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Number of pro se litigants soars in some counties

When the Missouri Supreme Court approved standardized divorce pleadings in late 2008, about the only thing both sides in the
debate agreed up on was that it would, for better or worse, increase the number of people using them.

They were right, according to some anecdotal evidence.

In just over two years since the forms became widely available, some counties are reporting significant jumps in pro se litigants. No official statewide statistics on the number of pro se litigants are available.

Pro Se proliferates

Tiffany Green-Hytrek, circuit clerk legal counsel, meets with Christopher Wharton to discuss his paperwork, but she can't give him legal advice. Photo by Karen Elshout

In Clay County, the number of pro se divorce cases more than doubled from June 2009 to May 2010.

“The drastic upswing,” said Associate Circuit Judge David Chamberlain in Clay County, “probably has to do with the forms being made available and people finding out about them.”

In St. Joseph, the county seat of Buchanan County, Judge Judah Weldon, who presides over divorce cases, said he wouldn’t be surprised if there were two to four times more filings of pro se litigants since the Missouri Supreme Court first approved the forms.

And while some suggest that the economy is forcing more litigants into do-it-yourself mode, the statistics don’t seem to bear that out.

In St. Louis County, where pro se divorce forms have been provided for nearly nine years, the percentage of people who filed for divorce representing themselves has increased less than one percentage point over the past two years.

So access to the pro se forms may lead to more pro se litigants, but what does that mean for the operation of the courts? Missouri Lawyers Weekly asked judges who see the cases come through their courtroom every week, and their verdict is split.

Some judges say the forms have had a positive effect in their courtroom — litigants are providing more information and judges know where to find their answers. Other Missouri judges have mixed feelings, saying the state-approved forms could be encouraging litigants to go without legal advice and the forms don’t work for all scenarios.

The old days

The forms were torn from the back of do-it-yourself books. Some people who wanted to represent themselves in court bought legal forms online though sketchy websites, spending $200 for a pleading from another state. Others just borrowed forms from their friends.

There are now court-approved pleadings for pro se litigants in petitions for child custody, paternity cases and motions for visitation, modifying child support and child custody. It’s all available online at www.selfrepresent.mo.gov.

Before the pleadings were standardized, judges said they saw pro se pleadings that were sometimes incomprehensible. Judge Patricia Joyce, of Jefferson City, said she had to many times send back the forms to the litigants to get more information.

“They were harder to read … People made photo copies of somebody else’s divorces and crossed things out,” she said. “It was just crazy.”

Judge Rick Zerr, in St. Charles, said more cases were dismissed because pro se litigants didn’t have the proper documents or litigants submitted forms from other states.

Now, the court-approved forms help the courts process the files more efficiently than before because the clerks have a routine set of papers and the judges can easier spot errors or missing data, Zerr said.

Pro se litigants are more likely to complete the forms correctly if they do it online, judges say. An online program catches incomplete and missing answers and also reminds users they need to fill out other documents.

“You must enter a valid Social Security Number here before you file your case!” reads one pop-up message if a user skips entering the information.

Pro se divorces cases take a bit longer to process than uncontested divorces where parties are represented by attorneys, some judges say. Others say they are just as quick.

“As I get used to the forms, it will become easier,” Judge Benjamin Lewis, of Cape Girardeau, “but as many times as I’m looking at those, the people who are using them … it’s not necessarily going to get easier for them.”

Lewis and several others judges said their pro se files don’t take away time from their other cases. They point out that sometimes complex cases with attorneys can consume a lot of the court’s time.

But Lewis said, with pro se litigant cases, “it takes more time to do something that shouldn’t take very much time or something we’re not used to spending time on.”

Court clerks across the state say the uniform pleadings make it easier to check for missing documents and they can now just direct litigants to the court’s website for more information. But they still get asked legal questions they just can’t answer.

“Has it reduced the number of calls we get? Probably not,” said Carolyn Reddin, family court supervisor in the Columbia circuit clerk’s office. But now, clerks can refer litigants to the website, she said. She said the standardized pleadings have likely helps clerks process the pro se case faster in Columbia.

Reddin estimates she’s seen up to a 30 percent increase in pro se filings in the past couple years in Columbia.

‘Walking on thin ice’

Judges largely agree that the forms make it easier to review pro se litigants’ pleadings — but some judges still aren’t completely comfortable with the process.

Chamberlain, the judge in Clay County, said the pro se forms make it more difficult to get cases processed “because you get people who don’t know what they’re doing.”

“The problem is not the form itself. The problem is the information that’s put into the forms,” he said. “The approval of these forms did nothing to impart knowledge to the people who filled them out.”

Other judges also report some uneasiness with pro se litigants, despite more uniform pleadings.

“When they come in, it puts the judge in an awkward position because you can’t coach them,” said Lewis, the Cape Girardeau judge. “While you can’t advise them, you’ve got to work with them to go over the paperwork. You can’t just trust them to have it done right.”

Weldon, the St. Joseph judge, said that when attorneys represent parties, they have a responsibly to be honest with the court.

In a pro se case, “it almost forces upon the judge that sense of responsibility, not only to be fair and impartial in that case, but to make sure everybody is upfront and … and there’s not some sort of side deal.”

“I just feel like a lot of times I’m walking on thin ice,” he said. “The judge is not supposed to just rubber stamp every agreement they come across.”

The pro se pleadings are very good tools in some cases, but they’re not one-size fits all, he said.

“I have seen very complicated cases that are attempting to be presented as pro se, and that’s the difficulty. You just don’t know until you get into it,” he said.

Chamberlain, who presides over a pro se pre-trial docket once a month, said in cases with significant assets or children, “it’s virtually impossible” to receive judgments that are correctly completed.

But he’s not sure forms should be approved for more complex divorces.

“I don’t know if you can have standardized forms for judgments,” he said. “It’s a square peg in a round hole.”

 

Users appear happy

The pro se litigants themselves appear mostly happy with the system. In a survey of people who were intending to represent themselves in court last year, about 61 percent agreed that the forms were easy to use, and 63 percent agreed that they were ready to represent themselves in court. Most wanted a divorce.

Gale Henderson, in St. Louis County Judge Dennis Smith’s courtroom one day in June to finalize her divorce, she said she couldn’t afford an attorney to divorce her husband, who didn’t show up to court that day.

Henderson, who helps take care of the disabled for a living, had no complaints about the pro se pleadings. “I love it,” she said. If the courts didn’t provide pro se forms, “I wouldn’t be able to do it. … I wouldn’t know what to do.”

As a member of Missouri Supreme Court’s Access to Family Courts committee, Smith helped create the pro se family law pleadings and programmed the online forms. Smith said the forms have enabled St. Louis County courts to efficiently process cases because litigants are providing more information and more accurate data.

He and others on the committee are continually updating the forms for improvement and changes in the law. As of last June, 13 new or revised forms have been submitted to the Missouri Supreme Court’s State Judicial Records Committee for review, Smith said. Most of them need to be ultimately approved by the state’s Supreme Court before they can be put to use.

“It’s more than just worth it — it is so valuable because we are providing access to our courts,” Smith said.