An Act To Implement Changes in the Family Division To Improve the Experience of Pro Se Litigants
CONCEPT DRAFT SUMMARY
This bill is a concept draft pursuant to Joint Rule 208.
This bill proposes to make changes to the practice, procedures and administration of the Family Division of the District Court in order to improve the experience and effectiveness of Prose litigants in matters before that court.
This bill will be before the Judiciary Committee and when it comes up for testimony we will post the event.
Showing posts with label Pro se. Show all posts
Showing posts with label Pro se. Show all posts
Saturday, March 14, 2015
Sunday, February 8, 2015
Chief Justice Saufley on the Pro se Litigant before Maine Judicial Committee.
Chief Justice LeighI. Saufley recently spoke before the Judiciary Committee of Maine. Among many
topics she mentioned Pro se representation. Presented here is the sound bite
dealing with Prose. Below is the transcription of the sound bite:
"To many people
who have to come to court without lawyers - and that is a very long
conversation, but we have all kinds of innovations we are working on. We're
watching other states to see what's working there. The bottom line is that people should have an attorney to help them
when something in their life has gone so wrong that they have to be in a court
room. Its not a good idea to not be represented, so we're working on plans to
help improve all of that... ummmm..."
The sound bite may
be found here: Chief Justice Leigh Saufley.
We would like to ask
Chief Justice Saufley if she could gave us an example of some of those
"innovations" she mentioned. How will they make the court system
better? Are some of these "innovations" simply a euphemism for more
money for Maine courts? The problems that the Judicial Branch have - go beyond
the mantra of more money and innovations. Our Judicial Branch is the foundation
to our system of justice here in this state and the structure that they are
trying to patch is beyond mere cosmetic changes for which they have proposed
before in the past.
Take for example the
Family Court system that the Chief Justice has admitted is in trouble.
Guardians ad litem that practice psychology, social work and law without a
license but sanctioned and encouraged by the court to do so. On a regular basis
we see the use of Consumers have been subjected to Judicial Out Sourcing; Junk
Science; Psycho-eugenics; Legal Abuse Syndrome and Moral Equivalency. There is
no scientific basis or history for these ideas - yet - the courts fully embrace
these ideas. There is no management of
the various parts and no oversight. 74% of the parents entering the Family
Court system who do so Prose and for the vast majority they have no idea how
to conduct them selves. We have court officers who provide the bare minimum of
help to the 74%. What "innovations" will help these customers of
Family Court services? More money will not help. Money has poured into finding
a solution and so far the investment has bared no fruit. Why are we
"watching" other states? Are we looking for a patch that is less
painful for customers? Once those solutions are found will the Judicial Branch
even be able to implement process and systems change? I mean we are talking
about a bunch of lawyers here. They know how to find innovative ways of
charging their clients - but do they know anything about systems and process
improvement?
As a foundation upon
which the various courts stand - the Judicial Branch cannot afford to continue
to make decisions that harm their consumers to the benefit of the 26% who are
not Prose. It may be time to stop patching the building(s) and bring in an outside
contractor for help. Someone who is not embedded in law, knows systems analysis
and can identify issues and ways to improve them so that we have a world class
court - as we did in the past.
Please contact us if you need help in filling out forms for Family Court. We are not able to provide legal advice (we are not lawyers) - just help. Contact us at MeProseWay@gmail.com. Also find us on Facebook.
Thursday, December 18, 2014
Judge to Pro se Litigant "Have You Learned Your Lesson Yet?"
The Judge told the
Prose litigant. The Judge went on to inform the parent that "You are
lucky that I am giving you any visitation". This was after the Prose
litigant tried to present the case and to be heard in court. When the Prose
litigant tried talking the "judge" cut the parent off. This parent
was not allowed to present evidence. The lawyer for the other side was allowed
to ask questions and present evidence.
In the end the
"judge" asked the Prose litigant whether or not she learned the
lesson?
If the lesson was
that as a Prose litigant she was going to receive second rate justice. Then
the lesson came over loud and clear. To add insult to injury the
"judge" told the Prose litigant that under no circumstances could
she return back to court without being represented. Or she would face jail
time. Mind you this parent was Prose because she could no longer afford a
lawyer and owed several thousand dollars.
