I. EXECUTIVE SUMMARY

In this report we describe a law school clinical project, The Family Law Assisted Pro Se Project, in which supervised law students practicing pursuant to the State's student practice rule have provided legal information and advice to over 4,400 unrepresented litigants in domestic cases in three jurisdictions in Maryland: Anne Arundel County, Baltimore City and Montgomery County. We evaluate the longer-term experiences in Anne Arundel and Montgomery Counties and make some legal services recommendations based on those experiences, many of which we believe have Statewide applicability.

Over the seventeen month life of the Project, we will have supervised 34 students in this Project. We root our recommendations in this collective experience.
We also contracted with a senior researcher and statistician to conduct an external evaluation of the Project. Dr. Raymond Paternoster, a professor in the University of Maryland's Institute of Criminal Justice, conducted the evaluation, which is attached as Appendix 1. We rely upon his findings as well.

A. Project Goals

In undertaking this Project, we had five major goals:

1. Conduct effective diagnostic interviews, help unrepresented persons identify legal claims and defenses and refer them to attorneys or help them file the necessary legal papers. We believe we have achieved this goal.

2. Help increase the fairness of outcomes in domestic cases. We believe we have achieved this goal in important ways, for example: by enabling parties to give legal effect to fair case settlements; by providing legal information and advice that encouraged parties to reach fair case settlements; and by identifying disputed issues for resolution by a master or judge.

3. Help judges, masters and clerks more efficiently manage dockets in domestic cases. We believe the Project has been primarily unsuccessful with judges and masters and more successful with clerks.

4. Test the assisted pro se concept and evaluate the experiment. This report is a first step towards accomplishing this goal. In reviewing Dr. Paternoster's evaluation and in preparing this report, we have identified additional data that we need to obtain and evaluate. We will do so in the future.

5. Provide a sound classroom and clinical legal education to the participating students. We believe that we have done so, although we have also identified tensions between some of the educational goals and the service component of the Project.

To provide legal help to pro se parties, the Project students performed two roles. First, they provided legal information to unrepresented parties but did not establish an attorney-client relationship with them. Second, they provided legal advice to pro se parties within an attorney-client relationship, albeit a limited one. The distinctions between these two roles were much easier to establish in theory in the classroom than in practice in the courthouses.

We discuss what we learned from this Project in Part 5. We emphasize three sets of findings.

B. Summary of Project Findings

1. Project consumers have been satisfied, usually highly satisfied, with the legal information and advice the students have provided to them. The students have effectively helped them identify claims and defenses and file simplified pleading forms in a variety of domestic cases. We identify below nineteen recurring case types in which the assisted pro se concept generally has worked.

2. There is a strong correlation between consumer satisfaction with the students and their satisfaction with the outcomes and procedures in their cases. The Project has helped develop public confidence in the administration of justice.

3. In many cases the provision of legal information and advice has persuaded either the Project consumer or the opposing party (through information provided to him after the student interview by the Project consumer) to amicably resolve disputed claims.

C. Cases in Which the Assisted Pro Se Approach Works

Pro se capacity is a consequence of both the complexity of a case and the personal qualities of the pro se litigant. We discuss case profiles first.

The majority of pro se litigants to whom we provided legal information and advice were able to effectively identify claims and defenses, provide relevant facts and fill out, file and serve simplified pleading forms in a variety of domestic cases, particularly recurring cases like the following:

Divorce Cases

1. The divorce was uncontested and the parties had neither significant property nor children.

2. The parties had a child or children, but there was a previously-entered and still-effective child support order, the existence of which tended to prevent disputes about custody as well as support, and therefore, the divorce was uncontested.

3. The parties had a child or children and/or some property, but one party had retained counsel who had prepared a separation agreement that both parties accepted, and therefore the divorce was uncontested.

4. The parties had a child or children and/or some property, and the parties had drafted their own separation agreement that both parties accepted, and therefore the divorce was uncontested.

5. The divorce was uncontested with the exception of child support. One or both of the parties were not aware of the child support guidelines or did not understand that they have the force of law. When we provided that information, the parties were able to resolve the child support dispute and convert a contested divorce case into an uncontested case.

Child Custody Cases

6. The non-custodial parent had disappeared before a court could enter a custody order in favor of the custodial parent. We were able to help the pro se party obtain service by posting and thereafter obtain a default order. (One of the most troublesome problems generally for pro se litigants was service of process.)

7. The father and mother were communicating with each other and were willing to make reasonable compromises. We helped one party identify a reasonable custody arrangement and visitation schedule which the other party then accepted.

8. A third party, for example a grandparent, was seeking guardianship and custody of a child with the consent of one or both parents.

