Connecting Self-Representation to Civil Gideon: What Existing Data Reveal about When Counsel Is Most Needed
Engler, Russell, Fordham Urban Law Journal
Introduction I. Unmet Legal Needs, Unrepresented Litigants, & Civil Gideon II. Reviewing Reports: The Impact of Representation A. Preliminary Considerations: Methodologies in the Reports B. Courts 1. Housing Cases 2. Family Law Cases 3. Small Claims Cases C. Administrative Agencies 1. Social Security Disability Appeals 2. Unemployment Cases 3. Immigration Cases 4. Other Administrative Appeals III. Assistance Short of Full Representation A. Pro Se Clinics, Self-Help Centers and Hotlines B. Assessing the Early Evaluation Efforts of Assistance Programs IV. Observations and Answers A. Beyond Representation 1. The Substantive Law 2. The Complexity of the Procedures 3. The Judge: Individual Practices and Perspectives 4. The Court's Operation B. Representation: What We Know 1. The Importance of Power 2. Not Just Any Advocate: The Importance of Knowledge and Expertise C. Applying What We Know From The Reports 1. Implications for Moving Forward 2. The Need for Clarity of Goals and Values V. Questions and Complications A. Questioning the Data B. When Positive Outcomes Could Be Negative Ones C. The Role of Expectations D. The Thorny Question of Resources E. Short-Term Versus Long-Term Change, Stability, Fluidity, and Backlash Conclusion
Over the past decade, the phenomenon of self-representation in civil cases has received increased scrutiny. The courts' struggles with huge numbers of cases involving at least one party without counsel have led to questions about the proper role of the key players in the court system and the development of programs designed to facilitate self-representation. States have created Access to Justice Commissions to respond to the problems of those without access to legal representation. A revitalized movement seeking to establish a civil right to counsel has emerged, pressing for the expansion of the availability of counsel for the poor. The activity of the past decade comes against the backdrop of unmet legal needs, the inadequacy of funding for legal services for the poor, and reports demonstrating that litigants without counsel often fare poorly even where basic needs are at stake in the proceedings. (1)
Viewed one way, facilitating self-representation and establishing a civil right to counsel could conflict. In this view, the response to the problems facing those without counsel is to provide assistance improving their ability to self-represent, not to provide counsel. The responses could instead be part of the same Access to Justice agenda. Proponents of self representation might believe that, even with robust assistance programs, some cases still are not appropriate for self-representation. Proponents of a civil right to counsel might acknowledge that, even with an expansion of the availability of counsel, no current proposal contends that counsel should be provided at public expense for all litigants in all civil cases.
An approach viewing self-representation and civil Gideon as part of a common Access to Justice agenda suggests a common inquiry: what are the scenarios in which full representation by counsel is most needed? Part of this question involves policy choices as to the importance of what is at stake in the proceeding. Not surprisingly, initiatives seeking an expanded right to counsel focus on scenarios in which basic human needs, such as child custody and shelter, are at stake. (2)
Part of the question, however, is a research question: what does the data reveal about the characteristics of litigants, cases, courts, or agencies that help identify the cases in which the presence of counsel is most likely to impact the outcome of the case? …