The Pro Se Revolution

Cases involving at least one self-represented litigant are making up most of the civil docket outside Cook County. What does this mean for courts and lawyers in Illinois?

It's not unusual to hear judges and lawyers - mostly judges - talk about how many pro se litigants they encounter these days. And the eye-popping statistics more than bear out the anecdotal evidence.

Data from the Administrative Office of the Illinois Courts ("AOIC") show that in 2015, nearly two-thirds of total civil cases outside Cook County - 65.2 percent - had at least one self-represented litigant. For certain types of cases, this figure rises as high as 80 percent. In addition, the court system is facing the facts that one out of five Illinois residents speaks a language other than English at home according to U.S. Census data, the number of Illinois residents below the poverty line has grown, and the number of pro bono attorneys has not kept pace.

"People are self-represented for a whole host of reasons," says Danielle Hirsch, assistant director of the AOIC's Civil Justice Division. "Some can't afford representation, some don't know where to find it, and some are do-it-yourselfers who want the sport of trying it on their own. It would be hard to treat them as a monolith." Hirsch adds that in practice areas like small claims or family, "the default is self-representation." And defendants overall are about two-thirds pro se, she says.

This deluge causes problems for the court system and everyone involved - judges, bailiffs, even opposing counsel - if self-represented people are simply left to sink or swim, leading to confusion and delays. To confront this reality, the Illinois Supreme Court in 2012 created the Commission on Access to Justice ("ATJ"), which has taken steps like developing standardized forms, assisting those with language barriers, and training and guiding court personnel.

"It impacts the practicing bar by complicating whatever the matter is," says Jennifer Nijman, an ATJ Commission member and environmental attorney with Nijman Franzetti, who has faced pro se litigants while doing pro bono work in areas like traffic, family, and municipal court. "It creates problems because of pro se litigants' inability to present their arguments accurately to the court. It puts a large wrench into the system as it's supposed to operate.… Everything takes twice as much time. Everything has to be explained."

Strategic planning

The need to address self-representation was obvious even when the ATJ Commission was founded in 2012, and the more recent numbers have only underscored that need, says Illinois Appellate Court Justice Mary Rochford of Chicago, who chairs the commission. "We have been working very hard on certain projects and wish to continue and strengthen them," she says. "But obviously the great increase [in pro se], more than one ever expected, has caused us to reevaluate."

To that end, the ATJ Commission drafted a three-year strategic plan approved by the Illinois Supreme Court in May (it's online at http://bit.ly/2u3MVtU). The document attempts to answer questions like how to address the difficulties of self-represented litigants in complying with rules of civil procedure, discovery, and evidence; how to help them better understand terminology and legal jargon; and what processes and procedure could be simplified - or done remotely.

The commission, which has worked largely to help self-represented litigants as a matter of social justice, developed four principles from these questions along with ways of addressing them:

Plain language. The commission plans to develop and automate standardized, plain-language legal forms, support the continued and expanded use of court-based facilitators and navigators, and evaluate and make recommendations on self-help services already available through Illinois courts. (For more about the forms project, see LawPulse at page 15.)

Process simplification. The commission will evaluate and recommend processes to enable remote access to the court system while researching and making recommendations to simplify court procedures, possibly reducing the number of court visits necessary to complete a case.

Procedural fairness. The commission plans to develop guidelines and promote training opportunities for judges and other court personnel that will help them in dealing with self-represented and limited English proficient litigants.

Equal access. The commission will help ensure language access and assistance by recruiting and training interpreters, developing community-based programming to increase trust in the court system, and creating policies to promote legal representation - including limited scope representation - in partnership with bar associations and other organizations.

"A great deal of thought went into the strategic plan," Rochford says. "We're very proud of its basic principles. Under the leadership of the supreme court, we're going to strive to fulfill those principles. We work with a lot of partners, including the ISBA. …It's a wonderfully cooperative process, and we're looking forward to fulfilling this strategic plan."

Bridging the gap with limited scope representation

So what should the practicing bar do? Hirsch says the fourth and final principle promulgated by the ATJ Commission offers an excellent starting point, especially the point about limited scope representation.

For financially strapped clients, limited scope representation - wherein lawyers represent clients for only a portion of a case at a commensurately lower cost - could be the difference between going it alone or hiring an attorney. Proponents of limited scope representation have long hoped it would generate business for lawyers, help clients save money, and make pro se cases easier for judges to manage. (For a rich array of limited-scope resources, visit the ISBA's Practice HQ at www.isba.org/practicehq/limitedscoperepresentation.)

"That's an area the commission is deeply interested in promoting more aggressively in the next three years," Hirsch says. "We have wonderful rules that allow for limited scope, but to the best of our knowledge, they're not being used as much as they could or should be. We think they're an important tool."

The AOIC and the commission has partnered with the ISBA, the Chicago Bar Association, and the Madison County Bar association to explore issues around limited scope. "The commission does not want to eliminate lawyers from the process, but we also know the data [showing high levels of self-representation]" Hirsch says. "We're trying to work with the data we have, while also encouraging representation, knowing that money is a factor."

