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At Los Angeles’ Central Civil West Courthouse, pro per litigants desperate to get free legal help on their family court cases begin lining up at 5:30 a.m. “We try to pull out the priorities,” said Julie Paik, the Los Angeles County court facilitator who runs the 3-year-old program, which offers guidance to thousands who go into court without an attorney. She and her staff sit down with up to 6,500 pro pers in 14 locations each month, but with consultations ranging from 20 minutes to five hours, Paik calls it a “roll of the dice” whether even the earliest riser gets help. Talk to the court facilitators providing help on the front lines of the pro per deluge in family law and battlefield images more appropriate to a field-operated MASH unit emerge. “We do triage here,” said Nancy Southworth, attorney-facilitator for the Sutter County courts. “[Pro pers] get a 20-minute appointment and referral out to a class or a clinic.” The pro per problem reached such epidemic proportions several years ago that the courts set up facilitator programs in all 58 counties. The programs initially focused on helping unrepresented clients procure child support — and were often begun over the opposition of the family law bar. While critics remain wary, they’re beginning to acknowledge the inevitability of more publicly funded self-help programs in the face of immense need. Responding to the demand, the courts this year are trying out three pilot programs that teach pro pers how to handle their own disputes over custody, visitation, divorce, paternity and restraining orders. Each program attempts to meet the needs of a specific type of locale, whether urban Los Angeles, rural Sutter County or ethnically diverse Fresno. “What we’re touching with the facilitator program is a large group of the disenfranchised who’d never have come into court before,” said Bonnie Hough, a senior attorney with the Judicial Council. The California Bar is becoming less resistant to such programs, she suggests, “because they recognize these are clients they’d never have taken on anyway: These are walking accounts receivable.” After just two years, “facilitator programs are seeing 30,000 pro pers each month,” Hough said. “Now we can’t imagine how we ever did without it.” But is it fair to expect the most vulnerable segment of the population — and often the poorest — to morph into their own attorneys without benefit of law school? Lawyers representing the better-off say such programs cast in stone a two-tiered system of justice and call for more government funding of pro bono legal services instead. However, with attorney’s fees currently ranging upwards from $150 per hour, retainers beginning at $1,000 and free legal services overwhelmed even for the most indigent, many people don’t have the option of going into court represented by an attorney. “It’s an economic reality,” said San Francisco Superior Court Judge Donna Hitchens, who leads S.F.’s family courts. “Lots of us wish funding were available to provide attorneys for everyone in family law because the issues impact so many families and children.” But it isn’t, she adds, and the facilitator program has made “a significant, visible improvement” in the courtroom. Facilitators — who are attorneys but cannot give direct legal advice under the terms of the program — say they urge those with complex cases to seek low-cost lawyers or those offering ‘unbundled’ hourly legal advice. They also prefer to send domestic violence victims to special services, they say, but often find that expert monitoring of paperwork or coaching suffices to help most litigants make a solid case before a judge. Paik said it’s a misperception that the indigent or the working poor can’t be empowered to help themselves. “We say, ‘in two minutes or less you’ll have to tell the judge what your problem is; we can’t go into court with you.’ They are passionate, well-prepared, and come out saying ‘It’s the first time the court ever listened to me’” she said. It’s almost like marriage, suggests Hough. “For better or worse, the courts are really seeing that they have to help a big group of people navigate the system.” In a 1998 study, the Judicial Council found that some 84,000 family court cases — or 52 percent — featured at least one pro per litigant. Many judges believe the percentage is much higher. In a 1997 survey conducted among family court judges, they set the figure at 66 percent. It currently averages 76 percent in San Diego’s courts, said facilitator Frances Harrison, and ranges above 90 percent in one court. While not a new problem, it’s an ever-escalating one, said Judge Hitchens. When she first came to the family law bench several years ago, “I saw folks coming in not knowing the code of conduct or the law or how to present their side, clearly feeling overwhelmed,” she recalls. Court calendars clogged as litigants returned over and over trying to figure out what was required until all too many of them simply gave up. “When you have 20 lines on an a.m. calendar, you can’t spend an hour explaining every aspect to a pro per litigant so they [can] understand,” Hitchens said. “That resulted in an enormous lack of faith in the system.” An advocate and fan of the facilitator program, Hitchens said “there’s still a long way to go,” an opinion shared by Commissioner Josanna Berkow of the Contra Costa County courts. “It’s a wonderful program, but the need is as big as ever,” she said. Both praised the family law bar in their respective counties, saying family law attorneys donated more pro bono time than any other specialty. Some 4,000 pro pers pass through the San Diego, Calif., courts program monthly in what lead facilitator Harrison calls a crash course in “applied due process.” An overflow of 66 are turned away daily. Those who get in are screened and dispatched to domestic violence clinics or mediation where appropriate. If they need an attorney, they are directed to rosters featuring retainer rates. Harrison and her staff coach litigants on articulating their goals, on compiling sworn declarations in lieu of oral testimony, and then monitor the pro pers as they fill out paperwork in nearby carrels. Harrison compares the setting to an elementary school classroom: “We teach litigants how to accomplish due process of law,” she said. That has reduced the pressure on the court’s clerks, she adds. Frustrated pro pers used to “harrass” clerks who handed out sheafs of forms but were then prohibited by law from explaining how to fill them out. Facilitator programs vary widely; more than half the counties add in court funding enabling the program to expand beyond its basic mandate of support cases. Until now, however, the Los