When I was appointed to the Superior Court of the State of California for the County of Los Angeles (LASC) in 1995, my first assignment was a felony calendar court, a huge challenge for a lawyer whose legal practice had been “big firm” civil litigation. My reassignment to a courtroom hearing general jurisdiction civil cases a few years later was more familiar terrain. But it also put me in daily contact with colleagues in the same courthouse whose dockets confronted them with a new set of challenges gripping state courts nationwide: a rising tide of self-represented litigants (SRLs) with a profound need for the justice and protection only a court can provide but with few tools with which to navigate a complex system built by and for lawyers.
Soon after my reassignment to our main civil courthouse, I met a judicial colleague who, before his appointment to the bench, had served on the city council of a small city within the jurisdiction of the LASC. Over lunch in the judges’ lunchroom one day, the former council member began describing his vision for the future of justice in Los Angeles. He imagined a court system in which every community in Los Angeles would have a court-staffed kiosk where people could go to get advice about how to interact with the court in order to file, prosecute, or defend a civil lawsuit.
My judicial colleague’s vision was striking for someone still relatively new to the judicial role. In my mind at that time, courts could only be purely neutral institutions deciding cases brought forward by adversaries. How could the advantages of the adversary system of justice be maintained if the court was providing guidance to one side in litigation?
It turns out that my colleague who envisioned accessible advice for litigants was well ahead of his time. Many judges in the late 1990s took the view that, when pro per litigants (as they were then called) appeared before a judge or sought assistance from court staff, the only proper response was “I am not allowed to give you legal advice; I must treat both sides in a case the same way.”Footnote 1 But fast forward two decades, a window that includes my term as Presiding Judge of the LASC, and it is clear that American courts have undergone a tectonic shift, even a transformation, in their approach to court-provided guidance and assistance to unrepresented parties. What historically was a pat statement that “the court cannot provide legal advice” has, by necessity, morphed into a more useful but still limited set of resources for unrepresented parties often drowning in legal complexity.
This chapter offers both a history and an assessment of court-annexed assistance for litigants who try to access the court system without counsel and a perspective on whether these efforts, enhanced by a growing menu of digital tools, might plausibly narrow the justice gap by providing these litigants with necessary assistance. At once a history lesson and an in-the-trenches look at a couple of decades of court reforms, my aim is to show how anxieties about judicial and court neutrality have given way to an array of reform options that are producing concrete lessons as the American legal system considers alternatives to conventional, lawyer-centered forms of legal help in a legal system with massive amounts of unmet civil legal need.
Section 5.1 begins with a short, high-level review of efforts by courts around the nation to help SRLs adrift in an ocean of procedure and legalese, gradually abandoning the preexisting view that it was improper to assist SRLs. Section 5.2 offers a more detailed account of LASC’s efforts, providing a more focused case study of the institutional and ideological challenges of SRL-focused reforms. Some of LASC’s efforts to leverage human and technological resources to provide guidance and assistance to SRLs worked well, and others were surprisingly ineffective. Section 5.3, the final section, proposes some “lessons learned” from court efforts to design and oversee self-help services. Those services necessarily fall short of full legal representation. Nevertheless, courts’ experiences using supervised nonlawyer resources and technology interfaces to assist SRLs may suggest paths to more cost-effective, high-volume legal services and provide ideas for reformers considering how to enhance access to justice.
5.1 Navigating the Adversary System without Counsel and the Rise of Court Self-Help Services
As early as the 1990s, judges and court administrators across the nation could see a collision coming. On the one hand, the American legal system was as committed as any in the world to adversarialism, the idea that legal systems work best when the parties – and, more specifically, their lawyers – proofs in a structured, forensic setting to a neutral and passive decision maker who resolves the dispute.Footnote 2
On the other hand, a rising tide of high-stakes but small-scale cases was beginning to flood court dockets: debt collections, evictions, home foreclosures, and child support enforcement actions, among others. These cases were posing particular challenges for judges and court administrators because they tended to pit an institutional plaintiff (a bank, debt buyer, corporate or municipal landlord, the government), nearly always represented by a lawyer, against an individual defendant, nearly always self-represented. In addition, in cases where family members turned to the courts to settle disputes, establish legal relationships, or provide protection (divorce proceedings, guardianship and conservatorship petitions, name change petitions, applications for domestic violence restraining orders), litigants increasingly attempted to navigate the legal system without counsel.
When litigants bring their disputes to court without legal representation, it substantially burdens court operations. Think of a family law proceeding. An SRL who has no idea what to do to solve a custody dispute comes to the courtroom to ask the courtroom clerk for guidance. This interrupts the clerk’s efforts to try to organize the court’s calendar for the next day. Or a litigant may not understand how to serve her papers, a concept that is not intuitive for most litigants. When the motion is called for hearing, the judge has to explain service of process and continue the motion, further clogging future calendars. As the number of SRLs increases, these delays multiply.
