I. Introduction and summary: An overwhelming number of persons are choosing to self-represent in a legal system that is not designed for pro se litigants seeking divorces. Given that fact, there will probably need to be adjustments in the legal process to fit the needs of citizens who are choosing not to use lawyers. Meanwhile, there are proven strategies the lawyer can employ to countermand abuses of the legal process by self-represented individuals.

II. The Maricopa County/ABA demonstration project study:

1.In 1990 the ABA commissioned a special project to study the impact of pro se filings on Maricopa County (Phoenix), Arizona dissolution cases. Sales, Bruce D., Self Representation in Dissolution Cases, unpublished manuscript delivered to ABA Special Committee on Delivery of Legal Services on September 27, 1991.

2.A brief summary of the Project indicates that "the legal needs of the poor and middle class are not being met under the current system, one study estimates that legal services and private pro bono satisfy only 15% of the total needs of those individuals whose incomes fall below the poverty line."

3.The study goes on to state that "middle America also suffers, those above the lowest 20% of income level, and below the highest 10%, are often not using legal services when they would have been helpful."

4.The Maricopa study Project also revealed that the number of self-represented individuals in dissolution cases rose from 25% in 1980 to 50% in 1985 and to 88% in 1990 (Project, page 61).

5.Self-represented litigants come from all walks of life and income levels. The profile of self represented litigants and their cases in the Maricopa study reveals, however, that:

a.Lower income people tended to self-represent, particularly those with household incomes under $30,000 per year.

b.Younger persons were more likely to self-represent.

c.Education is also a variable. Lower educated individuals were more likely to self-represent, particularly when correlated to income.

1)However, the most common characteristic of self-litigants was that they had one to three years of college.

2)Indeed, almost 90% of the Maricopa pro se litigants had at least a high school education.

d.Blue collar job holders were more likely to self-represent than upper management and professionals, but only when correlated to income.

e.The characteristics of the case also make a difference.

1)Persons with no children are more likely to self-represent; the complexities of the legal case increase significantly when children are involved.

2)The Maricopa study also found that those persons without real estate tended to self-represent.

f.Persons with short-term marriages tend to self-represent.

g.The fact that a person had prior legal training seemed to have no effect, but prior experience with self-representation did play a role.

Those who had prior experience in self-representation seemed to be satisfied by the experience and were more likely to self-represent again.

h.Interestingly, only 30% of those said they could not afford a lawyer, about 36% "shopped" for a lawyer beforehand, seeing on average 2.3 lawyers apiece.

Almost half of those said that they had decided to self-represent because they perceived their case as being "simple".

III. IMPACT OF REPRESENTATION ON OUTCOME IN MARICOPA COUNTY

1.In terms of the simple divorce case, there seemed to be no significant difference in outcome if the attorney represented the individual except that the self-represented litigant needed less spousal maintenance. When the attorney became involved there was a greater number of requests for spousal maintenance.

2.Attorney-represented litigants were more likely to request temporary orders. Self-represented litigants hardly used them at all (This is most likely due to the fact that clients who seek attorneys acknowledge that their cases are complex and significant disputes with their spouse already exist. Hence, they seek out attorneys).

IV. CONCLUSION OF MARICOPA STUDY; TRENDS

1.The conclusion of the Maricopa study is that self-representation is increasing and, in the case of divorces, may become the predominant form of representation in simple cases. Cf. attached Wall Street Journal article, June 3, 1991.

2.The perceived trend will be for the organized bar, the courts and lawmakers to begin providing more reasonable "self-help" mechanisms, to allow high level pro se access to the courthouse. See, for example the "facilitator" discussions in the WSBA "Domestic Relations Task Force Report" and attached Daily Journal of Commerce article dated September 5, 1991.

3.A 1989 ABA Study entitled "Civil Justice: An Agenda for the 1990s," prepared by the Consortium on Legal Services and the Public and Tulane Law School, recommended:

a.Implementation of a civil Gideon concept for civil indigents.

b.More effective entry point legal services for low- and moderate-income clients.

c.Improved lawyer referral programs with emphasis on more innovative systems.

d.Study of why there appears to be no market for under-utilized attorney time, despite the number of under-served moderate-income clients (Chief Justice Dore has appointed a state task force to work on this same issue).

e.Increased involvement of non-attorneys in the provision of legal assistance, by experimenting with lay advocacy programs to increase access.

f.Reshaping the role of attorneys to ensure expert diagnosis of legal problems at the point of entry, with selection of appropriate service provider to be determined by the nature of the problem and client's preference.

V. MANDATORY FORMS

1.The new mandatory forms are, in a sense, an outgrowth of the trends discussed above. The Legislature has determined that access to justice for dissolution clients will be enhanced by requiring that all attorneys and self-represented individuals play on a level, easily comprehended playing field that has comprehensive checklists and boundaries.

a.The new forms will have a significant impact on self-representation by reducing the barriers to those who heretofore perceived the dissolution process to be too complicated to "go it alone."

b.While no statistics exist, this writer's informal review of court commissioner experiences suggests that at least one-half of all dissolutions in King County involved at least one self-represented spouse over the last three years.

2.At present, there are no significant "facilitators" who can review the self-represented individual's work product. However, in a number of counties, parenting plans for self-helpers are being informally reviewed by juvenile court personnel. A bill to create facilitator positions, on an experimental basis, was supported by the WSBA but did not pass the House.

3.The self-helper presence on the dissolution motion calendar will probably increase significantly due to the availability and simplicity of the new forms, particularly the forms for contempt and temporary support.

a.Previously these forms were only available to legal services clients, although rudimentary versions were available in several of the self-help books.