So what does one do
in a situation like this? She is prevented from filing any motion, court order
and can't go to court without a lawyer whom she cannot afford? She has
effectively been prevented from receiving any kind of justice. Is this what the
American "Justice" system degenerated to?
For help in
representing yourself please contact us at 207-200-7311; email us at
meproseway@gmail.com or find us on Facebook
#Proselitigant
Wednesday, November 12, 2014
Family Court , 'Quo Vadis? "improvement, reform or implosion"?
As we observe the big picture of Maine’s Family Courts, we sense that our family courts appear to be slowly imploding. It is not a visibly dramatic happening that grabs public attention. It is largely unnoticed and unrecognized symptoms of decay from within. This process of decline is unnoticed, except, perhaps, by those who pass through the family court experience , and many of these victims are so wounded by the experience that it is hard for them to view the experience in a larger perspective. It is frequently hard for all of the active players - judges, lawyers and users - to "see the woods for the trees"! Let us consider a few of the amazing "systems changes" that are progressing, unnoticed, and that are, like termites, silently eating the structure of family courts from within.
“THE "TERMITES": From our perspective, serious structural damage to family courts is being caused by the seemingly inexorable growth of 'pro se' (self) representation in family courts. This phenomenon is occurring, not just in Maine, but in every state in America. In Maine, the figure for 'pro se' representation in family courts is reported to be a startling 74% and growing. There is also the eye-popping figure of 86% of family court cases, which have only ONE lawyer. The figures for 'pro se' representation, we might add, are even higher in Connecticut and NY. One has to ask, what is the impact of this amazing growth of self-representation on the family court system, on normal, professionally guided and determined family court proceedings? What happens to a professional legal system, with long traditions and well-established protocols for inter-professional relations, with a focus on complex, human problem solving, When one of the two "players" in these contests is underrepresented and completely ignorant of how to function in the well-structured, traditional setting? General systems theory would suggest chaos and profound, unprogrammed, unintended changes in the way the system functions. Well-intended attempts to patch the traditional 'status quo' models, further change the original system and bring with them further unintended consequences. The working system is not as it was - try as it may. Some call it broken. The ‘pro se’ “trend is not its friend”!
WHAT HAPPENS IN THE SYSTEM?: With the invasion of 'pro se' litigants in family courts, desperate, frightened people with no knowledge or skill in the law and its traditions, turn the courtroom into a scene of confusion, stress, emotional pain and misunderstanding. Judges struggle mightily with "judicial impartiality" in dealing with the 'pro se' litigant. To help, or not to help - and how to do so without unbalancing fairness and throwing impartiality to the winds. How can a judge - without guidelines or traditions for handling this invasion of amateurs - try to maintain a degree of balance and proportion in a situation in which the combatants/ competitors are so unevenly matched? The 'pro se' litigant is always anxious, frequently frightened (or terrified) by the utterly unfamiliar environment, by the task of hoping to rescue a beloved child and by the daunting tensions of the contest. It is a forced visit to a very "foreign country" with unfamiliar rules, language and procedures. How to cross examine, what are rules of evidence and, then, there are all too frequently the "objections" raised at every turn by an opposing lawyer. What do they mean to a 'pro se' litigant? How should they be handled by the litigant and/or by the judge? Can an "impartial" judge help a baffled 'pro se' litigant deal with “objections”? Some judges do try to offer help and to be kind without violating impartiality, but it poses serious challenges to all of the "players". There are also a number of very troubling reports that some judges are rude and vent frustration with the ineptitude of 'pro se' litigants. "Don't come back to this court unless you have a lawyer!" has been the dictum of several judges. We’d say, there is a crying need for data to measure the scope of the problems? Then, one can address the second issue: how does one correct this total systems problem?
We'd answer those judges, who resist dealing with the legally unrepresented, by saying that no one in their right mind would undertake the personal stress and misery of 'pro se', unless motivated by great love for their children and financial hardship! The 'pro se' situation is never a happy choice for anyone, and no one decides to go 'pro se' unless they are utterly desperate! There is also the important question of "outcome"? Who wins in these uneven combat situations? No one has answers to this question, but we are inclined to say, "Three guesses and the first two don't count!” However ... there is a crying need for actual data to move the conversation beyond anecdotes.