By the late 1990s, it had become clear that complacency was not a sustainable approach to this challenge. Until then, the phenomenon of “pro se litigation” had mostly been the subject of isolated inquiry by individual jurisdictions. Then, in 1998, an important conference – a joint effort of the American Judicature Society, the State Justice Institute, the Open Society Institute, and the American Bar Association – brought together judges and court administrators from across the nation to think through the details and dimensions of the dilemma.Footnote 3 SRLs were growing fast: Even in the 1990s SRLs were filing a high proportion of family law cases in California.Footnote 4 By 2015 crowded court calendars with substantial SRLs were the norm in family law and some civil courtrooms. A 2015 national survey concluded that lawyers represented both sides in only 24 percent of civil cases and that even in general jurisdiction civil cases only 46 percent of defendants were represented.Footnote 5 As the Judicial Council of California observed in its 2019 Benchguide for Handling Cases Involving Self-Represented Litigants, “[t]he traditional passive role for judges works well when well-prepared attorneys represent both parties to a dispute. It doesn’t work as well when there is a full calendar of self-represented litigants who are unfamiliar with court rules, processes and evidence while trying to present their cases.”Footnote 6
Self-help resources for SRLs initially were thought of as a coping mechanism for courts with crowded civil and family law calendars struggling to move cases forward.Footnote 7 As court self-help efforts matured, and as the number of SRLs coming to court grew, courts came to realize the tragedy starkly articulated in the 2016 Civil Justice Initiative report to the Conference of Chief Justices: “The idealized picture of an adversarial system in which both parties are represented by competent attorneys who can assert all legitimate claims and defenses is, more often than not, an illusion.”Footnote 8
Slowly but surely, courts began to experiment, within the limits required for courts to maintain their role as a neutral adjudicator of disputes. Initially, that meant courts providing books, brochures, and forms and online educational tools.Footnote 9 Subsequently, it became clear that pamphlets and forms alone could not adequately communicate the complexity of court proceedings and substantive legal requirements. Courts began putting substantial resources into self-help centers where SRLs could meet face-to-face with court personnel to seek help.Footnote 10 In the ten years between the mid-90s and mid-00s, some 150 self-help centers were established nationwide.Footnote 11 While this required substantial investment of budget resources, scarce space in court facilities,Footnote 12 and considerable management oversight, self-help centers became an integral part of many courts’ operations.Footnote 13 By 2019, California’s self-help centers were servicing more than one million court users each year.Footnote 14
In some quarters, these court efforts were controversial. Representatives of the establishment bar even argued that the existence of court-annexed self-help services discouraged use of attorneys.Footnote 15 Self-help services provided by courts ordinarily include notifying litigants of pro bono or low-cost options for representation.Footnote 16 But some courts apparently thought the primary goal of court-provided self-help resources should be urging litigants to seek attorney representation.Footnote 17 Today, however, it is undeniable that existing resources in the legal community have not been able to meet the needs of the litigants who do appear in court – to say nothing of those who have legal needs but do not even attempt to access the courts, or those who are sued but fail to appear.Footnote 18
Concededly, self-help services can never be the equivalent of legal representation. The necessity that courts maintain neutrality ultimately means that courts cannot recommend a strategy, draft and propound discovery or, challenge the opposing party’s factual representations.Footnote 19 To state the obvious, a court cannot become an adversary to the party opposing an SRL. However, even careful adherence to that maxim leaves ample room for court-provided and court-hosted services. Courts can provide education about law and procedure, assist in filling out forms with information provided by SRLs, access court records of a litigant’s case, and provide options based on the state of the litigated matter. The next section of this chapter offers a closer-in look at how one court – the court where I have had the privilege of serving for nearly thirty years – has attempted to serve the needs of SRLs while hewing to the adversarial fundamentals of the American legal system.
5.2 Efforts to Assist Self-Represented Litigants at LASC
LASC is the largest trial court in the country, serving one of the country’s most diverse populations. Its prominence and its long experience in providing self-help services to SRLs make it an ideal case study in what has worked well and what has fallen short despite careful design. As reformers in the public and private sectors search for cost-effective, high-volume legal services models or alternative representation models, they should be aware of what courts have learned from their efforts to provide self-help services. The discussion that follows describes and appraises some of the self-help services LASC has implemented or attempted in an effort to leverage human and electronic resources to assist litigants, including efforts to ensure that SRLs have access regardless of the language they speak or their language literacy.
5.2.1 Leveraging Human Resources
5.2.1.1 Using an Educational Model to Enhance Service Delivery
In 2002 the Judicial Council of California gave grants to several local courts, including LASC, to encourage development of self-help models. Initially, self-help services were modeled on traditional one-on-one legal representation. A person would come to a courthouse for help and be served by court staff or legal services staff who spoke with the individual, discussed the person’s case or legal problem, and provided court forms. Court forms in California are complex, even though (or perhaps because) the forms organized legal topics and required factual responses in an iterative flow. Forms also change frequently, often in response to legislative changes. Because of the complexity of court forms, litigants served by the individualized self-help model typically needed to be guided through the process of filling out the forms.
