Administrative Conference of the United States
SELF-REPRESENTED PARTIES IN ADMINISTRATIVE
HEARINGS

Final Report: October 28, 2016

Connie Vogelmann*
Attorney Advisor – Administrative Conference of the United
States

This report was prepared for the consideration of the Administrative Conference of the United States. The opinions, views and
recommendations expressed are those of the author and do not necessarily reflect those of the members of the Conference or its
committees, except where formal recommendations of the Conference are cited.
*

The author wishes to thank Attorney Advisor Amber Williams for her assistance and advice throughout this
project. The author also wishes to thank several Administrative Conference interns for their assistance with research
on this project, especially: Caroline Barker, Vincent Bennett, Rachel Bond, Alanna Jereb, Lara Mangum, Patrick
Miller, and Philip Timmerman.

October 28, 2016

Table of Contents

Introduction ..................................................................................................................................... 1
I.

Background.............................................................................................................................. 3

II. Interviews with Court Representatives and Pro-Se Experts .................................................... 8
A. Self-Represented Parties in the Courts .............................................................................. 10
B. Challenges in Dealing with Self-Represented Parties ....................................................... 12
C. Providing Assistance to Self-Represented Litigants .......................................................... 14
1.

Overarching Principles and Concepts ............................................................................ 14

2.

In-Person Self-Service Centers ...................................................................................... 17

3.

Workshops...................................................................................................................... 18

4.

Virtual Services – Phone, Email, Text, and Chat ........................................................... 19

5.

Plain Language and Translation Services ...................................................................... 21

6.

Forms, E-Filing, and Document Assembly .................................................................... 22

7.

Web Resources ............................................................................................................... 23

8.

Judicial Resources and Training .................................................................................... 25

9.

Steps for the Future ........................................................................................................ 25

D. Procedural and Structural Simplification ........................................................................... 26
III. Case Studies on Self-Representation in Administrative Hearings ........................................ 28
A. Board of Veterans’ Appeals ............................................................................................... 29
1.

Hearing Overview .......................................................................................................... 30

2.

Statutory and Regulatory Framework ............................................................................ 31

3.

Resources Available to Self-Represented Parties .......................................................... 32

4.

Recommendations for the Future ................................................................................... 34

B. Executive Office for Immigration Review ........................................................................ 34
1.

Hearing Overview .......................................................................................................... 35

2.

Statutory and Regulatory Framework ............................................................................ 36

3.

Resources Available to Self-Represented Parties .......................................................... 37

4.

Recommendations for the Future ................................................................................... 40

C. Social Security Administration .......................................................................................... 40
1.

Hearing Overview .......................................................................................................... 41

2.

Statutory and Regulatory Framework ............................................................................ 42
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October 28, 2016
3.

Resources Available to Self-Represented Parties .......................................................... 43

4.

Recommendations for the Future ................................................................................... 46

D. United States Department of Agriculture National Appeals Division ............................... 46
1.

Hearing Overview .......................................................................................................... 46

2.

Statutory and Regulatory Framework ............................................................................ 47

3.

Resources Available to Self-Represented Parties .......................................................... 48

4.

Recommendations for the Future ................................................................................... 50

IV. Recommendations ................................................................................................................. 51
Appendix A: Recommendations to Case Study Agencies ............................................................ 57
A. Board of Veterans’ Appeals ............................................................................................... 57
B. Executive Office for Immigration Review ........................................................................ 58
C. Social Security Administration .......................................................................................... 61
D. United States Department of Agriculture National Appeals Division ............................... 62

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October 28, 2016
Introduction
Federal agencies conduct millions of hearings each year, making decisions that can
establish, maintain, or eliminate eligibility for important benefits and services ranging from
disability or Veterans’ benefits, to immigration status, to home or property loans. In many of
these adjudications, claimants appear unrepresented for part or all of the proceeding and must
learn to navigate hearing procedures, which can be quite complex, without expert assistance. The
presence of self-represented parties1 in administrative hearings can create challenges for both
administrative agencies and for the parties seeking benefits. Further, the presence of selfrepresented parties raises a number of concerns relating to the consistency of hearing outcomes
and the efficiency of processing cases.
Because of these concerns, in the spring of 2015 the Department of Justice’s Office for
Access to Justice asked the Administrative Conference to co-lead a working group on selfrepresented parties in administrative hearings, and the Conference agreed.2 The working group,
which operates under the umbrella of the White House Legal Aid Interagency Roundtable (WHLAIR), has been meeting since that time.3 During working group meetings, representatives from
a number of agencies, including the Social Security Administration (SSA), Executive Office for
Immigration Review (EOIR), Board of Veterans’ Appeals (BVA), Internal Revenue Service
(IRS), Department of Health and Human Services (HHS), Department of Agriculture (USDA),
and Department of Housing and Urban Development (HUD) participated, and shared
information about their practices and procedures relating to self-represented parties.
In working group meetings, agency representatives agreed that hearings involving selfrepresented parties are challenging, and expressed interest both in learning more about how other
agencies and courts handle self-represented parties and in improving their own practices. In
general, procedures toward self-represented parties in administrative hearings are not wellstudied, and there has been little cross-agency communication on the topic. In most cases, data
are scarce and rigorous evaluation of self-representation and its effects is lacking.

Throughout this report, the term “self-represented” is used to denote parties who do not have professional
representation, provided by either a lawyer or an experienced nonlawyer. Representation by a non-expert family
member or friend is included in this report’s use of the term “self-represented.” Although agencies generally use the
term “self-represented,” most courts use “pro se” to denote parties who represent themselves. This report treats the
two terms as synonymous, and uses “self-represented” throughout, both to reflect the report’s focus on
administrative hearings and for the sake of consistency.
2
The author co-leads the working group with Amber Williams, Attorney Advisor at the Administrative Conference
of the United States, and Bob Bullock, Senior Counsel for the Office for Access to Justice at the Department of
Justice. The author wishes to thank Mr. Bullock for his partnership and support throughout the working group and
project.
3
WH-LAIR was established in 2012 by the White House Domestic Policy Council and the Department of Justice.
See White House Legal Aid Interagency Roundtable, U.S. DEP’T OF JUST., https://www.justice.gov/lair (last visited
Aug. 16, 2016). It was formalized by Presidential Memorandum in the fall of 2015. See Memorandum from the
President to the Heads of Exec. Dep’ts and Agencies (Sept. 14, 2015), https://www.whitehouse.gov/the-pressoffice/2015/09/24/presidential-memorandum-establishment-white-house-legal-aid-interagency. The author has
represented the Administrative Conference at several WH-LAIR meetings since 2015.
1

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October 28, 2016
This report provides an overview of self-representation in the administrative context, and
begins to build a better understanding of agency practices and procedures regarding selfrepresented parties. It identifies innovations that can aid both agencies and self-represented
parties in administrative hearings, and makes recommendations to agencies for improvement.
Because information on self-representation in the administrative context is scarce, the
report draws heavily from the state civil courts. Many courts have been grappling with issues
related to self-representation for over two decades, and have significant experience identifying
common problems and solutions. Although there are important differences between procedures
in administrative hearings and those in the civil courts, available information indicates that the
two contexts share many of the same problems – and solutions – for dealing with selfrepresented parties.
The report draws from state courts, as opposed to federal courts, for several reasons.
Most importantly, certain types of state court cases, particularly in the family law arena, share
substantial similarities with administrative hearings, both in terms of the nature of the cases and
the types of parties involved. Furthermore, self-represented parties have been heavily studied in
the state courts,4 and state courts have implemented very diverse practices for dealing with selfrepresented parties. These factors make the state courts a valuable source of information for
administrative agencies.
It is important to note at the outset two limitations to the scope of this report. First, this
report only addresses the subset of administrative agencies that conducts their own
administrative hearings. A number of federal agencies – including HUD, HHS, and components
of USDA – do not conduct hearings directly, and instead delegate adjudication responsibilities to
state or local entities. Because the challenges faced by this second set of agencies are distinct
from those faced by administrative agencies that conduct their own hearings, they would be best
studied in a separate project and are not covered here. Second, it is important to emphasize that,
in examining this subject, the author makes no normative judgment on the presence of selfrepresented parties in administrative hearings. This report assumes that there will be
circumstances in which parties will need, or choose, to represent themselves, and seeks to
improve the resources available to those parties.
Importantly, the report does not reach the normative issue of whether or not a “civil
Gideon” is desirable.5 However, it should be noted that the circumstances in which the due
process clause would require the provision of counsel would be rare, given the Supreme Court’s
recent holding in Turner v. Rogers. In Turner, the Court found that an indigent individual in a
civil contempt proceeding is not automatically entitled to counsel, even when facing
4

For instance, both the Self-Represented Litigation Network and the National Center for State Courts focus
primarily on state courts.
5
See, e.g., Robert W. Sweet, Civil Gideon and Confidence in a Just Society, 17 YALE L. & POL'Y REV. 503, 503
(1998); Stephen Loffredo, Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings,
25 TOURO L. REV. 273, 329 (2009) for discussion of a “civil Gideon.”

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October 28, 2016
incarceration.6 Instead, the Supreme Court sketched out several “substitute procedural
safeguards” that would mitigate the risk of an “erroneous deprivation of liberty” in cases of selfrepresentation;7 however, not only are the factors provided by the Supreme Court narrowly
constrained to the civil contempt context, but they are also so minimal that existing agency
practice generally already meets these standards.8
This report is divided into four sections. The “Background” section provides a brief
overview of self-representation, and identifies problems presented by self-representation for the
parties themselves and for the adjudicators and entities responsible for hearing their cases. The
section addresses self-representation in administrative agencies where such information is
available, and supplements agency-specific information with discussion of self-represented
parties in the civil court context. The second section of the report summarizes lessons learned
from civil courts in dealing with self-representation, and draws on information gained from
informal interviews with twelve experts on self-representation. This section provides an
overview of innovations designed to assist self-represented parties and flags some potential areas
for caution. The third section begins to explore the issue of self-representation in administrative
hearings by providing case studies of four administrative agencies: SSA, EOIR, BVA, and
USDA’s National Appeals Division. Each case study opens with a brief overview of the
agency’s hearing procedures and discusses the resources each agency offers to assist selfrepresented parties. Targeted recommendations are provided to each agency in Appendix A. It
should be noted that these recommendations are not part of the overarching recommendations
that the Conference Assembly is asked to consider, and are provided largely for consideration by
each specific agency. The final section of the report provides a series of broader
recommendations for federal agencies to consider, and is aimed at improving both procedural
efficiency and consistency of outcomes when dealing with self-represented parties in
administrative hearings. These recommendations are intended to benefit not only selfrepresented parties, but the system more generally. While improvements may carry upfront costs,
they will also likely provide offsetting benefits in efficiency over time.
I.

Background

Improving access to justice is an ongoing concern, and challenges related to selfrepresented parties have been the focus of significant attention in the court context.
Commentators have repeatedly, and vehemently, stressed the need for greater access to justice
for parties seeking redress from the judicial system. Concerns focus in particular on low-income
6

Turner v. Rogers, 131 S. Ct. 2507 (2011).
Id. at 2519.
8
Id. The risk of an “erroneous deprivation of liberty” is significantly reduced if “substitute procedural safeguards”
are provided, including:
(1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding;
(2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity
at the hearing for the defendant to respond to statements and questions about his financial status
(e.g., those triggered by his responses on the form); and (4) an express finding by the court that the
defendant has the ability to pay.
7

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October 28, 2016
and low-education populations,9 with proposed solutions ranging from increasing resources
available to self-represented parties;10 to creating a more active role for adjudicators;11 to
promotion of a “civil Gideon,” in which all parties in civil cases would have a right to
representation.12
Only relatively recently have parallel concerns received similar attention in the
administrative context – for instance, the Department of Justice’s Office for Access to Justice
was created in 2010 to help the justice system “efficiently deliver outcomes that are fair and
accessible to all.”13 A small number of authors have addressed access to justice issues in the
federal administrative context,14 but the topic has been studied much less intensively in federal
agencies when compared to the courts. Based on the literature that addresses the administrative
context,15 and through conversations with agency officials as part of the working group and
throughout research for this report, it is clear that the two contexts share many common problems
and solutions. Unfortunately, as Richard Zorza observes, there has been little “cross-pollination
of ideas” between the courts and administrative agencies, in spite of the fact that such
information sharing would benefit both groups of adjudicators.16 This project aims to begin that
dialogue.
Many of the challenges presented by self-represented parties are caused, or exacerbated,
by their increased presence in court and administrative proceedings over the last two decades.
Since the mid-1990s, courts around the country have seen a significant increase in selfrepresented litigants in civil cases.17 In part, this growth is due to the high cost of legal services,
For general information on solving the “access to justice” problem, see generally Richard Zorza, Access to Justice:
The Emerging Consensus and Some Questions and Implications, 94 JUDICATURE 156 (2011) [hereinafter Access to
Justice].
10
See, e.g., Richard Zorza, Self-Represented Litigants and the Access to Justice Revolution in the State Courts:
Cross-Pollinating Perspectives Toward a Dialogue for Innovation in the Courts and the Administrative Law System,
29 J. NAT’L ASS’N ADMIN L. JUDICIARY 63, 82–86 (2009) [hereinafter Self-Represented Litigants]. For a good list of
examples of court innovations to provide assistance to self-represented parties, see generally JONA GOLDSCHMIDT ET
AL., MEETING THE CHALLENGES OF PRO SE LITIGATION (1998) [hereinafter MEETING THE CHALLENGES].
11
See generally, Paris R. Baldacci, A Full and Fair Hearing: The Role of the ALJ in Assisting the Pro Se Litigant,
27 J. NAT’L ASS’N ADMIN. L. JUDICIARY 447 (2007) [hereinafter Fair Hearing].
12
See, e.g., Robert W. Sweet, Civil Gideon and Confidence in a Just Society, 17 YALE L. & POL'Y REV. 503, 503
(1998); Stephen Loffredo, Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings,
25 TOURO L. REV. 273, 329 (2009).
13
Office for Access to Justice, U.S. DEP’T OF JUSTICE, https://www.justice.gov/atj (last visited Aug. 16, 2016).
14
See, e.g., Self-Represented Litigants, supra note 10; Fair Hearing, supra note 11.
15
For instance, Richard Zorza writes that “The administrative law and state court systems function in ways that are
becoming more and more similar. Therefore, the two systems have much to learn from each other.” Self-Represented
Litigants, supra note 10, at 90.
16
Id. at 65.
17
See, e.g., MEETING THE CHALLENGES, supra note 10, at 3; Russell Engler, And Justice for All-Including the
Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 FORDHAM L. REV. 1987, 2047–
69 (1999) [hereinafter Justice for All]; Bonnie Ross Hough & Laurie D. Zelon, Self-Represented Litigants:
Challenges and Opportunities for Access to Justice, 47 JUDGES’ J. 30, 30 (2008) [hereinafter Challenges and
Opportunities]; Stephen Landsman, The Growing Challenge of Pro Se Litigation, 13 Lewis & Clark L. Rev. 439,
440 (2009) [hereinafter The Growing Challenge]; Zorza, Self-Represented Litigants, supra note 10, at 64.
9

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October 28, 2016
which place these services out of reach for many parties.18 Declining financial support for legal
services has contributed to this problem. 19 At the same time, more people who can afford an
attorney are choosing not to use one, in part because of increasing education levels, a growth in
“do it yourself” attitudes among parties, and a fear that legal assistance will not help.20
Because the courts are designed for use by trained advocates, the presence of selfrepresented parties can cause delay at a systemic level,21 and self-represented parties may place
significantly more demands on court and staff resources when compared to attorneys.22 Selfrepresented parties may appear at the courthouse and expect clerks to provide resources that may
or may not exist, and generally expect more information and assistance than clerks can provide.23
Clerks are often instructed that they may provide “legal information” but not “legal advice,”
which is a distinction that both clerks and self-represented parties struggle to keep clear.24 Clerks
often spend “extensive time and effort” providing information to self-represented parties, and
often end up inadvertently providing poor and limited legal advice in the process.25 It is not
uncommon for court staff to reject filings by self-represented parties due to procedural
insufficiencies, and they may need to do so several times before the paperwork is completed
appropriately.26
After the paperwork is filed, self-represented parties can cause a number of additional
challenges for court staff and judges. They may fail to file supplemental pleadings on time, and
often struggle with common court procedures, such as service of process, creating additional
time and resource burdens for court staff.27 Self-represented parties often do not appear for
scheduled hearings, adding uncertainty and inefficiency throughout the system. Court staff often
expend resources reminding or notifying self-represented parties of hearings, and inefficiencies
are generated by the lack of certainty concerning how many cases to schedule, as well as the
necessity of rescheduling missed hearings.28 Paperwork may be incomplete or difficult to
interpret, placing additional burdens on judges to determine what relief has been requested or
whether the litigant has a basis for his or her claim.29

18

See MEETING THE CHALLENGES, supra note 10, at 8–10.
The Growing Challenge, supra note 17, at 444.
20
Id. at 445; MEETING THE CHALLENGES, supra note 10, at 11-14.
21
Challenges and Opportunities, supra note 17, at 30.
22
See Paula Hannaford-Agor & Nicole Mott, Research on Self-Represented Litigation: Preliminary Results and
Methodological Consideration, 24 JUST. SYS. J. 163, 164 (2003). But see JOHN M. GREACEN, SELF REPRESENTED
LITIGANTS AND COURT AND LEGAL SERVICES RESPONSES TO THEIR NEEDS 2 (n.d.) [hereinafter RESPONSES]. John
Greacen notes in this report that in certain case types, cases involving self-represented parties take less time than
cases with lawyers. Id.
23
Hannaford-Agor & Mott, supra note 22, at 164–65.
24
Id. at 165; Justice for All, supra note 17, at 1992–93.
25
Justice for All, supra note 17, at 1998.
26
Hannaford-Agor & Mott, supra note 22, at 265.
27
Id.
28
Id.
29
Id.
19

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Another common problem caused by self-represented parties has to do with judicial
ethics and neutrality.30 Traditional judicial training directs judges to maintain impartiality, which
can create difficulties when self-represented parties are involved.31 As Jona Goldschmidt writes:
Judicial ethics principles have obvious relevancy to the thorny dilemma confronting
the trial judge: balancing the duty of impartiality in appearance and in fact with the
duty to provide a fair and meaningful hearing. The judge who provides any form of
assistance to a self-represented litigant whose adversary is represented risks being
accused of unfairness by the opposing attorney. Yet, by maintaining complete
passivity when a self-represented litigant makes errors jeopardizing the claim or
defense sought to be made, some would argue that the judge runs afoul of the
meaningful hearing requirement of the due process clause and the rights of access
to the court, self-representation, and an open court.32
These issues are not unique to trial court judges, and administrative hearing officers face
many of the same challenges when working with self-represented parties. Although hearing
officers sometimes have special duties to assist self-represented parties,33 they face many of the
same challenges as trial court judges.34 Like trial court judges, hearing officers must thread the
needle between providing enough guidance to self-represented parties so they can adequately
present their cases, while avoiding either bias or the appearance of bias. Richard Zorza
comments that although hearing officers have more flexibility than court judges, they still feel
“acutely constrained” in their decision-making when it comes to self-represented parties, and are
limited by the fear of creating bias.35
That said, in recent years, “a very significant change in judicial attitudes is taking place”
with respect to self-represented parties.36 Judges are being encouraged to be less passive in
dealing with self-represented parties, and to find ways to elicit evidence from self-represented
parties that are non-prejudicial and maintain both neutrality and the appearance of neutrality.37
The ABA recently updated its Model Judicial Code to explicitly allow judges to provide
assistance to self-represented parties. Model Rule 2.2 states that judges should decide cases with
“impartiality and fairness,”38 and the associated comment explains that judges may make
“reasonable accommodations” to ensure self-represented parties are fairly heard.39

30

See, e.g., Justice for All, supra note 17, at 2012-2021.
Hannaford-Agor & Mott, supra note 22, at 265.
32
MEETING THE CHALLENGES, supra note 10, at 25.
33
See Justice for All, supra note 17, at 2017-18.
34
Fair Hearing, supra note 11, at 448.
35
Self-Represented Litigants, supra note 10, at 80.
36
Richard Zorza, Trends in Self-Represented Litigation Innovation, in FUTURE TRENDS IN STATE COURTS 85, 85
(Carol R. Flango et. al. eds., 2006) [hereinafter Trends].
37
Id. at 85.
38
MODEL CODE OF JUD. CONDUCT r. 2.2 (AM. BAR. ASS’N 2010).
39
Id. at r. 2.2 cmt. 4.
31

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In addition to the burdens placed by self-represented parties on adjudicators, selfrepresented parties may also face a disadvantage when entering a legal proceeding without
representation. Self-represented parties are typically unfamiliar with relevant rules and
procedures in court, and are often intimidated by court processes, leading to suboptimal results
for the self-represented party.40 Jona Goldschmidt and his co-authors comment in their “Report
and Guidebook for Judges and Court Managers” that “[i]t cannot be denied that the barriers
encountered by self-represented litigants both outside and inside the courtroom deprive them of
access to justice.”41 Russell Engler notes that structural features of court procedures that are
designed for attorneys have “devastating” consequences for self-represented parties, and adds
that “[t]he forfeiture of rights flows from the barriers facing unrepresented litigants at each stage
of the proceeding and each encounter with the various players in the system.”42
In the administrative context, Paris Baldacci comments that a self-represented party is
forced to become a “litigator within an adjudicatory system that she does not understand, either
procedurally or substantively, and that effectively silences her.”43 Baldacci emphasizes that this
happens even in nonadversarial administrative hearings,44 and adds that the fundamental problem
for self-represented parties in administrative proceedings is not their inability to understand, but
the challenges of navigating structural features designed for attorneys.45 Complexity has been
cited as a fundamental problem in administrative hearings – even in those hearings designed
specifically to be manageable for a layperson.46
In response, courts have implemented a number of innovations designed to provide
assistance to self-represented parties, and agencies are beginning to implement similar changes.47
Court innovations will be discussed in more depth in the next section of this report, but it is
worth noting at the outset that, although rigorous evaluation is lacking,48 existing reports on selfhelp programs are very positive. Richard Zorza notes that customer surveys of users of self-help
services show “overwhelming” levels of satisfaction.49 In addition, surveys of court personnel
support the idea that self-help services improve court efficiency.50 John Greacen conducted a
preliminary study evaluating costs of self-help services provided to self-represented parties, and
found that many self-help services, including workshops, one-on-one interactions with self-

40

Challenges and Opportunities, supra note 17, at 30.
MEETING THE CHALLENGES, supra note 10, at 4.
42
Justice for All, supra note 17, at 1989.
43
Fair Hearing, supra note 11, at 449.
44
Id. at 449.
45
Id. at 450.
46
Michael P. Allen, Veterans’ Benefits Law 2010–2013: Summary, Synthesis, and Suggestions, 6 VETERANS L. REV.
1, 73–76 (2014).
47
See sources cited supra note 10.
48
See generally Laura K. Abel, Evidence-Based Access to Justice, 13 U. PA. J.L. & SOC. CHANGE 295 (2010).
49
See Trends, supra note 36, at 85.
50
Id.
41

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represented parties, and provision of settlement and paperwork assistance, can provide
significant cost savings to courts.51
II.

