Chief Justice Chase Rogers has put the issue squarely and succinctly: pro se litigants "clog up the court system. Cases are delayed and lengthened, creating frustration for everybody… Litigants with lawyers are better represented in court, which makes this a significant access issue. Access to justice and to our courts simply should not be a privilege offered to some, but a basic right available to all."
Few would argue with our Chief Justice. The statistics are stark and compelling. Some 85 percent of Connecticut’s family cases have at least one self-represented party. Overall, in the five years between 2006 and 2011, the number of civil cases having at least one self-represented party has grown from 19 percent to 28 percent. There are no signs that this percentage growth will decrease. That this is a national trend is little comfort to Connecticut’s legal profession. In New York, a recent survey revealed that trial judges overwhelmingly believe that pro se litigants are unable to properly present facts as admissible evidence and, not surprisingly, that pro se litigants have a lack of knowledge about the law. There is little doubt that a similar survey of Connecticut’s judiciary would yield similar results.
It is not that the Judicial Branch isn’t trying. In 2011, Court Service Centers assisted 336,000 persons; nearly 80 percent were self-represented. However, while court personnel will provide forms, filing tips and deadlines, they are unable to provide legal advice. As one Judicial Branch administrator has deftly noted: "This is not a lay person’s world." Indeed, it is not. The line between providing permissible assistance, and forbidden advice, is far from clear. Nevertheless, the backlog of pro se family, foreclosure and small claims cases grows at the expense of the entire docket, the bar and the public.
Meaningful steps to reform are, as in any profession, difficult and slow. Our law firms, large, medium and small, are facing a decreasing client base. The obstacles facing recent law school graduates are well known. Some attorneys have openly voiced resentment toward the resources provided to self-represented parties as a threat to obtaining new business. Last year’s LegalZoom IPO launch ($120 million) has hardly escaped notice.
The Pro Bono Summit, organized last year by the Judicial Branch’s Pro Bono Committee, has triggered some promising initiatives, including:
• A proposal by the Judicial Branch to allow limited scope representation (LSR), including proposed changes to the Rules of Practice and Rules of Professional Conduct. A pilot program has been proposed by the Judicial Branch Rules Committee. If the proposal is adopted, attorneys will be permitted to withdraw from a limited appearance upon filing a Certificate of Completion.
• Robinson & Cole’s program to provide legal advice and representation to applicants for temporary restraining orders in dire domestic situations (R&C is working with the legal aid community and the Committee Against Domestic Violence on this project).
• Bingham McCutchen’s participation in the Hartford Attorney for a Day Program, to assist unrepresented parties in foreclosure matters.
• Halloran & Sage’s support of the Thunderdome Family Clinic, where attorneys are trained to assist and represent pro se clients in family matters.
• Chief Justice’s "Legal Corps of Connecticut" program — based on the Teach for America Program — in which recently graduated law students will commit to two years of pro bono work with legal aid agencies.
Other initiative might include increased utilization of judge trial referees to mediate and facilitate family, foreclosure and small claims cases involving at least one unrepresented party.
We commend Chief Justice Rogers, Judge William Bright, the Judicial Branch’s Pro Bono Committee and those law firms and individual lawyers who have devoted time and effort to beginning the daunting challenge of improving the quality of legal services for all of our citizens. As the Chief Justice has clearly stated: "we do not have the option of doing nothing."