Given the volume of civil and family law cases filed in Los Angeles County,Footnote 20 demand for self-help services could not be met using an individual-service delivery model. In subject areas where self-help demand was greatest, particularly in family law, LASC evolved into an educational service delivery model. In 2003, using a model self-help pilot grant, LASC self-help staff observed the types of SRL assistance being provided by several legal aid agencies, and then began experimenting with an SRL workshop model used by the Buhai Center for Family Law. LASC then worked to find ways to reduce the time required for workshops so as to fit into a morning or afternoon session the information needed to fully educate family law litigants about how to make informed decisions in representing themselves.Footnote 21
In family law cases, self-help services provided through an educational delivery model begin at an intake desk at which court staff greets the SRL and asks what they want to accomplish, whether they have a pending case, and what stage their case is at. Importantly, the intake staff person has access to the electronic court docket and can check the status of a litigant’s case, if a case already has been filed. Usually, it can be determined rather quickly what type of help the person needs. If there is an immediate need for action (e.g., need for a restraining order or emergency custody order), the SRL is referred to a staff person who can provide prompt individualized assistance.
If there is not an immediate need for action, the SRL is directed to an online or in-person introductory workshop. The introductory workshop for divorce covers topics including service of process, income and expense organization, community and separate property, spousal support, custody and visitation and child support.Footnote 22 The goal is to familiarize the SRL with the terminology and basic concepts involved in a divorce or dissolution matter. When conducted in person, the introductory workshop may take about three hours. After the introductory workshop, the family law litigant is required to complete a “homework packet” that tells the litigant what documents must be gathered (e.g., “your paystubs from the past two months”) and asks for information such as income for both spouses, monthly expenses, debts, information about children, and schedule of parenting time requested. The “homework packet” is not a form to be filed with the court; it is a guide to gathering factual information relevant to a divorce proceeding.Footnote 23
The SRL is told that family law self-help staff will require the “homework” to be turned in as a “ticket” to attending the next workshop. The divorce process is broken down into a total of three workshops. The second workshop provides step-by-step assistance with filling out court forms to begin or respond to a divorce. The third workshop assists litigants with filling out default judgment forms to complete their divorce if the respondent has not filed a response. Prior to the pandemic, all workshops were in-person. Now the first workshop is online in a format by which the SRL selects topics and moves through slides with written and oral explanations that are accessed at the litigant’s own pace. Subsequent workshops are scheduled Webex sessions that require a reservation. The participating SRL can use the share-screen function to ask individual questions about court forms, but the process is less efficient than an in-person workshop.
The educational service model for self-help allows far more litigants to be assisted. Individual assistance continues to be provided to help an SRL who needs specific direction or help with a particular answer on the “homework” or on a court form. But the goal is to communicate information online or in a group setting to the extent litigants are able to comprehend and assist themselves. Notably, the educational model allows both sides in litigation to be assisted: Occasionally court staff even instruct both parties to a divorce proceeding in the same workshop. In other subject areas, such as evictions, self-help assistance is provided by the court to both self-represented landlords and tenants, but different types of assistance are provided.Footnote 24
LASC links family law self-help services to the needs of the litigant in the courtroom. When an SRL appears in court in a family law proceeding and the judge concludes that the litigant has not met a legal requirement (such as service of a motion or filing a required document), the judge can check a box on a standard form, give the form to the litigant, and send the litigant to the self-help center (or to the court website) for assistance with the issue the court has identified.Footnote 25 Linking court proceedings to specific self-help services in this way is of great assistance to family law judges in handling their heavy calendars.
LASC has had great success with the educational model. SRLs can move relatively seamlessly between group education and individualized assistance when needed. The court offered a total of 2,126 workshops on eviction, probate, and family law topics from June 2020 through July 2021. Follow-up workshops are well-attended. Over a period in which 680 initial divorce workshops were offered, there were 333 second workshops (assistance with court documents in the divorce process) and 116 third workshops (obtaining a default judgment).Footnote 26
5.2.1.2 Using Student Interns to Assist with Self-Help Services
In 2004 LASC created a JusticeCorps program to bolster self-help resources. The JusticeCorps program is affiliated with the federal AmeriCorps program, which provides benefits to people who agree to participate in approved community programs, such as disaster services and education.Footnote 27 JusticeCorps recruits college students and recent college graduates to help provide individualized assistance to SRLs in self-help centers. JusticeCorps college students work part-time during the school year or full-time during the summer. Graduates who had a JusticeCorps internship or other volunteer service experience while in college can apply for a one-year full-time fellowship.
