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In Southern California, a refitted Winnebago travels the area in a Ventura County program meant to help pro se litigants. In New Mexico, several judicial districts have a pro se judge. In Phoenix, the county court has a self-help office. The number of litigants representing themselves in court is growing — and courts are helping them do it, often in the face of lawyer opposition. With the trend has come a new method of lawyering that’s bringing business to small practitioners. It’s called “unbundled legal services.” The term refers to breaking legal representation into discrete tasks such as giving advice, preparing documents and appearing in court. A pro se litigant who can’t afford the fee for full representation can use the lawyer for just one part of the case. There is a danger to this approach, in some attorneys’ opinions. They fear that a client will hold the lawyers responsible for unfavorable outcomes, increasing their risk of a malpractice suit. There are no clear national statistics about the numbers of pro se litigants, but most people agree that their ranks are swelling. In Maricopa County, Ariz., where Phoenix is located, a survey found there is a pro se litigant in 88 percent of all divorce cases. Two-party pro se divorces were recorded in 52 percent of the proceedings. Idaho’s court assistance program for pro se litigants helped 13,000 people last year in 25 of the 44 counties where it’s in place. Behind the growth lies the cost of legal help. Legal needs surveys like one done by the ABA say that as much as 80 percent of the legal needs of the poor are left unmet. Funding for legal services has been slashed for more than a decade, and pro bono efforts by lawyers aren’t filling the gap. In Idaho, the court assistance program found that 63 percent of pro se litigants were below the federal poverty level, and 93 percent were of modest means. NOT JUST MONEY But money is not the only reason. In Maricopa County, court officials don’t track the financial needs of pro se litigants, but they see a number of people who approach the court lawyerless not out of need but in a do-it-yourself spirit. In state courts, family law is the area in which the biggest increase in litigants and pro se programs can be found. “There’s a paradigm shift,” says William Hornsby Jr., staff counsel to the ABA’s Legal Services Division. “People used to go into court with a lawyer. Now they don’t.” The American Judicature Society’s 1999 survey — the most recent count of programs nationally — found 150 pro se programs in 40 different states. The programs can vary dramatically. In some cases, state funds provide money to the courts for comprehensive programs. In other cases, individual court districts provide money and different pro se programs crop up in neighboring counties. Other programs are started and administrated by local bar associations or legal services offices. Some programs provide an attorney to help clients through programs while others have clerks or nonlawyer staff assisting pro se clients with papers and procedures. The philosophic approach to the programs can vary as well. In Idaho, the court assistance programs screen pro se litigants for income in an effort to find them a lawyer. “Our No. 1 priority has been to link unrepresented litigants with attorneys,” says Patrick Costello, the project director for the court assistance project. “We screen them to see if they might qualify for legal services from any of the free sources. Then we look at whether they might qualify for the modest means panel. If that doesn’t work, we look to either the lawyer referral services or referral to someone on our own roster,” says Costello. In Maricopa County, the court has developed a “self-service center” which does not assess need, but does provide options, including legal services and a lawyer referral roster for all pro se litigants. Gordon Griller, the Superior Court administrator for Maricopa County, says the court looks at the litigants as clients and strives to change the process to make it simpler. “Our guidepost is Home Depot,” Griller says. “If we can make it understandable and we can provide the tools, we believe you can make it through the legal system.” LAWYER FEARS Many of the pro se assistance programs were initially met by lawyer opposition out of fear of the financial repercussions for small practitioners. New Mexico 11th Judicial District Judge Bill Birdsall, who serves as a pro se judge, says his district overcame opposition to the court assistance programs as attorneys got used to the program. “Over time, the attorneys doing domestic work realized there wasn’t that big a dent in their business,” Birdsall says. One way pro se programs have been working to squelch bar opposition is to bring attorneys in at the outset. That’s what Idaho did. The State Bar became a partner in the court assistance project. Another method is to develop the idea of unbundling hand-in-hand with the program. Maricopa County has had unbundled legal service referrals organized as part of the self-service center from the start of their program seven years ago, thereby making lawyers realize that if they didn’t get the customers through an unbundled referral, they often wouldn’t get a customer at all. Attorneys in both states seem relatively happy. Anne Dwelle of Wakefield & Dwelle in Moscow, Idaho, says she fully supports the court assistance program, though she’s not certain the financial impact on her two-lawyer firm has been entirely positive. She is doing far fewer bread-and-butter divorce cases, although she is also doing more unbundled legal work. Even if her business is hurt by the program, it’s not something she wants to complain about. “These people needed us before because there wasn’t another access,” she says. “Now, I can take care of the people who really do need help.” Penny Stanford, a solo practitioner in St. Anthony’s, Idaho, which has a population of 3,000, says the court assistance program may even be good for business. “When it functions well, it’s saved me a lot of work in that there is somebody to refer these folks to who will tell them the truth and tell them how to do it without me actually having to do it on a pro bono basis,” Stanford says. Arizona lawyers also appear to be relatively happy with the system. Gary Stickell, a Phoenix solo in business for more than 20 years, feels it provides him with an opportunity for public service by helping people with unbundled services who otherwise might not be able to afford a lawyer, while helping to build his client base. But not everyone is thrilled by the new programs, or by the idea of unbundled legal services. J. Lindsey Short Jr., president of the American Academy of Matrimonial Lawyers and an attorney at Houston’s Short & Jenkins, says pro se is not conducive to the expenditure of courtroom and judicial resources. He’s unfamiliar with unbundled programs, but says they sound dangerous. “It seems to me if some lawyer were to handle a discrete portion, the lawyer is going to get blamed for the nondiscrete portion,” he says. Short thinks it’s a false economy to forgo a lawyer. “To me, the idea of conducting my own brain surgery or handling a complicated situation in an area you’re not trained in is a bad idea,” he says. Measures to minimize malpractice suits are advocated by proponents of unbundled services — which some lawyers say are old hat, if not under that name. Idaho lawyer Dwelle says the court assistance program has actually made providing unbundled services less risky. “Earlier I did worry about malpractice, but more than that I worried about my reputation within the small legal community,” Dwelle says. In Maricopa County, court officials note there have been no complaints filed against lawyers in relation to unbundled services in the seven years that the program has existed. While some states are playing catch-up to courts where self-help centers and pro se programs are in place, the more advanced states are tackling recommendations to ensure that lawyers are protected if they practice unbundled law. BAR SUPPORT Mary Viviano, director of legal services outreach for the State Bar of California, says the Bar approved a report last year in support of unbundled services. “The bottom line is that unbundling has been around a long time, but it’s becoming much more common.” The Bar is holding sessions to try to educate lawyers to ensure that they do it right — by making clear what the limits of representation and costs are up front. Meanwhile, the Bar has made recommendations for drafting new court rules on limited scope representation. But some courts have even bigger changes in mind. Maricopa County, one of the leaders in court-sponsored pro se programs, is looking at tackling the system which has made it difficult for pro se litigants in the first place. “I don’t want to diminish the fact that lawyers are a key ingredient in getting through the justice system,” says Griller, “but there will never be enough lawyers or enough courthouse facilitators. If we can make the information and forms and process easier to understand, simpler to navigate, people have a much better chance of doing this on their own.”

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