Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed

Over the past decade, the phenomenon of Self-Representation in civil cases has received increased scrutiny. The courts’ struggles with huge numbers of cases involving at least one party without counsel have led to questions about the proper role of the key players in the court system and the development of programs designed to facilitate self-representation. States have created Access to Justice Commissions to develop responses to the problems of those without access. A revitalized movement seeking to establish a Civil Right to Counsel has emerged, pressing for the expansion of the availability of counsel for the poor. The activity of the past decade comes amidst the backdrop of unmet legal needs, the inadequacy of funding for legal services for the poor, and reports demonstrating the extent to which litigants without counsel fare poorly in the courts even where basic needs are at stake in the proceedings.Viewed one way, the responses of facilitating Self-Representation and establishing a Civil Right to Counsel could conflict. In this view, the response to the problems facing those without counsel is to provide assistance improving their ability to self-represent, not to provide counsel. Viewed a different way, the responses could be part of the same Access to Justice agenda. Proponents of Self-Representation might believe that, even with robust assistance programs, some cases still are not appropriate for Self-Representation. Proponents of a Civil Right to Counsel might recognize that, even with an expansion of the availability of counsel, no serious proposal contends that counsel should be provided at public expense for all litigants in all civil cases.The latter approach suggests a common inquiry for those involved with issues of self-representation and those seeking to establish a Civil Gideon: what are the scenarios in which self-representation is least likely to be effective, and counsel is most needed? Part of this question relates to policy choices as to when what is at stake in the proceeding is so important that avoiding is loss is an important goal. Part of the question, however, is a research question, involving the sorting of cases by claim, by characteristics of the parties, by features of the forum, or by some combination of factors to identify where counsel is most needed.While sound programmatic choices will depend on the accuracy of information, it does not necessarily follow that those choices must await new and sophisticated research. A wealth of reports - many unpublished - exist from the past three decades shedding light on the problems facing those without counsel in the “poor people’s courts,” typically handling family, housing and consumer cases. With the increased focus on self-representation and the treatment of unrepresented litigants in the courts, recent reports shed light on the impact of assistance programs short of full representation by counsel. Evaluation efforts have lagged behind the creation of the programs, a problem hampered by the absence of baselines, the limitations of existing evaluation tools and methodology, and even variation as to the goals of the programs and the questions as to what should be measured.Before we embark on new research, we should assess what we know from existing reports. This article first analyzes many of the reports revealing the correlation between representation and success rates in court. As shown in Part II, notwithstanding methodological differences, reports consistently show not only that representation is a significant variable affecting a claimant’s chances for success in eviction, custody, and debt collection cases, but that the finding also applies to many administrative proceedings; Rebecca Sandefur’s meta-analysis of studies of the effects of representation reports that “parties represented by lawyers are between 40% more likely and 1380% more likely to receive favorable outcomes in adjudication than are parties appearing pro se. ” Part III examines the available reports of self-representation initiatives. While the multiple goals driving the research often produce a scenario precluding meaningful comparisons to the reports on the impact of counsel, the reports nonetheless shed light on the crucial question of when self-representation is least likely to be effective, and representation most needed if we care about preserving the rights at stake.Part IV explores the implications of the reports, discussing key variables beyond representation that impact case outcomes. It next identifies the two crucial, and unsurprising, conclusions regarding what we do know about representation. The first is the importance of power. The greater the power opposing a litigant, and the more that litigant lacks power, the greater will be the need for representation; the section therefore explores sources of power that line up against litigants without counsel, and factors that act as barriers to representation. The second theme is the importance not just of any advocate, but of a skilled advocate with knowledge and expertise relevant to the proceeding where the power imbalance is the greatest. Parts IV and V also explore programmatic implications that flow from the two themes and complicating questions. Nothing in this article suggests that we have all the answers we need. To the contrary, had previous reports identified as part of their research the question of when representation is most needed, we would have better data aiding designs of our programs and the allocation of scarce resources. As we continue to study the courts, self-representation and unmet legal needs, asking common questions is a crucial way to obtain useful data without requiring separate, elaborate and expensive research.At the same time, however, the consequences of waiting until we are absolutely certain of the details are devastating. The complexity of the analysis makes it likely that, as we gain new information, the insights will raise new questions as well; we may never be certain. More importantly, we know that, on a daily basis, dis-empowered litigants across the county suffer harmful outcomes in cases involving basic needs, with devastating consequences for them and their families. Where we can identify likely starting points for reform, the price of delay outweighs the costs of uncertainty.