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Sunday, September 26, 2010

Courts address problem of rising number of people who represent themselves

CONCORD – An ever-increasing number of people representing themselves in court has prompted a court rules committee to suggest easing restrictions on judges offering help to so-called pro se litigants in the courtroom.

State Supreme Court Chief Justice John Broderick Jr. said the number of people walking into courtrooms without lawyers, mostly in lower courts but in surprising numbers even at the Supreme Court, is the biggest challenge facing a court system already beset by budget cuts and staff shortages.

“The process of going to state courts is taking longer for people, and it’s costing more for many of them,” Broderick said. “That is more true today than it was 30 years ago. It is the single biggest challenge facing state courts in America.”

Parties representing themselves present a wide range of challenges to judges and court clerks, and the state has identified a wide range of steps to address pro se parties. Some of those steps have been taken. All of them cost money.

The problem is that the legal system presumes participants understand how it works and what’s expected of them. When two lawyers are in the courtroom, a judge can walk in and tell the lawyers to proceed, and they know what to do. They submit motions, present arguments, call witness and site case law. Judges can act more like umpires.

“They don’t have to explain the game,” Broderick said.

A pro se litigant often doesn’t know how to do any of that, which leads to wasted time and, ultimately, missed opportunities for the parties. That, in turn, sometimes leads to resentment and distrust.

The rule change would allow judges to explain the game, in effect, without worrying that such an explanation violates the strict ethical code to which judges are held.

The rule change proposed this month by the Supreme Court Advisory Committee on Rules would ease another challenge pro se litigants present, it’s hoped: their own frustration and decaying trust level in the court system when their ignorance of the system prevents them from getting a ruling they deserve and could have received if a lawyer argued on their behalf.

In comments attached to the proposed rule change, the committee said “the growth in litigation involving self-represented litigants and the responsibility of courts to promote access to justice warrant reasonable flexibility by judges, consistent with the law and court rules, to ensure that all litigants are fairly heard.”

The rule change would allow judges the flexibility to make “reasonable efforts” to facilitate the ability of all parties, including pro se parties, said Laura Kiernan, state judicial branch spokesperson.

That means judges would be allowed to explain the court process, how a hearing will run, what each party is expected and allowed to do, possible outcomes and next steps, Broderick said.

“What you’re really doing is explaining,” he said. “You’re not taking sides. Some judges were understandably concerned that they were committing an ethical violation.”

Many judges avoided making such explanations, particularly when one party had a lawyer and one was self-represented, for fear of violating strict ethical codes barring them from giving advice or showing favoritism, Broderick said.

The rule change makes it clear to judges that they would be on firm ethical footing making such explanations, which it’s hoped will encourage explanations and make for better educated litigants.

“We have to make it accessible and understandable to people who need it,” Broderick said. “We need to be realistic, and we need to give judges some ethical comfort.”

Choice to go it alone

As the system grows more complicated and more expensive, it becomes more inaccessible to the people it’s supposed to serve, particularly low-income and, increasingly, middle-income parties.

Because of the expense, more people are choosing to go it alone in court, and because of the complexity, they don’t necessarily get the outcomes they deserve and would be able to get if represented by a lawyer.

Pro se litigants also clog the court system because there aren’t enough resources for them to learn how to represent themselves. Often, they rely on court clerks, who in addition to not being allowed to give legal advice, are pulled away from processing court cases.

New Hampshire is hardly the only state struggling under the weight of self-represented parties, and the numbers are increasing because of the most recent recession.

In a 2009 survey conducted by the Self-Represented Litigation Network, 60 percent of judges said they’d seen an increase in the number of pro se litigants.

The impact of self-represented parties is being felt elsewhere, too. Ninety-two percent of judges said budget cuts to self-help programs led to more frustration and anger for the parties involved, and 79 percent said it led to more confusion.

Half of the judges said the cuts led to more hearings being adjourned prematurely and continued, and 54 percent said it delayed hearings.

Broderick said when he started practicing law in New Hampshire almost 40 years ago, it was almost unheard of to see someone representing themselves at the superior court levels. Now, 70 percent of divorce cases at superior courts have at least one side representing themselves, Broderick said.

That number climbs to 85 percent at the district court level. And even at the highest level, the 950 appeals the Supreme Court heard last year, 35 percent to 40 percent included at least one party representing themselves, Broderick said.

Hillsborough County Superior Court Clerk Marshall Buttrick said the court doesn’t track how many cases include pro se litigants, but said the number who are is climbing, particularly for divorce petitions, domestic violence, and custody actions and child support cases.

“It is a large and increasing percentage of the cases that have people who choose to represent themselves,” Buttrick said. “I do think a lot of it is driven by the cost of legal services.”

Steps taken

A 2004 study by the Supreme Court Task Force on Self-Representation suggested a number of steps to make it easier for people to represent themselves, thereby increasing their ability and reducing their strain on the court system. Some of the suggestions have been implemented.

For several years, the state has allowed limited representation, meaning people can hire lawyers for small portions of their cases and represent themselves in the courtroom to save money.

The state court website has an extensive self-help center that includes information on how to prepare for court and numerous links to legal assistance programs, downloadable forms and fee schedules, and more.

The court system has also established mediation programs at all levels, Broderick said. About 40 percent of the 16,000 small-claims suits filed in the state annually go to a mediation program before seeing a judge. More than 80 percent of those are settled by mediators, Broderick said.

But budget cuts and staff shortages only make the growing number of self-represented parties tougher to deal with, since many pro se litigants rely on court clerks to explain the legal system and what’s expected of them.

“They spend a lot of time at the counters talking to people who don’t know how to navigate the court system,” Broderick said.

“It becomes harder when we have staff vacancies,” Buttrick said. “It becomes one more thing in the mix we have to deal with. It has the potential to slow the work down because my staff isn’t processing cases. They’re answering questions and inquiries from people who are self-represented.”

Budgets cuts have led to employee furlough programs at all of the state’s courts, and to staff shortages, since the courts are keeping 71 positions vacant to save money, Broderick said.

“We’re like a full-service bank without enough tellers behind the windows, and the line keeps getting longer,” he said. “It is more pronounced now than ever.”

The proposed rule change is a step in the right direction, Broderick said, but much more needs to be done in the long run, including a better self-help website, more access to mediation and legal assistance programs, an investment in technology that makes it easier for self-represented parties to learn what they need and what they need to do on their own, and encouraging judges to write orders and decisions in plain English so they’re more understandable.

“Self-represented players are not going away,” Broderick said. “It’s not their fault. They don’t mean to take a lot of time, but they do. It’s a very big deal here and around the country.”

Joseph G. Cote can be reached at 594-6415 or jcote@nashuatelegraph.com.