When Second Best Is the Best We Can Do

Improving the Odds for Pro Se Civil 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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    Courts are daunting places for nonlawyers and there’s no substitute for having a lawyer when you have to be there. Trial judges who sit in high-volume arenas like landlord-tenant and small claims courts often say their most serious recurring problem is a never-ending flood of litigants who represent themselves because they have no other option. More than 90 percent of litigants in many high-volume city courts don’t have a lawyer, statistics show.

    We are a long way from closing the gap between people who need a lawyer and those who have one—and the chasm will remain even after the economy recovers fully. While we must keep pressing with undiminished energy for more lawyers, we also need to do everything we can to make the courts less impenetrable for people who struggle to use them without legal representation.

    The District of Columbia has an extensive history of working to improve access for pro se litigants. The D.C. Bar’s Pro Bono Program partners with superior court leaders and law firms to promote legal advisory services and volunteer representation of low-income people. The program and cooperating law firms run advice and referral clinics, staff resource centers in high-volume courts, provide training on child custody and divorce training in family court, and offer community-based immigration clinics. Its online resource, LawHelp, offers extensive information to guide pro se civil litigants.

    Six years ago the D.C. Court of Appeals created the D.C. Access to Justice Commission, which I have chaired since its inception. Like more than two dozen such groups around the country, our mission is to improve the quantity and quality of representation of low-income people in civil matters, and to advance this population’s access to justice. In addition to increasing the number of lawyers available for low-income people, another of the commission’s priorities is improving support for pro se litigants, particularly in the city’s landlord-tenant court. This paper presents a case study of our landlord-tenant court efforts, highlighting successes, and identifying work ahead.

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    Peter Edelman is a professor of law at Georgetown University Law Center.

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