and fixed or hourly rates. New Mexicos self-
represented litigants working group has explored the idea of developing similar
directories in this state.

Moderator: When a litigant comes to court without a lawyer, it seems the court
has little choice but to encourage the litigant to get a lawyer and provide some
assistance in locating a lawyer for those who are interested. But as we heard a
minute ago, most people who dont use a lawyer simply do not believe they can
afford one. Do you think theres any truth to that?

Attorney: Whether its true or not, I think the perception is there and must be
dealt with. In the domestic relations area, the average divorce with two lawyers
involved probably costs about $ 10,000 to $20,000. As lawyers, we know those
costs are certainly reasonable for the work involved, but its also easy to see why a
person of modest means may conclude that he or she simply cannot afford a
lawyer.

Moderator: If cost is a major motivator for someone who chooses not to hire a
lawyer, is there anything the bar can do to reduce the cost of legal representation?

Attorney: One idea that is gaining momentum around the country is to encourage
members of the bar to provide what is called unbundled legal services -
representation for only part of a case without assuming responsibility for the whole
litigation. For example, a lawyer might prepare forms, or review forms prepared
by parties, or prepare an agreement on one issue (such as vested pension rights), or
counsel a party on how to conduct himself or herself in court. The working group
has been exploring the use of unbundled legal services in New Mexico, and in fact,
the practice has probably been in use for sometime in a limited way. The Supreme
Court recently published proposed amendments to the Rules of Professional
Conduct to authorize the practice on a statewide basis. You can find a copy of the
proposed rule amendments in your conference notebooks.
Moderator: Aside from reducing the cost of legal representation, can we provide
free legal services to those who cannot afford a lawyer even at a reduced rate?

Attorney: Its just not realistic to think that legal services organizations can
provide this scope of representation. With reduced federal funding from the Legal
Services Corporation, I doubt that legal services organizations can even begin to
handle all of these cases. Legal services has concluded that it must devote some of
its resources to helping persons to represent themselves. They just do not have the
funding to provide lawyers for everyone who needs one and is qualified.

Moderator: What about pro bono services from the private bar?

Attorney: I doubt that there will ever be enough pro bono hours available to
address the problem, but it is an important part of the solution. For those cases that
do not qualify under legal services guidelines, efforts are sometimes made to refer
individuals to lawyers who are willing to take a case on a pro bono or reduced-fee
basis.

Court Staff: The Second Judicial Districts pro se program does work in
cooperation with the Albuquerque Bar Associations Volunteer Lawyers
Assistance Program to provide assistance to pro se litigants. The State Bars
Lawyers Care program administers a similar effort refer low-income individuals to
attorneys willing to take cases on a pro bono or reduced-fee basis.

Moderator: Are there any other ways that the bar can provide pro bono
assistance?

Attorney: There are a number of local bar associations that sponsor seminars for
persons planning to represent themselves - explaining the process and the basic
law, perhaps distributing officially approved forms. The program in the Eleventh
Judicial District in Farmington and Gallup has received national recognition. It
brings together volunteer lawyers, mediators, child support enforcement officials,
persons from the county clerks office to help with transfers of real estate and from
the MVD to transfer automobiles, process services, and court staff. The State Bar
holds similar seminars and sponsors a legal advice call-in program in conjunction
with KOB-TV. The working group has explored the possibility of amendments to
the MCLE Rules to authorize some limited credit for attorneys who participate in
such programs, and participation in such programs may also qualify toward the
aspirational goal of 50 hours of pro bono service contained in the Rules of
Professional Conduct.

Moderator: Is there a downside to any of these bar programs designed to assist

individuals who want to go to court without a lawyer?
Attorney: There is some concern among members of the bar that pro se assistance
efforts might actually encourage more self-representation. For this reason, some
local bar programs limit their assistance to low-income individuals below the
poverty line. Although its not clear whether pro se assistance actually discourages
the use of lawyers, it is certainly also possible that pro se assistance efforts used in
conjunction with the expanded use of unbundled legal services might lead to the
use of more lawyers.

Moderator: From what weve heard so far, its clear that much has been done,
and much more can be done, to encourage people to hire lawyers. But it also
seems clear that a certain segment of the population will inevitably come into court
without a lawyer either because they dont think that can afford one or they simply
do not want one. What can the courts do for these people to represent themselves
effectively - for their own sake and for the sake of the court?

Court Staff: Probably the most common form of assistance is for courts to
provide standard, easy-to-use forms. Some courts also provide information
packets, setting forth basic jurisdictional requirements, legal principles, and court
procedures. The AOC is working with the First Judicial District to develop
videotaped vignettes to familiarize self-represented litigants with court procedures.
The AOC is in the process of developing standardized pro se forms for use in
uncontested DR cases, and the Court of Appeals has also revised the forms and
informational packets that it offers to self-represented litigants. The AOC will
translate its forms into Spanish once the Supreme Court adopts final versions of the
forms.

