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The Crushing Reality of Why We Need Plain Language Pro Se Court Forms

By Elizabeth Govig

 

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When asked how to address the ever-growing access to civil justice crisis, most of you, Oklahoma’s lawyers, will say something to the effect of “more lawyers,” “more legal aid” or “more pro bono.” To be clear, I am a proponent of those solutions too –
more engaged, active lawyers and lawyering is critical to the success of the profession. However, lawyers alone cannot solve the crushing problems facing our civil justice system.

Every year, Americans face 232.4 million civil legal problems.1 A civil legal problem emerges “at the intersection of civil law and everyday adversity” and routinely affects the most intimate aspects of a person’s life: their family, home, employment, finances, safety and health.2 Of these 232.4 million legal problems, roughly 80 percent (approximately 185.9 million problems) of them go unaddressed.3

The nation’s leading expert on civil access to justice is Dr. Rebecca Sandefur, an empiricist and MacArthur “Genius Grant” Fellow and native Oklahoman.4 Dr. Sandefur’s research surfaces an astounding reality – while there is the perception that lawyers are too expensive, that is not the reason why people do not seek out legal help.5 Instead, people do not seek legal advice because they do not identify their problems as being legal.6 People describe these situations (e.g., being evicted, losing their job, being denied benefits) as “bad luck/part of life” or as “part of God’s plan,” not as a legal problem with potential remedies through the justice system or a lawyer.7 Instead, people turn to community networks and various forms of self-help rather than seeking legal representation or using the courts.8

In a perfect world, a lawyer would treat and address every single one of these unaddressed or self-helped legal problems. However, the reality is there are too many problems, not enough lawyers and some of these problems do not need full representation. In some situations, limited scope representation is the answer, but for those with extremely limited resources, we have to provide a way for them to help themselves.

In response, states all across the country have turned to plain language pro se court forms as part of the solution.9 There are several widely recognized and accepted best practices for the creation of pro se court forms (e.g., plain language, use of white space, checklists, easy access), but they all build on one core principle: the average person must be able to read them.

At a basic level, literacy is the ability to read, process and understand the written word.10 Functional literacy is the ability to read, understand and operationalize that information.11 A person is computer literate if they are both literate and functionally literate, plus able to use a computer.12

Looking at national adult literacy studies, we know that 50 percent of the population cannot read a book that is on an 8th-grade level; 34 percent of the population is considered marginally literate (5th through 8th-grade level); and 20 percent of the population is considered functionally illiterate (below a 4th-grade level). 13 Therefore, if we want to be able to communicate effectively with the entire community, we need to tailor our writing at a 5th-grade level.

Being computer literate is something individuals like you and I take for granted. The data show that for roughly 43 percent of the population, the most complicated computer task they can complete is drafting and sending an email on a familiar platform.14 Another 26 percent cannot even turn on a computer.15 This means for roughly 70 percent of the population, online forms and tutorials are not the answer. We must maintain a current set of paper court forms. In fact, all across the country paper court forms, written using plain language, are the norm.

Court forms must account for individuals who have low levels of literacy. Rather than saying, “The Plaintiff prays that this Court grant them the relief requested herein...” a plain language form would say, “The Plaintiff asks the Court to...” The “legalese” must go. 

Court forms are not just for self-represented individuals. By simplifying the process, we are easing the burden of the legal system as a whole. At least one party is unrepresented in 76 percent of cases.16 When such a “lopsided litigation” situation arises, a burden falls on the judge, clerk, opposing counsel and others to explain our complex and lawyer-made system to the self-represented individual. However, many, if not most, of the people with the ability to help explain the system to the pro se individual are afraid to do so because they do not want to inadvertently provide legal advice and do not understand they can give legal information without providing advice. In response, many states offer various resources to help explain the distinction between legal information and advice.17

Legal information is defining the process; legal advice is telling someone what they can do based on the facts of their case.18 Using filing for divorce as an example, informing an individual that in order to get divorced they need to file a petition and an Application for Temporary Orders is legal information; telling the person what to plead based on their specific facts is legal advice.

This distinction is critical. If we continue to hide behind the shield of legal advice, we are only furthering the historical practice of excluding people from the legal process. This is not acceptable. We can do better.