While there are a wide variety of reasons people choose to be self-represented, she adds, "My sense, anecdotally, is that very few people are self-represented because they want to be. As a bar, we haven't been able to crack limited scope in a way that's easy for people to find."

Rochford agrees that limited-scope representation is a key to helping people who would otherwise be completely self-represented for financial reasons. "Limited scope will help those who can afford some representation, if not full representation," she says. "We certainly think that some legal representation is better than having to face significant issues of home, and children, and other financial matters, without having touched base with an attorney."

The commission would prefer full representation as the optimal - and fairest - scenario, Rochford says. "But the realities of it are that people cannot afford legal representation for many reasons beyond our control, and often parts of our state do not have enough legal aid attorneys - and legal aid attorneys are facing their own economic issues," she says. "Our focus is on how we can help the self-represented litigant navigate the court system, and have a full opportunity to present their claims and defenses. We wish everybody could afford a lawyer, or there was some pro bono lawyer available."

Turning self-represented litigants into clients

Carolyn Clift, a retired attorney who spent most of her career with Health Care Services Corporation and also serves on the commission, says attorneys can win over some would-be pro se litigants by modeling themselves after doctors with good bedside manner.

"It would help in communicating with potential clients to demystify, a little bit, the court system and try to build that rapport with clients, just speaking in plain English," she says. "Sometimes we attorneys want to go through the elements of the case and talk about the legalese piece of it, as opposed to talking about it in more of an educational, informational sense - so that clients can understand working with somebody who is a team member and on their side."

That level of communication can lead to a conversation about fee-reducing arrangements like limited-scope representation, Clift says. "That's a segue," she says. "[You tell the prospective client,] 'There may be financial issues that we can work through so that I can do this work for you. Perhaps you make [some of] the court appearances.' Or however it is they want to [help] determine how the attorney and the client can work together."

But attorneys don't necessarily think about limited scope, which should be emphasized more in law schools and in continuing legal education, Clift believes. "When attorneys speak to clients, they're immediately thinking about how they can take the case from beginning to end, and not thinking about how they can segment," she says. "Somehow that mindset has to evolve. There needs to be more emphasis on [limited scope]."

As lawyers build relationships within their local communities, they gain referrals from community service organizations and other sources, Clift notes. "That may be another thing lawyers can do in response to the impact that pro se litigants are having on the practicing bar - just working harder to build those relationships with churches and medical facilities and other organizations," she says. "Those places may make referrals to attorneys that they know do limited-scope representation."

Nijman points to the Justice Entrepreneurs Project (JEP) at the Chicago Bar Foundation as an example of an innovative model to provide legal services to moderate- and middle-income people. JEP enables selected young lawyers to create a practice akin to what small-town storefront lawyers traditionally have done, Nijman says. The program trains those attorneys to handle matters like orders of protection as well as the business aspects of setting up a solo practice.

Rochford figures that bar associations and other legal entities could set up vehicles by which those who could afford limited scope but not full representation could locate attorneys willing to provide it. "Just as it's important for the court to examine the changing landscape of who's coming to our courthouses, lawyers should be aware that there is this greater influx of self-represented litigants, who aren't necessarily choosing to be in that position but unfortunately they can't afford lawyers," she says.

Facing off against the self-represented

What about cases where the self-represented litigant is across the courtroom from you? Rochford notes that attorneys are under ethical obligations no matter who is on the other side.

"We don't doubt that lawyers will follow those same obligations when they deal with self-represented litigants," she says. "I know that it will perhaps be more frustrating or time-consuming because there's not a lawyer on the other side. But I obviously would encourage patience and fair-dealing, as they would if the person were represented by an attorney."

In striving for that patience, Rochford adds, attorneys need to remind themselves that most pro se litigants are not in that position because they want to be. "They're not looking to delay things, or frustrate the system, they just have no other choice," she says.

Attorneys facing a pro se litigant need to strike a delicate balance, Nijman says. "Some people are going to know more than others," she says. "As a general matter, you have to ensure that you're not taking unfair advantage of the situation. But you have to draw the line somewhere. It's not your job to make their case for them, either." Indeed, you have a duty to zealously represent your own client.

However, she adds, "You can provide basic assistance without making their case for them. It can be as simple as, 'Hey, there's a person downstairs who could show you how to do that.'"

Hirsch agrees that lawyers are obligated under ethical canons no matter who they're facing. "Pro se litigants aren't a monolith," she says. "How the lawyer should handle that litigant can vary. The commission is working on tools like standardized forms and other resources that we hope will make it easier for pro se litigants - which makes it easier for all involved."

Clift says attorneys facing pro se litigants need to get beyond any snarkiness and show respect for their adversaries. "These individuals also deserve access to justice, and they should be allowed to participate in their representation, regardless of the fact that they're representing themselves," she says. "You just have to be a little more patient and treat them fairly.

"Sometimes there's this implicit bias against pro se litigants," Clift adds. "You want to overcome that, and just sort of know that this is a right that they've decided to exercise, and it doesn't put them in any box that would make them a lesser person."

Ed Finkel is an Evanston-based freelance writer.
edfinkel@earthlink.net