The case for court-based document assembly programs: a review of the New York state court system's "DIY" forms.

• Author: Klempner, Rochelle
• Position: Do-it-yourself

Introduction I. Document Assembly Programs as a Partial Solution II. New York State Court System's DIY Form Programs III. The Case for Court-Based Document Assembly Programs Conclusion No issue is more fundamental to the courts' constitutional mission than ensuring equal justice for all.

--New York State Chief Judge Jonathan Lippman (1)

INTRODUCTION

It is estimated that, at best, no more than twenty percent of low-income New Yorkers' legal needs are met because civil legal services providers lack resources to meet their needs. (2) The chronic lack of free or low-cost legal services has contributed to a crisis of unrepresented litigants (3) in the New York State (NYS) courts. (4) Each year, more than 2.3 million New Yorkers navigate civil legal proceedings without the benefit of counsel. (5) In an effort to alleviate this crisis, the judiciary has awarded a total of $77.5 million to civil legal services providers throughout New York State from its 2011-2014 budgets. (6) To date, despite serving thousands of families, the civil legal services funding has had little impact on the justice gap. (7) Until there is a right to counsel in civil legal matters, (8) it is unrealistic to believe that there will be any substantial change in the ability of our already overburdened legal services providers and pro bono attorneys to meet the demand for legal assistance.

Against this backdrop of unmet legal needs, the New York State court system's shrinking state budget adversely affects its ability to provide mechanisms to promote fair and equitable access to justice for unrepresented litigants. (9) The NYS court system's $2.7 billion 2011-2012 budget was slashed by $170 million, an unprecedented cut. (10) The shortfall required drastic staff layoffs, which were effectuated on the heels of a retirement incentive the previous year. (11) A hiring freeze still prevents recovering lost personnel. (12) These personnel shortages mean fewer attorneys staff Court Help Centers, fewer Clerks answer pro se questions, fewer interpreters help litigants understand and communicate, (13) and longer delays overall. (14) Court hours were immediately decreased following the budget cuts, forcing unrepresented litigants to handle all their court-related matters during regular daytime business hours. (15) Evening Small Claims Court, often referred to as the "People's Court," was reduced to one night a week to save overtime. (16) Court-based childcare centers were closed, causing many unrepresented litigants to bring their young children into the courtrooms. (17)

A number of court-facilitated legal services programs that greatly benefitted unrepresented litigants were also severely curtailed or discontinued altogether. (18) For example, ProBonoNY, which employed numerous Pro Bono Coordinators outside New York City to facilitate pro bono, and all of the court system's unbundled volunteer lawyer programs, were defunded. (19) New York State Chief Judge Jonathan Lippman characterized the consequences of the budget cuts as "painful" and stated that the impact on the public was "immediate and visible." (20)

In fact, two Bar Association committees investigated and reported that the budget cuts affected the NYS court system's ability to meet its constitutional mandate to deliver justice that is meaningful, fair and impartial, and equal for all. (21) The decreases in personnel, court hours, and services exacerbate the myriad of obstacles unrepresented litigants face when accessing the court system. (22) With record numbers of unrepresented litigants in case types that impact the most basic necessities of life, providing legal and procedural assistance at the courthouse and help with completing and filing legal papers could save homes, secure employment, and keep families intact. (23) This reality has led the NYS court system to invest in innovative, cost-effective, and non-traditional types of delivery methods to provide assistance to unrepresented litigants. (24)

Over the past few years, the NYS court system has been working to build Internet-based document assembly programs using available technology specifically designed to address the barriers to justice that litigants face when they create their court papers. (25) A document assembly program asks the user questions, and then takes the answers and assembles completed personalized court papers. (26) Technology's exponential growth, its enhanced accessibility, and its decreasing costs make document assembly programs an ideal mechanism for serving the unrepresented public. (27) The NYS court system has been extremely successful with its programs, known as DIY (Do-It-Yourself) Forms, which create court papers and instructions for unrepresented litigants employing A2J Author (28) and HotDocs (29) software. (30) A2J Author software was specially designed to make Internet-based document assembly of court forms more widely accessible to unrepresented litigants. (31) In 2012, twenty-five percent of the court forms generated by litigants using A2J Author programs were attributable to NYS court system's document assembly programs. (32)

