Litigants become their own lawyers

Recession forces more to act as own lawyer

Observers warn that courtrooms aren’t made for amateurs

By John Keilman

Tribune reporter

August 5, 2009

Georgetown Journal of International Law
Spring, 2009

SELF-REPRESENTATION IN THE INTERNATIONAL ARENA: REMOVING A FALSE RIGHT OF SPECTACLE
40 Georgetown Journal of International Law 919 (2009)
Eugene Cerruti

Recent historical scholarship has demonstrated that the practice of self-representation at common law was developed and promoted not to secure a valued right to the accused but rather to compromise the defendant’s ability to present an effective defense–by denying him an effective right to be represented by counsel. The Supreme Court in Faretta v. California stood this history on its head in order to read into the Sixth Amendment an implied right to self-representation equal to the now preeminent right to counsel. The Faretta doctrine was carelessly adopted yet has been resolutely defended by the Supreme Court, to the almost universal chagrin of those most directly affected by its commands. The recent Supreme Court case of Indiana v. Edwards is only a modest retreat from the pointless imposition on the lower courts of a structurally and normatively incompatible right within the context of the contemporary counsel-driven system of criminal justice.

A putative right to self-representation silently entered international law via a back door at Nuremberg as a result of that tribunal’s near-wholesale adoption of the apparent rights and protocols of the common law adversarial system. It was subsequently adopted in the International Covenant on Civil and Political Rights as one of the standard “rights of the accused” but never actually put into effect in international law until the creation of the various war crimes tribunals of the last two decades. The right to self-representation has almost immediately replicated its experience in American law by creating a shameful series of disreputable prosecutions. It has become another example of a feature of the adversarial system, like that of the lay jury, which does not travel well–or at all–to the international arena. The structural and normative groundings of the international system make the right even more inapposite there than it now is in the common law system. This article calls on the International Criminal Court, the new standard-bearer of international criminal justice, to take advantage of the upcoming seven-year review of its rules and procedures to strike from its Articles a practice that has been reduced to little more than a perverse right of spectacle.

DIY bankruptcy — with a little help from the state

By Eileen Ambrose

July 26, 2009

Many financial matters you can easily do on your own without professional help.

Filing for bankruptcy isn’t one of them.

But if you choose to do so, you’re no longer totally left on your own in Maryland to navigate the intricacies of bankruptcy. Thanks to a new Debtors Assistance Project, do-it-yourselfers can get a half-hour of free legal advice from a lawyer, who can answer questions or check paperwork.

“It’s not going to solve everybody’s problem on that day. That’s not what it’s designed to do,” says Jeff Sirody, a Pikesville lawyer who volunteers with the project. “It’s designed to give people an opportunity to speak with an attorney. Is there any easy solution? If not, what’s the next step? Where should they go to get help?”

The need for the program grew out of changes to the bankruptcy law in 2005. Congress made it more difficult for people to erase debts, piling on new requirements and paperwork. Lawyers raised their fees because of the extra work. And many courts across the country started seeing a rise in so-called pro se litigants, or debtors who file on their own often because they can’t afford a lawyer.

Pro se cases tend to take more time as court staffers try to steer novice litigants through the complicated process. Judges, too, have their hands tied when they come across a struggling pro se filer because they are supposed to be neutral and not give legal advice, says Chief Judge Duncan W. Keir of the bankruptcy court in Baltimore.

The big risk is for debtors. “They lose rights, privileges and property that they otherwise could protect and preserve if they had legal counsel,” said Mark Sammons, clerk of the court in Baltimore. Worse, pro se filers’ mistakes could cause their case to be dismissed.

Nationally, the number of pro se cases accounted for 6.5 percent of all bankruptcies filed in the 12 months ended March 31. During that same time, Maryland reported 1,889 pro se cases, making up nearly 10 percent of its bankruptcies.

