There has long been debate about whether listing what self-represented litigant assistance policies are permitted when performed by court staff is useful or harmful. The argument for listing them is that it makes it much easier for staff to perform them without worry. The argument against is that a listing may be interpreted as exclusive, and be used as an excuse to turn down experimentation and innovation.
I think the argument in favor of the full listing approach is enhanced by the just released Illinois Supreme Court Order ( Letter here, Illinois Order here) which attempts a comprehensive approach including such a list, as well as one of prohibited activities and a discussion of confidentiality and ethical obligations. Congratulations to the Court and the ATJ Commission.
The listing of Illinois permitted activities is here:
(d) Permitted Services. To assist court patrons, circuit clerks, court staff, law librarians, and court volunteers—acting in a non-lawyer capacity on behalf of the court—may, as resources and expertise permit:
(1) Provide legal information about court rules, court terminology andcourt procedures, but not limited to providing information regarding; requirements for service, filing, scheduling hearings and compliance with local procedure;
(2) Inform court patrons of legal resources and referrals if available,, including but not limited to:
Pro bono legal services;
Low-cost legal services;
Limited scope legal services;
Legal aid programs and hotlines;
Law and public libraries;
Non-profit alternative dispute resolution services;
Lawyer referral services;
Court-sponsored or -affiliated educational classes, including, but not
limited to, parenting education and traffic safety classes and alternative
dispute resolution services;
Units or departments of government; or
Domestic violence resources.
(3) Encourage self-represented litigants to obtain legal advice from a lawyer;
(4) Provide information about security protocols at the courthouse and directions
around the courthouse, including, but not limited to, photocopier and telephone
locations, children’s waiting room locations and other courthouse offices;
(5) Offer educational classes and informational materials;
(6) Assist court patrons in identifying approved forms and related instructions based
on the court patron’s description of what he or she wants to request from the court, including but not limited to, providing approved forms for the waiver of filing fees. When necessary, explain the nature of the information required to fill out the approved forms. Where no approved form exists to accomplish the court patron’s request, inform the litigant of that fact and direct him or her to other legal resources;
(7) Record verbatim information provided by the self-represented litigant on approved forms if that person is unable to complete the forms due to disability or literacy barriers;
(8) Review finished forms to determine whether forms are complete, including checking for signature, notarization, correct county name and case number;
(9) Provide assistance to litigants pursuing self-guided research;
(10) Provide docket information, including but not limited to:
Stating whether an order has been issued
Explaining how to get a copy if one was not provided
Reading the order to the individual if requested
Providing instructions about how to access such information;
(11) Inform court patrons of the process for requesting a foreign language or sign language interpreter;
(12) At the direction of the court, review documents for completeness prior to hearing;
(13) Provide a court patron with access to a case file that has not been restricted by statute, rule or order, or instructions about how to obtain such access;
(14) Provide the same services and information to all parties to an action, as requested;
(15) Provide services based on the assumption that the information provided by the court patron is accurate and complete;
(16) Provide other services consistent with the intent of this policy.
While I suspect that I would expand this list, to include, for example, assisting to litigant to obtain information about related cases from other courts, and reviewing the completeness of the form even without “direction of the court,” and providing information and explanation about how to comply with, an obtain compliance with, a court’s order, overall I like it. I think I would also like an expanded list of how people can provide additional assistance in explaining what information a form actually seeks, without taking over from the litigant. Often instructions are inadequate, and an explanation could be completely neutral.
It is reassuring that items 14, and 15 underline how to make sure that information is neutrally provided, and that item 16 includes a broad expansion of the “safe harbor” to “other services consistent with the intent of this policy,” which I would interpret as to provide as much assistance with access, provided that it is neither non-neutral, or runs the risk of being perceived as non neutral. Indeed, the purposes section of the order says that:
The purpose of this policy is to provide guidance to circuit clerks, court staff, law librarians, and court volunteers acting in a non-lawyer capacity as to what services may and may not be offered to assist court patrons to achieve fair and efficient resolution of their cases. (Bold added.)
I would love for anyone to use the comments section to add more suggestions for additions to the permitted list.
I would conclude that the one thing we know for sure is that with experience we are learning more and more about how broader assistance can be given in a neutral manner, and that often services are initially perceived as non-neutral only because they have not previously been provided. Perhaps the way to test whether a service is neutral is not to ask if it is, but rather to ask how it might be provided in a neutral manner, and then see if that is practical.