A Fall 2012 article in the Harvard Journal of Law & Technology acknowledges that projects using A2J Author and HotDocs software provide helpful resources for unrepresented litigants, but posits that it would be difficult to convince court systems of their value given the economic climate and the resources required to utilize the technology. (33) This Article meets that challenge by identifying the benefits both litigants and courts systems attain from a well-executed document assembly project. (34) The data collected by the NYS court system (35) demonstrates that these programs "help save court clerk time, increase the efficiency of the court system, and provide increased court access for litigants who cannot afford an attorney." (36) Court systems throughout the nation must ensure equal access to justice and ensure improved court operations by developing similar document assembly programs.

There are three Parts to this Article. Part I provides an overview of the obstacles unrepresented litigants face with court forms and how the utilization of A2J Author and HotDocs software can combat these obstacles. Part II of this Article relates the NYS court system's experience and success with its document assembly programs and how they benefit unrepresented litigants. Part III examines the reasons why court systems are ideally situated to create document assembly programs for unrepresented litigants and how court systems benefit from their widespread use.

1. DOCUMENT ASSEMBLY PROGRAMS AS A PARTIAL SOLUTION

   It is impossible to fully access the legal system without completing and filing written court papers. (37) Virtually all court cases must be started and answered in writing and all relief must be sought through a written application. (38) Any one case can necessitate drafting and reading an abundant number of legal documents in order to pursue or defend a legal claim. (39) Accordingly, templates for the preparation of court documents are generally the first resource requested by unrepresented litigants and the first task taken on by court systems when they begin to assist the unrepresented public. (40) Thus, to varying degrees, many courts and court systems have promulgated forms, especially in the area of family law. (41)

   Most state court systems have promulgated state-wide uniform forms. (42) This consistency is helpful to litigants who are confused by disparate local forms and the wide variety of vendor forms offered over the Internet, which might not be accepted or applicable. (43) Yet, standardized forms alone are not enough to ensure the pro se litigant will make it through the filing process unless the forms address the other obstacles that unrepresented litigants often encounter. (44)

   Many court systems and many local courts have also placed forms online in an effort to assist unrepresented litigants. (45) Court forms are posted in a variety of formats. (46) The basic offering is the printable form, usually provided as a PDF so most users cannot make changes to the form itself. (47) The user prints out the form and fills in the blanks by hand. (48) More often, state courts post forms online in a tillable format. (49) Fillable forms allow the user to type the required information into the blank spaces on the form before printing. (50) Fillable forms are an improvement over paper forms because they furnish the user and the court with a legible and neat finished product. The format, however, is far from perfect, especially because filling out court forms presents unique challenges that unrepresented litigants often struggle to overcome. (51)

   A 2013 report from Canada entitled The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (Canadian study) found that one of the most consistent complaints unrepresented litigants have when navigating the court system is difficulty reading and understanding the forms due to confusing and complex language. (52) This confusion is not surprising given that twenty-one percent of American adults read below a fifth-grade level, (53) yet legal language is so difficult for most people to understand that the word "legalese" actually exists to describe it. (54) Poorly drafted court forms that are unnecessarily complex frequently overwhelm litigants. (55) Unless the forms are simplified and understandable, a litigant still has no access to justice. (56) Toward this end, a number of court systems have rewritten their court forms in "plain language" to make them more litigant-friendly. (57) Plain language forms help unrepresented litigants understand information better and avoid confusion and misunderstanding. (58) Plain language forms take difficult concepts and state them in simple sentences aimed at a fifth- to seventh-grade reading level. (59) Plain language forms increase...