shlep: the Self-Help Law ExPress

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.

From the Wisconsin Law Journal:

Pro se bankruptcy filers may be a drain on court resources, but judges won’t be trying to mitigate the problem by appointing attorneys to represent them.

A June 24 opinion by U.S. Bankruptcy Chief Judge Margaret Dee McGarity denied a debtor’s request for appointment of counsel pursuant to 28 U.S.C. 1915 (e)(1).

While some of the court’s reasoning is limited to the particular debtor, most of it would apply to all pro se debtors.

Follow the link for the whole story.

Interesting article here about the advisability of representing yourself when attempting to get a loan modification and avoid disclosure.  Admittedly, the author is in the loan modification business, but that doesn’t  negate what he has to say about the difficulty of the process.

For example:

The banks want you to work on the loan modification by yourself, so they can avoid dealing with a professional who knows the game. By all means, feel free to have a go at it if you wish. The truth is you are very likely to have a frustrating and unproductive experience. Look, banks lose money when they modify a loan—a lot of money. You just cannot expect them to make that process easy for you. What is going to happen is that the bank⁶ will “lose” your faxes, make you wait hours on the phone, require copious documentation, etc. And, ultimately, if you do not know the parameters and other criteria the bank is looking for, your request will either be denied or the bank will offer a modification that does not provide any real relief. In that case, you will have wasted a great deal of time and energy, you will still be vulnerable to losing the home and, worse still, you may have made it impossible for a professional to go behind you and clean up the mess.

I’m very excited to announce the addition of four new contributors to SHLEP:

Sharon Blackburn, Head of Faculty Services,

Texas Tech University School of Law

Amy Hale-Janeke, Head of Reference Services, 5th Circuit Court of Appeals Library

William Ketchum, Reference  & Faculty Services Librarian,

University of La Verne College of Law

Deborah Schander, Reference & Electronic Services Librarian,

University of La Verne College of Law

I have a few more people I’m waiting to hear from.

Here are some suggestions on how to make your trip to the law library for effective and more efficient.

Bring the paperwork with you.

Patrons often come to the library to seek help because they’ve been sued or charged with a crime.  When a statute is involved, we really need to know what statute in order to help you.  Even if no statute is involved, we need to know what the cause of action is.  If you have paperwork, bring it with you.  We won’t read every word but it will help if we see precisely what statute or issue is involved.

Spare us the intimate details.

Please don’t launch into a detailed story about what someone did to you and why they did it.  Just give us the gist of the matter and if we need more information, we’ll ask for it.  This is partly to save time but it is also because people tell us some pretty intimate things that we don’t need to know in order to help.  I really don’t want to know more about your personal life than I do about my best friend’s!

For example, just tell me that your ex-wife won’t let you see your kids and you want to know what to do about it.  I don’t need to know all the details about what a horrible mother your ex-wife is and how nasty her new boyfriend is, and how your ex-mother-in-law hates you.

Also, please try to stay calm while relating your problem.  We know these issues can be emotional, but remember that we didn’t have anything to do with the creation of your problem.  If you start getting angry or agitated, we will take a step further into professional detachment and probably be less effective in helping you.  If you really go over the top, we will have to call for security.

Understand that we can’t give legal advice, even if we’re lawyers.

I’m licensed in Maryland and Tennessee, but I work as an academic law librarian in California.  I didn’t study California law in my Pennsylvania law school, and I’ve never even taken the California bar, let alone passed it.  I haven’t practiced since 1988 and unless you’re dealing with a construction law problem, a real estate development issue, or a matter involving a cable TV franchise contract, your issue is probably something I’ve never handled before.

Most law librarians probably have a history like mine.  Some have law degrees; some don’t.  Some who have law degrees took and passed a bar exam and were admitted to practice; others did not.  Some have experience in practice; some don’t.  Our expertise is legal research, not any particular area of the law of the state where we work.

When you ask us a question that we’re not permitted to answer, we will tell you, “I’m sorry, but I can’t give you legal advice.”  Your response should not be, “I don’t want legal advice; I just want to know X.”  Trust us, we’ve already evaluated your question, and to tell you X would require us to give legal advice.

We can’t tell you what the statute of limitations is for your matter.  We can show you how to use the resources so you can try to determine for yourself.  We can’t tell you whether the Americans with Disabilities Act applies to your situation.  We can get you the Act and help you find secondary sources that might enable you to answer your question.  We can’t tell you what document or pleading you need, or tell you which form to use.  We can’t tell you how to fill-out a form.

