Access to Justice: Iowa Style

Below are excerpts from IOWA State of the Judiciary delivered by Chief Justice Mark S. Cady on January 12, 2011. Unfortunately some of these access to justice issues noted by Chief Justice Cady resound here in South Carolina. For the entire text, click here.

Iowans cannot have the hope of justice without having access to justice. The grim reality is that more and more Iowans with legal problems are forced to wait too long for their day in court. These problems are troublesome to litigants and shake people’s confidence in our government. These problems result from a decade of fiscal austerity coupled with Iowans’ growing demands for court services.

This situation is not new. It has been raised in the past. Thankfully, you and the governor responded to our concerns last year and provided sufficient funds to prevent further cuts, layoffs, and furloughs. For this action, we are grateful. Like a thumb in the dike, however, this action was merely a temporary fix. It did not halt the continued erosion of court services. The situation grows worse day-by-day.

For example, in the past year, the number of clerk of court offices forced to operate on a part-time basis increased from 26 to 30. Staff reductions are so severe that at times some of these offices must close for business without notice due to unanticipated employee absence. The remaining clerk of court offices operate a full day, but are closed to the public for four hours a week to give employees periods of uninterrupted time to pare down the backlog of work. In addition, it has become increasingly difficult for our juvenile court officers to give troubled children the close, personal attention they need. Also, judicial rulings are delayed because of a lack of clerical support and court reporters.

I will briefly review how we arrived at this critical juncture.

From 2001 through 2009, in response to the state’s fiscal problems, the judicial branch like most components of state government had to cut its budget. During those years, the judicial branch cut its budget five times―and each time the cuts were deep. Unlike many state agencies, nearly all of our operating costs are for people―employees and judges. This means that budget cuts almost always require further reductions in our workforce. The end result: our staffing levels have dropped a staggering 17% in the last decade.

Today, Iowa’s court system operates with a smaller workforce than it had in 1987. In contrast, over the same period, the total number of legal actions brought by Iowans and Iowa businesses has nearly doubled. In short, Iowa’s courts are overrun with work, and Iowans are paying the price with reduced access to justice.

Our ability to deliver court services and resolve litigation to the extent that we do is a tribute to the strong work ethic and indomitable spirit of our judges, magistrates, and court staff. Unfortunately, the admirable efforts of our judges and employees cannot totally shield Iowans from the effects of the past decade of budget cuts.

-RFW

SRL Videos

Today I was fortunate to take part in instructional videos for judges when working with SRLs in the courtroom. The scripts were based on several different scenarios including Family Court and Circuit Court cases based on information the SC Access to Justice Commission has learned in previous conferences held by the SRL Network. Many thanks to Richard Zorza who served as not only the inspiration for these videos but also our technical advisor. The South Carolina Bar provided the videographers who ensured that the lighting and takes were correct. And many thanks to USC School of Law 3L Amelia Waring and Stephanie Nye, Counsel to the Chief Justice, who not only wrote the scripts but also directed the shoot. Many thanks also to the old Lexington County courthouse for allowing us to film there today.

I’m looking forward to the final products and am grateful to have supportive Judges, attorneys and individuals willing to make this a quality product.

-RFW

More SRLs: Are Lawyers too Costly or Simply Sign of Hard Times?

That’s the question coming out of Connecticut this week, see Connecticut Law Tribune article here. Whatever the answer, the numbers of Self-Represented Litigants or SRLs is on the rise. The trend isn’t limited to Connecticut either. Recent conversations with family court judges, clerks of court and masters-in-equity have indicated that South Carolina is also part of the trend.

The challenges faced by other court systems also mirror what is happening in South Carolina. SRLs are not familiar with procedures to meet minimal requirements such as notifying the other party or service of process. Even if they meet procedural requirements they may not understand some of the documents themselves. They may not even complete all the necessary forms.

Additionally, attorneys have a reputation for using their own language, also known as legalese. The phrases in legal documents often are in Latin, not English. The South Carolina Access to Justice Commission is working with the courts to ensure that court documents are written in Plain English whenever possible.

