Beyond Family Law: Cases Without Counsel in Our Broader Civil Courts

IAALS’ Honoring Families Initiative recently released two new reports focused on the experiences of self-represented litigants in our family court system. The first, Cases Without Counsel: Research on Experiences of Self-Representation in U.S. Family Court, includes the results of IAALS’ qualitative empirical research study, which explored the issue of self-representation in the United States from the litigants’ perspective. The second, Cases Without Counsel: Our Recommendations after Listening to the Litigants, outlines recommendations for courts, legal services providers, and communities to best serve self-represented litigants in family cases.

While this study focused on the experiences of self-represented litigants in family court, we know that a significant portion of litigants in all civil cases are self-represented. In the National Center for State Courts’ recent study, The Landscape of Civil Litigation in State Courts, one of the “most striking findings in the dataset was the relatively large proportion of cases (76%) in which at least one party was self-represented, usually the defendant.”

Thus, the Cases Without Counsel study includes important takeaways for our civil courts and cases at large:

• Litigants want legal help and advice, but they can’t afford it.  Issues of “cost and affordability of legal services featured prominently in the vast majority of self-represented litigant participants’ stories.”
• Case complexity matters, and where the case is relatively easy or straightforward, self-represented parties felt more confident in their ability to represent themselves. Unfortunately, we don’t always have a simple process for simple civil cases in our system. Yet the vast majority of our cases, particularly in state court, would benefit from a more streamlined and navigable process.
• Attorneys need to think about the value they bring to their clients and the system. Commentsfrom the study regarding attorneys  fell into one of two categories: the attorneys either “increased animosity between the parties or did not bring value to the process.” Increased cooperation is an important goal of the recent amendments to the Federal Rules of Civil Procedure, and the early signs are promising. As to value, lawyers used to provide legal information that parties could not get anywhere else. Access to information and the do-it-yourself mentality has never been greater. Lawyers need to be thoughtful about what they bring to the table beyond basic information, recognizing the value of human advice and counsel and thinking outside the box in how that value is provided. 

We and others around the country are focused on recommendations and reforms to the system to answer these challenges. The Conference of Chief Justices Civil Justice Improvements Committee will be submitting its recommendations to the Conference of Chiefs in July. Those recommendations focus on how we can improve the administration of justice in our state courts, in service to the litigants. At the federal level, significant federal rule amendments were just implemented, with the goal of reducing the cost and delay in our system. We must recognize the important role of self-represented litigants in our system, and take into account their voices, as we work toward achieving a system that is just, efficient, and accountable to all.