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 Recommendations from the
American Judicature Society

 While there is much we do not know about pro se litigation, this study provides a deeper understanding of the issues as they relate to the various stakeholders in the litigation process. The policy choices to be made affect real people with problems they consider serious. They are people who have come to the justice system with the expectation, not necessarily that they will prevail, but that they will be treated fairly. It is critical, therefore, for the legitimacy of the court as an institution that unrepresented members of the public perceive that justice was, in fact, done from their first contact with court staff until their case disposition. 

The following policy recommendations are arranged by their relevancy to particular stakeholders in the justice system. This format will enable each segment of the courts community and others to focus on those matters that most affect them, but the issues presented and the policies designed to address them must ultimately be approached through a collaborative effort. 

1.    COURTS SHOULD PROVIDE SELF-REPRESENTED LITIGANTS WITH INFORMATION AND SERVICES TO ENABLE THEM TO USE THE COURT 

The justice system must take steps to address the growth of pro se litigation and its effect upon the litigants themselves as well as the court and court staff. This phenomenon and the courts’ response to it—or lack thereof—are critical in that it directly affects the public’s trust and confidence in the courts. Simply put, we can no longer tolerate a justice system that consists of procedures, forms, and practices that are known to only a select few in our society. 

Constitutional principles protecting the rights of due process, access to courts, open courts, and self-representation require that all litigants be provided a meaningful opportunity to be heard. At the same time, sound court management practice is necessary to maximize both efficient case flow and the fairness of all court proceedings. Providing self-represented litigants with information regarding appropriate court procedures is not inconsistent with the court’s organizational interest in efficiency. Rather, providing such needed and often-requested information to the public will not only improve the efficiency of a judge’s pro se caseload, but will also enhance the time to disposition of the remainder of the docket. 

Courts should, therefore, render assistance in a variety of forms to persons who represent themselves and seek judicial relief on their claims or defenses. These include instructional programs, referrals to lawyer and dispute resolution professionals and services outside the courtroom, reasonable judicial assistance policies and protocols inside the courtroom, and appropriate statutes and rules to enable courts to adapt to the growth of self-representation. 

The programs described in this guidebook illustrate the creative approaches some courts have taken to fulfill their duty to provide each litigant with a meaningful opportunity to be heard. 

2.  COURTS SHOULD STUDY THE COMPOSITION AND GREATEST NEEDS OF THE SELF-REPRESENTED LITIGANTS THEY SERVE, AND DESIGN SERVICES TO EFFECTIVELY MEET THOSE NEEDS 

A wide range of pro se assistance programs and services already exists in many states, some examples of which have been described. A reading of these program descriptions shows that most of them target different populations of self-represented litigants and types of cases. 

In determining what form of assistance program is most appropriate, it should be recognized that the needs of each jurisdiction would be unique. Careful study and consultation among relevant stakeholders and groups should precede any design or implementation of a pro se assistance program. Pilot programs should first be established that target areas of greatest need from the standpoint of the litigants and the court. 

Members of the public, the judiciary, court managers and support staff, the bar, self-represented litigants, and other relevant groups or entities should be included in the process of designing and improving pro se assistance programs. 

3.  DEVELOPMENT OF PROGRAMS TO ASSIST SELF-REPRESENTED LITIGANTS SHOULD BE A COLLABORATIVE EFFORT OF THE BENCH, COURT STAFF, THE BAR, AND THE PUBLIC

 Pro se litigation affects the judiciary, court staff, the bar, and the public. Each stakeholder group has an interest in the efficient flow of litigation and should be heard when a court considers programs or procedural changes affecting the self-represented litigant. 

While it may seem obvious that representatives of the aforementioned groups should participate in the development of programs and policies in this area, it is also true that self-represented litigants’ views regarding their experiences with the justice system can contribute to the design of effective pro se assistance programs. 

Since the nature of cases and the pro se assistance programs implemented for these case types differ in many respects, judges’ and lawyers’ input on the needs of the litigants and the court should be considered in the design and implementation of such programs. 

Court resources in many jurisdictions, however, are inadequate to support the design and implementation of pro se assistance programs. The bar and its members, as officers of the court, have valuable human resources and should collaborate with the court to develop effective pro se assistance programs. Community groups, law schools, volunteers, and others should also participate in the collaborative effort to establish effective assistance programs. 

4.  COURTS, IN CONJUNCTION WITH THE BAR, SHOULD ESTABLISH POLICIES TO GUIDE COURT STAFF IN ASSISTING SELF-REPRESENTED LITIGANTS

 Court staffs are prohibited—by unauthorized practice of law rules and court policies— from practicing law or providing legal advice. These prohibitions have deterred court staff from rendering assistance to the public regarding court forms, procedures, and court practices, to the detriment of self-represented litigants and the general public. Court staff should not work under the fear that whatever assistance they provide may be misinterpreted by the court or the bar as the practice of law or the giving of legal advice. 

