Grounds for Objection

Causes and Consequences of America’s Pro Se Crisis and How to Solve the Problem of Unrepresented Litigants

    These papers were commissioned by the Doing What Works project to explore the persistent gap between the legal needs of low-income people and capacity of the civil legal assistance system to meet those needs. Studies indicate that less than 20 percent of poor Americans’ legal needs are being met, requiring unrepresented litigants to navigate complex and often unfriendly court systems. There’s also severe inequality among states in legal aid funding. Our country’s “pro se crisis” comes at a time when the need for civil legal assistance—to help people facing foreclosures, evictions, wrongful terminations, child custody, and other challenges—has never been higher.

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    The number of low and moderate-income litigants representing themselves in civil matters has increased in recent decades. These pro se litigants have been the subject of much discussion, but have not been sufficiently researched.

    There’s no nationwide snapshot of the problem. We don’t know precisely how many people represent themselves in civil legal matters in the United States, and we can’t make year-over-year comparisons. Still, 60 percent of judges in a 2009 study reported increases in self-represented litigants as a result of the economic crisis. Some reported seeing many more middle class litigants coming to court without lawyers.

    Types of cases

    Pro se representation is particularly prevalent in family law cases such as divorce, custody, child support, and paternity. The trend is likely tied to increased divorce, out-of-wedlock births, and increased investments in federal child support enforcement. Other types of cases also associated with self-representation include protection orders, landlord-tenant disputes, and probate matters.

    This phenomenon gets exacerbated during times of national and personal economic stress, like the recent financial crisis; debt and bankruptcy go hand in hand with not being able to afford an attorney.

    Reasons for self-representation

    A significant number of people represent themselves because they think their legal matters are simple enough to handle on their own. But a commonly reported reason for self-representation is that litigants are unable to afford legal assistance.

    Attorneys’ fees are often out of reach for many low- and moderate-income people. In 2009, the national average billing rate for attorneys was $284 an hour. Clients are also charged for items like court costs and paralegal time. Unfortunately, we have no national-level data on the number of people who are priced out of hiring an attorney. But 65 percent of pro se litigants in Florida and 50 percent in the district court of Utah reported that the costs of hiring legal assistance were prohibitive.

    In the following pages, I explore why this phenomenon is a serious problem for both litigants and courts, and then close with a discussion of potential solutions. The solutions mentioned here are explored in greater detail in three papers published contemporaneously with this one: “When Second Best Is the Best We Can Do: Improving the Odds for Pro Se Civil Litigants,” by Peter Edelman; “Access to Evidence: How an Evidence-Based Delivery System Can Improve Legal Aid for Low and Moderate-Income Americans,” by Jeffrey Selbin, Jeanne Charn, and Josh Rosenthal; and “The Justice Gap: Civil Legal Assistance Today and Tomorrow,” by Alan Houseman.

    Joy Moses is a Senior Policy Analyst with the Poverty and Prosperity program at American Progress.

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