Court Services Administration Committee August 17, 2012 Minutes

Court Services Administration Committee

MINUTES

(Unofficial until approved)

Court Services Administration CommitteeDoublewood Inn, BismarckAugust 17, 2012

Members Present

Justice Daniel Crothers , Chair
Aaron Birst
Bill Brudvik
Judge Sonja Clapp
Judicial Referee John Grinsteiner
Jim Hill (SBAND Liaison)
Susan Hoffer
Rep. Nancy Johnson
Courtney Koebele
Sen. Karen Krebsbach
Judge Steven Marquart
Chuck Peterson
Judge Josh Rustad

Members Absent

Barb Hill
DeWayne Johnston

Others Present

Sally Holewa, State Court Administrator

Chair Crothers called the meeting to order at 10:00 a.m. He explained that the main item for discussion, which as been referred to the Committee, concerns the adequacy of previous efforts undertaken to address issues associated with self-represented litigants and the feasibility of implementing new initiatives. He drew attention to Attachment B (August 9, 2012), an email from Sally Holewa, State Court Administrator, outlining specific issues referred to the Committee: 1) whether to consider hiring a court facilitator to provide assistance to self-represented litigants, which could include development of additional forms for use by self-represented litigants, and 2), whether improved or additional procedural information should be pursued to assist litigants in understanding how cases proceed through the judicial process. He noted that the impact of self-represented litigation on the judicial system has been and continues to be a matter to which the system must respond in some manner.

At the request of Chair Crothers, staff briefly reviewed Attachment D (August 9, 2012), a memorandum prepared by Justice Carol Ronning Kapsner which summarizes previous efforts to address self-representation issues. He also reviewed Attachment F (August 9, 2012), examples of initiatives in other states to create “self-help centers” and to otherwise provide information and forms for use by self-represented litigants. He also described current court forms related to various kinds of cases that can be found on the Supreme Court’s website - www.ndcourts.gov/Court/Forms.

Chair Crothers said the initial question for discussion is whether current informational efforts and forms are adequate or whether more should be done.

In response to a question from Sen. Krebsbach, Susan Hoffer said the Ward County clerk’s office is seeing an increase in self-represented activity. She said litigants will quite often use Internet-based forms which do not comply with North Dakota law or rules. The judges, she said, then are left to resolve the problems in court. She said the simple divorce forms available on the Supreme Court’s website are difficult for self-represented litigants to use and have not stayed current with recent rule changes.

In response to a question from Justice Crothers regarding the impact of self-represented litigants on her office and staff, Ms. Hoffer said clerk staff often find it necessary to review the forms submitted by self-represented litigants because they tend to be incomplete or incorrectly filled out. She said the need to review the forms contributes to increased processing time for the filing. Often, she said, forms are returned to the litigant for correction of errors or to ensure proper information is provided. She said all of this activity results in clerk staff handling case documents many more times than if an attorney were involved.

Judge Marquart agreed there has been an increase in self-represented litigation and Cass County clerk staff share many of the problems outlined by Ms. Hoffer. Additionally, he noted that self-representation seems to be not entirely related to the lack of financial resources. He said some who could afford to hire an attorney simply choose to represent themselves, either to save on costs or because of discomfort with attorneys.

In response to a question from Aaron Birst, Judge Marquart said litigants in civil cases are more likely to self-represent.

Judge Clapp agreed and said the number of divorce cases involving self-represented parties appears to be increasing. Additionally, she noted that self-represented litigants seem to have a very difficult time, particularly in child support cases, of serving motions correctly. She said the Northeast judicial district is using a letter form that explains that if proof of service is not filed, the hearing will be canceled and the case will be given to a judge under advisement.

Referee Grinsteiner said self-represented litigants frequently appear in South Central judicial district courts. He said the district does use the summary proceeding process for divorces under Rule 8.5 of the Rules of Court, but divorce cases are nearly always complicated. He said there are some proceedings for which a person simply needs attorney involvement.

Judge Rustad agreed that self-representation is increasing and the easy availability of forms from the Internet, which may not reflect North Dakota law, contributes to the increase. He said he is in general agreement with the goal of enhancing access to the courts. But, he said, clerk staff and judges usually are faced with much more work when dealing with self-represented cases. Additionally, he said there are clear limitations regarding the amount of assistance judges and staff can provide to a self-represented litigant.

Jim Hill said, from an attorney’s perspective, that cases involving a self-represented litigant are particularly difficult because an attorney representing the other side may often find it necessary to make allowances for missteps by the self-represented party. On the general issue of how the system can better respond, he said a concern is whether the current forms available to self-represented litigants are reasonable, correct, and adequate to the task and whether new forms should be devised.