JusticeCorps students and graduate fellows are carefully trained by court staff and legal aid partner staff for the subject area in which they will be working, and they work under the supervision and direction of court staff and legal aid staff.Footnote 28 “JusticeCorps members answer questions, help litigants complete court paperwork, and assist in workshops that address the requirements of the various stages of family law, evictions, probate and some civil cases – providing in-depth and individualized services to the litigants.”Footnote 29
The JusticeCorps program at LASC has been extraordinarily successful and has significantly extended the resources of the court’s self-help services. JusticeCorps also creates opportunities for young people to learn about the law and the judicial system and prepares them for careers in the legal field. JusticeCorps at LASC has more than 2,000 alumni.
An important part of the success of the JusticeCorps program is the high standard of service and professionalism to which participants are held. JusticeCorps members wear uniforms and badges. After their training, students officially become part of JusticeCorps by taking an oath administered by a judge of the court during a ceremony to which their families and friends are invited. They promise to “bring Americans together to strengthen our communities,” to take action in the face of apathy, to persevere in the face of adversity, and to “get things done” in commitment to “the ideal of equal access to justice for all.”Footnote 30
5.2.1.3 Addressing Language Access
LASC provides interpreter services to litigants in over 255 languages.Footnote 31 Providing interpreters during court proceedings is not enough. Language access is important for users of the court website, for SRLs using self-help services, and for litigants seeking assistance from the clerk’s office or other court staff.
The JusticeCorps program, described above, recruits students who speak another language in their homes. These young people provide a language lifeline for SRLs in the court’s self-help program. The court also provides a supplementary salary stipend for court staff with language skills sufficient to allow them to answer the questions of litigants who speak a language other than English. More recently, the court put in place remote telephonic interpreter assistance. Court users identify their spoken language on “I Speak” cards, and they are connected to an interpreter from an outside organization who interprets live through the telephone. This service is provided in self-help center intake counters and clerks’ walk-up counters and over the phone through call centers.Footnote 32
5.2.2 Leveraging Electronic Resources
5.2.2.1 Electronic Resources Adjacent to Self-Help Services
Prior to 2020, most self-help services were provided in person. Over time, the information and assistance provided on the LASC website grew, but the court primarily focused on in-person services for SRLs. Although court forms were available online, and the court’s self-help centers had computers available for litigants to use to fill out forms while in the self-help facility, most SRLs chose to fill out paper forms. Court staff and legal aid partners who assisted with self-help services generally did not encourage SRLs to use the computers provided (even when completed forms could be filed electronically). As stated by the LASC Managing Self-Help Attorney, who has served in that position since 2002, most staff and legal aid professionals “would not accept that poor people could use computers.”Footnote 33
COVID-19 changed this complacency. During the pandemic, most services had to be delivered by remote video or by telephone. If SRLs could use a computer, they were able to have their work checked or ask a question about a specific form by sharing their document electronically with the person assisting them. Staff learned that many SRLs had or could develop computer literacy. Now staff and legal aid professionals working to assist SRLs in person are trained to try to encourage use of the computers provided in the self-help center. Their experience is that most people can use them.
Use of computers by SRLs streamlines the self-help process. If SRLs can use a computer, they can use the court’s online resources, either instructional material on the court website or live educational training modules delivered remotely. These resources do not require a trip to a courthouse. Moreover, computer use by SRLs attending in-person training allows for easier review of forms by court staff, correction of forms by the SRL based on the comments of the reviewer, and ultimately filing with the court.
Of course, an SRL may not have access to a computer outside of a courthouse self-help center. The City and LASC public library systems have stepped up to meet that need, and directions for access to library services are featured on the court website. The City of Los Angeles’ Public Library Tech2go program allows an adult with a library card to borrow a Google Chromebook and internet hotspot from the library for up to six months. All Los Angeles County public libraries have computer workstations for public use and allow adults with a library card in good standing to borrow a Laptop and Hotspot Kit for three weeks with an option to renew.
5.2.2.2 Website Innovation: “Gina” the Traffic Avatar
In 2016 LASC pioneered providing online services for traffic court litigants using an avatar we named Gina. Gina is an animated cartoon of a woman who serves as a virtual clerk. She greets users and offers assistance in five languages.
First, she helps users locate information printed on their traffic citation. Her instructions are both verbal and transcribed. Once the litigant inputs the unique number of their traffic citation, the court’s computer system locates the ticket. Then Gina offers specific options for the litigant. Persons who are eligible for traffic school are told about this option and how to comply with and document the traffic school requirements. An opportunity to set up a payment plan is offered to those who have not previously defaulted on a payment plan. Litigants are told they have an option to continue their hearing date and that they can respond by filing a statement in opposition to the citation in lieu of appearing in court. In each instance, options are clearly explained verbally and in writing simultaneously, and users type the letter or number of the option to indicate their choice. Further instructions follow based on a user’s choices.
Gina has been successful, providing assistance that SRLs can and do use and consequently reducing the burdens of in-person appearances, both for SRLs and for the court. She has helped as many as 4,000 people per week. By allowing online payment plans to be established without judicial involvement and by creating the traffic avatar function on the court website, wait times for traffic litigants seeking in-person advice were reduced from hours to an average of twelve minutes. This was hugely significant for litigants. Previously, traffic court litigants had to miss work on one or more days to accomplish a fairly simple traffic court transaction.
