Multiple decisions have come to my attention where appellate courts are reversing trial courts on cases where one of the parties did not have a lawyer. All cases come from Domestic Violence dockets. Is this a new trend for DV pro se dockets? T ime will tell.
The first case hails from NJ—C.H. v. J.S come from New Jersey, a case when a self-represented litigant (defendant) was not allowed to present his case at trial while defending a domestic violence order. The decision is not precedential and not published; nonetheless it is an interesting decision.
The second case hails from California, Michaels v. Turk, 15 @.O.S. 4195, and the issue on appeal was whether the pro per litigant had consented to have the case heard by a Commissioner. The case also comes from a domestic violence court.
Another case in California that went to the highest court in California, Nakamura v. Parker, a California case from 2007 was the first pro se case I saw where a trial court decision was vacated on appeal in a DV case where the victim was a pro se litigant. Originally this case came through Bay Legal through our hotline and was litigated by Susun Kim and Minouche Kandel. This case dealt with a local judge denying a protection order despite the facts entered in the record. The trial court did not explain its summary ruling and that was the basis for the appeal. On appeal, the order was reversed and the case was remanded to the trial court. In Nakamura, multiple DV advocacy led by the Partnership to End Domestic Violence had filed an application for leave to file an Amici Brief. Their petition read:
“These trial courts are denying domestic violence victims protective orders and hearings in cases where they have presented prima facie cases of abuse. Additionally, courts should not deny a protective order based solely on the fact that there has been a lull in the physical violence.”
The willingness of appeal courts to reverse trial court decisions should remind judges to be attentive to what the party without a lawyer is asking for and to not go on with “business as usual” mode where moving the cases becomes an objective in and of itself and the implicit bias by the judge or process is not checked.
If judicial training on how to manage self-represented litigant cases is not enough reversal by trial courts might get the attention of judges working in large SRL dockets. Becoming careful and observant of what the statutory and procedural requirements are will improve the outcomes for SRLs and reduce the risk for reversal, and improve outcomes for the litigants. Integrated assistance and information in these dockets that help those without lawyers submit strong pleadings and helping them understand their rights prior to hearing will also go a long way in promoting strong orders based on the merits.
Providing SRL friendly forms and assistance, is congruent with the Turner Supreme Court decision, where the interpretation is that Courts should provide those without lawyers meaningful ways to present their information through helpful forms and to the courts. The expansion of services in SRL and the provision of litigant friendly high quality forms that pull out all the relevant facts and defenses might reduce the risk of reversals in Turner-like cases.
Forms alone however are not enough. The forms need to have buy in from all the groups that work with the same population, and need to be easy to use and easy to find, and free. If legal advice and representation are not available in the locality due to limited funding , pro bono assistance , clinic based help, or limited/unbundled assistance are also key in making the protection afforded by the law meaningful and real to vulnerable groups. A great model of pro bono assistance is the NY Courts DV e-filing project, recently the recipient of the Law and Technology Award.
Another model is the established DASH Clinic in Los Angeles.
The Domestic Abuse Self Help Project is run by Neighborhood Legal Services of Los Angeles County, and has since 2006 assisted more than 1 Million self-represented persons. At the DASH clinics (it has 4 locations) they provide one on one guidance completing the forms in the morning and then they assist with filing in the afternoons. They have a devoted volunteer attorney in each location for assistance and review of the forms before being submitted. The online forms are created by the AOC and hosted through LawHelp Interactive. In addition to the 4 locations, they have a clinic in a shelter in Santa Clarita Valley, and also at the Develonshire Police Station. DASH does an outstanding job in working with those who have limited English Proficiency, and is a model worth considering for those thinking about improving outcomes for those without lawyers in DV, and other high volume areas of need. http://www.connectingjusticecommunities.com/commemorating-domestic-violence-awareness-month-with-tools-by-lawhelp-interactive/2015/10/
If others know of appeal cases with similar rulings as they relate to SRLs, please share them. If anyone wants to brainstorm on how to use modern tools to increase services for DV victims/sexual assault victims, or knows of other holistic meaningful assistance projects that include forms, but don’t stop there please share and feel free to reach out to me at firstname.lastname@example.org.