Courts, therefore, in conjunction with the bar, should establish guidelines for court staff that specifically delineate the nature and extent of the assistance they are able to provide. The guidelines should include adequate examples of assistance that are either permissible or impermissible. 

5.  STATE COURT SYSTEMS AND LOCAL COURTS SHOULD TRAIN COURT STAFF ON HOW TO ASSIST SELF-REPRESENTED LITIGANTS 

Not only do most courts lack specific guidelines to guide court staff in assisting self-represented litigants—aside from the admonition “do not give legal advice”—they also provide no training on how court staff should assist pro se litigants. Until recently, there has been no need for such training. With the recent growth in pro se litigation, however, there is now a greater need for such training. 

Written guidelines are inadequate to guide court staff on how they should assist pro se litigants. Training programs for court staff, including the use of role-playing and other educational techniques, are necessary to enhance the quality of service court staff are able to provide self-represented litigants.

6.  SIMPLIFIED COURT FORMS SHOULD BE DEVELOPED FOR CASES INVOLVING SELF-REPRESENTED LITIGANTS, AND JUDGES SHOULD HAVE THE AUTHORITY TO RELAX PROCEDURAL AND EVIDENTIARY RULES WHEN NECESSARY TO ENSURE FAIRNESS. 

Self-represented litigants should be expected to be familiar with the relevant legal practices and procedures pertaining to their case. Current rules of procedures and evidence, however, are far too complex to be understood by laypersons. Yet, it is essential to due process and the protection of the rights of accessible and open courts, and of self-representation—as well as to the efficient management of the court’s caseload—that self-represented litigants understand the process of making a claim or a defense, and that they receive the opportunity for a meaningful hearing. 

One way of addressing this dilemma is the development of simplified court forms. These not only will serve to enhance the efficiency of the litigation process, but will also enhance the fairness of legal proceedings. When used by most self-represented litigants, they will also benefit court staff by giving them more time to conduct their normal duties. 

Likewise, judges should relax the rules of procedure and evidence where fairness dictates and no prejudice will result to the represented adversary. This approach will also serve to promote trust and confidence in the court, and avoid the bitter feelings on the part of many self-represented litigants who have in the past been frustrated by the unwitting application of technical rules against them. 

FOR JUDGES: 

7.  JUDGES SHOULD PROVIDE REASONABLE ASSISTANCE TO SELF-REPRESENTED LITIGANTS IN THE COURTROOM 

Judges have a duty to maintain impartiality with respect to the parties in litigation. Judges also have a duty to ensure litigants’ rights to a meaningful opportunity to be heard. One of the major challenges to courts from pro se litigation is to balance these rights and obligations appropriately. 

In the case of self-represented litigants who are unfamiliar with the law, the rules of procedure, and the rules of evidence, out-of-court assistance programs alone may be inadequate to assure their right to a meaningful hearing. Judges should also provide reasonable assistance to self-represented litigants in the courtroom. This includes reasonable assistance in the presentation of a self-represented litigant’s claim or defense. Judges should determine the limits of such assistance in light of their duty to remain impartial and the litigants’ right to represent themselves in a meaningful hearing. 

8.  EACH STATE SHOULD ESTABLISH JUDICIAL PROTOCOLS TO GUIDE JUDGES ASSISTING SELF-REPRESENTED LITIGANTS 

Judges currently use individual strategies for handling pro se litigants, ranging from providing no assistance to providing proactive assistance. There appears to be no uniformity among judges and courts regarding the handling of self-represented litigants. 

Judges are in need of guidance on the most effective and ethically permissible strategies for assisting self-represented litigants. The use of uniform court protocols to guide judges in the management of pro se litigation will serve to make case-processing more efficient and will assure uniformity and fairness in the treatment of self-represented litigants among all the judges of a given court. 

9.  STATE COURT SYSTEMS AND NATIONAL JUDICIAL EDUCATION PROVIDERS SHOULD DEVELOP EDUCATIONAL PROGRAMS FOR JUDGES ON METHODS OF HANDLING SELF-REPRESENTED LITIGANTS 

The issue of appropriate management of self-represented litigants has only recently come to the fore. Until now, judges have not received the benefit of educational programs on this subject. 

The management of self-represented litigants may differ depending on case type, relief sought, and type of litigant. As research into this subject and our understanding of it develops, judges need to be provided the results of that research and the latest techniques regarding the most effective and ethical manner of managing proceedings involving self-represented litigants, including those seeking to obstruct the judicial process. 

