Report of the MSBA Pro Se Committee (May 2003 to May 2006)

Introduction
Pro se litigants, ever increasing in number, present significant challenges to the courts, and the practicing bar. The number of pro se litigants has grown exponentially, particularly in those areas of the law that are difficult for the judicial system to effectively handle anyway - marriage dissolution, domestic violence, landlord/tenant disputes, to name a few - and the bench and the bar continue their struggle to deal with the challenges presented by parties without lawyers.

A review of the legal literature nationwide demonstrates what a nearly overwhelming problem pro se litigation presents. Lawyers spend years learning how to ply their trade. Pro se litigants often feel like they have succeeded if they make it to court on the right day, at the right time. The havoc that is created when one or both sides to a proceeding not only fail to follow the rules, but are wholly ignorant of them, is staggering. Judges and court personnel are caught in the middle - at what point do their efforts to impose order slip over the line and become inappropriate assistance to one side, at the expense of the other? At a minimum, the courts are placed in a position where it appears that they are not unbiased, and it appears that a pro se litigant may actually be proceeding at an advantage, since the rules do not apply to him or her.

As the members of a Wisconsin Supreme Court working group on pro se issues have recognized, the challenges of self-represented litigants begin when they make their first contact with the court system. "The difficulty arises out of the reality that the legal system is not designed to serve individuals without attorneys." Confusing language, "legalese," complicated rules and procedures all frustrate litigants trying to represent themselves in court. The frustration experienced by the litigants is often shared, or felt even more strongly, by the judges, court staff and lawyers who are attempting to process cases involving pro se litigants.

The Study of Pro Se Issues
In 1996, the Minnesota State Bar Association formed a Task Force on Pro Se Litigants. This group, comprised of judges, court staff representatives, lawyers in private practice and from the legal services community, was chaired by MSBA President Jarvis C. Jones. The Task Force was established to implement the recommendations of the Minnesota Conference of Chief Judges Committee on the Treatment of Litigants in Pro Se Litigation. The Task Force was charged with examining pro se issues and programs in Minnesota and across the country, as well as recommending policies and programs to the MSBA Executive Committee and Board of Governors. The Task Force was asked to examine the extent and nature of pro se issues and pro se programs throughout the state, their impact on the bar and the legal profession, pro se issues from the different perspectives of bar stakeholders; the bar's partnership role with the bench, and then formulate policy and program recommendations.

Nine attorneys and five judges served on the committee. The Task Force included a past president of the Minnesota State Bar Association, and three past presidents of the State's two largest county bars - Hennepin and Ramsey. Geographically, the Task Force included representation from around the state, including Bemidji, Duluth, Grand Rapids, Mahnomen, Mankato, Worthington, and Hennepin and Ramsey counties.

The Task Force sought to explore who pro se litigants are, and why they are unrepresented; to determine the extent to which pro se litigants place a burden on the judicial system; examine methods of insuring that pro se litigants are better prepared and informed of their rights and responsibilities; and among other things, to examine the feasibility of lawyers providing pro bono service to educate pro se litigants. This included examining the possibility of attorneys providing unbundled legal services to pro se litigants as a viable method of insuring the pro se litigants are better prepared and informed when entering into the court system.

The Task Force was acutely aware of the many similar, and at times, different perspectives and interests of the MSBA's stakeholders (attorneys, judges, court staff, legal services organizations, self-represented litigants, and the public). Ten guiding principles were utilized by the Task Force in analyzing pro se issues and making its findings and recommendations:

• Self-represented litigants are constitutionally entitled to represent themselves and have meaningful courtroom access.
• The bar should aid the trial court in providing meaningful access for Minnesotans, and it should simultaneously encourage individuals to proceed with adequate legal representation.
• In most legal matters, self-represented litigants who can afford an attorney should be encouraged to obtain one.
• The bar needs to promote the use of alternative models of providing legal services to self-represented litigants.
  