PRESERVING FAMILY COURTS FOR THE SHRINKING 26% WHO HAVE (MONEY) LAWYERS: Apart from the 74% 'pro se' litigants without lawyers, one should also consider the remaining 26% who have lawyers. One might in all honesty say that the expensive Maine family courts are being maintained for this affluent minority and (more importantly) their lawyers. As an arena for a few lawyers (and the associated apparatus of consultants and GALs), the whole operation has become known by the public (countrywide), as the divorce industry. Should family courts and their whole expensive apparatus be maintained at public expense for a 26% minority of litigants and the juicy financial interests of "the divorce bar"?
AS NEWS ABOUT THE 'PRO SE' DISASTER ESCAPES THE SYSTEM: In this age of the Internet, the public learns quickly about the unhappy state of affairs of 'pro se' litigants in family court. Paradoxically, in many cases, the public may well know more than members of the Judicial Branch who are tightly isolated from news of serious malfunctioning, cruelty. Bad management and unintended harm to children by omnipresent, "due process" concerns. The public, in all likelihood, knows more about specific courts and specific judges and lawyers than does the Chief Justice. But... the bad stories, once out, cannot be controlled or suppressed. It causes severe damage to the credibility of the courts. The mechanisms of channeling public complaints about the distressing dysfunctions within the system are not user-friendly, are very expensive and in terms of corrective outcome ineffective. But the complaints and the "scandals" cannot be stopped by a protective system and an ineffective complaint protocol. They spread out like an Internet miasma from Ft Kent to Kittery, from Maine to California. They give the family courts and their entire operation a very black eye. It is very reminiscent of the recent scandals in another very closed system, the Catholic Church. Old methods and techniques of suppressing bad news, bad results and bad people don't work. The old system is badly broken and out of control, and the target symptom of this malaise can be seen most clearly in the 'pro se' situation.
HOW TO ADDRESS THE PROBLEM - FROM WITHIN OR FROM WITHOUT? It is our strong impression that without some thoughtfully programmed intervention, a growing 'pro se' situation in family courts will lead to a massive major breakdown of these courts in concert with widespread, public, bad feeling spiraling out of control. It will be impossible to control this tsunami of bad handling of 'pro se' cases. As social media become increasingly aware, the courts will face increasing disrespect and a lack of public support. It is truly a simple question of "fix it, or it will fix you!" In our opinion, the usual Judicial Branch problem solvers, the "stake holders" are the wrong group to fix the problem. They are the 26% who benefit financially from the current 'status quo' of family courts. There is also the serious hard data problem. Nobody knows the full extent of the 'pro se' problem. It is impossible to formulate a fully rational, systemic, corrective intervention without data. Clearly, the definition of systemic data needs (and subsequent data collection and analysis) is not a task within the capability of a "stake holder's" committee.
We'd recommend a legislative audit of the 'pro se' problem, executed by a respected government agency with the capability of doing this. OPEGA comes to mind. The aim is not to embarrass or cause pain to anyone. It is to obtain an objective analysis of the 'pro se' system and to suggest comprehensive systemic corrections. With sponsorship from all three branches of government, it would be to the credit of all to face a terrible problem with courage and intelligence.
For more information about what we are doing to change the Family Court system find us on Facebook or email us at MeProseway@gmail.com
“THE "TERMITES": From our perspective, serious structural damage to family courts is being caused by the seemingly inexorable growth of 'pro se' (self) representation in family courts. This phenomenon is occurring, not just in Maine, but in every state in America. In Maine, the figure for 'pro se' representation in family courts is reported to be a startling 74% and growing. There is also the eye-popping figure of 86% of family court cases, which have only ONE lawyer. The figures for 'pro se' representation, we might add, are even higher in Connecticut and NY. One has to ask, what is the impact of this amazing growth of self-representation on the family court system, on normal, professionally guided and determined family court proceedings? What happens to a professional legal system, with long traditions and well-established protocols for inter-professional relations, with a focus on complex, human problem solving, When one of the two "players" in these contests is underrepresented and completely ignorant of how to function in the well-structured, traditional setting? General systems theory would suggest chaos and profound, unprogrammed, unintended changes in the way the system functions. Well-intended attempts to patch the traditional 'status quo' models, further change the original system and bring with them further unintended consequences. The working system is not as it was - try as it may. Some call it broken. The ‘pro se’ “trend is not its friend”!