Angeles program has been restricted to support cases, and that’s been more than enough to keep Paik and her staff busy. “The DA files 5,000 to 6,000 cases a month,” said Paik. “I can barely keep up with the new filings, let alone the previous.” Though workshops and clinics are a common feature of other programs, the Los Angeles staff primarily works one-on-one because of the 14 far-flung venues, she said. Law students often play a big role volunteering in facilitator’s programs in urban areas. But law students are hard to come by in rural Sutter County, where facilitator Nancy Southworth emphasizes a “holistic approach: orientation, mediation, programs for kids in divorce, parents in crisis and an attorney to help with the papers.” As the recipient of one of the three grants to expand free legal help via a Family Law Information Center, Southworth will open a regional center serving Sutter and surrounding counties by mid-July. The program — funded at $70,000 annually for three years — will house mediation services, a victim-witness program and childcare. The second grant for $140,000 for each of three years was awarded to L.A.’s Julie Paik to open FLICs this week and next in the Central and Norwalk courthouses respectively. They will offer workshops and expand legal help available to include issues of custody, visitation, divorce, paternity and restraining orders. The final grant of $70,000 annually for three years was awarded to the Fresno facilitator program. Fresno’s program is already under way, and is using the money to expand into a number of community-based sites offering increased legal services to Spanish and Vietnamese speakers. The Judicial Council will be evaluating the three models to determine what works best for potential expansion statewide. There are 152 local pro se programs nationwide, most begun since 1997 in response to a sharp rise in pro per litigants in the past five years. But few jurisdictions have been keeping statistics detailing the scope of the problem, said Kate Sampson of the Chicago-based American Judicature Society. Many are just now becoming aware of its severity and beginning to consider statewide solutions. “California has the most widespread, comprehensive assistance program for family law litigants of any state in the U.S.,” said Sampson. While California may appear to be in the vanguard nationally, at least one former family law judge is still angry over delays he saw in implementation. By the mid-’90s Roderic Duncan, formerly an Alameda County Superior Court judge, said the family law bench had been watching pro pers flounder for years. He worked with other court officials to advance the notion of a self-help center in every court called “Family Court 2000.” “It was greeted with tremendous outrage by lawyers,” he recalls. “The State Bar was so opposed, they killed it.” The only reason the facilitator program ever got off the ground, he said, is because suddenly millions in federal dollars became available to help collect child support. That became the court facilitator program, now budgeted at $11 million annually and relying on a two-thirds federal match. Capsulizing attorneys’ attitudes towards self-help programs several years ago, “the American Academy of Matrimonial Lawyers, the nation’s silk stocking group [of divorce lawyers] castigated [L.A. facilitaor] Julie Paik when she spoke before them,” he said. “It’s a real embarrassment to lawyers that they fought any government program to provide help.” But the chair of the California Bar’s Family Law Section begs to differ. The objection to precursor programs like Family Court 2000 arose because “they removed procedural and due process safeguards to expedite cases for judges,” said David Fink, a partner with San Francisco-based Nachlis & Fink. Opposition to public help programs has never been based on job security for attorneys, he said, “though that’s what we were accused of.” The irony, he notes, is that the old Family Court 2000 plan is being implemented piecemeal anyway through the facilitator and self-help centers, which he dubs “a big success in offering assistance to navigate a complicated system.” Family law attorneys do complain about the de facto practice of law going on in the facilitator’s programs because only the facilitator and program supervisor actually have to be attorneys, Fink said. And there are concerns about conflicts of interest when the same staffer helps both husband and wife. The “unbundling” of legal services to offer limited or narrowly focused advice could be a huge boon to the middle income who need just a little help, Fink said. Now lawyers who do it “take on a risk of liability” over what they may not have addressed. He’d like to see a law authorizing unbundling and limiting such liability. “Get people legal advice that is free, partial, cheaper,” he advocates — or simplify the system. But lawyers generally oppose that alternative, he said, because it threatens such due process rights as notice and full hearing. James Veltmann, a partner with San Diego-based Veltmann & Leto, who chairs the Southern California chapter of Matrimonial Lawyers, remembers the meeting at which Paik presented the facilitator program and the incredulity of one impassioned critic, former Fourth District Court of Appeal Justice Sheila Sonenshine. How was it possible not to give legal advice in guiding pro pers through the system, she wanted to know. And for Veltmann, though he praises Harrison’s San Diego program as “wonderful” and said “she’s doing a great job,” it poses a basic ethical issue about the unauthorized practice of law. “The money would be better spent,” he said, “providing low cost or free representation, the way it is in other areas of practice.” Veltmann specializes in high-end property valuation and the complex division of assets and acknowledges that the problems of those who can’t afford lawyers like him are “long-term and serious.” But he worries that the courts’ turn to public self-help centers represents “a stopgap solution. [It] may be alleviating inefficiency for judges,” he said, “but I’m not sure [these people] are getting their claims adequately represented.” Mary Viviano, who specializes in legal services outreach at the State Bar, calls for a balancing of new programs with legal services (for the poor) and pro bono programs “so as not to set in concrete a two-tiered system of justice.” But she adds a consensus perspective as well on the pro per problem: “We are turning a corner: Resources are being put in and there’s an evaluation of what’s working. The Administrative Office of the Courts is helping support facilities all over the state. Now we’ve got some answers.”

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