Oregon State Bar Bulletin APRIL 2015
As a Multnomah County Circuit Court judge, Maureen McKnight has seen firsthand the growing number of people who cannot afford to hire an attorney and take it upon themselves to present their own case in court.
“The demand has been consistently high for a number of years. I think it’s getting more attention than it has in the past, but the numbers have been very high for quite a while,” she says. “I do think we have a tremendous gap between people who want lawyers and need lawyers, and people who can afford to hire a lawyer.”
As the number of pro se litigants has grown, the judicial system, the Oregon State Bar and individual attorneys have attempted to close that gap. The challenge is ongoing, but several initiatives have been implemented to address the modern reality that improving access to justice is a multi-tiered effort.
Initiatives Help Where Legal Aid Cannot
Janice Morgan, executive director of Legal Aid Services of Oregon, notes that for true access to justice, there are ideally two pro bono attorneys for every 10,000 clients. Due to the drastic rise in poverty in Oregon, however, there are just 90 legal aid attorneys available to assist the 850,000 people who qualify — roughly half the desired standard.
“We’ve seen a big demand for assistance and, at the same time, our resources have not begun to keep up with the demand,” Morgan says. “Most people are not pro se by choice; they are pro se because there are no [free or reduced-fee] lawyers.”
In McKnight’s courtroom, family law cases are among the most prevalent for pro se litigation. People representing themselves are frequently involved in small claims and evictions cases as well. The number of self-represented litigants in Oregon is similar to Washington and California’s numbers, she says, noting 67 to 86 percent of family law cases involve at least one person representing themselves.
While some people do choose to represent themselves for reasons that are not related to finances, the majority of pro se litigants make that decision because they cannot afford to do otherwise, McKnight says.
“This is the public. The days of everyone having a lawyer are gone. While it is ideal that everyone has a lawyer and funding for legal services for those who can’t afford it is the goal, the reality is we do have and will continue to have large numbers of people who can’t afford counsel,” she says.
Multiple committees and task forces have examined this issue, beginning with a 1999 report from the Family Law Legal Services Commission. Over the next several years, new facilitation programs were put into place that concentrated primarily on the statewide availability of model family law forms and procedural assistance from courthouse facilitators.
In 2007, the Self-Represented Legal Services Subcommittee, established by the Oregon Judicial Department’s State Family Law Advisory Committee and co-chaired by McKnight, spent six months talking with a diverse group of constituencies impacted by self-representation in family law. Its report, “Self-Representation in Oregon’s Family Law Cases: Next Steps,” included several recommendations. Among them:
- The required use of consumer-friendly, electronically interactive forms standardized across the state;
- Education programs for judges and staff, specifically addressing self-representation;
- Simplification of forms, procedures and language;
- Expansion of facilitation programs;
- Judicial support for attorney involvement in pro bono, reduced-fee, and unbundled legal services for self-represented litigants;
- Case management strategies that assist self-represented litigants in maximizing settlement opportunities, ensuring memorialization of rulings, and avoiding delays due to confusion in navigating the court system; and
- Appointment of a chief justice task force on self-represented litigants to facilitate best practices.
Those recommendations stalled as the recession took hold and budget cuts led to reductions in court services, including the facilitators program in which court staff provided procedural assistance to self-represented litigants.
“Those were really universally loved programs by both judges and lawyers that helped fill in the gap of legal services for people who needed some help just getting started,” McKnight says.
As the recession took its toll, funding and momentum for the additional recommendations stalled as well. The matter was shelved until a 2011 report by the OJD/OSB Task Force on Family Law Forms and Services. In its report, the task force stated that the next critical step was clear: a transition from hard-copy, fill-in the-blank forms to a user-friendly, online document assembly service that guides litigants through branching questions to produce forms that can be printed out or filed electronically.
“Redirecting litigants who can easily access, navigate and file family law court forms online should produce operational savings and preserve diminishing court and community resources for the most needy family law litigants,” the report states.
The task force also supported expanding the delivery of pro bono and unbundled legal services as a component of the access to justice effort, and suggested the area of child support calculation assistance as an area of focus.
Since the reports were published, Oregon’s judicial system has implemented several initiatives, including recognition that the term “pro se litigants” is not widely understood by most people who cannot afford an attorney. The term “self-represented litigants” is preferred instead, McKnight says.
“Talking in plain language that people can understand is one of our key methods to addressing the issue,” she says.
The universal service instructions for many legal forms are being revised at a fifth-grade reading level to make them more understandable for people representing themselves in court. And the court system is attempting to make websites more user-friendly for lay people searching for forms and instructions.
The judicial system has been exploring and expanding the use of interactive forms that are web-based programs. The method has been in place for Family Abuse Prevention Act restraining orders for the last two years in Multnomah County as a pilot project, and the state court administrator has recently signed the online forms into use statewide. The electronic interview-based restraining order forms are available to use in all Oregon circuit courts, making it far simpler for parties to fill out and file FAPA documents. The forms employ a simple online interview process to make sure all required information is provided. Answers from the interview populate the forms. The user then prints the forms for court filing. The forms are available at no charge through the judicial department’s family law page at courts.oregon.gov.
Note that at the top of OJD’s newly designed Oregon Courts page, courts.oregon.gov, is a large button for self-represented persons to click on to take them to an impressive array of self-help information, including the family law-related forms described above and other resources.
Multnomah County is evaluating ways to enhance its law library to restructure it as a legal resource center that is geared more toward providing basics for lawyers and self-represented litigants without computer access to research materials. McKnight believes it also would help people without lawyers understand the basics of getting started on their own case, adding that cultural competence plays a key role in that strategy.
“We as a community need to be more responsive to the diversity of people who come to us for legal help and don’t have a place to start,” she says.
