Court Uses RAP to Improve Divorce Cases for Self-Represented Litigants

Danielle Elyce Hirsch, Assistant Director, Administrative Office of the Illinois Courts, Civil Justice Division
James “Dan” Wallis, Trial Court Administrator, 22nd Judicial Circuit of McHenry County, Illinois

State courts are improving the service they give to litigants who cannot afford lawyers. The Resolution Assistance Program in McHenry County, Illinois, has cut disposition times by more than half in divorce cases involving self-represented litigants.

There is strong interest across Illinois’s state courts to better meet the needs of self-represented litigants, especially in family-law cases. The Alaska Early Resolution Program was the inspiration for the 22nd Judicial Circuit of Illinois (McHenry County) and the Illinois Supreme Court Commission on Access to Justice (ATJ Commission) to develop the Resolution Assistance Program (RAP) for Divorce Cases with Self-Represented Litigants. The goal of RAP is to triage family-law cases and identify “simple” cases that could proceed through the court system quickly, then put them on a path to do so. RAP involves the strong partnership between court staff (especially the court’s self-represented litigant coordinator and trial court administrator), judges, the circuit clerk’s office, the ATJ Commission, and one civil-legal-aid attorney. During this initial pilot phase, RAP helps self-represented couples seeking divorces without children, complicated assets, or allegations of domestic violence to complete the legal process efficiently within a few short months.

The Increase in Self-Represented Litigants—and Their Needs and Perceptions of Courts

As shocking as it may be to people who work in the judicial system, most people who appear in court do not want to be there, unless perhaps they are appearing for an adoption. By design, courts are an adversarial arena, with both sides represented by counsel, a process that is often uncomfortable and intimidating. Even though more than 100 years have passed since Roscoe Pound delivered his now famous speech to the American Bar Association National Conference, his concerns are as valid today as they were in 1906. Pound began by stating that “the dissatisfaction with the administration of justice is as old as law.”[1] Pound theorized that dissatisfaction with the courts was rooted in the mechanical operation of the law, the difference in the law and public opinion and the assumption that the administration of justice is easy, and the popular impatience of restraint. The same observation could be made by modern authors examining the current judicial climate. Much has changed since 1906; unfortunately, many of those factors of dissatisfaction remain. Many litigants feel the court takes too long, and it costs too much to litigate.       

Chris Crawford, a court consultant with more the 30 years of court management experience, once theorized that the Trial Court Performance Measures were a mathematical equation. According to Crawford, by providing access to justice, plus expeditiousness and timeliness in case processing, plus equality, fairness, and integrity in the process, plus independence and accountability from the other branches of government, only then would the judicial branch of government attain the public’s trust and confidence. Using his analogy, providing access to justice is the foundation that all courts should be built upon. Taking it a step further, providing equal access to courts, regardless of race, language, or ability to afford an attorney, is the foundation of today’s American legal system.

The state courts are in the midst of a massive shift in their user base. In many case types, including family-law disputes, most cases involve at least one party who lacks legal representation or, put another way, is self-represented. There are myriad reasons for the rise of self-represented litigants. In the Institute for the Advancement of the American Legal System’s (IAALS) “Cases Without Counsel” study, self-represented litigants were interviewed. Just over 90 percent of all participants indicated that “financial issues were influential, if not determinative, in this decision. It was the most consistently referenced motivation for proceeding without an attorney.”[2] In the 2017 “State of State Courts” public-opinion survey, 63 percent of all respondents agreed with the statement, “Despite the cost, I would want to be represented by a lawyer anytime I was dealing with the court system.”[3] This indicates that 37 percent of those responding would be willing to appear in court without the aid of counsel, based on the cost of hiring an attorney. As noted in Future Trends in State Courts 2010, “It’s not their fault they can’t afford a lawyer, but it becomes our responsibility to deal with it.”[4]

To believe that well-trained attorneys are present on both sides of most court cases is simply untrue. The National Center for State Courts’ analysis of the landscape of civil litigation found broadly that “the idealized picture of an adversarial system in which both parties are represented by competent attorneys who can assert all legitimate claims and defenses is an illusion.”[5] In Illinois, 63 percent of all dissolution cases filed with the circuit courts in 2015 had at least one self-represented litigant as a party. This number rose to 66 percent in 2016.[6] Courts must innovate and adapt—while maintaining their role as neutral arbiter of law and fact—in response to these changing case demographics, especially in family law.

Family-law cases can be among the most protracted and stressful proceedings for litigants. The stakes in family-law cases are deeply serious. Self-represented individuals struggle to present their cases and follow proper court procedures. This can result in negative experiences, which do not promote public trust and confidence in the judicial branch of government. Additionally, as a case drags on, negative behavior is more likely to happen.

Courts, especially family-law courts, are no longer the arena of the judge and lawyers, with rules created for the benefit of both. Now a great majority of people in family-law cases are self-represented, and the court system must meet the needs of the judge, the litigants, and lawyers (when present), not just the judge and the lawyers. This suggests that we need to figure out how to make the court system more responsive to needs of the users of the court system, including people without lawyers.

