The Pro se Problem in Family Courts

Mary Ann Lynch
Government and Media Counsel
Maine Judicial Branch

Dear Mary Ann,

It was a pleasure to talk with you by phone on Wednesday afternoon and to share a few thoughts about the very troubling 74% ‘pro se’ problem in Maine’s family courts. 74% is a powerful number that speaks to a socially unacceptable differential status of citizens/voters in the face of  justice. My purpose in calling you was  to be a “catalyst” for broad based problem-solving concerning the ‘pro se’ phenomenon. It seems to be growing numerically by leaps and bounds, despite valiant, well-documented efforts by your associates to contain it.

To me, as a former public health planner, there appears to be a lack of data about the nature of this problem that would be a vital necessity in designing a strategic intervention to reduce this unacceptable 74% number. The problem of ‘pro se’ numbers also appears to suffer (paradoxically) from well-intended attempts to try to solve the ‘pro’ se’ problem with inadequate problem definition. It puts “answers to the problem” before adequate “problem definition”, and thereby places the cart in front of the horse. Without wishing to disparage the ongoing work being attempted by those associated with the Maine Judicial Branch and the Maine Bar, I would suggest that there are some serious planning questions that need research and study before seeking answers.

Here, in brief, are a few of my thoughts, a recap and elaboration on our earlier phone discussion:

WHAT SHOULD THE GOALS FOR  ANY ‘PRO SE’ INTERVENTION BE? In any thoughtful, large scale, organized government plan, one needs clearly stated goals to aim for - and to keep the movement towards goals on target. I would suggest- tentatively- that the aim for the ‘pro se’ problem should be to reduce the incidence and prevalence of ‘pro se’ as a phenomenon in Maine family courts - “to move the “numbers needle” backwards”. To use a public health conceptualization, one might say ‘pro se’ is a growing epidemiological problem. What is the “epidemic” about, how is it spread over Maine’s “at risk” populations, who is vulnerable, what factors are causing it, what exacerbates its growth, what diminishes its growth and what “interventions” might well organized data suggest would be most effective? To that end, I suggest a sample of some very generic questions that an epidemiologist might ask before intervening in any epidemic.

WHAT IS THE NATURE OF MAINE’S FAMILY COURT ‘PRO SE’ PROBLEM? Beyond anecdote, who are the 74% of people who do ‘pro se’’ in Maine’s family courts? What sort of demographics do they represent? What ages, occupations, education levels, financial status, duration of marriage, number of children, geographic locations, previous marriages/relationships, health/mental health status?  What are the reasons that they are  doing ‘pro se’?  Financial reasons (examples)? Or other reasons?  All of these data would be useful tools in shaping rational problem-solving. Without such data, solving problems can only be based on anecdote, guess work, personal impressions, prejudice and bias. Bad information, as everyone knows, leads to bad answers!

DOES HAVING A LAWYER MAKE A DIFFERENCE IN OUTCOME OF DIVORCE AND CUSTODY? What is the statistical record for various types of outcomes for ‘pro se’ litigants? How do things go when one party has a lawyer and the other doesn’t? What factors favor what outcome when both parties have a lawyer? Are there statistics for law firms and lawyers showing records of wins and losses? How do ‘pro se’’, lawyers, and judges view the contest?

HOW DO ‘PRO SE’ LITIGANTS FEEL ABOUT THEIR COURT EXPERIENCE? Were they helped to do pre-court paperwork? Was the help that they received effective or was it confusing? Did they get help or coaching before going to court? From what kinds of helping sources? How do ‘pro se’ litigants feel about their courtroom experience?  Were they put at ease by the judge? Were they treated respectfully? Did they encounter judicial hostility or overt rejection? Were they listened to? How did they handle evidentiary challenges (“object, object, object!”) from opposing counsel? Were they included in all conferences and administrative issues? Did they feel that they received treatment in court equal to opposing counsel (if there was one)? Do they have ideas for simplifying the process for making it less time consuming, fairer and with happier resolution? How were they and their children impacted by the personal stress of the  ‘pro se’ experience and its  aftermath?

HOW DO FAMILY COURT JUDGES FEEL ABOUT THEIR EXPERIENCE WITH ‘PRO SE’ LITIGANTS? What kinds of problems do they experience? What impact does ‘pro se’ have on courtroom procedures and process? What are the biggest challenges in this situation for judges? What would they suggest to solve some of the problems associated with ‘pro se’? Do they have suggestions that might diminish the incidence of ‘pro se’ ?

HOW DOES THE DIVORCE BAR SEE THE ‘PRO SE’ PROBLEM? Does everyone in a divorce and custody situation need a lawyer? What type of cases may not need a lawyer?  What about pre-court legal “coaching”? What about paraprofessional lawyers? What about defining custody as 50-50 in all cases- except proven abuse? What other ideas? What about disincentives for lawyers? What about fee caps on all cases, or needing certification from a judge to bill beyond a certain $$ figure?

Please, do not take the preceding paragraphs as any sort of concrete proposal. The remarks above are offered only as possible examples of epidemiological data for use in a very classic, rational problem solving process. The questions are more to get a conversation about planning going- or to say, we don’t want to go there, because...

To my thinking, all three branches of government should be involved in any such a conversation leading to a plan for action. The core issue at the heart of the ‘pro se’ problem problem is about how we are to treat Maine families and children in the throes of divorce and custody. It is a question about the well being of a  sub-population of huge importance to the future of Maine. Interest in the topic goes way beyond the interest and practices of one branch of government and one profession. Ideally all three branches of government should work on the issue and should sponsor the supportive legislation to enable the work. As to the question of who might  best do such a study or variations thereof in the interest of the public, my vote would be for OPEGA; others might have other choices. My personal aim would be to eliminate the dominance of “special interests” of stake holders from the “divorce industry”, who have been the dominant players heretofore. They don’t represent the people.

I hope this gives a bit more flesh on the bare bones we discussed on Wednesday? It is still skeletal!  It is just a beginning of a much needed larger conversation.

Thanks for your time, your always valuable perspective and your in depth knowledge of the Judicial Branch - and Maine government.

Sincerely,

Jerry Collins

CC: MeGALert

If you have had a bad experience in the Family Court systems or with a Guardian ad litem. Please contact us at MeGALalert@gmail.com or find us on Facebook.