New Zealand Law Commission
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909 THE LAW COMMISSION understands, from those working in the Court system and from litigants, that more people are choosing to represent themselves in the Family Court, and that their numbers are likely to go on increasing.
910 This chapter discusses ways of improving information access for self-represented litigants. It also looks at overseas initiatives, at other forms of self-help, at unbundling, and at the role of judges and Court staff.
911 Reasons for not having legal representation given by submitters to the preliminary papers Striking the Balance and Family Court Dispute Resolution included:
• cost – there is a group of people who do not meet legal aid criteria but cannot afford a lawyer. The Family Court of Australia found more than three-quarters of litigants interviewed said lack of funds was their main reason for self-representation; most had limited assets and were not in paid work;
• educational disadvantage – the Australian study found a disproportionate number of self-represented litigants had limited formal education;
• lack of knowledge – not appreciating the difficulties of self-representation;
• lack of awareness of legal aid – not knowing about their right to legal aid or whom to contact for help;
• distrust of lawyers (associated with concerns about high fees) – lack of confidence in the legal profession;
• eagerness to represent themselves – because they have settled most matters amicably, or prefer to keep control, or believe they do not need a lawyer, or have dismissed a lawyer they thought was not helping them;
• shortage of lawyers – especially specialist lawyers; or being unable to find anyone to take their case (often a problem for the “vexatious” litigant).
912 Not all self-represented litigants are so by choice; some researchers characterise these as “unrepresented” litigants.
Profile of self-represented litigants
913 Australian research shows that many self-represented litigants are disadvantaged by limited education and financial means. United States research on the profile of the self-represented litigant supports this. A 1990 study of the impact of pro se filings on Maricopa County (Phoenix, Arizona) dissolution cases found that although self-represented litigants came from all walks of life and income brackets, the following people tended to self-represent:
• lower income;
• less educated, particularly when correlated to income;
• blue collar workers, but only when correlated to income;
• people without children;
• those who do not own real estate.
914 Half those interviewed said they decided to self-represent because they thought their case was “simple”. Only 30 per cent said they could not afford a lawyer.
915 Self-representation poses problems – for the Court, the other party and litigants themselves.
Problems for the Court
916 Self-represented litigants generally demand more time and resources from judges and Court staff than those represented by lawyers. They have more questions about Court procedures, may be less organised in presenting their evidence and argument, and unaware of procedural steps and requirements.
917 Many self-represented litigants expect Court staff to help them bring their case; but legal advice is not a staff responsibility. It can be hard for staff to know where to draw the line between advice to self-litigants that is appropriate, and advice that exceeds their role and training.
918 Self-represented litigants require judges to take an active role in ensuring both parties benefit from a “level playing field”, and that neither is disadvantaged by lack of legal representation.
Problems for the other party
919 Proceedings involving self-represented litigants may be longer and more expensive for the other party (who is often paying for legal representation). Former partners may face aggressive, inappropriate, and irrelevant cross-examination, and see the Court as being more helpful to the unrepresented party. Cases that could have been settled had the other party been represented, often end up in court.
Problems for the self-represented litigant
920 Court appearances can be stressful for self-represented litigants, especially when they must cross-examine a former partner. It is easy, in Family Court cases where emotions run high, to lose objectivity. Self-represented litigants may know little or nothing about the law, procedure, preparing a case, or appearing in court. They may be unaware of costs issues: when a party causes undue delay or unnecessary expense, the Court can make an order of costs against them. Self-represented litigants should made aware of this possibility.
921 Unrepresented litigants need clear, accessible information about the law, the Court system (procedure and etiquette), how to prepare their case (complete documents and forms) and respond to the other party’s case, support services and alternative dispute resolution. Some would clearly benefit from basic legal advice.
922 The best solution for self-represented litigants with complex cases who are not in this position by choice and have limited formal education is to make legal representation more widely available. For others, helping them help themselves may be best.
923 People representing themselves, by choice or default, need enough information to bring a case. Chapter 5 recommends making such information publicly available, and this would help self-litigants find out what the law is. Many, though, will need more help.
Unbundling legal services
924 Unbundling refers to providing legal services and support at the point in proceedings when they are most needed. It is based on the concept of a bundle of legal tasks for a proceeding, some of which a self-represented litigant can deal with, and some of which are best undertaken by a lawyer. The self-represented litigant still does some, or even most, of the work and retains control. Unbundling can reduce client costs, and the delays and inefficiencies of self-representation.