Most of Maryland’s pro se filers seek relief under Chapter 13, a more complex filing where debtors repay all or some of their debt over several years. Last year, nearly one out of five Chapter 13 bankruptcies in Maryland was from do-it-yourself filers.

A year ago, the bankruptcy court in Maryland started looking at what programs were available here and around the country to help pro se litigants, particularly Chapter 13 cases where filers have more to lose if they make a mistake.

“Those were the cases that people were trying to save their houses,” says Bankruptcy Judge Robert A. Gordon.

Low-income debtors filing under Chapter 7, or liquidation, can qualify for free – pro bono – legal representation through long-running programs by Legal Aid or the Maryland Volunteer Lawyer Service. But there wasn’t much available for those wanting to file under Chapter 13 or earned a little too much to qualify for pro bono programs, says Jessica Vollmer, the court’s pro bono coordinator.

The result was the Debtors Assistance Project, a clinic on the eighth floor of the federal courthouse in Baltimore. The clinic opened in March in Baltimore, and another was launched last month in Greenbelt.

The clinics are open to any pro se litigants, no matter their income. They operate from 10 a.m. to 2 p.m. Thursdays in Greenbelt and usually on Mondays in Baltimore. To make an appointment, call 410-962-3813.

Lawyers volunteer for two-hour sessions, spending a half-hour with each debtor. “Usually, 30 minutes is more than enough time for those attorneys to give [debtors] an idea of what they are getting themselves into, whether bankruptcy is right for them, what chapter they should be filing and to help us get them the resources if they think they can’t do it by themselves,” Vollmer says.

The court has created a list of lawyers who agree to reduce their fees for debtors who earn too much for free legal representation but still not enough to hire a lawyer. The amount of the discount is up to each lawyer.

Eric Walker of Edgewood had about $40,000 in debt and creditors hounding him when he decided to file for relief under Chapter 7.

He called around to find an affordable lawyer with little luck. The least expensive attorney would charge $1,200, including the filing fee – money he didn’t have. The 30-year-old called the bankruptcy court about his plight and was told of the Debtors Assistance Project. He met with a lawyer last month.

“She had patience. I’m new to it. She had a lot of knowledge,” says Walker, a customer account representative at a rental store. The lawyer gave him information that he says he would never have been able to find on his own.

He wishes, though, that the program offered longer sessions. “You have to cram a lot of stuff in a half-hour,” he says.

Pikesville lawyer Sirody has volunteered twice so far. “Invariably in every pro se case mistakes are made. There is so much involved,” he says.

In one case, a woman came in wanting to file under Chapter 7, unaware that if she did so, her house would be quickly sold off by the trustee to repay creditors. As it turns out, she decided not to file for bankruptcy at all.

And one man came in with papers from the court, which showed he failed to undergo the required credit counseling before filing. His case was dismissed. The man will be able to file again, although he’ll need to take an additional step as a repeat filer if he wants to keep creditors at bay for more than one month. Sirody told him how to do it.

Join Eileen for an online chat on bankruptcy at noon Tuesday on the Consuming Interests blog. She and bankruptcy attorney Jeff Sirody will answer your questions. You can submit your questions in advance to  http://blogs.law.harvard.edu/shlep/?p=710 Reprinted with the permission of the Missouri Lawyer’s Weekly:

Missouri Lawyers Weekly Copyright 2009 Dolan Media Newswires
July 17, 2009

Who’s using Missouri’s pro se divorce forms ? Most litigants have children, never called a lawyer.

Allison Retka
The litigants without lawyers stroll into the clerk’s office in tiny Dade County, plunk down thick packets of divorce forms and ask, “What in the world am I supposed to do with this?”

It’s a question Dade County Circuit Clerk Brenda Adams hears more each week, as pro se litigants trickle into her office in Greenfield, near Springfield. The litigants throw up their hands and ask for help, but there’s not much Adams and her clerks can do.

“We don’t have a law degree,” she said. “We’re sticking our necks out and helping them file these, and I don’t think we’re probably supposed to be doing that.”