Interviews with Court Representatives and Pro-Se Experts

The author conducted unstructured interviews with twelve individuals who have expertise
in dealing with self-represented parties, primarily in the court context.52 Most of the these
individuals are affiliated with particular courts, but the author also spoke with several experts
who have experience dealing with self-represented parties nationwide, including Katherine
Alteneder of the Self-Represented Litigation Network, Deborah Smith of the National Center for
State Courts, and John Greacen of Greacen Associates, LLC. A full list of interviewees, their
titles and organizational affiliations, and the interview dates, can be found on page 10.
The author began this portion of the project by identifying and reaching out to courts with
particularly robust self-represented litigant services. During the initial interviews, the author
asked interviewees for recommendations of other people to contact, then conducted additional
interviews based on these recommendations. Interviews lasted between 30 minutes and an hour
each and were unstructured; the interviewer guided initial discussion toward relevant topics in
working with self-represented litigants, but each conversation took a different shape over the
course of the interview.
It should be noted that two interviews are “outliers,” in that the interviewees are neither
involved with a particular state court nor do they study self-represented parties in the court
context. First, the author conducted an interview with representatives from New York City’s
Office of Administrative Trials and Hearings (OATH), which is involved with administrative
hearings at the local level. More detail can be found about OATH’s hearing procedures in Part D
of this section. Second, the author conducted an interview with Michael Hayes, Senior Programs
Manager, Division of Program Innovation at the Office of Child Support Enforcement in the
U.S. Department of Health and Human Services. The author included discussion of both of these
interviews in this section because of the significant insight these interviewees provided into
dealing with self-represented litigants; the author did not want to exclude them from the study
based on a technical distinction.
Though not expecting disagreement, the author was surprised by how much consistency
of opinion existed among interviewees. Although there were minor differences of opinion in
terms of the best services to use to assist self-represented parties, interviewees largely agreed
about the primary challenges associated with self-represented parties as well as the conceptual
framework for accommodating them. As such, although the author interviewed a relatively small
number of individuals, the author feels confident that the research captures the most important
51

JOHN GREACAN, THE BENEFITS AND COSTS OF PROGRAMS TO ASSIST SELF-REPRESENTED LITIGANTS 12–13 (2009)
[hereinafter BENEFITS].
52
As is noted in the introduction, this report uses “self-represented” throughout for the sake of consistency. Most
courts use the term “pro se” instead, and the report treats the terms as interchangeable.

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October 28, 2016
issues pertaining to self-represented parties as well as the most current school of thought on how
to accommodate them.
The table on the next page identifies interviewees as well as their institutional affiliations
and interview dates. Throughout the following section, where a particular interviewee is
referenced, or where a particular state’s practices are cited, readers should assume that the
information was obtained from the relevant interview in the table below, unless a different
citation is provided. For the sake of clarity, although several of the interviewees represented
county-level self-help centers, this report references the state in which the centers were located
when discussing the interviews.

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October 28, 2016
Interview Date

Name

July 7, 2016

Shawn Friend

July 7, 2016

Sara Gonsalves

July 8, 2016

Bonnie Hough

July 11, 2016

John Burns

Marisa Senigo

July 12, 2016
July 28, 201653
July 19, 2016

Katherine
Alteneder
Deborah Smith

July 20, 2016
July 22, 2016

Mary Jane
Ciccarello
Pamela Ortiz

July 26, 2016

Stacey Marz

July 26, 2016

Michael Hayes

July 27, 2016

John Greacen

Title
Organization
Director, Law Library Resource Center,
Maricopa County Superior Court, Arizona
Manager, Self-Represented Litigant Program,
Minnesota Judicial Branch
Principal Managing Attorney, Center for Families,
Children and the Courts,
Judicial Council of California
First Deputy Commissioner, Supervising
Administrative Law Judge,
Office of Administrative Trials and Hearings, City of
New York
Assistant Commissioner for Public Affairs and
Communications,
Office of Administrative Trials and Hearings, City of
New York
Coordinator,
Self-Represented Litigation Network
Knowledge and Information Services Senior Analyst,
National Center for State Courts
Director,
Utah State Courts’ Self Help Center
Director, Access to Justice Department,
Administrative Office of the Courts, Maryland
Director, Self-Help Services,
Alaska Court System
Senior Programs Manager, Division of Program
Innovation,
Office of Child Support Enforcement, U.S.
Department of Health and Human Services
Principal, Greacen Associates, LLC

A. Self-Represented Parties in the Courts
The court representatives the author spoke with deal with significant numbers of selfrepresented parties, particularly in family law, probate cases, landlord-tenant disputes, contract
cases, guardianship and conservatorship, and protective orders. These case types are both high

53

Due to scheduling conflicts, the interview with Katherine Alteneder was conducted in two parts on different dates.

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October 28, 2016
volume and have high percentages of self-represented parties. For instance, court representatives
estimated that over the last few years, between 60% and 90% of family law cases had at least one
self-represented party.54 By all accounts, this range seems fairly consistent nationwide.55 Very
high percentages of self-represented parties were cited in other areas as well – for instance,
Bonnie Hough (Principal Managing Attorney, California Center for Families, Children and the
Courts) estimated that 90% of tenants in landlord-tenant disputes were self-represented, and
Mary Jane Ciccarello (Director, Utah State Courts’ Self-Help Center) estimated that close to
100% of defendants in debt collection cases, and nearly as many defendants in eviction cases, are
self-represented.
Interviewees largely agreed that the number of self-represented parties had either held
constant over the last few years56 or had increased,57 and no interviewees thought there was a
decrease in the number of self-represented parties seen in their courts. As Michael Hayes (Senior
Programs Manager, Department of Health and Human Services) pointed out, in some contexts
rates of self-representation have been so high that there has been little room for increase over the
past several years. However, Deborah Smith (Senior Analyst, National Center for State Courts)
cautioned that, although most sources cite the number of self-represented parties as growing,
there are not good data nationwide to back up that supposition. This is in part because of
definitional issues – states have traditionally had different definitions of self-represented parties
and struggled to consistently count cases in which a party loses or gains representation part-way
through.58 It should also be noted that in some states, many parties can obtain assistance with
their pleadings without having an attorney of record – this type of assistance may be very
common, even in areas with very high numbers of self-represented parties.59
Self-represented litigant services often focus on family law. This is in part because of the
high raw number of family law cases – for instance, about 15% of non-criminal cases in

Telephone Interview with Mary Jane Ciccarello, Dir., Utah State Courts’ Self Help Ctr. (July 20, 2016);
Telephone Interview with Shawn Friend, Dir., Law Library Resource Ctr., Maricopa Cty. Super. Ct. (July 7, 2016);
Telephone Interview with Sara Gonsalves, Manager, Self Represented Litigant Program, Minn. Judicial Branch
(July 7, 2016); Telephone Interview with Bonnie Hough, Principal Managing Attorney, Ctr. for Families, Children
& the Courts, Judicial Council of Cal. (July 8, 2016); Telephone Interview with Stacey Marz, Dir., Self-Help Servs.,
Alaska State Court Sys. (July 26, 2016).
55
Interview with Bonnie Hough, Id; Telephone Interview with Deborah Smith, Knowledge & Info. Analyst, Nat’l
Ctr. for State Courts (July 19, 2016).
56
Interview with Mary Jane Ciccarello, supra note 54; Telephone Interview with Michael Hayes, Senior Programs
Manager, Div. of Program Innovation, Office of Child Support Enf’t, U.S. Dep’t of Health & Human Servs. (July
26, 2016); Interview with Stacey Marz, supra note 54.
57
Interview with Sara Gonsalves, supra note 54; Interview with Bonnie Hough, supra note 54.
58
NCSC and the State Justice Institute recently published a document to address these issues. See generally
NATIONAL CTR. FOR STATE COURTS, DEVELOPING STANDARDIZED DEFINITIONS AND COUNTING RULES FOR CASES
WITH SELF-REPRESENTED LITIGANTS (2013),
http://www.courtstatistics.org/~/media/Microsites/Files/CSP/Other%20Pages/SRL%20Project%20%20Final%20Re
port%20121913.ashx.
59
Interview with Bonnie Hough, supra note 54.
54

11

October 28, 2016
California’s Superior Courts have to do with family law60 – combined with the high percentage
of self-represented parties present in these cases. Family law cases, perhaps more than other
areas of law, have also seen the percentage of self-represented parties increase,61 and lawyers
have largely priced themselves out of the market in the family law arena.62 Family law also tends
to be an area where parties are particularly likely to be self-represented – parties have a desire to
control their case, and feel like they are the best expert on their own issues.63 Parties in family
law cases also might feel a sense of urgency about their case, increasing the likelihood that they
will choose self-representation.64
In addition to cost, several interviewees cited a growing “Do-It-Yourself” phenomenon as
contributing to high rates of self-representation in the civil courts, caused by both increased
availability of resources on the internet and a higher percentage of parties who are college
educated and feel they should be able to handle their cases by themselves.65
B. Challenges in Dealing with Self-Represented Parties
Self-represented parties bring a number of challenges to legal proceedings. As Katherine
Alteneder (Coordinator, Self-Represented Litigation Network) stressed, self-represented parties
often do not understand that their problem is even a legal problem, much less know what type of
legal problem it is or how to handle the case in court. Self-represented parties are often confused
about what charges are being brought against them or what rules they may have broken. Selfrepresented parties often conflate emotional complexity with legal complexity, and struggle to
separate their emotions from discrete legal issues.66
The importance of creating a simplified system that could be easily understood by a lay
audience was a theme that was repeated in almost every interview. John Greacen (Principal,
Greacen Associates, LLC) commented that many self-represented parties experience the legal
system as a “labyrinth, full of traps.” He added that parties do not understand the elements they
need to show for relief or how to establish them. Self-represented parties are often not familiar
with basic terms that lawyers take for granted – including the very meaning of pro se, which is
used in most courts to identify a party without representation.67 Pamela Ortiz (Director,
Maryland Access to Justice Department) emphasized that it is unrealistic for self-represented
60

JUDICIAL COUNCIL OF CALIFORNIA, 2015 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS 2004-2005
THROUGH 2013-2014 Preface (2015), http://www.courts.ca.gov/documents/2015-Court-Statistics-Report.pdf.
61
Interview with Bonnie Hough, supra note 54.
62
Interview with Stacey Marz, supra note 54.
63
Id.
64
Interview with Sara Gonsalves, supra note 54.
65
Id.; Interview with Mary Jane Ciccarello, supra note 54; Interview with Stacey Marz, supra note 54.
66
Telephone Interview with Katherine Alteneder, Coordinator, Self-Represented Litig. Network (July 12, 2016);
Telephone Interview with John Burns, First Deputy Comm’r, Supervising A.L.J., Office of Admin. Trials &
Hearings, N.Y.C, & Marisa Senigo, Assistant Comm’r, Pub. Affairs & Commc’ns, Office of Admin. Trials &
Hearings, N.Y.C. (July, 11, 2016).
67
Interview with Shawn Friend, supra note 54. California courts use the term “pro per” instead of “pro se,” but are
trying to switch to “self-represented” to provide clarity, see Interview with Bonnie Hough, supra note 54.

12

October 28, 2016
parties to understand the world of lawyers and judges: they are in the legal world for one day or
for one problem, and it is important to create a world they can understand intuitively.
Interviewees stressed the importance of providing clarity, breaking down processes into
simple steps, and “putting yourself in the shoes” of self-represented parties when creating
services for self-represented parties. Katherine Alteneder emphasized that a crucial challenge
comes in creating a process that allows people to break down their problem into its constituent
parts, then identifying the best services and required level of assistance to help with each part of
the problem. A related difficulty comes in figuring out how to balance providing self-represented
parties with enough information to complete their claim, while simultaneously keeping the
number of steps small enough so that self-represented parties do not become overwhelmed.68
Michael Hayes commented that in the family law context a common problem occurs
when parents discount the importance of the information they provide. Parents in child support
cases tend to have low-income and education, and often assume that what they say in their case
does not matter. They often believe that the adjudicatory process is more interested in efficiency
than in helping them, and feel powerless about the outcome of their own case. As a result, they
often fail to provide relevant information in support of their cases. In dealing with these parties,
providing information in plain language, breaking the hearing process down into simple steps,
and explaining the importance of their participation is necessary for a well-functioning system.
Another common challenge is getting parties to realize that they need to take active steps
to continue their case – self-represented parties will often wait for a court response without
realizing that they need to take additional steps.69 Parties may, for instance, fill out a set of forms
online, but fail to realize that they need to print them out and submit them to complete the filing
process.70 Having parties respond to summons and attend hearings was also identified as a
common problem when dealing with self-represented parties,71 and one court has begun
implementing text message reminders to self-represented parties prior to hearings.72
Interviewees also stressed the importance of addressing language access issues when
dealing with self-represented parties – both in terms of creating forms and other materials that
are at a reading level that self-represented parties can understand, and also in creating the
language resources needed for parties with limited English proficiency.73 Self-represented parties
have wide-ranging experiences, and courts need to learn how to deal with this diversity: although
some self-represented parties are fluent in English and are college educated, others may speak
very limited English or be functionally illiterate.74

68

Interview with Shawn Friend, supra note 54.
Interview with Bonnie Hough, supra note 54.
70
Interview with Shawn Friend, supra note 54.
71
Interview with Bonnie Hough, supra note 54.
72
Interview with Mary Jane Ciccarello, supra note 54.
73
Interview with Katherine Alteneder, supra note 66; Interview with Bonnie Hough, supra note 54.
74
Interview with Mary Jane Ciccarello, supra note 54.
69

13

October 28, 2016
Another challenge cited by several respondents has to do with knowing what information
can, and cannot, be provided to self-represented parties. Deborah Smith noted that this is a
problem that extends to all levels of staff, from front-line clerks to judges. Many interviewees
commented that self-help staff can provide legal information but not give legal advice,75 though
legal advice can be provided in one jurisdiction.76 A closely related issue comes in managing the
expectations of self-represented parties. The distinction between legal information and legal
advice can be difficult for even trained practitioners in the legal field to understand, and many
self-represented parties contact self-help centers expecting legal advice. Clarifying what
information can and cannot be provided can be challenging.77
C. Providing Assistance to Self-Represented Litigants
Courts have developed a number of innovations to provide assistance to self-represented
litigants, and services vary widely based on budgets, case-load, geography, and a host of other
factors. Due in part to these differences, interviewees expressed some divergence in their
preferred methods of providing assistance to self-represented parties. In spite of this,
interviewees also expressed many common themes and ideas for providing effective assistance to
self-represented parties.
It should be noted that, in general terms, interviewees felt that innovations to assist selfrepresented parties were well-received by parties. Katherine Alteneder commented that, on a
national level, innovations to assist self-represented parties have proven to be “incredibly
effective” at improving both the efficiency of processing cases brought by self-represented
parties and those parties’ experience with the legal process. Interviewees also noted that their
services generally receive very positive feedback from parties, and receive relatively few
complaints.78 However, interviewees cited several key concepts as being crucial for creating
effective services for self-represented litigants.
1. Overarching Principles and Concepts
Interviewees stressed the importance of triage and diagnostic tools as prerequisites to a
well-functioning self-help system.79 Since self-represented parties often do not have a good
understanding of their legal problems, self-help services need to be able to gather information
from the self-represented parties, break the problem down into its constituent parts, and assign
the right level of help to the right parts of the problem. In some cases, the best solution for a selfrepresented party might be non-legal. The use of “front end” diagnostic tools to identify the
75

Interview with Shawn Friend, supra note 54; Interview with Sara Gonsalves, supra note 54; Interview with
Bonnie Hough, supra note 54; Interview with Stacey Marz, supra note 54.
76
Telephone Interview with Pamela Ortiz, Dir., Access to Justice Dep’t, Admin. Office of the Courts, Md. (July 22,
2016).
77
Interview with Shawn Friend, supra note 54; Interview with Deborah Smith, supra note 55.
78
Interview with Stacey Marz, supra note 54; Interview with Pamela Ortiz, supra note 76.
79
Interview with Katherine Alteneder, supra note 66; Interview with Mary Jane Ciccarello, supra note 54; Interview
with Stacey Marz, supra note 54; Interview with Deborah Smith, supra note 55.

