ILNews

Dickson: Trial courts face 'crisis' of unrepresented litigants

Back to TopCommentsE-mailPrintBookmark and Share

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.•

ADVERTISEMENT

  • 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.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

ADVERTISEMENT