Equal Access to Justice - Not as a Pro se litigant

In June of this year we wrote to the US Department of Justice regarding issues surrounding Pro se representation. Part of the issues a Pro se litigant has to deal with is the denial of equal rights and access to Justice. In Maine, Connecticut and New York the Pro se litigant makes up 74% or greater of the cases in court. In over 80% of these cases the Pro se litigant is up against a lawyer. Below is our letter to the Justice Department:


US Department of Justice
Civil Rights Division
950 Pennsylvania Ave, NW
Washington. DC 20530

To Whom It May Concern:

Subject: Civil Rights Complaint: 74% of Maine Family Court Users, Who are 'Pro se' Are Denied Equal Rights in Family Courts.

In Maine 74% of people in family courts are 'Pro se'. This amazing statistic comes from a personal communication from Maine's Chief Justice, and it has appeared in an essay by an Associate Chief Justice in the Portland Press Herald. There is also the statistic that in 86% of cases in family court there is only one lawyer. These limited numbers alone raise questions about whether equal justice is possible when a 'pro se' litigant is opposed by a lawyer.

Attempts to seek corrective action in discussion with leaders in the Maine Judicial Branch have gone nowhere.  Likewise, an attempt to obtain a legislative audit (see below) have been defeated, largely because of oppositional lobbying from the bar and the Judicial Branch. I am enclosing the content of the proposed bill, which aimed at obtaining further data about the nature of the 'Pro se' problem in Maine, so as to be able to move forward with rational planning to address the problem. It gives the gist of the civil rights problem in a nutshell. See below:

LD 953 An Act to Improve the Court Experience of 'Pro se' Litigants

Senator Burns, Representative Hobbins, members of the Judiciary Committee

It is a pleasure to endorse Rep Seavey's bill, LD 953, An Act to Improve the Court Experience of 'Pro se' Litigants. From my perspective as a member of Maine Guardian ad litem Alert, LD 953 is our most important piece of legislation this year. It calls for a legislative study, what one might call an audit, of the 'Pro se' experience of justice in one or more Maine family courts. The title of the bill calls for "an improvement of the court experience" of 'Pro' se litigants. But before we can "improve", we need to know "what exactly is that experience?"

We don't really know. Apart from the eye-popping statistic that 74% of litigants in family courts, we know almost nothing. I don't know, Mary Ann Lynch, Judicial Branch spokeswoman, doesn't know. The Chief Justice doesn't know. And ... most important - you as members of a legislative committee charged with constitutional "oversight of the Judiciary" don't know and need to know. You can't do "oversight" of any problem without knowing the nature of the problem and this requires data to work with.

Although the Judicial Branch will claim to be moving on the 74% 'pro se' problem, and though Justice Andrew Mead has had a committee working on the problem for a couple of years, these operations affecting the 74% majority users of family courts are not open to the public. Their deliberations are conducted out of public view. The from what we have learned, the committee aims to:

(a) raise money from lawyer donations to pay for legal services for some of the 74% 'Pro se' group,
(b) ask the bar to do more 'pro bono publico' work for the 74% 'Pro se' group,
(c) allow clerks in various courts to assist 'pro se' clients with paper work,
(d) ask judges to be more "user friendly" to 'Pro se' litigants and stop saying, "Don't come back to this court without a lawyer!" All of these efforts are fighting an ill-defined, gargantuan task with a "peashooter"! They are solving a problem with no data, no definition of the nature of the problem. From the feedback we get from our friends, these efforts are a well-intended, unsystematic, disorganized, "drop in the bucket". Normative family court pronouncements, coming from the Judicial Branch, continue to be written for lawyers. Shall we say, "Oops ... we forgot that only 26% represented by lawyers." The Norm, the usual, the average, the typical is 74% 'Pro se'.

The Judicial Branch is attempting to solve the 'pro se' problem, before they know the nature of the problem. They are posing unsystematic solutions for an unknown clientele, without involving this clientele in the solutions. Part of the problem in understanding the 74% 'Pro se' client is that the Judicial Branch has no electronic data that might shed light on these clients, so solutions are, of necessity, a "short in the dark", guess work, lacking an intervention model that fits the situation, driving blind. The Judicial Branch is not in the habit of conducting surveys or studies. The preferred approach is to assemble "stakeholders", to debate and recommend answers. Typically, "stakeholders" are politically powerful members of the "divorce industry", lawyers, judges at various levels, Guardians ad litem, who have a personal/professional stake in the answers. It is the "foxes" assessing the problems and needs of the "chickens in the hen-house"!

QUESTIONS IN NEED OF ANSWERS FOR CORRECTIVE ACTION:

1. What are the demographics of the 74% 'Pro se' group? What is the gender spread? Socioeconomic levels? Education levels? Immigrants? Linguistically handicapped? Disabled?

