New Year, New Resolution: Give Self Represented Litigants the Support they Need

The percentage of self-represented litigants in many state family courts is substantial. The recent Landscape of Domestic Relations Cases in State Courts study found that in the majority of domestic relations cases (72%), at least one party is self-represented. These self-represented parties often feel like outsiders in a court system that appears to them as a private club, according to a new post by the National Self-Represented Litigants Project (NSRLP). NSRLP is a Canadian organization founded by Dr. Julie Macfarlane that works to promote dialogue and collaboration among all those affected by the self-represented litigant phenomenon, both justice system professionals and litigants themselves. While the NSRLP focuses on issues within Canada, research has shown that Canada and the United States face similar issues in regard to self-represented litigants.

In their new post, NSRLP highlights two major factors that contribute to perpetuating self-represented litigants’ feeling like outsiders: “sharp practice” by opposing counsel and the defunding of pro bono/legal aid centers. Sharp practice can take many forms, including a lack of courtesy and ordinary civility, fraud, and dishonesty. In the IAALS 2016 Cases Without Counsel study of self-represented litigants in family court (building on prior research by Dr. Macfarlane), there were approximately three times as many reports from self-represented litigants of negative interactions with opposing counsel as there were positive ones. A few of the adjectives used to describe encounters with opposing counsel include: disrespectful, rude, dishonest, bully, and aggressive. I had the privilege of representing IAALS at NSRLP’s October 2018 Continuing the Dialogue Conference – an opportunity for justice system professionals and self-represented litigants to discuss face-to-face access to justice in Canada. During the conference, a number of self-represented litigants vocally expressed their disgust in the legal system based on the sharp practice they experienced from opposing counsel.

The second contributor, the defunding of pro bono/legal aid centers, not only affects the amount and quality of help that self-represented litigants can get, but it also gives self-represented litigants the perception that the legal community views them as an afterthought. The Cases Without Counsel study brought to light that many self-represented litigants reported that legal aid was unattainable, whether because they were ineligible or because the centers were too full to take on new clients.

In November 2018, Pro Bono Ontario announced that they were going to close their three centers and NSRLP quickly heard from self-represented litigants about possible petitions and even hunger strikes. It is clear that legal aid centers are considered by many self-represented litigants to be a necessity, and while Pro Bono Ontario is ultimately keeping their centers open for another year thanks to federal funding, Pro Bono Ontario will face this issue again next year. Unfortunately, Pro Bono Ontario is by no means alone in this regard. Early in 2018, the Office for Access to Justice, a 2010 initiative to increase and improve legal resources for indigent litigants created under former Attorney General Eric Holder, has effectively been sidelined as its resources were moved to other initiatives.

IAALS continues to work in this area to increase self-represented litigants’ access to legal services and simplified court processes. IAALS recently finished hosting design sprint workshops that brought together court personnel and self-represented litigants in divorce and separation cases to design and test new processes and solutions to improve the process. Additionally, IAALS is working alongside the National Center for State Courts and the National Council of Juvenile and Family Court Judges, as part of the Family Justice Initiative project, to build out bold recommendations to improve court process for domestic relations cases. The ultimate goal of both these projects is to provide self-represented litigants—and all litigants—what they need: an accessible, user-friendly system.