GHOST COACHING: A REPORT FROM A PRO SE ASSISTANCE PROGRAM VOLUNTEER

JONA GOLDSCHMIDT*

The history of pro bono legal services can be traced to John Adams’ defense in 1770 of the British soldiers charged in the Boston Massacre. It began in earnest during the Progressive Era.1 Pro bono legal services were meant to provide access to justice for those individuals of limited means who cannot afford standard legal fees. It is an adjunct to funded legal services. Today, the American Bar Association promotes and coordinates numerous state and local pro bono efforts nationwide.2 It also codified into its Model Rules of Professional Conduct lawyers’ obligations with respect to enhancing access to justice generally, and pro bono legal services in particular.

According to the preface of the Model Rules, a lawyer, as a public citizen, “should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”3 Today, according to § 6.1, lawyers “should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” The rule further states: “Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.”

Under the rule, this obligation may be satisfied in various ways, such as (a) providing free legal services to persons “of limited means,” (b) or organizations having the purpose of providing such services, and by providing “any additional services” through delivery of legal services (c) “at no fee or substantially reduced fees” to individuals, groups, and organizations which promote “civil liberties or public rights,” where payment of standard legal fees “would significantly deplete the organization’s economic resources or would be otherwise inappropriate,” (d) “delivery of legal services at a substantially reduced fee to persons of limited means,” and (e) “by participation in activities for improving the law, the legal system or the legal profession.” Lastly, “a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.”

Some states have adopted a “mandatory volunteerism” requirement on lawyers or are contemplating doing so. This caused the ABA to issue a white paper arguing in part that lawyers should not be mandated to provide legal services because it “stirs the pot” regarding the long- standing debate on the issue; and that the overly broad definition of qualifying pro bono services dilutes the original meaning of the term, which focused on direct legal services to individuals in need, rather than organizations.4 Nevertheless, the ABA has issued an urgent call for pro bono lawyer volunteers to provide legal services to those unable to afford them in a variety of legal fields.5

Concurrently, unbundled (or limited scope) legal services, proposed in the 1990s to help close the so-called “justice gap” between the indigent served by legal services and those of moderate means has become a popular additional method of contributing to the improvement of access to justice. Legal services short of full representation consist, for example, of merely advising clients regarding their legal rights, advising them regarding the required content of a complaint (or a theory of defense), possibly ghostwriting a legal document, or a combination of these services. Distinguished from pro bono services, these are paid legal services, in most cases at a reduced rate, but only for discrete tasks, much akin to the work of a transactional lawyer.6

This paper is a participant observation study describing my experiences while engaged in a program that fulfills my ethical obligation to promote access to justice, as well as my obligation to provide pro bono legal service to those unable to afford standard legal fees. My clients in the U.S. District Court (N.D. Ill.) Hibbler Memorial Pro Se Assistance Program (named after a former judge of the court) are pro se litigants, who I refer to here as self-represented litigants. The services are provided as part of a rare program developed by the District Court in conjunction with Legal Aid Chicago. Any current or future self-represented litigants wishing to may sign up online for a free 45-minute session with a volunteer lawyer every month. This program has been a long time coming given the large number of self-represented litigantss in our courts. Additionally, it fulfills the need to provide greater individualized advice services rather than the too general, but more common, assistance provided at self-help centers and legal educational clinics.

The purposes of this paper are twofold: (1) to enlighten the reader as to the unfortunate situation in which the self-represented find themselves in civil litigation (beyond the small claims category), and thereby incentivize more lawyer participation in such programs and (2) to improve the effectiveness of unbundled, pro bono legal services to such litigants.

Program Description

• The scope of limited representation afforded by the program is described as follows: The Program attorney will:

• Assist you by providing information about federal court procedure and the law as it applies to the facts as you describe them;

• Explain the status of your case;

• Assist you in understanding and in helping you to prepare certain of your own pleadings, motions, or other court documents;

• Assist you in accessing other sources of information about your legal issues;

• Refer you, in appropriate cases, to other providers of civil legal services or to social service agencies; and

• Keep any personal information you provide confidential, unless you agree in writing to its disclosure.

The Program attorney will not:

• Appear on your behalf in court;

• Research or write court documents for you;

• Conduct any investigation into the facts of your case;

• Communicate with your opponent or your opponent’s attorney;

• File, serve, or mail anything on your behalf;

• Assist you if you are currently incarcerated, or

• Assist you with a criminal case.

