Taking the Law In Their Own Hands…And Losing
First published June 19, 2007 in The Daily Item
According to a recent study by the Pennsylvania Association of Court Management, in approximately 30% of divorce cases and almost 50% of custody matters litigated in Northumberland County at least one party is unrepresented by counsel. In Union County, in approximately 83% of divorce cases and 44% of custody matters at least one party is unrepresented by counsel. While figures for Snyder County are not available, presumably the percentage of self-represented litigants in domestic relations cases there
is also significant. For many, domestic relations proceedings and minor traffic infractions represent the only time that a citizen appears as a party before our courts. Unlike the vast majority of traffic matters, domestic relations cases frequently involve issues of utmost importance to the litigants and any children who are impacted by the court’s decision.
When the issues are complicated and the services of an expert witness are needed to assist a litigant, as is often the case when child custody is contested, the cost of having effective representation is more than many citizens are able to bear. A psychological assessment in connection with a custody dispute may cost $3,000 or more. The total tab adding in the cost of counsel could easily exceed $10,000. If there are other complex contested issues, there may be need for additional expert assistance and there will certainly be additional legal services. In the context of divorce proceedings, all of this is occurring at a time when there is already a strain on the parties’ financial resources. The income now generally needs to support the cost of two separate residences, two sets of furniture, and more of everything else we consider essential.
It’s no wonder that the number of self-represented litigants in matters of all kinds keeps increasing from year to year. In addition to divorce and child custody proceedings, there are large percentages of self-represented litigants in actions seeking orders of protection to prevent domestic violence, landlord-tenant disputes, child and spousal support proceedings, actions to collect a debt, and enforcement of court orders. One may easily imagine the serious consequences flowing from these other kinds of cases too.
One expert has referred to do-it-yourself legal representation as “Home Depot” justice. It should be noted that self-representation in legal proceedings is far different than trying to fix your own toilet. Given enough time and the right tools, most of us are capable of home repairs. If we fail, the consequences are aggravating but generally not life altering. We also don’t interfere with the ability of other people to make repairs in their homes while we are attempting to make a repair in our own residence.
Self-represented litigants tax the judicial system, which is generally set up to deal with attorneys. Judges and court personnel are not permitted to give legal advice. Nonetheless, self-represented litigants routinely ask court staff for legal information and advice, frequently have problems completing necessary paperwork, and often submit poorly drafted documents. Some self-represented litigants are illiterate, and even those who can read, often find the forms incomprehensible. They have come to be known as “frequent filers,” because of their general inability to access and navigate the justice system.
Lawyers provide a valuable service that even the well prepared self-represented litigant cannot do for him or herself. When both parties in a case are represented by counsel, who are able to understand and communicate to their clients all that is at stake, it greatly increases the likelihood that each party will overcome emotional reactions in order to become amenable to a voluntary resolution. If and when the parties consent to having counsel work toward a voluntary resolution, it is far more likely to be accomplished because the negotiations are conducted between professionals rather than emotionally involved litigants.
If a voluntary resolution proves unattainable, and a court proceeding takes place, a lawyer’s knowledge of the substantive law, rules of procedure and rules of evidence protects the client from losing rights. When a party is self-represented and unfamiliar with the procedural and evidentiary rules, and takes positions that have no legal merit, it causes the court to spend time inefficiently and delays justice for not only the self-represented litigant but others who have cases pending in the court. If an attorney for a represented client has to spend more time in court because of such delays, it also generally costs the represented client additional legal fees.
North Penn Legal Services is the area’s legal aid provider. Because of income or assets, most people do not meet legal aid’s requirements for free legal services. Further, because North Penn has limited resources, it is unable to help many that technically qualify for services. North Penn has been forced to prioritize those cases that have the greatest consequences for the clients and generally cannot take on clients involved in other types of cases. While private practitioners are able and encouraged to volunteer some services each year to help those who are unable to afford legal representation, there does not appear to be many area lawyers providing “pro bono” or volunteer services.
Unless addressed in some meaningful way, these problems will only get worse. A justice system that does not provide effective access to all citizens in the community should be everyone’s concern.
Allan Sobel is director of the Arlin M. Adams Center for Law and Society at Susquehanna University.
