Richard Zorza’s blog has caught my eye again, reporting as it does on a report for the Michigan State Bar Foundation commissioned from John Greacen of Greacen Associates. It appears to be based on a review of selfhelp programmes across the United States and seeks to distill best practice. It promised to be an immensely important document. It is available here.
There is no similar work that I am aware of in the UK. The Report’s recommendations bear further scrutiny, particularly as the Government’s appear to have paid scant regard, so far, to how to adapt the court and advice system to deal with a likely influx of litigants in person. The list below would provide an interesting checklist of the system’s readiness to deal with litigants in person.
I have highlighted and paraphrased recommendations below which research experience and instinct tell me are likely to be important in our context. The recommendations are drawn directly from and usually quote elements of the Graecen recommendations (I have tailored them slightly to a UK context). A starting point would be to set up a Task Force to oversee the implementation of national self-help programme designed to assist litigants in person with bringing and defending their cases:
- Because of its importance to self-represented litigants, the area of family law should be a key initial focus of any self-help initiative. Domestic violence should be a priority [whether this is true here may depend on how the legal aid proposals for domestic violence proceed].
- The Self Help Service’s web site should provide a comprehensive set of information for persons needing to use the courts, including full supporting information as well as forms.
- A limited number of case types and forms should be targeted in the initial phase of a self-help web site to test for effectiveness and efficiency before expanding to additional case types and forms.
- In choosing additional subject matter areas for development following the pilot phase, court data and a survey of judges and other court personnel should be used to establish a long range plan for forms and information development.
- To the extent that data on the extent of self-representation is not now tracked [which in England and Wales is frankly not much] courts should consider doing so to inform future planning.
- Courts should take care in the wording of their advice to self-represented litigants to obtain legal representation to make sure that they are not so strong that they will cause persons who could succeed on their own to abandon the attempt because they cannot afford a lawyer.
- When the resources become available, forms should be provided for all types of proceedings in which significant numbers of persons appear in court representing themselves. A forms completion process should be designed for completion without staff assistance.
- The courts should ensure that it develops automated forms in an even-handed manner – providing forms for respondents or defendants whenever it provides forms for petitioners or claimants.
- All forms processes should possess the capability to print a set of forms to be completed by hand or typewriter rather than by computer.
- All forms should be in plain English, using relevant Plain English standards and using the services of an English language readability expert. All forms and document assembly applications should be field tested with self-represented litigants for usability.
- Self Help Service plans should include the opportunity for self-represented litigants to attend educational sessions on key topics on-line as well as in person where there are self-help centres and consider the use of videoconferencing.
- Self Help Service plans should ensure that trial or hearing preparation materials are available for each case type for which forms are developed, as part of the comprehensive information envelope within which each form is presented. These should include a hearing or trial preparation matrix appropriate to that proceeding, listing the elements required to obtain relief and guiding the self-represented litigant through the logical process of preparing for the court event.
- Information and forms on enforcement of court orders and judgments should be part of the materials presented for every case type for which forms are developed, deployed at the same time as the rest of the forms and information for that case type are deployed.
- Self-Help Information Delivery Systems should be trialled via a variety of information delivery media and each should be field tested for effectiveness with self-represented litigants.
- The Self Help Service should draft judicial guidelines to clarify the propriety of active judicial involvement in self-represented litigation for recommendation to the Judiciary for adoption.
- A nationwide support entity should be created to provide self-help services by telephone, internet, videoconference and chat room.
- There should be a policy that sets forth what self-help centre staff can do (giving legal information and related assistance) and cannot do (giving legal advice).
- Court technology efforts should be viewed from the perspective of self-represented litigants.
- Comprehensive training on appropriate assistance for the self-represented should be developed for judges, court staff, and others who encounter the self-represented.
A permanent oversight body (including judicial and extra-judicial stakeholders) should be created to ensure sustained quality and continuity of effort for any self-help program.