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"To no one will we sell, to no one will we refuse
or delay, right or justice."
Magna Carta, 1215
Easier said than done! Over
the next year in this column I plan to explore what exactly,
if any, is our obligation as a profession to provide "meaningful
access" to those who represent themselves (voluntarily or
involuntarily) in a civil courtroom proceeding. I also plan to
highlight some of the initiatives that the MSBA has been and
will be further engaging in throughout the year.
Seeking to assist the courts in providing "meaningful access"
for Minnesotans, the MSBA in 1996 formed the Task Force on Pro
Se Litigants, which I chaired. The task force, including five
judges and nine attorneys from throughout Minnesota, struggled
early on with the question whether the legal profession has any
real responsibility to assist those who find themselves without
legal representation in a civil courtroom proceeding. Some members
of the task force felt strongly that proactively assisting self-represented
litigants would only encourage them to go pro se, while others
argued equally strongly that we have a duty, as officers of the
court, to ensure meaningful access to the courtroom for self-represented
litigants.
After much earnest discussion, the task force adopted ten Guiding
Principles to serve as the foundation for its subsequent deliberations
and recommendations. (The Guiding Principles appear on page
13 of this issue). A central underlying principle adopted by
the task force was that although self-represented litigants are
constitutionally entitled to represent themselves in courtroom
proceedings, they should, nonetheless, be strongly encouraged
to retain an attorney, if at all possible. The task force also
concluded very early on that litigants' absolute rights to self-representation
should by no means be confused or equated with "adequate
legal representation."
In carrying out its charge, the task force conducted numerous
informal hearings involving diverse professionals in the legal
system, researched numerous reports and studies of pro se litigation,
and conducted a non-empirical survey of self-represented litigants
for their perspective on this issue. The responses from this
survey yielded some surprising and not-so-surprising results.
Not so-surprising was the fact that the greatest number of self-represented
litigants were found in the family law area (56%) and secondarily
in the landlord/tenant area (21%). More surprising was the percentage
of self-represented litigants who preferred not to use the services
of a lawyer (69%) and furthermore, their unwillingness to pay
a lawyer to help with just a part of their case, even if they
could still handle most of it (63%).
The results from this survey refocused the attention of the task
force on its initial question, albeit with a slight twist: What,
if any, is the responsibility of the legal profession to provide
meaningful courtroom access to those who consciously choose
to forgo legal representation? Some members argued, quite convincingly,
that we should not go out of our way to assist litigants who
consciously choose to forgo our services. While on its face this
argument has some logical appeal, comments from numerous courtroom
stakeholders make clear why we can ill-afford to do nothing:
"It is an incredible cost to me and my client because
of all the appearances I have to make when a pro se litigant
is involved that I cannot pass on to my client." Private
Practice Attorney.
" I hear complaint after complaint after complaint
from lawyers …that there are no rules any more when you
are dealing with pro se. There are only rules on one side."
Past-President, Hennepin County Bar Association.
"Pro se litigants contribute to court congestion …
they tie up the court staff with questions, cause judges to cancel
hearings because of inadequate representation … they don't
successfully complete forms." Trial Court Judge.
"Cases take twice as long to try because you are forever
bringing the pro se party back to focus on the issues of why
they are trying the case." Family Law Judge.
"With no disrespect intended to the judges, …
by the time pro se litigants reach the courthouse, they have
spent three times as much time with us [as] they are ever going
to spend with the judges." Court Administrator.
Similar testimony from these and many other courtroom stakeholders
made two things abundantly clear to the task force members: First,
closing our eyes to this problem and thereby doing nothing won't
make these concerns go away; in all likelihood, they will instead
intensify over the next few years. Second, the pro se issue is
not simply a problem for the self-represented litigant; it is
a systemic problem for the legal profession since it often adversely
affects all participants in the legal proceeding.
The Pro Se Task Force issued its final report, "Litigants
Without Lawyers," in April 1998. The report includes findings
and recommendations on what the legal profession and self-represented
litigants can do to ease the strain placed on all participants
when litigants represent themselves. If you would like a copy
of this report, please contact Lisa Wilde at the State Bar.
As a result of this report, the Pro Se Feasibility and Implementation
Committee was formed last year. It is cochaired by Chief Judge
Edward Toussaint of the Court of Appeals and Eric Magnuson from
the law firm of Rider, Bennett, Egan & Arundel. In future
articles I plan to highlight some of the initiatives this committee
is working on in tackling the pro se issue.
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JARVIS C. JONES is president
of the Minnesota State Bar Association. An attorney with experience
in business and in private practice, he now serves as an executive
with the St. Paul Companies, where he is responsible for a new
start-up business.
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