Last spring, The Florida Bar Foundation found a creative way to engage lawyers in some very meaningful pro bono work when it undertook an initiative to take a snapshot of self-represented litigants in Miami-Dade County. The project, called Everyone Counts, invited volunteer attorneys to observe proceedings in multiple courthouses on a single day throughout the county to assess the experience of litigants appearing in court without a lawyer.
Everyone Counts came on the heels of research by the Legal Services Corporation (LSC) and others about the gap between the civil legal needs of Americans and the resources available to support them, the prevalence of self-represented litigants in the nation's courts, and the stark differences in outcomes achieved by those with and without representation in civil proceedings.
In its 2017 Justice Gap Report,[1] the LSC noted that "86% of the civil legal problems reported by low-income Americans received inadequate or no legal help." According to the Self-Represented Litigation Network,[2] one out of six Americans is a self-represented litigant each year in a newly filed case, and three out of five people in a civil case represent themselves in court.
Litigants who represent themselves are at a distinct disadvantage, as evidenced by studies and initiatives focused on eviction. A study recently published by the Colorado Center on Law and Policy reviewed 93,000 eviction filings from 2001 through last year. The study found that from 2014–2016, renters who lacked legal representation were evicted 68 percent of the time from private housing and 43 percent of the time from public housing. Meanwhile, those who were represented by counsel kept their private housing 94 percent of the time and public housing 80 percent of the time.[3] Interventions make a difference.
In a two-year pilot program in Washington, D.C. that provided free representation for tenants facing eviction, participants had favorable outcomes more than six times as often as unrepresented tenants.[4] In New York City, an aggressive effort that began in 2014 among advocacy campaigns, bar associations, unions, and other groups resulted in greater funding for legal representation for tenants. Since that time, the percentage of New York City litigants appearing in housing court with representation has risen to 27 percent, up sharply from 1 percent in 2013, and evictions have fallen by 24 percent.[5] New York City has since codified the guarantee of legal assistance for tenants facing eviction.
Florida so far lacks this kind of empirical data on self-represented litigants and on the impact of providing representation.
After launching its statewide Pro Bono Partnerships Program, The Florida Bar Foundation began discussions with the state's pro bono circuit committees and The Florida Bar's Standing Committee on Pro Bono Legal Services about how to determine the needs of self-represented litigants in Florida and how best to address them.
The Florida Bar Foundation board member Angela Vigil, a partner and executive director of the Pro Bono Practice at Baker McKenzie, suggested organizing a count of self-represented litigants at courthouses throughout Miami-Dade County on a single day to capture a countywide snapshot that would demonstrate the prevalence of self-represented litigants in different divisions of the courts. With the support of Florida Chief Justice Jorge Labarga and Chief Judge Bertila Soto of the Eleventh Circuit, The Florida Bar Foundation's Pro Bono Partnerships program launched Everyone Counts.
Ericka Garcia, the foundation's director of pro bono partnerships, and Anais Taboas, who was then its South Florida pro bono program officer, recruited volunteer attorneys, focusing on those practicing primarily transactional law, who might be interested or intrigued by attending court to observe without having to represent anyone.
The Florida Bar Foundation offered a continuing legal education program so that attorneys would know what to expect and what they needed to do. The foundation also created instruments that the volunteer attorneys would use to record data, providing both paper and electronic options to submit the results.
Garcia coordinated with court administrators to ensure that the court and judiciary were aware of the project and the presence of the volunteer lawyers. On Everyone Counts day, March 20, 2017, judges announced that the lawyers in the back of the courtroom were simply observing the proceedings and would not be able to represent anyone.
On that day, nearly forty volunteer attorneys observed 190 hearings involving 277 litigants in seven Miami-Dade courthouses. Matters included domestic violence, family law, dependency, foreclosure and others. The volunteer attorneys took shifts and recorded data such as which party, or parties, had an attorney to represent them, the type of hearing, the issue at hand, and which side, if any, "won" the hearing.
In all, 63 percent of litigants were self-represented. Almost a third of the cases involved two self-represented parties. In civil proceedings apart from family or domestic violence, including foreclosure and consumer matters, 37 percent of litigants were not represented by counsel. Thirty percent of cases involved a party with representation versus a self-represented party.
Data from family law proceedings (including, but not limited to, a single spouse seeking divorce, dependency matters, and general calendar calls in divorce proceedings), showed that 62 percent of individuals were not represented by counsel.
Domestic violence court had the highest number of self-represented litigants at more than 80 percent. During domestic violence proceedings (including, but not limited to, motions for temporary injunction and permanent injunctions), only 12 percent of litigants were represented by counsel. In 60 percent of proceedings, both parties were self-represented. The lack of representation in domestic violence cases is concerning, particularly in high-stakes matters such as when a petitioner is seeking a domestic violence injunction hearing to determine if a temporary restraining order will become permanent.
The availability of representation in domestic violence cases is not just an issue for the victims or the courts, but also for the business community and society at large. According to the Corporate Alliance to End Partner Violence, domestic violence costs the U.S. economy more than $8.3 billion annually, including the costs associated with medical and mental health issues and lost productivity. The annual cost of lost productivity alone is estimated as $727.8 million, with over 7.9 million paid workdays lost per year.[6]
What was likely not considered in those statistics are the costs to the nation's courts, which could also be significant, according to anecdotal information collected through Everyone Counts. In follow-up discussions, judges told Everyone Counts organizers that domestic violence cases were sometimes continued multiple times due to procedural issues that would have been less likely to occur if an attorney had been involved. The general consensus was that attorney representation makes the judicial system function more efficiently.
The Florida Bar Foundation will hold a second Everyone Counts event in mid-May 2018 in conjunction with the return of its Summer Fellows program, which provides a stipend to law students placed in legal aid programs over an eleven-week internship. The Florida Bar Foundation Summer Fellows will participate in Everyone Counts 2018 with other volunteer attorneys. The Foundation will encourage law firms to send associates or partners with summer interns so that they will see the need for pro bono attorneys.
The results from these events will establish a baseline from which to begin to devise potential solutions for improving access to justice and individual outcomes for self-represented litigants. The ultimate goal is to spur improvements in the judicial system and help those working to expand access to justice.
[1] 2017 Justice Gap Report: Measuring the Civil Legal Needs of Low-income Americans, Legal Services Corporation, June 2017, https://www.lsc.gov/media-center/publications/2017-justice-gap-report.
[2] Information coming from Self-Represented Litigation Network.
[3] Aubrey Hasvold and Jack Regenbogen, "Facing Eviction Alone: A Study of Evictions, Denver, CO, 2014–2016," Colorado Coalition for the Homeless, September 11, 2017, http://cclponline.org/wp-content/uploads/2017/10/Facing-Eviction-Alone-9-11-17_revised.pdf.
[4] Charles Allen, Kenyan R. McDuffie, and Mary M. Cheh, "Low-income Tenants in D.C. May Soon Get Legal Help", The Washington Post, May 18, 2017, https://www.washingtonpost.com/blogs/all-opinions-are-local/wp/2017/05/18/low-income-tenants-in-d-c-may-soon-get-legal-help/?utm_term=.9723eeb54a56.
[5] "Right to Counsel—A Victory for Tenants!", New York City Council, July 20, 2017, https://council.nyc.gov/news/2017/07/20/right-to-counsel-a-victory-for-tenants/.
[6] Robert Pearl, "Domestic Violence: The Secret Killer That Costs $8.3 Billion Annually," Forbes, December 5, 2013, http://www.forbes.com/sites/robertpearl/2013/12/05/domestic-violence-the-secret-killer-that-costs-8-3-billion-annually.