14

October 28, 2016
problem and provide the right level of services is crucial to building an effective system.80
Diagnostic tools can come in a number of forms; for instance, diagnosis can be provided through
in-person meetings, live chat, or checklists provided by the courts.81
Furthermore, with the right tools, self-represented parties can engage in a certain amount
of diagnosis themselves. In recent years, there have been a number of simple tools developed
that can provide significant assistance to self-represented parties in helping them to identify the
correct legal issue.82 A good example is the use of decision-tree software to guide selfrepresented parties to the correct forms online in Maryland.83
Shawn Friend (Director, Maricopa County Arizona Law Library Resource Center)
stressed the importance of developing a continuum of self-help services. In an ideal world,
services would be provided based on the level of customer need and level of staff knowledge
required to provide that assistance. Certain customers who need only a small amount of help on a
minor issue could get the help they need from a staff member with a relatively low level of
training. In contrast, self-represented parties with a complex legal issue could obtain more indepth assistance from someone with a significantly higher level of legal knowledge. The idea of
triage and a continuum of services was a common theme throughout the interviews.
Katherine Alteneder also stressed the importance of building a system that is “always
learning,” and always being revised to fit the needs of the self-represented parties. Deborah
Smith emphasized the importance of periodic re-evaluation of the services provided, as well as a
review of the information that is most frequently used by self-represented parties and of the
resources that generate the most frequent confusion. In order to do this evaluation, collecting the
appropriate data and statistics on self-help services is critical. Self-help centers need to know
how many people are using their services and which services receive the most use, and they need
to identify common questions and sources of confusion among self-represented parties. With the
appropriate data, a large-volume self-help system can easily begin to see patterns and identify
which resources are useful and which need additional development, and make changes
accordingly.
Interviewees also stressed the importance of bi-directional assistance, regardless of the
specific form of interaction. One-directional resources – in which self-represented parties can
passively read information on a court’s website or in printed materials – are foundational, but
Katherine Alteneder stressed that they are not sufficient to assist self-represented parties. To
have a well-functioning system, Ms. Alteneder emphasized that it is critical that there be a

80

Interview with Katherine Alteneder, supra note 66; Interview with Deborah Smith, supra note 55.
Interview with Katherine Alteneder, supra note 66.
82
Telephone Interview with Katherine Alteneder, Coordinator, Self-Represented Litig. Network (July 28, 2016).
83
Katherine Alteneder specifically recommended the GuideClearly Plug-In for triage and streamlining of services.
See SELF-REPRESENTED LITIGATION NETWORK, NEW GUIDECLEARLY PLUN-IN STREAMLINES TRIAGE AND
INCREASES ACCESS ON SELF-HELP DESKTOP AND MOBILE WEBSITES (2016), http://www.srln.org/node/931/newguideclearly-plug-streamlines-triage-and-increases-access-self-help-desktop-and-mobile.
81

15

October 28, 2016
method for self-represented parties to interact with someone from the court. Similarly, other
interviewees commented that many self-represented parties struggle to understand written
material, and giving them the opportunity to obtain live assistance helps close this gap in
understanding.84 Regardless of which interventions are chosen, it is important to provide a
number of different modes to accommodate different groups of people and methods of
processing information.85
Interviewees also emphasized the importance of proactive case management, and noted
that it was important for court staff to follow-up with parties about each subsequent step of the
proceeding.86 This leads to better outcomes for parties, and gives courts the opportunity to break
down relevant information into manageable pieces.87 Pamela Ortiz also discussed the importance
of providing information to self-represented parties after the hearings. Even if it is not a final
decision, providing information in writing after a hearing can provide significant benefit: since
self-represented parties in courts are often under significant amounts of stress, they may not
process what happened or remember decisions that were made without written assistance.
In general, simplification is a key element of self-help programs. Interviewees repeatedly
stressed the importance of creating a system that self-represented parties could easily understand
and access.88 In addition, they noted that courts need to be aware that the self-represented parties
using their self-help services are often confused and frustrated, and staff need to be trained in
handling these emotions. In creating a self-help system, courts should remember that legal
procedures and processes were originally created for attorneys and other legal experts, and many
steps that may be unnecessary are engrained in the legal culture.89 As Stacey Marz (Director,
Alaska Self-Help Services) pointed out, it is important to remember that self-help services should
be created and tested with the end user in mind.
Interviewees also mentioned the idea of “procedural justice,”90 and commented that
parties that lose are more likely to accept the decision and comply with it if they understand why
they lost and feel like they had an opportunity to be heard. Simplification of resources is a key
component in fostering this understanding.91 This is particularly important for situations in which
repeat players are expected: a party who has a good experience with the legal system is more
likely to show up, participate, and feel better about the process the next time an issue arises.92
84

Interview with Shawn Friend, supra note 54; Interview with Stacey Marz, supra note 54.
Interview with Stacey Marz, supra note 54.
86
Telephone Interview with John Greacen, Principal, Greacen Assocs., LLC (July 27, 2016); Interview with Bonnie
Hough, supra note 54.
87
See supra note 91.
88
Interview with Mary Jane Ciccarello, supra note 54; Interview with Bonnie Hough, supra note 54; Interview with
Stacey Marz, supra note 54; Interview with Deborah Smith, supra note 55.
89
Interview with Deborah Smith, supra note 55.
90
For discussion of procedural justice, see Tom Tyler’s work broadly. In particular, see TOM R. TYLER,
PROCEDURAL JUSTICE & THE COURTS, 26, 26–31 (2008).
91
Interview with John Burns & Marisa Senigo, supra note 66; Interview with Bonnie Hough, supra note 54.
92
Interview with John Burns & Marisa Senigo, supra note 66.
85

16

October 28, 2016
2. In-Person Self-Service Centers
A number of states provide significant assistance to self-represented parties through inperson self-service centers, some of which handle a very high volume of cases. In Arizona, the
Maricopa County Superior Court Self-Service Center, for instance, has over 130,000 contacts
with customers per year, and this number is trending upward.93 Their Self-Service Center has
several locations, as well as a Law Library that handles more complicated questions and a
separate Protective Order Center. Centers are staffed by a total of 30 full-time staff and 34 parttime AmeriCorps members.94 In California, Self-Help Centers are located in each county, staffed
by attorneys who work for the court.95 A center in downtown Los Angeles serves 250–300
people per day, and has several staff attorneys, a number of support staff, and utilizes the
services of student volunteers and nonprofits. About 1.2 million people visited the Self-Help
Centers in California last year.96 Maryland and Minnesota also run smaller in-person self-service
centers.
Services provided by in-person self-service centers vary, and include providing basic
legal information,97 running workshops,98 helping people prepare their pleadings,99 creating form
packets for parties,100 and guiding litigants to the correct building or correct room.101 In
Minnesota, there is a standing order from the Chief Justice that requires a mandatory review of
filings for self-represented litigants in family law cases, so significant resources in Minnesota’s
walk-in centers are dedicated to performing this review.
Maryland is a little bit unusual, in that the attorneys at its Self-Help Centers can provide
legal advice to self-represented parties. This is because Centers are staffed by Maryland Legal
Aid, and because the type of service provided in self-help centers is classified as “high volume.”
In high-volume situations, attorneys do not have to do a thorough conflict check, and can provide
legal advice as long as they are not actually aware of a conflict. Other self-help centers make
attorneys available periodically to provide limited legal advice. For instance, in Minnesota, pro
bono attorneys attend clinics and can provide legal advice to self-represented parties. Similarly,
Utah has been scheduling self-represented cases of a certain type onto one calendar, then
bringing in pro bono attorneys to provide legal representation on a limited scope basis on those
days.

93

Interview with Shawn Friend, supra note 54.
Id.
95
Interview with Bonnie Hough, supra note 54.
96
Id.
97
Id; Interview with Shawn Friend, supra note 54.
98
Interview with Bonnie Hough, supra note 54.
99
Id.
100
Interview with Shawn Friend, supra note 54.
101
Id.
94

17

October 28, 2016
Some self-help centers also make available lists of attorneys, and provide referrals to
attorneys who offer low cost or unbundled legal services.102 Stacey Marz in Alaska commented
that fostering the development of unbundled legal services is a complementary service to selfhelp, and is critical to improving outcomes for self-represented parties. Utah has worked with the
Utah State Bar to establish a limited scope representation bar section and to provide an online
lawyer directory that identifies lawyers who offer limited scope services.
For many of these states, in-person services are the primary method of communicating
with self-represented parties. Sara Gonsalves (Manager, Minnesota Self-Represented Litigant
Program) commented that nothing could substitute for a live person, and added that, regardless
of what other services are provided, there will always be people who want to speak with
someone face to face. Katherine Alteneder had a slightly different viewpoint, and stressed that
although person-to-person services are foundational, these services can be provided in-person, or
virtually through phone, video conference, or another method. In large part because of
restrictions caused by geography and population density, some states have had to primarily – or
completely – rely on virtual services. For instance, Alaska’s self-help center is entirely virtual,
and Utah’s services are primarily virtual as well, although they provide a number of hybrid
services. For instance, Utah’s Self-Help Center staff provide virtual and in-person training to
community service providers in rural jurisdictions. These community service providers often
meet with self-represented parties in person, and have direct access to self-help center staff
through an online chat system. Virtual services, including phone and email, will be discussed
further in a later section of the report.
3. Workshops
More than any other resource for self-represented parties, opinion was split on the merits
of workshops. Although some interviewees have had success with workshops, others expressed
doubts as to their efficiency and efficacy. The function of workshops varies from one jurisdiction
to another – some workshops consist primarily of one-directional instructional programs,
whereas others provide more targeted assistance to parties, such as in filling out forms. Because
staff cannot provide legal advice in most jurisdictions, interactivity in workshops tends to be
relatively limited.
Several courts have seen success with workshops. In particular, California runs a series of
workshops, each with ten to twelve participants. The workshops are aimed at providing practical
assistance to self-represented parties, and during the workshops, participants can fill out
TurboTax-like forms. Alaska has also had success with workshops: in family law cases, classes
are court-ordered, and held on a bi-weekly basis. Every other week, they also hold an optional
Hearing and Trial Preparation class. Court-ordered classes are limited to twenty people, and the
optional workshops tend to have between five and twelve attendees each time they are offered.

102

Id.

18

October 28, 2016
Other interviewees were much more critical of workshops. For instance, Sara Gonsalves
recommended against in-person clinics. She noted that Hennepin County, Minnesota, tried
workshops to relatively little success – they found workshops to be inefficient, and to be a drain
on staff time, resources, and space. It was difficult for people to attend in person, and the people
who did attend expected legal advice, despite efforts to explain the distinction between legal
information and legal advice ahead of time. They found videos with the same information to be
more effective and a better use of resources.
Katherine Alteneder also expressed concern about workshops. Although she commented
that they can be useful in places that are particularly form-heavy or have a high volume of cases
(such as in California), she thought they would be difficult to execute in other circumstances.
She indicated that workshops are predicated on the belief that people will be able to come to the
courthouse, and noted that this is an unrealistic expectation in many circumstances. Instead, she
preferred video workshops, and commented that she thinks methods of meeting people where
they already are will be better than expecting people to come to you.
4. Virtual Services – Phone, Email, Text, and Chat
Most courts also communicate with self-represented parties through a series of virtual
services, including phone, email, text, and chat.
Many courts have robust call-centers and have substantial interaction with selfrepresented parties via phone. Over the phone, staff generally cannot provide legal advice, but
they can provide basic troubleshooting information (such as helping a party locate the
appropriate form), direction on hearing procedure, options for proceeding with a claim, and legal
and non-legal referrals.103 Maryland has a state-wide call center, and took about 3,600 calls in
June.104 Hennepin County in Minnesota has a call center with three full-time staff-members, and
they receive about 22,000 calls a year.105 Hennepin County is in the process of hiring two more
staff members, as their call center currently cannot keep up with call volume.106 In Alaska,
paralegal-level staff members answer the phone from 7:30 a.m. to 6:00 p.m. on MondayThursday, and take about 7,000 calls each year, with calls lasting between 15 and 20 minutes on
average.107 Utah handled 21,300 calls last fiscal year, and the average call also lasted between 15
and 20 minutes. In addition, in Utah, almost all incoming calls receive follow-up emails from
staff.108

103

Interview with Stacey Marz, supra note 54.
Email from Pamela Ortiz, Dir, Access to Justice Dep’t, Admin. Office of the Courts, Maryland, to Connie
Vogelmann, Attorney Advisor, ACUS (July 15, 2016, 2:27 PM) (on file with recipient).
105
Interview with Gonsalves, supra note 3; MINNESOTA JUDICIAL BRANCH, REPORT TO THE COMMUNITY 11 (2015),
http://www.mncourts.gov/mncourtsgov/media/assets/documents/reports/2015AnnualReport.pdf.
106
Interview with Sara Gonsalves, supra note 54.
107
Interview with Stacey Marz, supra note 54.
108
Interview with Mary Jane Ciccarello, supra note 54.
104

19

October 28, 2016
Katherine Alteneder noted that she thinks call-lines are one of the most, if not the most,
efficient and informative method of providing assistance to self-represented parties, though
added that email and chat can provide a valuable supplement. Ms. Alteneder commented that the
“human touch” provided by call-lines can be extremely effective. Not only do call-lines tend to
provide a good experience to callers, but they can be much more time-efficient for the court than
face-to-face communication. She noted that the Alaska Court System did a micro-study on calllines, and found that about 40 minutes of time spent talking in person could be shrunk to just a
few minutes over the phone. Furthermore, she added that because calls are shorter, it is less
likely for the main point to get obscured, as can happen in an in-person meeting. Ms. Alteneder
also thought that call-lines provided a valuable service in providing evaluative information to the
court: once a call center is up and running, its staff members will be able to quickly identify
common questions and areas of confusion, and can then publish information on the court’s
website to address them.
Chat has proven to be somewhat more controversial. In chat, staff can provide the same
types of information as over the phone, but with the added advantage of being able to link parties
directly to relevant forms or other documents. Maryland has developed a robust chat system to
supplement its call-lines. The chat service is open from 8:30 a.m. until 8:00 p.m., and the state
has found that it has a number of advantages over call-lines. First, they can embed a “chat”
button easily on different web-pages, allowing instant support for parties that need assistance.
Furthermore, the transcript from the chat is saved by the chat software. Attorneys have no access
to identifying information, but if the same person contacts the self-help center again the
transcript can be retrieved by the software by referencing the IP address. The chat transcripts also
allow for easy review by a supervisor, and transcripts can be emailed to program visitors to aid
them in remembering the conversation and in following through on the information provided.
Finally, Maryland has seen gains in efficiency through the chat program, and has found that each
attorney can handle about four chats simultaneously. Over the past several months, Maryland has
done roughly 500–600 chats each month.109
In contrast, Utah used chat for some time, but Mary Jane Ciccarello noted they have since
moved away from using the service. They found that the informal nature of chat was not
conducive to providing meaningful legal information. Customers expected an instantaneous
response through chat, and the medium bred a sense of immediacy and urgency that did not lead
to positive results. Utah has seen better results with other services, including their call-center.
Some courts have also made use of texts to communicate short pieces of information to
parties. Some courts receive questions from parties via text, and will respond to complicated
questions by phone or email. Courts have also used text messaging to provide reminders to
parties about upcoming hearing dates or deadlines.110 Utah routinely texts with parties, and the
state has found it to be a useful service. Mary Jane Ciccarello commented that many low-income
109
110

Email from Pamela Ortiz, supra note 104.
Interview with Mary Jane Ciccarello, supra note 54.

20

October 28, 2016
parties are more likely to have a smart phone than a home computer, so making their services
easy to use by phone has proven to be beneficial. In Utah, self-help center staff members will
often follow-up on an initial texting conversation with an email, in order to respond in greater
depth or to attach documents. Mary Jane Ciccarello also added that, in certain circumstances,
they have begun texting self-represented parties the day before their hearings to provide a
reminder.
Finally, courts have also made use of email communication with relatively high
frequency. Staff can provide much of the same information over email as they provide over the
phone, and can also attach documents or provide links to relevant self-help resources.111 The
Maricopa County Law Library in Arizona, which handles more complex cases than its self-help
centers, has a robust email communication system. Alaska also makes use of email as a
secondary method of communication: although all contacts are initially made through calls, selfhelp center staff provide their direct email address to parties for follow-up. This email follow-up
is common, and the self-help center sends out a majority of its forms through email when callers
cannot download them on their own. Other courts also make use of email to communicate with
self-represented parties. For instance, Utah receives incoming emails, and will respond
accordingly. Furthermore, Utah has a policy of following up on incoming phone calls and texts
with tailored, specific emails, often with attachments of relevant forms and case pleadings.
5. Plain Language and Translation Services
Many courts are also working on improving their language resources to make them more
easily accessible to self-represented parties.
The courts the author spoke with all have past or ongoing efforts to make forms and other
resources for parties consistent with plain language principles. Interviewees stressed the
importance of plain language forms and information as a prerequisite to other services.
Interviewees commented that “plain language” goes beyond just the words used, and extends to
the formatting and presentation of information as well.112 Katherine Alteneder commented that
the information must be broken down into easily digestible steps, and employing professionals
who understand how to do this is critical for the success of plain language resources.
Grade level of plain language resources varied based on the court or office in question.
Arizona, for instance, is working on getting all materials to a seventh-grade reading level or
below. NYC’s Office for Administrative Trials and Hearings (OATH) targets all forms at a fifthgrade reading level – though the representatives the author spoke with noted that this is difficult
to maintain in all contexts, given the complexity of legal issues involved. Utah tries to make all
information, not just forms, accessible at a fifth- to eighth-grade reading level.

111
112

Id.
Interview with Katherine Alteneder, supra note 66; Interview with Stacey Marz, supra note 54.

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October 28, 2016
Most courts review their resources for plain language standards, either on a continuing or
periodic basis. Mary Jane Ciccarello commented that Utah works on plain language all the time –
and it is not uncommon for them to review resources and realize that a form they thought was in
plain language needs to be changed for clarity. New York’s OATH reviews its plain language
resources every two years.
Interviewees also stressed the importance of providing language and translation services
for self-represented parties. Courts recommended comprehensive resources for non-English
speakers, and emphasized the importance of, at a minimum, making resources available in
English and Spanish.113 Several courts also mentioned the importance of having bilingual staff at
their self-help centers.114 OATH has particularly high language needs – the office provides free
translation services for over 250 languages, and translators can be used in any hearing.
6. Forms, E-Filing, and Document Assembly
Interviewees noted the importance of providing easy-to-use forms, and cited them as a
foundational service for self-represented parties. Forms should, at a minimum, be written in plain
language and provide clear instructions to parties explaining what type of information is being
requested and how they should fill out the form to ensure it is complete and legally sufficient.115
However, Deborah Smith warned that, although forms are very important, they can be very timeconsuming to alter, particularly when taking into account multiple languages.
Most courts the author spoke with make forms available online, and are in the process of
making e-filing available to self-represented parties. In Arizona, for example, forms can be filled
out online, but must be printed and sent to the court to be filed. In California, e-filing is subject
to different rules on a county-by-county basis. Although there is often a requirement that
attorneys e-file, most counties do not have yet have e-filing for self-represented litigants. E-filing
for self-represented parties is in development. Utah currently has e-filing for lawyers, but plans
to expand e-filing to self-represented parties in the near future. Alaska is in the process of
developing a statewide e-filing system that should be up-and-running for some case types by the
end of the year. The system will be made available to all parties, both lawyers and selfrepresented parties, at the same time. E-filing is available, but optional, for self-represented
litigants in Minnesota.
Several courts are also making use of so-called document assembly programs to help
parties fill out paperwork,116 and John Greacen commented that document assembly is critical for
providing assistance to self-represented parties. Document assembly programs resemble
113

Interview with Mary Jane Ciccarello, supra note 54; Interview with Pamela Ortiz, supra note 76.
Interview with Shawn Friend, supra note 54; Interview with Sara Gonsalves, supra note 54; Interview with
Bonnie Hough, supra note 54.
115
Interview with Stacey Marz, supra note 54; Interview with Pamela Ortiz, supra note 76; Interview with John
Greacen, supra note 86.
116
Interview with Mary Jane Ciccarello, supra note 54; Interview with Sara Gonsalves, supra note 54; Interview
with Bonnie Hough, supra note 54.
114

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October 28, 2016
TurboTax, and ask litigants a series of plain language questions – once the litigants have
answered all the questions, the software automatically generates completed forms. These
interactive document assembly programs can be extremely helpful for self-represented parties,
particularly those with limited education or English proficiency.117 Document assembly has been
used with particular success in the family law context, and courts are working to expand it to
other types of cases as well.
7. Web Resources
Many courts also had significant web resources available for self-represented parties. For
instance, California’s Self-Help Center has 4,000 pages of content, as well as a mirrored site in
Spanish, and receives traffic from 6 million unique visitors each year. Although self-help
websites vary significantly from one jurisdiction to another, California’s website provides a good
example of the types of web resources available to self-represented parties. The California selfhelp homepage contains links to a number of common legal topics, including “Going to Court”
and “Free & Low Cost Legal Help,” and provides links to specific case types, like divorce and
child custody. Once a user clicks on a specific case type, he or she is taken to a separate page that
explains the basics of the legal process, and includes FAQs and links to important forms.118
Several interviewees cited websites as one of the most important and effective resources
available for providing assistance to self-represented parties.119 As Stacey Marz pointed out,
website improvements also dovetail well with work on forms, which are equally important.
Deborah Smith noted that Virginia’s self-help website was designed by the Self-Represented
Litigation Network, and intended as a template for other courts to use.
Interviewees stressed several important points about websites. First, they commented that
it is important to recognize that web resources are not solely used by self-represented parties:
making simplified resources available is critical for young attorneys or pro bono lawyers who
may not have experience with the relevant case type,120 and may also provide an important
resource for low-level staff, too.121 Second, interviewees stressed that when designing and
updating a website for self-represented parties, organization is as important as content. Courts
must always be thinking about how to make resources available in a format and organization that
self-represented parties can find easily.122 Third, interviewees stressed the importance of making
content accessible for self-represented parties. Stacey Marz noted that it is important to be
mindful of length and depth when designing a website. She added that Alaska’s website is
written to target the highest number of cases and parties possible: it does not include information

117

Interview with Deborah Smith, supra note 55.
The California Courts Self-Help Center, CALIFORNIA COURTS, http://www.courts.ca.gov/selfhelp.htm.
119
Interview with Mary Jane Ciccarello, supra note 54; Interview with John Greacen, supra note 86; Interview with
Stacey Marz, supra note 54; Interview with Deborah Smith, supra note 55.
120
Interview with Mary Jane Ciccarello, supra note 54.
121
Interview with Katherine Alteneder, supra note 66.
122
Interview with John Greacen, supra note 86; Interview with Deborah Smith, supra note 55.
118

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October 28, 2016
about scenarios that are theoretically possible but almost never occur – instead, content is
intentionally kept as short as possible to prevent people from becoming overwhelmed. Ms. Marz
also added that answers to FAQs should be no more than a few lines each.
Videos are a useful “arrow in the quiver” of courts,123 and are especially good resources
for people with low reading levels.124 Many courts make videos accessible on their websites. For
instance, Maryland has a library of 8-10 minute videos. These videos range in topic from the
relatively simple, like “Should I Represent Myself?,” to more complicated and substantive
topics, like “Service of Process” and “Expungement.”125 Alaska has a number of short videos as
well.126 Stacey Marz commented that almost all of Alaska’s family law content has short videos
associated with it, and that their “Behavior in the Court” and “Motion Practice” videos are their
most viewed. As is mentioned above, Sara Gonsalves commented that Minnesota found inperson workshops to be relatively inefficient, and instead replaced the material provided in the
workshop with videos. For instance, they released a “Child Support Modification” video127 that
gets a lot of views – the video is divided into short chapters, so as to be easier for viewers to
understand and digest.
A number of interviewees mentioned other innovative web-based tools that are being
used by other states. For instance, Washington State is using graphic novel style videos instead
of live action videos to provide information to self-represented parties, making it easier to update
information as content changes.128 Connecticut has also created a set of photo-novellas on social
security to guide self-represented parties through the application process.129 Some states are also
developing avatar systems that walk self-represented litigants through the process of filling out
their forms. These systems are effective for people with low reading comprehension and limited
English proficiency.130
Several interviewees also stressed the importance of mobile accessibility. For instance,
Pamela Ortiz commented that half the people who use Maryland’s Self-Help Center are
accessing it from a mobile device, and Mary Jane Ciccarello in in Utah mentioned that lowincome and younger parties are more likely to have smart phones than home computers as their
123