Moderator: Can any of these processes be used to warn litigants of areas in which
it is essential to obtain legal advice?

Court Staff: Yes, the proposed forms contain those sorts of warnings. For
instance, they point out that if one of the spouses has a retirement or pension fund,
the case presents special legal issues requiring the assistance of a lawyer.

Moderator: What about one-on-one assistance from court staff?

Court Staff: Some courts have created special desks or units for self-represented
litigants to answer their questions about forms or process. Other courts are
exploring the process of designating a specific individual who can provide one-on-
one assistance to individuals before they go into court.

Moderator: Arent court staff involving themselves in the unauthorized practice

of law when they help individual litigants?
Court Staff: That certainly is a concern, but the New Mexico Supreme Court has
adopted a specific set of guidelines to assist court staff in drawing the line between
legal information and legal advice. A copy of those guidelines are included in the
conference notebook.

Moderator: What other programs are courts developing to assist self-represented

litigants?

Court Staff: Courts around the country are trying to automate their self-help
support programs - putting them on the Internet, providing forms in an interactive
format where the litigant answers questions and the program automatically fills in
the blanks on the forms. The AOC is currently experimenting with the use of
interactive forms, and is seeking funding for an on-line resource center.

Moderator: You have been involved with a lot of these litigants. Do you think
that most of them understand what is going on? Or are they just creating more
problems for themselves, and for the courts, in the future?

Court Staff: John, my experience is that a lot of these people can handle their
cases themselves, given enough information. Surprisingly enough, the research
from Arizona shows that self-represented litigants are less likely that represented
litigants to come back to court to reopen their cases. But there are certainly some
litigants who are utterly incapable of handling their own cases. The poorest, least
educated, most traumatized of them cannot do an effective job of representing
themselves, no matter how many forms and booklets we give them.

Moderator: So, what can we do for them?

Court Staff: I would hope that these are the persons to whom legal services will
devote their limited resources. Other options are family members, priests, public
libraries, community centers, domestic abuse centers any place where people can
obtain competent translation services and the help of caring fellow citizens. It
would be great if we had some way of identifying these persons and focusing our
Lawyers Care resources on them.

Moderator: Okay, so we have a lot of interesting ideas on the table. Tell us

again, why are we doing this?

Judge: For our own good. We need to reduce the burden of these cases on the
judges and court staff so that their time is not consumed with them and they have
adequate time for other cases. We have the obligation to make sure that all cases
get resolved fairly and expeditiously. We need to make sure that the public
experiences the court system as one open to all people who come to the courts for
service.
Moderator: But if we provide all these nice forms and special services, wont we
encourage more people to represent themselves? Arent we encouraging a trend
we dont really believe is wise?

Judge: As we pointed out before, the trend is not unique to the courts and I doubt
that we have much to do with it. We can ignore what is happening - keeping the
general jurisdiction courts inhospitable to people who represent themselves. All
that will do is make us all miserable. Long lines. Postponed hearings. Waiting in
court for the judge to slog through one of these cases. Frustration. Reduced public
respect for the courts. Adverse reactions from the legislature. Or we can take
steps to make the process easier for the self-represented. There is always the
possibility that it might marginally increase self-representation. But it is also
possible that by working together the bench and bar can improve the publics
perception of the legal system and actually increase the use of lawyers. The
societal changes we are seeing today are a real challenge for the courts and the
legal profession. We can either resist the change to our detriment, or adjust to the
change for the benefit of all concerned.

Moderator: Counsel, from the courts perspective, the need to make changes
seems clear, but the courts cant do it alone can they? Dont we need a much more
collaborative effort between the bench and bar?

Attorney: Absolutely. This isnt a court issue, and its not a bar issue. This is a
challenge that the bench and bar must face together. Addressing the needs of self-
represented litigants is not about getting rid of lawyers, its about getting citizens
the legal services they need. Working collaboratively, we will surely come up with
better solutions than if the courts and lawyers work in isolation. If we work as a
team, I have no doubt that we can increase access to legal services and, as a result,
improve access to the courts. Thats something we all have an interest in
achieving.

Credit should be given to the panel participants, AOC Director John Greacen,
Metropolitan Court Judge Denise Barela Shepherd, Twila Larkin, Esq., K.C.
Maxwell, Esq., Second Judicial District Pro Se Clinic Program Director Tina
Sibbitt, Esq., and Second Judicial District Court Clerk Georgia Sedillo, none of
whom, however, should necessarily be viewed as holding the general views here
expressed.

Copyright 2001, all rights reserved

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