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Bar Journal - Winter 2005

Challenge to Justice~ A Report on Self-Represented Litigants in NH Courts

By:

The report on NH Supreme Court Task Force on Self-Represented Litigants was presented to the Supreme Court in January 2004. The following is the introduction, recommendations and conclusion of the Task Force, chaired by Hon. James E. Duggan, Associate Justice of the NH Supreme Court.

INTRODUCTION

In recent years, New Hampshire courts have experienced a dramatic increase in the number of citizens who choose to represent themselves. This population of self-represented or pro se litigants represents a cross-section of our community: a mother trying to collect child support, tenants upset with landlords, neighbors disputing a property line, a contractor with an unpaid bill, couples tangled in divorce, a family settling the estate of a loved one. They come into their court, on their own, with a conflict or change in their lives, and they expect a resolution. That is their constitutional right.

Access to justice is an abiding principle of our system of justice and the doors of our courthouses are open to everyone, whether represented by a lawyer or not. It follows that the obligation of the court system is to see to it that justice is as fair and efficient as it can be for those who arrive on their own. As the number of these pro se litigants continues to grow, and the strain on the court system increases, meeting that constitutional guarantee of justice for all will require changes, some of which we have proposed here.

Identifying the Issues

Our intent is not to decrease the number of persons who come to our courthouses without a lawyer, or to erect barriers that discourage them. We do believe it is preferable that litigants have the assistance of a lawyer, and we strongly recommend increased resources for low-cost legal assistance. At the same time, we recognize that pro se litigants are a permanent and growing part of our justice system and we have an obligation to determine what level of assistance we can provide to them. By providing help, we may be able to reduce the number of times these litigants must come to court and thus reduce the stress on the court system.

Self-represented litigants are either unwilling or unable to pay a lawyer. A sample of self-represented litigants in New Hampshire showed that most of them were in court on their own because they could not afford to hire or continue to pay a lawyer. In today's "self-help" society, many people believe they can handle simple legal matters themselves. More often than not, however, it quickly becomes clear that these pro se litigants lack the knowledge and skill to handle their own case and that they need significant assistance from the courts. The courts' resources cannot keep pace with the increasing need to manage individual cases brought by pro se litigants.

As a result, New Hampshire courts today are overwhelmed by self-represented litigants and, with existing resources already under pressure, the entire case processing system is only further bogged down. Meanwhile, the needs of self-represented litigants are unmet.

What the Facts Show

Case statistics, and day-to-day experience in our courthouses, confirm the growing impact on the system. One party is pro se in 85 percent of all civil cases in the district court and 48 percent of all civil cases in the superior court. In probate court, both sides are unrepresented by lawyers in 38 percent of the cases. In superior court domestic relations cases, almost 70 percent of cases have one pro se party, while in district court domestic violence cases 97 percent of the cases have one pro se party.

The growth in self-representation, and the shortage of resources to deal with this new reality, is a serious issue not just for New Hampshire, of course, but for court systems nationwide. In 1999, at a National Conference on Pro Se Litigation, 95 percent of the participating courts, including New Hampshire, reported an increase in the number of pro se litigants.

The impact of this dramatic increase in self-representation has been profound. Today's legal system is structured for lawyers. Both the system's complex procedures and the law assume that qualified lawyers will represent both sides of a dispute. This assumption no longer holds true.

The brunt of this change in circumstances is felt by court staff and judges. Court staff literally spend hundreds of hours responding to inquiries from pro se litigants. Judges must explain fundamental procedures to the litigants. Both judges and court staff are often put in the difficult position of assisting a self-represented litigant without impermissibly giving legal advice.

The Work of the Task Force

In October 2001, the New Hampshire Supreme Court created a "Task Force on Self-Representation" to examine the phenomenon of the burgeoning number of self-represented litigants, identify the problems self-represented parties experience in accessing the court, address the difficulties self-represented parties present to courts, attorneys, and represented parties, and make recommendations to the court. The "Pro Se" Task Force set out to study possible approaches, including those implemented by other states that address this challenge.

To accomplish the goals of the Task Force, members were chosen who represent a cross-section of the legal system most affected by the increase in pro se litigation including judges, clerks, administrators, and case managers from all levels of courts. The Task Force also included the director of legal services for the New Hampshire Bar Association, a professor from Franklin Pierce Law Center, legal services attorneys and private attorneys.

