VOL. 36 | NO. 28 | Friday, July 13, 2012
Going solo in search of justice
By Linda Bryant
The Great Recession and its lingering effects are causing a greater number of Tennesseans to seek help with legal problems, especially in civil cases that involve issues such as divorce, unemployment, eviction or bankruptcy.
Those on the front lines say they are seeing unprecedented numbers of distressed litigants applying for free legal services or reaching out to lawyers for reduced fees.
Others are bypassing the traditional lawyer/client route altogether, choosing to represent themselves in court.
Brian Stainbrook has gone that route three times to get a divorce, adjust child support payments and to seek custody of his 15-year-old daughter.
“I’ve been learning as I go,” the father of two says. “I know I’ve made mistakes, and sometimes it seems like it takes forever to figure things out. The bottom line is I can’t afford hundred of dollars an hour for a lawyer.”
The spike in self-representation, often referred to as pro se representation, is one of a handful of factors that has pushed the Tennessee State Supreme Court into taking action. During the height of the recession, the court established the Access to Justice Commission to work with lawmakers and jurisdictions statewide to find direct ways of helping litigants who need advise, information and education and free or reduced legal access.
Almost immediately the Court began to hold public hearings across the state. Lawyers were formally encouraged to increase their pro bono, or free, legal services.
Those efforts appear to be working.
The Board of Professional Responsibility recently released data showing that more than 46 percent of Tennessee attorneys reported performing free legal work in 2011, an increase of six percent from 2010. Attorneys began to voluntarily report pro bono work in 2009.
The Court also published eight plain-language divorce forms to simplify the process for self-representers, all of which have been approved by all districts in the state.
Anne-Louise Wirthlin, Access to Justice Coordinator, says judges and court clerks are reporting an increase in people using the forms, and Access to Justice Commission is in the process of developing plain-language forms for other situations.
Brian Stainbrook has represented himself in divorce, child support and child custody cases because, he says, he can’t "afford $300 an hour for a lawyer." -- Photo: Lyle Graves | Nashville Ledger
“The Court and the Commission believe that many people who represent themselves do so because they cannot afford the cost of a traditional attorney,” says Tennessee Supreme Court Justice Janice Holder.
“Legal aid providers can only accept certain types of cases, and there are strict income guidelines for people to qualify for help. Many of the working poor do not qualify for legal aid. The Court and the Commission are working to provide people with the resources to navigate the system alone and to obtain a fair outcome.
“I think you are beginning to see momentum because of all these efforts,” she adds. “The excitement is substantial.”
The Court recently launched a website, justiceforalltn.com, which has helped hundreds of self-represented litigants find useful information. Visitors to the site can ask how to get more information on their issue. There are approximately 300 volunteer attorneys ready to provide answers.
Holder says many using the website have been turned away from other programs because of funding cuts or statutory restrictions. Others live in rural areas where there are few lawyers.
“Our current Supreme Court is the lightning rod for so much in terms of awareness about this issue,” says John Blankenship, an attorney with Blankenship, Blankenship & Hagan in Murfreesboro and former chair of the Access to Justice Commission.
“We’ve come light years in a relatively short period of time, and a lot of it is because the Supreme Court has come on like gangbusters.”
Blankenship says he’s seen a “substantial increase” in pro se litigants in Rutherford and Cannon counties, and the local legal free clinic is always full.
“There is still a much greater need than there are resources and there’s still a big crack that people fall through that don’t qualify for legal aid,” he says.
Judge Phillip Smith, a judge in the Fourth Circuit Court of Davidson County, says 15-20 percent of his uncontested divorce cases are now from pro se litigants, about 8 to 10 a week.
“There’s a tremendous amount of pro se representation in this economy,” Smith says. “We all (judges, attorneys and legal aid volunteers) need to do more to help because the need is so great.”
Smith says he believes most courts and legal workers have responded to the statewide push for pro se advocacy in a “very positive manner.’’
But Stainbrook, the single father who’s been working on his pro se child custody case for almost a year, sees room for improvement.
“It’s been pretty hard,” Stainbrook says. “It’s been a long drawn out process, but I have to do it. My kids are No.1 for me.”
Stainbrook’s biggest complaint is aimed at the clerk’s office in his court, which is in the Eighth Circuit and not overseen by Smith.
“They thought I was asking for legal advice when all I had were questions about getting forms,” he says. “If they could change anything, I’d say to work with the clerk’s offices to make them more helpful and friendly. I felt like they just assumed most people should have lawyers, and that’s just the way it is.”
Stainbrook says there should be more outreach to working people of modest means who don’t qualify for legal aid, which typically requires recipients to earn within 250 percent of the federal poverty level.
“I’ve worked at the same company for 15 years, but that doesn’t mean I can afford $300 an hour for a lawyer,” he says. “I simply can’t.”
Lucinda Smith, director of the Nashville Pro Bono Program for the Legal Aid Society, says the Middle Tennessee legal community has responded enthusiastically to the Tennessee Supreme Court’s plea to attorneys to help more. But while pro bono help is on the rise, the clinic’s needs are growing even faster. There was a 71 percent increase in requests for help from 2010 to 2011, she says.
Smith believes self-representation is part of the solution. Spurred on by the Supreme Court’s leadership, Legal Aid and attorneys from Nashville’s Waller law firm will host a legal clinic designed to explain self representation once a month, beginning Aug. 7, 5-7 p.m., at the Legal Aid Society’s downtown headquarters.
“It’s a fact, more people have less money,”’ she says. “We have to do what we can to help.”
Statistics from the Access to Justice Commission show there are about 1 million Tennesseans who meet federal poverty guidelines and are eligible for free legal aid in civil litigation, but there are only about 80 full-time attorneys in the state to help them.