2. What are the decisional outcomes of the 74% 'pro se' court experience? Do cases go well for the 'Pro se' litigant? How do 'Pro se' litigants evaluate their experience as consumers of family court service? What services or supports do they feel would have helped them?

3. What do lawyers, judges and GAL think about the 'Pro se' problem? Do they see it as the norm in family court or as the exception? How have they (or haven't they) adapted formal procedure to untrained litigants?

4. The 'Pro se' trajectory: How many people start as 'Pro se'? How many move to "Pro se' after they run out of money? How much money has the average 'Pro se' litigant spent before they decide to go 'Pro se'? What is the impact on 'Pro se' litigants previous experience on their savings, retirement, mortgages, college funds, family borrowing, other forms of borrowing?

5. How much time from work, vacation time, sick time, etc. must 'Pro se' litigants take to handle appearances in court and administrative activities normally handled by a lawyer? Employment consequences?

6. How do courts handle the 74% 'Pro se' litigant's lack of knowledge of courtroom procedure, rules of evidence, cross examination techniques, non-compliance with various professional protocols? Are 'Pro se' litigants treated as lawyers or as parties? Are there standards for 'Pro se' in court? What impact has the huge number of 'Pro se' litigants had on family courts? Can family courts still be considered "courts" when the participation of litigants is so unequal, uneven and out of keeping with courtroom standards and protocols?

7. 'Pro se' appeals to the Supreme Court: how many? Do they get help? What if their brief is not up to legal standards? Can a 'Pro se' simply do his/her own thing in forming a brief, or must they try to be a "junior, untrained lawyer?

The above questions are just a limited sample of things one needs to know in advance of rational frugal goal-oriented problem solving. The answers to these questions might guide planners in developing a rational plan to correct and reform family courts and address the 74% 'Pro se' problem. Family courts, in our view, are in a state of 'free fall" at the moment. Just the limited facts we have give us a "peek" into a what is a "court" in name only. 74% 'Pro se' and getting bigger. No demographic or statistical or geographic spread data to work or plan with. No standards for the 'Pro se' litigant that recognize their non-professional status and their need for tools and assistance in the name of justice. . No idea of who these people are and no idea about what might help them in their advocacy. Current Judicial Branch planning is not data based, not reality based, not consumer based. It is prescribing for others without knowing them. From our direct, personal experience, Clerks of courts give the behavioral message; they are not sure how to deal with 'Pro se' litigants and whether the 74% majority should get service priority or the priority is to serve the 26% real lawyers. They are wary of helping the 'Pro se' litigants with forms (it might be misconstrued as "legal help"). They are inconsistent from court to court in their explanations and directions. Their inconsistency leads to confusion, duplication and time consuming errors. Time consuming errors are "time off from work" for a 'Pro se ' litigant- no billable hours for a lawyer! It is as simple as that.

Finally there are the heartbreaking stories of the human wreckage of 'Pro se' litigants caused by Maine's family courts with no supervision, no oversight, no management. It cries for an audit or whatever you choose to call an assessment of this very broken system. Should it be repaired, or should it be terminated or will it simply "crash and burn on its own, if no action is taken?

We ask that the US Department of Justice, Civil Rights Division help the 'Pro se'  citizens of Maine, who cannot obtain equal justice when they go to court on their own and "unarmed" with the "tools" of lawyers.

MeGAL is working to bring reform to the Family Court system. If you have had issues in Family Court we encourage you to reach out to us. We may be found on Facebook or via email at megalalert@gmail.com.

Some questions to ask your Guardian ad litem

Our court system has us believe that the role of Guardian ad litem is at least in theory a person who is the eyes and ears of the court offering a neutral and unbiased view of the divorcing family. In practice the person who operates in this role is anything but. The Guardian ad litem’s personal values and agenda clouds the process and as a result this can be a source of conflict with you.

Ask yourself this:

How well do you know this person?

What happens if your values differ from that of this court appointed official?

Our Family Court system markets the belief that in the roll of Guardian ad litem we have a person who we are to believe is an expert in determining – where your child should live, the impact of divorce or domestic violence, visitation, custody, law, psychology and social work to name a few areas. This expertise comes from just a few hours of training with little or no focus. There is no test to determine whether or not this Guardian ad litem understands the material. There is no mentoring program after the Guardian ad litem completes training. To make matters worse - there is no oversight or management of this person in this role. Doctors, lawyers, judges, electricians, plumbers, nurses, oil burner technicians, chiropractors, social workers and dental hygienists have more training and oversight. In addition to the training and oversight we can ask people in these professions questions without the fear of being reprimanded for doing so.

You – as a consumer – need to inform yourself about the person who is being thrust into your life and making decisions which you have no control over. They should be asked before any Guardian ad litem has become a part of your life - chances are the Guardian ad litem is already wreaking havoc in your divorce/ custody. It is not too late.

