Ensuring Access to Justice for Self-Represented Litigants
Despite the many challenges in dealing effectively and efficiently with self-represented litigants, we can and must deliver on the promise of access to justice for all.
Both research studies and simple observation make it clear that the number of self-represented litigants is inundating state and federal courts. The current recession has forced many low- and middle-income Americans to take their chances in court on their own because rJhey cannot afford to hire a lawyer. Moreover, more and more people want to do it themselves, whether it be at Home Depot or at the courthouse. State studies of the legal needs of the poor bolster this observation, and they also have documented requests for more pro se climes and self-help resources. In this economy, with a tidal wave of self-represented litigants, do we really deliver on the promise of access to justice for all?
The courts and the legal profession have responded with innovations and programs that increase access to justice for self-represented litigants. For example, courts have amended rules to make it easier for pro bono programs to recruit volunteers. Courts and legal aid organizations have produced pro se forms and self-help guides. More and more state commissions on access to justice are formed each year, and the U.S. Department of Justice launched its first Access to Justice Initiative last year, initially led by Professor Laurence Tribe of Harvard Law School.
But there are limits. There are limits to the number of attorneys who will take cases for free for those in poverty. Moreover, there are many litigants who cannot afford to hire an attorney but who do not qualify for free legal help according to the pro bono and legal aid income guidelines. As Richard Zorza explained in his recent judicature article (JanuaryFebruary 2011), "[s]ome, perhaps many [legal aid providers] manage the disconnect between the huge area of demand and the relatively scarce resources by establishing highly limited times for intake in priority areas. Many also make heavy use of the brief service and advice hotlines as a safety valve to which the majority of callers are referred, and within which selection and referral decisions are often made...." There are also limits to the number of people who can effectively use selfhelp forms in court.
More must be done to increase access to justice for self-represented litigants. Education of the trial bench in this area should continue and even expand, to include more regular and in-depth training sessions at judicial conferences. The national and regional self-represented litigant conferences, some sponsored by the American Judicature Society, can and have helped with this education of the bench and bar. Based on the work at these conferences, pro se committees have developed, and pro se benchbooks, forms, and clinics have been created. Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants and Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Comi Managers from the American Judicature Society and the Self-Represented Litigation Network's "Best Practices in Court-Based Self-Represented Litigation Innovation" (National Center for State Courts, 2008) should be useful in this regard.
Judges have a difficult balancing act. …