More litigants acting as their own attorneys

Practice has increased since Great Recession, and everyone is paying the price

By Paris Achen, Columbian courts reporter

Published:

 

Pro se resources

• Clark County Family Court Facilitator: www.clark.wa.gov/courts/clerk/family-court.html

Clark County Courthouse, First Floor, 1200 Franklin St., Vancouver.

Facilitators help litigants identify the proper paperwork for their case, guide them in filling out complicated legal forms and advise them on scheduling. Facilitators may not give legal advice. Thirty-minute consultations cost $20. Facilitators are available on a first-come, first-served basis.

The office’s website offers links to court forms that may be printed out without cost and free checklists. Packets of court forms normally cost $20 to $50, depending on the type of case.

• Clark County Law Library: www.clark.wa.gov/law-library; Clark County Courthouse, First Floor, 1200 Franklin St., Vancouver. The library is open to the public and contains legal reference materials.

• Northwest Justice Project/CLEAR: www.nwjustice.org; 500 W. Eighth St., Suite 275, Vancouver; 1-888-201-1014.

• Clark County Volunteer Lawyers Program: www.ccvlp.org; Legal advice hotline: 360-695-5313.

• Department of Social and Health Services, Division of Child Support: www.dshs.wa.gov/dcs/#; 5411 E. Mill Plain Blvd., Vancouver; 360-696-6100.

• Clark County Prosecutor’s Office — Child Support Division: www.clark.wa.gov/pa/child_support.html; 800 Franklin St., Suite 100, Vancouver; 360-397-2265.

• YWCA of Clark County: ywcaclarkcounty.com; 3609 Main St., Vancouver; 360-695-0167.

• Free legal advice online: www.avvo.com

When Vancouver resident Jason Starks heard his ex-wife was considering a move to Atlanta, he hired an attorney to contest her taking their two children out of state.

His ex-wife, Devon Ratley, eventually opted against that move, but five years later, she decided to move to California. This time, Starks said, he didn’t have the money to hire an attorney. He had to represent himself in Clark County Family Court when she sought to modify his schedule of visitation with the children in order to accommodate her relocation.

“Last time, when I had an attorney, it was a lot easier. It was a breeze,” Starks said. “The second time, I was in court at least 10 times trying to figure out the right legal paperwork. They know me now.

“There’s a lot of (legal jargon) you don’t understand. The paperwork is difficult. It’s difficult knowing the right thing to say and how to say it. It’s a very emotional issue. It really stresses you out.”

Starks is just one of an increasing number of self-represented litigants across the nation since the Great Recession, according to local judges and federal statistics. But members of the local legal community say Clark County lacks adequate resources to help guide the masses of self-represented litigants through the labyrinthine judicial system. The result is caseload congestion in the courts, where self-represented cases take about twice as long to be resolved, and often present significant disadvantages for those who go to court without an attorney.

“We try to help them in every way possible to represent themselves, knowing that most people have not gone to law school for three years, have not practiced law, and everything is Greek to them,” said Superior Court Judge James Rulli.

More going ‘pro se’

Self-represented litigants are called “pro se” in the legal community. That’s Latin for “on one’s own behalf.”

Clark County doesn’t count the number of pro se litigants who go through its courts. However, anecdotally, judges say they’ve seen increased levels surpass anything they’ve witnessed in decades.

“What we are seeing today is unprecedented,” said Rulli, who has practiced law for about 38 years, “and it all came as a result of the economic downturn, when people couldn’t afford an attorney. And they still can’t.”

Federal statistics give an example of the upswing. In federal courts, the number of pro se bankruptcy filings increased by 187 percent between 2006 and 2011, compared with an increase of 98 percent in non-pro se bankruptcy filings during the same period, according to an analysis by the Administrative Office of the U.S. Courts. Pro se bankruptcy filings represented about 26 percent of all filings, the study found.

Locally, Superior Court Judge David Gregerson said the trend is “one of the biggest issues in the court system in the past 20 years.”

In Clark County Family Court, most cases that go to trial are now pro se, Rulli said. He estimated about 90 percent of the trials in his courtroom are pro se.

If that holds true across all the family courtrooms, that would suggest thousands of litigants represent themselves. In 2012, about 2,741 family law cases were filed in Clark County Superior Court, according to Washington Courts statistics.

“They have to steer their way through trial without any experience,” Rulli said. “We try to educate them with handouts on what they have to do for trial. We are doing everything we can to make sure they have their day in court.”

The majority of pro se cases are civil, particularly in family law.

A family law attorney costs about $200 per hour, and the typical family law case takes about eight hours, though many require more time than that, said Vancouver attorney Josephine Townsend.

In criminal cases, the indigent — those whose income is at 125 percent or less of the federal poverty level — are appointed an attorney without any upfront cost (They may be fined at the time of sentencing to pay the county back for all or a portion of the attorney’s fees.). Attorneys also are appointed in guardianship and commitment cases, basically any case in which someone’s liberty is at stake, said Ann Christian, Clark County indigent defense coordinator.

But there are examples of criminal defendants who are entitled to an attorney but choose to represent themselves. One of the highest-profile cases locally was that of Troy Fisher. He was convicted last year of murdering his father and sentenced to 40 years in prison.

