scale balanced and unbalanced on white background
Self Represented is NOT Represented
In 2021, the Washington Post published a 5 part editorial board opinion series, “Alone Before the Law” in which the authors addressed the difficulty for litigants who appear in court without attorneys in civil cases and the misnomer “self-represented.” This subtle shift in legal lingo seeped its way into some courthouses in recent years, throwing a veil of obfuscation over a toxic threat to justice.
Litigants who cannot afford a lawyer in civil procedures, including victims of domestic violence desperate for restraining orders that might protect them from abusive partners, are now often called “self-represented.” That’s a misnomer. In fact, they are unrepresented — they have no legal right to court-appointed counsel — and the consequences may be deadly.
Litigants with attorneys in domestic violence cases are far more likely to obtain a protective order than those without an attorney
It is roughly estimated that well over 1 million Americans, mostly women, seek restraining orders annually. In most cases, these women cannot afford to hire a lawyer producing severely skewed outcomes. In a 1999 to 2000 survey, just 36 of 205 women sampled in Baltimore, MD had a lawyer when they sought a civil protection order. Of those 36 women, 30 got the protection they sought, while just a third of the other 169 women, unrepresented by counsel, were successful.
A study showed that more than 80 percent of survivors were granted protective orders in court when they had lawyers arguing their cases; those without lawyers were successful just a third of the time.
“There’s a lack of understanding about how intimidating it can be to stand in a courtroom, period, let alone next to the person you’re fearful of,” Connecticut State Senator Mae Flexer, quoted in Alone Before the Law, Washington Post Opinion Piece, June 13, 2021.
Litigants in child custody cases don’t hire attorneys because of several factors
In the 2016 Cases Without Counsel (CWC), report on experiences of self-representation in U.S. Family Court report prepared by the University of Denver with a grant from the Institute for Advancement of the American legal System (IAALS), the reasons given to proceed unrepresented in child custody proceedings included: financial issues, assessment of one’s ability to self-represent, a preference for self-representing and experience with and their perception of attorneys. Finances were cited in 90% of the decisions to self-represent.
Litigants without attorneys in family court, expressed sentiments like:
“Maybe I should get an attorney, because I don’t know how to cross-examine,” a mother facing the loss of custody of her twins said in court, where she was flustered to find herself face-to-face with the boys’ relatively well-off aunt and uncle, who did have an attorney. The presiding magistrate ignored her request, which had been previously denied by a judge. (Ohio)
“If you were going on a trip, you would get a map and you would know where you were going. You would have a destination. You would know the route you were taking. The most stressful part is that I didn’t really have an understanding of that until almost the end of the process.”
“It felt very much like wandering through a room with no lights on, and you’d bump into something, you’d ask somebody about it, and they’d shine a little flashlight and say, ‘go that way.’…Nobody ever turned the lights on in the whole room to give us an idea of exactly what it should look like and how the process should look.”
Attorney vs no attorney in Child Custody cases result in cases being less likely to settle and litigants being less satisfied with the result of the litigation
In a report compiled by CustodyXChange.com with a 4% margin of error, their study showed that parents were most likely to settle and to share custody, when both had attorneys. Eighty-six percent of cases with both parents represented reached a settlement, which courts and legal experts consider the ideal outcome for most families. On the other hand, only 63 percent of cases with one attorney and 71 percent of cases with no attorneys reached settlement.
An overwhelming majority of the National Center State Courts public opinion survey respondents (91%) agreed with the sentiment: “You are more likely to win [sic] court with a lawyer by your side.” Indeed, some of the relevant literature suggests there are valid reasons to think that representation status affects the fairness of the process. In a 2009 ABA survey of state trial judges, 62% of respondents reported that self-represented litigants are negatively impacted and that outcomes are worse for these individuals than their counterparts with representation
Is free legal representation or assistance available in the United States?
While in the United States everyone has the right to an attorney in a criminal case and this right often extends to a family law case where a parent faces incarceration, and states receiving federal child abuse prevention and treatment funding must appoint a representative for children involved in abuse and neglect proceedings, few states provide attorneys at no cost in family law child custody cases. Louisiana will provide free counsel if there is an allegation of emotional, physical or sexual abuse of a child. Massachusetts will do so “in the interests of justice”. New York guarantees a right to counsel if financially qualified in a child custody proceeding. Oregon provides a right to counsel for a child in a contested custody proceeding.
Other resources may be available on a state by sate basis but in most states the options are slim to none for representation in the family courts as a matter of right.
According to US News and World Reports, May 2022, if you can’t afford an attorney, the strategies to try are:
- Contact the city courthouse.
- Seek free lawyer consultations.
- Look to legal aid societies.
- Visit a law school.
- Contact your county or state bar association.
- Go to small claims court.
Scoping out these resources requires some amount of luck and forbearance. Some courthouses have a Help Center and/or law library for public use where you can obtain legal information. Searching online can provide attorneys who offer free consultations. Court websites may have forms available online for filing petitions. Some law schools have legal clinics where law students work with seasoned attorneys on specific types of cases. Some bar associations have help or referral lines.
Lack of representation results in a pervasive sense of unfairness in the judicial system
The Cases Without Counsel (CWC) study narratives highlight a host of nuanced issues that, taken together, suggest that feelings of being at a disadvantage or concerns with respect to fairness were relatively common among self-represented litigant study participants. A considerable proportion of CWC self-represented litigant participants did not feel as if the process was fair or afforded them equal standing with represented parties. It is easy to imagine that, for these individuals, their vision of the court system becomes one of distrust and dissatisfaction.
The Washington Post Opinion piece, “Alone Before the Law” series perhaps expresses it best in the first article of their series, February 26, 2021, “You can lose your kids, home and freedom without ever seeing a lawyer. It’s a profound injustice.”
How can justice for all occur without legal representation?
The simple answer is, it cannot. Without legal representation victims of domestic violence, litigants in child custody disputes and domestic violence cases, tenants facing eviction in housing court and litigants in divorces entitled to child support and other financial renumeration can lose-their freedom, their child, their home, their property and support.
In New York City, there is a “right to counsel” law that provides tenants in housing court a free attorney. There is an 18b panel of attorneys that can be appointed for financially qualified litigants in child custody cases. It is not perfect. These attorneys are underpaid. There is a shortage of attorneys who volunteer to be on the 18b panel.
The Women’s Bar Association in New York County sponsors the Matrimonial Pro Bono Project in which experienced matrimonial attorneys volunteer their time to represent unrepresented litigants in financial matters who appear in court in a divorce.
It is a start towards providing “justice” for all. Other states should model New York’s examples of providing attorneys for litigants in housing court, family court and divorce cases.
