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November / December 2011
Volume 23, Number 6

Pro se Law Aids

Court employees can’t give legal advice, but they can point residents toward helpful resources

By Maria Sprow

When polygamist church leader Warren Jeffs finally found himself in the Tom Green County Courthouse during this summer’s trial in which he would eventually be sentenced to life in prison plus 20 years for the sexual assault of two under-aged girls, he made the decision early on to fire his defense team and represent himself. The result was an unconventional spectacle during which Jeffs threatened the court with God’s wrath, went on a 55-minute rant during an objection and stayed silent during the time allotted for a closing argument.

Though Jeffs seemed to relish his own antics and using his right to represent himself, most pro se litigants are found in civil court and would probably rather have a lawyer. For many residents using the court for the first time or even the second or third time, court can be an intimidating, confusing and frustrating place. There are rules to follow, paper work to sign and the courtspeak and legalese to learn.

Though there are free legal aid services available for some residents, those services are overwhelmed with need. For residents who don’t qualify, having an attorney can be an assuring, calming and supportive option, but it can also be expensive, and with the recession and unemployment, some residents may choose to forgo those luxuries and represent themselves in court.

“Legal Aid is strapped to the gills. They have way, way more people who seek their services than they have capacity to fill. Those are people who have extremely low income and really, genuinely cannot hire a lawyer, and yet they still may need a divorce or they still may be sued by a creditor or they may need a name change,” said Texas Legal Services Center Hotline Program Manager Paula Pierce. “There are an infinite number of things that may happen to people who are really economically destitute and who are forced, because of the lack of capacity in the legal aid system, to go to court by themselves.”

Residents who navigate the courthouse and court system by themselves may look for help in the most obvious location: the courthouse.

Unfortunately, because the court must maintain its neutrality between all parties, court and county employees cannot give legal advice. They can only give legal information, and many may not know information that doesn’t pertain to their main jobs. “County staff understand very well that they can’t give legal advice, but the people who are walking in the door who need help do not understand that,” Pierce said, but added that the more information made available to residents, the more streamlined the courts will be.

On the other hand, the less information residents are given, the less prepared they are in court. That can result in delays, additional hearings and prolonged cases.

“One of the biggest issues we have is that people who show up to the courts and don’t know how to navigate the court system end up spending a lot of time and taking a lot of time and often times file things incorrectly,” said Lubbock County Court Administrator David Slayton. There’s a fine line to tow between giving legal information and giving legal advice, but fortunately there are some resources available that help discern the two.

Just last year, the Office of Court Administration (OCA) published a 25-page guide for clerks and court personnel who work with self-represented litigants, titled “Legal Information vs. Legal Advice.” The guide can be found for free online and offers a list of can-dos and cannot-dos, as well as a long list of possible questions a pro-se litigant might have and the best responses to those questions.

“The public’s first and only contact with the judicial system may be with clerks and court personnel, whose responses have an impact on how people view their court experiences,” states the OCA document. “The court should treat all court users fairly and equally: attorneys, defendants, self-represented litigants, and others. In other words, clerks and court personnel should feel comfortable providing the same information to self-represented litigants that they provide on a routine basis to attorneys.

All members of the public are entitled to the same information. Providing information to a lawyer that would not be provided to a self-represented litigant is not equal. Similarly, providing information to a self-represented litigant that would not be provided to a lawyer is not equal.”

In general, legal advice is given when a clerk or court employee tells someone using the court system “what to do rather than how to do it,” the OCA states. Legal advice may include interpretation of a law, rule or procedure, or the recommendation of a specific course of action a person should take in a legal proceeding.

Legal information, on the other hand, is the recital of information: stating a court rule, an explanation of how the court functions. It can also include answering questions relating to the definition of legal terms, deadlines, and the location of court forms. “Provide procedural information and explanations on how to accomplish various actions within the court system. Explaining various procedures increases the public’s understanding of the court system and provides greater access to the courts,” states the OCA. “Do not make any recommendation that would indicate a direct advantage or disadvantage of a particular procedure. It is not appropriate to tell court users what is the best course of action for them to take, nor is it appropriate to give opinions about the probable outcome of a case.”

Often times, court employees may want to recommend that customers consult an attorney via the State Bar of Texas Lawyer Referral Information Service. But for residents who cannot afford an attorney or continue to want to represent themselves, court and county employees can offer up information on free resources available online for self-represented litigants.

In Texas, one of the main sites geared toward self-represented litigants is TexasLawHelp.org, which is administered by the Texas Legal Services Center and offers legal information on everything from legal aid to civil rights to family law to consumer cases.

The site also discusses ways in which residents can find and use an attorney even if they do not have the money to pay for representation.

“Sometimes people have a knee-jerk reaction that is, ‘I can’t afford a lawyer,’ when in reality, a lot of people who think they cannot afford a lawyer might be able to because they don’t understand that you can work with a lawyer to try to come up with a fee that is reasonable for your family and that lawyers don’t have to handle a whole case,” Pierce said, adding that limited scope representation is becoming more popular. “A lawyer may not handle the whole case for you, but they will do part of the case for you. They might help you review documents or explain to you what your rights are but not handle the case or they might help you prepare for a court hearing but not represent you in the hearing. Those are ways that people can reduce lawyers fees so that they might be able to afford a lawyer if they otherwise couldn’t.”

The site also offers a free live instant messaging service during business hours where residents can ask questions to legal specialists. However, the service does not include any attorney-client privilege.

In Lubbock County, Law Librarian Nan Hadley said she often refers residents to Texas Law Help for legal forms and information. The county’s law library has a computer station so that residents can print out forms and packets from the website.

“It has wonderful information,” Hadley said.

One new addition to Texas Law Help is a 9-minute video geared toward guiding pro se litigants with civil and family law cases. Produced via grant funding by the Lubbock County Bar Association and the Texas Legal Services Center with help from Lubbock County and county employees, the video talks about the importance of gathering evidence, doing legal research, filing the correct forms, arriving on time to court and reading all documents. The video was written generically for use by residents in any Texas county. It is on YouTube and can be freely embedded on county websites or Facebook pages, said Pierce.

“We talked to some judges, people at the Lubbock bar association, courtroom staff, court clerks and such and a few legal aid personnel to see what areas they felt self-represented litigants needed help with,” Pierce said. “One of the questions we asked of people was, ‘if you could tell people who are coming to court without a lawyer anything you wanted to tell them, what information would you think is important to give them?’ And the biggest response was help with divorce cases and the second biggest was to explain to them that court staff can’t give people legal advice.”

Hadley said she believes the video is a calming introduction to the court system for residents who are overwhelmed or lost. “I recommend the video if folks express any anxiety or questions about going to court,” Hadley said. “I think it’s an excellent video as far as being prepared goes.”