McHenry County’s Resolution Assistance Program (RAP)

Expectations of the courts have also changed since the time of Roscoe Pound. In the ever-changing world of technology and the era of instant access to nearly everything via a smartphone, people want the court to change to meet their expectations. This is true even for those who cannot afford an attorney. Most states have created access-to-justice initiatives to develop strategies to promote better access to the court system. These initiatives were further affirmed by the Conference of Chief Justices and Conference of State Court Administrators with the adoption of Resolution 5, in which the aspirational goal of 100 percent access to effective assistance for essential civil legal needs was established.[7] One such initiative is the Early Resolution Program for Family Law Cases (Early Resolution Program) in Alaska’s courts. This court-based and court-managed program provides self-represented litigants with early limited assistance from legal professionals to help parties resolve their issues, which, in turn, frees up time for judges to focus on more complex cases.[8]

RAP has three main objectives: to provide meaningful and efficient access to the court, to fit within the local legal culture, and to meet the needs of the self-represented litigants, especially those who largely agree on the direction of their family-law cases. The 22nd Judicial Circuit of McHenry County—similar to many other jurisdictions within Illinois and nationally—has a considerable number of divorce cases involving self-represented litigants: nearly 30 percent of all divorce cases filed in McHenry County involve self-represented litigants as both plaintiff and defendant.

As part of this pilot program, all divorce cases filed with the 22nd Judicial Circuit are screened to determine if the case meets program criteria, which were established as follows:

  • both parties are self-represented;
  • ·no children are involved;
  • ·non-complex marital assets;
  • ·non-complex marital debts;
  • ·no pending orders of protection; and
  • ·no pending cases of domestic violence.

If a divorce case satisfies all the criteria, both parties are invited to participate in RAP. A letter is electronically generated advising them of the program, their eligibility, and the location and date of the next RAP session, and it provides an informational brochure outlining the program, its goals, and what the litigants can expect, as well as providing links to available simplified family-law forms. Both parties must attend the program session to proceed. If either party fails to appear, the case is returned to the traditional calendar.

The program uses a “problem-solving” model, rather than the traditional adversarial approach. Because parties are given the necessary legal documents before their RAP hearing, the parties themselves can come to their court hearing prepared and ready to finalize their divorce.

A local family-law judge of the 22nd Judicial Circuit presides over each RAP session and opens the hearing with an overview of the expectations of the court and what litigants can expect from the program. Litigants then meet with a partnering civil-legal-aid attorney from Prairie State Legal Services, or a court research attorney, who assists the self-represented litigants to ensure that the case is appropriate and ready for court review and, if necessary, aids in the completion of paperwork. To be successful, the parties must work together to come to an amicable resolution of their case. Program sessions are scheduled once per month and are held in one of the courtrooms at the McHenry County Government Center.

If parties resolve outstanding issues and complete the necessary paperwork, the litigants will return to the courtroom for “prove up” of the dissolution of marriage the same afternoon. If the individuals fail to achieve a resolution, the case will be returned to the regular calendar for hearing and trial. Litigants can return to another program session if both parties believe that this would be beneficial in resolving the case.

The desired goal of RAP is to shorten the length of time from the date of filing to case disposition, which will reduce costs due to lost wages for litigants attending court hearings, provide meaningful access to the judicial system, and reduce the number of case-processing steps and the number of post-dispositional hearings.

While still in its infancy, the feedback from participating litigants (even those whose cases were not settled during the RAP program) has been extremely positive. Before this program, upon filing, the parties would receive their initial conference-scheduling date 90 days from the date of filing for their first appearance. The 22nd Judicial Circuit does have robust services for self-represented litigants in the form of a law library and a self-help center. Due to these resources, the average time to disposition in cases with self-represented litigants was 93 days. Since the start of the program, the average time to disposition has been reduced to 40 days—this is a reduction of more than the half the waiting time. The shortest time from filing to disposition has been six days. Of the cases that have been invited to participate in RAP, 65 percent have chosen to do so. Only on three occasions have both parties not attended RAP, which resulted in those cases being returned to the traditional court calendar. For the remaining cases, the program has a 96 percent disposition rate.

Across Illinois, there are many initiatives that serve self-represented litigants.[9] And yet, there is room for more. RAP, especially in its current pilot phase, proves that active court management and simple changes in court process can significantly speed up case resolution. Court leadership must have the courage to challenge the status quo and make changes to better serve court patrons. Courts that wish to remain relevant must make changes to how cases are managed and should explore programs like RAP.

[1] Roscoe Pound, “The Causes of Popular Dissatisfaction with the Administration of Justice,” address to the American Bar Association, August 29, 1906.

[2] IAALS, “Cases Without Counsel: Research on Experiences of Self-Representation in U.S. Family Court,” University of Denver, May 2016, p. 12.

[3] National Center for State Courts, “The State of the State Courts,” poll conducted by GBS Strategies for NCSC, Williamsburg, Virginia, 2017.

[4] John T. Broderick, Jr., “The Changing Face of Justice in a New Century: The Challenges It Poses to State Courts and Court Management,” Future Trends in State Courts 2010 (Williamsburg VA: National Center for State Courts), p. 62.

[5] Paula Hannaford-Agor, Scott Graves, and Shelley Spacek-Miller, The Landscape of Civil Litigation in State Courts (Williamsburg, VA: Civil Justice Initiative, National Center for State Courts, 2015).

[6] Danielle Hirsch, “Self-Represented Litigant Data,” ATJ Community Roundtable, April 2017.

[7] Conference of Chief Justices and Conference of State Court Administrators, “Resolution 5: Reaffirming the Commitment to Meaningful Access to Justice for All,” adopted at 2015 annual meeting.

[8] Stacey Marz, “Early Resolution for Family Law Cases in Alaska’s Courts,” Alaska Justice Forum 31, nos. 1-2: 13-17.

[9] See National Center for State Courts, “Self-Representation: Resource Guide,” Williamsburg, Virginia.

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.