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Supreme Court appoints team to look at pro se litigant problems

June 3, 2015

Less than two years after appointing a commission to expand civil legal services for the indigent, the Indiana Supreme Court has assembled another group to examine the nagging problems caused by pro se litigants.

The new 10-member Assessment Team has been charged with taking a look at the three entities that currently address the unrepresented litigant issue – the Indiana Pro Bono Commission, the Indiana Committee on Unrepresented Litigants, and the Indiana Commission to Increase Access to Civil Legal Services, which was created in 2013.

Justice Brent Dickson, who will serve as liaison between the court and the Assessment Team, said the new group is being asked to suggest ways to reduce the number of people going into court without an attorney. The goal is for the team to submit a report by early September.

dickson-brent.jpg Dickson

“We have these three groups that deal with (the problem caused by unrepresented litigants) in different aspects,” Dickson said. “We’re asking this group … to take a fresh look and say is there a better way to do this? Are we doing it right, or can we do it better?”

Indiana Tax Court Judge Martha Wentworth, outgoing chair of the Pro Bono Commission who oversaw the development and implementation of Indiana’s new pro bono reporting rule, was supportive of the decision to conduct an evaluation.

wentworth-martha-2014mug Wentworth

She noted the Supreme Court’s philosophy has changed from a focus on providing resources for self-representation to making sure attorneys are available for parties. The Assessment Team will try to align that new philosophy with the current system of delivering legal services to the low-income litigants.

Taking a “global look” at the entire system, Wentworth said, will be good to do.

Trial court judges around the state have been telling the justices for years about their struggles with unrepresented litigants in their courtrooms, Dickson said. The judges are conflicted over whether to give any help or guidance to the pro se litigants.

Unrepresented parties do not know how the judicial system works and they do not know the procedures to follow, Dickson said. More concerning, he added, is the disservice the pro se litigants are doing.

They are hurting themselves because, time and time again, those who represent themselves in court usually do not fare as well as they would have with an attorney. In addition, these individuals are hindering the judges’ ability to make decisions because whatever the issue, whether a marriage dissolution, custody dispute or landlord-tenant issue, the judges are not getting the documents and evidence they need.

Stopping for a review

While the problem may be easy to see, the solution has been harder to find.

Chuck Dunlap, executive director of the Indiana Bar Foundation and member of the Assessment Team, said pro se litigation is the number one issue for trial judges in Indiana and has become a crisis in some courts.

Chuck Dunlap Dunlap

“From my position, there is no silver bullet,” Dunlap said. “It’s a combination of things you can hopefully bring to the bar to address the problem.”

Although doing pro bono work is part of the oath every attorney takes, the bar should not be the only sector of the legal community asked to solve this problem, he said. The organizations and entities addressing this issue should maximize their resources through coordination and collaboration before asking for more resources.

team-factbox.jpgIn establishing the Assessment Team, confusion has arisen among some members of the Indiana Commission to Expand Access to Civil Legal Services. This commission developed a five-year plan in 2014 designed to make the system of delivering legal services more accessible to the indigent and more efficient for attorneys.

Dickson said the commission expanded its mission beyond what was intended. The court wanted that group to find ways to improve the interactions between the providers of legal representation so people could go to one place and get directed to the proper resource without having to knock on multiple doors or make a bunch of phone calls.

“We were getting some reports of some tension between these organizations as to who’s telling who what to do or who’s in command,” Dickson said. “Whether it is a personality thing, we don’t know. These are all good people trying to do the right thing, but we thought maybe it’s time to get some outside eyes to take a look at this, tell us what maybe we haven’t seen before.”

The Assessment Team is being given a clean slate and is asked to consider what structural changes should be made to provide the funding and availability of attorneys for low-income clients.

Specifically, the team is being tasked with looking at the three entities and determining whether they need to be restructured, consolidated or eliminated. Dickson speculated another solution might be tapping young lawyers fresh from law school to provide more pro bono services. There may also be a way for legal service providers to represent both sides in a case.

Even the Supreme Court’s decision to post court forms online for pro se litigants might have to be rethought. Speaking for himself, Dickson said he would like for the court to back away from that.

“I don’t want to be an enabler for people to hurt themselves,” he said.

Pro se headaches

In her 27 years as a family law attorney, Kimberly Dowling did not realize the depth of the pro se litigant problem until she became a judge in the Delaware Circuit Court. During her first morning handling a string of hearings with unrepresented parties, she saw just how bad the situation can be.

Dowling Dowling

Dowling is the new chair of the Committee on Unrepresented Litigants and will serve on the Assessment Team.

The pro se litigants interrupted each other and talked over themselves. Some would raise their hands to speak as if in school. Cross examinations, Dowling said, were the worst. The parties would argue with the witnesses instead of asking questions.

As a remedy, she started using an instruction sheet based on one given to her by a judge in Ohio to explain to the pro se litigants the expectations and proper behavior in court. This, she said, has made a difference.

Still unrepresented individuals are continuing to stumble.

Many times, Dowling said, pro se litigants come into her courtroom nervous and unsure what is going to happen. Moreover, the pleadings do not always accurately reflect the issue, and she has wrestled with the concern that she might be seen as an advocate for one party over another if she asks a question from the bench.

A way has to be found to provide representation to all these litigants, she said.•

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