Law.com is carrying a remarkable story out of Texas. Under the heading Draft Forms for Pro Se Divorce Litigants Create Controversy, the site is reporting on the frankly remarkably intense reaction of the Texas Family Bar to plans for the state Court System to possibly approve forms for use in divorces — indeed the current proposed forms are for use in uncontested divorces. As the Law.com site reports:
The State Bar of Texas Family Law Section wants to put the brakes on draft forms for pro se divorce litigants and is calling for the State Bar to rein in the Texas Access to Justice Commission (TAJC). With both sides claiming to speak in the interests of litigants — and rumblings about protecting lawyers’ livelihoods — the Texas Supreme Court will have to take sides.
In one corner are the TAJC and the high court’s Uniform Forms Task Force, which believe the forms will help people — especially low-income individuals who cannot afford lawyers — obtain divorces on their own. The forms will be a better tool for people who already use forms from the Internet and elsewhere, they say.
In the other corner are the Family Law Section and the Texas Family Law Foundation, which oppose the forms and claim their use: could hurt the interests of people who use them to file for divorce; will not be limited to low-income Texans; could harm the livelihoods of solos and small-firm family lawyers; and may expand into other practice areas besides family law.
I recommend reading the whole article. At a minimum, it is clear that the opponents of forms are taking the matter very seriously indeed:
Bresnen [who, according to the article lobbies for the nonprofit Texas Family Law Foundation] says through an open-records request to the TAJC he reviewed 2,500 pages of records. While researching the forms project, he became concerned about what he calls the TAJC’s “seven-point plan” to assist pro se litigants, which he found in a Google search.
Perhaps most revealing of the apparently unique intensity of the family law bar’s opposition are these letters, linked from the law.com site, here, and here.
The state Supreme Court’s March 2011 Order, of course, has it completely right:
The Texas Access to Justice Commission, in collaboration with the Office of Court Administration, the Texas Legal Services Center, and the Texas Access to Justice Foundation, hosted the Texas Forum on Self-Represented Litigants and the Courts in Dallas on April 8-9, 2010. Over 120 attendees, including members of the judiciary, legal services attorneys, court clerks and administrators, and law librarians participated.
Participants at the Forum considered the impact pro se litigants have on the court system and evaluated tools to enable the courts to help pro se litigants navigate the legal system and to improve court efficiencies. An issue that arose consistently throughout the Forum was the need for statewide standardized forms for pleadings frequently used by pro se litigants.
The legal system functions most effectively when each litigant is represented by an attorney. But there are currently insufficient resources to meet the continually growing demand for civil legal aid. As a result, an increasing number of litigants will appear in courts pro se because they cannot afford an attorney and are unable to secure representation from legal aid.
The Court is concerned about the accessibility of the court system to Texans who are unable to afford legal representation.
After consultation with the State Bar of Texas and the Texas Access to Justice Commission, the Court agrees that developing pleading and order forms approved by the Court for statewide use would increase access to justice and reduce the strain on courts posed by pro se litigants.
The March 2011 Order then proceeded to establish the Task Force, and indicate its duties. (Note: I received an honorarium to speak at the meeting described in the Order, and participated in the discussions of how to move forms forward.)
It’s sad that the Texas Family Bar is coming out against reasonable access-friendly innovations that have gone into effect with almost no opposition and little fuss in almost all the states. (Moreover the Bar as a whole has now voted to ask the Supreme Court to delay the forms process while the Bar studies the matter!) The only way to understand the apparent belief of the Texas bar that this national experience is not persuasive is because they think either that Texas law is really much more complicated than the law of almost all other jurisdictions, or that for some reason Texans are less able to manage such things on their own. (The Family Bar has hinted that there have been problems with forms in other states, but that would be news to me, and I suspect to most if not all of us in the access networks.
So, lets keep our fingers crossed that the Supreme Court, after appropriate consideration, keeps to its careful and appropriate path, and continues its praiseworthy attempt improve access for those who can not afford lawyers. Lets hope that the Texas Family Bar learns from the experience of the bar in other states, and comes to realize that its members have nothing to fear from building an accessible legal system.
Texas Tribune has good article on the issue, with extensive quotes from the Executive Director of the Texas Access to Justice Commission, Patricia McAllister:
Patricia McAllister, executive director of the Texas Access to Justice Commission, said she agrees that forms are not ideal. But she said the ones the task force has created are easier to understand and can be used for simple, uncontested divorces.
“Do you want volunteer lawyers taking uncontested cases, or do you want lawyers handling cases that are contested and more complex to bring their full force of knowledge to someone who’s involved in a really complex case?” she said.
McAllister said comments during the board’s Friday meeting clarified the family law lawyers’ real motivation.
“They are concerned about the impact to their own finances,” McAllister said.
. . .
McAllister pointed out that free forms are already available online at TexasLawHelp.org.
“The issue really isn’t, ‘Are there forms available and are they available to everybody?’” she said. “It’s whether or not there’s a form that’s available that the courts and the people who are using them can be assured that they comport with Texas law and are standardized.”
McAllister said that another study of the issue by the State Bar is unnecessary.
“It just further delays the forms,” McAllister said. “I don’t think anyone questions that there are a significant number of poor people coming to the courthouse.”
