According to the National Center for State Courts’ landscape studies of state court civil and family law disputes, nearly three out of four cases have at least one unrepresented party. And many have lawyerless litigants on both sides.
For years, state court systems have developed simpler ways for nonlawyers to access and navigate the court system on their own. User-friendly websites, information handouts, tutorials on court processes, easy-read forms and instructions, self-help centers, and court facilitators are commonplace.
These efforts, however, are for naught a new, yet-to-be-released study published by Georgetown Law (circa 2022) suggests once the lawyerless enter the hearing or trial process. The study was done by Anna E. Carpenter, University of Utah; Colleen Shanahan, Columbia Law; Jessica K. Steinberg, George Washington Law; and Alyx Mark, Wesleyan University. They noted that despite judicial training on handling self-represented cases differently, many jurists revert to their traditional adversarial oversight role and avoid explanations, use jargon, limit evidence, use leading questions to shape testimony, and rely heavily on petitions to drive information gathering. Widespread observations in various courts support these findings despite many judges’ statements to the contrary.
Why? Three dynamics appear to drive these counterintuitive results: (1) the formal structure of the civil justice system is fundamentally at odds with the needs of lawyerless litigants prompting judges to revert to their traditional roles; (2) case processing time pressures from court leaders and large, looming volumes of self-represented cases create counter pressures against operating in more procedurally relaxed ways; and (3) in protective order cases specifically, the imbalance among parties where petitioners receive significant court-based preparation help, cannot be rectified in the courtroom.
This 75-minute webinar, originally presented on October 28, 2021, examines problems and solutions court leaders should consider in establishing genuine procedural fairness in hearings and trials involving lawyerless litigants.
Among some of the issues probed are
- How can calendar pressures on judges be eased to foster actual procedural fairness?
- Are there ways court leaders can “balance” court assistance to both parties in protective order cases?
- What feedback mechanisms should be created for judges handling lawyerless calendars?
- Should state court leaders be rethinking civil court roles by providing more “upstream” alternatives?
- John Greacen, Principal, Greacen Associates, LLC (New Mexico)
- Hon. Mark Juhas, Family Division, Superior Court, Los Angeles County, CA (Los Angeles)