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12 Family Law Section, State Bar of Texas and the Texas Family Law Foundation IDEAS FOR PRO SE LITIGANTS Pro se litigants have a right to represent themselves. But, some complain that pro se litigants cause the system to be inefficient, posing serious problems for judges, clerks, librarians, other parties and lawyers. Some with these views propose changing the system by providing services to litigants who represent themselves, equating these changes with increasing “access” to justice. But, litigation involves at least two parties. Viewed accurately, pro se litigants impose burdens on the other participants in the system whose roles have been historically designed to achieve justice, impartiality and relative efficiency, largely based on the involvement of lawyers who know the procedures and substantive laws that govern litigation. The problems associated with pro se litigants are, in effect, excess costs imposed on our judicial system by people who represent themselves, as compared to those who are represented by attorneys. Ironically, the Access to Justice Commission (ATJ) documented these excess costs as justification of its seven-point pro se litigant assistance program: delays for pro se litigants and the parties who oppose them, inefficient use of judicial resources, added pressures on clerks and librarians, etc. At a minimum, ATJ’s documentation establishes a sound basis for distinguishing between pro se litigants and represented parties. Litigants who represent themselves avoid personal costs by not using an attorney. Those personal costs are, in effect, transferred to the judicial system. This is understandable and acceptable when a person cannot afford an attorney. Those who can afford an attorney should not be allowed to impose excess costs on everyone else in the system without consequence. They have the right to represent themselves, but also a corresponding responsibility to the system overall. In addition to the ideas developed by the State Bar’s Solutions 2012 task force, the following should be considered as a response to the excess cost problems associated with pro se litigants. Proposals for Consideration No single prescription will resolve these problems. Rather than upend the system of justice to eliminate or reduce the costs imposed on it by pro se litigants, solutions to these problems should be considered in three categories: 1. Some solutions should be applicable to all pro se litigants. 2. The system should insure that the excess costs imposed on the system by those who can afford an attorney but choose not to use one are borne by those individuals. 3. For those who cannot afford a lawyer, the proper solution to eliminating or reducing these excess costs is to provide them with legal services.
Rev. 4.9.12 The potential solutions proposed below are intended to make sure that pro se litigants are fully informed, are provided representation where needed, have “skin in the game” and are aware of the risks and rules. Solutions for those who can afford a lawyer will focus on accountability, while a system to provide legal services to those who cannot afford a lawyer will be more robust. Potential solutions applicable to all pro se litigants: 1. Require a potential pro se litigant to take a course (30-60 minutes) on the litigation process and show compliance by providing a certification of completion with the petition or first responsive pleading. Litigants would pay a nominal fee for the course to support its cost. The course should fully inform the person of rights that may be lost if they proceed without obtaining legal advice, how to access legal services (see below), the complexity of the process and the fact that they will be held to the same procedures and substantive law as represented litigants. The object is not to place barriers in front of people representing themselves but to provide clear warnings to protect consumers from real risks and reduce some inefficiency through education. 2. All cases of pro se litigants need a diagnostic tool to assess the person’s case so that the real risks of pursuing litigation pro se—under the individual circumstances of the case—are determined in advance. Some litigants may not proceed without legal counsel if they understand, in advance of proceeding, the degree of difficulty and what may be lost as applied to their individual cases. 3. In lieu of forms developed and distributed by the Supreme Court, a simple amendment to the Texas Rule of Civil Procedure #7 would authorize a pro se litigant to use a form approved by the State Bar of Texas (or one of its sections) or that is provided by Legal Aid. Provided, the amendment should specify that a court is not required to accept a document that, under the circumstances of the case, is not legally sufficient or would cause a result that is not enforceable. These forms would not create the problems associated with having the Supreme Court’s imprimatur, are widely available and in use and are legally accurate (when used properly). The Family Law Section’s form manual offers sufficient complexity and instruction to handle virtually any individual’s case, while Legal Aid’s forms are simpler, which means that having access to both sources could provide a solution for almost any case. Either in addition to, or in replacement of, the suggestion above, courts should be prohibited from refusing to accept a petition, answer, decree or other document simply because the document is a form or because the person is not represented by counsel. This would be similar to what was done with the protective order forms. (Of course, the rules would continue to ensure that no court is required to accept a document that is not legally sufficient or enforceable under the circumstances of the case.) Potential solutions for low-income clients:
Rev. 4.9.12 1. Many people believe there are more lawyers willing to take cases on a pro bono, reducedprice or limited-service basis than are being used today. But, there may be a problem with matching low-income clients with those lawyers. The State Bar of Texas could set up an 800 number/clearinghouse/switchboard to receive calls from those who need lawyers. Working with the courts, clerks, librarians and others, the SBOT would ensure that the 800 number is widely distributed and advertised. The goal would be to make sure every low-income person who needs a lawyer can readily access this system. When a call is received, it would be screened to determine what type of case it is and then referred to the appropriate section of the Bar. This screening could be done by people with a variety of professional credentials. Each section would set up a procedure to distribute cases to its section’s members to be handled on a pro bono, reduced-price or limited-scope basis, depending on the client’s ability to pay and need. This would be substantially cheaper than what ATJ is doing now and would differ in that it would actually give the indigent access to justice in the form of lawyers. The structure for this system already exists through the SBOT and its sections to implement the system relatively quickly and easily. This system would not require 'mandatory pro bono' but would provide a broad base of providers within the SBOT sections. The sections, through the Council of Chairs, or through Bar staff, could even out the distribution of cases among themselves as needed. Whether many clients are indigent could be determined in the process derived from that used by legal aid/DVAP/VLS type organizations now, using criteria they've developed. In fact, a