Realize that the court clerk isn’t always right.

Patrons frequently tell us that the court clerk’s office told them they could get forms at the law library.  That’s both true and not true.

Patrons usually think of a form as something like their tax return.  All they have to do is fill in the blanks.  Some libraries will have forms like this because they’ve been created by the state court system or some other organization such as legal aid.  There might be forms like this for some matters but not for others.  We usually won’t have copies of the forms you can take with you.  We might have a book with these forms and you can make photocopies.  If an outside organization has created forms and helpful information, we might have a packet you can take.  (I’m thinking of the useful “simple divorce” packets that we had at the University of Nebraska law library, but they were prepared by a task force that included legal aid and the state court system, if I remember correctly.)

More likely, what we have is “form books.”  These are books for lawyers which contain samples of language used in different types of documents.  Lawyers use them to piece together a completed document.  They have to determine which pieces to use and how to use them.  They’re not intended to be used blindly without adjustment.  They can get you started and give you a framework that you can work with.  I can’t help you pick out the pieces you need and revise them to fit your circumstances.

Please don’t get angry with us because the court clerk told you we would have something that we don’t.

Remember that you might not be our priority.

If you go to an academic law library (one that is part of a law school), please remember that our priority is our students and faculty.  We often teach, so we might have to leave for class and hand you off to another librarian if one is available.  We might have to leave your side while we help students.  We’ll give you as much time as we can, but our students, faculty, and preparing for classes are our priorities.

And lastly, some advice from the best law librarian I know, Sharon Blackburn at Texas Tech University School of Law:

Understand that it isn’t easy and it’s going to take some time.

Lawyers get college degrees and then spend three years in law school learning substantive and procedural law.  Don’t expect to master your problem in mere hours.

Sharon tells the story of a patron who wanted to research federal income tax laws regarding charitable giving.  And he wanted it all in 30 minutes!

Don’t wait until the day before your answer is due or the criminal trial is scheduled to come to the law library.  If you know what you’re doing, expect to spend hours, if not days, preparing.  If you don’t know what you’re doing, plan to spend weeks, if not months.

Thanks to the recent bursting of the housing bubble, we find that many of the pro se patrons who come to our library do so seeking help fighting foreclosure.

For Californians, one helpful document, A Self-Help Guide to Preventing Foreclosure, can be found here.  This document is provided by the California Senior Legal Hotline and Legal Services of Northern California.  LINK FIXED

The American Bar Association has published a page of useful links to Foreclosure Resources and Information.

The U.S. Department of Housing and Urban Development also provides a useful page of recourses entitled “Guide to Avoiding Foreclosure.”

I’m so sorry that Tammy and I allowed this wonderful blog to flounder for two years as we both got settled into our new jobs on the west coast. The good news is that I am ready to get re-involved and will be including my staff here in the Instruction and Research Services department at the University of La Verne College of Law in wonderful, sunny, downtown Ontario, California.

I will do my utmost to have a fresh, spanking new post for SHLEP by the end of this weekend, and will begin the process of freshening up. I hope we can bring this sleeping resource back online so that it can be as helpful as it once was.

And thanks to the wonderful people at the Harvard Law School who were working late and helped me remember how to log in!

Terry

At long last, Shlep is returning from its long hiatus.  As Terry and myself adjusted to new jobs, we ran into some difficulties balancing the time commitment of our new positions with the necessity of frequent, useful and accurate blog posts.  However, we are now ready to roll, and you can expect new posts in about two weeks and then regularly thereafter.  See you soon!

On July 6, the 9th Circuit held in United States v. Forrester that Mark Forrester did not knowingly waive his 6th amendment right to counsel where the trial court judge did not adequately explain the charges against Forrester or the possible penalties he faced.

According to the Metropolitan-News Enterprise,  Forrester had been charged with “conspiring to manufacture and distribute” Ecstasy.  A year into the case, Forrester filed a motion to defend himself.  From the Metropolitan-News:

At the hearing on his motion, U.S. District Judge Thomas J. Whelan of the Southern District of California repeatedly warned Forrester that defendants who represent themselves rarely succeed.

His remarks included the admonishment, “I want to unequivocally tell you and strongly recommend to you that you don’t do this. In most cases it’s a disaster.” He also told Forrester that “in all cases it is not a good idea for a nonlawyer to oppose a lawyer in a criminal trial.”