Six months after the Missouri Supreme Court formally approved a set of do-it-yourself divorce forms, circuit clerks report mixed reactions about adjusting to new procedures for the state’s pro se population.

As to how big that population is, no known statewide statistics were available. But in St. Louis County Circuit Court, where do-it-yourself divorce forms have been available for years, pro se litigants filed 23 percent of the petitions for dissolution of marriage handled by the court last year.

Some clerks in outstate circuits, like Adams, still struggle with confused litigants touting incomplete forms who grow angry when clerks can’t answer their questions. Others maintain things are running smoothly.

And thanks to a survey more than 3,000 potential pro se litigants have completed since July 2008, a picture of a typical pro se litigant in Missouri emerges. She’s high school educated, makes less than $11,000, has kids and has been married less than five years. She never contacted a lawyer about her divorce because she thinks it’s too expensive to hire one.

But college graduates who make more than $50,000 also downloaded the forms. Twenty people with doctorate degrees surfed through the state’s Web site for self-represented litigants. St. Louis County Associate Circuit Judge Dennis Smith has turned away divorcing pro se litigants trying to divvy up millions of dollars in property.

“I told them to get lawyers,” Smith said.

Solo and small firm attorneys initially protested the expansion of court resources for pro se litigants, citing concerns that it would cut into their business. Others feared the litigants would harm themselves by filling out the forms incorrectly.

To Karl Timmerman, a solo attorney in Holden, the statistics about potential pro se litigants confirm both fears. Timmerman reviewed a set of data prepared by the Office of State Courts Administrators about the people looking at divorce forms at www.selfrepresent.mo.gov. Some of the figures stunned him, he said.

A majority of the people considering self-representation had children. Nearly half were married more than five years, which is more than enough time to accumulate marital property, he said. Half the survey respondents make $20,000 a year or more, which in many cases is more than enough money to hire a lawyer, he said.

“These are our clients,” Timmerman said. “What the data shows is you have upper-middle-class folks deciding, after not talking to a lawyer, that they’re going ahead and representing themselves in cases that involve children. I think that’s alarming.”

Liberty attorney Susan Long reviewed the figures and said she was shocked that 42 percent of pro se litigants reported the divorce forms were easy to use.

“They think they can handle it themselves,” said Long, a family attorney with Blessing & Long. “I don’t think they understand the complexity involved in dividing retirement or the documents necessary to transfer real estate.”

Mary Lou Martin, a Springfield attorney who heads up the Solo & Small Firm Practice Committee, said there’s the possibility wealthier people are using the forms to avoid having to pay an attorney. Some financial planners are telling clients about the do-it-yourself divorce forms, she said.

It’s also possible people are using the forms to set up advantageous post-divorce arrangements away from the prying eyes of lawyers, she said.

“If one spouse can negotiate their own agreement with a spouse, neither spouse has an attorney overseeing whether that’s a fair agreement or distribution of property,” Martin said.

Smith said he’s had to be vigilant about people trying to sneak “sweetheart deals” into divorce judgments. One man divorcing his wife of 40 years had a substantial pension that he should split with his wife. Instead he offered her just $2,000 a month in maintenance, Smith said.

“Some judges look at these less closely,” he said. “If you have a courtroom full of people, things can still slip through.”

Like court clerks, judges also are facing questions from confused pro se litigants looking for advice.

Leading up to the Solo and Small Firm Conference in the Ozarks, Martin’s secretary conducted an informal survey of every county in the state, asking if the courts have encountered problems with pro se litigants. Clerks in Knox and Worth counties said courtrooms can get tense as judges try to assist pro se litigants without offering them legal advice.

“Most of them want me to help them fill out the forms,” said Associate Circuit Judge David Munton, who serves the 28th Circuit. “I tell them I can’t do that. They want someone at the courthouse to do it for them and not charge them anything.”