5.2.2.3 Online Dispute Resolution
LASC, together with Los Angeles County, has built a seemingly well-designed online dispute resolution (ODR) resource for low-dollar amount cases.Footnote 34 The ODR architecture allows parties to begin a negotiation by chat between or among themselves, provides helpful prompts to assist parties in thinking about what to say in making an offer or demand and allows documents to be uploaded and displayed to the opposing party. Importantly, parties are given an option to request that a live mediator, appearing remotely, assist in the negotiation. The participation of a neutral, when requested, helps ensure an even playing field in the negotiation even when one party is more sophisticated than the other.
Use of ODR is not mandatory for LASC small claims cases.Footnote 35 The ODR platform was used by litigants in 1,400 small claims cases in the period February 2021 through July 2022.Footnote 36 To those outside the LASC system, this may seem like a large number. But in fiscal year 2021–22 there were over 22,000 small claims cases filed in Los Angeles County.Footnote 37 Thus, only 5 percent of small claims litigants even tried to use the ODR platform. And only 2 percent of small claims cases were settled using the ODR platform.Footnote 38
One problem for use of ODR in the context of small claims cases is the difficulty of notifying parties of the availability of ODR. The court is able to email small claims plaintiffs and encourage them to reach out to the defendant to obtain an agreement to use ODR. But the court does not have access to the Defendant’s email. Therefore, it is up to the plaintiff to decide to participate in ODR and then to contact the defendant to explain the ODR resource and encourage the defendant to use it.
Another likely difficulty is the inability of the court to design ODR prompts that address the facts relevant to a particular small claims case. Small claims can involve almost any area of civil law, from real estate to construction defect to the Uniform Commercial Code to tort to contract.Footnote 39 Unless a mediator becomes involved, it is likely to be difficult for the parties to evaluate what damages are recoverable and what facts are needed to prove a claim.
The problem of low usage of ODR for small claims cases may have a more fundamental explanation. LASC also developed an ODR platform specifically designed to allow parents in divorce proceedings to negotiate the terms of their parenting plan without having to meet face-to-face. No mediator services are annexed to this ODR tool, but if the parents agree to a plan, the program generates a parenting plan agreement that can be filed for approval by the court. Even where both sides agreed to participate in the negotiation through ODR, a settlement was achieved in only 15 percent of cases.Footnote 40
5.2.2.4 Electronic Guidance for Completion of Court Forms
“Guide and File” was created by Tyler Technologies to help SRLs complete court forms. The user answers specific questions and the answers are used by the computer program to populate a form that can be electronically filed with the court. The great advantage of the design is that the end product is a document that complies with all court filing requirements.
In fiscal year 2020–21, 980 Guide and File interviews for filing an initial request for divorce were completed by Los Angeles County litigants.Footnote 41 But in that fiscal year there were over 29,000 filings for marital dissolution in Los Angeles.Footnote 42 In 2020–21, litigants completed 860 requests for domestic violence restraining orders using Guide and File,Footnote 43 but over 14,000 such requests were filed.Footnote 44
Customer satisfaction surveys show that most users who complete a Guide and File interview process have a high degree of satisfaction.Footnote 45 However, only about one-third of Guide and File interviews that are started by LASC litigants are actually completed.Footnote 46 Guide and File interviews can take an hour or two to complete.
5.2.2.5 Addressing Language Access in the Electronic Environment
The court obtained grants to be able to translate portions of the court website into the top five non-English languages used in Los Angeles County – Spanish, Mandarin, Armenian, Korean, and Vietnamese. But information the court provides to SRLs in written form, whether in English or in another language spoken in Los Angeles County, may not be understandable to many people who need court assistance if they have a low level of written language literacy in their native language.
As described above, Gina, the traffic avatar, provides both written and verbal guidance for traffic matters. The court believes that one of the reasons for Gina’s success is that she addresses both language and language literacy. The court’s self-help educational modules delivered online now also provide information simultaneously in writing and verbally. In addition, the court incorporates icons as nonverbal communication signals, an innovation supported by the research of the National Center for State Courts (NCSCs).Footnote 47
5.3 Lessons Learned from LASC’s Self-Help Experience that May Be Transferable to Low-Cost Legal Representation
This section elaborates on what LASC has learned about leveraging resources to assist SRLs, how to address language access and language literacy, the central importance of early fact-gathering to legal assistance, and the possibility that procedural and substantive law reform can help to close the access-to-justice gap. These insights may be useful to reformers seeking to improve delivery of cost-effective representation to low-income litigants.
5.3.1 Leveraging Human Resources by Involving Nonlawyers
Legal representation might achieve economies by incorporating an educational service model similar to that used by LASC early in representation (after initial intake) or at later stages of the representation process, particularly if the educational service model is supplemented with supervised resources similar to JusticeCorps. The parameters governing the assistance nonlawyers are allowed to provide in a court-annexed self-help setting may or may not be appropriate when legal representation is provided, and the author expresses no view on that issue. However, it may be useful to explain the accepted boundaries for provision of court self-help services.
