Promoting access to justice among self-represented litigants

In 2015, 93 of Illinois’ 102 counties reported that more than 50 percent of civil cases involved a self-represented litigant on at least one side.¹ Self-represented litigants face many challenges such as unfamiliarity with civil law and procedure. As a result of the growing number of self-represented litigants, the Illinois Supreme Court created The Illinois Supreme Court Commission on Access to Justice (ATJ Commission) in 2012. The propose of the ATJ Commission is to promote, facilitate and enhance equal access to justice, with an emphasis on access to Illinois civil courts and administrative agencies, for all people, particularly the poor and vulnerable.² To promote meaningful access to the courts, the ATJ Commission follows five guiding principles: plain language, process simplification, procedural fairness, equal access, and continuous improvement. The ATJ Commission has come up with ten initiatives to create action plans to carry out the principals.³ Many counties across the state have begun implementing these initiatives as a way to ensure that a person’s income is not determinative of their access to justice.

In criminal cases, indigent defendants are guaranteed representation as a matter of right. While in civil cases, indigent litigants are not offered that same right. Legal aid clinics and attorneys acting pro bono, assist the court in helping provide representation to indigent clients in civil matters. However, they are not equipped or funded sufficiently to single handily address the growing concerns about access to justice in Illinois. Another unique problem facing litigant in civil matters is the litigants who live just above the Federal Poverty Level are unlikely to qualify for legal aid or pro bon services. Those living just above the Federal Poverty level do not qualify for free services because they earn too much, yet they often rarely have the financial resources available to them to hire private attorneys.⁴

The first principal guiding the ATJ Commission is plain language. Courts should help self-represented litigants (SRLs) have access to a wide variety of plain language resources. This is intended to help SRLs exercise and understand their civil rights and to reduce the barriers they encounter while using the court system. The first initiative is to create standardized forms, which must be accepted by all state courts in Illinois. These documents can be found at the Access to Justice website at: http://www.illinoiscourts.gov/CivilJustice/AccessToJustice.asp. Subcommittees are continually updating and translating the forms into different languages. The second initiative is to support and expand the use of court-based facilitators. Facilitators are usually non-lawyers who provide legal information and procedural guidance to SRLs. Ideally, a facilitator would be one whose sole responsibility is to assist SRLs. The final initiative under the first principal is to develop other court services and court websites that assist SLRs in the civil litigation process.⁵

The second principal is process simplification. Court procedures and policies should be streamlined and communicated in plain language to allow SLRs to be able to navigate the system while preserving substantive and procedural fairness and due process rights. The fourth initiative suggests that courts recommend policies which enable remote access to the court system, and to promote technologies that also enable remote interpreting services. Remote language interpreter services and remote access for those who are disabled or incarcerated can help increase access to the court system to groups that are underrepresented. Additionally, through technology legal aid and pro bono attorneys from more populated areas can remotely represent those in more underserved areas of the state. The fifth and final initiative under the process simplification principal is to research common court procedures and processes and recommend how to make them easier for SRLs to understand and comply with.⁶

The third principal is procedural fairness. SRLs should have access to a court system that serves as a neutral, accessible, transparent, non-biased, non-discriminatory forum in which they can seek and obtain a legal remedy. During the court process SRLs should be addressed with dignity, respect and professional courtesy by all court staff. The sixth and seventh initiatives, under the procedural fairness principal, are that guidelines and training programs should be developed for judges and court personnel who encounter significant numbers of SRLs. Both judges and circuit clerks have expressed the need for more training and resources to help them better serve the growing number of SRLs.⁷

The fourth principal is equal access. All litigants should have access to justice regardless of their socio-economic background, English proficiency, legal representation status, or other circumstances. The eighth initiative is language access resources and assistance services be developed by courts. Unfortunately, just being bilingual is not a sufficient qualification to be a court interpreter. Court interpreters need to understand the legalese and if they do not, it can cause incorrect evidence to be presented, and affect the reliability of testimony, and mislead judges, attorneys, or juries. The ninth initiative is to work with bar associations and other community groups to identify, develop, and promote the implementation of court policies and rules that promote legal representation, including limited scope representation. Increasing the use of limited scope representation can help SRLs obtain counsel for a portion of their case, and allow for attorneys to exit without having to follow the process of withdrawing from a case as you would with a general appearance. The final initiative is to develop community-based programing to help build trust in the court system through education about access to justice resources that are available. The ATJ Commission should take an active role in facilitating outreach activities that reach marginalized communities.⁸

The final principal is continuous improvement principle. The ATJ Commission should continually evaluate and reflect on its works to make sure that the initiatives are being carried out in an effective way.⁹

The 19th judicial circuit court, Lake County has begun to implement some of the ATJ Commission’s initiatives. Currently, the home page on the court’s website features quick links for court forms and the Center for Self-Representation.¹⁰ The Center for Self-Representation is in the law library of the main courthouse and is often staffed by members of the JusticeCorps. There SRLs can obtain standardized forms and ask questions regarding courtroom procedures. Also, the Probate Division provides additional assistance by offering a self-help desk on Fridays. The court forms page provides various forms for nine different types of civil and criminal matters. Each section provides standardized forms approved by the Illinois Supreme Court and other forms standardized by the Circuit Court of Lake County. Additionally, in the Clerk’s Office there are designated clerks to assist SRLs in e-filing cases, appearances, motions, and other forms.

The biggest undertaking Lake County has done to assist SRLs, has been the creation of a courtroom solely dedicated to SRLs in divorce and child custody matters. This courtroom was created in the Fall of 2018, in the Family Division. When a person, represented or unrepresented, files a divorce or child custody case in Lake County, it is automatically assigned to one of four judges. Then at the first court date, the judge determines if both parties are SRLs. If both parties are SRLs, the case gets reassigned to the SRLs room. If one party is represented by an attorney then the case remains with the Judge it was originally assigned. The hope is that by moving the SRL cases into one courtroom it will allow for the judge to have more time to explain the process to the SRLs, while still keeping the courtrooms’ call efficient. In the courtroom solely dedicated to SRLs, specific needs and issues that face SRLs, can be addressed by the judge without the pressure from attorneys in the room to get the call moving quicker.

As self-represented litigants continue to be a large part of civil matters attorneys, court clerks, court support staff, and judges need to be conscious of how they can help promote access to justice for all regardless of the litigants’ background. It is important that those involved professionally with the judicial system realize and know how to advocate for justice for self-represented litigants and not just paying clients.

Deanna Hoyt is an attorney practicing law at Schlesinger & Strauss.