Munton said he’s turned away litigants who failed to properly fill out their paperwork. In Martin’s survey, Dallas County reported its judges rejected the forms offered by nine out of 10 pro se litigants for the same reason.

“Anytime you’re dealing with a pro se litigant, it gets time-consuming,” said Jim Gibbons, circuit clerk in Knox County, in northeastern Missouri. He said a pro se litigant with a small claims case takes up more time and resources than a full-blown circuit court case.

Couples with few assets and no children use the forms just fine, he said. But when people with more complicated cases stride up to his desk, Gibbons issues his standard response.

“I left my magic wand and magical dust at home; you probably need to do some research,” he said.

In Holt County, in the northwestern corner of the state, Circuit Clerk Vicki Book declared the pro se forms a success.

“I’m thrilled so far,” she said. “I did not think it would work that well.”

Book sends anyone struggling with the forms to Mitzi Alspaugh, one of the two attorneys with offices in Holt County. Alspaugh said in Holt County and Jackson County, where she also practices, pro se litigants seem competent and professional in front of judges.

Smith, the St. Louis County judge, has dealt with more problematic litigants. He’s handled divorce forms scribbled on in pencil or covered with food stains. Litigants have misspelled the county they live in or neglected to mention children they had with other women.

“Probably 30 percent have something wrong,” he said of the forms submitted to him.

Smith heard a recent pro se case from a woman who had five children with five different men during her marriage.

The judge also has heard cases from pro se litigants who paid for the state’s free divorce forms, handing over between $25 and $300 for the papers. It’s upsetting that already poor people are forking over money for free forms, but the documents aren’t copyrighted, Smith said.

“We can’t stop them,” he said.

The pro se forms are a work in progress, said Allan Stewart, a St. Louis attorney and member of the Supreme Court Committee for Access to Family Courts, which created the forms. The committee is completing work on an educational DVD that will be issued to every circuit clerk’s office. The film shows litigants where to find the pro se forms and repeats a message repeated on the court’s Web site: It’s best to hire a lawyer.

“It’s our standard mantra,” Smith said. “People should not be representing themselves. That’s a bad idea. But you have the right to do it. If you do it yourself, these are the forms you have to use.”

]]> http://blogs.law.harvard.edu/shlep/2009/07/22/whos-using-missouris-pro-se-divorce-forms/feed/ 0 http://creativecommons.org/licenses/by-sa/3.0/ http://blogs.law.harvard.edu/shlep/2009/07/22/self-help-center-consultant-wanted/ http://blogs.law.harvard.edu/shlep/2009/07/22/self-help-center-consultant-wanted/#comments Wed, 22 Jul 2009 21:00:24 +0000 TerryConaway http://blogs.law.harvard.edu/shlep/?p=708 LAW LIBRARY/SELF HELP CENTER CONSULTANT

The Second Judicial District Court of Nevada, in consultation with Washoe County government, is soliciting bids for a consultant to study and provide recommendations concerning the Law Library and the pro per Self Help Center.

Preface

As of July 1, 2009, the Second Judicial District Court (“Court”) assumed the responsibility for the finding and operation of the existing Washoe County Law Library (“Library”). The Court wants to consolidate its operation of a pro per Self Help Center (“SHC”) with the Library into a unified approach to legal information and access that will be designed and oriented toward future demands for the next ten to fifteen years.

Outline of Work

In order to provide the product and advice desired, the following tasks are anticipated with anticipated site visits occurring no later than August 15, 2009.

1) Inventory of current assets of Library and SHC, including personnel,

collected fees and collections.

2) Inventory of current services and public service events delivered

by Library and SHC.

3) Needs assessment from significant parties both “inside” and “outside” the current system.

4) Trends research as to futures of both libraries and pro per service delivery models.

5) Delivery and presentation of final report.

Contact:

In responding to this document, please include curriculum vitae and estimate on costs and/or proposed budget, and fees to accomplish this work.

All questions and correspondence shall be directed to the Court Administrator by July 31, 2009.

