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Dickson: Trial courts face 'crisis' of unrepresented litigants

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About three in five litigants appearing in Indiana’s civil trial courts are doing it themselves, according to data compiled from statewide case filings this summer.

“That was an alarming statistic to me,” Chief Justice Brent Dickson said of a “snapshot” of civil cases that found 62 percent of litigants were pro se, even when excluding small-claims actions and post-conviction relief petitions.

“We have a crisis in pro se litigation,” he said after relating the findings this month to a gathering of the Indianapolis Bar Association.

Dickson said the Supreme Court asked for an analysis of all civil filings in courts using the Odyssey case management system, which represents about 40 percent of cases statewide. For years, judges have worried about their observations of an increase in the number of pro se litigants, and Dickson said the court wanted baseline data that never had been compiled on such a scale.

pro-se-facts.jpg“If it’s good for 40 percent of the state, it’s probably good for 100 percent of the state,” he said. “We’ve got some reasonably reliable data. … Instead of gut feelings, we can say this is a real problem.”

Indiana Tax Court Judge Martha Blood Wentworth chairs the Indiana Pro Bono Commission and said judges for years have looked for ways to address what she called “an explosion of pro se litigation in our courtrooms all over the state.”

Judges, Wentworth said, “are trying to get attorneys to represent some of these pro se litigants, and how can judges make that process easier? Some of it is just (judges and lawyers) coming up with ideas.”

Marion Superior Civil Division 1 Judge David Shaheed chairs the Heartland Pro Bono Council that serves Indianapolis. Seeing a huge need for attorneys to represent people in domestic relation cases, he and plan administrator Dana Luetzelschwab are pushing an initiative that will begin in January.

Attorneys who agree to provide pro bono representation for people seeking counsel through Heartland’s website, heartlandprobono.org, will earn credit entitling them to three to six hours of free CLE.

“It’s primarily to attract new lawyers to take pro bono cases,” Shaheed said. The so-called “pro bono clerkship in family law” program will be available to attorneys in any Marion Superior court handling domestic relation cases. There’s a waiting list for legal help, Shaheed said, and “almost on a daily basis people are applying for legal assistance.”

Marion Superior courts also put on weekly workshops staffed by law students and supervised by a practicing family law attorney in which people who are representing themselves get help completing paperwork for divorce or modification cases, for instance.

Efforts like these help address some of the problems in administering cases involving unrepresented litigants. “The court has to do the judicial work but in the process make sure the unrepresented person has some idea what’s going on,” Shaheed said.

Dickson also shared the data at a recent Fort Wayne judicial conference, where Indiana Court of Appeals Judge John Baker said the findings came as little surprise.

While the numbers identify the prevalence of pro se cases, the challenges these cases present for judges and lawyers is more difficult to quantify.

It takes clerks, court staff and judges longer to manage cases where people are representing themselves because the litigants are unfamiliar with procedure, and judges also sometimes struggle to understand or frame litigants’ arguments, all of which slows the docket, Baker said.

“When you don’t have the aid of a professional to fetter out your relevant information, it takes our trial judges longer to resolve disputes that would otherwise probably be, in most cases, settled by the lawyers,” he said.

The appellate docket isn’t as flush with pro se appeals as trial courts, but Baker said it’s unmistakable that the number of pro se appeals is rising. Once a small-claims court judge, Baker said he knows the difficulty judges run into when litigants argue their own cases. There’s a difference in small claims, though, because that system anticipates pro se litigants.

In other civil trial courts, judges must be cognizant of accommodating pro se litigants but not crossing a line that could be viewed as advocacy, he said.

State courts have long recognized there always will be people who will represent themselves either by choice or because they lack the means to hire a lawyer. An online, self-service legal center – http://www.in.gov/judiciary/selfservice/ – provides do-it-yourself legal guidance while also warning it’s not advisable for someone to represent themselves in court.

Dickson observed, “Maybe we in the legal community ourselves have been enablers … in part by dignifying and encouraging this harmful trend. … ‘Self-represented’ is an oxymoron. They’re going it alone. They’re unrepresented.

“Maybe what we need to do is stop subtly encouraging people to go it alone,” he said.

Dickson and Wentworth said it will take efforts of state and local bar groups, judges and other advocates to ensure litigants who need representation get it. Wentworth said there’s no shortage of ideas, and judges want them from all quarters.

Baker likened possible changes in the legal landscape to those seen in medicine. For instance, drugstores now offer mini-clinics, and nurses in certain cases now are authorized to write prescriptions. So why shouldn’t paralegals or legal specialists who aren’t attorneys be allowed to handle some of the routine work?

“Everything doesn’t have to be treated as if it’s open-heart surgery. In some instances, we just need a medic,” he said. “I think our profession needs to think about being more adroit at changing the way we do business,” Baker said.•

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  • A theme has emerged
    Money drives the profession. It did not drive me, so I was too odd to license. And those who do not want to have their money unjustly taken by the greedy toll guards on the highway to court, well they are choking up the docket. I guess all that glitters might be gold, but when gold and not God leads the search for justice well then the middle just does not hold.
  • reality
    Whoever thought of posting the expungement and domestic relations forms online, didn't do trial court judges any favors. Next, will it be estate administration and products liability fill-in the blank forms online for pro se litigants? How about "Partial" Pro Bono cases at say $25 to $35 per hour to the client, instead of nothing? No, that would be way too much common sense.
  • Money
    Baker is right. He hit the NAIL on the head when he "Glossed" over the real reason myself and others decide to go Pro-Se. Money. All the Lawyers in Indianapolis want an exuberant amount as retainer fee.The case can be completely Linear and they will make a Mountain out of Mole Hill to justify there fee's. I applaud the Conversation being directed by Judge Baker, to wit PARA LEGALS should be allowed to prepare and give guidance to where and how to file matters.Understanding where to put the key in the ignition is the first step in getting the Car Moving.
  • Idea
    I had an idea. I founded a Christian ministry in Fort Wayne that had announced plans to represent litigatant pro bonon in justice issues. I had a deep background in consumer law, licened in KS since 1996, had just been cleared character and fitness by the National Board of Law Examiners. But political correctness in Indy led them to reject me, after asking me, on the record, if I would put God's law above man's law. Perhpas Indy should back away from p.c. and misuse of the D.C. and this problem might lessen? Details 3w @ archangelinstitute @ Michael tab.

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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