Striking a Balance Between Justice and Impartiality

In recent years, courts across the United States have experienced a marked rise in the number of self-represented litigants (SRLs). In Illinois, data from a decade ago indicated that over half of the state’s 24 judicial circuits reported 70% or more of litigants in civil matters appeared without legal counsel.¹ It is likely that this percentage has continued to increase.

Self-represented litigants encounter substantial difficulties navigating the intricacies of legal procedures. By the time a final judgment is rendered, they may not fully comprehend how they reached that point nor why the judgment was not in their favor. Most SRLs lack any formal legal training and often are without meaningful access to the education and experience that attorneys acquire in law school and through years of practice. As legal professionals, we bear an ethical responsibility to enhance access to justice by mitigating the barriers that disproportionately burden SRLs. Their presence in our judicial system is a given; the pressing question is how best to support and assist them.

Consequences of Self-Representation

The disadvantages SRLs face, especially when parties represented by counsel oppose them, are well-documented and severe. According to the 2022 Justice Gap Report published by the Legal Services Corporation, 92% of low-income Americans do not receive adequate or any legal assistance for their substantial civil legal needs.² Cost is one of the most significant barriers to securing legal representation.³ Studies suggest several reasons why individuals elect to represent themselves, including (1) financial constraints, (2) confidence in their own ability to manage their case, (3) reliance on advice or support from family or friends, and (4) a desire to avoid involving attorneys for personal reasons, such as maintaining relationships between the parties or retaining control over the process.⁴

Nonetheless, self-representation imposes considerable demands on litigants. SRLs must prepare evidence, master the relevant case law and statutes, and follow procedural rules. Many become overwhelmed by the complexity of the process. Additionally, the legal arguments and decisions they encounter are often replete with specialized terminology that may be difficult for a layperson to decipher. SRLs may fail to understand the structural requirements of legal pleadings or the formalities that must be observed in court proceedings. Empirical evidence consistently shows that litigants who have counsel are significantly more likely to achieve favorable outcomes. The judiciary’s role is to render decisions based on the merits of the case, not on the procedural proficiency of the parties involved. Thus, the legal profession must continue to explore and implement strategies to close the justice gap and ensure that SRLs are not unduly disadvantaged within the legal system.

Resources Available

Each individual approaches learning differently, and thus, various methods of instruction are necessary. To assist SRLs in their legal pursuits, courts, bar associations, and related organizations have issued a range of resources, including handouts, guidebooks, kiosks, and self-help websites. These materials aim to inform litigants of the steps necessary to initiate, defend, or navigate a lawsuit. However, the extent to which these resources aid their intended audience remains uncertain due to a lack of comprehensive research.

Despite the availability of these resources, courts continue to witness SRLs at a distinct disadvantage due solely to the absence of legal counsel. While some litigants may find these materials useful, others may not benefit from them at all. Numerous publications issued by legal aid groups, courts, and governmental entities are designed to guide litigants through the legal process. Some are case-specific, and though undeniably helpful in certain circumstances, they often fail to meet the needs of all litigants.

One significant barrier is language. Many litigants may not speak or read English fluently, underscoring the need for multilingual guides. For those who cannot read, videos may serve as an effective alternative, offering instruction on legal processes in various languages. These videos should cover both general litigation procedures and case-specific issues.

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“It is more effective to train one judge on how to assist a self-represented litigant than to teach hundreds of self-represented litigants how to be a lawyer.”—Justice for All Initiative Guidance Material, National Center for State Courts

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The adversarial system is predicated on the assumption that both parties will be represented by counsel, with the judge serving as an impartial arbiter. But, this model falters when one or both parties are unrepresented. SRLs, lacking the legal education and procedural expertise of attorneys, struggle to navigate the court system effectively.