Interview with Katherine Alteneder, supra note 82.
Interview with Deborah Smith, supra note 55.
125
Self-Help Videos, MARYLAND COURTS, http://www.courts.state.md.us/reference/videolibrary.html (last updated
Mar. 2016).
126
Self-Help Center: Family Law, ALASKA COURT SYS., http://courts.alaska.gov/shc/family/shcabout.htm#videos
(last updated July 5, 2016).
127
Video: How to File a Motion to Modify Child Support (Expedited Process), MINN. JUDICIAL BRANCH,
http://www.mncourts.gov/Help-Topics/Videos-Tutorials/Modify-Child-Support.aspx (last visited Aug. 1, 2016).
128
See, e.g., Video – Tenants, Landlords & the Laws of Washington State, WASHINGTONLAWHELP.ORG,
http://www.washingtonlawhelp.org/resource/video-tenants-landlords-the-laws-of-washingto?ref=tOpfK (last visited
Aug. 1, 2016).
129
See, e.g., Applying and Appealing for Disability and Social Security, CTLAWHELP.ORG,
http://ctlawhelp.org/applying-and-appealing-disability-social-security# (last visited Aug. 1, 2016).
130
See, e.g., Iowa Legal Aid Online Intake, STATE JUSTICE INST.,
https://caseq.iowalaw.org/intake/a2j.php?interview=english (last visited Aug. 1, 2016).
124

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October 28, 2016
only access to the Internet and email. Some states are also developing apps for parties: for
instance, the Maryland Law Help App provides access to all of the web-enabled tools that the
state provides on a mobile platform.131
8. Judicial Resources and Training
Many interviewees also commented that they do significant work with judicial
education.132 Interviewees discussed this as an important issue from both an ethical perspective
and a procedural perspective.
From an ethical perspective, John Greacen discussed the importance of training judges on
how to deal with self-represented parties in the courtroom, and explained that there are
widespread misconceptions among adjudicators about how to treat self-represented parties.
Many adjudicators believe that providing assistance to a self-represented party is showing bias –
however, Mr. Greacen commented that the “most lethal posture” a judge could take for a selfrepresented party is to sit and wait for the party to present information as if he or she was an
attorney.
From a procedural perspective, Deborah Smith commented that it is important to teach
judges how to speak with self-represented parties: before the hearing, judges should explain the
role of the parties in the room and provide a roadmap of the hearing. After the hearing is
finished, it is important for judges to ensure the self-represented party understood the outcome,
and judges should explain any next steps that the party must take. Ms. Smith added that training
for both judges and staff should include information on how to deal with specific scenarios, such
as dealing with angry litigants or adjudicating cases with one represented litigant and one selfrepresented party. Other interviewees echoed similar sentiments,133 and stressed the importance
of routine, ongoing training.134
9. Steps for the Future
The representatives the author spoke with are busy implementing additional services for
self-represented litigants in the future.
The most-commonly cited area for future development related to e-filing for selfrepresented parties or making other changes to forms and document assembly programs. For
instance, given additional resources, Sara Gonsalves would like expand Minnesota’s online
document assembly program, and tie it directly to e-filing. Although they currently have
document assembly for certain case types, they would like to make additional case types
131

Maryland Law Help Mobile App, MD.LAW HELP,
http://marylandlawhelp.mobapp.at/landing/Desktop#.V6j2_7grK71 (last visited Aug. 8, 2016).
132
Interview with John Burns & Marisa Senigo, supra note 66; Interview with Bonnie Hough, supra note 54;
Interview with Stacey Marz, supra note 54; Interview with Pamela Ortiz, supra note 76.
133
Interview with John Burns & Marisa Senigo, supra note 66; Interview with Stacey Marz, supra note 54;
Interview with Pamela Ortiz, supra note 76.
134
Interview with Stacey Marz, supra note 54.

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October 28, 2016
available for document assembly. Pamela Ortiz commented that one of Maryland’s next steps is
to create a document assembly program that would allow self-represented parties to answer
natural language questions and come away with completed forms. She commented that they have
not done this yet due to high upfront cost. Mary Jane Ciccarello commented that in an ideal
world she would like to provide additional resources to self-represented parties in creating and
reviewing forms in Utah. In a similar vein, Shawn Friend in Maricopa County is working on
creating a set of detailed sample forms for parties, so parties can identify cases similar to their
own for assistance.
Other work for the future includes re-working checklists to make them easier to follow,135
developing additional video resources for self-represented parties,136 dedicating additional staff
time and resources to plain language and Spanish language resources,137 and working to increase
the mobile accessibility of self-help resources.138
Michael Hayes mentioned that the Office for Child Support Enforcement at the
Department of Health and Human Services is currently studying behavioral economics in the
context of child support payments, and working to improve resources for self-represented parties
in the future. The project aims to understand and address motivational and conceptual barriers
for parents’ participation in child support cases. They are studying specific interventions –
including using plain language, changing the color and format of notice letters, providing
advance notice to parents letting them know to be on the lookout for important materials, and
personalizing materials to tie them to parties’ positive identities as parents. They are currently
conducting eight pilot projects. Each pilot project has a rapid turnaround, and the goal is to
obtain concrete data on each intervention in less than a year.139
D. Procedural and Structural Simplification
Several courts throughout the country are also working to simplify certain case types that
commonly involve self-represented litigants.140 Although John Greacen commented that
simplifying procedures is one of the areas in which he has seen the least success, several courts
seem to be making strides toward simplification. For instance, Stacey Marz commented that
Alaska has been conducting informal domestic relations trials for the past year, in which the
formal rules of evidence are not in place by default. Parties can submit what evidence they want,
and the judge weighs it. There is no cross-examination in these cases, and the judge asks

135

Interview with Shawn Friend, supra note 54.
Id.
137
Interview with Mary Jane Ciccarello, supra note 54.
138
Interview with Bonnie Hough, supra note 54.
139
For more information about these behavioral interventions, see Office of Child Support Enf’t, Behavioral
Interventions for Child Support Services Demonstration Programs (BICS), DEP’T OF HEALTH & HUMAN SERVS.
http://www.acf.hhs.gov/css/grants/grant-updates-results/bics (last visited Aug. 1, 2016).
140
Although procedural simplification does not specifically target cases with self-represented parties, this
simplification is likely to be especially beneficial to them.
136

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October 28, 2016
questions of the parties.141 Ms. Marz commented that these are modeled after similar programs in
Idaho,142 Utah,143 and Deschutes County, Oregon.144 These informal trials have been “widely
embraced” across Alaska by many judges. Lawyers have a modified role in these cases –
although they cannot ask questions of parties, they can suggest questions or topics for the judge
to consider, coach their clients, and make opening and closing statements.
New York’s Office of Administrative Trials and Hearings (OATH) provides an
extremely interesting example of procedural simplification and streamlining. OATH is an
independent adjudicatory body that is not housed within any city enforcement or regulatory
agency. OATH’s sole mission is to conduct hearings – other administrative agencies within New
York City refer cases to OATH to be adjudicated. OATH has two divisions: a trials division,
where litigants are usually represented, and a hearings division, in which parties are selfrepresented in the vast majority of cases. The Hearings division handles about 700,000 summons
each year, resulting in about half that number of hearings, from roughly 16 administrative
agencies. Although penalties are set by the enforcement agencies, the same procedures are used
for every hearing, regardless of the originating agency. OATH allows hearings to be in-person,
or held by telephone, email, or video. Their goal is to make it as “easy as humanly possible” for
people to go through the process without representation. OATH provides significant information
to parties through its website and a 1-800 number, and is in the process of developing several
other services targeting self-represented parties. For instance, OATH is in the process of creating
a universal form for summons by the end of the year, and just established a clerk’s office to deal
exclusively with self-represented parties. OATH is also in the process of setting up self-help
desks at each office across the city.
More broadly, several interviewees questioned the place of the adversarial format in
cases with self-represented litigants. Stacey Marz commented that adversarial proceedings can be
damaging in family law or guardianship cases, and that a problem-solving approach may be
more effective. Michael Hayes discussed alternatives to the contempt proceedings in child
support payments, and emphasized the importance of “friendlier” approaches to communicate
with parents. The Office of Child Support Enforcement is in the process of funding a project

141

For more information, see Self-Help Center: Family Law, What is an Informal Trial?, ALASKA COURT SYS.,
http://courts.alaska.gov/shc/family/shcdr-trials.htm#informal (last visited Aug. 1, 2016).
142
For more information, see Supreme Court, Informal Custody Trial, STATE OF IDAHO JUDICIAL BRANCH,
https://www.isc.idaho.gov/ircp16p (last visited Aug. 1, 2016).
143
For more information, see Informal Trial of Support, Custody and Parent-Time, UTAH COURTS,
https://www.utcourts.gov/howto/family/informal_trial/ (last visited Aug. 1, 2016).
144
For more information, see Deschutes County Circuit Court, Informal Domestic Relations Trials, OREGON
JUDICIAL DEP’T, http://courts.oregon.gov/Deschutes/services/famlaw/Pages/Informal-Domestic-RelationsTrials.aspx (last visited Aug. 8, 2016).

27

October 28, 2016
investigating some of these alternatives, and identifying methods that increase both the
effectiveness and efficiency of getting parents to pay child support payments.145
Along the lines of reducing the adversarial nature of proceedings, John Greacen
mentioned Online Dispute Resolution as being particularly cutting edge – he gave an example in
which a party who gets a traffic ticket makes a submission online. Law officers can weigh in,
and a magistrate officer makes a settlement offer. The ticket holder can accept or reject the offer;
if the offer is rejected, then the system establishes a date for the hearing, and the online system
assembles the information for a decision maker to review.146
***
As can be observed from this discussion, courts are doing significant work to aid selfrepresented parties. Although differences exist across courts, there is also a surprisingly high
amount of agreement among interviewees from different courts and different contexts
concerning the types of interventions that are the most useful in working with self-represented
parties.
III.

Case Studies on Self-Representation in Administrative Hearings

The report uses a case-study approach to investigate self-representation in administrative
hearings, working with four agencies: Board of Veterans’ Appeals (BVA), Executive Office for
Immigration Review (EOIR), Social Security Administration (SSA), and the United States
Department of Agriculture’s National Appeals Division (NAD). In contrast to the experiences
described in the preceding section, there was significantly more diversity among the case study
agencies. These four agencies differed significantly in terms of number and percentage of selfrepresented parties, statutory and regulatory requirements for dealing with self-represented
parties, and resources provided by the agencies to assist these parties. Consequently, in this
section information about the four agencies is presented in a case study format, instead of
combined as in the court section above.
Case study agencies were selected for several reasons. First, all four case study agencies
participated in the working group led jointly by the Administrative Conference and the
Department of Justice’s Office for Access to Justice, and each shared information about its
procedures toward self-represented parties during working group meetings. Second, each agency
provides a unique viewpoint in dealing with self-represented parties, and this selection of
agencies helps describe the range of agency experience with self-represented parties. Three of
the agencies – SSA, EOIR, and BVA – hear significant numbers of cases each year, but the
agencies have very different statutory and regulatory requirements for dealing with selfSee ADMIN. FOR CHILDREN & FAMILIES, DEP’T OF HEALTH & HUMAN SERVS., EVALUATION OF THE PROCEDURAL
JUSTICE INFORMED ALTS. TO CONTEMPT (PJAC) DEMONSTRATION HHS-2016-ACF-OCSE-FD-1171 (2016),
https://ami.grantsolutions.gov/files/HHS-2016-ACF-OCSE-FD-1171_0.pdf.
146
Mr. Greacen specifically referenced the Matterhorn platform as a useful resource for adjudicators interested in
Online Dispute Resolution. See MATTERHORN HOME PAGE, http://getmatterhorn.com/ (last visited Aug. 1, 2016).
145

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represented parties. Furthermore, the proportion of self-represented parties varies significantly
across the three agencies. The fourth agency – NAD – is a much smaller hearing office, and
provides a good case study on dealing with self-represented parties in a smaller federal agency.
Finally, all four agencies expressed a willingness to participate in this project.
A. Board of Veterans’ Appeals
The Board of Veterans’ Appeals (BVA) conducts hearings and decides appeals relating to
the provision of benefits for veterans.147 The Board’s members, called “Veterans Law Judges”
(VLJs), oversee hearings and are supported by staff and overseen by a Chairman and Vice
Chairman.148 While the majority of appeals to the Board concern disability compensation, the
BVA handles other cases involving veterans, including educational benefits, insurance benefits,
burial benefits, pension benefits, vocational rehabilitation, dependency and indemnity
compensation, health care delivery, home loan guaranties, and fiduciary matters.149
Between fiscal year 2011 and 2015, BVA received almost 250,000 appeals.150 The Board
issued 246,043 decisions during that time period, averaging 49,208 per year.151 Over 95% of
proceedings during this time period involved compensation.152 A high percentage of claimants in
BVA hearings are represented; between 2011 and 2015, only 10% of claimants were selfrepresented.153 Most claimants were represented by Veterans Service Organizations (VSOs),
with only a small percentage (10.5%) represented by an attorney.154

BD. OF VETERANS’ APPEALS, U.S. DEP’T OF VETERANS AFFAIRS, ANNUAL REPORT, FISCAL YEAR 2015 1, 3
(2015), http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2015AR.pdf [hereinafter BVA FISCAL YEAR
2015].
148
Id.
149
Id. at 26.
150
See BVA FISCAL YEAR 2015, supra note 147, at 17; BD. OF VETERANS’ APPEALS, U.S. DEP’T OF VETERANS
AFFAIRS, ANNUAL REPORT, FISCAL YEAR 2014 1, 18 (2014),
http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2014AR.pdf [hereinafter BVA FISCAL YEAR 2014]; BD.
OF VETERANS’ APPEALS, DEP’T OF VETERANS AFFAIRS, ANNUAL REPORT, FISCAL YEAR 2013 1, 17 (2013),
http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2013AR.pdf [hereinafter BVA FISCAL YEAR 2013]; BD.
OF VETERANS’ APPEALS, U.S. DEP’T OF VETERANS AFFAIRS, ANNUAL REPORT, FISCAL YEAR 2012 1, 16 (2012),
http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2012AR.pdf [hereinafter BVA FISCAL YEAR 2012]; BD.
OF VETERANS’ APPEALS U.S. DEP’T OF VETERANS AFFAIRS, ANNUAL REPORT, FISCAL YEAR 2011 1, 15 (2011),
http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2012AR.pdf [hereinafter BVA FISCAL YEAR 2011].
151
See BVA FISCAL YEAR 2015, supra note 147, at 17; BVA FISCAL YEAR 2014, supra note 150, at 18; BVA FISCAL
YEAR 2013, supra note 150, at 17; BVA FISCAL YEAR 2012, supra note 150, at 16; BVA FISCAL YEAR 2011, supra
note 150, at 15.
152
See BVA FISCAL YEAR 2015, supra note 147, at 26; BVA FISCAL YEAR 2014, supra note 150, at 26; BVA FISCAL
YEAR 2013, supra note 150, at 24; BVA FISCAL YEAR 2012, supra note 150, at 33; BVA FISCAL YEAR 2011, supra
note 150, at 21.
153
See BVA FISCAL YEAR 2015, supra note 147, at 27; BVA FISCAL YEAR 2014, supra note 150, at 27; BVA FISCAL
YEAR 2013, supra note 150, at 25; BVA FISCAL YEAR 2012, supra note 150, at 23; BVA FISCAL YEAR 2011, supra
note 150, at 22.
154
BVA FISCAL YEAR 2015, supra note 147, at 27; BVA FISCAL YEAR 2014, supra note 150, at 27; BVA FISCAL
YEAR 2013, supra note 150, at 25; BVA FISCAL YEAR 2012, supra note 150, at 23; BVA FISCAL YEAR 2011, supra
note 150, at 22.
147

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October 28, 2016
1. Hearing Overview
A veteran may begin the BVA appeals process if he or she is unsatisfied with the benefits
awarded by the VA.155 To begin the appeals process, a veteran files a Notice of Disagreement156
which offers an optional de novo review of the case through a Decision Review Officer (DRO) at
the VA. The DRO can issue a new decision, but cannot overturn any favorable part of the prior
decision. If anything less than the full benefits sought are awarded, the local VA office sends the
claimant a justification for the decision, called the Statement of the Case (SOC).157 Claimants
may then file a Substantive Appeal by submitting VA Form 9 or its equivalent,158 which allows
the veteran an optional hearing before BVA.159 The veteran may submit additional evidence
within 90 days of the BVA’s receipt of the file from the local office.160
Claimants are rarely self-represented in BVA hearings, as they have a right to
representation from a number of VSOs at no cost to the claimant.161 By regulation, BVA is
authorized to provide office space and other facilities for VSOs,162 better enabling them to
provide services for veterans. In 2015, over 75% of veterans who appeared before BVA were
represented by VSOs or State Service Organizations, including the American Legion, Disabled
American Veterans, and Veterans of Foreign Wars.163
BVA’s hearings are “uniquely pro-claimant,”164 and non-adversarial.165 During the
hearing, the claimant presents the case and any material and relevant witness testimonies or
evidence.166 The VLJ gives a “sympathetic” reading to the veteran’s filings,167 and must “explain
fully the issues and suggest the submission of evidence which the claimant may have overlooked
DANIEL T. SHEDD, CONG. RESEARCH SERV., R42609, OVERVIEW OF THE APPEAL PROCESS FOR VETERANS’
CLAIMS 9, 1 (2013) [hereinafter APPEAL PROCESS OVERVIEW].
156
U.S. DEP’T OF VETERANS AFFAIRS, FORM 21-0958, NOTICE OF DISAGREEMENT 3 (2015),
www.vba.va.gov/pubs/forms/VBA-21-0958-ARE.pdf.
157
BD. OF VETERANS’ APPEALS, U.S. DEP’T OF VETERANS AFFAIRS, HOW DO I APPEAL? PAMPHLET 5, 7 (2015),
http://www.bva.va.gov/How_Do_I_APPEAL.asp [hereinafter HOW DO I APPEAL?].
158
See APPEAL PROCESS OVERVIEW, supra note 155, at 6, 8; BD. OF VETERANS APPEALS, U.S. DEP’T OF VETERANS
AFFAIRS, FORM 9, APPEAL TO BOARD OF VETERANS’ APPEALS 1 (2015), http://www.va.gov/vaforms/va/pdf/VA9.pdf
[hereinafter FORM 9].
159
FORM 9, supra note 158, at 1.
160
Veterans may request to have their local office review new evidence before it is submitted to the BVA. See
Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, § 501, 126
Stat. 1165 (2012); APPEAL PROCESS OVERVIEW, supra note 155, at 10.
161
See 38 U.S.C. § 5902 (2012); Telephone Interview with Steven Reiss, Veterans Law Judge, Bd. of Veterans’
Appeals, (July 21, 2016).
162
38 C.F.R. § 14.635 (2012).
163
BVA FISCAL YEAR 2015, supra note 147, at 27.
164
Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998); see also Hensley v. West, 212 F.3d 1255, 1262 (Fed. Cir.
2000).
165
38 C.F.R. § 3.103 (2012) (“Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a
claimant in developing the facts pertinent to a claim and to render a decision which grants every benefit that can be
supported in law while protecting the interests of the Government.”).
166
38 C.F.R. § 20.1304(a) (2012).
167
Washington v. McDonald, 592 Fed. Appx. 941, 943 (Fed. Cir. 2014) (citing Szemraj v. Principi, 357 F.3d 1370,
1373 (Fed. Cir. 2004)).
155

30

October 28, 2016
and which would be advantageous to the claimant’s position.”168 Upon finding that there is
insufficient evidence to support a claim, the VLJ may leave the case open until such evidence is
obtained, for up to sixty days.169
If the BVA denies a veteran’s claim, the veteran may appeal to the Court of Appeals for
Veterans Claims (CAVC) by filing a Notice of Appeal within 120 days of the date of the BVA’s
decision.170 The CAVC is an Article I court with exclusive jurisdiction over BVA appeals.171 The
CAVC reviews a designated record of BVA hearings.172 If the CAVC affirms the Board’s
determination, the veteran may appeal to the United States Court of Appeals for the Federal
Circuit.173
2. Statutory and Regulatory Framework
Several statutes and regulations govern the composition of the Board and provide a
procedural framework for BVA proceedings.
The formation, composition, and responsibilities of the Board are detailed in 38 U.S.C. §
7101-02. The Board’s jurisdiction extends to “all questions of law and fact necessary to a
decision by the Secretary…that affects the provision of benefits…to veterans or the dependents
or survivors of veterans.”174 The BVA may only decide an appeal after providing an opportunity
for a hearing to the appellant. Appellants can request that a hearing be in person,175 but hearings
may be held via video conference as well.176
The Secretary must make “reasonable efforts to assist” claimants in obtaining evidence
needed to substantiate their claims for benefits.177 In disability compensation claims, this
includes helping claimants to obtain medical records and providing medical examinations, if
needed.178 Furthermore, the statute specifies that if there is an “approximate balance” of positive
and negative evidence regarding a material issue, the agency “shall” give the benefit of the doubt
to the claimant.179 The statute also authorizes Veterans Services Organizations (VSOs) to
provide representation in benefits cases.180

