When the opposing party is a pro se litigant, family law attorneys can minimize disruption to court proceedings through the use of technology that fosters open information and communication for both sides.
By Joshua Lenon, Technology and Ethics Lawyer
In their 2012 paper, “DIY in Family Law: A Case Study of a Brief Advice Clinic for Pro Se Litigants,” Professor Linda Smith of the University of Utah and her co-author, Barry Stratford, list some startling facts. Among their findings, Smith and Stratford write that pro se parties in family-law cases have risen from 2.5% of litigants in a 1976 Connecticut study to 75% of parties in New York’s Family Court in 2005. In the authors’ home state of Utah, divorce filings in 2005 showed that 49% of petitioners and 81% of respondents were self-represented. Nearly a majority of all Utah divorce cases (47% to be exact) had no attorney, 35% of cases had one attorney, and in only 17% of divorce cases were both parties represented.
Self-Representation is no Longer the Exception
What once was the exception – self-represented litigants (SRLs) in family-law cases – has become the norm. Indeed, the Legal Services Corporation now estimates that the programs and resources devoted to ensuring access to justice address only 20% of the civil legal needs of low-income people in the United States. Therefore, family-law practitioners should expect to be facing non-represented parties on a regular basis.
When it comes to SRLs, judges’ Model Code Rule 2.2 encourages courts (some would argue, out of necessity) to make reasonable accommodations to ensure pro se litigants have the opportunity to have their matters fairly heard. This means that attorneys in family-law cases should expect the court to waive certain requirements and standards that would be imposed on lawyers. Often, the normal rules do not apply to pro se litigants.
Unfortunately, this means that SRLs often disrupt the court process, lengthening already drawn-out proceedings. In 2013, the Arkansas Access to Justice Commission released a report on pro se litigants. Within the three counties studied, 22% to 27% of petitioners represented themselves, and between 90% and 95% of respondents had either represented themselves or defaulted. The study also surveyed circuit court judges about their experiences with self-represented litigants, and 91% of responding judges reported differences in how efficiently those cases are handled compared with when both parties are represented by counsel. The study findings reinforce the view that a lack of legal representation negatively affects court operations.
However, the rules of court still apply to counsel representing clients against SRLs – including abiding by court rules and orders that provide aid to pro se parties. For example, the Washington State Supreme Court, in their Access to Justice Technology Principles, imposes a duty on “all persons and entities who may represent, assist, or provide information to persons who come before the court” to use technology to promote equal access to justice and equal opportunity for participation in the justice system.
The Role of Technology in Pro Se Cases
While Washington’s technology principles do not mandate that lawyers limit their use of technology to accommodate self-represented parties, they do impose a duty to employ technology that advances those principles for both sides of a legal matter. Indeed, the principles state that the justice system shall reject, minimize, or modify any technology use that reduces the likelihood of achieving the objective of a just process. The technological tools you use when facing an SRL should effectively aid the process of justice.
Family law counsel can work with the court to minimize the disruption pro se litigants cause to proceedings by choosing tools that support speedy resolutions. This means using technology that is not only convenient for the lawyer, but also creates efficiencies for the opposing side.
Why would you help the opposing side, even if it is represented by a pro se litigant? As officers of the court, family lawyers should adopt tools that are convenient to SRLs in order to minimize disruption and to aid in reaching speedy resolutions for their clients.
There are several key technologies that are helpful to family lawyers that can also be used to smooth out disruption when the opposing party is self-represented.
Family lawyers should use cloud-based document management tools that can also serve as repositories for SRLs. Openly sharing necessary documents ensures the proceedings go as smoothly as possible by providing the SRL with easy access to important information. It is entirely possible that a pro se litigant might not be as organized as opposing counsel. The loss of documents and a lack of organization can be minimized if family lawyers choose to utilize a technology that can serve representation on both sides of the legal matter.
Improving Communication Between Attorneys and SRLs
Communication between lawyers and SRLs is another area where technology can help minimize disruption. You should choose a messaging service that can act as a hub for messages and document transfers. However, there is a fine line in this matter: family lawyers should not have control over SRLs’ communications, but they should be open to providing a messaging portal (similar to those used to communicate with clients) to allow for the secure, speedy delivery of information to and from pro se parties.
Lastly, some advanced solutions allow lawyers to manage the schedule by using calendaring software and task assignments to inform SRLs of meetings and deadlines. Family lawyers should make the extra effort to invite pro se litigants to meetings. Normally, a party’s counsel would keep track of hearing conferences and scheduled events, but SRLs may need extra help keeping track of deadlines and upcoming events. Family lawyers should take advantage of their system’s task assignment functions and calendar invites to help keep both parties on schedule for agreed deadlines.
By using technology that minimizes disruptions caused by SRLs, family lawyers can continue to represent the best interests of their clients while also doing their part to aid court operations. Family attorneys should be open to utilizing technology that furthers equal access to justice.
Joshua Lenon is an attorney admitted to the New York Bar Association. He studied law at St. Louis University School of Law, obtaining a JD and a Certificate in International and Comparative Law. Joshua currently serves as Lawyer-in-Residence for Clio, providing legal scholarship and research skills to the leading cloud-based practice management platform. www.goclio.com