WHAT HAPPENS IN THE SYSTEM?: With the invasion of 'pro se' litigants in family courts, desperate, frightened people with no knowledge or skill in the law and its traditions, turn the courtroom into a scene of confusion, stress, emotional pain and misunderstanding. Judges struggle mightily with "judicial impartiality" in dealing with the 'pro se' litigant. To help, or not to help - and how to do so without unbalancing fairness and throwing impartiality to the winds. How can a judge - without guidelines or traditions for handling this invasion of amateurs - try to maintain a degree of balance and proportion in a situation in which the combatants/ competitors are so unevenly matched? The 'pro se' litigant is always anxious, frequently frightened (or terrified) by the utterly unfamiliar environment, by the task of hoping to rescue a beloved child and by the daunting tensions of the contest. It is a forced visit to a very "foreign country" with unfamiliar rules, language and procedures. How to cross examine, what are rules of evidence and, then, there are all too frequently the "objections" raised at every turn by an opposing lawyer. What do they mean to a 'pro se' litigant? How should they be handled by the litigant and/or by the judge? Can an "impartial" judge help a baffled 'pro se' litigant deal with “objections”? Some judges do try to offer help and to be kind without violating impartiality, but it poses serious challenges to all of the "players". There are also a number of very troubling reports that some judges are rude and vent frustration with the ineptitude of 'pro se' litigants. "Don't come back to this court unless you have a lawyer!" has been the dictum of several judges. We’d say, there is a crying need for data to measure the scope of the problems? Then, one can address the second issue: how does one correct this total systems problem?
We'd answer those judges, who resist dealing with the legally unrepresented, by saying that no one in their right mind would undertake the personal stress and misery of 'pro se', unless motivated by great love for their children and financial hardship! The 'pro se' situation is never a happy choice for anyone, and no one decides to go 'pro se' unless they are utterly desperate! There is also the important question of "outcome"? Who wins in these uneven combat situations? No one has answers to this question, but we are inclined to say, "Three guesses and the first two don't count!” However ... there is a crying need for actual data to move the conversation beyond anecdotes.
PRESERVING FAMILY COURTS FOR THE SHRINKING 26% WHO HAVE (MONEY) LAWYERS: Apart from the 74% 'pro se' litigants without lawyers, one should also consider the remaining 26% who have lawyers. One might in all honesty say that the expensive Maine family courts are being maintained for this affluent minority and (more importantly) their lawyers. As an arena for a few lawyers (and the associated apparatus of consultants and GALs), the whole operation has become known by the public (countrywide), as the divorce industry. Should family courts and their whole expensive apparatus be maintained at public expense for a 26% minority of litigants and the juicy financial interests of "the divorce bar"?
AS NEWS ABOUT THE 'PRO SE' DISASTER ESCAPES THE SYSTEM: In this age of the Internet, the public learns quickly about the unhappy state of affairs of 'pro se' litigants in family court. Paradoxically, in many cases, the public may well know more than members of the Judicial Branch who are tightly isolated from news of serious malfunctioning, cruelty. Bad management and unintended harm to children by omnipresent, "due process" concerns. The public, in all likelihood, knows more about specific courts and specific judges and lawyers than does the Chief Justice. But... the bad stories, once out, cannot be controlled or suppressed. It causes severe damage to the credibility of the courts. The mechanisms of channeling public complaints about the distressing dysfunctions within the system are not user-friendly, are very expensive and in terms of corrective outcome ineffective. But the complaints and the "scandals" cannot be stopped by a protective system and an ineffective complaint protocol. They spread out like an Internet miasma from Ft Kent to Kittery, from Maine to California. They give the family courts and their entire operation a very black eye. It is very reminiscent of the recent scandals in another very closed system, the Catholic Church. Old methods and techniques of suppressing bad news, bad results and bad people don't work. The old system is badly broken and out of control, and the target symptom of this malaise can be seen most clearly in the 'pro se' situation.