Howard W. Conyers

Court Administrator

P.O. Box 30083

Reno, NV 89520-3083

(775) 328-3119

(775) 328-3206 – fax

]]> http://blogs.law.harvard.edu/shlep/2009/07/22/self-help-center-consultant-wanted/feed/ 0 http://creativecommons.org/licenses/by-sa/3.0/ http://blogs.law.harvard.edu/shlep/2009/07/21/lawyer-in-the-library-program-in-vallejo-ca/ http://blogs.law.harvard.edu/shlep/2009/07/21/lawyer-in-the-library-program-in-vallejo-ca/#comments Tue, 21 Jul 2009 15:49:09 +0000 TerryConaway http://blogs.law.harvard.edu/shlep/?p=701 Article from the Vallejo Times-Herald describes the popular “Lawyer in the Library” program to help patrons handle their own legal problems:

The legal system is a baffling process for most, even before they walk through the front courthouse doors.For those with limited finances, resources can be thin locally — which is why attorneys here and nationally have tried to fill the gap between government-funded, legal-aid programs and those in need.

“Legal aid in this country has been emaciated,” Solano County Superior Court Judge Paul Beeman said. “If they don’t have legal aid and they don’t have money, they’re going to lose. It’s a terrible thing when you think about all the wealth and resources in this nation.”

In Vallejo, the Lawyer in the Library program, started by former Vallejo librarian Michael Senturia with help from Beeman, has provided free one-time legal advice and referrals for the past 13 years.

“Everybody thought it was a good idea from the beginning, but once it got started, it knocked your socks off because peoplemassively appreciated the help,” Beeman said. “For most lawyers, it was real simple advice that gave direction … and they were genuinely appreciative.”

The service, offered at the John F. Kennedy Library, is in high demand. At least 25 residents often settle into chairs lining a library lobby at least an hour before the twice-monthly events — and that’s just in hopes of signing up.

Vallejo resident Tom Boruta said at one session, he was surprised to learn he would have only up to 20 minutes with an attorney.

“What I want him to explain, there’s no way

---

he can do it in 20 minutes,” Boruta said.Nearby, Jaime Valle was a third-time visitor to the program. He said his questions had previously taken about 12 minutes to answer. Valle added that he could not imagine how much an attorney would charge for the same service.

The local program’s attorneys are often hit with questions that run the gamut of legal specialties, said Nancy Atkins, the reference librarian who now leads the program. She said she tells participants that the attorneys are only theirs for the length of the appointment.

“We are a beginning for people who need legal services … It does happen that problems are solved,” Atkins said.

Vallejo criminal law attorney Amy Morton said she volunteered regularly for the program until about four years ago.

“The bureaucracy is really hard, and they don’t know who to turn to,” Morton said. “I can’t even imagine what the lines must look like now.”

Morton said one difficulty for her was answering civil law-related questions, like landlord/tenant disputes, disability issues and divorce law — specialties she does not practice.

“I’m not trying to pass the buck, but if more civil attorneys in the area would donate one day every six months, it would help out tremendously,” Morton said.

The Vallejo office of federally funded Legal Services of Northern California serves as the more in-depth version of Lawyer in the Library. That office is restricted in whom it serves and for what issues, and is staffed by only two full-time attorneys for the entire county, Managing Attorney Bob Stalker said.

Stalker said the number of eligible applicants have increased in the past year, as local unemployment and foreclosure rates have risen. Attorneys’ pro bono work and the Lawyer in the Library program help — but are only a “drop in the bucket” compared to the need, he said.

“A lot of times, the majority of people that need legal assistance are just not going to get help,” Stalker said. “A lot of what our office does is give advice, resource material, self-help material. It’s really kind of a triage approach — we’re like a legal emergency room.”