• Attorneys can provide pro bono services to self-represented litigants who are income eligible for such services.
  
• New, senior, underutilized and other attorneys have a role in providing legal representation, at reasonable cost, to self-represented litigants who are unable to afford regularly priced legal services.
  
• Self-represented litigants need to be informed of their rights as well as their obligations as litigants in legal proceedings.
  
• The bar and bench need to educate and inform their stakeholders about the issues and challenges surrounding self-represented litigants and recommend possible solutions to these challenges.
  
• The bar and bench need to assist the state trial courts in reducing the number of self-represented litigants who abuse the legal system by repeatedly filing frivolous lawsuits.
  
• The Task Force's recommendations must be sensitive to the issues, needs and available resources of a particular bar and judicial district, and avoid making broad and administratively impractical recommendations.

After conducting hearings, performing an extensive survey of self-represented litigants, and thoroughly examining local and national pro se programs, studies, reports and materials, the Task Force made a number of significant findings.

1. That litigants are constitutionally entitled to meaningful access to the court system and to represent themselves.

2. That self-represented litigants are required by law to comply with the same laws, courtroom procedures, rules and protocol that attorney-represented litigants are required to satisfy.

3. That self-represented litigants' rights are best represented and protected in a legal proceeding by attorneys who are skilled and trained in the substantive and procedural laws of the state.

4. That self-represented litigants are comprised of a heterogeneous group of Minnesotans from diverse educational, income, gender, and racial backgrounds.

5. That there are a significant number of self-represented litigants who prefer to represent themselves even though they could afford to retain attorneys.

6. That there are a large number of self-represented litigants who would prefer to retain an attorney but who either perceive they cannot or actually cannot afford the services of an attorney.

7. That self-represented litigants are unfamiliar with the substantive laws, procedures, rules, and protocol that govern litigants' rights and responsibilities.

8. That unfamiliarity with legal and courtroom proceedings places a strain on the judiciary's ability to efficiently and impartially handle matters involving self-represented litigants.

9. That self-represented litigants place the heaviest strain on the court system in the areas of family and housing law.

10. That court administrators and their staff spend a significant amount of time assisting self-represented litigants without the benefit of clear directions and written guidelines delineating what they should and should not do.

11. That self-represented litigants often pose an ethical dilemma for attorneys obligated to zealously represent their clients but who also have a special responsibility for the quality of justice.

12. That it is extremely important that the bar and bench's participation in pro se assistance programs do not divert or distract from commitments, resources, and revenues dedicated to assisting the truly needy.

13. That there is a need to promote attorney participation and financial contribution to legal services programs in order to provide greater assistance to self-represented litigants who are income-eligible.

14. That there is a need to inform self-represented litigants about the availability and cost of legal representation and alternative models of legal services, such as select legal services, alternative dispute resolution ("ADR") including mediation, and low and moderate-income panels, etc.

15. That there is a need to promote the use of new, senior, underutilized, and other attorneys to self-represented litigants who are unable or unwilling to pay for full legal representation but who may be willing to pay for legal services on a reduced fee and/or select legal services basis.

16. That there is a need for continuing legal education ("CLE") courses to attorneys interested in providing alternative forms of legal representation to self-represented litigants.

17. That the right to meaningful access to the court system carries with it certain responsibilities, including the obligation as a litigant to be adequately familiar with legal and courtroom proceedings.

18. That it may be appropriate in some counties to establish an "information and referral center" at the courthouse that would answer general, procedural, and logistical questions and would inform self-represented litigants on how to fill in basic forms and legal representation options.

19. That it may be appropriate to establish in some counties a "family law self-service center" to provide free legal advice and information to self-represented litigants who satisfy legal services' income eligibility guidelines.

20. That there is a need for the MSBA and the judiciary to track and closely monitor the numbers and needs of self-represented litigants and the design and implementation of pro se assistance programs in Minnesota in order to ensure that self-represented litigants have meaningful access to legal and courtroom proceedings.