HOW TO ADDRESS THE PROBLEM - FROM WITHIN OR FROM WITHOUT? It is our strong impression that without some thoughtfully programmed intervention, a growing 'pro se' situation in family courts will lead to a massive major breakdown of these courts in concert with widespread, public, bad feeling spiraling out of control. It will be impossible to control this tsunami of bad handling of 'pro se' cases. As social media become increasingly aware, the courts will face increasing disrespect and a lack of public support. It is truly a simple question of "fix it, or it will fix you!" In our opinion, the usual Judicial Branch problem solvers, the "stake holders" are the wrong group to fix the problem. They are the 26% who benefit financially from the current 'status quo' of family courts. There is also the serious hard data problem. Nobody knows the full extent of the 'pro se' problem. It is impossible to formulate a fully rational, systemic, corrective intervention without data. Clearly, the definition of systemic data needs (and subsequent data collection and analysis) is not a task within the capability of a "stake holder's" committee.
We'd recommend a legislative audit of the 'pro se' problem, executed by a respected government agency with the capability of doing this. OPEGA comes to mind. The aim is not to embarrass or cause pain to anyone. It is to obtain an objective analysis of the 'pro se' system and to suggest comprehensive systemic corrections. With sponsorship from all three branches of government, it would be to the credit of all to face a terrible problem with courage and intelligence.
For more information about what we are doing to change the Family Court system find us on Facebook or email us at MeProseway@gmail.com
Monday, October 27, 2014
Is it time to file a Motion to Modify?
The divorce has been over for some time yet things have changed in your life or the situation you and your ex find yourself has altered. Is it time to modify that judgement?
In Maine when you file a Motion to Modify you have to be able to show there has been a "substantial change in circumstance" since the last order. Years ago a Judge explained to me that a change could be something as simple as time - a new year. Unfortunately it is not that easy and if you tried filing a Motion to Modify based on a change in year - you can expect to be laughed out of court.
So what does it mean to have a "substantial change in circumstance"?
Two things must be considered:
In order to satisfy the test more than just a slight change in circumstance has to have taken place. The change in circumstance must also directly or indirectly affect the welfare of the child. As an example - if the primary custodial parent were someone who has a history of substance abuse and mental illness but has been clean for several years and then suffered a relapse. This would be a "substantial change in circumstance" that would be required.
Do you feel there has been a change in circumstance in your situation that may warrant a change in the way custody is handled? The State of Maine provides some resources to help you file a Motion.
Materially and Substantially Changed - legal definition:
There is no precise definition of this subjective term, but it is generally interpreted as a change which is significant and has a noticeable impact on the current situation. It is a change which is important in terms of value, degree, amount, or extent.
In Maine when you file a Motion to Modify you have to be able to show there has been a "substantial change in circumstance" since the last order. Years ago a Judge explained to me that a change could be something as simple as time - a new year. Unfortunately it is not that easy and if you tried filing a Motion to Modify based on a change in year - you can expect to be laughed out of court.
So what does it mean to have a "substantial change in circumstance"?
Two things must be considered:
- The circumstances of the child, or the parent and or guardian or any other party that may be affected by the order must have had a materially and substantially changed since the order was instituted.
- The change and or appointment of a new guardian would have a positive impact and or improvement on the child.
In order to satisfy the test more than just a slight change in circumstance has to have taken place. The change in circumstance must also directly or indirectly affect the welfare of the child. As an example - if the primary custodial parent were someone who has a history of substance abuse and mental illness but has been clean for several years and then suffered a relapse. This would be a "substantial change in circumstance" that would be required.
Do you feel there has been a change in circumstance in your situation that may warrant a change in the way custody is handled? The State of Maine provides some resources to help you file a Motion.
- What to do with the form
- Motion to Modify - Form
- Acknowledgment of Receipt of Summons and Complaint or Post-Judgement Motion ( 2 ) copies needed.
- Child Support Affidavit - This must be filled out if Child Support is going to be an issue.
Materially and Substantially Changed - legal definition:
There is no precise definition of this subjective term, but it is generally interpreted as a change which is significant and has a noticeable impact on the current situation. It is a change which is important in terms of value, degree, amount, or extent.
Saturday, October 18, 2014
Judicial Branch - How Do Pro se Litigants Feel About Their Court Experience?
This summary is not available. Please
click here to view the post.
Sunday, October 12, 2014
Maine - The Pro se Problem in Family Courts - The Judicial Branch Response
September 26 a follow up email was sent to Mary Ann Lynch with the Judicial Branch regarding a conversation which took place on September 24, 2014 regarding Pro se problems. We published that email on October, 2014 so the public could read about the very real concerns of Pro se representation in the Family Court system. That letter/posting may be found here.