In a phone interview with The Columbian from the Clark County Jail, Fisher said he chose to represent himself because he was dissatisfied with the performance of his court-appointed counsel. For instance, he said his court-appointed attorney didn’t interview witnesses in a timely manner.

On the fifth day of his trial, however, he told Superior Court Judge Barbara Johnson he needed an attorney, after previously insisting he would defend himself. His defense case lasted only an hour, compared with four days of testimony for the prosecution.

Limited resources

There are several resources available to pro se litigants, including the Clark County Court Facilitator’s Office and nonprofit groups, but none are equipped to handle the volume of litigants who seek assistance.

“We are seeing more people coming in to get help (in the last several years),” said Baine Wilson, Clark County chief deputy clerk. “I think there’s a greater need than what we have available. We could use more staff.”

About three out of five days of the week, the county’s three court facilitators have to turn away a line of people who are seeking guidance on how to file a case in court, Wilson said. The office can help only those with certain types of cases: divorce, paternity, child support and child custody modifications, contempt, stepparent adoptions and nonparental custody. They help litigants identify proper court forms, fill them out, file them and assist with scheduling a court appearance, but they are not authorized to give any kind of legal advice or assist in legal strategy, Wilson said. The service costs $20 for a 30-minute consultation.

For those who can’t afford that service, Clark County Volunteer Lawyers Program is an alternative. The nonprofit handles only civil cases, primarily family law, and serves anyone whose income is at 200 percent or less of the federal poverty level. The program differs from the facilitator’s office in that clients may receive legal advice.

“In most cases, we don’t represent people,” said Susan Arney, the program’s executive director. “We give advice.”

Pro se litigants of any income level also may seek free advice on the Coordinated Legal Education, Advice and Referral (CLEAR) hotline hosted by the Northwest Justice Project. Lawyers answer legal questions on the hotline, but it can take hours or days to get through.

“It’s very hard to get in on that, but people can get advice immediately,” Arney said. It can take two to three weeks to get an appointment at the Volunteer Lawyers Program, she said.

At a disadvantage

Without assistance, pro se litigants may experience significant disadvantages in court, especially if they’re facing an attorney, Arney said.

They often lack confidence and legal knowledge, she said.

“They can be overwhelmed, scared,” she said. “They don’t have the knowledge that an attorney has. Often, we hear our clients say, ‘I didn’t get to tell my story. The judge didn’t let me talk.’ You need to know the courtroom procedures to know when and how to talk.

“You don’t know what you did wrong or how to do it right,” she said. “The judges try very hard, and do what they can do, but it’s very difficult because they’re not allowed to give advice.”

“It’s very frustrating for everyone involved,” Johnson said. “You kind of do feel people underestimate what they need to do.”

Townsend recently represented a man whose wife was representing herself in their divorce trial. The trial was repeatedly stalled when the woman didn’t know proper courtroom procedures. For instance, she told the judge she didn’t know she was supposed to make copies of exhibits for Townsend.

“Pro se (litigants) don’t know what they don’t know,” Townsend said.

“When you don’t have an efficient checklist on how to present in court, what to make copies of, when to give them to the court, it puts them at a disadvantage and congests the courts because everything takes twice as long to get through. It puts courts in a difficult position because judges can’t give legal advice, but they want to be fair. They’re trying to strike a balance so as not to appear biased toward pro se (litigants), but they want to allow them to get their story out.”

Carin Schienberg is one of three court commissioners who see dozens of pro se litigants each Wednesday in Family Court.

She often has to walk litigants through simple court processes from the bench or refer them to the court facilitator’s office. She also has to serve as referee for pro se litigants who may be dealing with overwhelming emotions toward their opponent, especially in divorce and child custody cases.

“Family law issues can become emotionally charged in the courtroom,” Schienberg said.“Many times, people are not presenting at their best because of the issues that are being discussed.”

On rare occasions, commissioners have to order litigants removed from the courtroom if an exchange becomes too heated. A deputy sheriff is on hand in the Family Law Annex and often monitors the hearings to help keep order.

Efforts to assist

The legal community has been examining ways to make the court system more accessible to self-represented litigants.

Clark County judges have discussed removing some of the Latin terms, such as “pro se,” from court forms, schedules and hearings, Johnson said. To date, the Family Court docket, where court commissioners hear divorce and child custody disputes, is still called the “Pro Se Domestic Docket” on the county’s daily court schedule, which is posted online.

“The difficulty is in order to make things more understandable, lawyers spend three to four years in law school, and they still need to learn a lot on the practical side,” Johnson said.

She pointed to a wall of case law books in her office.

“These are just Washington state cases,” she said.

Wilson said her office also is looking at more ways to provide assistance to pro se litigants. One consideration is to provide digital kiosks, similar to those in the Spokane County Courthouse, where pro se litigants are walked through court paperwork and processes step-by-step.

“To go through the court system without a lawyer is daunting, and most people lose their way,” Townsend said.

“Many lawyers offer free time at clinics, but 30 minutes of time to answer questions,will not get them through the case. Many of us provide free legal services to a number of clients, but you can only handle so many cases at a time. I would really like to see a low-income legal clinic in Clark County with a sliding scale for folks who desperately need the help.”