The forms are meant to help the four out of five people who qualify for legal aid but do not receive it, said Harry Reasoner, chairman of the Texas Access to Justice Commission.
“This is a matter of alternatives,” Reasoner said. “Right now, tens of thousands of people have no assistance.”
From studying other states that use uniform forms, McAllister said, she has learned that “forms don’t harm the litigants, they don’t harm the ability of lawyers to earn a living, and they work.”
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I do not know why Mr. Fischer chose to resort to personal attacks on your professionalism or energy level, Mr. Zorza. It could be because he does not have any valid rebuttal to the facts and the positions you took. I saw no such attacks on the people who are opposing the Supreme Court’s Task Force, so I question Fischer’s motives and defensiveness.
There are few solutions proposed by the opponents that will obviate the need for simplified procedures in simple, uncontested matters. Lawyers have made these rules and laws complicated and lawyers have a duty to unwind such unnecessary complexity. Why should it be so risky for people to memorialize their agreements regarding a legal divorce? It should be simple as well to effect agreed changes in custody and child support within certain guidelines.
Mandatory pro bono will not make a dent in the overwhelming need that has flooded our courthouses in Texas and there is little chance that funding for free civil legal services will ever rise to the level needed to meet the needs of those who truly cannot afford $1,000 legal fees. Does Fischer believe that a “cut, cap and balance” approach (cut taxes that fund legal aid, cap options for unrepresented people of limited means and keep the balance of power in the hands of those who have law school loans to repay) would be better?
The legal landscape is changing, whether these older lawyers like it or not, and the people are increasingly demanding real access to the legal systems they pay for. I suppose if enough people stand in front of a moving freight train, they would eventually stop or derail it, but at what cost? We should all be spending our efforts in finding multiple ways to improve our civil justice system, not trying to protect lawyers who do not want to change.
Mr. Fischer used his name, why don’t you, as I have?
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California also has a mandatory bar which is regulatory in nature and part of the judicial branch of government. It has had standardized forms for decades. The forms haven’t driven family (or other) lawyers out of business. Quite the contrary. They standardize the practice, making it easier for lawyers and judges to find relevant information. They do not act as a substitute for legal advice. The objections referenced in the Texas post are speculations by practitioners who have never actually used standardized forms and don’t know from experience how they work.
I find it indefensible for lawyers, who have a monoply on legal services, to argue that 1) people who have legitimate legal needs 2) who can’t afford a lawyer 3) can and should be deprived of meaningful access to the public courts, 4) so that I can maintain my livelihood and financial monopoly. It is 2012 for crying out loud. We say our country is based on the rule of law. We, as lawyers, have sworn to uphold the law. Where is the logic that defends the premise that the public courts are only available to those who can pay for access?
Also, as a practitioner in a forms state for 35 years, I’d be interested in the source of the empirical “evidence” that forms “don’t work.” I travel the US and Canada talking to lawyers, judges, court administrators and others involved in the day to day operation of the courts and I’ve never seen any such “evidence.”
Insightful post. Standardized forms in simple matters will be good for Texas. Lawyers can use them to save time with paying clients as well as pro bono. Self-represented parties in a few simple matters can accomplish what they need with less burden on the courts. Everyone who is now sitting in protracted docket calls as ill-equipped nonlawyers stumble in their efforts to handle even agreed simple matters will benefit.
I am suspicious of the motives of those who oppose these efforts. Fortunately, we know that they will eventually lose and the reality is that “the times they are a changin’.”
Excellent post. Here are some comments of an attorney who went through this change in Utah.
“The crux of this issue actually hits the entire legal market. Lawyers will do much better to embrace change than fight it in the courts. The market will continue to progress either way. If the TAJC and Court do not meet this need, LegalZoom or someone else will. I recommend the Family Law Section reevaluate their approach to this effort and join with the TAJC. Here’s a novel idea along that line of thinking: Use the same forms as member benefit for your section. Add some additional tools and content on top of the forms and they become a high-value member benefit instead of a vague threat.”
He posted his comments at this blog site:
Umm Do you really have any clue what you’re talking about? You’re in Washington -did you actually hear any of the debate or did you solely rely on 3rd party sources? Did you talk to ANY of the 40 or so family lawyers who spoke to the board?
Texas is different as it has a mandatory bar which functions as part of state government and as an association. I am an elected director and I listened carefully to both sides. I responded personally to each email.
The Family Law attorneys and judges (several judges spoke) were concerned that forms would substitute for advice. All of us who practice family law have seen people mess up their lives using 30 page forms for divorces or SAPCR’s with children. My position was that forms were ok for no children no property divorces where the parties were already separated.
You’re free to take any position you want but it seems here you were too lazy or too unprofessional to really do the research.
I agree with Mr. Fischer. Texans don’t want to be like California. For that we should be criticized? Our members routinely discuss their involvement with people from California moving here and looking for help because they botched their own cases back home.
Don’t expect a cramdown by a few true believers to be swallowed whole, especially when it is easy to see what will inevitably happen to the very people they seek to help. Their own guru says “forms are ncessary but not sufficient” to help do-it-yourselfers. They need services too. None of the support upon which their plan hinges will materialize because, unless you folks haven’t realized it, there is NO MONEY for those services. A handful of blank forms is what pro se litigants will get.
Three Geeks and the Law blog comments on this situation: