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Trials & Litigation

Judges Say Litigants Are Increasingly Going Pro Se—at Their Own Peril

Posted Jul 12, 2010 11:39 AM CDT
By Terry Carter

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A survey of nearly 1,200 state trial judges around the country indicates that the weak economy has increased the number of litigants representing themselves in foreclosures, domestic relations, consumer issues and non-foreclosure housing matters; and the judges say litigants are doing a poor job as well as burdening courts already hurt by cutbacks.

A preliminary report on the survey, conducted by the ABA Coalition for Justice, was announced today by ABA President Carolyn B. Lamm at a news conference at the National Press Club in Washington, D.C.

“The areas of impact are pretty obvious,” Lamm said, introducing the Report on the Survey of Judges on the Impact of the Economic Downturn on Representation in the Courts (PDF).

More than half the judges saw case filings increase in 2009 and 60 percent of them say fewer people are represented by counsel. The greatest increase is in foreclosures, followed by domestic relations, consumer cases and other housing matters.

"This includes not only the poor but the middle class because it is not only a falling in Legal Services Corporation funding, but also because middle-class people are unable to spend to retain lawyers,” Lamm said.

The ABA has been working on solutions with state and local bar groups. In California, even with a particularly stressed economy, civil legal aid is required in matters in which basic human rights are at issue, Lamm said.

Lamm also mentioned examples for helping those representing themselves, such as a greater push for unbundling of legal services so lawyers can, for example, help out at the beginning of divorce proceedings in a way that the litigants can more efficiently and correctly move forward on their own.

Other examples are online self-help and assistance, as well as touch-screen kiosks in courthouses.

“The economic crisis has only exacerbated the problems in the courts,” says Lamm.

Self-representation is resulting in worse outcomes for litigants, according to 62 percent of the judges. The greatest problem is failure to present necessary evidence, 94 percent of all respondents said.

That was followed by procedural errors, ineffective witness examination and failure to properly object to evidence. Seventy-eight percent of judges say the increase in self-representation is hurting the courts, especially by slowing down the docket.

The survey was conducted by e-mail to members the ABA Judicial Division's National Conference of State Trial Judges.

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