Stemming from the Cases Without Counsel project, IAALS has numerous recommendations for how courts, legal services providers, and communities can best serve self-represented litigants in family cases. The resources listed here can be used by stakeholders to learn more about or leverage to implement the various recommendations.
Self-Help Resources for Self-Represented Litigants
Increase Availability of Targeted Self-Help Resources
- John M. Greacen’s Fifty-State Review of the “State of the Art” presents a variety of tools and strategies that courts can leverage to ensure that a continuum of services is available to meet the needs of self-represented litigants.
- The Self-Represented Litigation Network Best Practices in Court-Based Programs for the Self-Represented is a thorough compilation of efforts that are worthy of broad replication. The guide includes references to and contact information for court self-help centers, forms/documentation reforms, training curricula, and post-decree practices, as well as bar efforts concerning unbundled legal services and pro bono/volunteer programs.
- The American Bar Association Standing Committee on the Delivery of Legal Services’ Self-Help Center Census includes survey-based information on the structure and operation of self-help centers in states around the country, including staffing and funding models.
- The National Center for State Court’s Self-Representation microsite contains a state-by-state compilation of self-help information and resources, with direct links to these centers and programs.
Explore Virtual & Innovative Means of Delivering Self-Help Resources
- RePresent is an online, interactive game designed to teach self-represented litigants what to do before court and how to proceed in trial. Developed by the NuLawLab, the program is currently available through CTLawHelp.org with plans to expand to other jurisdictions in the future.
- The Contra Costa County Virtual Self-Help Law Center provides an online platform through which self-represented litigants can access comprehensive information and resources. A video library conveys the written information contained on the site through tutorials and videos.
- In February 2016, the Orange County Superior Court launched the Self-Help Portal and My Court Card online program, through which self-represented litigants can: access forms and instructions; sign up for workshops; and receive reminders of important case events. Self-represented litigants can reference their My Court Card during interactions at the self-help center, allowing staff to quickly pull up case-specific details and information.
- The Center on Court Access to Justice For All maintains a Technology microsite that contains articles, reports, and other information on how to best use technology to deliver information and services to court users.
- The Legal Services Corporation Report of The Summit on the Use of Technology to Expand Access to Justice and accompanying white papers enumerate a variety of ways in which courts and legal service providers can improve access to justice using technology.
- In Building a Litigant Portal: Business and Technical Requirements, Thomas Clarke discusses how justice system stakeholders can move the litigant portal from concept to reality in a coordinated manner.
- Triage Protocols for Litigant Portals explores how formal court triage processes can be integrated into litigant portals. The authors propose a general approach to protocols for various case types, including divorce cases.
Facilitate Litigant Awareness of Available Resources
- Suggestions from Cases Without Counsel Study Participants:
- Require the filing party or the court to enclose information with the pleadings on where to find legal advice and other resources.
- Hold a mandatory orientation session (which could be completed virtually) that focuses on, among other things: what litigants can expect; what the court expects litigants to prove; how the court expects individuals to present evidence; and what legal or other support resources are available in the jurisdiction.
Assign a Liaison or Navigator to Guide Litigants through the Process
- The New York City Housing Court Navigator Program provides self-represented litigants in landlord-tenant and consumer debt cases with a specially trained, non-lawyer Court Navigator. These individuals assist eligible litigants in understanding what to expect in the process, completing court forms, and accessing other services. A preliminary 2014 evaluation of the program found that navigators provided “valued practical assistance to litigants and to judges.”
- The Arizona Commission on Access to Justice has recommended the development of a Court Navigator Pilot Project for self-represented litigants in family cases. As envisioned, the Pilot Project would be implemented in Maricopa County and would leverage undergrads from Arizona State University.
Process & Procedure Changes in Family Court
Simplify Components of the Process
- Some state summary procedures are eligible to litigants meeting certain threshold criteria, such as Oregon’s Summary Dissolution of Marriage/Domestic Partnership and Tennessee’s Agreed Divorce process. Others are more broadly eligible to parties in agreement on all issues, such as Massachusetts’ simplified procedure.
