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.
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.”