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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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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