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Study: unrepresented civil litigants lose more often.

Byline: Matthew Chaney

The vast majority of litigants going through General District Court in Virginia are not represented by attorneys, according to a study conducted on behalf of Blue Ridge Legal Services.<br />Unrepresented litigants lose the majority of General District Court cases when their opponents are represented, the study found.<br />"The data basically confirms what common sense tells every member of the public," John Whitfield, the director for Blue Ridge Legal Services, said in an interview. "You need a lawyer if you have to go to court, because otherwise your chances of success are very low."<br />Whitfield said that the study, which was conducted from 2015 to 2016, sought to measure the legal representation status of litigants in civil cases, using data from the Office of the Executive Secretary of the state Supreme Court. The National Center for State Courts was contracted by BRLS to conduct the study using grant money.<br />Whitfield said it was the first study conducted on the subject in the state. He presented the findings to the Supreme Court during a special session April 4.<br />Whitfield explained that the study found that both litigants in a dispute were represented in only 2 percent of all General District cases, excluding cases where default judgments occurred because of no-shows.<br />Plaintiffs were the only party represented in 54 percent of cases and neither party was represented 45 percent of the time. This means that the defense was represented in less than 1 percent of all cases.<br />The plaintiff won 62 percent of cases when they were represented and the defendant was not.<br />"Our civil justice system presumes the presence of counsel to fairly and effectively try cases," Whitfield said in his presentation to the court. "That reliance is too often seriously misplaced, creating a dysfunctional system for the many litigants who don't have access to representation."<br />Why representation is important<br />The General District Court cases were grouped by the study into four categories: Debt, housing, protective orders and other civil.<br />Fifty-three percent of the 555,487 civil cases brought to district court were debt collection cases. 31 percent dealt with housing issues, 10 percent were other civil issues and 6 percent involved protective orders.<br />Whitfield said that while there are certainly times when there is no defense for a debt case, a surprising number of them crumble when the defendants are represented by legal aid attorneys.<br />"So many possible defenses present in warrant and debt cases," Whitfield said. "It could be the person can't prove they owe that debt, they may not be able to establish all the facts showing a debt is owed Sometimes all it takes is just having a lawyer represent and the plaintiff abandons the case."<br />According to the study, while attorneys are present for both sides in only 2 percent of all cases in General District Court, 50 percent of those are dismissed. Fifty-five percent of those debt cases are dismissed.<br />The study speculated that the high dismissal rate "may be the result of defendants obtaining representation when they feel that they have a strong defense."<br />Overall though, plaintiffs won 63 percent of debt cases in the study.<br />Justice gap solutions<br />Whitfield said that there are three potential solutions to fixing the problem of underrepresentation, coming in two categories.<br />The first deals with making more lawyers available to low-income people. The options in this regard, he said, were to increase funding for legal aid in the state and to increase participation in pro bono activities, both of which have been controversial in the past.<br />Whitfield suggested that the voluntary pro bono reporting measure that takes effect at the end of this year may be a good first step by creating better information about the amount of pro bono work that is actually being done, while bringing more focus to the issue.<br />The other option, Whitfield suggested, was to decrease the need for lawyers by simplifying court procedures, as the small claims division has done.<br />"Official court forms in lower courts are written in legalese, they don't use plain language and it's difficult for those without lawyers to understand forms," Whitfield said. "We need to work on the usability of forms and simplify terminology, or at least provide online tools to help fill them out with plain language instructions."<br />Whitfield also cited the "procedural trap" that requires that the defense explicitly mention the statute of limitations or the court assumes it is waived.<br />"It's a common problem for judges to see on the documents that the debt is really old and barred by the statute of limitations, but they feel that they can't raise the issue," Whitfield said.<br />Whitfield suggested making the statute an element of the claim, rather than a defense, or at least changing procedure to allow judges to raise the matter.<br />"That way we can get that judge out of that terrible dilemma where they feel they have to follow the rules, but at the same time they feel they should be reaching a just result this would allow them to at least apply the statute of limitations," Whitfield said.<br />What's being done<br />In October 2017, the Supreme Court of Virginia elected not to impose mandatory pro-bono reporting for bar members in the state, despite recommendations from the court's Access to Justice Commission, which Whitfield co-chairs with Supreme Court Justice S. Bernard Goodwyn.<br />Some said at the time that the court based their decision on a close no-vote on the measure by the Virginia State Bar Council, while others claimed resentment of the measure was widespread.<br />Instead, the court proposed making pro bono reporting optional, and in February, they made it official, adding Rule 22 to the state bar rules.<br />Under the rule, the VSB will ask lawyers annually to report their pro bono work. They can report the number of hours of work they did, the amount they donated to pro bono organizations, whether or not the 2 percent pro bono suggestion applies to them or that they choose not to report.<br />The rule takes effect Dec. 1, 2018, and, according to Crista Gantz, the director of the VSB's Access to Legal Services Committee, lawyers will have their first opportunity to record their pro bono on the July 2019 dues statement.<br />Gantz also said that her committee is working with the Access to Justice Commission to have Whitfield present the study's findings at the next committee meeting where they will begin the process of instituting practices which level the playing field for unrepresented litigants.<br />Meanwhile, the Access to Legal Services committee is currently working to enhance access to free and low-cost legal services. They published an updated version of their Free and Low Cost Legal Resources in Virginia guide in 2017 and work with partners to help make self-help resources more available.<br />They're currently exploring options for automating court forms to make them easier for non-lawyers to comprehend.<br />"In addition to the numerous programs available through its various conferences and sections, the bar provides direct pro bono services to Virginians in need through Virginia Free Legal Answers," Gantz said, describing the website which allows volunteer attorneys to offer limited scope pro bono advice to low-income individuals.<br />She said that Virginia is highly ranked for its responses on the national website.<br />"Virginia attorneys have answered 919 of 976 questions asked on the site, a 94 percent attorney response rate," Gantz said. "Virginia is consistently ranked as having the highest or second highest attorney response rate in the country."

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Author:Chaney, Matthew
Publication:Virginia Lawyers Weekly
Date:Apr 27, 2018
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