168

38 C.F.R. § 3.103.
38 C.F.R. § 20.709 (2012); 38 U.S.C. § 5103A(a)(1) (2012).
170
U.S. CT. OF APP. FOR VETERANS CLAIMS, FORM 1, NOTICE OF APPEAL (2009),
http://www.uscourts.cavc.gov/documents/NOA_Consent_Combined-Form.pdf.
171
38 U.S.C. § 7251–7252, 7266(a) (2012).
172
See APPEAL PROCESS OVERVIEW, supra note 155, at 1.
173
38 U.S.C. § 7292(a) (2012).
174
38 U.S.C. § 511(a) (2012); 38 U.S.C. § 7104 (2012) (granting decisional authority to the BVA).
175
38 U.S.C. § 7107(d)(1) (2012).
176
Id. § 7107(e)(1).
177
38 U.S.C. § 5103A(a) (2012).
178
Id. § 5103A(c).
179
Id. § 5107(b).
180
38 U.S.C. § 5902(c)(1) (2012).
169

31

October 28, 2016
Extensive guidance for BVA hearings and appeals can be found in BVA regulations at 38
C.F.R. Parts 19 and 20. Hearings are non-adversarial,181 and a hearing’s purpose is to allow the
claimant to introduce into the record “any available evidence which he or she considers material,
and any arguments or contentions with respect to the facts and applicable law which he or she
may consider pertinent.”182 VLJs may question witnesses with the intent to “explore fully the
basis for claimed entitlement,” but not to refute testimony or discredit the witness.183 VLJs have
considerable discretion in hearings, and hearing procedure is not limited by formal rules of
evidence. Instead, “reasonable bounds of relevancy and materiality will be maintained.”184 Prehearing conferences are contemplated to clarify the issues to be considered or to take other steps
to make the hearing “more efficient and productive.”185
3. Resources Available to Self-Represented Parties
a. Structural and Procedural Benefits
BVA procedures provide significant assistance to self-represented parties. Claimants are
entitled to a pre-hearing conference,186 during which the VLJ tries to make the claimant feel
more comfortable and able to present his or her case.187 At the pre-hearing conference, the VLJ
works to establish stipulated facts, identify issues on appeal, and make rulings on evidence
admissibility. 188
At the hearing, the VLJ determines the relevance of the evidence offered by the claimant
independent of any formal rules of evidence.189 VLJs must give veterans the “benefit of doubt”
on an issue if the factors are otherwise balanced.190 If there is insufficient evidence on the day of
the hearing before the BVA, the VLJ can choose to keep the record open to allow for the
collection of additional evidence.191 The VLJ may also order independent medical opinions at the
Board’s discretion192 or at the request of the claimant.193 The VA absorbs the costs of obtaining
such an opinion and sends any new medical testimony directly to the claimant.194 The VLJ’s

181

38 C.F.R. § 20.700(c) (2012).
38 C.F.R. § 3.103(c)(2) (2012).
183
Id.
184
38 C.F.R. § 20.700(c).
185
38 C.F.R. § 20.708 (2012).
186
Id.
187
Interview with Steven Reiss, supra note 161.
188
38 C.F.R. § 20.708.
189
38 C.F.R. § 20.700(c).
190
38 U.S.C. § 5107(b).
191
38 C.F.R. § 20.709 (2012).
192
38 C.F.R. § 20.901 (2012).
193
38 C.F.R. § 20.902 (2012).
194
38 U.S.C. § 7109 (2012).
182

32

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decision is not bound by precedent established in other cases,195 so every decision is unique to
the particular claimant.196
Deadlines for forms and evidence are also flexible for claimants who demonstrate good
cause. Claimants can submit additional evidence at nearly any point in the appeal process;198 if
a claimant misses the deadline to submit evidence to the BVA in advance of the hearing, he or
she can introduce evidence for the first time at the hearing or show good cause for the delay. 199
Even if the claimant fails to appear for a hearing, the VA may assign a new hearing if the
claimant can show good cause for his or her absence.200
197

b. Web and Electronic Assistance
BVA provides a number of plain language resources on its website that, although not
explicitly directed toward self-represented parties, provide significant assistance to them. For
instance, the 13-page “How Do I Appeal” booklet explains the appeal process to claimants. The
booklet utilizes large text and bullet points, contains graphics, uses direct pronouns and short and
simple sentences, and provides links to claimants to help them file an appeal.201 BVA’s homepage also features a “Veterans Appeals Process Briefing” document that explains, in simplified
terms, the appeals process at VA and BVA. The document uses bullet points and diagrams to
present the information in an easy-to-digest manner.202 Finally, BVA’s website includes a
Frequently Asked Questions page that provides answers to common questions, with links to
appropriate forms and documents.203
BVA’s homepage also has a “Connect with Us” box that provides several numbers for
veterans to call with questions. The first number provided is BVA’s 1-800 line, which veterans
can call to obtain information about their case.204 As is discussed below, BVA is in the process
of building a replacement to its current call center.205

195

38 C.F.R. § 20.1303 (2012).
38 C.F.R. § 20.700(d) (2012).
197
38 C.F.R. § 20.303 (2012).
198
38 C.F.R. § 20.800 (2012).
199
38 C.F.R. § 19.37 (2012); 38 C.F.R. § 20.1304(a) (2012).
200
38 C.F.R. § 20.704(d) (2012).
201
See HOW DO I APPEAL?, supra note 157.
202
See generally U.S. DEP’T OF VETERANS AFFAIRS, THE VETERANS APPEALS PROCESS (2016),
http://www.bva.va.gov/docs/Veterans-Appeals-Process-Briefing.pdf.
203
See generally U.S. Dept’ of Veterans Affairs, Frequently Asked Questions, BD. OF VETERANS’ APPEALS,
http://www.bva.va.gov/Frequently_Asked_questions.asp (last updated June 15, 2016).
204
See Board of Veterans’ Appeals, U.S. DEP’T OF VETERANS AFFAIRS, http://www.bva.va.gov/index.asp (last
updated June 21, 2016).
205
Telephone Interview with James Ridgway, Chief Counsel for Policy and Procedure, Bd. of Veterans’ Appeals
(July 27, 2016).
196

33

October 28, 2016
c. Future Developments
BVA is currently working on two major changes to its procedures and resources. While
neither is specific to self-represented parties, both would provide significant assistance to them.
First, BVA is currently working to develop replacements to both its call-center and its
online resources for veterans. The objective of the new system is to make it easier for veterans to
access the information in their case files, either by phone or through BVA’s website. In the new
system, veterans would be able to call a centralized VA call center; if needed, the call could be
elevated to the BVA and a veteran could speak with a BVA representative about his or her case.
BVA also hopes to provide veterans with access to their case files and other basic information on
the website.206
Second, BVA is working with a number of VSOs, other stakeholders, and members of
Congress to seek significant modifications to the BVA appeals process. The proposed
modifications would create several “lanes” for veterans dissatisfied with their initial decision. In
many cases, veterans could seek review of their claim by the Veterans Benefits Administration
(VBA) instead of sending the case to BVA. This would allow for a simpler appeals process and a
faster response time from the agency. It is hoped that such modifications would increase both the
efficiency and quality of the appeals process.207
4. Recommendations for the Future
BVA’s hearings are extremely, and uniquely, pro-claimant.208 The duties placed on VLJs
to assist claimants and the flexible and accommodating hearing procedures provide very
significant assistance to self-represented parties. Nonetheless, BVA could make a few changes
that might provide additional assistance to self-represented parties, including making revisions to
BVA’s website to make documents easier to locate, continuing existing efforts to make veterans’
case information easily accessible by phone and on the agency’s website, and publishing
additional printed material specifically tailored toward assisting self-represented parties.
Additional details can be found in Appendix A.
B. Executive Office for Immigration Review
The Executive Office for Immigration Review (EOIR) oversees the adjudication of
immigration-related cases through a nationwide network of immigration courts, overseen by the
Office of the Chief Immigration Judge (OCIJ).209 In addition to removal proceedings, EOIR
handles other cases involving immigration, including hearings related to employment of

206

Id.
Id.
208
Interview with Steven Reiss, supra note 161.
209
See generally EXEC. OFFICE FOR IMMIGRATION REV., U.S. DEP’T OF JUSTICE, IMMIGRATION COURT PRACTICE
MANUAL (2016), https://www.justice.gov/sites/default/files/pages/attachments/2016/02/04/practice_manual_-_0208-2016_update.pdf.
207

34

October 28, 2016
unauthorized aliens, unfair employment practices related to immigration, and instances of fraud
related to immigration.210
Between fiscal year 2011 and fiscal year 2015, EOIR received over 1.5 million
immigration cases.211 The agency completed 1.3 million cases during that time period, averaging
273,000 per year.212 Well over 95% of cases were removal proceedings.213 Between 2011 and
2015, respondents in slightly over half of all cases were represented for some portion of the
case.214
1. Hearing Overview
Before a hearing, respondents receive written notice of their required appearance at the
removal hearing, which includes the legal basis for the action.215 The hearing notice includes the
information necessary to advise the respondent of the date, time, and purpose of the next
hearing.216 Proceedings begin with an initial hearing, conducted in the language most
comfortable to the respondent,217 with translation services provided by EOIR.218 Immigration
courts make available lists of pro bono service providers,219 and at the initial hearing an
unrepresented party can request additional time to locate an attorney or other legal aid.220After
the initial hearing, the judge will designate a date and time for the next hearing and advise the
respondent that he or she must appear at the hearing to avoid an in absentia removal.221 At
subsequent hearings, a respondent may be asked to establish through witnesses and written
evidence that he or she has a legal basis for a continued presence in the United States or consent
to depart the U.S. voluntarily.222 The regulations governing EOIR’s procedures generally do not
distinguish between represented and self-represented parties; however, EOIR has published

Office of the Chief Administrative Hearing Officer, U.S. DEP’T OF JUSTICE, https://www.justice.gov/eoir/officeof-the-chief-administrative-hearing-officer (last updated Aug. 10, 2016).
211
EXEC. OFFICE FOR IMMIGRATION REV., U.S. DEP’T OF JUSTICE, FY 2015 STATISTICS YEARBOOK A2 (2016),
https://www.justice.gov/eoir/page/file/fysb15/download.
212
Id.
213
Id. at B1.
214
Id. at F1.
215
8 U.S.C. § 1229a(b)(5) (2012).
216
Telephone Interview with Bernardo Rodriguez, Assistant Program Dir., Exec. Office for Immigration Rev. (July
26, 2016).
217
See EXEC. OFFICE FOR IMMIGRATION REV., U.S. DEP’T OF JUSTICE, IMMIGRATION JUDGE BENCHBOOK, INITIAL
HEARING – PRO SE 1 (2016),
https://www.justice.gov/sites/default/files/eoir/legacy/2014/08/15/Script_Initial_Hearing.pdf [hereinafter INITIAL
HEARING - PRO SE]; IMMIGRATION COURT PRACTICE MANUAL, supra note 209, at 66.
218
Interview with Bernardo Rodriguez, supra note 216.
219
Interview with Bernardo Rodriguez, supra note 216.
220
INITIAL HEARING – PRO SE, supra note 217, at 2.
221
INITIAL HEARING – PRO SE, supra note 217, at 10.
222
INITIAL HEARING – PRO SE, supra note 217, at 9.
210

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October 28, 2016
guidance for handling cases with self-represented parties in specific contexts, such as when
dealing with unaccompanied alien children.223
2. Statutory and Regulatory Framework
A number of statutes and regulations govern EOIR removal proceedings. The
Immigration and Nationality Act of 1952, and the 1965 amendments, constitute the majority of
the statutory framework governing removal proceedings.224 Within the Act, 8 U.S.C. § 1229a
provides broad guidelines for removal proceedings. The statute gives immigration judges the
authority to administer oaths, receive evidence, examine and cross-examine aliens and witnesses,
and specifies that hearings may take place in person or remotely.225 The statute also grants aliens
the right to representation, but specifies that representation is not to be had at the expense of the
government.226 The burden of proof may rest either on the government or on the alien depending
on the circumstances.227 If an alien fails to appear at a hearing, he or she may be ordered
removed in absentia.228
Additional guidance for removal proceedings can be found at 8 C.F.R. Parts 1003 and
1240. Immigration judges are directed to advise respondents of their right to representation, and
must inquire as to whether respondents would like representation.229 Immigration judges must
also advise respondents of the availability of pro bono legal services, and ensure that the
respondent has received a list of pro bono legal service providers.230 Immigration judges must
inform respondents that they will have an opportunity to examine and object to evidence against
them, present evidence, and cross examine witnesses.231 Immigration judges must also read the
factual allegations and charges to respondents, and explain them in non-technical language.232
These requirements together have been interpreted by the Board of Immigration Appeals233 and
the Ninth Circuit234 to impose an affirmative duty to develop the record on immigration judges.
Immigration judges have broad authority over removal proceedings, and can receive into
evidence any “material and relevant” oral or written statement.235 An immigration judge can

223

Memorandum from David Neal, Chief Immigration Judge, Exec. Office for Immigration Rev., to All
Immigration Judges, All Court Admins., All Judicial Law Clerks, All Immigration Court Staff, Exec. Office for
Immigration Rev. (May 22, 2007), https://www.justice.gov/sites/default/files/eoir/legacy/2007/05/22/07-01.pdf.
224
See Immigration and Nationality Act of 1965, Pub. L. No. 89-236, § 1–6, 8–15, 17–19, 79 Stat. 911–920, 922
(2012); Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163.
225
8 U.S.C. § 1229a(b)(1) (2012).
226
Id. § 1229a(b)(4).
227
Id. § 1229a(c).
228
Id. § 1229a(b)(5).
229
8 C.F.R. § 1240.10(a)(1) (2016).
230
Id. § 1240.10(a)(2).
231
Id. § 1240.10(a)(4).
232
Id. § 1240.10(a)(6).
233
Matter of E-F.H-L, 26 I&N, Dec. 319, 323 (BIA 2014).
234
Jacinto v. INS, 208 F.3d 725, 533–34 (9th Cir. 2000).
235
8 C.F.R. § 1240.7(a) (2016).

36

October 28, 2016
schedule a pre-hearing conference at his or her discretion and can order parties to file pre-hearing
statements.236
The burden of proof in removal proceedings varies based on the specific circumstances.
For example, if a respondent is charged with deportability, the government must prove by clear
and convincing evidence that the respondent is deportable.237 If an alien is in the United States
without being formally admitted, the government must first demonstrate the alienage of the
respondent. Unless the respondent demonstrates that he or she is lawfully in the United States,
the respondent must prove that he or she “is clearly and beyond a doubt entitled to be admitted to
the United States and is not inadmissible as charged.”238
In issuing a decision, an immigration judge must include a finding on admissibility or
deportability, and include his or her reasons for the finding.239 Decisions may be oral or
written.240 A judge may rule against a respondent if the respondent fails to appear at a removal
hearing.241 In general, decisions of immigration judges are appealable to the Board of
Immigration Appeals. However, an order of removal entered in absentia may not be appealed.242
Regulations also govern who may represent a respondent in removal proceedings.243 This
includes attorneys and several categories of non-attorneys, including law students, “reputable
individual(s) of good moral character,” and “accredited representatives” of certain non-profit
organizations. 244 Attorneys and accredited representatives must be registered with EOIR in order
to represent respondents in removal proceedings.
3. Resources Available to Self-Represented Parties
a. Programmatic Assistance
EOIR operates a number of programs that provide assistance to self-represented parties
through its Office of Legal Access Programs (OLAP). OLAP was established in 2000, with the
goals of improving access to legal information and increasing representation rates for individuals
in immigration proceedings.245
First, OLAP operates the Legal Orientation Program (LOP), under which EOIR funds
nonprofit organizations to provide services to litigants in immigration proceedings.246 The
236

8 C.F.R. § 1003.21 (2016).
8 C.F.R. § 1240.8(a) (2016).
238
Id. § 1240.8(c).
239
8 C.F.R. § 1240.12(a).
240
Id.
241
8 C.F.R. § 1208.10 (2016).
242
8 C.F.R. § 1240.15.
243
8 C.F.R. § 1292.1 (2016).
244
Id.
245
EXEC. OFFICE FOR IMMIGRATION REV., U.S. DEP’T OF JUSTICE, FACT SHEET: EOIR’S OFFICE OF LEGAL ACCESS
PROGRAMS 1 (2016),
https://www.justice.gov/sites/default/files/pages/attachments/2016/08/08/olapfactsheet082016.pdf.
246
See id.
237

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October 28, 2016
program provides group and individual orientation, self-help workshops, and pro bono referral
for removal proceedings.247 There are currently 38 LOP sites, 36 of which are located at ICE
detention centers. LOP has led to positive outcomes: participants are more likely to obtain
representation and cases are completed more quickly, leading to fewer court hearings and
ultimately to cost savings.248
Second, OLAP works with the Department of Health and Human Services’ Office of
Refugee Resettlement to run the Legal Orientation Program for Custodians of Unaccompanied
Alien Children (LOPC). The program is similar to LOP, and provides orientation to the adult
custodians of alien children involved in removal proceedings.249 The program has been
established in 15 sites around the country. In addition to the workshops and orientations provided
by the program, LOPC also operates a national call center to expand the geographic reach of
LOPC. Custodians can receive legal orientation over the phone and can obtain guidance in filing
certain court forms.250
OLAP also recently launched an Immigration Court Helpdesk (ICH) program. Services
began in five immigration courts in August 2016.251 The program’s goals are to orient nondetained individuals facing removal proceedings to the immigration court process and to provide
information to respondents regarding possible remedies and available legal resources. ICH is
modelled after LOP and LOPC, and services include both assistance to self-represented parties
and information on pro bono resources.252
EOIR has also established Self-Help Legal Centers in select immigration court
facilities.253 These centers are facilitated by OLAP, but run by individual immigration courts.254
The centers generally consist of bulletin boards with printed resources in English and Spanish,
but they are not staffed.255 These centers aim to facilitate respondents’ access to legal
information and provide guidance on the procedural aspects of the removal process. Self-Help
Legal Centers provide both general legal information and information specific to the individual
immigration court in question. The centers provide access to blank forms, as well a number of
“how to” guides, compiled by several nonprofit and pro bono organizations. Although EOIR
notes that it does not endorse these guides, the guides have been made publicly available on
EOIR’s website. The guides are generally written in plain language.256

247

Id.
Id.
249
Id. at 2.
250
Id.
251
Interview with Bernardo Rodriguez, supra note 216.
252
FACT SHEET: EOIR’S OFFICE OF LEGAL ACCESS PROGRAMS, supra note 245, at 4.
253
Exec. Office for Immigration Rev., Self Help Materials, U.S. DEP’T OF JUSTICE,
https://www.justice.gov/eoir/self-help-materials (last updated May 17, 2016).
254
Interview with Bernardo Rodriguez, supra note 216.
255
Id.
256
Self Help Materials, supra note 253.
248

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October 28, 2016
OLAP runs several additional programs geared toward improving representation in
immigration proceedings – including the Board of Immigration Appeals Pro Bono Project, the
National Qualified Representative Program, the Baltimore Representation Initiative for
Unaccompanied Children, and the Remote Access Initiative.257 OLAP is also responsible for
maintaining the List of Pro Bono Legal Service Providers for all immigration courts.258
b. Forms and Electronic Assistance
EOIR also provides online access to a variety of resources. First, EOIR makes forms
available on its website, though e-filing is not currently supported. Available forms include those
needed to file a change of address (EOIR-33/IC, “Alien’s Change of Address Form/Immigration
Court”) and file for asylum (I-589, “Application for Asylum and For Withholding of Removal”),
among others.259
EOIR makes a number of additional resources available online that may benefit selfrepresented parties. For instance, the “Self-Help Materials” portion of the website provides a
number of documents – prepared by third party nonprofit organizations – to assist selfrepresented parties in answering specific questions, such as “Do You Need a Lawyer?” and “Did
You Miss Your Hearing?”.260 EOIR’s website also contains a “virtual law library” that provides
self-represented parties the opportunity to read case law relevant to removal proceedings.261
Finally, the agency published two explanatory documents, the “Immigration Court Practice
Manual” and “Board of Immigration Appeals Practice Manual” on its website.262 These
documents provide explanation of the immigration court system and the Board of Immigration
Appeals, detail removal procedure, and include information on logistics regarding evidence,
filings, and representation. Some of the text is in plain language; however, both the volume of
information and the depth is likely to be overwhelming to self-represented parties. The
documents are 250 and 219 pages, respectively, and utilize legal terminology, acronyms, and
statutory and regulatory citations to an extent that may prove confusing to those not already
familiar with EOIR’s procedures.263

