Editorial- By Marvin H. Feingold, Esq.
Thank you SC Access to Justice and Justice Toal for an informative and enlightening discussion on the obstacles to pro se litigants in South Carolina courts. At Charleston Pro Bono Legal Services, serving Charleston County low income residents, we have established procedures that address your concerns. We also have ideas for providing pro bono attorneys to further all residents’ ability to effectively advocate on their behalf.
We agree that in Family Court and Magistrate court, a litigant going pro se is at a decided disadvantage. Even with access to pleadings, a great deal of explanation is necessary for her to properly present a case. With that in mind, we at Charleston Pro Bono have established a process wherein Charleston School of Law students prepare pleadings for each case; pro bono attorneys then, meet with the client to walk her through the process. Our office is on call to answer questions at all stages.
Self-help is a necessary and effective method of helping to bridge the Justice gap. The development of efficient and effective avenues of self help requires the full commitment of Court Clerks, Judges, Bar Associations, legislators and attorneys. Also necessary, are efforts to streamline court procedures and to make them more pro se friendly. Something along these lines was done last May when Justice Toal Ordered that pleadings in Family Court may be filed In Forma Pauperis without the need to wait for a Motion to be granted before filing. If the IFP is later denied, the party then has 30 days to pay the filing fee. Another example is the statutory provision which allows visitation to be enforced pro se simply by presenting an affidavit to the Clerk of Court.
Adjusting the procedural infrastructure to make it more pro se friendly should be considered in the rule-making and legislative processes. Such adjustments of procedure should be informed by the thinking and experience of other States as well as academics who study the subject. The Access to Justice Commission should serve as a clearinghouse for information about self-help developments and also as a leader in promoting policies of Courts which make “going pro se” more workable into the future.
Currently, the South Carolina Bar maintains, on its website, a “how to self represent” in a simple 1 year separation divorce including forms and specific instructions and a “script” for appearance in Court. Pro Bono Legal Service and South Carolina Legal Services, both conduct regular “pro se clinics” in which clients are given personal advice on how to proceed pro se in simple divorce cases. The SC Supreme Court and Charleston County Courts also maintain some legal forms which pro se litigants can access although there is little guidance given as to their use.
In addition to simple divorces, Charleston Pro Bono Legal Services has, had success with the following cases which have been handled pro se.
- Uncontested custody actions
- Paternity and visitation actions
- Actions by a parent to recover custody after removal
- Petitions for Modification of Child Support
Another aspect of pro-se assistance deals with a side of this dynamic subject which has received relatively little examination, namely, Defensive pleadings to avoid default in Common Pleas and Magistrates Court. Specifically, at Charleston Pro Bono, Answers and even Counterclaims have occasionally been ghostwritten for pro se litigants. Such “unbundled” assistance should be recognized as a legitimate function for a lawyer to perform. How much and what kind of advice is appropriate when preparing such a pleading. What ethical considerations apply? What follow-up and/or continuing guidance is appropriate?
There is little doubt that pro-se litigation will continue to be an important factor in the mix of resources available to low-income people in South Carolina. A course of inquiry most appropriate to the Access to Justice Commission would in my opinion be: What does the future hold for this device? What types of matters lend themselves to pro se treatment? What are the ethical implications for lawyers assisting clients to proceed pro se? How much should a lawyer be involved in a pro se litigant’s case? What sort of follow-up and/or continuing guidance is appropriate? What about Ghostwriting of pleadings for the pro se litigant? How can Courts, Clerks of Court, bar associations and individual attorneys cooperate to maximize the benefit to all of such a device and lastly, what statutory or rules changes are advisable?
All of this effort toward self help may be enhanced through an emphasis on client legal education. “Law schools for non-lawyers” presented by various attorney organizations, courses offered by our community colleges, adult education courses and work done by Legal Services Programs to distribute information about the workings of our legal system may be our first line of defense against injustice in the civil courts.
As to the idea of having a Kiosk at the court house, “confidentiality” and “avoiding conflicts” would seem to be the major problems with having Attorneys occupy the kiosk. An “ask a lawyer” model could incorporate the Kiosk idea by having an intake worker available at the courthouse and a list of attorneys on call during specific hours to answer questions. Some sort of “pro se” assistance is however needed, especially at Family Court.
-Mr. Feingold is the Pro Bono Director of Charleston Pro Bono Legal Services and is licensed to practice law in South Carolina. For more information about Charleston Pro Bono Legal Services visit http://www.probonols.org/. Not affiiliated with the South Carolina Bar Pro Bono Program.