Wednesday, May 28, 2014
PROPOSAL FOR AN AUDIT OF ‘PRO SE’ REPRESENTATION IN MAINE FAMILY COURTS
Wikipedia defines an audit as: "A planned and documented activity performed by qualified personnel to determine by investigation, examination or evaluation of objective evidence the adequacy and compliance with established procedures or applicable documents and the effectiveness of implementation.
A performance audit is increasingly used in government agencies as an examination of success in satisfying mission objectives.
Auditing is defined as a systematic and independent examination of data, statements, records and operations and performances of an enterprise for a stated purpose.
The purpose is then to give an opinion on the adequacy of controls and to improve the effectiveness of risk management, control and governance processes."
This is the working definition we use when we consider asking for an audit of ‘pro se’ issues in family courts. Is the growth of ‘pro se’ representation impacting the “normal” functioning of family courts? If so, how, and what are the qualitative implications?
'PRO SE' IN MAINE COURTS WIDELY ACKNOWLEDGED: 'Pro se' representation in Maine courts is a problem of amateur, ”do-it-yourself “ players trying to navigate the arcane complexities and traditions of family law in family courts. It is an incredible challenge to amateurs that is repeatedly and despairingly acknowledged by self representing users of family courts and by sympathetic members of the Judiciary. It is also acknowledged, as a problem by the Maine Bar, which - in spite of its good faith efforts to find answers to the 'pro se' problem - sees the problem escape those efforts and grow numerically ever larger.
'PRO SE' NUMBERS: Most people don't know the actual size, the statistics, of the 'pro se' problem in Maine Family Courts and are shocked when the hear the statistics. 74% is the number recently reported (personal communication) by Chief Justice Leigh Saufley. Justice Andrew Mead in an "op ed" essay in the Portland Press Herald reported 3/4 'pro se' representation in family courts (or 75%). But we won't quibble over 1%!! It is a big problem. ‘Pro se” users are the majority “parties” in family courts- a big majority!
And ... this 74% percentage isn't static. It keeps on growing despite efforts by the Bar and the Judicial Branch to reduce the numbers - to reduce its prevalence. From the absence of successful “solutions” and the failure to reduce the numbers, one has to infer that there is a problem in diagnosing the "disease" - and its dynamics - or that the corrective "medicine" isn't strong enough or isn't working fast enough. Because the numbers keep growing there is an need for an opinion outside of the Judicial Branch about the nature and scope of the problems and for proposals to correct them. We feel that OPEGA qualifies, given their experience in conducting audits and given their enviable reputation for fairness and objectivity.
NATIONAL 'PRO SE' PERSPECTIVE: The 'pro se' problem is by no means just a Maine problem. The National Center for State Courts (NCSC) reports that growing ‘pro se’ representation is a growing problem for every state. Connecticut and New York are said to have 82 and 83% 'pro se', respectively. Some of the problem seems related to national "macro economics" and the economic problems of the last several years. Some of it is related to the escalating costs of private legal services, which quickly become a financial deterrent to middle class family court users. But we have to ask, regardless of abstract economic speculation, do we really want to end up competing with Connecticut and New York for bigger ‘pro se’ numbers? What are we waiting for?
Like it or not, the 74% 'pro se' problem proclaims a 'de facto', two tier user (and social class) system in our courts - the wealthy 25% have lawyers, and the middle class 75% “do-it-yourself”. The questions for the public are: (a) what are the root causes of this social discrimination, can causes be addressed and (b) should we just let the problem continue (and grow) uncorrected?
THE HUMAN PROBLEMS behind the 'pro se' number: are public users, judges, lawyers and others. Any audit needs to consider who uses family courts 'pro se' and otherwise. What are the demographics? What are other differentiating features? How do 'pro se' users feel about their legal adequacy in court? What "tools" do they use in representing themselves? What is their experience of judges? What outcomes differentiate those with lawyers form those with none. Is there a differential with regard to Guardian ad litem experiences?
Likewise there is a need to evaluate how judges perceive the 'pro se' issue. What are the professional challenges for judges dealing with 'pro se'? What solutions do they improvise to address the problems? What suggestions or recommendations do they have for improvement? What "tools" does the Judicial Branch already provide those doing self representation? How useful/adequate are these?
We have heard many lawyers claim that they see no problem with the current operation of the family court system. On a personal/professional level this is certainly understandable, because in cases where they oppose a 'pro se' "lawyer", they have an extreme professional advantage in their own favor. It must be like "taking candy from a baby"! There may be other advantages too in this sort of uneven "legal combat", but an audit would look at all of the dynamics and, one hopes, challenge complacency.
THE DEMOCRACY "PROBLEM": Clearly a two class court system in which those with money for a lawyers are favored and those without a lawyer to represent them are disfavored poses a huge challenge to a democratic society. It is an enormous embarrassment to all of us to ignore the inequality. It is an important issue that needs thoughtful evaluation to diagnose the nature of the problem and to recommend intelligent proposals for correction that will be democratic and constitutional.
AN OPEGA PERFORMANCE AUDIT, we feel strongly, is the way to go for Maine’s children and families, who are forced to represent themselves in family courts! We ask the Legislature, the Judicial Branch and the Governor, along with the “grassroots” to support legislation to begin problem analysis and problem solving of the ‘pro se’ issue.
We are trying to bring about reform to the Guardian ad litem role and Family Court system. We encourage you to become involved and to contact us at MeGALalert@gmail.com or find us on Facebook.