Contact staff writer Jessica A. York at (707) 553-6834 or  http://blogs.law.harvard.edu/shlep/?p=699 The article in the Connecticut Law Tribune is password protected, but here’s the relevant part:

‘In light of Edwards, it is clear… that we are free to adopt for mentally ill or mentally incapacitated defendants who wish to represent themselves at trial a competency standard that differs from the standard for determining whether such a defendant is competent to stand trial,’ wrote Justice Richard N. Palmer, for the unanimous Connecticut Supreme Court.

‘We do not believe that a mentally ill or mentally incapacitated defendant who is competent to stand trial necessarily is also competent to represent himself at that trial,’ concluded Palmer.
Senior Assistant State’s Attorney Denise B. Smoker said it will be interesting to see how the trial courts apply the new standard adopted by the state Supreme Court. She explained that the new standard essentially allows judges to consider whether the defendant is competent enough to perform the skills needed to defend themselves, including composing questions for voir dire and witnesses.

The case will be reported in the Atlantic Reporter but doesn’t have a cite yet.  The Westlaw cite is 2009 WL 1941780.

]]> http://blogs.law.harvard.edu/shlep/2009/07/14/connecticut-supreme-court-narrows-mentally-ill-criminal-defendants-right-to-self-representation/feed/ 0 http://creativecommons.org/licenses/by-sa/3.0/ http://blogs.law.harvard.edu/shlep/2009/07/13/state-bankruptcy-self-help-websites/ http://blogs.law.harvard.edu/shlep/2009/07/13/state-bankruptcy-self-help-websites/#comments Mon, 13 Jul 2009 18:00:57 +0000 TerryConaway http://blogs.law.harvard.edu/shlep/?p=695 My plan was to compile a collection of self-help bankruptcy sites from each state.  I realized that I would never have time to do all of the states at one time, which would mean I’d never get the thing done.  So, I’m going to do five states at a time and post them here.  When I’m finished, I’ll polish it up and create a page for it.

Keep in mind that bankruptcy is a federal matter so you don’t have to limit yourself to sites specific to your own state to get information.  You might find very helpful explanatory information on a site intended for another state.  However, if there is a site that provides forms for your state, you should probably use those unless you’re prepared to adjust them for your state.

If I miss any good sites, please let me know.  Meanwhile, here are the first five.

Alabama

Bankruptcy Court, Northern District of Alabama

Alaska

Alaskalawhelp.org

Bankruptcy Court, District of Alaska

Arizona

Bankruptcy Court, District of Arizona

Arkansas

Legalconsumer.com

California

Bankruptcy Court, Northern District of California

]]> http://blogs.law.harvard.edu/shlep/2009/07/13/state-bankruptcy-self-help-websites/feed/ 1 http://creativecommons.org/licenses/by-sa/3.0/ http://blogs.law.harvard.edu/shlep/2009/07/08/pro-se-bankruptcies-drain-court-resources/ http://blogs.law.harvard.edu/shlep/2009/07/08/pro-se-bankruptcies-drain-court-resources/#comments Wed, 08 Jul 2009 15:33:04 +0000 TerryConaway http://blogs.law.harvard.edu/shlep/?p=693 And another news item from the Wisconsin Law Journal:

As recession-related bankruptcy filings rise, courts are dealing not only with larger caseloads but also more time-consuming case filings. An increase in pro se litigants leads to a bigger drain on court resources, as well as bigger challenges for trustees.

Since the economic crisis began, Andrew N. Herbach has seen a steady increase in traffic at the Pro Se Help Desk for the U.S. Bankruptcy Court for the Eastern District of Wisconsin in Milwaukee.

“We’re overwhelmed right now. It used to be that we’d get seven people that came in, and now it’s double-plus every week,” said Herbach, who practices with Howard Solochek & Weber SC in Milwaukee. Herbach was involved in developing the help desk in response to a request from a bankruptcy judge.

Filings are up around the state, although not quite as much as in the Milwaukee area, where records show a 30-percent increase in Eastern District Court bankruptcy filings from last year.

Follow the link for the whole story.

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