Sunday, September 28, 2014

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.


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 or find us on Facebook.


  1. Dear Dr. Collins,

    You obviously care deeply about the Maine family court system. May I offer a humble suggestion? The problem really is not with the GAL system--most GALs are very dedicated and view their work as more of a calling than as an assignment. Where the system is hurting most is in the lack of legal assistance for people without the means to retain attorneys. Please consider shifting your focus from attacking GALs to doing serious work to increase legal assistance to pro se parties. I speak as not a GAL nor a family court attorney but one who has been there.

    1. Dear Anonymous,

      Dr Collins makes no mention of Guardians ad litem in this post. He is commenting on the two tiered system of Justice that we face in Family Courts (and I would guess other court systems) here in Maine. When Hon. Leigh I. Saufley, Chief Justice tells us that over 74% of the cases in Family courts are Pro se. That is a huge problem.

      Regarding Guardians ad litem - with all due respect to the comment on "most" GALs as being very dedicated. There is a very real problem with this role. The training is limited to the point of being a joke. There is very limited management and oversight of these people by Judges and there is no functioning complaint process. If a Guardian ad litem operates in error the parents involved have no recourse. While you may come back and say there is a complaint process in place - the statistics of how many people are successful in their complaint speak to the problem. In over 10 years only two GALs have been removed - and it was not due to a complaint from a consumer.

      There are huge problems with Family Courts that have been unchecked for years. Dr Collins appears to be one of the few taking steps in questioning these perceived problems. As one who "has been there" I applaud the efforts that Dr Collins and others working towards reform against a very entrenched and unyielding system.

    2. Dear Anonymous (September 30 comment),

      Thank you for the comment. As was pointed out this posting has nothing to do with Guardians ad litem but with access to justice or the lack of it for 74% of the Pro se litigants in our Family Court system.

      With that being said - there is a huge problem with the role of Guardian ad litem in this state as well as across the country. It is a role that is ill defined and one which causes a lot of pain for a divorcing family.

      Over three years ago I had the misfortune of having a Guardian ad litem assigned to my divorce. She was the best of the best and was managed by the former Hon. Ralph Tucker. The sad truth is the judge provided no oversight or management of the GAL. This GAL - made wild claims that my son would become the next unabomber - this without ever having met or talked with my son (this is just one example of many). My case is mild compared to some of the stories. Some have been documented here on this blog - all would make your skin crawl.

      The Judicial Branch has no data on these people. None.

      While they do not we do. Since 2011 we have found out that there are four judges whose names keep coming up time and again. These judges find their homes in Rockland, Portland, Biddeford and Springvale. We are also tracking over 30 Guardians ad litem whose names show up over and over (this by the way represents over 10% of the rostered GALs in the state). The names of these GALs are the names of some of the most respected GALs in the state. They may be dedicated but their dedication is mis-directed.

      There is a very real problem that has remained hidden and covered up for far to long. There is no transparency and no way to realistically discipline these GALs (I know you may say one can always file a complaint - while true the current process is not working and has not for over 10 years).

      Again thank you for your comment.

  2. This is a reply to the September 30th comment.
    >Sorry, but your remark is "off topic", as a comment to the actual blog posting. The letter to Mary ann Lynch is my response to a telephone conversation that she and I had on the topic of 74% 'pro se' representation (and growing) in family courts. Why it is growing, no one knows. But the 74% statistic is eye popping! It is even higher in some states (NY & Conn). No one knows what the "answer" to this issue is. Lawyers claim the need for more lawyers, but this is very unlikely to ever happen and more lawyers is probably NOT the answer. We feel that there is a need for data about the 74% 'pro se' that will shed clearer light on the problem. One common way to get such data is from a legislative audit, which other states have done.
    >Your faith in GALs being dedicated and having a vocation is very touching, but I would ask: How do you know? What's your data? My impression is that we are the only people with any sort of hard data based on surveys and actual contacts. Mostly it is personal/professional opinion or anecdote that guide the GAL program.
    >There is also the issue of, Do GALs really do any good in divorce and custody conflicts? Do cases go better, do children do better, do families recover faster, are divorces less expensive with a GAL, etc, etc? For improving and/or reforming GAL problems, we need objective studies, that go beyond opinions.
    >We are not attacking GALs. We are exposing an out of control, unsupervised system that urgently needs public oversight and reform. GALs, family courts, judges and the divorce bar are "joined at the hip" in the problems we see. It is a system- all parts of which needs thoughtful, intense public scrutiny.
    >Hence, my letter to Mary Ann Lynch, Media Counsel for the Maine Judicial Branch.

    1. Thank you Dr Collins for the comment and clarification.

  3. Guardian ad litem here has sued 32 of his former clients. He has also been charged with death of child but in another state. It is amazing noone knows or cares.

    1. Thank you for the comment. What state is this taking place?

  4. I am amazed to see this dialogue... all comments re. GAL's I agree with but if it is so baffling as to why there are so many pro se litigants, why don't you go out and talk to a handful of them? They will all tell you the same thing-- that their attorneys are liars, just in it for the money, are lazy beyond belief, deliberately prolong their cases and could care less what happens to them or their kids. Many have spent their entire life savings on attorney's and have gotten no where. The entire legal system does not work. Laws and agreements are hardly ever abided by, or take several years to enforce. Pro se is not the problem it is simply a response of the people in the face of tremendous injustice. I believe as the gig is up and people understand what it is really all about that the Pro Se numbers in Maine will rise to the levels seen in Ny and Ct. The Pro Se numbers will go down when people find value in hiring an attorney. I am Pro Se and would rather lose my own case thank you.

    1. Thank you for the comment. As Pro se you can bet that you will do what it takes to fight for your child(ren). Can a lawyer say that? Doubtful as they run the risk of upsetting the 'balance' with the court system. We have said it before regarding GALs in that no lawyer will confront a GAL without running the risk of having the judge and GAL turn against them.