9. One parent had had de facto custody of the child for a substantial period of time, which the non-custodial parent had come to accept.

10. There was a child support order that had been in existence for a substantial period of time and the de facto custodian was seeking custody. (Often, if a court had recently entered a child support order, the non-custodial parent opposed custody, in part, in response to that order.)

Visitation Matters

11. There was a previously-entered and still-effective child support order, but that order did not provide for custody or visitation.

12. There was a previously-entered and still-effective child support order that promised "reasonable visitation rights," but the parties could not agree on what was "reasonable."

13. There was an established visitation schedule that had to be modified because, for example, one of the parents had relocated, had a new work schedule or had a transportation problem.

14. The parties had agreed to a visitation schedule but needed to embody it in an appropriate order.

15. One party was requesting plainly reasonable (and legally required) visitation rights, and the other party was unreasonably opposing that request without knowledge of the governing law.

Child Support Modification Matters

16. The pro se litigant had lost his job. We helped him understand "the material change in circumstances" rule, and then, if he qualified under it, we helped him fill out the appropriate legal forms. (We also made sure that these clients understood that the court would periodically re-examine their employment status.)

17. The pro se litigant had obtained a new job but at significantly lower pay, thereby satisfying the material change in circumstances rule.

18. The pro se litigant had become disabled, and the child or children had begun receiving a monthly disability check, satisfying the material change in circumstances rule.

19. The child had reached 18 years of age.

D. The Personal Qualities of Effective Pro Se Parties

The students generally concluded that "two out of three" or "three out of four" of the Project consumers were able, with our assistance, to: effectively identify claims and defenses like those above; provide relevant facts; and fill out, file and serve the simplified pleading forms in these cases.

What distinguished the capable from the incapable pro se litigant in these cases was not the difference between a high school or college education. Rather, it was more basic factors: the ability to speak and read English; a basic intelligence level; the absence of emotional and mental disabilities; and some degree of self-motivation, among other qualities. In his Evaluation Study, Dr. Paternoster found that clients who had a high school education reported that they understood the simplified forms and the students' advice as well as those who had more formal education and were as willing as the better educated consumers to continue as pro se litigants in their cases and to litigate pro se in a future hypothetical case.

We do not claim that pro se parties generally have the ability to conduct thorough factual investigations, complete discovery and represent themselves effectively at contested, or even some uncontested, hearings. We reiterate that the initial legal information and advice sessions did not equip the pro se parties to be effective litigators in these senses.

However, based on the Evaluation Study and our experiences, we believe that we have helped many Project consumers obtain access to the dispute-resolution process itself and fairer case outcomes. We discuss these conclusions further in Part 6.

E. The Role of the Assisted Pro Se Project: A Component of a Broader Program of Private and Public Legal Assistance

Those who created the Project did not conceive of it as the whole - or even the major part of - the solution to the legal services delivery system and administration of justice problems that we describe below. Through the Project, we have discovered the limits as well as the significant potential of the assisted pro se method. It is important, but it is only one component in the required continuum of legal assistance.

We believe that an appropriate continuum of legal assistance should include:

1. An initial diagnostic interview. Supervised law students and paralegals can competently conduct such interviews, and are now doing so in the State's major jurisdictions.

2. Initial and follow-up legal information. This should be provided individually, in classes and in self-help multi-media form (written, audio, video and computerized).

3. Initial and follow-up legal advice. Compensated "on-call" attorneys, pro bono attorneys, supervised law students and perhaps supervised paralegals can provide this advice where necessary.

4. Partial or "discrete task" legal representation. Where appropriate, private attorneys, pro bono attorneys and supervised law students can provide legal representation for a contested issue or for a phase of a case, for example, settlement negotiations.

5. Full legal representation. Private attorneys, working for full or reduced fees, pro bono attorneys and supervised law students can provide this representation where necessary.

The hub in the legal services continuum should be a staff attorney (as there is, for example, now in Anne Arundel County), or a local administrator (as there is, for example, in Harford County.)

6. Increased use of mediation. We believe the mediation is an underutilized method for potentially increasing access to justice in domestic cases. We recommend that the Rules Committee of the Maryland Court of Appeals consider deleting the requirement in Rule S73A that a party be represented by counsel before he or she can be ordered into mediation. A revised Rule might also give pro se parties the opportunity to obtain legal advice - from private lawyers on a paid "discrete task" basis, the Project, The Women's Law Center or another source - before they enter into a final mediated agreement.

The Rules Committee should also consider whether additional issues, for example, child support issues, should be added to the two mediation-eligible issues that are now contained in Rule S73A.

This report is based in part on an external evaluation. The evaluation was supported with funds provided by The Maryland Legal Services Corporation, Inc. and The Maryland Administrative Office of the Courts.