Guidelines for court employees or contract workers providing court-annexed self-help services are derivative of the ethical restrictions that guide how a judicial officer may advise litigants. Neutrality is critical. A judge may not provide assistance to one side in litigation that the judge would withhold from the other side. Judicial ethics rules in California provide: “To ensure impartiality and fairness to all parties, a judge must be objective and open-minded. … It is not a violation of this Rule, however, for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”Footnote 48
Translated into the self-help context, the neutrality requirement necessitates that, if LASC provides self-help services in a particular subject area, it must provide assistance to both plaintiffs and defendants. For example, LASC provides self-help services for both self-represented landlords and self-represented tenants in eviction cases. Further, individual guidance should be provided in a manner that maintains the appearance of court neutrality. As stated in the California Administrative Office of the Courts’ Guidelines for the Operation of Self-Help Centers in California Trial Courts:
Services are standardized in that self-help center staff should give the same answer to a question regardless of who asks the question. For example, they can tell a litigant that a declaration needs to be completed and may provide guidance on what kinds of facts a court would need in order to decide the issues. The staff may ask appropriate questions to assist in clarifying the facts, and otherwise promote a focus on facts relevant to the court. But the declaration is in the litigant’s own words.Footnote 49
In addition to neutrality, competence is essential. A court must provide accurate information when it provides guidance to litigants. If self-help staff advises a litigant that they do not need to complete a particular section on a court-approved form, other court staff should not reject the form as incomplete and the judge should not withhold the relief requested by the litigant on the ground that the form was incomplete. Of course, the point is not that self-help staff can bind a judicial officer. Rather, self-help staff must be adequately trained so that they only provide assistance that is supported by law, court rules, and any local judicial practice.
California guidelines for self-help services require that a self-help attorney oversee the work of nonattorney staff and that a “managing attorney should be responsible for the oversight of all the legal assistance and education provided to the public.”Footnote 50 The guidelines encourage the use of experienced nonattorney staff so long as they are trained and have access to an attorney:
Deployment of experienced nonattorney staff to multiple court locations to provide direct services to the public is an excellent way to leverage personnel as long as they are properly qualified and can communicate with at least one attorney working concurrently at one of the court’s other self-help center locations who is available for timely consultation.Footnote 51
Training and experience requirements specified in the California guidelines include, inter alia: five years’ relevant experience for the self-help managing attorney;Footnote 52 two years’ relevant experience for staff attorneys;Footnote 53 for nonattorneys, a high school diploma and two years’ experience working with a licensed attorney or three years working for a California court plus a minimum of twenty hours additional training in the relevant area of the law where assistance is provided.Footnote 54 Courts are allowed to substitute equivalent experience and training in “appropriate situations.”Footnote 55
JusticeCorps volunteers in LASC self-help centers are supervised by LASC staff attorneys or by self-help attorneys provided by legal aid partners. Full-time JusticeCorps Graduate Fellows, who will serve a minimum of 1,700 hours over the course of a year, initially receive two full weeks of training. Then new fellows shadow returning fellows and receive on-the-job training while continuing additional training on five Friday afternoons. Additional trainings are added as needed or for enrichment throughout the year. Undergraduate student JusticeCorps members receive most of their training on weekends because they are all full-time college students. They are trained over weekends in September and October with additional weekend follow-up training in January. After at least three full days of training, they begin shadowing staff and being coached onsite while weekend training sessions continue.Footnote 56
LASC has seventy-six full-time court employees who provide self-help services. Of these, twenty-four are attorneys. In addition, self-help services are provided by forty legal aid partner employees working in nine courthouses. In addition, thirty-two full-time JusticeCorps fellows and about seventy part-time JusticeCorps students work under the supervision of LASC employees and legal aid partner employees.Footnote 57
California self-help guidelines provide that “when a litigant cannot be effectively assisted in the court self-help center, prompt referral to appropriate legal assistance should be made whenever possible.”Footnote 58
LASC would gladly refer self-help clients to lawyers, publicly funded or otherwise, if those resources were available. Court self-help services are a stop-gap measure, and courts would gratefully redeploy self-help resources to court adjudicatory functions if no-cost or low-cost attorney representation made SRLs vanish. But as circumstances now present themselves, LASC has experimented to make self-help assistance efficient and accessible. Perhaps our innovations can be adapted to make attorney representation more economical.
5.3.2 Recognizing that Electronic Resources Can Assist Socioeconomically Disadvantaged Individuals
Experience during the pandemic taught LASC that traditional assumptions about the computer literacy of low-income clients and the availability of computer resources may no longer pose as significant a barrier to reliance on electronic resources as once thought. For attorneys, review of documents or forms shared by a client electronically is likely to be less time-consuming than one-on-one in-person review sessions (both for the legal adviser and for the client).