Reaching Out to the Community

The Task Force collected information directly from pro se litigants in New Hampshire through questionnaires that were distributed in the courts. The Task Force also reviewed materials from federal and other state courts, as well as materials from the American Judicature Society and the National Center for State Courts. The Task Force collected basic data concerning the number of self-represented parties in New Hampshire by court and case type.

The Task Force also held focus group sessions for pro se litigants in Dover, Manchester, Concord and North Haverhill to learn first-hand about their experiences. At these sessions, pro se litigants expressed their frustration with the legal system, distrust of lawyers and judges, appreciation for assistance from court staff, and, in some cases, their unrealistic expectations of the legal system. Some pro se litigants, particularly those who are frequently involved in litigation, expressed a desire for easier access to information through computers. The Task Force would like to express its thanks to attorney Connie Boyles Lane who conducted the focus group discussions and prepared a report, and to the State Justice Institute, which provided grant support for this important aspect of our work.

According to the Task Force survey, people choose to represent themselves mainly because they cannot afford a lawyer or believe that they do not need one. Studies from other states have identified other important factors that account for the huge jump in the number of pro se litigants, including a decrease in funding for legal services to low-income people, the impact of television courtroom shows, dissatisfaction with lawyers and an expectation in today's consumer-oriented society that when "customers" needs something from the court system, they will receive clear direction about what to do, and how to do it on their own.

Taking Action

Many jurisdictions have responded to the rising tide of pro se litigants by devoting new resources to the judicial system. States have put in place specially trained personnel to operate resource desks and have designed web pages just for use by pro se litigants. Other less costly measures including guidelines for judges and court staff have been developed.

Many of these ideas have yet to be fully evaluated for their effectiveness, because they are so new. But experienced observers in judicial administration all agree that without innovative approaches, courts will only be further weighed down as the pro se population continues to grow.

The New Hampshire Pro Se Task Force selected seven categories of possible approaches to consider. A subcommittee was assigned to study and assess each of the selected approaches and report back to the full task force.

This report is the result of the work of the Task Force. For each of the approaches studied, the Task Force has a recommendation and a suggested plan for implementing the recommendation. The overall purpose of the recommendations is to improve access to justice for pro se litigants. This purpose is served by two basic principles - increasing the availability of legal assistance through more lawyers and limited representation, and making the system more user-friendly through case managers, technology, alternative dispute resolution and simplified rules.

Findings and Recommendations Summarized

  1. Expanded Legal Services. Because low-income clients lack access to attorneys and are most likely to represent themselves, legal services should be expanded significantly.

  2. Limited Representation. To increase the availability of lawyers, current professional conduct rules should be revised to clearly allow lawyers to engage in limited representation of clients.

  3. Case Managers. Every major court should have one or more well-trained case managers to evaluate pro se cases entering the system for possible referral to mediation, the private bar, pro bono or legal services providers and to meet with pro se litigants before their court hearing to prepare the parties and the case for the court.

  4. Public Access to Information. The Judicial Branch and State Office of Information Technology should launch a "Computer in Every Courthouse" project to establish public access computer workstations.

    An online "Self-Help Center" should be established on the Judicial Branch Website to provide pro se litigants with forms, instructions and comprehensive, user-friendly information about court procedures and available legal services.

  5. Alternative Dispute Resolution. The courts should designate a statewide coordinator to oversee alternative dispute resolution programs at all levels of the court system.

  6. Protocols for Judges and Staff. The courts should develop and promulgate written protocols for judges and staff that explain their duties and limitations in managing pro se litigation.

  7. Simplified Rules. Court rules, forms and procedure should be simplified, where possible, to accommodate self-represented litigants.

Conclusion

Each of the recommendations in this report reflects ideas and innovations tested by justice system leaders around the country in response to the tremendous challenge courts face from the surging population of self-represented litigants. Justice for all who come to our courts-with or without a lawyer-demands that we accept that challenge and meet it as best as we can. The work of this task force, initiated by the New Hampshire Supreme Court, is an important step toward that goal.

Suggestions for case managers, a self-help website, and simplified rules and forms have been made with efficiency and economy in mind. Other proposed changes, including limited representation and centralized alternative dispute resolution programs, reflect the need to broaden our approach toward management of pro se cases to assure fair and equitable results for all involved.

All of the suggestions within this report however, are grounded on the single principle that meaningful access to justice in today's world means a clear recognition by those involved in the system that many of our constituents want to go it alone when they come to court. Our obligation is to give these citizens the help they want, need and deserve.

