Speaker Straus Asks to Evaluate Ability of Unrepresented to Access Courts

Monday, November 30, 2015

UPDATE | By Harry M. Reasoner

Speaker Joe Straus recently announced interim charges for the 84th Legislature in the Texas House, including an interim charge put forth by Representative Jessica Farrar regarding self-represented litigants.

The interim charge assigned to the Judiciary and Civil Jurisprudence Committee states, “Evaluate recent efforts to make the court system more accessible for self-represented litigants, and make recommendations on how the courts can interact more effectively with unrepresented parties and increase access to legal information, assistance, and representation.  Examine similar efforts in other states.”

The interim charge provides an opportunity to educate lawmakers about the breadth and depth of the barriers facing low-income self-represented litigants.  It is timely because the number of people who are in the unfortunate position of representing themselves is quickly growing, especially in areas of high legal need such as family law and probate.  

In just three years from 2011 to 2014, data collected by the Office of Court Administration shows that while overall family law filings are down by 7.1 percent, the number of pro se family law filings has increased by 22.9 percent.  The numbers are even more surprising for probate filings, which have an overall increase of 1.2 percent but have surged a stunning 38.8 percent for pro se probate filers.  With Texas having one of the highest poverty rates in the country at 17.5 percent, these numbers are unlikely to decrease any time soon.  

Many self-represented litigants arrive at the courthouse doors not knowing what to do, where to go for help, or even if their problem has a legal solution.  Their experience varies vastly from county to county and court to court.  Some courthouses have self-help centers where people can go to find information and forms to resolve their legal matters.  Other courts simply—and erroneously—tell self-represented litigants that they must have a lawyer before they can file their pleadings.  One judge may feel comfortable asking a pro se litigant the questions necessary to prove up a divorce, or appointing an interpreter or counsel, while another may not.  Even the signage differs greatly from courthouse to courthouse, making it more or less difficult for the public to navigate.

There are not enough lawyers volunteering pro bono service nor enough federal and state funds available to provide legal representation to all those who cannot afford lawyers.  The only feasible solutions to assisting the burgeoning pro se population are those that increase a person’s ability to resolve their legal matters efficiently.  Many states, including Texas, are looking at ways to accomplish this, including:

         Cultivating the use of limited-scope representation to connect pro se litigants with lawyers who are willing to handle specific aspects of their case;
        Increasing the number of self-help centers across the state with robust libraries of plain language information and forms to resolve their disputes;
         Converting fill-in-the blank forms to “smart” forms that use a series of interactive questions to guide people through the completion and electronic filing of the document;
         Creating a statewide legal portal that helps a person determine, through an automated triage process, the most appropriate form of legal assistance for their situation; and
     •    Increasing the use of dispute resolution, such as community-based mediation and arbitration centers or online tools.

With our country’s aspiration to provide “justice for all,” we must find ways to make the courts easier to navigate and fairer for all who enter its doors.  

We can begin by addressing the disparity in how self-represented litigants are handled once they arrive at the courthouse.  There is a great deal of confusion over what judges and court personnel can and cannot do in their interactions with self-represented litigants.  There is also uncertainty over language access requirements set forth by the Department of Justice and over what is required, allowed, or prohibited in terms of appointment of counsel.  Clarification and guidance is needed to ensure that all litigants are treated equally across our state.

The Commission recently established a Rules and Legislation Committee to seek the implementation and modification of policies, procedures, and practices that have broad impact on a low-income person’s ability to resolve legal disputes.  The Rules and Legislation Committee has broken down into several focus areas, including self-represented litigants, language access, and pro bono.  Each group will be conducting research and making recommendations on how best to move forward to achieve a court system in Texas that is more open to the public for whom it was created.

Harry M. Reasoner is the chair of the Texas Access to Justice Commission and a partner at Vinson & Elkins in Houston, Texas. His principal area of practice is complex civil litigation, including antitrust and securities litigation. He is a Fellow of the American College of Trial Lawyers, the International Academy of Trial Lawyers, the International Society of Barristers, and the American Bar Foundation.