These questions are being presented in no particular order or grouping. In most cases the answers will have meaning for you and should be used as a tool to help in understanding the Guardian ad litem. In asking any of these questions if the Guardian ad litem refuses to answer or gives a non-answer answer – that is a behavioral message and a clue as to the makeup of the person. The questions and answers should be entered in as evidence or asked in court of the Guardian ad litem. It becomes part of the record.

After going through this list if you can think of questions that may be appropriate to ask we would encourage you to share. A link will be provided to voice those questions. 

Presented here are some basic questions (depending on the answer there may be follow up questions): 

1     Do you have experience as a law enforcement officer in conducting investigations?

2.       What is your actual field of professional expertise?

3.       What makes you an expert in determining what is good for other people’s children?

4.       What makes you an expert in determining how other people should conduct their lives?

5.       What is your child hood family background?

6.       What is your own family history as an adult?

7.       What is your own marital history as an adult?

8.       What is your own relationship history as an adult?

9.       Why do you want to be appointed to this case?

10.   What do you see your role in this case to be?

11.   How do you separate your underlying professional behaviors from your role as Guardian ad litem functions?

12.   As a Guardian ad litem going through training were you ever tested on what you learned?

       a.       YES – What was the score you received?

       b.      NO – How do we know that you understand the material taught/ discussed?

13.   As a Guardian ad litem you are tasked as being neutral and unbiased in conducting your investigation and in making recommendations.

       a.       How do you maintain neutrality during your investigation?

       b.      How do you keep your personal bias and agenda out of the cases?

       c.       Does the judge provide supervision and oversight when you are appointed to a case?

14.   As a child did you ever experience issues involving the absence of one or both parents?

        a.       YES – What was that experience like for you?

        b.      NO – How can you understand what the issues are?

15.   Do you have experience with research in dealing with child custody?

       a.       YES - What specific research can you sight?

       b.      NO – If not then please explain how you are able to conduct an investigation?

16.   Please describe what was/ is the relationship you had/ have with your Mother?

17.   Please describe what was/ is the relationship you had/ have with your Father?

18.   Are there any ongoing issues with either?

19.   Did you grow up in a divorced home?

20.   Do you have siblings?

21.   Do you have Grandparents?

22.   As a child did you have contact with your extended family?

23.   Do you come from a religious home?

       a.       YES – What is your religion currently?

24.   Did/ do you come from a particular ethnic background?

25.   We grow up with a belief system. It is a part of what defines us as a person.

       a.       Has your belief system ever interfered with an investigation?

       b.      Did/ will your belief system interfere with this case?

       c.       NO – How do we know?

26.   Do you apply your own values in making recommendations to the court?

       a.       YES – Can you describe what some of your personal values (political, social as example).

              i.   If my values are different than yours how will that affect your perception of me as a             parent?

       b.      YES – As a neutral observer – why are your values better than either parent?

       c.       NO – How can we be sure?

       d.      NO – As a neutral observer – are you saying that your investigation is neutral with regards to the values you have?

              i.   If so then what test do you use to verify this?

              ii.  How can we be sure your values will not influence how you view this divorce/ custody?

27.   In making your recommendations to this court please explain how you arrived at the following:

       a.       The visitation schedule?

       b.      Custody?

28.   Have you ever been married?

       a.       YES – How many times?

       b.      NO – How are you able to understand the dynamics of married life?

29.   Have you ever been divorced?

       a.       YES – How many times?

       b.      YES – Did you ever go through litigation?

              i.   YES – Did you have issues with child support?

              ii.  YES – Did you have issues with the custody agreement(s)?

       c.       NO – What experience do you draw upon in order to understand what a divorcing family goes through?

30.   Do you ever refer cases you are involved in to Child Protective services?

       a.       YES – What are your criteria for such a referral?

       b.      YES – Is the claim of child abuse always a criminal claim?

       c.       YES – Should criminal allegations be removed from Family Court to an investigation by the Attorney General’s Office?

31.   Which Judges do you frequently work with?

32.   Which lawyers do you work with on cases?

33.   How many of your cases have been appealed to a higher court?

34.   Have you ever been sanctioned:

       a.       By a Judge?

       b.      By a Higher Court?

       c.       The result of a complaint?

35.   How many cases have you been involved with as a Guardian ad litem?

36.  How do your clients respond to the work you do as a Guardian ad litem?

While these questions should be asked before the Guardian ad litem has been assigned by the judge - quite often it will not be until after you recognize there is a problem with the way this person operates. It is never to late to start asking. Make the questions and answers for the record. If you have any questions which you think may be appropriate we ask that you follow this [LINK] to submit. We will maintain a running list of questions.

MeGAL is working for reform in our Family Court system. This includes the role of Guardian ad litem, Parent Coordinator, Special Master and court evaluators. If you have issues we ask that you contact us at MeGALalert@gmail.com or find us on Facebook.