925 Because lawyers give only limited advice, there can be problems. This has prompted the United States to incorporate safeguards into legal professional rules, to protect lawyers providing unbundled legal services.
926 Unbundling, a recent development in the United States, is being used in Canada, and is under consideration in New South Wales. The Family Court of Australia Project mentioned below is exploring the unbundling of legal services, and is consulting with legal aid commissions about further development.
Self-represented litigants project
927 The Family Court of Australia recognises that many people using the Court will not be represented by lawyers, and is dealing with this by, amongst other things, commissioning research. Self-represented Litigants – A Challenge (Self-represented Litigants (SRL) project) aims for a consistent national approach to providing litigants with sensible, effective, understandable services. It aims to improve Court practices, procedures, protocols, and forms by making them clear, consistent, and comprehensible to litigants of average ability.
Australian local initiatives
928 The Family Court of Australia has also been collaborating with organisations such as community legal centres (CLCs) and Relationships Australia to improve self-represented litigant support.
929 These collaborations include the Family Court support programme in Dandenong (near Melbourne), the Brisbane registry link with CLC, and the integrated client services scheme in Parramatta, Sydney. The SRL project aims to institute existing initiatives like the Dandenong programme nationally, and to review the suitability and development of partnerships needed to ensure they operate efficiently.
930 The Dandenong Family Court programme is a one-day-a-week service for self- represented litigants. It aims to provide a better understanding of the Court process, and access to independent legal advice. The Registry manager says clients who attend are better prepared for court appearances: their documents are better prepared, and lawyers for the other party can negotiate with Dandenong programme staff rather than directly with the client.
Improving existing Family Court services and facilities
931 The Family Court is working at becoming more welcoming, flexible, and personalised; for example, providing private facilities for sit-down discussions with Court staff, and more self-help facilities. Increased use of teleconferencing and video-conferencing have the potential to improve service access for rural clients.
Brochures and publications
932 The Family Court has produced brochures and pamphlets explaining court procedure – The Trial, Service of Documents and Appeals. These explain, step by step, what can happen, in easy language, with bullet points, questions and answers, coloured borders and flow charts. All are available on the Family Court of Australia website.
933 The Family Court of Australia website has detailed information on how people can represent themselves. Comprehensive material helps the self-represented litigant understand proceedings, and what is required of them. It has do-it-yourself kits for applying for a divorce, and applying for and defending a maintenance application, as well as how to draw up parenting plans and consent orders.
934 Kits include all the forms necessary for such applications, along with information about case management, and how to prepare for a Family Court hearing.
Role of Family Court staff
935 The Litigants section of the website sets out a service charter delineating the standard of service and help people can expect from Court staff, and indicates the boundaries between help and advice. The section’s two pages describe what Court help litigants can and cannot expect:
We can tell you what forms you may need to file for an application.
We can provide you [with] contact details for locally available free legal services (legal aid, community legal service centres), the Law Society and the Family Law Hotline.
We can advise you of mediation/counselling services available within the Court and with agencies in the community.
We can briefly explain and answer questions about how the Court works, its practices and procedures.
We can give you blank copies of Court forms if you wish to proceed with an application or give you details of the Courts website. In some Registries we can provide you with access to the website.
We can provide Court lists and information on how to get a case listed.
We can give you information about how your case is managed and the processes involved in each step along the pathway to a trial.
We can usually answer questions about court requirements such as when certain documents need to be returned to the Court.
We can give you an estimated time of when your matter is likely to proceed to a trial.
We can advise you how to go about modifying an existing order.
We cannot give you legal advice.
We cannot interpret orders made by a Judicial Officer.
We cannot tell you what the decision of the Court will be or give you an opinion about what it might be.
We cannot tell you whether or not you should bring your case to Court. We strongly advise you to seek legal advice before proceeding as to your rights, especially concerning children and property.
We cannot recommend a certain lawyer to act on your behalf.
We cannot tell you what words to use in your court papers nor whether you have put forward enough information. However, we can check your papers for completeness (for example, we check for signatures, and that attachments are present and signed by an authorised person within your state).
We cannot tell you what to say in court.
We cannot let you communicate with the Judge, other than at trial.
We cannot change an order once it has been made by the Court. The only way that may be considered is by you making another application to the Court.
We cannot enforce an order made by the Court unless you file an application for enforcement.
936 The Full Court of the Family Court of Australia has guidelines for dealing with matters involving self-represented litigants; these have been criticised for being unrealistic.
The other party’s lawyer
937 The New South Wales Bar Association has guidelines for barristers dealing with self-represented litigants. These are a useful summary of issues arising for lawyers who deal with unrepresented parties, and suggest possible strategies.
