Connecting self-representation to civil Gideon: what existing data reveal about when counsel is most needed.

• Author: Engler, Russell
• Position: 2008 ABA Section of Litigation Access to Justice Symposium

Introduction I. Unmet Legal Needs, Unrepresented Litigants, & Civil Gideon II. Reviewing Reports: The Impact of Representation A. Preliminary Considerations: Methodologies in the Reports B. Courts 1. Housing Cases 2. Family Law Cases 3. Small Claims Cases C. Administrative Agencies 1. Social Security Disability Appeals 2. Unemployment Cases 3. Immigration Cases 4. Other Administrative Appeals III. Assistance Short of Full Representation A. Pro Se Clinics, Self-Help Centers and Hotlines B. Assessing the Early Evaluation Efforts of Assistance Programs IV. Observations and Answers A. Beyond Representation 1. The Substantive Law 2. The Complexity of the Procedures 3. The Judge: Individual Practices and Perspectives 4. The Court's Operation B. Representation: What We Know 1. The Importance of Power 2. Not Just Any Advocate: The Importance of Knowledge and Expertise C. Applying What We Know From The Reports 1. Implications for Moving Forward 2. The Need for Clarity of Goals and Values V. Questions and Complications A. Questioning the Data B. When Positive Outcomes Could Be Negative Ones C. The Role of Expectations D. The Thorny Question of Resources E. Short-Term Versus Long-Term Change, Stability, Fluidity, and Backlash Conclusion INTRODUCTION

Over the past decade, the phenomenon of self-representation in civil cases has received increased scrutiny. The courts' struggles with huge numbers of cases involving at least one party without counsel have led to questions about the proper role of the key players in the court system and the development of programs designed to facilitate self-representation. States have created Access to Justice Commissions to respond to the problems of those without access to legal representation. A revitalized movement seeking to establish a civil right to counsel has emerged, pressing for the expansion of the availability of counsel for the poor. The activity of the past decade comes against the backdrop of unmet legal needs, the inadequacy of funding for legal services for the poor, and reports demonstrating that litigants without counsel often fare poorly even where basic needs are at stake in the proceedings. (1)

Viewed one way, facilitating self-representation and establishing a civil right to counsel could conflict. In this view, the response to the problems facing those without counsel is to provide assistance improving their ability to self-represent, not to provide counsel. The responses could instead be part of the same Access to Justice agenda. Proponents of self representation might believe that, even with robust assistance programs, some cases still are not appropriate for self-representation. Proponents of a civil right to counsel might acknowledge that, even with an expansion of the availability of counsel, no current proposal contends that counsel should be provided at public expense for all litigants in all civil cases.

An approach viewing self-representation and civil Gideon as part of a common Access to Justice agenda suggests a common inquiry: what are the scenarios in which full representation by counsel is most needed? Part of this question involves policy choices as to the importance of what is at stake in the proceeding. Not surprisingly, initiatives seeking an expanded right to counsel focus on scenarios in which basic human needs, such as child custody and shelter, are at stake. (2)

Part of the question, however, is a research question: what does the data reveal about the characteristics of litigants, cases, courts, or agencies that help identify the cases in which the presence of counsel is most likely to impact the outcome of the case?

Many reports explore the problems facing those without counsel in the "poor people's courts," typically handling family, housing, and consumer cases. Other reports shed light on the impact of assistance programs short of full representation by counsel. Before we embark on new research, we should assess what we know from existing reports. (3)

Part I provides the background for the reports, including unmet legal needs, unrepresented litigants, and civil Gideon. Part II explores what the reports reveal about the correlation between representation and success rates in court. Notwithstanding methodological differences, reports consistently show that representation is a significant variable affecting a claimant's chances for success in eviction, custody, and debt collection cases. That finding also applies to administrative proceedings. Rebecca Sandefur's meta-analysis of studies of the effects of representation reports that parties represented by lawyers are between 17% and 1380% more likely to receive favorable outcomes in adjudication than are parties appearing pro se. (4) With programs facilitating self-representation, litigants and court personnel report high levels of satisfaction; the programs' impact on case outcomes is less clear.