However, electronic tools must be developed to accommodate individuals with limited language literacy. The principal motivating factor for LASC’s creation of Gina, the traffic avatar, was to attempt to assist persons with limited language literacy. Depending on the community served, those seeking to provide low-cost legal assistance may have to address providing service in multiple languages. But all low-cost legal services providers are likely to encounter persons with limited language literacy. Use of interactive avatars, verbal as well as written communication, and guidance through nonverbal cues such as icons are tools that legal services providers should consider in their client communications.
What can be learned from LASC’s efforts to help SRLs that resulted in tools that are underutilized, such as LASC’s ODR and the Guide and File programs? On the front-end, it is important to involve the intended audience in the development and testing of tools for SRLs.Footnote 59 On the back-end, empirical research can provide insights into what does and does not work and why. Unfortunately, courts’ priorities are and must be managing their daily operations. There is not a great deal of bandwidth for conducting focus groups or empirical studies.
The NCSC and the Institute for the Advancement of the American Legal System (IAALS) have wonderful advice for courts seeking to improve access to justice.Footnote 60 But the substantive and procedural laws of each state are different. Each state is required to translate the factual and legal requirements expressed in laws written for (and mostly by) lawyers into tools that are understandable to a nonlawyer. The questions posed by Guide and File in California were written by lawyers. So were the standard California Judicial Council forms. Even with the good advice of NCSC and IAALS, this translation process does not always succeed in its mission.
5.3.3 The Importance of Early Identification and Assembly of Relevant Facts
A large part of the success of Gina, the traffic avatar, is that she can provide options specific to the factual and legal circumstances of a particular person and a specific traffic citation. The first thing Gina does after determining which language the user needs is to prompt the traffic litigant to enter the unique identifying number of the citation they received. With this information and the name of the person to whom the ticket was issued, the court’s computer can access data concerning the nature of the citation. This central, basic fact allows the court to advise a litigant of the specific options available to them. Is the person who received the citation eligible for traffic school? Can they be offered a payment plan (or have they previously defaulted)? Are they eligible to ask for an automatic deferred payment (or have they previously deferred)? Can they be offered a continued hearing date (how many times have they previously asked for continuance)? What future hearing dates are available? The decision tree is not complicated, but when the computer has access to the underlying facts that determine the legal options for a particular individual, that person can be given clear-cut choices, not just general information.
The court’s first version of the traffic avatar provided only general information about possible options for addressing a traffic ticket – not information specific to the particular individual’s available options for resolving their traffic ticket. This first version of Gina did not ask for the unique identifying number of the citation or access stored data about the nature of the traffic citation and the individual cited. In order for LASC to have information about a particular traffic citation, it had to invest in technology that created an electronic record of each traffic ticket entered by the police department that issued the citation. To achieve this technology improvement, the court had to coordinate with each of the more than forty-five police departments and other law enforcement entities (such as the California Highway Patrol) that operate within Los Angeles County.
The early, more general approach to assisting traffic litigants was much less successful, even though online options for continuing a hearing date, seeking a payment plan, or resolving the ticket through traffic school were available. When LASC was able to move from an educational model (what do I do if I get a ticket) to a transactional model (I got a ticket, what do I do), utilization of Gina more than tripled.Footnote 61 Without the basic facts that shaped the litigant’s legal options, online self-help assistance, even when provided by an avatar, fell short of serving the needs of SRLs.
An important component of the success of the education model of self-help used in family law cases is assigning “homework” to the SRL. The “homework” requires the self-represented family law litigant to organize and compile the core documents and information relevant to the legal issues in a particular person’s divorce proceeding. The process helps focus the litigant on the issues that will be important to the divorce proceeding rather than points of animosity about the causes of the divorce. As a matter of policy, court staff requires that the “homework” be completed before allowing an SRL to attend the second-level divorce education module. Self-help staff’s guidance to a particular SRL (e.g., what forms are essential) is shaped by knowing the issues that will need to be addressed in the divorce proceeding.
Conversely, lack of information about an SRL’s particular circumstance has undermined other efforts to provide effective self-help services. Court administrators for family law services very much wanted to create a “chatbot” to assist litigants. The goal was for the chatbot to be able to answer open-text questions typed in by the user. However, without some level of organized information about a particular SRL’s circumstances, the inputs were just too complicated for a chatbot to handle. Despite repeated efforts, court administrators only achieved 60 percent accuracy – meaning the chatbot was wrong about 40 percent of the time.Footnote 62 The chances of providing erroneous advice simply were too great to allow implementation of a chatbot in this context.Footnote 63
It should not be surprising that gathering the facts relevant to a legal dispute is a critical element of providing appropriate options to a litigant. After all, in most substantial civil litigation, discovery is the most expensive part of the pretrial litigation process.Footnote 64 The author of this chapter has argued elsewhere that in categories of simple, repetitive litigation, mandatory, automatic disclosure of specified documents and information should be required at the outset of litigation.Footnote 65 Especially in simple, repetitive litigation in which the plaintiff ordinarily controls all information necessary to prove the claim presented (e.g., collections, eviction, and judicial foreclosure cases), there is no reason to require a self-represented defendant to use the adversarial processes of discovery to obtain relevant information about the case.Footnote 66
LASC’s experience in assisting SRLs demonstrates that effective guidance is optimized when the core facts on which the outcome of the case will turn are available to the person or technology tool providing assistance early in the litigation. It seems logical that the costs of providing effective legal representation to a low-income individual likewise will be lower if counsel (or any person providing legal guidance) can develop means to obtain core facts at the front-end of the representation.
