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Self-help for LiPs

Date:20 OCT 2014
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Solicitor and mediator
Family Law

The below Update was originally published in the September issue of Family Law and has been made available free of charge.

In California USA, the state pays for ‘family law facilitators’ who provide explanations to parties about law and procedure on behalf of the courts. The family law facilitator programme was created by the Assembly Bill 1058 (Stats 1996, ch 957) in 1996. Family law facilitators are experienced family law attorneys who works for the superior courts in each county of California. All 58 Californian superior courts have some legal help available to people who do not have lawyers and are representing themselves. All family law facilitators deal with child support and give out educational materials that explain how to:
  • establish parentage (paternity);
  • get, change, or enforce child, spousal, or partner support orders.
S/he also:
  • gives out the court forms needed; 
  • helps fill out forms; 
  • helps a party come to support amounts; and 
  • refers parties to local child support agency, family court services, and other community agencies that help parents and children.
Some family law facilitators can help with divorce, child custody, domestic violence and other family law issues. The family law facilitator is not a personal legal representative. S/he is a lawyer who works for the court and provides education, information and explains options without giving legal advice. If parties already have a lawyer, the family law facilitator cannot help them. There is no attorney-client privilege with the family law facilitator nor is there confidentiality. If a party wants help with case strategy s/he has to consult with a private attorney for legal advice. Both parties can get help from the family law facilitator who is free of charge regardless of income. The family law facilitator is not responsible for the outcome of the case. See further: http://www.courts.ca.gov/selfhelp-facilitators.htm

At a conference in London in June 2014 Bonnie Rose Hough from the Centre for Families, Children and the Courts, part of the Administrative Office of the Courts, California, gave a paper on ‘Building the Capacity for Justice System Innovation’ dealing with the increasing need for self-help strategies in California because of the increasing number of litigants in person in the family courts. To appreciate the scope of the Office’s work, of which family law facilitation is a part, California has about 38 million residents, 5.6 million of whom are in poverty and 40% of whom speak a language other than English at home. There are more than 2,000 judges in California and the State court budget has been cut by 1/3 over the last 4 years. As regards family law:
  • 70% of divorce cases involve at least one person without an attorney at beginning of a case – 80% by the end of a case;
  • 90% of domestic violence cases involve no attorneys;
  • many people start by going to court rather than to a lawyer.
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Since 1997 state funding for LiPs overall has increased from $0 – $40 million. The vast majority of LiPs are now getting some level of assistance. There have had to be cultural changes, namely:
  • more partnerships between court and legal aid;
  • judges becoming more comfortable in their case management role;
  • the Bar being generally supportive – the amount of limited scope representation (unbundling) has increased;
  • court staff are providing information and focussing on helping people through the system.
There has developed a unity of interest between courts and public in providing assistance to help people handle their court cases. The Californian experience has also shown that it is easier to change systems and provide extensive education for 2,000 judges and 160,000 court staff than to educate 38,000,000 potential litigants. Ms Hough was clear that, ‘the smartest person is the one who helps people address their legal need - not the one who can find the most errors. The smartest person is the one who can figure out how to explain complicated concepts in plain language – not one who knows all the legal terms’. Her Office has found that, overall:
  • over 1 million people with legal needs have been served each year;
  • 4 million people have used the Office’s self-help website;
  • parties are now happier with the court system; 
  • they get their cases resolved;
  • cases generally take less time than with paid attorneys; 
  • parties get assistance with referrals to appropriate help including counsel.
Research findings show that people tended to care more about how they were treated by the system than by the outcome itself, for example:
  • they felt that they got to tell their story;
  • they felt respected;
  • they understood the court process better;
  • they believed the court was trying to be helpful.
Ms Hough suggested the following to case management judges and administrators:
  • schedule cases involving self-represented litigants for one calendar;
  • get as many resources as possible into the courtroom – self-help, mediation, legal aid, relevant social services, etc. and work to get cases resolved;
  • provide good pro bono work for attorneys – short, focused and tangible;
  • provide staff support
  • carve some money from direct service to provide coordination, education and support for volunteer leadership
  • use that person to get others engaged
  • be strategic about who is best to do what work - volunteer leadership or staff.
She said that the role of court self-help attorney/family court facilitator was not only to provide direct legal assistance and information but to voice with the judges and administrators about what changes needed to be made to appropriately respond to the needs of low income people coming before the court. She said that a little seed money went a long way:
  • it allowed interested people to get together;
  • it leveraged other resources;
  • it identified projects which needed to be done.
To view the Californian online help centre go to: http://www.courts.ca.gov/selfhelp.htm

Bonnie Rose Hough's paper on ‘Building the Capacity for Justice System Innovation’ is available to download here.
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