938 New Zealand has explicit rules for lawyers facing unrepresented parties in Court disputes; they are obliged to treat the other side with courtesy and fairness.
939 Ontario has produced the web-based A Guide to Procedures in the Ontario Court of Justice, a step-by-step guide to the Court process. It explains mediation, how to start proceedings, and respond once proceedings have been issued, first court dates, case conferences, and motions, as well as general information sheets about serving and filing documents, and going to court.
940 The Unified Family Court of Ontario in Hamilton has a well developed and very well resourced self-help centre. A facilitator fills out forms, and a lawyer gives a minimum of 20 minutes advice to all those using the centre. A referral co-ordinator refers people to counselling and other support services. The centre has videos, self-help guides and other information.
Superior Court of Arizona, Maricopa County Self-help Centre
941 The first US self-help centre was the Maricopa County Self-help Centre, in Phoenix, Arizona. A third of all cases in Maricopa involve two self-represented litigants, and another third have one. The Court has information packs dealing with almost every kind of litigation undertaken in court. Each pack covers a stage of the process, and provides a flow chart to help litigants follow these stages.
942 The Centre is staffed by counter clerks and is extensively used. Staff advise litigants only generally on completing forms, and not on how a particular entry should be completed. Information is also available on the Internet.
943 This information includes lists of lawyers, mediators, and other community services, a glossary of Court-related terms, a description of the Court and tips on self-representation (dress, courtesy, etiquette, punctuality, the importance of preparation). The forms section of the website helps users select and fill out appropriate forms.
944 The Centre is Court-funded, but because it employs non-legal and paralegal staff, is not unduly expensive. Those in private practice are supportive of the Centre and unbundled legal services have increased as a consequence.
Superior Court of Washington, Seattle
945 The Self-help Centre at the Superior Court of Washington is run by a paralegal who advises which forms to use and how to use them, but not on legal matters. It has videos on aspects of Court procedure. Having a paralegal check forms for completeness helps Court staff, and judges report the Centre’s positive impact.
Superior Court of California, Los Angeles
946 The Superior Court of California hears many cases and has many self-represented litigants. The Los Angeles Self-help Centre assists litigants in preparing and conducting their own cases. It has a facilitator – a lawyer – who occupies Court-provided premises, but the Centre is federally funded. The facilitator advises parties of their options and obligations, and helps them prepare court documents, but does not offer legal advice or representation.
947 Our recommendations fall into two categories: providing information, and helping and advising the self-represented litigant. Merely providing information will not help some people, no matter how clear and accessible it is. We urge research into the characteristics of New Zealand self-represented litigants, so we can target resources to different categories of self-represented litigant and various types of proceedings.
948 The Family Court judges’ submission suggested an 0800 telephone number to connect a self-represented litigant to an advice/information service operating outside office hours. This could possibly be linked to a local self-help centre or be a separate service, perhaps run pro bono by a group of local family law solicitors.
The Department for Courts should develop self-help kits for self-represented litigants, with step-by-step instructions, diagrams and flow-charts, documents and forms. These should cover as many aspects of proceedings as possible – a separate kit for each.
Self-help kits should be available on the Family Court website.
Videos to help self-represented litigants should be produced.
Consideration should be given to an 0800 telephone number for information, advice and referrals to community services and lawyers.
Help and advice for self-represented litigants
949 We recommend investigating the unbundling of legal services so some litigants have the option of partly or mostly representing themselves, but can also get legal advice when they need it. There should be research on how this works in other jurisdictions, and further discussions between the New Zealand Law Society and the Legal Services Agency.
The New Zealand Law Society and the Legal Services Agency should investigate the unbundling of legal services.
950 The Department for Courts should investigate litigant self-help services. These could be inexpensively operated within Family Courts by Court staff who can differentiate between generally helping locate information and fill in forms, and specific legal advice. Such staff need not be legally qualified, in fact it might be best if they were not.
951 The centre could be simply a private room with a welcoming atmosphere where the facilitator or other staff can talk to a self-represented litigant. It would need a brochure library, and as much other helpful information as possible, including videos, and maybe an Internet connection. The centre should link with other community centres and organisations (in particular, local community legal centres) that could help self-represented litigants. It should have an extensive referral network, and lists of useful resources. The Australian integrated programmes (in Dandenong, Brisbane and Parramatta) are good models of such partnerships.
The Department for Courts should consider setting up self-help centres at Family Courts.