The Task Force is grateful for the opportunity to assist the Supreme Court in meeting this challenge.

Members of the Task Force
on Self-Representation

  • Chair: Hon. James E. Duggan, Associate Justice, NH Supreme Court
  • Susan W. Ashley, Deputy Clerk, Strafford County Superior Court
  • Hon. Thomas E. Bamberger, Justice, Nashua District Court
  • Heidi Boyack Barba, former Family Division administrator
  • Hon. Patricia C. Coffey, Associate Justice Rockingham County Superior Court
  • Diana Crichton, Administrative Appeals, NH Health & Human Services
  • Hon. H. Philip Howorth, former Presiding Justice, Nashua District court
  • Paula J. Hurley, Clerk, Manchester District Court
  • Hon. John R. Maher, Administrative Justice, NH Probate Court
  • Virginia A. Martin, Associate Executive Director for Legal Service, NH Bar Association
  • Marilyn B. McNamara, Executive Director, Legal Advice & Referral Center
  • Thomas J. Pappas, attorney, Wiggin & Nourie
  • Hon. James R. Patten, Justice, Carroll County Probate Court and District Court
  • Gregory D. Robbins, attorney, Shaines & McEachern
  • Rhonda Scully, Case Manager, Rockingham County Family Division
  • John E. Tobin, Executive Director, NH Legal Assistance
  • Peter S. Wright, Director of Clinical Programs, Franklin Pierce Law Center

Members of the
NH Supreme Court Committee on Justice System Needs & Priorities

  • Bruce W. Felmly, Chair
    Attorney, McLane, Graf, Raulerson & Middleton

  • Kelly Ayotte, Attorney General, State of NH
  • Joan Bishop, Court Coordinator, NH Superior Court
  • Jane D.W. Bradstreet, Register of Probate, Merrimack County Probate Court (chair,Court Facilities, Services, and Personnel Subcommittee)
  • Hon. David A. Brock, former Chief Justice, NH Supreme Court
  • Hon. John T. Broderick, Chief Justice, NH Supreme Court
  • Hon. Susan B. Carbon, Associate Justice, Concord District Court, Supervisor Judge, Family Division, Grafton County (chair, Public Service and Responsiveness Subcommittee)
  • Timothy C. Coughlin, President, NH Trial lawyers Association, attorney, Coughlin, Rainboth, Murphy & Lown
  • Hon. R. Laurence Cullen, Justice, Exeter District Court
  • Hon. Linda S. Dalianis, Associate Justice, NH Supreme Court
  • Hon. James E. Duggan, Associate Justice, NH Supreme Court
  • Thomas A. Edwards, Senior Systems Analyst/Programmer, Administrative Office of the Courts
  • Eileen Fox, Clerk, NH Supreme Court
  • Hon. Richard E. Galway, Associate Justice, NH Supreme Court
  • Nina C. Gardner, Executive Director, NH Judicial Council
  • Donald D. Goodnow, Director, Administrative Office of the Courts
  • Peter W. Heed, former Attorney General, State of NH
  • Russell F. Hilliard, President, NH Bar Association; attorney, Upton & Hatfield
  • Barbara Hogan, Clerk, Cheshire County Superior Court
  • Paula Jean Hurley, Clerk, Manchester District Court
  • Christopher M. Keating, Executive Director, NH Public Defender
  • Hon. Edwin W. Kelly, Administrative Judge, NH District Courts and Family Division (Quality Assurance Subcommittee chair)
  • Laura A. Kiernan, Court Information Officer, NH Supreme Court
  • Hon. Robert J. Lynn, Chief Justice, NH Superior Court
  • Hon. John R. Maher, Administrative Judge, NH Probate Court
  • Hon. Walter L. Murphy, former Chief Justice, NH Superior Court
  • Hon. Joseph P. Nadeau, Associate Justice, NH Supreme Court
  • Pamela B. Neville, Regional Court Administrator, NH District Court
  • Fred L. Potter, attorney, Sulloway & Hollis; (chair, Technology Subcommittee)
  • Hon. Larry Smukler, Associate Justice, NH Superior Court
  • Hon. Michael F. Sullivan, Associate Justice, Concord District Court
  • John E. Tobin, Jr., Executive Director, NH Legal Assistance
  • Martha Wagner, Probate Administrative Coordinator, NH Probate Courts
  • (Names in bold chaired subcommittees.)

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