21. That the number of self-represented litigants and the need for pro se assistance programs tends to be significantly greater in the Twin Cities metropolitan area than in most other areas of the state.

The 1998 Final Report of the Task Force on pro se litigants made a number of recommendations for bench and bar action. Recognizing that only collaborative programs, supported by both the bench and bar, had a chance of being successful in the long run, the Task Force identified four broad areas for such efforts: meaningful access initiatives to provide self-represented litigants with more useable information and easier access to the courts and court information; judiciary initiatives, including pro se calendars, uniform simplified courtroom procedures and examination of changes to existing laws that hinder the courts in efficient and effective administration of justice; bar/lawyer initiatives, including campaigns to heighten public awareness of the rights and obligations in legal and courtroom proceedings of self-represented litigants, the establishment of moderate income attorney panels, and the compilation of alternative legal services directories; and finally, establishing more effective pro se assistance programs in selected judicial districts, including volunteer attorneys to assist pro se litigants in handling their actions.

The Implementation Task Force
In response to this report, the Bar Association decided to take action, and appointed a Pro Se Implementation Task Force. This group, initially chaired by Court of Appeals Chief Judge Edward Toussaint and then MSBA President-Elect Jarvis Jones, set about trying to develop some practical action items to implement the suggestions of the Pro Se Task Force. The challenge was daunting. The Implementation Task Force has now been working for over two years on the challenges identified by the Pro Se Task Force.

Pro se litigation issues can vary widely. In the end, however, solutions come down to a handful of effective basic approaches. These include providing legal consultation on an "unbundled" basis (staffing self-help centers with lawyers who can provide short courses in procedural rules and substantive law in specific areas), education (preparing materials that help orient and educate the pro se litigant), and simplifying judicial proceedings. Each approach, however, may have significant drawbacks. Pro se calendars, for example, may be impractical in certain judicial districts, where the volume of pro se cases is simply not great enough to justify a calendar on a regular basis. Providing educational materials to pro se litigants often founders on language barriers. Converting self-help materials into the wide variety of non-English languages that may be used by pro se litigants is difficult, time-consuming, and costly. Finally, writing special rules for pro se litigants could work a significant disadvantage to litigants who have retained counsel, creating not only the appearance of bias, but actual prejudices as well.

Despite these obstacles, the Implementation Task Force has made some real progress. Work groups were formed to address the variety of recommendations made by the Task Force. For example, the Lawyers Subcommittee has worked with existing Internet projects to establish web-based resources, including legal services directories, forms, etc. The Meaningful Access Committee has undertaken similar efforts, trying to gets its arms around the existing state of resources available to self-represented litigants.

Changes to Rules and Procedures
The Judiciary Subcommittee considered five concrete suggestions made by the Task Force:

1. Develop a court rule that requires self-represented litigants to view, upon filing or as soon thereafter is practicable, a videotape that acquaints them with basic legal and courtroom procedures, rules, practices, terminology, etc.;

2. Examine the desirability and feasibility of establishing, in some judicial districts, a special pro se day where a block of time on the court's calendar is reserved exclusively for matters involving self-represented litigations;

3. Explore the feasibility of creating uniform simplified courtroom procedures, practices, and policies for all litigants;

4. Examine and recommend changes to existing laws that hinder the courts in the efficient and effective administration of justice;

5. Establish a tracking system to determine the number of self-represented litigants going through the court system.

The Judiciary Subcommittee's Recommendations and Report dated June 12, 2002 were submitted to the General Assembly. A copy of the Recommendations and Report is attached. The General Assembly considered the recommendations on June 28, 2002.

Judge Toussaint introduced the recommendations of the Committee, as contained in the General Assembly materials, noting that the MSBA Executive Committee had reviewed and endorsed the recommendations, amending the first sentence of Rec. #1 to read: "The subcommittee requests that the Supreme Court develop a training program for judicial and non-judicial staff on best practices for cases involving pro se litigants, and that the program be mandatory, or strongly recommended.