- Streamlined Family Court Rules: Driven in part by an effort to increase self-represented litigants’ access to and understanding of family court rules, the Idaho Rules of Family Law Procedure set forth in a complete and logical manner all the rules that are applicable to family cases, so that self-represented litigants (and others) do not have to dig through separate sets of rules to understand the family court process.
- Relaxed Standards of Evidence: The Arizona Rules of Family Law Procedure provide that, in most instances, parties must affirmatively opt into strict compliance with the Arizona Rules of Evidence. If neither party opts in, the presumption is that relevant evidence is admissible, with some restrictions. The Idaho Rules of Family Law Procedure establish a similar presumption, in addition to simplifying access to the complete body of rules governing family cases.
- Simplified and Informal Trial Processes: Several states now have enacted simplified or informal trial processes for litigants in family cases. Idaho’s Informal Custody Trial is available if both parties consent and provides for a more free-flowing exchange between parties and the judge. Furthermore, any documents can be presented to the court, for judicial determination as to what weight, if any, to give submitted documents. Similar processes have been enacted in Oregon and Alaska.
- With respect to simplifying the language used in rules, forms, and other court materials, the Federal Plain Language Guidelines provide a useful starting point for courts looking to make forms, instructions, and other court communications more accessible to self-represented litigants.
- The Superior Court of Orange County provides litigants with electronic, interactive Family Law Smart Forms that are independent of internet access. The Oregon Judicial Department recently introduced iForms which use an interactive interview tool to help litigants fill out court forms.
- The Washington Courts have converted the domestic relations pattern forms into plain language forms which self-represented litigants can begin filing May 1, 2016.
Establish Triage/Differentiated Case Management Systems
- The National Center for State Courts developed a model screening tool for courts interested in pursuing divorce case triage. The tool is specifically designed to help courts identify litigants and cases that need minimal or no court assistance—in other words, uncontested cases. It is intended to be flexible for purposes of easily adapting to the specific circumstances in a jurisdiction.
- In collaboration with the Association of Family and Conciliation Courts, Connecticut’s Judicial Branch-CSSD Family Services Unit developed the Family Civil Intake Assessment Screen Project—a research-based screening instrument to identify efficient and appropriate paths through the court system based on each family’s need.
- The Montgomery County Circuit Court (Maryland) has long had a comprehensive differentiated case management system in place for a variety of civil and criminal case types, and the Family Division Differentiated Case Management Plan establishes six distinct tracks for family cases.
Incorporate Trauma-Informed Practices & Processes
- The National Council of Juvenile and Family Court Judges’ Preparing for a Trauma Consultation in your Juvenile and Family Court outlines a framework for a trauma-informed court which can be instructive for all courts routinely engaging with self-represented litigants in divorce and separation cases.
- The U.S. Substance Abuse and Mental Health Services Administration, through the National Center for Trauma-Informed Care, offers resources on trauma-informed care, including Essential Components of Trauma-informed Judicial Practice. This Guide contains specific explanations of how the courtroom environment (and other aspects of the litigant’s experience) can come across to victims of trauma, and how processes might be modified to reduce these negative reactions.
- The Florida Courts Family Court Tool Kit: Trauma and Child Development contains online resources on trauma, how it impacts children and adolescents in the system, and how courts can move toward a more responsive and informed approach.
- The National Child Traumatic Stress Network has developed a Bench Card for the Trauma-Informed Judge. While geared specifically toward judges who work with children and youth, the questions and guidelines contained in the Bench Card have application to divorce and separation litigants.
Training & Education for Court Stakeholders
Guidance for Court Staff on Providing Legal Information
- In establishing the Self-Represented Litigant Coordinators positions, the Colorado Supreme Court enacted a Chief Justice Directive Concerning Colorado Courts’ Self-Represented Litigant Assistance. The CJD provides detailed guidance both on what court staff may provide by way of information and also on the services that are prohibited on the grounds that they constitute legal advice. Additionally, the CJD contains a template notice for self-represented litigants, defining the information and services that staff can and cannot provide.
