Monday, September 13, 2010

Standing alone

In a tough economy, more people serve as their own legal counsel

With her pin-striped slacks and courtroom decorum, Kelly Seeley might have been mistaken for the attorney she lacked during her recent divorce trial.

But the part-time Eugene property manager knows she was no match for the experienced lawyer representing her now ex-husband during the five-hour trial last month.

“It was terrifying,” she said of appearing “pro se” — a Latin term meaning “for oneself.” “There’s so much paper involved. I spent countless hours sorting through it, organizing it. You do what you can and hope that you have all the information you need.”

Seeley thinks she may have fared better if she, too, had been able to afford professional representation.

As it was, Lane County Circuit Judge Ted Carp awarded the former couple joint custody of their children but made Seeley’s ex-husband the primary parent, saying he could offer more stability due to his established, home-based business. The role gives him slightly more parenting time and final say-so on issues such as medical decisions.

Carp also awarded him the family’s residence until their last child leaves home, when he must sell or refinance to pay Seeley her share. The judge ordered him to pay Seeley’s medical bills but awarded her far less spousal support than she hoped to receive.

Seeley is among an increasing number of Lane County residents forced by financial woes to represent themselves in court. Amid a three-year national recession, local judges say they are seeing more and more pro se parties in contested divorce and custody cases.

Their evidence is anecdotal: Oregon does not track such representation — nor do most states, according to the National Center for State Courts. But in a 2009 national survey by the Self-Represented Litigation Network, 60 percent of judges reported seeing more pro se litigants since the economy tanked. And on several recent mornings, the Lane County Circuit Court trial docket has been dominated by domestic cases labeled “both parties pro se.”

It’s a trend that worries the judges — though not for reasons you might expect.

The problem is not one of angry couples shrieking at each other, unbuffered by attorneys, the judges said. Indeed, during her proceeding, Seeley praised her ex-husband as “a good father.”

“It’s not about acrimony,” said Lane County Circuit Judge Karsten Rasmussen, even though it’s true that good lawyers can help remove some of the emotion from the process. “They’ll tell their clients, ‘I know you’re angry because he left you or she left you, but who left who doesn’t matter in court.’ ”

The big problem, says Rasmussen and other judges, is pro se parties’ failure to understand and address in writing often-complex details about assets and debts, pensions and parenting.

“Maybe they’re not disputing these things at the time of the judgment, but that can change,” Rasmussen said. “The paperwork does matter.”

Housing market hurts

Even before the recession, judges statewide were concerned about justice for people representing themselves in court. A 2007 report by a state Judicial Department family law committee found that more than two-thirds of the state’s domestic cases involved at least one pro se party.

The report urged simpler procedures, language and filing forms that are the same statewide. It proposed training judges and court staff to better work with pro se parties. And it urged family lawyers to donate more time representing low-income parties — and to “unbundle” divorce services so people can hire attorneys for only part of their cases.

Seeley actually did that after filing for divorce in February. She said her 14-year marriage was strained to the breaking point as she underwent breast cancer surgery and treatment the previous year. Her cancer also left the self-employed couple reeling financially, she said. With no health insurance, they faced $12,000 in medical bills even as she had no income due to her illness.

But Seeley used the Oregon State Bar’s Modest Means referral service to find a local lawyer willing to discount her fees.

“My first session was only $35,” she recalled. Even with a discount, however, Seeley hasn’t yet paid off the lawyer’s $3,000 bill for pretrial work on the case. When the attorney asked for a $6,500 retainer to handle the trial, Seeley decided to go it alone.

She had little choice. The depressed housing market doomed Seeley’s efforts to resume her real estate career. She was so strapped that she continued living in the same house as her estranged husband as they awaited trial and a decision about custody of their children and the home. Such arrangements have become more common, said Lane County Circuit Judge Charles Zennaché, a former family law attorney.

“It creates a lot of tension,” he said.

The collapsed housing market has also curtailed a time-honored way of paying legal costs, Zennaché said.

“In the past, more people could hire lawyers with the understanding that fees would be paid out of equity in the parties’ home when it is sold,” he said.

Now, there are no guarantees there will be any equity — or if the house will sell.

Free help available

Seeley went to court unaware of another resource: Lane County’s Family Court Assistance Program. Each morning, the program helps people on a drop-in basis, giving them basic forms and resources to get their cases started, coordinator Colleen Carter-Cox said.