Though he did offer caveats, Whelan did not inform the defendant of the charge against him. He also told Forrester incorrectly that he faced a mandatory minimum sentence of ten years to life in prison when, in fact, he faced no minimum sentence and a maximum of 20 years behind bars.

After Forrester gave repeated assurances that he was “coherent,” “literate,” and aware of the consequences of self-representation, Whelan granted his motion to appear pro se at trial as well as at some of the post-trial proceedings.

At a follow-up hearing in March, the judge addressed various concerns pertaining to Forrester’s self-representation, but again did not talk about the charge against him. Nor did he correct his previous error about the potential sentence Forrester faced.

The Court noted the high burden placed on the government in waiver of counsel cases and found the fact that the trial judge did not specify the charges particularly damaging.  The Court also found it irrelevant that the trial judge had actually overstated the possible penalities that Forrester faced. 

I just discovered a wonderful self-help web-site, sponsored by the Council of California Law Librarians, called Your Public Law Library.  The site covers California in depth, but it also has information for other states.  The site includes information on self-help centers, guidance for legal research, including a mini-research class, and on-line reference services.

Best of all, the site is available in eight languages: English, Spanish, Italian, Portuguese, German, French, Japanese, and Korean.

The Montana Public Interest Law Blog had an interesting article recently on one of the trickiest rules of evidence: relevance.  The author was inspired to write the post because, as a new prosecutor in a small town, he often sees people losing minor court cases because they don’t understand the rules of evidence.  

The article is a great overview of the relevance rule, putting it in simple, easy-to-understand language while also deciphering some of its complexities.  The author writes only on the Federal Rules of Evidence, however.  As he points out, anyone going into the courtroom should make sure to check their state rules as well, because sometimes there are major differences. 

While trolling the news for useful information to post on shlep, I came across this blog post at Consumerist.com.  It advises people who are being pursued by debt collectors to make sure that the company who is trying to collect really owns the debt that it’s claiming the person owes.  They also point to this great article offering tips for people being sued by debt collecters over at Alabama Consumer Law Blog. 

I have heard about Consumerist before, but today was the first time I visited their web-site, and I highly recommend it.  They analyze new products, discuss the customer service of various companies, and as the above article indicates, offer useful tips for consumers who are dealing with various sorts of problems related to buying and selling.  It’s a great web-site for all things related to consumer rights.

A quick perusal of the archives showed pages dealing with debt collection, early termination fees, fraud, and identity theft, and much more.  You can also send them tips when a company treats you unfairly.  Check it out. 

An interesting issue arising in some custody battles in recent years is something called Parental Alienation Syndrome.  As described in this article, PAS is a not-yet-officially recognized “ailment,” inflicted upon children by custodial parents during and/or after divorce.  Basically, PAS occurs when the parent who has greater access to the child uses that access to negatively influence that child’s feelings about the other parent.

Although doctors and psychiatrists are in dispute about the validity of PAS, it is arising in custody cases more and more often.  Still, it can be difficult to prove PAS because the lack of official recognition makes it difficult or impossible to secure expert testimony on the subject. 

This is one of those areas where the law seems, to me, hopelessly out of touch with people’s day to day lives.   In order to get evidence of PAS admitted into court, it must be a scientific syndrome, described and analyzed in technical language and supported by empirical studies.  Yet ordinary people know that, whether or not it rises to the level of a syndrome, the concept of parental alienation exists.

Unfortunately for children of divorce, many parents are unable to control their anger at one another when their marriage fails.  Even more unfortunately, one parent may take out this anger by manipulating the child into blaming or disliking the other parent.  Does the court really need to see studies showing that this type of behavior is harmful to the parent-child relationship?   

At any rate, I thought this was a useful issue for shlep discussion because I suspect that pro se patrons who are dealing with child custody issues often worry about the influence the other parent is having on the child’s feelings.  It might be helpful to these people to learn more about PAS and its effects, even if they aren’t ultimately able to get everything into the courtroom.

The California Conference on Self-Represented Litigants has posted its conference materials, and there is a wealth of valuable information for self-help practitioners.  Topics covered include helping pro-se litigants with mental health problems, helping pro-se litigants with limited english-speaking skills, mediating between pro se litigants, how to start a self-help center, how to communicate more clearly with pro se litigants and much much more.