The Program attorney may decline to assist you after interviewing you if:

• The Program attorney already has given advice to your opponent;

• Your legal problem is beyond the scope of the Program; or

• In the Program attorney’s view, giving legal advice conflicts with any provision of the Illinois Rules of Professional Conduct.7

Before clients receive their appointment with a volunteer lawyer, they must first sign a statement of understanding which explains the limited scope of the representation they will receive. It states:

• The Help Desk is free.

• Neither the Help Desk nor any of the volunteer attorneys working at the Help Desk have agreed to represent me in my case. I remain at all times my own representative with regard to my legal matters.

• Volunteer attorneys at the Help Desk provide legal advice on federal procedure and the law, based on the facts of my case.

• The Help Desk volunteer attorneys agree to assist me in preparing certain of my own pleadings, motions, or other court documents.

• The Help Desk volunteer attorneys agree to provide me with referrals for other legal assistance.

• The Help Desk volunteer attorneys will not appear on my behalf in court, negotiate with my opponent (or opposing counsel) on my behalf, or send out correspondence for me.

• The Help Desk volunteer attorneys have not agreed to research or write court documents for me, conduct any investigation into the facts of my case, photocopy or print documents for me, or provide me with any supplies.

• All Help Desk volunteer attorneys will keep information about my case confidential, consistent with the Illinois Rules of Professional Conduct.

• Any Help Desk volunteer attorney may decline to assist me if they have given advice to my opponent, my legal problem is beyond the scope of the Help Desk, I am rude or otherwise disruptive, I have violated any other Help Desk rule listed in this document, or if the volunteer attorney believes that giving me advice conflicts with any provision of the Illinois Rules of Professional Conduct.

• If I miss two appointments without canceling ahead of time, I will no longer be able to receive assistance from the Help Desk.

• I cannot sign up for more than one appointment within a twoweek period [recently changed to once a month due to heavy demand].

• If I have a complaint about the services I receive at the Help Desk, I may send a letter through regular mail to the following person and will receive a response within a reasonable time.8

The volunteer lawyer manual I received described my duties as follows: “Advise pro se litigants on procedural matters, review and edit or explain documents, and provide assistance on all phases of litigation.” Before the start of the COVID-19 pandemic, volunteer lawyers met with clients in person. Since then, appointments shifted to videoconferencing through the Zoom application. The manual advises lawyers that the program coordinator: will email you any relevant documents that she can find for the client prior to the start of your shift, including your schedule for the day. This includes the client’s contact information, the client’s docket report (if the client has/had a case with the federal court), and the notes from the client’s previous appointment (unless the client is new to the program). Sometimes the clients email us documents they would like to review with the volunteer during their appointment, including drafts. If the Coordinator receives them, she will forward them to you from our program’s email account since sometimes clients include a message about their case when they email their documents. Clients are advised to send us their documents at least a day before their scheduled appointment.

Volunteer Recruitment and Training

Having recently retired from teaching, I found myself with time on my hands and decided to apply to advise self-represented litigants on their civil cases through this volunteer program. This is one of 20 pro bono programs which this impressive legal services organization has underway. After submitting my application, which sought background information regarding my legal experience, I was approved and invited to participate in a Zoom training session. I shadowed a volunteer lawyer assigned to provide advice in that morning session.

Lawyers know that we each have a different perspective on the merits of a case or a theory to pursue in litigation. And I was informed that the requirements of the grant which funds the program and the malpractice carrier required that we limit our advice to procedural matters.

So, during the shadow session, I found it curious that the lawyer responded to the client’s technical question about the operation of the rule to vacate a judgment by stressing that he should be polite and respectful to the court. I was uncomfortable with the limited extent of that advice, so I chimed in by reciting the applicable language from the rule in question. This gave the client knowledge of the specific requirements of the rule of which he was unaware. The session ended with the client thanking us for the assistance received. Thus, I realized early on that the extent of advice to a client can vary greatly depending on the lawyer giving it.

Future Appointments with the Same Client

Informally, the program director advised me that they discourage clients from thinking that any of us are their attorney for the entire matter they are litigating. Thus, they assign clients to attorneys randomly over time. This makes it very interesting for the lawyers because they see a wide range of cases for which the self-represented need assistance at all stages of the litigation.