Afternoons, clients with appointments can get such services as having documents reviewed to ensure they’re ready for filing. The program also offers trial preparation classes.

It has no income criteria, Carter-Cox said, but the troubled economy is definitely driving more people to seek help representing themselves.

“A huge percentage of the people we see have no assets,” she said. “People have a lot of debt and talk mostly about the stress of the economy when it comes to child support. There also seems to be increased conflict because of unemployment.”

Donna Austin, program coordinator for the Lane County Family Mediation Program, said her agency is also seeing more clients unable to afford lawyers. Splitting couples who can’t agree on custody and parenting time must attempt to mediate their differences before going to trial in Lane County. General demand for mediation services also has risen, she said, though it’s not clear if that’s due to the increase in pro se parties.

It’s not because of a big spike in divorce filings, however. Such cases have not increased significantly since the current recession began in late 2007. In fact, there are far fewer such cases now than a decade ago — 1,605 in 2009 vs. 1,949 in 1999.

Erika Hente, director of Legal Aid Services of Oregon in Lane County, said she is not surprised by the flat numbers.

“A divorce is already a financially devastating transaction to go through,” she said. “In tough economic times, people realize they might have to wait awhile — even though the marriage is not getting any better.”

Her agency represents low-income clients in domestic cases, but budget limitations allow it to serve only 20 percent of qualified applicants statewide, she said. The local office does offer family law classes that are open to anyone, regardless of income.

“One class is on filing your initial divorce, one is on filing initially as an unmarried parent seeking custody, and a third class is on finishing up the process,” she said.

Divorce more complex

But Hente said Legal Aid always urges clients to try to find funds to hire an attorney for highly technical matters, such as retirement accounts.

Brad Litchfield, president of the Lane County Bar Association’s Family Law section, said the troubled housing market and tightened credit are making divorce more complex even when both parties are represented by lawyers.

“There’s a much greater long-term entanglement relating to paying off debts, especially if they are upside down on their house,” he said.

Litchfield said he can understand, in such times, why people aren’t hiring attorneys.

“A divorce case from start to finish can be very costly, especially when there are custody disputes and you need to pay for expert testimony,” he said.

But not having representation also can be expensive, he said. He noted that he’s seen people agree to more child support than they can afford, or fail to properly value a family business.

He added that he’s seen too many prospective clients fail to take advantage of the Recession Response Program that Attorney General John Kroger created last May within the state’s child support program. It allows parents with “employment-related” drops in income to apply for a swift, temporary reduction of their child support obligations.

Attorneys can shorten the divorce process, Litchfield said, because parties enter court with some issues resolved and others identified for the judge.

“We will say, ‘These are the issues to help you understand which parent should have custody,’ ” he said.

Zennaché agreed that judges have far more to do in pro se cases. And there’s disagreement on the bench over judges’ proper role in helping self-represented parties. He normally starts with the basics in such cases, he said, reviewing relevant portions of the law.

“Sometimes I read the statutes out loud, so I know they’ve at least heard it,” he said.

“With custody, my job is to do what’s in the children’s best interest,” he said, so he sometimes has a child come in to help him make that determination.

“I never ask, ‘Who do you want to live with?’ ” the judge said. “I emphasize that this is my choice, not theirs. But I’ll ask questions such as, ‘What’s a typical Saturday like at your mom’s house and at your dad’s house? What happens when you break the rules there?’ ”

But the most challenging cases for judges, he said, are those like Seeley’s, where one party has a lawyer and one does not.

Litchfield agreed.

“Lane County’s got a tremendous group of family law lawyers who, for the most part, will be fair and straightforward to the party that’s not represented. But they still need to be zealous advocates for their client; they can’t or shouldn’t be giving breaks to the other side.”


Lane County Family Court Assistance Program: Drop-in assistance from 8:30 to 11:30 a.m. weekdays in the Lane County Courthouse basement. Document review and court appearance preparation by appointment. 541-682-4302.

Oregon Child Support Division Recession Response Program: Expedited temporary support payment reductions for those who have lost a job or work hours. or 1-800-850-0228.

Oregon State Bar Modest Means Program: Matches qualified applicants with lawyers offering reduced rates. or 1-800-452-7636.

Lane County Legal Aid and Advocacy Center: Free legal services for some clients meeting low-income guidelines; classes for general community. or 541-485-1017.

Lane County Family Mediation Program: Free child custody and parenting plan mediation services for parents with open court cases. 541-682-3962.

By Karen McCowan


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