Courts, state court administrators, court managers, and judicial educators should develop such judicial education programs on the methods of managing self-represented litigants.

FOR THE BAR: 

10.THE LEGAL PROFESSION SHOULD ASSIST THE COURT IN DEVELOPING PRO SE ASSISTANCE PROGRAMS

Lawyers have recently encountered a growing number of self-represented litigants as their adversaries. They have sometimes complained that some judges have breached their duty of impartiality by assisting these litigants in the courtroom. As officers of the court, lawyers have a duty to assist the court in improving the administration of justice. While expansion of pro bono representation is worthwhile, this should not be the sole means by which the bar is involved in addressing the pro se phenomenon. 

The development of pro se assistance programs will benefit the litigants by providing them with needed information, and will likewise enhance efficient processing of the court’s caseload. Reaching that goal will also be in the interest of members of the bar. Such programs will also serve to provide self-represented litigants with information regarding access to available legal representation. Lawyers have resources and knowledge that will benefit pro se assistance programs. The better pretrial assistance programs are, the less assistance to pro se litigants will be necessary by the trial judge. Lawyers, therefore, can and should assist in the development of pro se assistance programs. 

11.RULES GOVERNING THE UNAUTHORIZED PRACTICE OF LAW SHOULD TAKE INTO CONSIDERATION THE NECESSARY ASSISTANCE PROVIDED BY COURT STAFF TO SELF-REPRESENTED LITIGANTS 

The prohibition of unauthorized practice of law is a laudatory goal based upon protection of the public. Such prohibitions, however, when applied to court staff, discourage court staff from rendering assistance to self-represented litigants that does not constitute the giving of legal advice or the practice of law. The unauthorized practice of taw prohibitions, white necessary, should be modified to take into consideration the necessity for court staff to assist self-represented litigants. They should not preclude legal and procedural information pertinent to their case. The bar should work with judges and court staff to delineate appropriate court staff assistance, and eliminate them from existing provisions defining the unauthorized practice of law. 

12.THE BAR SHOULD ENHANCE THE DELIVERY OF PRO BONO AND UNBUNDLED OR LIMITED LEGAL SERVICES, ESPECIALLY IN FAMILY LAW 

Lawyers should expand pro bono programs by focusing on specific case areas where the greatest need exists for representation of pro se litigants. It should not, however, be a goal to eliminate pro se litigation as such. In many jurisdictions there is a great need for representation in family law, where litigants are frequently unrepresented. Enhancement of pro bono legal services in the family law area will promote greater fairness to, and meaningful hearings for, litigants who would otherwise appear pro se and risk the possibility of a less-than-meaningful hearing.

FOR THE LEGISLATURE AND LOCAL GOVERNMENTS:

13. COURT STAFF SHOULD BE PROTECTED BY QUALIFIED
     IMMUNITY FOR ACTS TAKEN TO ASSIST
     SELF-REPRESENTED LITIGANTS 

Clerks of court perform a variety of functions. These include ministerial functions and quasijudicial functions. Under current law in many states, clerks performing quasijudicial functions involving the exercise of some discretion are generally protected by judicial immunity for such acts. Clerks carrying out a ministerial function, i.e., one prescribed by statute or court rule, are not cloaked with judicial immunity for such acts. 

Acts taken by court staff to assist pro se litigants are neither ministerial (unless prescribed by statute or court rule) or quasijudicial, and, therefore, could subject them to civil liability. Court staff should, therefore, be protected from civil liability for acts taken to assist self-represented litigants. This will obviate their current reluctance to afford such assistance. 

That protection should be in the nature of a statutory immunity for negligent acts taken in connection with assistance provided pro se litigants, but not for acts of gross negligence or recklessness. 

14.COURT FUNDING AT THE STATE AND LOCAL LEVELS SHOULD BE PROVIDED TO ESTABLISH PROGRAMS TO ASSIST SELF-REPRESENTED LITIGANTS 

Adoption of a pro se assistance program like those described in this guidebook will enable courts to more efficiently manage their case toads and ensure litigants will be afforded a meaningful opportunity to be heard. Most importantly, such programs will promote public trust and confidence in the courts.

*****

These recommendations call for extensive participation among alternative stakeholders involved in the pro se litigation process. Judges, court managers, court staff, the bar, and self-represented litigants themselves will need to collaborate in the undertakings proposed here. The rote of a state legislature or local government is just as critical in providing the financial resources for the programs and services needed to assist litigants in their exercise of their constitutional right to self-representation.

Reproduced from: 

MEETING THE CHALLENGE OF PRO SE LITIGATION:  A Report and Guide Book for Judges and Court Managers

By:  Jona Goldschmidt, Barry Mahoney, Harvey Solomon, Joan Green