Applying this principle to simple, repetitive litigation in which the plaintiff ordinarily controls all information necessary to prove the claim, it makes sense to explore policies that would require plaintiffs to make disclosures when they file a complaint or, perhaps, to attach relevant documents to the complaint. California and Oregon have moved in that direction.Footnote 67
5.3.4 Reducing Legal Complexity
As discussed above, ODR and Guide and File have had limited utilization in LASC’s experience. Courts have made efforts to assist SRLs by providing plain language forms but have found that there is an irreducible complexity in substantive and procedural law that makes straightforward forms difficult to achieve.
Consider that the first issue faced by a person in California seeking a court’s protection from violent acts of another is which of four different types of restraining orders can provide the legal protection the person needs. The four types of restraining orders – (1) elder or dependent adult abuse protective order, (2) domestic violence restraining order, (3) civil harassment restraining order, and (4) workplace violence restraining order – fall under the jurisdiction of the probate courts, the family law courts and the civil courts, respectively (with workplace violence restraining orders considered a civil court matter). Each type of restraining order has procedures that allow a temporary restraining order to be issued ex parte – a necessary but complex process in and of itself. Some of the distinctions between the types of available relief are so fine that SRLs in LASC sometimes have been sent from the civil filing window to the family law filing window and back again.Footnote 68 On the California Judicial Council website, the forms for these types of relief are organized separately: fifty-seven forms for “Domestic Violence Protection,” thirty-three forms for “Elder or Dependent Adult Abuse,” and thirty-five forms for “Civil Harassment Protection.”Footnote 69
Of course, there are relevant distinctions in the circumstances that may give rise to the need for legal protections provided by a restraining order. But are all the fine legal distinctions that have evolved by looking at these remedies separately worth the cost of making the remedies less accessible? I do not pretend to know the answer, but it seems to be a question worthy of study.
Perhaps instead of struggling to simplify complex laws by translating them for use by nonlawyers, we should consider simplifying the law to make remedies and defenses more accessible to SRLs and to reduce costs of providing representation. As suggested above, procedural reform specific to some remedies such as debt collection and eviction (e.g., requiring plaintiffs to provide evidence to prove specific elements of the case at the time the case is filed), may be a path to less complex and costly access to justice. Substantive law in these high-volume cases should be examined as well.
5.4 Conclusion
Court-provided self-help resources are by no means a panacea. But those interested in regulatory reform of the legal profession and those interested in cost-effective representation of litigants in areas of high-volume litigation may find the courts’ self-help experiences instructive.
Courts have learned to leverage resources to assist SRLs in a variety of ways. Rather than assigning one staff person to work with one SRL, LASC utilizes an effective education model. With this model, groups of litigants on both sides of certain case types can be helped simultaneously. The court also utilized AmeriCorps funding to create a JusticeCorps cadre of undergraduates and recent college graduates who supplement court self-help services. The pandemic provided a push to leverage the use of computers to assist SRLs who formerly were assumed to be unwilling or unable to use such technology.
Courts also recognize that language access requires more than just relying on Google Translate. LASC invested in a language line to serve court users at self-help and public counter locations. Nevertheless, written language translations may fail to provide for the needs of those who have limited literacy in their native language. Verbal guidance by an avatar or a voice-over provides for greater comprehension than written instructions alone, especially when unfamiliar concepts need to be explained. Use of visual symbols such as icons also provides more effective wayfinding through multilayered material.
LASC has had greater success interacting with SRLs when it can provide answers based on facts specific to the particular litigant’s circumstances rather than advice about a general area of law. Early assembly of facts relevant to a litigant’s legal problem is critical to more effective guidance and early case evaluation.
Not all seemingly well-designed self-help tools have worked. When courts or others develop tools to interact with individuals seeking help with a legal problem, it is important to involve prospective users in the design. Empirical evaluation of what works and what doesn’t is key to determining how to make a better tool to assist litigants.
Finally, it may be time to think differently about the interface between the law and the human experience of individuals. Instead of struggling to translate complex legal principles into concepts that nonlawyers can understand, and instead of acquiescing in the current expense of litigation, perhaps efforts should be directed to simplifying substantive law and tailoring procedure to the fair presentation and adjudication of less complex cases.
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