More than one out of every five cases filed in Montana District Courts involves family law – divorces, child custody and other matters. More than 60 percent of those cases involve one or more litigants acting without lawyers.
Family law cases can be very emotional and time consuming, especially when litigants are representing themselves. When the judge has to take time to instruct parties who don’t know what to file or how to proceed, the entire justice system slows down. Other cases wait. And when people go to court without competent representation, they risk losing legal claims because they don’t know the law.
Most lawyerless litigants cannot afford to retain counsel. But in some Montana communities there simply aren’t enough family law attorneys to handle all the cases.
The CourtHelp Program was established several years ago to lessen the burden on pro se litigants and on the court system.
The 2013 Legislature continued the CourtHelp Program, funding part-time staff at Self-Help Law Centers in Billings, Bozeman, Missoula and Kalispell. These centers rely on six VISTA workers, other volunteers and interns for most of their staff hours. The Montana Supreme Court’s CourtHelp Program also includes one statewide pro bono coordinator, Patty Fain of Billings.
Fain works statewide on recruiting attorneys, coordinating training and mentoring and supporting volunteer attorneys who provide free legal services to those in greatest need with the least financial resources.
“The greatest need for volunteer services is in the family law arena,” Fain said.
The Self Help Law Centers can provide forms, phone numbers and information about court processes, but they cannot give legal advice.
The Self Help Law Centers are a small part of the answer for pro se litigants, said Gary Connelley, a Billings attorney who was among the advocates for starting the centers.
“Giving somebody a fistful of forms is not access to the courts, it’s access to forms,” said Connelley, the full-time pro bono attorney at Crowley Fleck.
Connelley, Fain, local District Court judges and other attorneys are striving for a more comprehensive way to address the wave of unrepresented litigants. For example, the Yellowstone Area Bar Association’s Family Law Project is conducting a one-year pilot where local attorneys volunteer for brief consultations with litigants before their court hearing.
“Most family law matters settle when attorneys are involved,” Connelley said. “But when nobody’s available to push for mediation, it doesn’t happen. In pro se, they go to trial. The judge might order mediation, but they don’t have access to mediation.”
Limited task representation
A recent change in Montana Supreme Court rules allowing “limited task representation” has increased the willingness of some attorneys to do pro bono work because they can limit their time, rather than committing to long-term representation.
Total funding for the CourtHelp program statewide is $325,000 a year, slightly below what the Judicial Branch requested. But importantly, lawmakers continued the program.
They also called for an interim study of options for improving the process of family law cases.
Senate Joint Resolution 22 notes that Montana District Courts received a record high 50,000 new cases in 2012. The increased caseload, with so many being family law cases and most of those involving pro se litigants has the “effect of overwhelming the bench and depriving litigants of the prompt, careful consideration they deserve,” SJ22 says.
The resolution also notes that “the win-lose adversarial court system often escalates family conflict instead of working to find solutions.”
Alternate dispute resolution
The resolution, sponsored by Sen. Larry Jent, a Bozeman attorney, calls for a study of “alternate dispute resolution methods” used in other states.
The study has been assigned to the Law and Justice Interim Committee. The 12 committee members include Billings Reps. Sarah Laszloffy, Dennis Lenz, Margie MacDonald and Sen. Robyn Driscoll.
The explosion of self-represented litigants is a growing problem deserving of the committee’s attention. If changes in law will increase access to the courts and justice for all, the 2015 Legislature should enact changes.