As part of that recognition, McKnight talks extensively with new judges during training about best practices for working with self-represented litigants.
Legal Aid Services of Oregon has dedicated educational resources for those representing themselves. Morgan noted that the website, www.oregonlawhelp.org, has been involved in assisting people with family law forms, as well as documents required for other types of cases.
Additional legal information for the public on a wide variety of topics is also available online at www.osbar.org/public/legalinfo.html. The website’s legal information topics aim to provide background information and resources for the public.
Ever since the earliest task force recommendations, the bar has made a concerted effort to encourage more lawyers to provide more document review and coaching services to self-represented litigants. The numbers of referrals for document review or coaching services (or both) made through the bar’s Modest Means and Lawyer Referral Service have steadily increased over the years, as more lawyers have become comfortable limiting the scope of their representation.
Resources are becoming increasingly available for self-represented litigants, though additional improvements need to be made to simplify the process, according to several attorneys who provide coaching, document review or both services at a reduced fee for self-represented litigants.
“There are packets of instructions they can follow, but it can be overwhelming, especially if English is their second language,” says Portland attorney Claire Poulin, who reviews documents for self-represented litigants involved in family law cases as well as landlord-tenant issues.
Jeff Olson, who has a general practice in Lake Oswego, has offered coaching and document review for the last couple of decades and has seen a noticeable increase in the number of self-represented litigants asking for his help. Among the challenges they face is that many courts don’t have the budget for a parenting-time evaluator, which Olson says would help a lot of self-represented litigants. He also suggests that the courts add electronic forms for contempt of court, failure to pay child and spousal support, and allowance of parenting time.
“Having said that, it’s far better than it was 20 years ago, so there has been a tremendous improvement,” Olson says, adding computer sophistication and access to the Internet is not as much of an issue now for self-represented litigants as it was in the past.
In James Keddis’ opinion, the challenge lies in educating self-represented litigants about the resources that are available to them.
“There are plenty of resources available, but more people need to know about them,” says Keddis, a Portland attorney who practices family law, employment law and civil litigation. “We just need to make people aware of what’s there because there is a lot of good stuff out there.”
Washington County serves as a snapshot of the resources that are available within the tri-county metro area. Its offerings include legal research information pages maintained by the county’s law library; training pages designed primarily for librarians who work with self-represented litigants; and the Oregon Legal Research website and blog.
At the federal court level, the U.S. District Court for the District of Oregon in May 2013 published “A Guide for Self-Represented Parties.” The Oregon Family Law Center provides information about the state’s divorce laws and online divorce forms. A Small Claims Court program includes a bibliography of the U.S. Small Claims Court. In addition, the American Bar Association and National Center for State Courts provide online listings of resources available in each state for self-represented litigants.
Lake Oswego attorney Ian Shearer notes that the court system is definitely designed for legal professionals with experience in navigating it rather than the general public. “It’s a complex system and it’s probably more complex than it needs to be,” he says.
In his view, there are too many forms and unnecessary redundancies for self-represented litigants involved in family law cases. He also handles bankruptcy cases for self-represented litigants and says the bankruptcy system is much more streamlined because it’s guided by federal law and filing is completely electronic.
Shearer says one of the most valuable tools for self-represented litigants is court liaisons, or facilitators. However, many of those positions were lost during the economic crisis.
“If the legal profession is really looking to help people, they need to have pro se liaisons,” he says.
Oregon City attorney Benjamin Ybarra had pro bono and legal aid experience when he opened his Oregon City practice, so providing coaching and document review services for self-represented litigants seemed like a natural fit.
“I knew there’s only so much the courts can do before they start getting into the realm of providing legal advice,” says Ybarra, who helps self-represented litigants with small claims and landlord-tenant cases as well as contract disputes.
Ybarra and the other Portland-area attorneys interviewed agree that one of the biggest improvements for self-represented litigants would be uniform documents for Multnomah, Washington and Clackamas counties.
Lillian Quinn, owner of Non Hostile Family Law in Bend, notes that about 70 percent of court filings in Deschutes County are done by self-represented litigants. Legal aid is overwhelmed, and there are not as many resources available to help self-represented litigants as in the Portland metro area. While an online video offered by the county does explain how to file divorce papers, there are few human resources available.
“What I don’t like is that people don’t get legal advice there,” says Quinn, who began providing coaching and document review services just over a decade ago as she established her practice. She says her $75 consultation fee includes legal advice to point self-represented litigants in the right direction as they get started with their cases.
“Even the website video recommends legal consultation,” she notes. “I think part of the problem is perception because people think attorneys are expensive and just want to fight.”
As Oregon’s eCourt system expands, family law forms are an essential part of the system. Oregon Supreme Court Chief Justice Tom Balmer has addressed the need for expanded public access to these forms. The state is now testing a system from Tyler Technologies that would allow the Oregon Judicial Department to design and “publish” its own interactive forms, which also could be e-filed. In addition, Balmer’s 2015-17 budget request includes additional funding for these resources, says Phil Lemman, Oregon Judicial Department’s legislative communication manager.
The number of self-represented litigants is expected to continue to increase, according to the American Bar Association, the Institute for the Advancement of the American Legal System and a host of other groups tracking the trend and its impacts. During the Self-Represented Litigation Network’s conference in Portland last April, legal professionals from across the country gathered to discuss the ongoing demand for products and services to make self-representation easier and more efficient as well as the need for better metrics so legal professionals can evaluate and share best practices.
For McKnight, Morgan and other Oregon judges and attorneys, the renewed momentum behind the state’s efforts to better serve self-represented litigants is a welcome step toward ensuring access to justice for everyone.
ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and frequent contributor to the Bulletin. She can be reached at precision email@example.com
© 2015 Melody Finnemore