There were several points that were emphasized in that letter to the Judicial Branch:
1. What should the goals for any Pro se intervention be?
2. What is the nature of Maine's Pro se problem?
3. Does having a lawyer make a difference in outcome of divorce and custody?
4. How do Pro se litigants feel about their court experience?
5. How do Family Court judges feel about their experience with Pro se litigants?
6. How does the Divorce Bar see the Pro se problem?
The points were made as some possible questions that could be asked in trying to solve the Pro se problem. They were not intended as a proposal but as a means to start a conversation about planning.
In response to that email and as a follow up to the conversation - we have the following email from the Judicial Branch.
From: Mary Ann Lynch <mary.ann.lynch@xxxxxx.maine.gov>
Sent: Sep 27, 2014 7:25 AM
To: J & M Coll <jacol1@xxxxxxxx.net>
Cc: "ddusini@xxxxxxxxxx.com", "Villa98staterep@xxxxx.com", "ddutrem1@xxxxx.com"
Subject: Re: Our 'pro Se' conversation on Wednesday
Thank you for your follow up. Your letter raises issues you did not raise in our conversation on Wednesday. For instance "defining custody-50/50" fundamentally changes the current law, that is, "the best interest of the child standard." I suggest this type of question is a question of what the state law should be, and the resolution lies fundamentally with the Legislature. It would a violation of the separation of powers for the court to become involved in efforts to change amend the substantive law. If your goal is to change the substantive law on family issues, you should bring these issues before the Legislature.
You also did not mention in our conversation Wednesday an audit or study to be done specifically by OPEGA. As you may know, the Court currently is reviewing the report of the Family Division Task Force. These recommendations are before the Court after a year of study and 8 public hearings conducted all around the state. This report contains proposals and recommended changes to the court procedures governing family law matters. The Task Force report focus is on improving public service by, among other things, eliminating court events that cause unnecessary delay, and improving procedures to promote prompt and more effective resolution of family disputes. The comment period just closed, and the Court is now considering the report and the comments. It is premature to undertake another study, before the court has acted on the recommendations now before it. More fundamentally, an audit by OPEGA raises substantial separation of powers issues.
Your discussion of the significant challenges presented by people proceeding without lawyers, most likely because they cannot afford lawyers, is a subject that the Court has worked mightily over the years to address, (with proposals to the Legislature to provide civil legal services to low income Mainers and to encourage lawyers to provide free legal services. Indeed, in the next few weeks lawyers across the state will be recognized for providing free legal services to their fellow Mainers.). But the problem is not just one experienced in family matters. It is a problem that cuts across every civil docket in our courts. Any study of the issue needs to address all civil dockets, not just family matters. We welcome a renewed interest in this problem.
Finally, I do not think the continuing disparaging and pejorative characterization "of the divorce industry," is particularly helpful or productive. I suspect I will be accused of stifling discussion. That is not my intent. My intent is to accord all involved with respect.
Mary Ann Lynch
If you have had issues in Family Court as a Pro se litigant we ask that you contact us at The Pro se Way - TheProseWay@outlook.com
There were several points that were emphasized in that letter to the Judicial Branch:
1. What should the goals for any Pro se intervention be?
2. What is the nature of Maine's Pro se problem?
3. Does having a lawyer make a difference in outcome of divorce and custody?
4. How do Pro se litigants feel about their court experience?
5. How do Family Court judges feel about their experience with Pro se litigants?
6. How does the Divorce Bar see the Pro se problem?
The points were made as some possible questions that could be asked in trying to solve the Pro se problem. They were not intended as a proposal but as a means to start a conversation about planning.
In response to that email and as a follow up to the conversation - we have the following email from the Judicial Branch.
From: Mary Ann Lynch <mary.ann.lynch@xxxxxx.maine.gov>
Sent: Sep 27, 2014 7:25 AM
To: J & M Coll <jacol1@xxxxxxxx.net>
Cc: "ddusini@xxxxxxxxxx.com", "Villa98staterep@xxxxx.com", "ddutrem1@xxxxx.com"
Subject: Re: Our 'pro Se' conversation on Wednesday
Thank you for your follow up. Your letter raises issues you did not raise in our conversation on Wednesday. For instance "defining custody-50/50" fundamentally changes the current law, that is, "the best interest of the child standard." I suggest this type of question is a question of what the state law should be, and the resolution lies fundamentally with the Legislature. It would a violation of the separation of powers for the court to become involved in efforts to change amend the substantive law. If your goal is to change the substantive law on family issues, you should bring these issues before the Legislature.
