Posted on: February 15, 2019
A contributing writer for The Atlantic recently wrote an article about how she represented herself in her divorce. PILI’s Executive Director, Michael G. Bergmann, wrote the following response about why that is not always the answer when people cannot afford legal representation.
Deborah Copaken’s story in her article “The DIY Divorce” grossly oversimplifies and misrepresents the realities of those who have to face America’s court system alone. Even with the financial difficulties she outlines in the article, Copaken does not represent the typical pro se litigant, mainly because she was able to avoid many of the expensive and sometimes dangerous consequences of a divorce. Not to mention, she did not actually have a “DIY Divorce” since she repeatedly received legal help from a friend who was a lawyer.
Copaken’s lawyer-friend explained best why a pro se solution was the right one for her, mainly that she was educated, spoke English and the divorce itself was relatively amicable. Additionally, even with Copaken’s real financial hardships, she described a situation closer to middle class than poor. Most people who face a legal problem alone are close to or well below the poverty line and are disproportionally people of color. Unlike Copaken, they cannot afford to keep missing work if the other party forces multiple hearings like her husband. They cannot afford to forego alimony or forfeit child support. And most don’t have Copaken’s education to help them work through the intricacies of the legal system.
In actuality, having to navigate a legal issue alone is a symptom of a complex and costly system. For low-income litigants, foregoing legal representation could cost them even more financially and could also prove dangerous, such as in situations where domestic abuse is involved. As outlined in the 2018 article, Access to Justice Through Limited Legal Assistance, those who have legal assistance achieve better outcomes. The article cites one study that found that women with lawyers were able to secure a protective order 83% of the time compared with only 32% of women who did not have a lawyer. Another study showed that those with representation are more likely to receive positive outcomes for child support and custody than those representing themselves. Over and over again, litigants achieve better results with legal help than those who go it alone. That said, in our current civil justice system, there are those that will be forced to proceed pro se because legal aid is stretched too thin and for many, paying for a lawyer is literally a choice between that and child care, food and other basic necessities.
Luckily for Copaken, she had legal help. Her lawyer-friend answered questions, assisted with forms and helped Copaken navigate the legal system. The relationship outlined in the article looks very similar to a relationship between a client and a lawyer working on a pro bono, limited scope basis. And if Copaken, as a white, educated English-speaker was unable to navigate her amicable divorce completely on her own, why should we expect anyone else to?
Right now, there is an army of lawyers and organizations working tirelessly to help make the justice system accessible for those who cannot afford a lawyer. Perpetually underfunded and understaffed, these programs are working on real solutions to assist pro se litigants and make sure everyone has access to justice. In Illinois, where I’m from, Illinois Legal Aid Online provides online tools and resources curated and written by lawyers to help guide people through the legal system. The Illinois Supreme Court Commission on Access to Justice is also working to improve the system for pro se litigants by doing things like simplifying forms and making them available in multiple languages. Additionally, a large network of legal aid organizations and pro bono volunteers provide legal assistance for free to those whose problems are too complex to go pro se. At the Public Interest Law Initiative (PILI), where I am the Executive Director, we are working to both increase pro bono service across the state by developing innovative pro bono opportunities, while also opening courthouse-based Self-Represented Litigant Help Desks to assist pro se litigants.
Instead of encouraging people to DIY their legal issues like a fun home improvement project, we should be encouraging more lawyers to do, or to do more, pro bono. According to the most recent annual report available from the Illinois Attorney Registration and Disciplinary Commission (2017), 32,446 lawyers performed 1,913,322 hours of pro bono legal services. That is a terrific start, but as of that report, there were 64,449 licensed lawyers in Illinois. That means that only about half of Illinois lawyers are doing pro bono. Legal aid programs across Illinois (and around the country) need the skills, training and experience of all lawyers to take on full representation, to perform limited scope representation, and to help at help desks and clinics.
Rather than expecting people to represent themselves, we should be focused on fixing a justice system that leads people to consider that as, or for it to be, their only option. We should be providing resources for those that need it, while also building a system that actually provides equal and accessible justice for all. More than anything else, we should not be forcing people to face what is often the worst moments of their lives, be it divorce, domestic violence, eviction or any other civil legal issue, alone.