Under Rule 2.2 of the Illinois Code of Judicial Conduct, judges must uphold and apply the law impartially. However, as noted in Comment 4 of the Rule, providing reasonable accommodations to SRLs, when consistent with the law and court rules, is not a violation of judicial impartiality.⁵

A 2022 article, Judges in Lawyerless Courts, advocated for a reevaluation of the traditional role of trial judges, suggesting that they take a more active role in guiding SRLs.⁶ The reform calls for judges to provide accommodations, offer relevant information and simplify court processes for those without legal representation.⁷ This involves “helping unrepresented individuals develop facts, identify claims and defenses, access[ing] what assistance and information the litigant received prior to entering the courtroom, and correcting misunderstandings,” all while maintaining judicial neutrality.⁸

While difficult, it is not an insurmountable objective to ensure that SRLs are afforded a fair opportunity to be heard. For example, judges can encourage representation by lawyers, thereby providing litigants with the necessary pro bono legal expertise without compromising judicial neutrality. And judges can explain procedural rules, legal standards, and terminology, ensuring that self-represented parties understand the process and can present their case fairly. Finally, judges can facilitate both sides presenting all relevant facts.

Certain areas of law—such as landlord-tenant disputes, debt collection, family law, bankruptcy, and small claims—see a higher concentration of low-income, self-represented litigants.⁹ While broad systemic changes may be challenging to achieve, courts that handle a significant volume of pro se cases can implement targeted reforms and maintain the integrity of the legal process.

Right to Counsel

The constitutional framework does not guarantee the right to counsel in civil cases. However, states have the discretion to establish this right through legislative action. Currently, four states have enacted laws that provide a right to counsel for low-income tenants facing eviction proceedings.¹⁰ Although each state’s eligibility criteria vary, empirical evidence highlights the substantial benefits of these provisions.

A recent article reported that in Kansas City, Missouri, the implementation of right-to-counsel laws led to 91.5 percent of tenants avoiding eviction, a marked improvement from the 99 percent eviction rate before these laws were enacted.¹¹ In New York City, 84 percent of tenants with legal representation remained in their homes, with a 34 percent reduction in default judgments.¹² Similarly, in Cleveland, Ohio, 93 percent of tenants with legal counsel successfully avoided eviction or involuntary relocation.¹³ In California, tenants with full representation were given twice the duration to vacate post-eviction rulings compared to their unrepresented counterparts.¹⁴

Some jurisdictions with right-to-counsel laws have also experienced a decrease in eviction filings, indicating that landlords may be deterred from pursuing potentially unlawful evictions when tenants are represented. Furthermore, the implementation of right-to-counsel laws appears to yield significant fiscal benefits by reducing homelessness.¹⁵

The statistical evidence indicates that the benefits extend beyond individual case outcomes, reducing overall court caseloads as well. Legal representation often facilitates early resolution of disputes, thereby reducing the need for prolonged litigation. Consequently, adopting right-to-counsel provisions in civil cases with a high incidence of SRLs should be considered a viable strategy to enhance access to justice.

Conclusion

To tackle the disparities experienced by individuals representing themselves in legal matters, it is crucial to seek out and put into practice new and creative solutions. The growing number of SLRs in courts underscores a significant disadvantage for many litigants, as only a few are able to navigate the process successfully. It is the responsibility of legal professionals to identify effective steps to bridge this divide, ensuring that cases are resolved on their merits rather than the limitations of inadequate representation.

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1. https://www.illinoiscourts.gov/Resources/8b247871 -22b1-4684-b241-a39b6606f8a4/2017%20- %202020%Strategic%20Plan.pdf

2. https://justicegap.lsc.gov/resource.executive-summary/

3. https://justicegap.lsc.gov/

4. Natalie Anne Knowlton, et al., Inst. for the Advancement of the Am. Sys., cases without counsel: research on experiences of self-representation in U.S. family court 1, 12-21 (2016).

5. Rule 2.2, article XI. Illinois Code of Judicial Conduct of 2023, https://jib.illinois.gov/code.html.

6. Ann E. Carpenter, et al., Judges in Lawyerless Courts, 110 Geo. L.J. 509 (March 2022).

7. Id.

8. Id.

9. Tonya L. Brito & Daniela Campos Ugaz, Colloquium: The Legal Profession’s Response to Social Change: Asymmetry of Representation in Poor People’s Courts, 92 Fordham L. Rev. 1263, 1267 (March 2024).

10. “Right to Counsel In Eviction Cases: A Public Health Imperative,” Health Affairs Forefront, May 17, 2024, https://www.healthaffairs.org/content/forefront.right-counsel-eviction-c....

11. Id.

12. Id.

13. Id.

14. Id.

15. Id.