There was substantial discussion of item number 8 of Appendix A, "Family Self Help Programs." There was concern that some of the proposed language would enable the practice of law by nonlawyers; in rebuttal, it was argued that the proposed rule change was drawn narrowly enough to regulate unauthorized practice and that without such a rule court staff would be unwilling to risk assisting pro se litigants for fear of violating the unauthorized practice statute. The purpose of the proposed rule change was described as providing a "safe haven" for court administrators who need to help self-represented litigants.

A "friendly amendment" was passed to have the fifth bullet point of item #4 of Appendix A amended to read:

• answer questions about family law procedural issues and how to proceed with a family law matter;

With the changes referenced above, the Committee's recommendations were voted and carried.

Providing More and More Focused Help
The Program Subcommittee of the Implementation Task Force took a highly focused approach to things. It was charged with collaborating with the law schools, state and county law libraries and social and community based providers to explore ways those groups could assist in providing more meaningful access and information to the public and self-represented litigants. It was also asked to examine the feasibility of piloting a "family law self-service center" in a selected judicial district, examine the feasibility of piloting a "pro bono/pro se assistance" program consisting of volunteer attorneys in non-family matters, and examine the feasibility of a volunteer attorney landlord/tenant panel to assist self-represented litigants with basic procedural and form questions including landlord/tenant matters.

Using the current programs in Hennepin and Ramsey County, the subcommittee created a model for a pro se self-help center it thought would be suitable for use in more rural and suburban settings. The Program Subcommittee began its initial program in Dakota County, concentrating in the area of family law. Working with an active and involved Dakota County Bar Association, and with the invaluable support of the Dakota County judges, the subcommittee is well on its way to establishing a working Family Law Center.

The cornerstone of the program is a free consultation available to those who ask. The program envisions a partnership between the bench, the bar, and district court administration, providing lawyers and paralegal assistants to offer brief, limited consultations for clients who need guidance on a legal problem. These consultations will remove a significant burden from court personnel, who often find themselves in the middle, wanting to be of assistance while knowing and having to explain that they cannot offer legal advice or even provide much help with respect to procedure. Because most pro se litigants first ask for help at the local court, creating a self-help center will remove the burden of responding to requests for advice from the court staff. The proposed program will limit the function of court administrative staff to (1) providing persons who wish to represent themselves with forms to fill out regarding their cases so that attorneys and student attorneys may more adequately and efficiently respond to their requests and (2) making appointments for the pro se litigant to see an attorney for a limited period of time. The volunteer attorneys and paralegals will provide the assistance that the pro se litigants need.

Intake was another matter the subcommittee considered. Income limitations are a serious problem for many pro se litigants. Normally accepted guidelines tend to cut out people who most need help - those people who do not qualify for legal aid, but can't pay for a lawyer either. By eliminating income screening, the program will provide more help to more people, without having to deal with arbitrary income restrictions. The hope is that, while some pro se litigants who could actually afford to hire a lawyer may take advantage of the center, the program will be able to reach more people who present legitimate needs.

Conclusion
Pro se litigation presents a significant challenge that cannot be ignored. Fairness to all litigants, whether represented or not, is the ultimate goal of the judicial system, not a target too high at which to aim. Recognizing the wide variety of reasons why people exercise their constitutional right to represent themselves, and focusing the collective efforts of the bench and the bar at making the judicial process work in the pro se context, is a challenge important to everyone involved in the system. In the end, all of the players involved in the court system will benefit from prompt, impartial processing of disputes in a tribunal that is able to treat those participating with even-handed justice.

Respectfully submitted,

Chief Judge Edward Toussaint, Jr.
Co-Chair 2001-2002

Eric J. Magnuson
Co-Chair 2001-2002

- Last Updated 5/23/03 -