FACT SHEET: EOIR’S OFFICE OF LEGAL ACCESS PROGRAMS, supra note 245, at 2-3.
Exec. Office for Immigration Rev., Office of Legal Access Programs, U.S. DEP’T OF JUSTICE,
https://www.justice.gov/eoir/office-of-legal-access-programs (last updated Nov. 30, 2015).
259
Exec. Office for Immigration Rev., List of Downloadable Forms, U.S. DEP’T OF JUSTICE,
https://www.justice.gov/eoir/list-downloadable-eoir-forms (last updated Dec. 11, 2015).
260
Self Help Materials, supra note 253.
261
Exec. Office for Immigration Rev., Virtual Law Library, U.S. DEP’T OF JUSTICE,
https://www.justice.gov/eoir/virtual-law-library (last updated Aug. 10, 2016).
262
See generally IMMIGRATION COURT PRACTICE MANUAL, supra note 209; EXEC. OFFICE FOR IMMIGRATION REV.,
U.S. DEP’T OF JUSTICE, BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL (2016),
https://www.justice.gov/sites/default/files/pages/attachments/2016/04/27/biapracticemanual_0.pdf#page=1.
263
See supra note 263.
257
258

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October 28, 2016
4. Recommendations for the Future
EOIR is doing a lot to assist self-represented parties, particularly through its Office of
Legal Access Programs. However, EOIR could improve access to legal resources for
unrepresented parties in removal proceedings through a number of actions, including creating a
web “portal” for self-represented parties, revising and expanding its online resources for selfrepresented parties, making it easier for self-represented parties to contact EOIR, and clarifying
and expanding its guidance for Immigration Judges when dealing with self-represented parties.
Additional details can be found in Appendix A.
C. Social Security Administration
The Social Security Administration (SSA) administers programs related to retirement,
survivor and disability insurance, and supplemental security income.264 Administrative appeals
are heard by the Office of Disability Adjudication and Review (ODAR),265 with hearings
conducted by over 1,400 administrative law judges (ALJs) in 169 hearing offices and five
national hearing centers around the country. 266
From fiscal year 2011 through 2014, SSA received over 800,000 cases at the hearing
level annually, issuing between 680,000 and 820,000 decisions each year. 267 Over 99% of the
cases heard by SSA pertain to Social Security Disability Insurance, Supplemental Security
Income, or both.268 About 77% of claimants in SSA hearings have representatives for some
portion of the proceeding,269 with the majority of represented claimants being represented by an
attorney.270

264

Organizational Structure of the Social Security Administration, SOC. SEC. ADMIN.,
https://www.ssa.gov/org/orgoc.htm (last visited July 29, 2016); About Us, SOC. SEC. ADMIN.,
https://www.ssa.gov/agency/ (last visited July 29, 2016).
265
There are several levels in SSA’s administrative review process. In most states, after an individual receives an
initial determination from the Disability Determination Services (DDS), he or she can request reconsideration by the
DDS. A claimant who disagrees with the DDS’s reconsideration determination can request a hearing before an
administrative law judge at ODAR, heard de novo. A claimant may request review of an ALJ’s decision by the
Appeals Council and, if still dissatisfied with the Agency’s decision, may appeal to federal court. See SOC. SEC.
ADMIN., PUB. NO. 05-10041, THE APPEALS PROCESS (2015), https://www.ssa.gov/pubs/EN-05-10041.pdf. This
report uses “administrative appeals” to refer to cases before administrative law judges at ODAR.
266
SOC. SEC. ADMIN., PUB. NO. 13-11700, ANNUAL STATISTICAL SUPPLEMENT TO THE SOCIAL SECURITY BULLETIN
2.80 tbl.2.F8 (2015), https://www.ssa.gov/policy/docs/statcomps/supplement/2015/supplement15.pdf [hereinafter
2015 STATISTICAL SUPP.]; Hearing Office Locator, Office of Disability Adjudication and Review, SOC. SEC. ADMIN.,
https://www.ssa.gov/appeals/ho_locator.html#&sb=0 (last visited July 29, 2016).
267
2015 STATISTICAL SUPP., supra note 266, at 2.81 tbl.2.F9.
268
Id.
269
HAROLD J. KRENT & SCOTT MORRIS, ACHIEVING GREATER CONSISTENCY IN SOCIAL SECURITY DISABILITY
ADJUDICATION: AN EMPIRICAL STUDY AND SUGGESTED REFORMS 7 (2013), https://www.acus.gov/sites/default/files/
documents/Achieving_Greater_Consistency_Final_Report_4-3-2013_clean.pdf.
270
SOC. SEC. ADVISORY BD., ASPECTS OF DISABILITY DECISION MAKING: DATA AND MATERIALS 60 fig.55 (2012),
http://www.lb7.uscourts.gov/documents/1-11-CV-00224.pdf.

40

October 28, 2016
1. Hearing Overview
The Social Security Act created two programs—Social Security Disability Insurance
(SSDI) and Supplemental Security Income (SSI)—in order to provide monetary benefits to
persons who qualify based on age or disability.271 Individuals may qualify for benefits if, among
other things, they can meet the Social Security Act’s definition of disability.272 The programs
share the same definition of disability: the inability “to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.”273 Every year, millions of people apply for SSDI and SSI benefits, and SSA has
created what may be the world’s largest adjudicative system to process these claims.274
In order to receive benefits, an individual must first apply with SSA. Claimants can do so
in-person at a SSA field office, online, by telephone, or by mail.275 Once an application is
received by the SSA field office and certain technical requirements are met, the case is sent to a
federally funded state Disability Determination Service (DDS) for the initial steps in the
adjudication process.276 In most states, a team consisting of a state disability examiner and a state
agency medical and/or psychological consultant makes an initial disability determination on
behalf of SSA.277 If the first DDS team denies an individual’s initial claim, in most states the
claimant may seek reconsideration by another DDS team.278
A claimant who is dissatisfied with the outcome of the reconsideration determination at
the state DDS level may, in turn, request a hearing before ODAR.279 The ALJ reviews the case
de novo and may award benefits based on the written record or decide the claim after an
adjudicative hearing conducted in person, by video teleconference, or, under extraordinary
circumstances, by telephone.280 Although SSA does not take a position on whether or not a
claimant should have a representative in agency hearings, ALJs ensure both that claimants are
aware that they have a right to representation and that they understand that representatives
271

42 U.S.C. § 401(b), 1381 (2012).
Id. § 423(d).
273
Id. § 423(d)(1)(A), 1382c(a)(3)(A).
274
See Securing the Future of the Disability Insurance Program: Hearing Before the Subcomm. on Soc. Sec. of the
H. Comm. on Ways & Means, 112th Cong. 1 (2012) [hereinafter Astrue Testimony] (statement of Michael Astrue,
Comm’r, Soc. Sec. Admin.), http://waysandmeans.house.gov/uploadedfiles/mikeastrue_ss_6_27_12. pdf; see also
Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (quoting JERRY L. MASHAW ET AL., SOCIAL SECURITY
HEARINGS AND APPEALS xi (1978)); SOC. SEC. ADMIN, APPENDIX E: SSA DISPOSITION COUNT BY
REPRESENTATION (FY 2005-2011) A-9 (Sept. 28, 2012) (chart provided by SSA detailing annual number of
dispositions from 2005 to 2011); Information About SSA’s Office of Disability Adjudication and Review, SOC. SEC.
ADMIN., https://www.ssa.gov/appeals/about_odar.html (last visited July 29, 2016).
275
See 20 C.F.R. § 404.614, 416.325 (2016).
276
See id. § 404.1613-18, 416.1013-18.
277
See id. § 404.1615, 416.1015; see also 42 U.S.C. § 421(a), 1383b(a) (2012) (allowing states to make initial
disability determinations).
278
See 20 C.F.R. § 404.907, 416.1407 (2016); Astrue Testimony, supra note 274, at 1.
279
See 20 C.F.R. § 404.929-30 (2016), § 416.1429-30 (2016); Astrue Testimony, supra note 274, at 1.
280
See 20 C.F.R. § 404.929, 416.1429 (2016); Astrue Testimony, supra note 274.
272

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October 28, 2016
generally work on a contingent fee basis.281 In hearing the case, the ALJ may consider additional
medical examinations, vocational or medical expert testimony, or other non-medical evidence, as
well as question the claimant or other witnesses.282 Hearings are non-adversarial.283 ALJs have
an affirmative duty to develop the record irrespective of whether the claimant has representation,
and many courts have found that ALJs have a heightened duty in cases with self-represented
claimants.284
If a claimant is dissatisfied with an ALJ’s decision, he or she may request Appeals
Council review.285 In deciding whether to review a case, the Appeals Council considers all the
evidence in the hearing record, and may consider additional evidence in certain circumstances.286
If the Appeals Council grants review and issues a decision, then this decision becomes SSA’s
final decision; otherwise, the ALJ’s decision becomes SSA’s final decision. In either instance,
the claimant may seek judicial review in federal court based on the full administrative record.287
2. Statutory and Regulatory Framework
Congress delegates broad authority to SSA to “make rules and regulations and to
establish procedures…which are necessary or appropriate to carry out [the] provisions [of this
title].”288 Congress authorizes SSA both to permit representation of claimants and to promulgate
rules to guide such representation before SSA.289 Congress requires SSA to notify claimants
281

Interview with Reps. from Soc. Sec. Admin. (July 18, 2016). See also 1 SOCIAL SECURITY ADMINISTRATION,
HEARINGS, APPEALS, AND LITIGATION LAW MANUAL § I-2-6-52 (2015).
282
See 20 C.F.R. § 404.929-61, 416.1429-61.
283
20 C.F.R. § 404.900(b), 416.1400(b). The Department of Veterans Affairs (“VA”) is the other most notable
example. See, e.g., Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (discussing “the historically nonadversarial system of awarding benefits to veterans” and stating that “[t]his court and the Supreme Court both have
long recognized that the character of the veterans’ benefits statutes is strongly and uniquely pro-claimant”); see also
Henderson v. Shinseki, 131 S. Ct. 1197, 1206 (2011) (referring to proceedings before the VA as “informal and
nonadversarial”).
284
E.g., Byes v. Astrue, 687 F.3d 913, 915–16 (8th Cir. 2012); Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir.
2002) (describing the duty of an ALJ to “fully and fairly develop[] the facts of the case”); Thornton v. Schweiker,
663 F.2d 1312, 1316 (5th Cir. 1981) (same); see also Sims v. Apfel, 530 U.S. 103, 111 (2000) (noting “ALJ’s duty
to investigate the facts and develop the arguments both for and against granting benefits”); Richardson v. Perales,
402 U.S. 389, 410 (1971) (noting adjudicator’s duty to develop the facts). The ALJ’s duty to develop the record is
“less pronounced when . . . a claimant is represented by counsel.” Newcomb v. Astrue, No. 2:11-CV-02GZS, 2012
WL 47961, at *10 (D. Me. Jan. 6, 2012), aff’d, No. 2:11-CV-02-P-S, 2012 WL 206278 (D. Me. Jan. 24, 2012)
(citing as examples, Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991) and Hawkins v. Chater, 113 F.3d 1162,
1167–68 (10th Cir. 1997).
285
20 C.F.R. § 404.967–68; 416.1467–68. Note that “[t]he Act does not require administrative review of an ALJ’s
decision. If the AC issues a decision, it becomes [SSA’s] final decision. If the AC decides not to review the ALJ’s
decision, the ALJ’s decision becomes [SSA’s] final decision.” Astrue Testimony, supra note 274.
286
20 C.F.R. § 404.970(b), 416.1470(b) (2016).
287
42 U.S.C. § 405(g), 1383(c)(3) (2012); 20 C.F.R. 422.210 (2016). If the Appeals Council grants the claimant’s
request for review and issues a decision, the Appeals Council’s decision becomes SSA’s final decision. 20 C.F.R. §
404.981, 416.1481 (2016). The Appeals Council may also grant the claimant’s request for review and remand the
case to an ALJ. 20 C.F.R. § 404.977, 416.1477 (2016).
288
42 U.S.C. § 405(a) (2012).
289
Id. § 406(a)(1) (2012); see 20 C.F.R. § 404.1705, 404.1740 (2016); see also, GN 03910.001 Representation of
Claimants, SOC. SEC. ADMIN., https://secure.ssa.gov/apps10/poms.nsf/lnx/0203910001 (last updated July 29, 2008),

42

October 28, 2016
about their options to enlist representation, including providing information about organizations
that offer free legal services.290 Regardless of whether or not a claimant is represented, Congress
requires SSA to develop the evidentiary record.291
In its regulations, SSA tracks its statutory mandate by reiterating an ALJ’s duty to
develop the record. As summarized in Frank Bloch’s treatise, SSA ALJs must “participate
actively both before and at the hearing in developing written evidence and obtaining relevant
testimony from the claimant and other witnesses.”292 Such a duty to develop a full and complete
record is “greatest . . . when a claimant is unrepresented. Under such circumstances, ‘a duty
devolves on the hearing examiner to scrupulously and conscientiously probe into, inquire of, and
explore for all of the relevant facts.’”293
In order to facilitate the appointment of a representative, SSA requires its ALJs to notify
self-represented claimants of their right to representation through both a written letter and during
the ALJ’s opening statement at the hearing.294 SSA also “maintain[s] a representation referral list
of legal referral services [and] legal services organizations.”295
If a claimant proceeds without representation, SSA’s regulations provide for additional
safeguards. For example, self-represented claimants can request a change of the time or place of
a hearing based on their representation status because they could not “respond to the notice of
hearing because of any physical, mental, educational, or linguistic limitations.”296
3. Resources Available to Self-Represented Parties
a. Structural and Procedural Benefits
As is discussed above, SSA hearings are non-adversarial.297 Hearings before ALJs may
be conducted in person, via video teleconferencing, or by telephone in extreme circumstances.298
When setting the time and place of a hearing, SSA takes into consideration the circumstances of
(providing an overview of the process through which a claimant appoints a representative and how the
representative is compensated); GN 03910.010 Claimant’s Right to Representation, SOC. SEC. ADMIN.,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0203910010 (last updated July 12, 2012) (setting forth the SSA policy
surrounding a claimant’s appointing representation).
290
42 U.S.C. § 406(c); 20 C.F.R. § 404.1706.
291
42 U.S.C. § 423(d)(5)(B) (2012); 20 C.F.R. § 404.1512(d).
292
FRANK BLOCH, BLOCH ON SOCIAL SECURITY § 5:6 (2016).
293
Id. (citing Reefer v. Barnhart, 326 F.3d 376, 3801 (2003).
294
See Representation of Claimants, supra note 289 (laying out the procedure for informing claimants about their
right to representation); 1 SOCIAL SECURITY ADMINISTRATION, HEARINGS, APPEALS, AND LITIGATION LAW
MANUAL § I-1-0-1, I-1-1-3 (2011), https://www.ssa.gov/OP_Home/hallex/hallex-I.html; 1 SOCIAL SECURITY
ADMINISTRATION, HEARINGS, APPEALS, AND LITIGATION LAW MANUAL § I-2-0-1, I-2-0-92 (2016),
https://www.ssa.gov/OP_Home/hallex/I-02/I-2-0.html; id. § I-2-6-52, https://ssa.gov/OP_Home/hallex/I-02/I-2-652.html.
295
Advising Claimants Regarding Right to Representation, SOC. SEC. ADMIN.,
https://secure.ssa.gov/poms.nsf/lnx/0203910030 (last updated Sept. 30, 2011).
296
20 C.F.R. § 404.936(f)(2)(vi), 416.1436(f)(2)(vi) (2016).
297
See supra note 283 and accompanying text.
298
20 C.F.R. § 404.929, 416.1429 (2016).

43

October 28, 2016
the claimant and the claimant’s ability to appear at a hearing.299 Finally, as is discussed above,
ALJs have an affirmative duty to develop the record.300
b. Programmatic Assistance
SSA has over 160 hearing offices around the country where claimants can receive inperson assistance in filing an appeal with ODAR.301 Field office employees can provide basic
information and guidance on the appeals process,302 and claimants can obtain a number of
brochures at field offices that explain the hearing process, their right to appeal, and related
issues.303 SSA also provides a 1-800 number that claimants can call to obtain information while
working on their appeals.304 Once a claimant files an appeal, he or she receives a notice from the
hearing office with additional details about the appeals process.305
c. Forms and Electronic Assistance
SSA allows claimants to file appeals with ODAR electronically, and a substantial number
of claimants make use of this resource: in 2015, 534,000 appeals were filed online.306 Of those
filings, the majority (435,000) were filed by representatives, with claimants filing an additional
69,000 (13%).307 The online application can be accessed by computer or mobile device and
walks claimants through the process in a step-by-step fashion.308 Before beginning, claimants can
view and print a checklist of the information that will be asked of them during the application.309
Claimants must provide personal information, medical information including changes in their
condition and history of treatment, and any other supporting documents.310 If claimants do not
have access to particular records at the time they submit the application, they can submit a cover

299

See 20 C.F.R. § 404.936 (2016).
See supra note 284 and accompanying text.
301
Interview with Soc. Sec. Admin. Representatives, supra note 281.
302
Id.
303
See, e.g., SOC. SEC. ADMIN., PUB. NO. 05-10041, THE APPEALS PROCESS (2015), https://www.ssa.gov/pubs/EN05-10041.pdf; SOC. SEC. ADMIN., PUB. NO. 05-10058, YOUR RIGHT TO QUESTION THE DECISION MADE ON YOUR
CLAIM (2015), https://www.ssa.gov/pubs/EN-05-10058.pdf; SOC. SEC. ADMIN., PUB. NO. 05-10075, YOUR RIGHT TO
REPRESENTATION (2015), https://www.ssa.gov/pubs/EN-05-10075.pdf; SOC. SEC. ADMIN., PUB. NO. 05-10090,
YOUR RIGHT TO QUESTION THE DECISION TO STOP YOUR DISABILITY BENEFITS (2016),
https://www.ssa.gov/pubs/EN-05-10090.pdf; SOC. SEC. ADMIN., PUB. NO. 70-10281, YOUR RIGHT TO AN
ADMINISTRATIVE LAW JUDGE HEARING AND APPEALS COUNCIL REVIEW OF YOUR SOCIAL SECURITY CASE (2015),
https://www.ssa.gov/appeals/odar_pubs/70-10281.pdf; SOC. SEC. ADMIN., PUB. NO. 05-11008, YOUR RIGHT TO
QUESTION A DECISION MADE ON YOUR SUPPLEMENTAL SECURITY INCOME (SSI) CLAIM (2016),
https://www.ssa.gov/pubs/EN-05-11008.pdf.
304
Interview with Soc. Sec. Admin. Representatives, supra note 281.
305
Id.
306
Teleconference Website Demonstration with Social Security Administration Representatives (July 26, 2016).
307
Id.
308
Disability Appeal: Getting Ready, SOC. SEC. ADMIN., https://secure.ssa.gov/iApplsRe/start (last visited July 29,
2016).
309
Information You Need to Complete Your Disability Appeal, SOC. SEC. ADMIN.,
https://www.ssa.gov/hlp/iappeals/info-u-need.htm (last modified Mar. 24, 2015).
310
Website Demonstration with Social Security Administration Representatives, supra note 306.
300

44

October 28, 2016
sheet explaining the missing information.311 The online application system has reduced the
amount of paperwork in benefits appeals, and has created a faster, more efficient filing process
when compared to paper applications.312 Representatives can currently access information about
an appeal’s status online, but claimants cannot yet do so. In the fall of 2016 SSA hopes to expand
this service to allow claimants to check the status online as well.313
SSA provides a number of additional resources to claimants on its website. For instance,
SSA makes many of its disability forms available online, including the application for disability
insurance benefits, appointment of representative form, and forms related to medical
treatment.314 SSA also provides a number of pamphlets to claimants that explain the disability
benefits application and appeal process.315 These pamphlets explain different aspects of the
hearing process in plain language, and also provide direct links to relevant forms. The pamphlets
use short sentences, pronouns to speak directly to readers, and simple vocabulary.316 SSA has
made many of its resources available in plain language, and the agency views it as an ongoing
effort to continue to improve the simplicity of its brochures, forms, and website.317
d. Judicial Training
SSA also provides significant training for its ALJs: a new ALJ receives three weeks of
orientation at his or her hearing office, followed by four weeks of training at SSA’s
headquarters.318 Learning how to handle hearings with self-represented parties is an important
component of the training, and ALJs practice hearings with different scenarios involving selfrepresented parties. New ALJs attend supplemental training after one year, and more experienced
ALJs attend three days of in-person training approximately every three to five years. ALJs also
receive mandatory quarterly training on substance and procedure.319
e. Future Developments
The agency is in the process of introducing a pre-hearing conference pilot program
which, among other things, will better assist self-represented parties.320 The program began last
year in five hearing offices and has been expanded to include about thirty offices. Senior
attorneys in these hearing offices offer pre-hearing conferences for claimants, geared toward
unrepresented parties. The goals of the conferences are to explain the hearing process and right
to representation, obtain updated records information in preparation for the hearing, and to stress
to the claimants the importance of remaining in contact and providing complete medical
311

Id.
Id.
313
Id.
314
Forms, SOC. SEC. ADMIN., www.ssa.gov/forms (last visited July 29, 2016).
315
See supra note 303.
316
Id.
317
Interview with Soc. Sec. Admin. Representatives, supra note 281.
318
Id.
319
Id.
320
Id.
312

