Low- cost remedies eyed

A NEW HAMPSHIRE Supreme Court-appointed task force has spent the last year examining potential responses to the growing number of litigants representing themselves in the state's courts.

Supreme Court Associate Justice James E. Duggan, the task force chair, is writing up the research and recommendations of the task force's seven work groups with the goal of releasing a report before the end of the year, according to Heidi Boyack, administrator for the Family Division Pilot Project and a task force member. She was unwilling to speculate on what the task force (or the Supreme Court which must approve the report) will recommend, but Boyack said the initial aim of the group was to try to quantify the number of pro se litigants; identify possible causes for the increase in pro se litigation; and identify any low- or no-cost steps that could remove some of the unnecessary obstacles pro se litigants face in representing themselves. Making pro se litigants better informed or less confused would ease the burden such litigants impose on court proceedings and on front-line court personnel, Boyack said.

"The role of the task force was to examine all of the possibilities-to ask what we can do without additional money by working with the staff that we have, and what we could do if we had additional funds, to address the challenges facing the courts arising from the increase in pro se litigants," said Boyack, speaking on behalf of the 15-member task force. The group included judges, clerks, and other personnel from all levels of courts as well as attorneys from the private sector and civil legal services. Gregory Robbins, NHBA president at the time the task force was organized, also is a member.

The task force's approach appears in line with a national trend among state courts to take a more positive approach toward self-represented litigants. In July, a national task force, chaired by Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall and Stephanie Cole, State Court Administrator for Alaska, issued a report encouraging all states to form statewide task forces on pro se access issues. The co-chairs wrote: "The com mission or task force should be charged with examining existing state resources that are available to self-represented litigants, making policy recommendations about extending successful programs to address unmet needs, and educating judges and court staff about the importance of improving access for litigants regardless of their representation status." (See accompanying article for excerpts from that report.)

NH's Task Force was limited in its ability to quantify the increase in self-representation because there is no historical data against which to measure. Therefore, the task force focused on responses and remedies rather than on measuring the extent of the phenomenon, although, based on a limited review of current court data, the task force did develop a few statistics to demonstrate the widespread nature of pro se participation in the courts:

• in superior court, at least one party is pro se in 48 percent of the total cases, and in 69 percent of the domestic relations cases;

• in district court, parties are self-represented in 96 percent of the cases.

Although the task force has circulated surveys to be handed out at the courts to pro se litigants, Boyack said not enough of the surveys have been turned in to represent a meaningful sample. Without specific funding, the task force couldn't afford a more comprehensive proactive survey to explore the perceptions, motivations, and in court experiences of pro se litigants, she said.

Nevertheless, Boyack said the task force did not let the lack of survey responses hamper their work. "As a group, we were pretty confident that we knew what the consequences are of the increasing number of pro se litigants - we know that self-representation can bog down the system, and we know that the situation poses many dilemmas for court personnel, lawyers and judges," explained Boyack. "If we strictly hold the pro se litigants to all of the rules as they exist now, they often don't feel as if they have had their fair day in court. But if we bend the rules for them, then that puts those people who are represented by counsel at a disadvantage."

The task force formed seven work groups to discuss the feasibility and evaluate the effectiveness of responses in the following areas:

• Simplifying court rules and forms;

• Adding court personnel, such as case managers or non-judicial magistrates;

• Providing additional information, such as enhanced filing instructions and procedural information on a Web site or in brochures;

• Unbundling of legal services, enabling litigants to use the services of a lawyer to handle a portion of their case, with corresponding changes in court or ethics rules to allow lawyers to limit the scope of their representation;

• Considering the services that are or could be provided by legal aid organizations, law schools, or through "legal clinic" settings;

• Changing or refining protocols for court personnel and judges on providing assistance to pro se litigants inside and outside of the courtroom;

• Increasing the reliance on alternative dispute resolution in the courts.

Regardless of the specifics of the task force's recommendations, Boyack said the court system's response would have pragmatic and philosophical components. She cites the Family Division's use of court staffers, called case managers, to consult individually with pro se litigants, as an example of an innovation that has helped the court system better serve its users.

Although it is costly, the Family Division's case managers make the system more effective. Stopping short of dispensing legal advice, case managers meet with pro se litigants to clarify paperwork and legal procedures, and thus avoid time-consuming misunderstandings in court. More important, devoting staff time to such communication increases the likelihood that litigants will feel the system is treating them fairly.

"One of the advantages of having case managers in the Family Division has been that the litigants feel they are heard," Boyack said. "They are told that if they have a question, they can call the case manager. The pro se litigants realize there is someone at the court to help them."

"I, like most court employees, believe that people deserve to be heard and treated with respect," Boyack said. "The Family Division model demonstrates respect and concern for litigants by investing personnel and resources to assist pro se litigants and, in doing so, also makes the system more efficient."

The impact of the Family Division's model - modest by comparison with other states where case-managers provide legal advice and even may help litigants draft pleadings - has been diluted by tight budget times. Boyack said the four case managers in the family division (three in Rockingham County and one in Grafton County) are increasingly helping to process paperwork to make sure the court's orders are issued in a more timely fashion, and are able to spend less time assisting litigants.

Ultimately, the court's budget woes will influence what solutions can be advanced to address pro se problems. Without additional funding, Boyack concedes, it will be difficult for any initiative regarding pro se litigants to have an immediate or major impact.

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