Clerks of Court in South Carolina have also noted the rise in SRLs. Members of the public often ask for forms, then ask for help completing them. Or they may ask for advice from the clerk of whether to bring the action. Clerks are wary of responding – not because they don’t want to help, but because they don’t want to overstep into the practice of law – the unauthorized practice of law. In South Carolina, there are established laws indicating that only attorneys licensed in South Carolina may practice law in South Carolina. Legal advice is considered the practice of law. The South Carolina Access to Justice Commission is also working to address this question by developing signage clearly indicating what clerks can and cannot do. And the Commission is working with a clerk of court work group to educate clerks and the general public about the fine line between advice and information.

Judges note that they too have ethical dilemmas. When SRLs appear in their courtrooms and miss relevant pieces of their cases, the judges want to help but they too have boundaries. They may not help one side to the detriment of another.

SRLs have arrived and South Carolina is working to address the issue of increased numbers of SRLs in the courts.

But it may take a little while.

Thanks for your patience.

-RFW

Oh Canada! Oh yeah.

When lawyers are only for the rich

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Self-represented litigants are on the rise, not only here in South Carolina or the United States, but also in Canada according to Macleans special report. Interestingly, law and legal practice in both Canada and the USA are based on English law. So it may not be so far-fetched to share common practices – including a rise in the number of self-represented litigants (SRLs or those previously known as pro se).

The premise of the Macleans article (part 1 of a 5-part series) is that as the economy has faltered, the cost of attorneys has remained and many people are now unable to afford to pay for legal representation. They turn to self-representation. And, what they’re seeing in Toronto is similar to South Carolina.

 As the cost of hiring a lawyer soars out of reach, unrepresented litigants are flooding the courts in unprecedented numbers. While no definitive figures exist, some judges, especially in family law, say it’s over 60 per cent in their courtrooms. Chances are, those numbers are going to rise, as the legal profession is now paving the way for even more people to appear without a lawyer. Self-help centres have sprung up in several provinces, and lawyers are offering limited services to entice clients who otherwise couldn’t afford them. Critics say it’s a cynical way to deal with the problem. Being your own lawyer is “like doing your own dental work or heart surgery,” says Judith McCormack, executive director of Downtown Legal Services, a law clinic for the poor, run by the University of Toronto’s law faculty. “It’s a desperate response.”

Historically in South Carolina we’ve not tracked numbers of SRLs, but we are in the process of doing so. The South Carolina Access to Justice (SCATJ) Commission has been working with Court Administration, County Clerks of Court and Judges at all levels to develop protocols for maintaining court efficiency while continuing to meet the needs of the public. Additionally we have been working with these entities to produce court-approved forms that are free to South Carolinians and that are more easily understood than traditional court forms.

The SCATJ Commission will continue to work on improvements for self-represented litigants as well as working with legal service entities and private attorneys to make equal access to justice a reality to all South Carolinians.

-RFW

Guest Blogger: Marvin H. Feingold

GUEST BLOGGER:

marvin-feingold

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.

In Maryland 75% of Family Law Disputes Involve Self-Represented Litigants

According to a recent article in The Daily Record, 3 out of 4 family law disputes involve at least one self-represented party. In South Carolina, we are continuing to gather statistics but it’s likely that our numbers are similar. And in the current economic climate, it’s likely that these numbers will continue to increase.

The South Carolina Access to Justice (SCATJ) Commission has been addressing this issue from the Court’s standpoint, by training judges and working with clerks of court. In addition, the SCATJ Commission has been working with Court Administration to develop forms and instructions for self-represented litigants (SRLs). We’ve sent delegations to two conferences and started work groups as a result.

SCATJ has spoken with recognized SRL experts such as Richard Zorza and John Greacen as well as others. Commissioners have been inspired by New Hampshire Chief Justice John T. Broderick.

SCATJ has been reviewing information from other states about ways that their public law libraries assist with SRLs. SCATJ has been working with legal partners including South Carolina Legal Services and the South Carolina Bar to develop videos and other instructional packets for SRLs as well as find ways to increase legal representation to South Carolinians who cannot afford it.

The primary goal is to provide attorney representation for all. Attorneys provide not only good legal advice, but sensible counsel as well. Attorneys are trained to review the issue from many angles and provide information that allows individuals to make well-reasoned decisions.

Until attorneys for all becomes a reality, the SCATJ Commission is resolved to decrease barriers for people to represent themselves. The SCATJ Commission has a dedicated SRL Committee whose sole purpose is to address this issue. We welcome your ideas. Please feel free to post.

– RFW