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Recommendations from Boston Bar Association Task Force on
Unrepresented Litigants

1.      The Availability of Lawyers Must be Increased

This investigation suggests that pro se litigants are at a disadvantage, except in those proceedings where the process is designed for unrepresented parties.  The advantage of representation by a trained, experienced, independent lawyer cannot be offset except in rare circumstances.  Accordingly, the first and most important Recommendations of the Task force are to: 

  1. Increase funding for legal services programs for those who cannot afford to hire a lawyer;
  2. Increase the pro bono services available from members of the bar and channel the resources into:
    • Full representation of indigent clients;
    • Lawyer for a Day Programs;
    • Private attorney service as case screeners and mediators; and
    • Support for the training and educational activities set out below;
  3. Recruit, train, and make available panels of lawyers willing to undertake representation on a reduced fee, sliding scale basis depending on the ability of the client to pay, as well as at no fee;
  4. Make accurate, up-to-date information about available lawyer referral resources readily available to courts and administrative agencies, including specialized panels in areas such as family law or bankruptcy, which must be identified or developed;
  5. Support and encourage the unbundling of legal services such that litigants can pay for and receive advice or discrete service for the separate phases of litigation.

2.      Courthouse Must be More Accessible and User-Friendly

At present virtually all courthouses in Massachusetts are unfamiliar, even hostile environments to the general public.  Our courthouses must be designed and operated to welcome, educate, and provide justice to the public. 

  1. Information Booth:  There should be an information booth inside the entrance to each courthouse to answer questions and give direction to the public. 
  2. Signs and Schedules:  Signs and schedules should be clearly posted so that an unsophisticated, first-time visitor can know where to go, at what time, and find his or her way.
  3. Courthouse Schedules:  Courthouse schedules must be designed to accommodate not just lawyers, but also the general public.
    • For many types of cases, hearings should be scheduled at specific times staggered throughout the day so that all parties and their lawyers are reached with a minimum of waiting time.
    • Categories of cases, where the volume can be very heavy and in which unrepresented parties predominate, should not all be scheduled for hearing at the same time such that a fair, orderly and efficient disposition of the cases becomes extremely difficult.
    • Consideration should be given to separate and less formal sessions-in which the judge can explain the process and take an active role in making it more user-friendly-where pro se litigants can be more easily accommodated.

3.      Educational and Explanatory Materials Should be Produced and Effectively Distributed

Availability of educational materials for unrepresented parties is haphazard in most cases.  Even in subject areas where good materials have been prepared, the materials are not printed or made available in any systematic way.  Some types of cases are so technical that education and training may not allow an unrepresented party to advocate effectively for him or herself.  However, the following channels of communication must be used to their fullest effect: 

  1. Website:  Use of the World Wide Web to distribute directions and descriptions of courts and substantive or procedural information is a unique opportunity.  The website should be reviewed and approved by the courts to ensure accuracy, updating and acceptance.  The present website maintained by the Trial Court should be expanded and monitors for access should be made available at courthouses. (This report cites, www.neighborhoodlaw.org a website designed and maintained by Neighborhood Legal Services of Lynn as a good example of what can and should be done.)
  2. Brochures:  A full inventory of all existing materials should be undertaken.  More brochures need to be drafted. These brochures should explain the nature of the judicial process, the applicable rules and procedures and the standards of conduct expected of all parties, whether or not represented by counsel.  The brochures should be prominently displayed not only at each courthouse, but also at libraries, schools, churches, community centers, and other locations in communities.  The bar should take a leading role in writing the brochures, but there must be input from the courts.  The Office of the Chief Justice for Administration should take an active role in this venture.
  3. Videos:  One video can inexpensively and efficiently educate large numbers of viewers about basic procedure and substance.  People are accustomed to learning information through this medium.  The videos should be prepared and approved by each department of the Trial Court, to be shown at courthouses and made available for purchase, rental, or borrowing from libraries, courthouses, schools, and lawyers’ offices.  Such videos already in existence should be gathered and catalogued.
  4. Telephone Hotline:  At present, the telephone is the most accessible, user-friendly medium for the communication of information about logistics, procedures, or substantive rights critical for unrepresented litigants.  A staffed telephone hotline easily accessed by virtually the entire population from home or nearby, must be used to its fullest potential.

4.      Court Staff Must be Trained and Assigned to Deal Effectively and Directly with the Public

The Task Force found that court staff at all levels in all courts believe that unrepresented litigants present particular challenges and call for special attention.  With a few notable exceptions, the response from court staff ahs developed court-by-court, person-by-person, with little training or planning.  The time has come to plan and implement a careful strategy to make the court staff a more effective resource for the general public.  Keeping in mind the enormous demands already made on the staff to keep the courts moving, we recommend:           

1.       Assignment of Responsibility for Unrepresented Litigants.:  Each clerk’s office should designate at least one staff member to be the primary resource for unrepresented parties.  The designated staff member should be assigned primarily to the counter rather than to the courtroom functions.

2.       Training and Guidance:  All court staff should be trained to respond with a special sensitivity to unrepresented members of the public.  Court staff must be assured that they can assist unrepresented parties, and instructed where to draw the line.  Materials, such as ethical opinions should be circulated to assist court staff and training should be provided on compliance with the court rules and procedure. 