Part III discusses key variables beyond representation that impact case outcomes, before identifying two crucial conclusions regarding what we do know about representation. The first is the importance of power. The greater the power opposing a litigant, and the more that litigant lacks power, the greater will be the need for representation; the section therefore explores sources of power that line up against litigants without counsel, and factors that act as barriers to representation. (5) The second theme is the importance of having not just any advocate, but of having a skilled advocate with knowledge and expertise relevant to the proceeding. The balance of the article discusses programmatic implications that flow from the conclusions and complicating questions.

While gaps in our knowledge suggest the need for additional research, (6) the consequences of waiting, without acting, until all new research is complete, are devastating. As we gain new information, the insights will raise new questions as well; we may never be certain. More importantly, powerless litigants across the country suffer harmful outcomes in cases involving basic needs, with devastating consequences for them and their families. Where we can already identify likely starting points for reform, the price of delay outweighs the costs of uncertainty.

1. UNMET LEGAL NEEDS, UNREPRESENTED LITIGANTS, & CIVIL GIDEON

   The phenomenon of unrepresented litigants in the courts is nothing new. Legal Needs studies consistently show that 70-90% of the legal needs of the poor go unaddressed. (7) Many unmet legal needs involve housing, family, and consumer issues. (8) Legal services offices only represent a fraction of eligible clients seeking assistance. (9) Unrepresented litigants often fare poorly in the courts. (10)

   During the 1990's, the problems facing, and caused by, unrepresented litigants-also referred to as self-represented, pro se, and, in California, pro per--increasingly gained attention across the country. (11) Most family law cases involve at least one party without counsel, and often two. (12) Most tenants, many landlords, and most debtors appear in court without counsel. (13) Unrepresented litigants disproportionately are minorities and typically are poor. (14) They often identify an inability to pay for a lawyer as the primary reason for appearing without counsel. (15)

   Conferences, publications, and websites have focused attention on problems involving cases with unrepresented litigants. (16) One focus is the changing roles for judges, mediators, and clerks in courts with a high volume of unrepresented litigants. (17) Innovative assistance programs are another focus. The programs include hotlines, technological assistance, clinics, pro se clerks offices, "lawyer-of-the-day" programs, and self-help centers, developed to provide assistance to litigants who otherwise would receive no help at all. (18) Conferences of Judges and State Court Administrators adopted resolutions calling for courts to provide meaningful Access to Justice. (19) The number of state Access to Justice Commissions, comprised of stakeholders from the courts, legal services programs, and private bar, expanded rapidly. The commissions are charged with broad mandates to assess the civil legal needs of low-income citizens and design initiatives to respond to those needs. (20)

   As the courts, bar associations, and Access to Justice Commissions grapple with the problems involved with unrepresented litigants, a renewed call for a civil right to counsel, or civil Gideon, has gained momentum. The years after 2003, which marked the 40th Anniversary of Gideon v. Wainwright, (21) saw a sharp increase in the number of articles, (22) conferences, (23) and websites dedicated to the issue, (24) as well as a surge in membership in the newly-created National Coalition for a Civil Right to Counsel. (25) Some advocates pursued test case strategies attempting to establish the right to counsel by court decision, (26) while others pursued a legislative strategy. (27) Bar associations and Access to Justice Commissions joined the call, inspired by the unanimous passage of an American Bar Association resolution urging the provision of legal counsel as a matter of right, at public expense, to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health, or child custody, as determined by each jurisdiction. (28)

2. REVIEWING REPORTS: THE IMPACT OF REPRESENTATION

   1. Preliminary Considerations: Methodologies in the Reports

      As demonstrated in the following sections, consistent themes emerge from the various reports analyzing the courts and administrative agencies before which the cases of many unrepresented, indigent litigants are heard. The themes emerge despite the use of varying methodologies that at times makes the comparison risky. The studies of courts handling housing cases, discussed in the next section, illustrate the point.

      Some reports focus primarily on adversarial...