A Fool For A Client? | Already in difficult situations, more litigants decide to go it alone
The so-called Great Recession has brought job loss and the utter meltdown of the cornerstone of the American dream, home ownership. Now, add to that the weight of a divorce, or a child custody battle, or the death of a loved one.
Any of those situations will find citizens in probate court. About 300 people approach the service counter at Worcester County probate court every day, and over the past few years, the number of people who decide to represent themselves in probate court has been on the increase.
“There is a sea of humanity here,” Worcester Register of Probate Stephen Abraham said.
People Problems
Today, the court estimates that 20 percent of probate litigants are pro se, or representing themselves without counsel. The court runs six sessions simultaneously every day.
And while conducting that business without lawyers may sound like a simple and inexpensive way to operate, it’s not. And it’s not even necessarily a good thing.
“It really taxes the legal system,” said Patricia Davidson, a probate attorney with Worcester law firm Mirick O’Connell.
“In probate court, we see people in troubling situations to begin with. These are very personal things, and if folks don’t have the resources, that puts a strain on trying to shepherd folks through an overstretched court system,” Davidson said.
Compounding those difficulties is the fact that the probate court is under a 2-year-old hiring freeze and is short staffed by about 30 percent.
To its customers, though, that doesn’t matter.
“You don’t care what the problems are on this side of the counter,” Abraham said. “If you need help, you need help.”
In other courts, litigants are “practically required” to have a lawyer, Abraham explained.
But probate matters are somewhat similar to small claims matters.
They’re personal, and oftentimes, parties feel they are best qualified to undertake their own case, even if the legal realities of the case are more nuanced, or worse yet, ambiguous.
Abraham also noted that many probate and family court litigants “have had a bad experience” with a lawyer somewhere along the way.
“When I started to practice in 1982, hardly anybody represented himself,” said Abraham. “Now, it’s unusual for two lawyers to be present” in court on any given probate case.
Abraham recently suggested the creation of a separate pro se court within the probate and family court.
The pro se court would function much like small claims court, familiar to anyone who has actually been there or who has watched “The People’s Court” or “Judge Judy.”
He says his suggestion didn’t go over very well because it would require some pretty substantial changes to probate court rules, a time-consuming and potentially expensive endeavor in itself.
But he still believes it’s the right thing to do.
“Society has changed, we have to change, too,” he said.
Even if a probate court litigant doesn’t have grindingly difficult personal matters to attend, he or she can take a look around and wonder why they should pay a lawyer $250 per hour to sit around for most of the day only to make an argument that takes three minutes.
Last year, the state launched a pilot program called Limited Assistance Representation, in which lawyers work on a limited basis for pro se clients.
Through the program, a lawyer can give legal advice, file paperwork and undertake other basic functions of client representation in the probate system.
“The lawyer-for-a-day volunteers can be helpful, they can be very beneficial, but it’s not perfect,” said Davidson.
What’s missing is familiarity. In a matter that involves the estate of a recently deceased relative, for example, a longstanding attorney-client relationship would be most beneficial.
The same could be said for other aspects of the probate system.
Family matters are probably best handled by someone with a professional relationship with said family.
In the end, a pro se litigant has to do for him or herself. And at times, it can be difficult for lawyers and judges to remain neutral and to resist the temptation to give legal advice.
“It can get pretty nasty, and you can see the judges struggle to mete out justice,” Davidson said.
Abraham sees that every day.
“This court has a tremendous walk-in clientele, “ he said. “Many don’t have lawyers, and they want to discuss the issues. Limited assistance is good. It’s better than not having a lawyer. A lawyer is better for the process. A lawyer is better for the judges and it’s better for the litigants. When you’re dealing with probate issues, it’s hard to be objective. It’s virtually impossible. It’s challenging for lawyers, never mind pro se litigants.”n
WBJ Web Partners
Most Recent
Most Recent
0 Comments