It’s been said a man who represents himself has a fool for a client. Attorneys are understandably fond of this sentiment. But statistics reveal a higher percentage of success by pro se litigants than those represented by attorneys. Why? The answer or what to make of it isn’t clear, but the questions this raises are many and disturbing when considered in the context of due process or a ‘fair trial’.
Sure…It’s frightening to stand before a judge alone with only your own wits to protect you. It’s like being told you have cancer. But if the diagnosing doctor offered you a pill–a very expensive one with NO guarantees–to ‘cure’ your condition AND after a bit of research you found a LOWER survival rate in those who took it–WOULD YOU BUY THE PILL?? That’s right! As terrifying as cancer may be, having a lawyer (at least statistically) looks to be worse than having NO lawyer at all.
STAMFORD — Cristy Cacciotti-Fortunato doesn’t like to bring her 2-month-old son, Jason, to the courthouse. This past Wednesday, however, the 33-year-old mother bundled her infant son in a stroller and took him to what has become almost a full-time job — representing herself in a three-year-long divorce case.
She balanced a stack of documents on the stroller, the top sheets marked up with red ink. A civil courthouse clerk had found several errors on the forms and Cacciotti-Fortunato had to print out blank documents to make the corrections before trying to file them again. Cacciotti-Fortunato mostly uses the Internet to navigate the legal system and identify the next steps in her case. The work takes time. It forces her to make weekly trips to the courthouse, either to wait for a hearing or use the courthouse’s law library.
“Anything on the Internet is easy — it’s just how to fill forms out,” Cacciotti-Fortunato said. “As you can tell, they’re not really that user-friendly.”
She tried to hire a lawyer at first. Most asked for $5,000 to $10,000 retainers to handle her divorce, and more than twice as much to take the case to trial, Cacciotti-Fortunato said. That made the decision to go it alone easier.
Cacciotti-Fortunato, though, is not alone. She is among tens of thousands of self-represented litigants flooding the state’s civil courts as they try to resolve their own divorce or fight to keep their homes from bank foreclosures. According to statistics provided by the state Judicial Branch, about 29,650 self-represented litigants filed legal actions in family court during the 2010-11 fiscal year. That amounted to 84.9 percent of the total number of family cases filed that year, or more than four of every five cases in family court.
In property cases, such as foreclosures and evictions, 38 percent of all cases featured at least one self-represented party during the 2011 fiscal year. The national housing crisis factored into the sharp rise of self-represented litigants in property cases, which peaked during the 2010 fiscal year at 41-percent of the 27,486 property cases statewide.
A question of access
This past April, the state Judicial Branch formed the Access to Justice Commission to study ways to deal with the recession’s effects on the state’s court system. The chairman of the commission, Judge Raymond R. Norko, said the boom in self-representation applies pressures on the court system. It slows down dockets. It forces judges to sometimes hear cases where one side has an experienced trial attorney and the other a self-represented party. It becomes difficult to deal with those cases fairly, Norko said.
The courts have always seen self-represented parties, but the recent increase is overwhelming, he said.
“Those stressors get multiplied through the whole system,” Norko said. “You can see the effect without having to sit in a courtroom.”
Norko said the situation requires the judicial system to educate the public and increase the amount of information available for self-represented litigants. That includes proposed measures to increase access and transparency, such as supplying hearing aids and handicap accessible-software in courthouses, as one example. Some measures as simple as creating updated brochures for self-represented litigants.
The Access to Justice Commission is also discussing a wide-reaching method to alleviate the burden of self-representation on both the courts and the parties themselves. Proponents of “limited scope-representation,” which allows an attorney to handle only certain portions of a civil case the same way a criminal lawyer can only argue for bond reduction, say the practice better prepares pro se parties and allows attorneys to handle the more complicated tasks, such as arguing before a judge during a hearing. It allows low-income parties to hire attorneys at a lower rate than having them oversee an entire case.
In order to allow attorneys to handle limited portions of civil cases, the Judicial Branch would amend a section of the Practice Book that dictates rules and regulations for the state’s lawyers. Norko said more than 40 states allow attorneys to practice some type of limited scope representation.
