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Courts see rise in cases of those without lawyers:

Self representation presents multitude of challenges

By Elizabeth Dinan

edinan@seacoastonline.com

Portsmouth attorney John Pendleton was recently in a local courtroom where a couple was appearing for a
domestic violence hearing and during the proceeding began bickering about who owned something.
Neither had a lawyer to advise them the debate was not allowed and, worse, said Pendleton, it "was a
waste of time."

On another occasion, when Pendleton was a prosecutor, a man representing himself on a felony perjury
charge put Pendleton on a witness stand and asked him, "What did you think I meant when I said I had no
criminal record?"

Pendleton's sworn answer was that he thought the man wanted a plea deal and that he had committed
perjury. Both cases exemplify lost time and unintended consequences caused by people who represent
themselves in courts.

Pro se, or self representation, is a legal right pre-dating the Constitution and, according to a report by
attorney Peter Beeson, at least one party appears pro se in 85 percent of all civil cases in the state's
district courts. In superior courts, 48 percent of all civil cases involve at least one pro se party and in 38
percent of probate cases both sides appear without lawyers, according to state data.

More self representation is creating a problem that's "two-fold," said N.H. Supreme Court Chief Justice
Broderick. First, he said, the state's courts are becoming more stressed. Also, he noted, increased pro se
parties, coupled with a 10 percent reduction in court staff, means less people to provide more
time-consuming public service.

"There is a rising number of people who can't afford lawyers and who are asking more of our staff,"
Broderick said. "Our front office staff has more people on the phone and at the counter and there are only
so many hours in the day. There are a lot of mine fields to navigate, so (pro se litigants) rely on our staff,
who try to explain without giving advice."

In courtrooms, pro se parties cause delays by appearing for hearings without knowing rules and
procedures, he said. They don't know telling a judge something their neighbor said is hearsay, the rules
for cross-examining a witness, or how to file the proper motion for a desired hearing, said the chief justice.

Police Capt. Corey MacDonald, an attorney and Portsmouth prosecutor, said he's seeing more pro se
defendants in the city's district court.

"This causes a slowdown in the court process due to litigants being unfamiliar with rules and procedures,
which translates into hearings being continued, or otherwise postponed," he said. "As it stands now,
getting a court date for a matter that is time sensitive is difficult. To prepare for that date and then have it
continued due to a misunderstanding by a pro se litigant or defendant is a waste of time for the court and
for everyone seeking to get their 'day in court.' "

MacDonald said the lack of availability of courtroom time is "another aggravating factor." "The continued
loss of court dates has a real effect on negotiations and plea offers, especially in the juvenile court," he
said. "We're not able to bring as many of those cases as we would like to, due to the fact that the available
courtroom time is so limited. When left with so little time in the juvenile court, we have to limit our petitions
to only the most dire."

The result, MacDonald said, is "slower justice for the public, which, of course, in the end erodes people's
sense of security in our justice system."

Virginia Martin, associate executive director of legal services for the New Hampshire Pro Bono Legal
Referral program, said growing self representation is a national trend created in part by financial factors,
as well as a desire by some to be in control. "We live in a self-help oriented culture," she said.

"There's a lot at stake for people" representing themselves, she said. "Getting some good advice and
counsel from an attorney is well worth it."

Chief Justice Broderick said to serve more pro se litigants, the current court model "has to be reformed."
One suggestion he offers is establishing self-help centers in courthouses that could be staffed by paid
paralegals. The pro se public could watch instructional videos about specific legal processes, for example
filing an eviction notice, then be assisted by the paralegal with proper paperwork.

Another effort Broderick is leading is a proposed rule change to allow judges more flexibility "to ensure that
all litigants are fairly heard." Judges must remain impartial and in some cases, he said, they "err on the
side of not doing enough" for pro se parties.

The rule change would allow judges to explain at the onset how hearings will proceed and the rules that
must be followed. "It sets the stage and it doesn't take sides," he said.

At the conclusion, some explanation about what will happen next would also be helpful, he said. "It's our job
as judges to provide a fair forum," Broderick said. "It's not like it's going to take a long time."

The Judicial Rules Advisory Committee is expected to discuss the proposed change at its June 9 meeting.

Also to address more pro se litigants with shrinking resources, are proposed changes to the professional
conduct and trial rules authorizing limited-scope representation, also referred to as "unbundled" or "limited
assistance" representation. That service provides part-time pro bono representation, in contrast to having
a lawyer represent a client from the start of a case to its conclusion. In short, it pairs a lawyer with a needy
client for limited assistance, for example, offering brief advice and help with paperwork.

An existing resource for easing the pro se burden can be found within the legal profession that has a
professional code of conduct advising all lawyers to provide at least 30 hours of pro bono work a year.

Pendleton is a board member of New Hampshire Legal Assistance, which provides reduced-cost and pro
bono services for people meeting specific financial guidelines. He raises money for the program by
soliciting attorneys and offers free and reduced-rate legal services himself.

A recent case had Pendleton assisting a local elderly woman who fell victim to a financial scam through
which she lost $20,000. "She had no choice but to declare bankruptcy," said Pendleton, who represented
her at no cost.

Pendleton said his pro bono work generally focuses on bankruptcy and family cases, including a recent
one involving a family unsure how to legally protect and manage financial donations made in memory of a
deceased family member.

Portsmouth attorney Ken Murphy also provides pro bono work that focuses on people facing eviction, most
often in Hampton. "I have empathy for the people," he said. "I know the statutes and often it helps them
out. Often they can stay there longer than if they didn't have a lawyer."

Murphy cites the legal profession's ethical obligation as one reason he provides pro bono work. In
addition, he said, "I feel good about helping these people out. They're not the kind of cases that can
overwhelm your practice. Any time you can help."

FIND HELP

The following offer pro bono or reduced-rate legal services:

* Pro Bono program through the New Hampshire Bar Association, 224-3333

* Portsmouth office of New Hampshire Legal Assistance for low-income and elderly residents, 431-7411

* Domestic Violence Emergency Project, free representation at the final hearing for a protective order,
accessed through local crisis centers or (866) 644-3574.

* Reduced-rate representation for criminal matters provided by the N.H. Public Defenders office, by referral
from the courts and based on financial qualification.

* A pro se guide and online self-help center, which includes sample forms and explanations of
proceedings, can be viewed on the state's Judicial Branch Web site,
www.courts.state.nh.us/selfhelp/index.htm