As any civil practitioner can attest, the number of people who show up in court without an attorney seems to increase every year. But what’s driving the surge in pro se litigants? How do those trend lines compare in different jurisdictions? And, more broadly, what can be done to improve access to justice?
Those were just a few of the questions posed by Harvard Law School Dean Martha Minow at the quarterly meeting of Legal Services Corporation at the University of St. Thomas law school in Minneapolis last Friday.
As it turns out, the precise incidence of pro se cases is surprisingly difficult to quantify. But Minow’s panelists — four state supreme court justices from the upper Midwest and one U.S. District Court judge — agreed on one point: The shortage of pro bono lawyers is most pronounced in family law.
“As a recovering family law lawyer, I know why,” quipped Minow.
In Minnesota, according to Supreme Court Chief Justice Lorie Gildea, the incidence of family law cases in which at least one party lacks representation has jumped about 10 percent since 2011 (to around 70 percent).
Minow pointed that’s not as bad as Texas, where at least one party is pro se in around 90 percent of family law cases.
The panelists tossed around potential solutions, ranging from increasing lawyer’s annual fees to mandating more pro bono services to building more self-help kiosks to expanding e-court services. Wisconsin Supreme Court Justice Shirley Abrahamson summed up the approach in Dairyland thusly: “We try everything.”
For his part, U.S. District Court Judge Michael Davis said “unbundling” legal services could help by giving pro se lawyers more avenues to exit a case.
“They say, ‘We know you’re going to stick us. If we come into to court, you won’t let us out,” Davis said, pausing for effect before adding, “Which is true.” It was a roomful of judges, so the latter phrase elicited peels of knowing laughter.
Minow, who serves on the LSC Board of Directors, also pressed the panel members on the larger issue of court funding — or, more precisely, inadequate funding.
Aside from North Dakota Chief Justice Gerald Vandewalle (who said he was satisfied with funding levels), the panelists were uniform in their expression of concern. According to Illinois Supreme Court Justice Thomas Kilbride, court funding in the Land of Lincoln has declined every year since 2001.
Davis, who had to deal with a partial government shutdown and sequestration during his tenure as chief judge, said the constant worry takes its toll. “I had an afro seven years ago,” said the balding judge.
“And I was seven feet tall,” chimed in Gildea.