How to help Litigants in Person: a plan based on US Best Practice

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:

  1. 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].
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. All forms processes should possess the capability to print a set of forms to be completed by hand or typewriter rather than by computer.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. A nationwide support entity should be created to provide self-help services by telephone, internet, videoconference and chat room.
  17. 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).
  18. Court technology efforts should be viewed from the perspective of self-represented litigants.
  19. Comprehensive training on appropriate assistance for the self-represented should be developed for judges, court staff, and others who encounter the self-represented.
  20. 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.
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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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One Response to How to help Litigants in Person: a plan based on US Best Practice

  1. forcedadoption says:

    EXAMPLES OF HOW RULES OF EVIDENCE HAVE BEEN DISCARDED IN THE FAMILY COURTs WHEN GRANTING INTERIM CARE ORDERS.(opposed by litigants in person)

    1:- Statements from the local authority are shown to the judge but rarely to parents.Family and friends of parents are routinely excluded from the court but groups of social workers are allowed to stay in the court to listen to their colleague’s testimony whether they are witnesses or not.

    2:- Parents representing themselves are denied the opportunity to cross examine witnesses appearing against them.Judgements,reports from experts,and position statements are either witheld or given to parents at the last minute (too late to read and analyse them properly).

    3:- Parents are routinely refused permission to call for a second opinion when “experts” and Doctors have testified against them.If parents record contacts with their children, or interviews with experts or social workers judges routinely refuse permission for these recordings to be heard yet they always allow recordings and video evidence to be heard if produced by police or social workers.

    4:-Parents whose children have been taken are routinely and wrongly told that they may not talk to ANYONE about their case.

    5:-Parents are threatened with jail if they protest publlcly when their children are taken.They are also jailed for “breach of the peace” or “harassment” if they dare to trace and then contact their own children after adoption.Parents are therefore” twice gagged” contrary to the Human Rights Act ,Article 10 entitling all persons “freedom of expression”,ie freedom of speech.

    6:-Local authority barristers in court often read out statements from absent persons as though they are themselves witnesses but they cannot be questioned.

    7:- Most solicitors refuse to let their clients speak and then agree to all care orders demanded by social services.They tell the hapless parents “it is better not to oppose the interim care order ,but to wait for the final hearing”,ignoring the position set out below (in red) where L.J.Thorpe makes it very clear that the parents are so prejudiced by the proceedings thereafter that it is “very difficult to get a child back” after a removal hearing.

    8:-Judges routinely castigate parents who wish to speak or who represent themselves even though they have the right to do so;Their evidence and their arguments are usually ignored in the judgements.

    9;-Parents representing themselves are often given an hour or two’s notice to appear in court but solicitors are given weeks !

    10:-Parents are punished for “risk” ie not what they have done but for what they might do in the future! “Risk of emotional abuse” is favourite because there is no legal definition of this and it is usually impossible for parents to defend themselves against “predictions” by so called “experts” who are often unqualified (20% according to the latest report!)

    11:-Judges give social workers the power to withold parent’s contact with their children” in care” as a punishment for saying they love them and miss them or that they are fighting to get them back .Foreign children are forbidden to speak their own language with their parents or relatives,mobile phones are confiscated,and children in care are denied the basicrights accorded to murderers and rapists in prison!They use this power to gag parents and force them into complete submission !

    12:-Parents are in effect condemned for offences against their children on “probabilities” 51% instead of beyond reasonable doubt.They can be acquitted in the high court and,the appeal court,and even when all charges have been dropped by the police social services can overule all those bodies and condemn parents on 51% probability (nearly half the time they could be wrong!) and take their children into care with a view to forced adoption.

    13:-Parents who were themselves in care or who were abused in childhood are often judged unfit to be parents as a result.Their past misdemeanours such as shoplifting,or destruction of property (often 10 years ago or more)
    are inevitably used against them during proceedings in court to prove them unfit parents.This would be illegal in a criminal court.

    14:-Parents often forfeit their children for “failing to engage with professionals”The very persons who tell them and their neighbours that the children will never be returned !

    15:-Parents faced with forced adoption lose their children for life, without being allowed a hearing by jury.

    16:-Under the UN Convention on children’s rights,and a recent Supreme Court case (W a child), children have a RIGHT to be heard in court but are usually denied that right.

    17:-Solicitors routinely tell client parents to agree to interim care orders or they risk never seeing their children again.A lie !

    18:-Social workers are legally obliged to place children with relatives if possible but either ignore this or find pretexts to fail them on assessments

    19:-Human rights to free speech and freedom of movement are breached by gagging orders, confiscating passports,and even “prohibited steps” that limit parent’s movements and can force them to remain in the same flat or house indefinitely !

    20:-The Children Act specifically instructs social workers to reunite families wherever possible and to place children removed from their parents with relatives.In practice couples are urged to separate,to quit their jobs and go on benefits so as to keep awkward contact times with their children and to be free to meet social workers etc for meetings whenever summoned to do so.Relatives such a grandparents,aunts,and uncles are set aside to be “assessed” and ore often than not fail on the grounds that they are too friendly with the parents or maybe had a difficult past 10 years ago or more,or simply that they are too old in their forties or fifties even though this does not apply to fosterers .Theory and practice are a long way apart in our family courts;

    Family torn apart in 15-minute court case by Judge James Orrell …
    Lord Justice Thorpe said on Appeal “I am completely aghast at this case.There is nothing more serious than a removal hearing,because the parents are so prejudiced in proceedings thereafter.Once you have lost a child it is very difficult to get a child back.” The hearing above lasted only 15 minutes after a doctor “expressed the opinion” that bruising in the ear of one of the three children looked as though it was caused by pinching .The parents were not allowed to give any evidence!Their three children had all been forcibly removed until they were ordered to be returned by Lord Justice Thorpe on appeal.

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