We are pleased to share our latest newsletter.
If you have questions, please feel free to email me.
The South Carolina Courts’ Self-Help Page now offers FAQs (General Questions, Circuit Court and Family Court) and an explanation about what court staff can and cannot in Spanish!
At the end of the 2-year pilot program, the SC Access to Justice Commission will provide a report detailing the program’s effectiveness and making recommendations for further action.
Below is an excerpt from the South Dakota State of the Judiciary delivered by Chief Justice David Gilbertson on January 12, 2011. As with Iowa’s excerpts, this pertains to access to justice for people with low-income or those of modest means. Of note – service to self-represented litigants (SRLs).
ACCESS TO THE COURTS BY THE UNDERPRIVILEGED
A Chief Justice from another state told me that 70% of the divorces in her state are now done by people attempting to represent themselves. We have an increasing number of our citizens who cannot afford to hire an attorney even if one is available in their area. Yet these citizens need and deserve access to our courts. We have worked with the Access to Justice Program of the State Bar to encourage attorneys to provide free legal services to those who need them. Currently there are 275 attorneys who have agreed to do so, an increase of 100 attorneys from last year. This number, while impressive, falls significantly short of the existing need.
Our Unified Judicial System has created many legal forms for those individuals who for various reasons, economic and otherwise, will be representing themselves in a judicial proceeding. At this point the forms deal with domestic relations issues such as divorce, name changes, and child support. Many of these forms are available free on the Internet at the UJS website, http://ujs.sd.gov/, or for a small fee at any Clerk of Court’s office. We hope to expand their scope and availability in the future.
This is the question that recently arose in New York. According to this post, the New York State Senate Judiciary Committee recommended immediately adding 21 family court judges to the bench. The Committee’s full report is available here.
Interestingly, the reason for the increase is an increase in need due to layoffs, consumer credit, housing problems, crime, and constrained social services as well as an increase in self-represented litigants (SRLs). It is fairly well-established that SRLs typically take more time in the courtroom than those represented by counsel. And reasons vary – many SRLs are not familiar with rules of court; they want to tell their whole story in court – not simply the “relevant” parts; and they may become more emotional because they’re not only living the part of the litigant, but also increasing their stress by acting on their own.
Add to that an increased need and you have clogged courts, aka decreased access to justice.
New York recognizes the need for more Family Court judges as does the representative from the Association of Family and Conciliation Courts.
Now imagine an increase in the number of filings, say, by 10%.
In Family Court, that would be approximately 7,500 more cases in the year. With approximately 260 workdays per year with 8 hour workdays, that would average 3.6 cases per hour – without time for administrative tasks or completing paperwork.
What do you think? Do we need more Family Court Judges?
Last Thursday, I attended and spoke at the Lexington County Bar’s Annual Conference. Among the presenters were The Honorable James O. Spence, Master-in-Equity; Desa Ballard, Private Attorney; The Honorable Richard C. Collins, Magistrate; The Honorable Daniel R. Eckstrom, Probate Court; and me.
Judge Eckstrom began his presentation with an acknowledgment that the number of self-represented litigants is rising – in all levels of court. He noted that it is especially important for judges to be impartial in perception AND fact. He noted that as judges we should explain more about the process. As attorneys, when the other side is self-represented, we need to make sure that we are very clear about who we represent – especially when there are multiple parties involved.
If you want more information about this CLE, watch the SC Bar’s website. The presentation was filmed and will be available for distance learning at a later date!
Earlier I mentioned that I attended and spoke at the Lexington County Bar’s Annual Conference last Thursday. Among the presenters were The Honorable James O. Spence, Master-in-Equity; Desa Ballard, Private Attorney; The Honorable Richard C. Collins, Magistrate; The Honorable Daniel R. Eckstrom, Probate Court; and me.
In a previous post were notes I made from Judge Spence’s presentation. This post will cover notes from Desa Ballard’s presentation.
Now, if you’re an attorney practicing in South Carolina, you’ve probably heard of Desa – via the Advance Sheets. A quick Google search turns up a good many instances in which Desa is counsel in Attorney Discipline cases. Often when Desa speaks, people listen. She offers good advice and ethical guidance.