- The California Judicial Council manual May I Help You? Legal Advice vs. Legal Information serves as a concise resource for clerks with an accompanying sign display to which staff and litigants can refer during interactions.
- The Massachusetts Trial Court’s Serving the Self-Represented Litigant: A Guide By and For Massachusetts Court Staff contains useful and practical information for best providing assistance to court users, including how to navigate the line between advice and information.
- Strategies from Cases Without Counsel Study Participants: Court participants acknowledged the often tricky line between providing litigants with legal information to which they are entitled and guarding against providing guidance that would constitute the unauthorized practice of law. Some of these individuals offered strategies for navigating this line that go beyond simply echoing an inability to give legal advice:
- Direct litigants to available resources in the court.
- Outline all possible options and avenues.
- Steer away from any and all questions containing the word “should” or, alternatively, from using the word “should” in a response.
Guidance for Judges on Navigating Hearings & Trials
- National judicial education leaders, the National Council of Juvenile and Family Court Judges and the National Judicial College frequently offer courses—online and in person—for judges on best practices handling cases with self-represented litigants.
- The National Center for State Courts Ensuring the Right to Be Heard for Self-Represented Litigants: Judicial Curriculum contains a series of modules designed to assist judges in managing cases involving selfrepresented litigants. The Self-Represented Litigation Network Judicial Curricula builds on this effort.
- Judicial ethics and education are among the programs explored in the Self-Represented Litigation Network’s Best Practices in Court-Based Programs for the Self-Represented.
- Strategies from Cases Without Counsel Study Participants: Judge participants offered numerous strategies for handling cases with one or more self-represented litigants:
- Actively asking questions during a hearing was among the most commonly referenced practiced. “If I don’t have the information I need, I ask,” one participant explained, “because I feel that the decision needs to be made on full information, not information just because the attorney knows what to ask.”
- Similarly, many of the CWC judges make a point of explaining rules and processes to self-represented litigants. One interviewee noted: “I explain a lot from the bench … I explain a lot and if anybody seems like they don’t understand, I explain it again and I answer any questions they have.”
- A few judge participants mentioned the benefit of using cases with represented parties to serve as an example for how trial is conducted. A participant described, “If I have a case with a lawyer and a selfrepresented litigant … I let the lawyer go first, even if it’s not the way I normally do it, to give them a model.”
Guidance on the Unique Needs of Family Court Self-Represented Litigants
- The U.S. Substance Abuse and Mental Health Services Administration’s Essential Components of Trauma-informed Judicial Practice contains practical suggestions for how judges can communicate with litigants and behave in the courtroom, in a manner that is sensitive to litigants’ trauma.
- The National Judicial Institute on Domestic Violence conducts interactive, skills-based domestic violence workshops for judges and judicial officers. The Institute is a partnership among the National Council of Juvenile and Family Court Judges and the U.S. Department of Justice, Office on Violence Against Women, and Futures Without Violence.
- The Battered Women’s Justice Project provides technical assistance and training on domestic violence that includes ideas for implementation and showcases the work of innovative jurisdictions.
Training on Vicarious Trauma & Stress Management
- The National Center for State Court Judicial Stress Resource Guide is a compilation of literature on a variety of stress-related topics, including materials on stress management.
Availability & Accessibility of Legal Services
Unbundled Legal Services
- Unbundling Legal Services: Options for Clients, Courts & Counsel: In partnership with the Association of Family and Conciliation Courts, the IAALS Honoring Families Initiative developed a series of guides and toolkits on unbundled legal services, each tailored to a specific family justice system stakeholder.
- Lawyers: This FAQ-styled toolkit is a resource for family law practitioners who are interested in learning more about unbundled legal services and/or implementing this service delivery model into an existing practice.