You also did not mention in our conversation Wednesday an audit or study to be done specifically by OPEGA. As you may know, the Court currently is reviewing the report of the Family Division Task Force. These recommendations are before the Court after a year of study and 8 public hearings conducted all around the state. This report contains proposals and recommended changes to the court procedures governing family law matters. The Task Force report focus is on improving public service by, among other things, eliminating court events that cause unnecessary delay, and improving procedures to promote prompt and more effective resolution of family disputes. The comment period just closed, and the Court is now considering the report and the comments. It is premature to undertake another study, before the court has acted on the recommendations now before it. More fundamentally, an audit by OPEGA raises substantial separation of powers issues.
Your discussion of the significant challenges presented by people proceeding without lawyers, most likely because they cannot afford lawyers, is a subject that the Court has worked mightily over the years to address, (with proposals to the Legislature to provide civil legal services to low income Mainers and to encourage lawyers to provide free legal services. Indeed, in the next few weeks lawyers across the state will be recognized for providing free legal services to their fellow Mainers.). But the problem is not just one experienced in family matters. It is a problem that cuts across every civil docket in our courts. Any study of the issue needs to address all civil dockets, not just family matters. We welcome a renewed interest in this problem.
Finally, I do not think the continuing disparaging and pejorative characterization "of the divorce industry," is particularly helpful or productive. I suspect I will be accused of stifling discussion. That is not my intent. My intent is to accord all involved with respect.
Mary Ann Lynch
If you have had issues in Family Court as a Pro se litigant we ask that you contact us at The Pro se Way - TheProseWay@outlook.com
Wednesday, October 8, 2014
Maine - The Pro se Problem in Family Courts
Mary Ann Lynch
Government and Media
Counsel
Dear Mary Ann,
It was a pleasure to
talk with you by phone on Wednesday afternoon and to share a few thoughts about
the very troubling 74% ‘pro se’ problem in Maine’s family courts. 74% is a
powerful number that speaks to a socially unacceptable differential status of citizens/voters
in the face of justice. My purpose in
calling you was to be a “catalyst” for
broad based problem-solving concerning the ‘pro se’ phenomenon. It seems to be
growing numerically by leaps and bounds, despite valiant, well-documented
efforts by your associates to contain it.
To me, as a former
public health planner, there appears to be a lack of data about the nature of
this problem that would be a vital necessity in designing a strategic
intervention to reduce this unacceptable 74% number. The problem of ‘pro se’
numbers also appears to suffer (paradoxically) from well-intended attempts to
try to solve the ‘pro’ se’ problem with inadequate problem definition. It puts
“answers to the problem” before adequate “problem definition”, and thereby
places the cart in front of the horse. Without wishing to disparage the ongoing
work being attempted by those associated with the Maine Judicial Branch and the
Maine Bar, I would suggest that there are some serious planning questions that
need research and study before seeking answers.
Here, in brief, are
a few of my thoughts, a recap and elaboration on our earlier phone discussion:
WHAT SHOULD THE
GOALS FOR ANY ‘PRO SE’ INTERVENTION BE?
In any thoughtful, large scale, organized government plan, one needs clearly
stated goals to aim for- and to keep the movement towards goals on target. I
would suggest- tentatively - that the aim for the ‘pro se’ problem should be to
reduce the incidence and prevalence of ‘pro se’ as a phenomenon in Maine family
courts - “to move the “numbers needle” backwards”. To use a public health
conceptualization, one might say ‘pro se’ is a growing epidemiological problem.
What is the “epidemic” about, how is it spread over Maine’s “at risk”
populations, who is vulnerable, what factors are causing it, what exacerbates
its growth, what diminishes its growth and what “interventions” might well
organized data suggest would be most effective? To that end, I suggest a sample
of some very generic questions that an epidemiologist might ask before
intervening in any epidemic.
