Since start of downturn, more people representing themselves in court

By Amanda Becker
Monday, July 19, 2010

The economic downturn has sent more people into the court system at a time when they are less able to afford representation and fewer organizations have the resources to provide it pro bono or at a reduced cost.

More than half of judges surveyed by the American Bar Association reported that an increase in foreclosure filings, domestic relations disputes, consumer cases and other housing-related matters have created an influx of cases since the beginning of the downturn. The parties in these cases are increasingly showing up without an attorney and do so to their own detriment, a report released last week by the ABA noted.

"This isn't surprising, it's just disappointing that it's true," said bar association committee Chair Linda Klein. "The increase in foreclosures, the increase in domestic violence cases, the increase in consumer issues, we expected this."

The bar association's Coalition for Justice last September attempted to assess the impact of the downturn on the courts but found there was little existing data. So the commission designed its own survey, which posed questions about docket size, self-represented parties and the impact of both on the court, which was answered by more than 1,000 judges from 37 states.

Sixty percent of the responding judges reported that fewer people have retained professional legal representation and slightly more said that those who do show up without a lawyer are negatively impacted. The judges were nearly unanimous in choosing the failure to present necessary evidence as the most common error made by self-represented parties, closely followed by procedural mistakes, ineffective witness preparation and the failure to adequately object to evidence.

The survey showed that self-represented parties also stress the resources of the court. Of the 78 percent of judges who said self-represented individuals had a negative impact on the court, most noted that it slowed courtroom procedure and used more staff time to assist pro se litigants. The typical profile of those unable to obtain an attorney has also changed, according to anecdotal reports, with 46 percent of judges reporting that the number of self-represented people who did not qualify for a court-appointed attorney had increased.

That fewer people are showing up with lawyers from nonprofit and grant-funded organizations, which typically fill the gap between those who are able to afford legal representation and those who qualify for a court-appointed attorney, isn't surprising given that the second-largest source of revenue for civil legal aid programs has all but dried up.

After the Legal Services Corporation federal grant program, the main source of revenue for many legal aid organizations is a program known as Interest on Lawyer Trust Accounts, or IOLTA. This revenue, which is drawn from interest-bearing accounts maintained by attorneys on behalf of their clients, plummeted from $371.2 million in 2007 to just $92 million last year, according to a report released by the Brennan Center for Justice, based at the New York University School of Law.

"The amount that IOLTA accounts have been able to bring in has been falling due to declining interest rates," said Brennan Center researcher Emily Savner.

The center at the end of June released a report that painted a bleak picture of the effect declining IOLTA funds have had on legal services organizations in the region. It noted that the DC Bar Foundation, which administers the IOLTA program in the District, reported that annual revenue from trust account interest had dropped from $2 million to about $500,000. The Maryland Legal Services Corporation expects to distribute only $2 million in IOLTA funds this year, down from $6.7 million in 2008. "Of course this comes at the moment when the need is greatest," said center attorney Rebekah Diller.

The bar association intends to use the results of both studies, which will be discussed at its upcoming annual meeting in San Francisco, as the basis for an upcoming commission that will make policy recommendations to ensure a greater rate of legal representation.

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