5.      Alternative Dispute Resolution Should be Expanded for Unrepresented Parties

Alternative dispute resolution techniques can be very effective and efficient for unrepresented parties in many circumstances.  The rules of evidence and procedure tend to predominate in a formal court setting, presenting serious hurdles to unrepresented parties.  There are notable exceptions where there is a severe imbalance in power or a history of violence between the parties (specifically domestic violence) makes the case improper for mediation.  We propose the following: 

  1. Community Dispute Resolution:  Alternative forms of dispute resolution should be made available in the community before either party get to court.  Mediations or conciliations can be held at community centers during evening or weekend hours without interfering for extended periods with the everyday lives of unrepresented parties. 
  2. Preliminary Diversion:  For matters that do reach the courts, mediation or conciliation should be the first step for most types of disputes where such efforts have not already been made.
  3. Training:  Mediators or others who preside at alternative dispute resolution hearings must be trained to decline to handle those cases which are not appropriate for mediation (e.g. domestic violence), and to elicit a full story from each side.
  4. Private Bar Participation:  A program should be developed whereby members of the private bar serve as on-site screeners/mediators for cases in which both parties are unrepresented.  The purpose of this intervention would be to resolve the dispute early, if possible to provide guidance to the parties on the future conduct of litigation.

All litigants must be reminded that mediation is voluntary.  Court programs should consider the use of checklists or other forms of the fathering of information by the neutral in dispute intervention in order to aid the neutral in discussing with unrepresented parties relevant factual circumstances and issues which might go unaddressed with such tools.

6.      Judges Should Not Allow Lack of Representation to Result in Miscarriage of Justice

Where one or more parties to a matter is unrepresented, a judge has a heighten responsibility to ensure that the proceedings are fair. 

  1. Guidelines:  Judges should be provided with and encouraged to use a model statement to pro se litigants.  The purpose is to inform unrepresented parties of the risks of proceeding without counsel, and to inform them of the ground rules.
  2. Explain Rules and Provide Opportunity to Comply:  Where appropriate, judges should explain procedural or evidentiary problems in simple terms, and consider the granting of a recess or continuance to allow the unrepresented party to obtain counsel or find a way to overcome the problem.
  3. Review of Settlement Agreements:  Where unrepresented parties are involved in a case, a judge should review with care any settlement, such as a settlement of contempt or abuse complaint, which could result in imprisonment.  If a party (particularly an unrepresented party) appears to have a language barrier, the judge should have the agreement translated or explained in the party’s primary language.  The court should require the interpreter to certify that the agreement has been translated.
  4. Support:  Judges should be offered support and training in dealing with unrepresented litigants, including materials addressing the particular needs of unrepresented parties, opportunities to discuss and consider in a formal way the particular challenges of unrepresented parties, and assistance in recognizing parties who may be in need of services, and therefore may be at a disadvantage.
  5. Case Management Conferences:  Case management conferences should be mandatory at the outset of certain types of cases.  

7.      The District Court and Boston Municipal Court Should Have Expanded Equity Jurisdiction

Our “community courts,” which deal often with cases involving domestic abuse, landlord/tenant, and neighbor disputes, see large numbers of unrepresented parties.  Existing equity jurisdiction for abuse prevention, housing matters, or small claims should be expanded.  These courts should be given equitable jurisdiction so they can resolve their matters in practical, efficient ways. 

8.      Some Changes Required to Adjust to Unrepresented Parties are Fundamental and Widespread, Requiring Comprehensive Systemic Changes

  1. Standardized and Simplified Forms:  Each court should review the standard forms available for common categories of cases with a goal of making standard forms available to the general public for as many matters as possible. 
  2. Unrepresented Litigants with Linguistic, Cultural, or Physical Barriers:  Each court must recognize and accommodate the growing population of non-English speaking people (and specifically, litigants).  Disabled person is also increasing asserting their right to use the courts on an equal basis with others.  Signs, forms, and directions should be made available in a variety of common languages.  Interpreters and bi-lingual personnel must be recruited.  Printed materials must be made available in an alternative format for those with visual disabilities who want to advocate for their rights.
  3. Make Procedures Simple, Self-Executing:  Court procedures should be as simple, straightforward, and self-executing as possible.  If there are technical requirements, not easily understood by non-lawyers, they should be streamlined and explained as much as possible.

9.    Implementation

The Task Force recommends that the Supreme Judicial Court establish a standing committee to address issues relating to unrepresented litigants.  The Task Force would include representatives for each of the departments of the Trial court, a representative for the office of the Chief Justice for Administration and Management, and representatives of the bar.

Reproduced from:

BOSTON BAR ASSOCIATION TASK FORCE ON UNREPRESENTED LITIGANTS
Report on Pro Se Litigation August, 1999

By: Mary K. Ryan. President, Boston Bar Association; Edward Notis-McConarty, Chair Task Force

The “Task Force” was established following a 1996 recommendation by the Massachusetts Commission on Equal Justice to study the issues surrounding pro se litigation in a quest to respond to the dramatic increase in parties appearing without lawyers in its courts. This recommendation is to be adopted into the Strategic Plan 2001 to reaffirm that part of its core mission to enhance the profession of law by promoting equal access to justice. Data was collected via surveys from Probate and Family Court, District and Boston Municipal Courts, and various law, cultural and difference community projects. The initial task force findings included the confirmation of an increased number of litigants without lawyers; the new challenges that these parties added to a system not adequately equipped to handle; court personnel confusion in handling non lawyer requests; financial constraints which causes many parties to proceed pro se, the need to assist, organize and combine approaches that might better assist pro se litigants and the changes requires to accommodate unrepresented litigants if there is an ongoing commitment with clear responsibilities assigned to the institution. 

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