In response to a question from Chair Crothers, Sally Holewa said courts exist to meet the needs of litigants. She said the judicial system is already facilitating the efforts of self-represented litigants through forms and information, but those efforts are inadequate. She noted that a team that attended the 5-State Conference on Case Management [Attachment C (August 9, 2012) in the fall of 2011 concluded that family law cases are the most significant area of concern regarding self-represented litigation. She said the team concluded that providing very basic information about case processing would be helpful. She said the team also concluded it would be beneficial to hire a court facilitator to provide some level of assistance to self-litigants, which could improve the quality of pleadings filed by the litigants and lessen the impact on clerk staff and judges. Additionally, she noted development of forms for use by litigants is not officially located anywhere in the judicial system. She said the team suggested that a court facilitator, as a dedicated staff position, could improve the quality and consistency of forms and information provided to self-represented litigants.

Chuck Peterson agreed that the current simple divorce forms are inadequate. He said errors in the forms should be corrected and the forms should be simplified to the extent they can be.

Judge Rustad observed that sometimes it is not a question of whether the forms are adequate. Quite often, he said, litigants simply do not complete the forms correctly.

Chair Crothers requested general discussion about the range of possibilities in responding to the recommendations referred to the Committee.

Judge Marquart noted that forms are available on the Supreme Court’s own website and there should be a concerted effort to ensure that they are correct and adequate.

Sally Holewa observed that there is computer software available which poses questions to the prospective litigant and then populates the relevant form with the information provided in response to the questions.

With respect to a court facilitator, Susan Hoffer said it would be helpful if there was a resource to which clerk staff could refer a self-represented litigant for information or advice regarding how to complete a form or a particular court procedure. She said clerk staff are always concerned about the distinction between simply providing information and perhaps inadvertently providing legal advice. She said the availability of a facilitator would assist clerk staff in avoiding this situation.

Rep. Johnson said society is increasingly “online” and many people are accustomed to finding information for themselves. That, she said, almost ensures that the number of litigants attempting to complete their own papers and handle their own case will increase.

Sally Holewa noted that some jurisdictions have developed videos as a method for providing basic information about court processes and procedures to litigants.

Susan Hoffer said public computer terminals are located in clerks’ offices and it may be possible to include web links to online information, answers to common questions, and perhaps videos on court processes and procedures.

Chair Crothers asked whether a court facilitator would be considered a feasible option.

Staff noted that some of the jurisdictions represented in the material [Attachment F (August9, 2012)] have provided assistance either through a court facilitator or an in-person self-help center. He said court facilitators can provide assistance by way of a toll-free number, Internet based contacts such as email or text messaging, or on-site contacts. He said most of the jurisdictions that have a court facilitator appear to have emphasized assistance for family law cases.

There was general Committee agreement that if a facilitator position is created, the emphasis should be on family law cases as available information suggests self-represented litigants are more often involved in those cases.

Bill Brudvik wondered whether it would be feasible to have a court facilitator in each judicial district. He said a facilitator may prove helpful in lessening the burden on clerk staff and judges.

Judge Clapp agreed and said a facilitator could assist in ensuring that self-represented litigants are complying with applicable rules and procedures.

Justice Crothers observed that there appear to be two general concepts regarding the purpose of a facilitator or help desk. One, he said, is that the facilitator or a centrally-located help desk would essentially be a contact point for information about process and procedure and for assistance in completing forms, The other, he said, would have the facilitator also act as a kind of “gatekeeper” for the judicial system, ensuring that the litigant’s papers are legally adequate to go forward.

Staff noted that the Hennepin County, MN, process requires that a family law facilitator review motion papers to ensure they meet minimum legal requirements before the litigant may obtain a court date. See Attachment F (August 9, 2012), p. 43.

In response to a question from Courtney Koebele, Referee Grinsteiner said it may be helpful to have a resource person available in each judicial district as a means of lessening the burden on clerk staff.

Chuck Peterson suggested the Committee should consider recommending that a facilitator position be created to provide assistance at the state level and then technology resource could be considered as a way of providing more complete information to litigants.

Sen. Krebsbach suggested the possibility of establishing a facilitator process as a pilot project, which would enable the judicial system to gather data regarding the level of self-represented litigation and the need for more assistance. Committee members agreed.

Judge Marquart stressed the importance of assembling information about the level of self-represented litigation in the system and, to the extent possible, the impact upon clerk staff and judge time.

Susan Hoffer said that on nearly a daily basis her staff receive questions from litigants essentially asking for legal advice. She said there is a constant concern about the level of assistance clerk staff can provide before running the risk of venturing into offering what may be considered legal advice. Additionally, she said a pilot facilitator project would be a useful way to gauge the level of self-represented activity and gather data on the kinds of assistance that are most often requested.

After further discussion, it was moved by Chuck Peterson, seconded by Courtney Koebele, and carried that the Committee recommend that the Supreme Court hire or contract with a person to serve as a court facilitator, that the project be implemented on a pilot project basis for purposes of gathering data regarding the scope of need for assistance, and that facilitator services focus primarily on family law cases.

Committee members agreed that the facilitator could assist in forms development and developing additional information for self-represented litigants.

With respect to the current forms available on the Supreme Court’s website, Susan Hoffer will forward suggested changes.

There being no further business, the meeting was adjourned at 12:40 p.m.

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Jim Ganje, Staff