Lawyers are called to protect the less fortunate and to uphold the constitution of both our great country and our state. Echoing the United States Constitution, the Oklahoma Constitution proclaims that “The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”19

Today, the courthouse doors are not equally open. It is our ethical, moral and legal duty and obligation to open them. Court forms are just the beginning of that process but also the foundation.

ABOUT THE AUTHOR
Elizabeth Govig graduated from the TU College of Law with her J.D. in May 2019. While in law school, she was involved with the Community Advocacy Clinic where she focused on addressing civil access to justice issues. She can be reached at eegovig@gmail.com.

1. Gillian Hadfield, “Why Legal Aid and Pro Bono Can Never Solve the Access to Justice Problem,” Gillian K. Hadfield Blog (Dec. 11, 2016), //gillianhadfield.com/2016/12/11/why-legal-aid-and-pro-bono-can-never-solve-the-access-to-justice-problem/.
2. Sandefur, Rebecca L., “The Impact of Counsel: An Analysis of Empirical Evidence,” Seattle Journal for Social Justice: Vol. 9: Iss. 1, Article 3. 51, 52 (2010).
3. Ethan Bronner, “Right to a Lawyer Can Be Empty Promise for Poor,” N.Y. Times, March 15, 2013, www.nytimes.com/2013/03/16/us/16gideon.html.
4. See also Rebecca L. Sandefur, “Bridging the Gap: Rethinking Outreach for Greater Access to Justice,” 37 U. Ark. Little Rock L. Rev. 721 (2015); Catherine R. Albiston & Rebecca L. Sandefur, “Expanding the Empirical Study of Access to Justice,” Wis. L. Rev. 101 (2013); Rebecca L. Sandefur, “Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact,” American Sociological Review 80(5):909-933.
5. Rebecca L. Sandefur, “What We know and Need to Know about the Legal Needs of the Public,” 67 S. C. L. Rev. 443, 450 (2016).
6. Id. at 449.
7. Id.
8. Id. at 448.
9. See “State-by-State,” Self-Represented Litigation Network//www.srln.org/taxonomy/term/141 (last visited May 15, 2019).
10. See White, S., and McCloskey, M., Framework for the 2003 National Assessment of Adult Literacy (NCES 2005-531). U.S. Department of Education. Washington, D.C.: National Center for Education Statistics. (Defining literacy as “the ability to use printed and written information to function in society, to achieve one’s goals, and to develop one’s knowledge and potential.”).
11. Justin Baer, et al., Basic Reading Skills and the Literacy of America’s Least Literate Adults: Results from the 2003 National Assessment of Adult Literacy (NAAL) Supplemental Studies (2009).
12. OECD, Skills Matter: Further Results from the Survey of Adult Skills, OECD Skills Studies, OECD Publishing, Paris, doi.org/10.1787/9789264258051-en (2016).
13. Katherine Alteneder, Why Now for a Community Response to Create Systemic A2J Solutions A Conversation on Civil Access to Justice in Tulsa (2018).
14. Jakob Nielsen, “The Distribution of Users’ Computer Skills: Worse Than You Think.” NN/g Nielsen Norman Group (2016), //www.nngroup.com/articles/computer-skill-levels/ (last visited May 19, 2019).
15. Id.
16. Steinberg, Jessica, “A Theory of Civil Problem-Solving Courts,” 93 NYU L. Rev. 101, 118 (2018).
17. See “Legal Information v. Legal Advice,” State Bar of Arizona//www.azbar.org/lawyerconcerns/regulationofnon-lawyers/legalinformationvlegaladvice/ (last visited May 15, 2019); “Asking for help with court matters,” Mass.gov, www.mass.gov/info-details/asking-for-help-with-court-matters (last visited May 15, 2019).
18. “Legal Information vs. Legal Advice: Guidelines and Instructions for Clerks and Court Personnel Who Work with Self-Represented Litigants in Texas State Courts,” //www.txcourts.gov/media/١٢٢٠٠٨٧/legalinformationvslegal
adviceguidelines.pdf (last visited May 15, 2019).
(Edited for use in Texas by: Texas Office of Court Administration Texas Access to Justice Commission Texas Access to Justice Foundation Texas Legal Services Center).
19. Okla. Const. Art. II, §6.

Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 34 (August 2019)