1)These institutional restraints are no longer present.

2)The divorce lawyer may experience a significant increase of contempt defense cases maintained by self-helpers.

3)More self-helpers may be appearing on the familymotions calendar, asserting newly discovered rights such as discovery, sanctions, terms, etc.

VI. STRATEGIES AND TACTICS

1.When the self-helper has the potential to abuse the legal system:

a.It is absolutely critical that you assess the profile of the self-represented opponent as thoroughly as possible.

1)Explore with your client as much of the personality characteristics of his/her spouse as possible, documenting in particular, those areas which tend to show rigidity, inflexibility, bizarre behaviors, etc.

2)Consider using the Myers-Briggs books that are currently available to assist in this process. (Attached is a profile of 16 basic temperaments found in American culture, based upon Jungian psychology as defined by the Myers-Briggs instruments.)

By getting an approximate identification of the opponents personality profile, your client can then explore in the listed books, the strengths and weaknesses of that profile, particularly as it applies to issues of litigiousness, negotiation style and outcome expectations.

2.If the self-representor is abusive to the legal system or otherwise demonstrates sufficient emotional instability to warrant further concern of the court, consider filing a CR 35 mental examination motion, particularly if the self-represented individual has demonstrated obdurate behavior, such as refusal to allow appraisals, to inspect premises, to produce records. Attach those motions compelling compliance to your CR 35 motion.

3.If the pro se is truly crazy, consider obtaining an order that requires prior court approval for any motion to be filed by the pro se. [See In re Marriage of Giordano, 57 Wn.App. 74 (1990)]. Such an order would include the following minimal requirements.

a.That the pro se be required to read and abide by the normative behavior as set forth in the Rules of Professional Conduct for attorneys as it relates to contact with experts, disclosure of information, candor to the tribunal, etc., on the argument that if the personchooses to be pro se, he or she should be held to the same standard as an attorney.

b.That the pro se read the relevant case law on intransigence, wasting of assets, etc. See e.g.,

In re Marriage of Clark, 13 Wn.App. 805 (1975) (wasting of assets);

In re Marriage of Sanchez, 33 Wn.App. 215 (1982) (dissipation of assets);

In re Marriage of Nicholson, 17 Wn.App. 110 (1977) (concealment of assets);

Rentel v. Rentel, 39 Wn.2d 729 (1951) (failure to reveal assets);

Hall v. Hall, 117 Wash. 615 (1921) (conveyance of property during dissolution for less than full value);

Eide v. Eide, 1 Wn.App. 440 (1969) (attorney fees awarded for intransigence and obstructionist tactics);

Seals v. Seals, 22 Wn.App. 652 (1979) (breach of fiduciary duty to spouse).

c.Ask the court to order the pro se litigant to self-certify that these cases have been read, thus putting the pro se on notice of the consequences of his/her behaviors for a future award of attorney fees, unequal division of assets, etc.

d.Require that the pro se possess a copy of the King County self-help booklet entitled Representing Yourself in Superior Court, the "Pro Se Handbook," (1988) SKCBA publ. (If necessary, buy and serve the booklet on the pro se). Ask the court to require the pro se to self-certify in writing that he/she has read the booklet.

e.Require that the pro se confer with counsel before setting any motion hearing dates, filing a certificate of compliance etc. (The "Pro Se Handbook" describes these and other rules of etiquette very nicely).

4.Consider using Requests for Admission of Fact to cut down on trial issues. If the pro se has, as they typically do, brought irrelevant, extraneous, or already resolved facts, using them as weapons of intimidation against your client (typically, custody threats coupled with demands for property settlement), these Requests for Admission will clear the air. Note, however, that you will undoubtedly be served with a similar set. Provided they are well crafted, the CR 36 process will cut down the trial issues and encourage the judge to put boundaries on what issues are relevant to the trial.

VII. THE TRIAL WITH THE PRO SE

1.Trial courts differ in how they treat a pro se in court. On the one hand, the judge is perceived to be in an ethical quandary, because she/he must ensure that the litigant is not disadvantaged, which may involve the judge going out of the way to help the self-represented litigant, at the same time being the "neutral decision-maker".

The cases reflect the obvious tension between a courts desire to protect the ignorant pro se and the need to preserve the integrity of the adversarial system of which the court is a passive adjudicator...Courts cannot be expected to assume the awkward position, not to mention the imposition, of services both as adjudicator and counsel for the pro se litigant. Such a position would place the court at conflict with the very structure of the adversarial system.

Kim, Legal Education for the Pro Se Litigant: A Step towards a Meaningful Right to be Heard 96 Yale Law Journal 1641, 1646, (Footnotes omitted)

2.Above all, treat the self-represented individual with deference, civility and avoid any form of patronizing behavior. Do not bare your clenched teeth. Even if the pro se does not respond in kind, the court will reward you by insisting that the pro se be held to the attorney standard of conduct, which is your ultimate trial goal.

Very gently, remind the trial judge that the court is a "neutral adjudicator" and loses neutrality by bending over too far to help the self-represented individual. (See the Code of Judicial Conduct which requires impartiality.) On the other hand, if you have a strong case you can afford to be generous. Be sure to wave the "Pro Se Handbook" around the courtroom a lot. Good luck.

Footnotes:

A list of good books to use in comprehending the pro se litigant is:

1.Kiersy, David and Bates, Marilyn, Please Understand Me, Prometheus, Publ., Delmar, Calif. (1984)

2.Kroeger, Otto and Thuesen, Janet M., Typetalk, Delta Publ. New York, (1988)

3.Hirsh, Sandra and Kummerow, Jean, Life Types, Warner Publ. New York (1989).

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