A crisis exists in our state because of the inability of so many to gain meaningful access to the civil justice system. Some seem to think that we have an adequate framework of free legal resources in our state. While there are many innovative legal service programs in Tennessee and legions of dedicated legal aid and pro bono attorneys giving their time and skill to underserved Tennesseans, the data shows the need is far from being met: more than 1.2 million Tennesseans have no means to hire a paid attorney, and the existing free resources are not able to meet this need.

The unfortunate reality is that significant numbers of Tennesseans are attempting to represent themselves in civil court proceedings, especially in matters involving family law issues. In many cases, self-represented litigants are acting on the advice of people not licensed as lawyers in Tennessee; they are relying on improper or inadequate forms and ultimately are being taken advantage of financially. Additionally, these litigants are creating considerable time constraints and ethical dilemmas for our courts as they frequently do not even know where to start. Ideally, every litigant in Tennessee would be able to hire and pay for a skilled attorney to guide them successfully through their case, but that is not — and likely never will be — the reality for thousands of low-income individuals.

The Tennessee Supreme Court’s Access to Justice Commission recognized this significant gap for self-represented litigants and their families as it articulated its goal of developing “additional resources for low-income Tennesseans who must navigate the court system without the benefit of counsel.”[1] The current collection of resources is intended to provide tangible, life-changing support for low-income self-represented litigants: educational videos, informative guides, uniform plain-language forms and other self-help tools, as well as contact information for pro bono and legal aid programs that may be able to provide limited legal assistance. This multi-faceted approach to the challenge of meaningful access for self-represented litigants provides a starting point and an opportunity for better outcomes for those who must go it alone. All of these resources are available on the Justice for All website, which is an initiative of the Tennessee Supreme Court.[2]

The resources designed for self-represented litigants, including plain-language forms, are intended for a limited group of individuals who are, by definition, low-wealth, and none of the tools are intended to diminish the population of paying clients seeking legal assistance in our state. For example, the uniform forms for use in divorce are limited to litigants who have agreed to the terms of the divorce and have very little property and very low assets.[3] These are also cases without high intensity or conflict. There are existing forms for individuals meeting these requirements without minor children and proposed forms that expand legal resources for those in need who are also parents.[4]

The plain-language instructions include a clear delineation of who is eligible to use the forms and encourage litigants to talk to a lawyer if anything is unclear. They also include educational information about the process for getting an agreed divorce, including what to expect before and during a court hearing and other frequently asked questions. The instructions also include resources for those who determine that they do need a lawyer or need other support, such as in domestic violence situations.

Beyond the explicit need for unrepresented litigants to have some starting point when representing themselves in these limited circumstances, an opportunity also exists to use the forms in pro bono or educational settings to facilitate legal information sessions or limited-scope representation. Furthermore, the forms provide the opportunity for pro bono review by attorneys, who can also alert clients to situations where they do need to retain legal representation.

The forms are also available for use and adaptation by Tennessee attorneys. While their use is not required, the forms and instructions could be helpful to new lawyers or those seeking to expand paid practice into these areas. The uniform forms can also serve as a tool to help structure and complete routine legal work faster and make more effective use of paralegals. Forms represent a significant trend in the legal profession, and it is critical that attorneys determine how to survive and even profit from their proliferation.

While most everyone would agree that it is absolutely preferable for all individuals to have the assistance of a qualified attorney for these cases, unfortunately, that is frequently not an option for the litigants eligible to use the plain-language forms, which are one key part of the overall pursuit of access to justice in Tennessee.

Notes

1. Tennessee Access to Justice Strategic Plan, www.tncourts.gov/sites/default/files/docs/final_2014_strategic_plan_and_appendices.pdf.
2. Justice for All: A Tennessee Supreme Court Initiative, www.justiceforalltn.com.
3. Those eligible to use the forms must not own any buildings, land, businesses or have retirement benefits; there must be agreement on alimony and division of any property.
4. The Tennessee Supreme Court has adopted eight divorce forms and six general sessions forms proposed, and intended to help meet the challenge of self-represented litigants. The ATJ Commission has a Self-Represented Litigants Advisory Committee, which developed the plain-language forms over many years, with input from a diverse group of attorneys, judges, court clerks, paralegals, bar associations, legal aid organizations and plain-language experts. The group focused on accurately representing the substance of the law while also ensuring ease of use, readability and clear and helpful instructions.