- Court Leadership: The support of the courts is essential in order for unbundled legal services to take hold, and this guide can assist chief justices, chief judges, and other court leaders in helping close the justice gap through hands-on encouragement and support of this service delivery model.
- Non-Legal Professionals: Self-represented litigants in family court come into contact with a variety of non-legal professionals, such as custody evaluators. This guide aims to help these family justice system stakeholders understand unbundled legal services and how to leverage this model in order to best serve their clients.
- Consumers: This toolkit aims to educate the self-represented litigant with an understanding of the legal services options available through unbundled legal services, so that litigants are empowered to locate and take advantage of affordable legal services.
- The American Bar Association Standing Committee on the Delivery of Legal Services Pro Se/Unbundling Resource Center is designed for all justice system stakeholders, and contains information and guidance on unbundled legal services and related issues in self-representation. Subpages provide practitioners with targeted information on discrete tasks:
- The American Bar Association Standing Committee on the Delivery of Legal Services issued An Analysis of Rules that Enable Lawyers to Serve Self-Represented Litigants. The white paper explores state rules of conduct and procedure, and other laws that enable attorneys to provide limited scope representation.
- The Justice Café by The Manely Firm, PC is a growing practice model, offering à la carte services for $75 an hour to family law litigants, including research, advice, document drafting, and representation in various settings.
Innovative Billing Structures
- The American Bar Association Legal Access Job Corps Task Force Resource Center is a repository for innovative legal projects and programs focused on improving access to legal services, including incubators/residency programs, solo/small firms, modest means programs, and mentoring projects. The Center is also continuously updated with latest developments from the Task Force Catalyst Grant program.
- The Chicago Bar Foundation, in conjunction with the Justice Entrepreneurs Project, published a step-by-step toolkit to assist practitioners in pricing services for low- and moderate-income clients.
Legal Aid & Pro Bono Services
- The American Bar Association Standing Committee on Pro Bono & Public Service and the Center for Pro Bono maintains a comprehensive listing of state pro bono reporting requirements. The site also includes a variety of resources for individual attorneys and bar leaders interested in increasing and regulating pro bono activity in their jurisdiction.
- New York has made great strides in pro bono services, and the New York State Courts Access to Justice Program 2015 Report details the myriad programs through which state pro bono and other volunteer providers are working to expand access.
- Probono.net provides pro bono and legal services attorneys with resources that are regional, national, and international in scope. The organization also directs individual attorneys to volunteer opportunities in their state and hosts a blog dedicated to connecting justice communities.
Non-Attorney Models of Legal Services Delivery
- The Washington State Bar Association is a pioneer in this area, having authorized and regulated Limited License Legal Technicians (LLLTs) as non-lawyer providers of discrete and limited legal advice. The Bar’s LLLT website can serve as a resource for other jurisdictions exploring this service model; it also maintains an up-to-date directory of practicing Technicians.
- In fall of 2015, the American Bar Association Commission on the Future of Legal Services published an Issue Paper Concerning New Categories of Legal Services Providers that concisely summarizes various models of providing litigants with legal services and law-related services that jurisdictions have implemented.
- In February 2016, the American Bar Association House of Delegates approved Resolution 105 enumerating Model Regulatory Objectives. Proposed by the Commission on the Future of Legal Services, the Objectives seek to guide states in regulating traditional and non-traditional legal services models.
- Rebecca L. Sandefur and Thomas M. Clarke, through the Roles Beyond Lawyers Project, have begun the dialogue on creating a framework for evaluating programs in which non-lawyers provide assistance traditionally offered only by attorneys.
Facilitate Access to Self-Help Resources & Services for Divorcing or Separating Families
The Center for Out-of-Court Divorce
- The Center for Out-of-Court Divorce model that IAALS developed and implemented is designed to operate in the community, serving families through a holistic, interdisciplinary approach. While the model does not foreclose attorney participation, it is a promising solution for self-represented litigants transitioning through divorce or separation.