The American Bar Association's Coalition for Justice has released its Report on the Survey of Judges on the Impact of the Economic Downturn on Representation in the Courts. State court judges nationwide were asked about their courts' caseloads, whether parties were represented by a lawyer, and what impact lack of representation had on individuals and on the court system.
The four types of cases where the most judges reported an increase were foreclosure, domestic relations, consumer issues, and non-foreclosure housing issues. Sixty percent of judges said there had been an increase in self-representation, with only three percent saying reporting a decrease in self-represented parties. Nearly half of the judges said there had been an increase in self-representation among those who did not qualify for legal aid. There was also consensus that the increase in self-representation harms both the courts (78% of judges) and the people who represent themselves (61%).
The four types of cases mentioned above are areas where consumers can most benefit from inexpensive help from non-lawyers. For example, if the bar and courts were to allow it, divorcing couples could use social workers with some limited legal training short of a law degree to help them get divorced. Other non-lawyer advocates with some legal training could help with housing or other consumer matters. At a minimum, the crisis in access to the courts should lead to increased support and training for self-represented litigants, online form completion, and unbundling of legal services. However, when asked for a solution to the problems of self-represented litigants, 73% said that legal services funding should be increased and 68% thought there should be more pro bono attorneys. More training for self-represented parties was supported by only 44%, online self-completing forms by 36%, and unbundling of legal services by just 19%.
Courts and lawyers have created a very complex system for the resolution of disputes. Now, the system's creators, recognizing that the complexity is causing problems for both them and the system's users, propose maintaining the system's complexity by injecting more lawyers into it. In the current economy, however, neither individuals nor the government can afford more lawyers. A more rational approach would be to find ways to make the legal system simpler, so that people can access it without such difficulty. Allowing innovative approaches--like the ones rejected by the judges surveyed--would ease the burden on both consumers and the judiciary.