American Judicature Society
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
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 itor lack thereofare critical in that it directly affects the
publics 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 courts organizational interest in
efficiency. Rather, providing such needed and often-requested information to
the public will not only improve the efficiency of a judges pro se
caseload, but will also enhance the time to disposition of the remainder of
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.
URTS 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.
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
4. COURTS, IN CONJUNCTION
WITH THE BAR, SHOULD ESTABLISH POLICIES TO GUIDE COURT STAFF IN ASSISTING
staffs are prohibitedby 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
COURT SYSTEMS AND LOCAL COURTS SHOULD TRAIN COURT STAFF ON HOW TO ASSIST SELF-REPRESENTED LITIGANTS
only do most courts lack specific guidelines to guide court staff in assisting
self-represented litigantsaside from the admonition do not give legal
advicethey 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
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.
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-representationas well as to the efficient
management of the courts caseloadthat self-represented litigants
understand the process of making a claim or a defense, and that they receive
the opportunity for a meaningful hearing.
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.
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
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 litigants 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
STATE SHOULD ESTABLISH JUDICIAL PROTOCOLS TO GUIDE JUDGES ASSISTING
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.
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.
LEGAL PROFESSION SHOULD ASSIST THE COURT IN DEVELOPING PRO SE ASSISTANCE
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.
development of pro se assistance programs will benefit the litigants by
providing them with needed information, and will likewise enhance efficient
processing of the courts 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
GOVERNING THE UNAUTHORIZED PRACTICE OF LAW SHOULD TAKE INTO CONSIDERATION THE
NECESSARY ASSISTANCE PROVIDED BY COURT STAFF TO SELF-REPRESENTED LITIGANTS
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
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.
THE LEGISLATURE AND LOCAL GOVERNMENTS:
13. COURT STAFF SHOULD BE PROTECTED
IMMUNITY FOR ACTS TAKEN TO ASSIST
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.
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
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.
THE CHALLENGE OF PRO SE LITIGATION: A Report and Guide Book for Judges and Court Managers
Goldschmidt, Barry Mahoney, Harvey Solomon, Joan Green