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October 28, 2016
information to the agency. It is too early for concrete evidence on the efficacy of the pre-hearing
conferences, but the anecdotal evidence suggests that they have been received positively. The
largest drawback to this pilot program is that it is resource intensive.321
4. Recommendations for the Future
SSA is clearly taking steps to aid self-represented parties. Between its heightened duties
on ALJs to provide assistance to self-represented parties and its online appeals process, selfrepresented parties receive significant assistance from SSA. However, several changes to its
online resources – including better organization of existing resources for self-represented
claimants, revision of online forms, and creation of a “portal” for claimants to access their
appeals – would provide additional assistance to self-represented claimants in SSA proceedings.
Additional details can be found in Appendix A.
D. United States Department of Agriculture National Appeals Division
The United States Department of Agriculture’s National Appeals Division (NAD) is an
independent organization within USDA,322 and the Director of NAD reports directly to the
Secretary of Agriculture.323 NAD handles appeals from adverse decisions issued by the Farm
Service Agency, Natural Resources Conservation Service, Risk Management Agency, and the
three Rural Development agencies.324 Cases heard by NAD include appeals of rejection of farm
loans, acceleration of mortgages, or denial of program payments or assistance.325
NAD heard a total of about 7,400 cases between October 2011 and June 2016.326 Just
over half the cases came from Rural Development, and another quarter from the Farm Service
Agency.327 NAD does not track whether appellants in those cases were self-represented.
However, Jim Murray, Deputy Director of NAD, estimated that about 75% of appellants either
represented themselves or were represented by a family member or friend without legal
experience. About 15% of claimants were represented by professional non-lawyer
representatives, and the remaining 10% by lawyers.328
1. Hearing Overview
The appeal process begins when a participant receives an adverse determination by an
agency within the USDA.329 With the adverse decision, parties receive notice informing them of
321

Id.
7 C.F.R. § 11.1 (2016).
323
Id.
324
Id.
325
NAT’L APPEALS DIV., U.S. DEP’T OF AGRIC., FACE TO FACE FAIRNESS (2003),
https://www.nad.usda.gov/NAD_Flyer.pdf.
326
NAT’L APPEALS DIV., U.S. DEP’T OF AGRIC., FAVORABLE OUTCOME RATE BY AGENCY (2016).
327
Id.
328
Telephone Interview with Jim Murray, Deputy Dir, Nat’l Appeals Div., U.S. Dep’t of Agric. (July 27, 2016).
329
Gary Condra & Merinda Condra, The Basics of the USDA National Appeals Division, 73 TEX. B.J. 396, 396
(2010).
322

46

October 28, 2016
their right to appeal.330 NAD works with many of the major agencies within its jurisdiction to
standardize the notice provided to parties.331 A party wishing to appeal can either fill out the
form provided online and then mail it to one of NAD’s regional offices, or can use an online efiling system.332 Prior to the hearing there is a pre-hearing conference, typically held by
telephone,333 in which parties may clarify issues, define the dispute, stipulate to facts or expected
testimony, and handle other related issues.334 The appellant can choose the form of the hearing –
hearings can be held in person or by telephone, or they can be based on a review of the agency
record and party submissions.335 If the hearing is in person, the appellant has the right to have the
hearing in his or her state of residence or at a location convenient to both the appellant and
NAD.336
NAD hearing procedures are relatively informal. Although parties must submit briefs to
NAD prior to the hearing, there is no required format for the briefs.337 The Federal Rules of
Evidence do not apply to NAD hearings, and Administrative Judges have discretion in
determining what evidence to consider.338 Although the Administrative Judge cannot act as an
advocate for the appellant, Administrative Judges are tasked with “obtaining all facts relevant
and material to the matters at issue.”339 Administrative Judges very rarely exclude evidence,340
and can choose to admit evidence broadly and evaluate relevancy at a later point in time.341 NAD
encourages its Administrative Judges to actively question self-represented parties to ensure all
relevant evidence has been identified.342
2. Statutory and Regulatory Framework
NAD’s statutory mandate provides relatively few details about hearing procedure.343
Congress directs that an appellant has the right to a NAD hearing within 45 days after a hearing
is requested.344 Hearings are in person, unless the appellant agrees to either a telephone hearing
or review of the case record.345 NAD’s Director and hearing officers, called Administrative
Judges, are given explicit subpoena authority to require the attendance of witnesses and the

330

Interview with Jim Murray, supra note 328.
Id.
332
Nat’l Appeals Div., File an Appeal, U.S. DEP’T OF AGRIC., http://www.nad.usda/gov/app_appeal.html (last
modified Jan. 24, 2013).
333
Condra & Condra, supra note 329, at 397.
334
Id.
335
Id.
336
Id.
337
THE NATIONAL APPEALS DIVISION GUIDE, supra note 395, at 16.
338
Condra & Condra, supra note 329 at 397.
339
THE NATIONAL APPEALS DIVISION GUIDE, supra note 395, at 36.
340
Condra & Condra, supra note 329, at 397.
341
THE NATIONAL APPEALS DIVISION GUIDE, supra note 395, at 36.
342
Id. at 40.
343
7 U.S.C. § 6991–7002 (2012).
344
Id. § 6997(b).
345
Id. § 6997(c)(2).
331

47

October 28, 2016
production of evidence, and are given the power to administer oaths and affirmations.346
Administrative Judges are not bound by findings of fact made by the agency.347 The appellant
bears the burden of proving that the adverse agency decision being appealed is erroneous, 348 but
the burden itself is not specified. Once the appellant receives a determination from the
Administrative Judge, he or she has 30 days to submit a request to NAD’s Director for review.349
The Director conducts a record review, and can remand all or a portion of the decision to the
Administrative Judge.350 Final decisions issued by NAD are reviewable in district court.351
NAD’s regulations provide additional hearing instructions, and procedures for both
hearings and record review are described in 7 C.F.R. § 11.8. The regulations give Administrative
Judges the authority to request that the appellant submit a statement describing why the agency’s
decision was incorrect, a copy of any document not in the agency record that the appellant plans
to introduce at the hearing, and a list of expected witnesses.352 NAD must provide at least
fourteen days’ notice of the hearing to the appellant, the appellant’s representative (if any), and
the agency.353 Ex parte contacts are prohibited.354 Administrative Judges “shall” hold a prehearing conference when appropriate to attempt to resolve the dispute or narrow the relevant
issues.355 If the appellant fails to appear at the hearing, the Administrative Judge may treat the
appeal as a record review or dismiss the appeal.356 The appellant has the burden of proving that
the agency made an erroneous decision by a preponderance of the evidence.357 The appellant can
be represented by an attorney or non-attorney, and the representative must file a declaration with
NAD identifying the representation relationship.358
3. Resources Available to Self-Represented Parties
a. Pre-Hearing and Hearing Assistance
NAD directs its Administrative Judges to provide assistance to self-represented parties
during both hearings and pre-hearing conferences

346

Id. § 6997(a)(2).
Id. § 6997(c)(2).
348
Id. § 6997(c)(4).
349
Id. § 6998 (a)(1).
350
Id. § 6998(b).
351
Id. § 6999.
352
7 C.F.R. § 11.8(c)(2) (2016).
353
Id. § 11.8(a)(2).
354
Id. § 11.7(a)(1); see also Alan R. Malasky & William E. Penn, USDA Reorganization – Fact or Fiction?, 25 U.
MEM. L. REV. 1161, 1185 (1995) (“This provision is extremely important and makes unlawful what has been, at
least in perception, one of the major problems associated with the existing NAD appeals system—that the
decisionmaker, after learning the appellant’s position in the administrative hearing, would go back to officials in the
agency to counter any evidence presented by the appellant that tended to exculpate the appellant without allowing
the appellant an opportunity to refute the additional information that the decisionmaker gathered from the agency.”).
355
7 C.F.R. § 11.8(c)(4).
356
Id. § 11.8(c)(6)
357
Id. § 11.8(e).
358
Id. § 11.1, 11.6(c).
347

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October 28, 2016
Appellants gain most of their information about the NAD hearing process during the prehearing conferences,359 which are significantly tailored toward self-represented parties. During
pre-hearing conferences, Administrative Judges explain the process and inform appellants about
NAD’s status as an independent adjudicatory body.360 Administrative Judges are instructed to
explain their role in the case, define the burdens of proof on the agency and the appellant, and
explain the available hearing options.361 Administrative Judges are also directed to respond to the
parties’ needs and statements, demonstrate active listening techniques, use non-technical and
understandable vocabulary, foster a comfort level with the appellant that will carry over to the
hearing, and treat all parties with courtesy and respect.362 In general, Administrative Judges are
instructed to use techniques that “reflect an Appellant-driven point of view.”363
Hearings are similarly accommodating of self-represented parties. NAD provides
extensive training to its Administrative Judges on how to interact with self-represented parties.364
NAD’s guidance for its Administrative Judges can be found in a training packet entitled
“Essential Administrative Adjudication Skills for the USDA.”365 The packet cites ABA Model
Judicial Code Rule 2.2 and its associated Comment 4, which stand for the proposition that –
although judges should decide cases with “impartiality and fairness”366 – they may make
“reasonable accommodations” to ensure self-represented parties are fairly heard.367 Although the
packet does not clearly endorse the Model Rule and Comment, it does cite them as good practice
for Administrative Judges. The packet covers several issues relating to self-represented parties:
among other things, it aims to ensure that Administrative Judges allow latitude to selfrepresented parties in both procedural and evidentiary matters368 and understand how best to
communicate with self-represented parties.369
b. Forms and Electronic Assistance
NAD’s website provides a range of options for potential appellants. The website is
available in English and Spanish,370 and provides an email address and phone number for

359

Interview with Jim Murray, supra note 328.
Id.
361
NAT’L APPEALS DIV., U.S. DEP’T OF AGRIC., PRE-HEARING GUIDE 3 (2007).
362
Id.
363
Id.
364
Interview with Jim Murray, supra note 328.
365
NAT’L APPEALS DIV., U.S. DEP’T OF AGRIC., ESSENTIAL ADMINISTRATIVE ADJUDICATION SKILLS FOR THE USDA
1 (2016) [hereinafter ADJUDICATION SKILLS].
366
MODEL CODE OF JUDICIAL CONDUCT r. 2.2 (AM. BAR. ASS’N 2010).
367
Id. r. 2.2 cmt. 4.
368
ADJUDICATION SKILLS, supra note 365, at 13.
369
ADJUDICATION SKILLS, supra note 365, at 17 (“Be aware of your use of legal jargon; avoid when possible . . . .
[E]xplain legal terms when their use is necessary.”).
370
File an Appeal, supra note 332 (see the link at the top of the form for the Spanish translation) (last visited July
29, 2016).
360

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appellants to use to contact NAD about their appeal.371 The website provides a link to NAD’s
Appeal Request Form, and provides instruction for both e-filing and paper filing.372 It also offers
an e-Guide Tutorial for download which provides basic information on NAD, instruction on how
and where to file an appeal, and provides multiple ways to contact NAD.373
Although NAD provides few resources specifically for self-represented parties,374 they
have published a pamphlet, entitled Face to Face Fairness, that is given to interested parties at
outreach events.375 The pamphlet describes the process of filing an appeal and instructs parties as
to where to find more information about NAD.376
Many of NAD’s materials are written in plain language. The Appeal Request Form meets
many common plain-language guidelines. For instance, it uses pronouns to speak directly to
readers, uses short and simple words, and avoids jargon.377 The website conforms to certain plain
language standards as well,378 and uses pronouns and simple vocabulary.379 However, the
website does not meet other plain language recommendations for web content, in that NAD’s
website does not display content in short paragraphs, or use an “inverted pyramid” style or
bulleted lists to display information.380 Other documents provided by NAD, including the eGuide Tutorial and the Face to Face Fairness pamphlet, conform to plain language standards.381
4. Recommendations for the Future
In many ways, NAD’s hearings are well-suited to self-represented parties. Hearings are
relatively simple procedurally, much of NAD’s material is written in plain language, and
Administrative Judges are directed to develop all potential issues in the case and provide other
guidance that assists self-represented parties. However, NAD could make several changes that
would provide additional assistance to self-represented parties. Specifically, NAD could ensure
that all existing resources for self-represented parties are available on its website and consider

Id. (scroll to the middle of the webpage, where it states: “If you have a question about the NAD Efile process,
send an email to nadinfo@usda.gov or contact Tracey LaBarge at (703) 305-1151,” directly before the Spanish
section of the webpage).
372
Id.
373
NAT’L APPEALS DIV., E-Guide Tutorial, USDA, http://www.nad.usda.gov/app_appeal.html (last modified Jan.
24, 2013) (go to the right-hand side of the box saying “I Want To . . .”; locate the link inside of that box stating “eGuide Tutorial (Word)”; click the link and the document will begin to download).
374
Email from Jim Murray, Deputy Dir., Nat’l Appeals Div., U.S. Dep’t of Agric., to Connie Vogelmann, Attorney
Advisor, Admin. Conference of the U.S. (June 23, 2016, 9:59 AM) (on file with recipient).
375
Id.
376
FACE TO FACE FAIRNESS, supra note 325.
377
See NAT’L APPEALS DIV., U.S. DEP’T OF AGRIC., APPEAL REQUEST FORM (n.d.),
http://www.nad.usda.gov/Forms/Appeal%20Request%20Form.pdf; see also PLAINLANGUAGE.GOV, FEDERAL PLAIN
LANGUAGE GUIDELINES 46
(2001).http://www.plainlanguage.gov/howto/guidelines/FederalPLGuidelines/FederalPLGuidelines.pdf.
378
See File an Appeal, supra note 332.
379
See File an Appeal, supra note 332; see also FEDERAL PLAIN LANGUAGE GUIDELINES, supra note 377, at 28.
380
FEDERAL PLAIN LANGUAGE GUIDELINES, supra note 377, at 90-94.
381
E-Guide Tutorial, supra note 373; FACE TO FACE FAIRNESS, supra note 325.
371

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creating additional resources to walk self-represented parties through NAD’s hearing process.
Additional details can be found in Appendix A.
IV.

Recommendations

As is described in the previous section, many administrative agencies have made
significant efforts to assist self-represented parties in administrative hearings. However, there is
room for improvement. Although each agency has individual statutory and regulatory
requirements to meet, there are a number of generalizations that can be drawn from the
experiences of the case study agencies. Furthermore, agencies could learn from the experiences
of the courts in dealing with self-represented parties; as explored in Part II of this report, the
courts have significant experience with self-represented parties, and can provide much insight in
how to accommodate them.
The following recommendations seek to highlight several best practices identified
throughout this report, and are drawn from both the court and administrative contexts. These
recommendations are not intended to be one-size-fits-all, and not every recommendation will be
appropriate for every administrative agency. These recommendations are intended to be modest,
and to the extent that these recommendations require additional expenditure of resources by
agencies they are likely to pay dividends in increased efficiency in the long term. The goal of
these recommendations is to improve both the ease with which cases involving self-represented
parties are processed and the consistency of the outcomes reached in those cases.
Recommendation 1: Agencies should consider investigating and implementing triage and
diagnostic tools to direct self-represented parties to the appropriate resources based on both the
complexity of their case and their individual level of need. These tools can be used by selfrepresented parties themselves for self-diagnosis, or can be used by agency staff to improve
consistency and accuracy of information provided.
In many cases, although a party may realize that he or she has a problem in need of
agency resolution, the party may not understand the steps needed to handle the claim. The party
may be overwhelmed and confused about the proceeding, be unfamiliar with important
terminology, and have a difficult time identifying and organizing the steps that are needed to file
the claim. Diagnostic and triage tools can be used to help break a party’s problem down into
manageable steps, and can be useful in deciding the type and level of assistance that is needed by
each party. Making these tools available on the “front end” prevents confusion and
misunderstanding on the part of the self-represented party, and consequently can save significant
agency time and resources over the course of the claim.
Triage and diagnostic tools may be quite simple and can be used directly by parties. For
instance, a natural language questionnaire on an agency’s website can help parties identify what
type of claim they have, as well as identify which forms and other resources will provide them
with assistance. As another example, checklists provided online or in person can guide a party
through the steps needed to successfully file a claim or an appeal.

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These tools can also reduce burdens on agency personnel. Questionnaires or checklists
can be used by agency staff at regional offices or call centers and serve as a simple method for
agency staff to provide standardized guidance. In particular, such standardized guidance can
reduce burdens on newer or less experienced staff members, ensuring that the information
provided to parties is correct and consistent across claims.
Recommendation 2: Agencies should strive to develop a continuum of services for selfrepresented parties, allowing parties to obtain assistance by different methods depending on
need. In particular, agencies should (1) strive to make relevant information available on their
websites, improve website functionality, and expand e-filing opportunities; (2) continue efforts to
make forms and other important materials accessible to self-represented parties by making them
available in plain language and in other languages as needed; and (3) provide a method for selfrepresented parties to communicate in “real-time” with agency staff.
Self-represented parties come to the agency process with differing experiences and
abilities, and with varying complexity of their underlying claim. To the extent that these factors
and others vary widely, so too will the extent of guidance needed by any given party. Some
parties need very little assistance and may be satisfied with information provided on a web-page
or in a pamphlet; others may need a small amount of guidance from a call-center or in-person
assistance; and still others may need extensive guidance in filing their claim.
In developing resources for self-represented parties, agencies should be cognizant of
these issues, identify the most common services requested and used by self-represented parties,
and seek to make those services available and improve them over time. Agencies should strive to
make resources available in different formats and geared toward different levels of need. In the
long run, both agencies and parties will benefit from the availability of a range of tools.
Providing only as much assistance as is needed by a party – and no more – is an efficient use of
resources for the agency, and saves time for the party as well.
In particular, agencies should strive to establish or improve several specific services for
self-represented parties:
First, agencies should ensure that they have a clear and easy-to-use website providing
guidance for self-represented parties. Information for self-represented parties should be clearly
linked on the agency’s home-page, especially for agencies that hold large numbers of hearings or
have a significant proportion of self-represented parties in their hearings. Agencies should
consider creating a “portal” for self-represented parties. The “portal” should contain all
information that is relevant for self-represented parties, and should contain only that information:
documents primarily written with a different target audience should be placed elsewhere on the
website to avoid confusion. Agencies should also strive to make e-filing available where
possible, allowing parties to fill out and submit forms online, reducing time burdens for parties
and paperwork burdens for agency personnel. Making information more readily available for
parties will reduce the number of questions received by agency personnel and reduce the length
of time needed by the party during each interaction.