substantial amount of Legal Aid funding is consumed today on their eligibility systems. One Texas Legal Aid unit spends in excess of 25% of its funding on establishing eligibility, but operates its phone-intake system only 20 hours per week. Even though thousands of people who go through that screening are determined to be financially eligible, they are not provided legal services because they do not have priority cases or the unit does not have the resources to serve them. Through no fault of the Legal Aid organizations, the dollars expended determining these people’s eligibility are essentially wasted. If Legal Aid had a place to refer the financially eligible clients it cannot serve, many of them would receive legal services that they do not receive today and the effect would be to put to good use the funding that is otherwise wasted in the eligibility process. For some people, the cost of implementing an eligibility system could be avoided by simply allowing a litigant to use an affidavit of indigence (that is subject to challenge and charges for perjury or falsifying a government document). There might be some slippage in that some non-indigent people may get services anyway, but the lawyers representing these people would probably realize pretty quickly that they were not low-income people. 2. Consider a waiver of the malpractice insurance requirement on SBOT and other large referral services, increasing the chance that indigent clients and young, some still struggling, lawyers could match up. 3
3. Consider mandatory pro bono requirements for those seeking and maintaining board certification. The Texas Board of Legal Specialization would need to partner on this. 4. Consider whether attorneys who receive substantial compensation from judicial appointments in civil cases during a given period of time should be required to perform some number of cases pro bono. This could be done on a sliding scale so that the requirement applies above a certain threshold of compensation and the greater the compensation and/or number of appointments, the more pro bono service is required. Receiving judicial appointments for which an attorney is substantially compensated amounts to receiving a public benefit and it is not unreasonable to require performing a public service in return. Consider exempting some appointed attorneys because the pay they receive from appointments is only nominal or allowing a monetary payment from lawyers with multiple lucrative appointments to a fund to supply legal services for low-income people. Potential solutions for those who can afford a lawyer: 1. Require the person to file an affidavit that shows they are not eligible for legal aid or the Bar’s pro bono/reduced-price services above or submit evidence that they have tried and been turned down for such services. This will identify the litigant as a person who can afford an attorney but chooses not to use one. 2. The Supreme Court should take action to emphasize that courts should make pro se litigants follow all rules and procedures that those who are represented must comply with, including making those litigants who tender legally insufficient or unenforceable documents return to court until correct documents are presented or dismissing such litigants cases where the inability to comply with standard court procedures amounts to an abuse of the judicial system. 3. Judges, clerks, librarians and lawyers report that many pro se litigants who could afford a lawyer are, or border on being, “vexatious litigants” in terms of the unnecessary delays, confusion and demands they impose on others they must interact with to pursue their own cases. Whether these litigants satisfy the formal standards of Rule 13, Texas Rules of Civil Procedure, or Chapters 10 or 11, Civil Practice and Remedies Code, the result is often the same or similar: increased costs imposed on other parties and court-related officials. Many are concerned that Supreme Court-approved forms will simply encourage these litigants. For those who can afford a lawyer and choose not to use one, authorize a system of consequences such that the public recovers the increased costs imposed on it by these litigants’ excessive mistakes, wasting of the courts’ time and the time of other parties, improper conduct, failure to comply with the same rules and procedures as those represented by lawyers, etc. Procedures should be developed to provide sufficient warnings to such litigants and methods to cure the problems without incurring a consequence. Consequences could range from dismissal (with loss of filing fees and costs of service) for tendering documents that are so fundamentally defective as to call into question the person’s good faith in attempting the effort down to additional fees imposed for specific deviations 4
Rev. 4.9.12 from proper rules and procedures. Additional fees imposed as consequences should be dedicated to providing legal services to low-income people. 4. A person who can afford an attorney but chooses to represent him or herself should be required to pay an increased filing fee as a partial method of recovering the excess costs that pro se litigants impose on the system. These additional fees should be used to pay for legal services to low-income people. This may require legislative approval, which the Bar and Court could request together. Some additional ways to pay for legal services for low-income people: 1. State Bar dues have not been increased in over 20 years. Bar dues could be bumped up a modest amount to generate funds for direct legal services or the 800 system described above. Or, Bar dues could be increased for those members who choose not to perform a certain number of pro bono cases each year. 2. Request the Legislature to increase filing fees for newly-created entities that have limited liability (corporations, LLPs, LLCs, PCs, PAs, non-profit corporations), and such foreign entities filing for a new Certificate of Authority. Dedicate the increased revenue to the judicial system to be used for civil legal services provided to low-income individuals. These are new entities, so no existing entity could complain of a “tax” increase. Nor could a nominal increase be said to discourage new business formation. These entities and their owners and managers enjoy limited exposure to the judicial system. Many pay only a very limited franchise (or margins) tax for that privilege. Most new entities will pay nothing for the privilege at all, especially if they are new entities with no prior financial activity on which to base the tax. An increase in these filing fees is justified by making these new entities pay a modest amount for the privilege. 3. Increase the civil court filing fees for businesses suing other businesses and dedicate the increased money to legal services for low-income individuals. Conclusion It is fundamental that the rights enjoyed by citizens are coupled with responsibilities. ATJ’s proposals do nothing to ensure that pro se litigants are held to that standard. The proposals above are balanced between providing legal services to those who cannot afford a lawyer, ensuring that litigants understand the risks and complexity of handling their own cases, and holding those who can afford a lawyer accountable for the excess costs they impose on others while doing so. Because what low-income people really need is access to a lawyer, the proposals include a number of ways to fund an additional supply of legal services, in addition to a methods to increase the supply of pro bono, reduced-price or limited-scope legal services.
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