After Judge Spence offered his words of wisdom, Desa referenced that when working with SRLs, we need only reference familiar material – the book “All I Really Need to Know I Learned in Kindergarten” by Robert Fulghum – specifically PLAY FAIR.
Of particular note, she mentioned that most of her discipline cases begin with a notion of fairness or lack thereof. In most instances, the aggrieved party alleges that they were not treated FAIRLY. And, if the attorney has no objective witness (i.e. court reporter) to substantiate what was said, the case becomes very complicated very quickly.
Desa noted that there are two standards for SRLs – criminal and civil. In criminal courts, there is an absolute right to represent oneself. In some instances, courts will appoint “stand-by” counsel. She noted that these appointments should not be entered into lightly. Point of reference – a 2007 ABA Advisory Opinion directly on point. The attorney owes a duty to the system, with very limited obligations to the “client.” In fact, the attorney is expressly prohibited from interfering with the SRL’s decisions of how to represent himself.
She referenced Rules 4.2 and 4.3; noting that attorneys should refer back to them to make sure we understand our role. Rule 4.2 is especially important when attorneys are representing ourselves or our friends. Rule 4.3 helps us clarify our role when we are representing our clients against self-represented litigants.
When Desa mentioned “ghostwriting,” a popular topic recently, she emphasized that we, the attorneys, are the ones who are supposed to be objective AND professional. Additionally, we can and should refer back to rules to ensure that we are acting appropriately within our ethical guidelines. After all, as attorneys, we are bound by ethics!
For those of you interested in learning where to start to learn more about self-represented litigants in South Carolina, here’s my cheat sheet:
A. South Carolina:
C. Other States:
I’m sure there will be more to come, but this should give you a start!
And many thanks to probono.net for supporting many of these platforms.
From early on at the SC Access to Justice Commission, I’ve been exposed to pros and cons of having people represent themselves in court. For the most part both sides have presented thoughtful, articulate and well-reasoned arguments for their side. And both sides have their share of passion; both positive and negative.
Some Commissioners and I have been accused of trying to take away business from hard-working attorneys because the Commission is working on self-represented initiatives.
On the other hand, the Commission received information during the public hearings that many people were already representing themselves – without success.
Regardless of which side you favor, the reality is that more people are showing up in court without legal representation.
For many, it’s because they simply cannot afford to hire an attorney or they cannot find an attorney willing to represent them.
For others, it’s simply their choice – for reasons unknown.
We may never know why.
But we can prepare our court system.
In the meantime, we can look at innovations and practice by other states. Other states such as Massachusetts and Montana.
Budget cuts in California cause the state’s Judicial Council to decide to close the third Wednesday every month from September 2009 to June 2010, according to an article in the Los Angeles Times and confirmed by a press release from the California Courts.
While many of us in South Carolina may not tend to notice what happens in California (after all it’s on the “other” coast and several hours away by plane), this signals a tough time for us as well. We look to California for trends; and for those of us in access to justice, we often rely on California for these trends. They provide the fertile classroom from which the rest of us glean ideas and then adapt them to fit our own state’s needs.
(Aside to the Other 49 States: We learn from you as well and occasionally you learn from us, but c’mon, truthfully, don’t many of us look to California for ideas? Really?)
California has been a national leader in working with self-represented litigants (SRLs); creating a vast library of plain language forms, working on unbundled legal representation, and developing information in multiple languages. Additionally JusticeCorps has taken off in California, and has been successfully providing information to SRLs in five counties for some time.
California has offered bilingual court service for many years; and information in many languages for a while as well.
And, according to the press release, the California Courts are the largest court system in the nation.
So how does this impact ACCESS TO JUSTICE?
By closing the courts one day per month, the third branch of government will close itself to its constituents. According to the LA Times, Chief Justice Ronald M. George noted that “the closures would result in delays in trials and more crowding in jails. Inmates who might have been released on the third Wednesday of the month will have to wait until the next day.” The hope is that the one-day closing will prevent additional closings.
California Courts – the nation’s courts are watching. We wish you the best!