“We’re not exactly in the vanguard,” Norko said.
Stephen Conover, a Stamford attorney who chairs a task force studying limited scope representation for the Connecticut Bar Association, said he hasn’t formed an opinion about the practice yet. He said the proponents of adopting limited scope representation seem to have embraced the favorable parts of other state’s programs while casting aside potentially concerning ones. The legal community has mixed feelings about the practice, Conover said.
“There are some lawyers who don’t even like the concept, and some lawyers who think the concept is well overdue,” Conover said.
Limited scope representation, however, cuts down on the cost of legal representation, and most educated litigants can handle simple legal tasks on their own. Skeptics, however, compare the practice to a doctor receiving instructions to only inspect one organ while ignoring others, he said.
“Some say it demeans the profession,” Conover said.
Pro bono work jeopardized
To make matters worse for state residents mounting their own defense in foreclosure cases or trying to escape an abusive relationship, the funding that went to legal aid organizations began to dry up just as the numbers of self-represented litigants peaked.
The housing crisis also affected the ability of the state’s legal community to offer volunteer work for low-income parties. According to the Access for Justice Commission, more than two-thirds of the funds that supported lawyers in pro bono civil cases came from revenue generated by Interest on Lawyers’ Trust Accounts, which collect interest revenue from special escrow accounts. The housing crisis caused an 80-percent decrease in those funds, and the state responded by increasing court fees in order to raise $9 million for legal aid service providers in 2010.
The funding gap left organizations such as Connecticut Legal Services, a non-profit that provides legal counseling and assistance to low-income parties in civil cases throughout the state, scrambling to keep up with the influx of do-it-yourself litigants.
“We’re swamped with people who want a lawyer and people who want advice on their case,” said Steve Eppler-Epstein, the executive director of Connecticut Legal Services. “It’s a crisis.”
The state branched out on its own to assist self-represented parties. Hess, who also serves on the state’s Access to Justice Commission, helped form a volunteer attorney program in 2010 for self-represented litigants in Waterbury and Hartford, eventually expanding it to Bridgeport and New Haven. In 2008, the state created the foreclosure mediation program and appointed neutral officers to eventually resolve more than 8,300 mortgage disputes between cash-strapped homeowners and their banks.
“The mediation program has helped to level the playing field a bit, but I think you’re always better having representation,” Hess said. “You’re emotional. You’re losing your house. Other than losing your kids, I don’t see anything more emotional than that.”
According to Judicial Branch statistics, the volume of new property cases decreased by more than 10,000 cases in the past year, a good sign that the worst of the foreclosure crisis may be ending. Norko said the numbers of self-represented clients should rise and fall along with economic measures.
“If the economy gets better it will lessen,” Norko said. “It’s easier for percentages to go up than for them to go down based on the economy.”
For every number, a personal struggle
For Cacciotti-Fortunato, the date of April 26 looms large. A judge set a hearing in a contempt motion against her on that date, which means Cacciotti-Fortunato must appear before the court. Her ex-husband is also representing himself.
Their divorce became final this past April. Now Cacciotti-Fortunato is fighting for joint custody of her 8-year-old son, who was taken from her earlier this month after her ex-husband filed a post-judgment motion accusing Cacciotti-Fortunato of being in contempt of their divorce agreement. Her fiance has a past felony conviction, and her divorce agreement prohibited her son from living with convicted felons. A judge ordered that Cacciotti-Fortunato’s son live with his father until she stopped living with a convicted felon.
This convicted felon is also the father of Cacciotti-Fortunato’s infant son. In addition to handling post-judgment issues within her own divorce case, Cacciotti-Fortunato is working with her 34-year-old fiance, Anthony Russo, to help get his criminal record expunged of a years-old conviction for violating a protective order.
“She’s actually been doing everything,” Russo said.
The ongoing legal drama has been draining, Cacciotti-Fortunato said.
“I know I am not a perfect mother, however, I do my best,” Cacciotti-Fortunato said in an e-mail. “But when you are always being bad-mouthed or belittled in many other situations … it takes a toll out on anyone.”