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Second, agencies should ensure that forms and other documents are written in a way that
parties can easily understand, and agencies should make revisions to these documents on an
ongoing basis. This recommendation does not contemplate use of different forms for selfrepresented parties, but instead encourages form instructions and text to be written in a way that
self-represented parties can understand. Documents should be drafted, and periodically reviewed,
to ensure that they are of a length, reading level, and directness that can be understood by a selfrepresented party with a relatively low reading level or limited English proficiency. Similarly,
agencies should ensure that important materials are translated into common languages, and that
other translation services are available as necessary. Periodic review of “plain language”
documents is essential. Documents that may seem clear when they are drafted may in fact prove
to be confusing to self-represented parties and may need to be edited periodically to address
common questions or sources of confusion. In making these edits, agencies should be cognizant
of feedback from both self-represented parties and “front-line” employees. Agencies should
ensure they receive input from those unfamiliar with the agency’s procedures: documents that
make sense to people familiar with agency terms and phraseology may nonetheless be difficult to
interpret for outsiders.
Finally, agencies should strive to make “real-time” communication available to selfrepresented parties. For agencies with significant numbers of branch offices, this communication
could be in-person assistance; other agencies should consider making use of call-lines or chat
services. The form of the assistance is less important than the availability of some type of realtime communication; although one-directional services such as web resources or pamphlets are
necessary, real-time assistance is a key “second step” for self-represented parties to navigate
administrative proceedings. Many parties can handle their cases with just a little extra guidance,
but may be confused by a particular phrase or step, or may have a difficult time interpreting a
checklist or guidance document without assistance. Providing this assistance upfront can address
or clarify problems before they become compounded over time, providing significant time
savings throughout the hearing process. While it is acknowledged that real-time communication
can be expensive, agencies should consider making use of relatively low cost chat programs to
communicate with self-represented parties. Chat programs themselves can be fairly cheap to
establish, and an online chat system allows each agency staff member to field several inquiries
simultaneously, reducing the overall number of staff needed for such a program.
Recommendation 3: Agencies should provide training for adjudicators for dealing with selfrepresented parties, and provide explicit guidance for how judges should interact with selfrepresented parties in administrative hearings. Specifically, training should address how to deal
with self-represented parties in very common, or especially problematic, situations.
Adjudicators often struggle in dealing with self-represented parties and are often unclear
on what information and advice they can share. Walking the line between providing enough
assistance to give a self-represented party a fair hearing and maintaining both impartiality and
the appearance of impartiality can prove challenging, and adjudicators should be given specific
guidance in how to interact with self-represented parties. In particular, adjudicators may struggle
in situations where an unrepresented party faces a trained government advocate, as well as in
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cases involving a party who is intellectually disabled, or one who is especially emotional or
angry.
Each agency should work within its own statutory and regulatory framework to issue
clear guidance to its adjudicators about what types of advice and information they can, and
cannot, provide to self-represented parties during hearings. This includes what type of follow-up
questions judges may ask and how much guidance judges can provide to parties when telling
them how to continue their claim. Where feasible based upon an agency’s statutes and
regulations, agencies should encourage adjudicators to engage more actively with selfrepresented parties during administrative hearings – this concept has gained increased traction in
recent years, and seen success in both the court and agency contexts.
Such guidance will help improve consistency across hearings, and may provide
significant gains in efficiency and consistency of outcome. Additional engagement and
involvement by hearing officers may improve outcomes for self-represented parties by helping
them better manage and proceed with their claims. Furthermore, by providing self-represented
parties with a better understanding of what is expected of them during and after an administrative
hearing, the hearing process may progress more smoothly and with greater efficiency.
Recommendation 4: Agencies should seek to collect data on their services for self-represented
parties, and continually evaluate and revise these services based on feedback from both selfrepresented parties and from agency personnel. Agencies should use these data to review and
revise services for self-represented parties over time.
Currently, statistics and data collection vary significantly from one agency to another,
and not all agencies collect statistics about party representation. Agencies that do collect data
struggle with defining “self-representation” and may categorize parties who gain or lose
representation part-way through the hearing process differently.
Each agency should collect data on self-represented parties, and efforts should be made to
standardize data collection across agencies. In particular, agencies should work together to create
a standardized definition of a “self-represented party,” and collect data consistently using that
definition. In developing a standardized definition and coordinating with other agencies,
representatives should consider working in consultation with the Department of Justice’s Office
for Access to Justice. Agencies should consider collecting information on the number and
percentage of self-represented parties in their hearings, collecting information on the reasons
parties represent themselves, and evaluate outcomes for self-represented parties when compared
with represented parties. Agencies should also collect information on which of their services and
documents for self-represented parties are most frequently used, and identify common questions
or sources of confusion with these services. Agencies should use this information to modify, add
to, or remove resources for self-represented parties.
Gathering data is a crucial first step in creating a system that can be responsive to
feedback and continually improved over time. As the Administrative Conference has
recommended in the context of agency regulations, review of existing procedures is crucial to

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making improvement, and review can be best completed when a framework for assessing impact
is established upfront.
Recommendation 5: Agencies should strive to keep open lines of communication with other
agencies and with courts, recognizing that in spite of differences in hearing procedures, other
adjudicators have important and transferable insights in working with self-represented parties.
In doing so, agencies must be mindful of meeting the requirements of the Paperwork Reduction
Act.
Despite the fact that procedures for dealing with self-represented parties vary across
agencies and between administrative hearings and court procedures, agencies face many of the
same problems when dealing with self-represented parties. Agencies can gain significant insight
about self-represented parties by learning about the experiences of other agencies and courts, and
sharing their own experiences in return. Sharing information and insight across adjudication
systems can save agencies significant time and effort in developing resources to assist selfrepresented parties, and can help them avoid common problems and pitfalls. In this context as
well, agencies should coordinate their efforts with those of the Department of Justice’s Office for
Access to Justice in order to identify and promote best practices.
In communicating with other entities, agencies must be mindful of meeting the
requirements of the Paperwork Reduction Act.382 The Paperwork Reduction Act seeks to
minimize the burdens of federal agency information collection efforts on private parties, and
gives the Office of Management and Budget (OMB) authority to oversee agency information
collection when agencies seek to obtain information from parties outside the federal government.
In many cases, agencies looking to collect information from private parties must go through a
lengthy review process by OMB, though they can avoid PRA requirements by seeking
information from nine or fewer respondents.383 In communicating with outside entities, agencies
must ensure they either comply with OMB review requirements, or that the communications in
question fall outside the scope of the PRA.
Recommendation 6: In the long term, agencies should strive to re-evaluate hearing procedures
with an eye toward accommodating self-represented parties. Hearing procedures are often
designed to accommodate attorneys and other trained professionals, and agencies should
evaluate the feasibility of navigating their system as an outsider, and make changes – as allowed
by their statutes and regulations – to simplify their process accordingly. Although creation of
simplified procedures would benefit all parties, they would be expected to provide particular
assistance to self-represented parties.
It is acknowledged that this recommendation asks agencies to undertake significant effort
in evaluating and analyzing their current procedures, as well as make changes that would cause

382

44 U.S.C. § 3501–21 (2012).
See STUART SHAPIRO, THE PAPERWORK REDUCTION ACT: RESEARCH ON CURRENT PRACTICES AND
RECOMMENDATIONS FOR REFORM—REPORT TO THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (2012),
https://www.acus.gov/sites/default/files/documents/Draft-PRA-Report-2-15-12.pdf.
383

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significant short-term costs. However, in many cases, systemic changes may provide significant
cost savings in the long run and significantly improve outcomes for self-represented parties.
Many administrative systems, including pro-claimant systems implemented by federal
agencies, were largely inspired by adjudication systems that can be navigated only by trained
attorneys and other professionals. Systems that may seem straightforward to understand and
navigate by experienced agency representatives – who have become accustomed to their
agency’s procedures – may prove extremely challenging for the uninitiated to interpret.
Furthermore, agencies should keep in mind the limitations under which many self-represented
parties are operating: many self-represented parties have mental or physical disabilities, limited
English proficiency, and/or limited literacy. Furthermore, even the most well-educated and
capable self-represented party may be under significant emotional strain throughout the hearing
process, decreasing how much that individual can realistically be expected to understand or act
upon.
The importance of creating an extremely simple system was emphasized repeatedly
throughout the research for this report. Although cases may be factually or emotionally
complicated for the party, only a small number are legally complicated, and most cases could be
handled through extremely simplified procedures. Agencies should take note of courts’ efforts to
implement simplified procedures in certain circumstances, and consider adopting an “opt-in” or
“opt-out” system, in which most parties, both represented and unrepresented, would proceed
with their case through a more simplified, informal procedure. Parties with particularly
complicated cases, or with the financial resources for attorney representation, could choose to
have their case heard through the more formal procedures. In designing simplified procedures,
agencies should look to common practices in settlement proceedings or Alternative Dispute
Resolution, including negotiation and dispute resolution techniques and, to the extent
administrative procedures are adversarial, consider de-emphasizing the adversarial nature of
hearings. Although creating simplified procedures would have high upfront costs, once
established they would be likely to save the agency significant amounts of time and resources on
a per hearing basis, as well as eliminate much of the cost associated with the delay and confusion
that self-represented parties often experience.

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Appendix A: Recommendations to Case Study Agencies
This appendix contains recommendations specifically tailored toward each case study
agency discussed in Section III of this report. These recommendations are distinct from the
broader recommendations highlighted the “Recommendations” section above, and are intended
primarily for consideration by each agency on an individual basis. These recommendations have
been sent to each agency for consideration, and are included here in case they may prove useful
to other agencies by providing examples of specific changes agencies could make to provide
assistance to self-represented parties.
These recommendations are mild in nature, and are intended to impose minimal burdens
on the agency while at the same time providing significant benefit to self-represented parties.
Although many of these recommendations may impose upfront costs on the agencies, they may
nevertheless save the agencies time and money in the long term by creating a more efficient
process and reducing confusion among the parties that seek agency assistance.
A. Board of Veterans’ Appeals
BVA should continue its current efforts to make veterans’ case information easily
accessible, both by phone and on BVA’s website. Making information on case status easier for
veterans to access will aid all claimants, but provide particular assistance to self-represented
parties by allowing them to more easily track and manage their case. While developing such a
system comes with significant upfront costs, making such information readily available –
particularly through the website – may come with significant downstream savings. Such a system
would allow parties to obtain case information with less burden to the agency on a per-case
basis, and may help reduce confusion among parties that could lead to significant system-wide
inefficiencies.
BVA should also work to publish additional printed material specifically tailored toward
assisting self-represented parties. BVA should work with VSOs in creating these materials, and
may want to request that these organizations draft the documents.384 Such materials should be
made readily available on BVA’s website.
BVA may also want to consider a number of revisions to its website. Although the
website currently contains information that is useful for self-representation, the information may
be difficult to find. First, on BVA’s website there are a number links to documents pertinent to
self-representation that are inactive or broken.385 BVA should periodically review its outward
facing website and correct or remove such links. Second, many of the documents that would aid
self-represented parties are hard to find, and navigating the website could be made more
intuitive. Important documents on BVA’s homepage (including “Your Right to Appeal our
384

VSOs view it as their duty to interpret and translate BVA procedures for claimants. Interview with James
Ridgway, supra note 205.
385
The link at the bottom of the main BVA website that should link to Form 4107 begins with “vaww” instead of
“www” and is therefore ineffective. Also, the link for “Appeals” under the “For Veterans” menu’s “Claims” tab on
the BVA main website is inactive.

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Decision,” and “Veterans Appeals Process Briefing”) require scrolling to find, and are located
beneath a long description of BVA filled with statutory citations and acronyms. Furthermore,
resources for self-represented parties are spread across several different portions of the site – for
instance, relevant documents for self-representation can be found under both the “For Veterans”
tab on the left-hand side of the page and the “Resources” tab on the right hand side. Not all
documents that are important for self-represented parties can be found in both places, which may
lead to self-represented parties failing to find important documents. Different documents in the
“Resources” tab are intended for different audiences (e.g. “Frequently Asked Questions” versus
“Chairman’s Annual Reports to Congress”), but the target audience is not specified and could
lead claimants astray. BVA should also consider renaming some relevant links to be more
intuitive for veterans to find. For instance, the “How Do I Appeal” Booklet provides an excellent
guide for veterans, but is buried under a link entitled “Pamphlets: Appeals Process.” Resources
that are likely to be particularly useful should be made as obvious as possible, and titled in such a
way that veterans know instantly what resources they provide.
To deal with these issues, BVA might want to create an online “portal” for selfrepresented parties or for veterans interested in learning more about the appeals process. Such a
portal should contain only documents intended for self-represented parties written in plain
language; documents with a different target audience should be located elsewhere, so as not to be
confusing for parties. Such a portal should also aim to compile all documents and resources that
might be useful into one place – for instance, the portal should link to other VA-sponsored
websites and blogs that might be useful for self-represented parties, like VA’s Vantage Point
blog.386
B. Executive Office for Immigration Review
EOIR should consider creating an organized “portal” for self-represented parties, linked
prominently on EOIR’s homepage and available in English and Spanish. Although EOIR has a
“Self-Help Materials” page, the page cannot currently be easily accessed from EOIR’s homepage. Furthermore, the web-page as currently structured is not optimized for self-represented
parties. The “Self-Help Materials” page has a list of materials along the right-hand side of the
page, including the “Action Center,” “OCIJ Practice Manual,” “BIA Practice Manual,”
“Immigration Judge Benchbook,” and “Virtual Law Library.” Although some of these resources
are designed for self-represented parties (including the links provided in the “Action Center”),
other resources are not. For instance, the Immigration Judge Benchbook states that it is a “tool
for immigration judges,”387 and contains scripts and template opinions for judges to use.388 EOIR

See generally Vantage Point, U.S. DEP’T OF VETERAN AFFAIRS, www.blogs.va.gov/VAntage/ (last visited Aug.
18, 2016).
387
Exec. Office for Immigration Rev., Immigration Judge Benchbook, U.S. DEP’T OF JUSTICE,
https://www.justice.gov/eoir/immigration-judge-benchbook (last updated Mar. 3 2016).
388
Id.
386

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should make sure that resources designed primarily for representatives and immigration judges
are placed elsewhere on the website, so as to avoid causing confusion.
In addition, EOIR should consider revising its online forms. Although online forms can
be a useful resource for self-represented parties, as currently presented EOIR’s forms may prove
challenging for self-represented parties to use. Parties may struggle to identify the appropriate
forms, as forms are currently organized based on EOIR form number instead of by purpose or
stage of the proceeding,389 and many of the available forms are designed for use by attorneys or
outside organizations (e.g. Form EOIR-56, “Request to be Included on the List of Pro Bono
Legal Service Providers for Individuals in Immigration Proceedings”). Furthermore, once
identified, the forms themselves may be difficult for self-represented parties to understand:
although they were written with plain language principles in mind, forms provide a high density
of information, and important information contains legal jargon, statutory and regulatory
citations, acronyms, and other features that may prove problematic for self-represented parties.390
EOIR should also make it easier for self-represented parties to contact someone at the
agency to request straightforward legal information about forms or information about other basic
steps in filing a claim. Currently, although there is a “Contact Us” box linked on EOIR’s SelfHelp Materials page, it is not clear where respondents should go with basic questions. The first
number in the “Contact” box is for the “Office of Communications and Legislative Affairs;” this
number provides a centralized contact number for parties to reach a live person at EOIR who can
then provide information or direct the caller as appropriate. However, the title is misleading, and
EOIR should consider re-naming this number to make it more likely that self-represented parties
will recognize and use this resource. EOIR should also consider making it possible for
respondents to contact the agency via computer or mobile technology – this could be as simple as
providing a contact email address or as complex as implementing a chat program to answer
questions.
EOIR should also consider publishing a short but complete guide for self-represented
parties. Information for self-represented parties is currently scattered across documents, and a
significant amount of information is not in plain language. As a policy matter, EOIR does not
draft guidance documents for respondents; however, EOIR does work with a number of thirdparty organizations to draft and publish such documents.391 EOIR should work with these third
party organizations to publish a comprehensive, plain-language guide for self-represented parties
that has the approval of the agency. Such a guide could inform self-represented parties about
389

List of Downloadable Forms, supra note 259.
See, e.g., BD. OF IMMIGRATION APPEALS, U.S. DEP’T OF JUSTICE, FORM EOIR-26: NOTICE OF APPEAL FROM A
DECISION OF AN IMMIGRATION JUDGE 3 (2015),
https://www.justice.gov/sites/default/files/pages/attachments/2015/07/24/eoir26.pdf. This page presents important
explanatory material, but information is presented at a density and reading level that is likely to prove challenging
for self-represented parties. In particular, the “Summary Dismissal of Appeal” box may be confusing for selfrepresented parties.
391
Interview with Bernardo Rodriguez, supra note 216.
390

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court procedure, remedies, and rights afforded to them. With any such document, EOIR should
remain mindful of the plain language and translation requirements of self-represented parties in
immigration hearings.
EOIR may also want to consider making two changes to its hearings. First, EOIR may
want to clarify or alter the guidance it gives to immigration judges concerning self-represented
parties. Immigration judges have received guidance instructing them to make special
accommodations for unaccompanied alien children in immigration hearings,392 and EOIR may
want to consider making similar accommodations for self-represented parties. There is precedent
for such accommodation: hearing officers in other administrative agencies have been directed –
through Congressional direction (SSA),393 agency regulation (SSA, BVA)394 or informal agency
guidance (NAD)395 – to actively develop the record in agency hearings, and the ABA has
adopted guidance telling judges that accommodations for self-represented parties in the court
context are appropriate.396
Second, EOIR may want to revisit the issue of holding pre-hearing conferences. Prehearing conferences could be used to clarify issues that will be discussed at the hearing, ensure
appropriate language and translation resources are available, and ensure the self-represented
party knows what information he or she should provide and which burdens of proof will be
placed on him or her. EOIR tried pre-hearing pilots in the past, but based on the agency’s
experience with the pilots, determined that a broader pre-hearing conference program was not
practical under existing circumstances.397 To the extent those circumstances change over time,
EOIR may want to revisit pre-hearing conferences, particularly in the context of self-represented
parties, given the recent successes of other agencies in implementing pre-hearing conferences.398
In doing so, EOIR may want to consider consulting with other agencies to learn more about
existing successful practices in holding pre-hearing conferences. Although pre-hearing
conferences have relatively high upfront costs, evidence from other agencies indicates that they
may be an efficient and effective tool for providing assistance to self-represented parties. EOIR
may want to consider establishing a pilot program to see whether downstream gains in efficiency
would make such a program cost-effective.

392

Memorandum from David Neal, supra note 223.
42 U.S.C. § 423(d)(5)(B) (2012).
394
30 C.F.R. § 20.700 (2016); 20 C.F.R. § 404.1512(d) (2016).
395
NAT’L APPEALS DIV., U.S. DEP’T OF AGRIC., THE NATIONAL APPEALS DIVISION GUIDE 40 (2008).
396
MODEL CODE OF JUDICIAL CONDUCT r. 2.2 cmt. 4 (AM. BAR ASS’N 2010).
397
Interview with Bernardo Rodriguez, supra note 216.
398
BVA has had significant success in offering pre-hearing conferences for claimants in its hearings and SSA has
implemented a pilot program at several of its hearing offices. Interview with Steve Reiss, supra note 161. While
SSA’s pilot program is too new for analysis, early reports indicate success and the program is being expanded.
Interview with Representatives from Social Security Administration (July 18, 2016).
393

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C. Social Security Administration
SSA should take steps to organize its resources for self-represented claimants into one
location, and make that information as easy to access as possible. Information is currently
scattered across documents, and existing resources available on SSA’s website might prove
confusing for claimants who find them. For instance, claimants could be confused upon finding
the HALLEX and POMS;399 these documents are available on SSA’s website, and provide
detailed and lengthy guidance for SSA staff in SSA’s appeals process. SSA currently has no
single guide that explains every step of the appeals process – including how to file the appeal,
which forms are required for each level of appeal, and when the appeal must be filed – that is
written with a lay audience in mind. Significant information is currently included in six
brochures that explain the appeals process, but the brochures contain overlapping information
and are not clearly distinct from each other.400 One comprehensive guide, or a smaller number of
documents that are more clearly distinct from each other, would provide significant clarity to
self-represented claimants. As the documents currently stand, claimants may be unsure which
document is most applicable to their unique circumstances, and may rely on one relevant
document only to miss important information contained a different one. A guide such as this
should be located in a place that is easy for claimants to find.
Second, SSA could take steps to organize and identify forms for easier access by selfrepresented parties. SSA provides a list of 137 forms on its website, but the forms are not
organized in a way a lay audience can interpret.401 Nothing on the website indicates which forms
to file for a particular benefit, or in which order they must be filed.402 The forms also do a
relatively poor job of explaining the process themselves: although they follow some plain
language requirements,403 they also contain verbatim information from laws like the Privacy Act
and the Paperwork Reduction Act.404 Extensive statutory quotes and other material that does not
conform to plain language requirements is not likely to benefit self-represented parties, and may
even be confusing to them, as they try to sort through language that is unfamiliar to them. SSA
might want to consider using “decision tree” software utilizing plain language questions and
answer choices to guide claimants toward the correct forms.
Finally, SSA should consider creating a “portal” for claimants to manage their appeals.
Such a portal should contain only information written for self-represented parties and other
claimants, and allow claimants to access and manage their appeals online. The portal could be
modeled after the existing my Social Security portal, which allows individuals to manage their
HALLEX stands for the “Hearings, Appeals, and Litigation Law” manual, and POMS stands for the “Program
Operations Manual System.”
400
See supra note 303.
401
See Forms, supra note 314.
402
Id.
403
SOC. SEC. ADMIN., FORM SSA-3441-BK, DISABILITY REPORT – APPEAL (2015), https://www.ssa.gov/forms/ssa3441.pdf.
404
See id.; OFFICE OF DISABILITY ADJUDICATION, SOC. SEC. ADMIN., FORM HA-501-U5, REQUEST FOR HEARING BY
ADMINISTRATIVE LAW JUDGE 2 (2015) available at https://www.ssa.gov/forms/ha-501.pdf.
399

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existing benefits,405 and could either allow claimants to view status information on their appeals,
or allow greater functionality, such as access to records. It would also be valuable for SSA to
integrate these two portals – many claimants filing appeals will already be familiar with my
Social Security, and much of their information is likely to already be in the online system.
Creating a link between these two systems would create significant efficiencies for claimants,
and subsequently for the agency.
D. United States Department of Agriculture National Appeals Division
NAD should ensure that all existing resources for self-represented parties be made
available on its website. For instance, parties may benefit from being able to access NAD’s Face
to Face Fairness pamphlet, which cannot currently be found online. NAD should also evaluate
whether some of its resources with different target audiences might be useful for self-represented
parties, and, if so, make them available on the website. For instance, the National Appeals
Division Pre-Hearing Guide is not directed toward self-represented parties, but is easy to read
and contains information that may nonetheless be useful for them.406
NAD should also evaluate whether it could generate or make available additional
resources to benefit self-represented parties. For instance, NAD should consider drafting and
posting example briefs online for self-represented parties: especially since there is no required
format for briefs, self-represented parties may benefit from this additional guidance. NAD should
also consider drafting and posting subpoena guidance online: parties in NAD hearings are
allowed to subpoena witnesses for testimony and evidence, but may have no experience with the
process.
Finally, NAD should consider publishing a guide written specifically for self-represented
parties. Although many of NAD’s documents are helpful to self-represented parties, there is no
comprehensive resource to guide them through the appeals process. Self-represented parties
would benefit from having a single document – available on NAD’s “File an Appeal” webpage –
that would guide them through the appeals process in a step-by-step fashion. Although much of
this information is currently provided during the Pre-Hearing conferences, such a guide could
reduce the burden placed on Administrative Judges to explain the process, and a written guide
would serve as a useful reference for appellants throughout the appeals process.

405
406

My Social Security, SOC. SEC. ADMIN., https://www.ssa.gov/myaccount (last visited Aug. 1, 2016).
See generally THE NATIONAL APPEALS DIVISION PRE-HEARING GUIDE, supra note 361.

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