WHAT IS THE NATURE
OF MAINE’S FAMILY COURT ‘PRO SE’ PROBLEM? Beyond anecdote, who are the 74% of
people who do ‘pro se’’ in Maine’s family courts? What sort of demographics do
they represent? What ages, occupations, education levels, financial status, duration
of marriage, number of children, geographic locations, previous
marriages/relationships, health/mental health status? What are the reasons that they are doing ‘pro se’? Financial reasons (examples)? Or other
reasons? All of these data would be
useful tools in shaping rational problem-solving. Without such data, solving
problems can only be based on anecdote, guess work, personal impressions,
prejudice and bias. Bad information, as everyone knows, leads to bad answers!
DOES HAVING A LAWYER
MAKE A DIFFERENCE IN OUTCOME OF DIVORCE AND CUSTODY? What is the statistical
record for various types of outcomes for ‘pro se’ litigants? How do things go
when one party has a lawyer and the other doesn’t? What factors favor what outcome
when both parties have a lawyer? Are there statistics for law firms and lawyers
showing records of wins and losses? How do ‘pro se’’, lawyers, and judges view
the contest?
HOW DO ‘PRO SE’
LITIGANTS FEEL ABOUT THEIR COURT EXPERIENCE? Were they helped to do pre-court
paperwork? Was the help that they received effective or was it confusing? Did
they get help or coaching before going to court? From what kinds of helping
sources? How do ‘pro se’ litigants feel about their courtroom experience? Were they put at ease by the judge? Were they
treated respectfully? Did they encounter judicial hostility or overt rejection?
Were they listened to? How did they handle evidentiary challenges (“object,
object, object!”) from opposing counsel? Were they included in all conferences
and administrative issues? Did they feel that they received treatment in court
equal to opposing counsel (if there was one)? Do they have ideas for
simplifying the process for making it less time consuming, fairer and with
happier resolution? How were they and their children impacted by the personal
stress of the ‘pro se’ experience and
its aftermath?
HOW DO FAMILY COURT
JUDGES FEEL ABOUT THEIR EXPERIENCE WITH ‘PRO SE’ LITIGANTS? What kinds of
problems do they experience? What impact does ‘pro se’ have on courtroom
procedures and process? What are the biggest challenges in this situation for
judges? What would they suggest to solve some of the problems associated with
‘pro se’? Do they have suggestions that might diminish the incidence of ‘pro
se’ ?
HOW DOES THE DIVORCE
BAR SEE THE ‘PRO SE’ PROBLEM? Does everyone in a divorce and custody situation
need a lawyer? What type of cases may not need a lawyer? What about pre-court legal “coaching”? What
about paraprofessional lawyers? What about defining custody as 50-50 in all
cases- except proven abuse? What other ideas? What about disincentives for
lawyers? What about fee caps on all cases, or needing certification from a
judge to bill beyond a certain $$ figure?
Please, do not take
the preceding paragraphs as any sort of concrete proposal. The remarks above
are offered only as possible examples of epidemiological data for use in a very
classic, rational problem solving process. The questions are more to get a conversation
about planning going- or to say, we don’t want to go there, because...
To my thinking, all
three branches of government should be involved in any such a conversation
leading to a plan for action. The core issue at the heart of the ‘pro se’
problem problem is about how we are to treat Maine families and children in the
throes of divorce and custody. It is a question about the well being of a sub-population of huge importance to the
future of Maine. Interest in the topic goes way beyond the interest and
practices of one branch of government and one profession. Ideally all three
branches of government should work on the issue and should sponsor the
supportive legislation to enable the work. As to the question of who might best do such a study or variations thereof in
the interest of the public, my vote would be for OPEGA; others might have other
choices. My personal aim would be to eliminate the dominance of “special
interests” of stake holders from the “divorce industry”, who have been the
dominant players heretofore. They don’t represent the people.
I hope this gives a
bit more flesh on the bare bones we discussed on Wednesday? It is still
skeletal! It is just a beginning of a
much needed larger conversation.
Thanks for your
time, your always valuable perspective and your in depth knowledge of the
Judicial Branch - and Maine government.
Sincerely,
Jerry Collins
CC: MeGALert
If you have had a
bad experience in the Family Court systems as a Pro se litigant. Please
contact us at TheProseWay@outlook.com or find us on Facebook.
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