Nevertheless, I have had occasion to advise the same client on several occasions. This is very helpful, since some of the cases are factually complex and take time for clients to explain to the lawyers, despite the fact we are provided with their case docket sheets and their complaint or amended complaint. Sometimes the complaints are prolix and not easy to follow, so one has to ask questions of the client to get a sense of the substance of their complaint. If I see a client on a subsequent occasion, I will be up to speed and the client won’t need to spend time explaining the nature of their complaint again.

The program also discourages direct contact with clients outside the program sessions.

This, too, was explained as being part of the funder’s and malpractice insurance company’s requirements. Thus, when the client needs a template for this or that motion or discovery tool, I refer them to the program coordinator who then emails the client the document requested.

Case Notes

At the conclusion of each three-client session, consisting of three roughly 45-minute interviews, I prepare case notes describing each case and advice provided. The case notes include the type of case, upcoming deadlines, the procedural disposition of the case, and a note describing the services provided. There is no required format for these notes, and I have seen a wide variation among the notes written by the previous lawyer who advised the client. Some are detailed and others are very general; some state what the client said he would or would not do given the advice received, and others do not; some discuss the client’s state of mind as he or she expressed it to the lawyer (e.g., “She stated she is ‘overwhelmed’ by the procedural requirements in the case”), and some do not.

Templates and Forms

As noted, the program coordinator has a slew of forms and templates available to the clients, which they may request or about which they are informed. These are very basic, such as a form for a pro se appearance, a motion, or for interrogatories.

The more complex motions, such as those for summary judgment, or, more importantly, forms for responses to such motions, are not provided. To remedy that situation, I found pleadings from the other cases where such documents were filed and provided them to the program coordinator for distribution to self-represented litigants upon request or at the suggestion of a volunteer attorney. I still have to explain the meaning of dispositive motions, discovery, etc., to the clients. Despite my relatively brief and hurried explanations, most of the clients still have difficulty with understanding their obligations under the relevant rules of procedure.

Settlement Assistance Program

My experience is that our self-represented plaintiff clients (just like represented parties) are generally willing to discuss settlement of their claims, but their opponents usually are not, at least not until they prevail at the summary judgment stage. The court, on the client’s motion, can refer self-represented litigants to a settlement assistance program run by another legal services organization in those rare cases where the opponent is willing to discuss settlement. They have pro bono lawyers willing to assist the self-represented in efforts to settle their cases, which is routinely recommended by the court. If there is a willingness by both parties to discuss settlement, the program coordinator will provide the client with a form for a motion requesting the court to appoint an attorney from that program for the limited purpose of settlement negotiations.9

In Forma Pauperis Issues

Indigent litigants in the court have a right to proceed in forma pauperis—that is, without the required prepayment of filing fees and court costs—if they demonstrate through a financial means affidavit that they are unable to pay the fee and costs, and that they are unable to afford to hire private counsel. Most of the self-represented litigants come within that category and are granted IFP status. Over the months I have learned some interesting things about the IFP process.

For example, some self-represented litigants, being unaware of the IFP procedure, scrape together the $402 fee to file their civil complaint from their own or borrowed funds. Then, after advising the client of their right to apply for IFP status they would do so, only to have the court rule that the IFP issue is moot because client was able to pay the filing fee. In some cases, if their IFP application was initially denied, and if I learn their financial circumstances have substantially changed, I will advise the litigant to file a renewed application.

The matter of IFP status is important primarily because of the cost of depositions, which the government would pay on behalf of someone with that status. An equally important additional benefit of IFP status under the applicable statute, which furthers access to justice, is that the court has discretion to recruit—not appoint— counsel for litigant with IFP status. Most self-represented litigants are unaware of the benefits of IFP status.

Counsel Recruitment

The court’s forms made available to the self-represented online by the U.S. District Court (N.D. Ill.) include a form Motion for Attorney Representation. Most of our pro se litigants file this motion, expecting it to be granted due to their indigency. I have to explain to them that the court has no authority to compel counsel to represent a party;10 even though, as a condition of becoming a member of the court’s trial bar (as distinguished from the general bar), lawyers have an obligation to “be available for assignment” to represent and assist those who cannot afford counsel.11

Under 28 U.S.C. § 1915(e)(1), “the court may request an attorney to represent any person unable to afford counsel.” Under the applicable caselaw interpreting the IFP statute, courts require an eligible litigant as a threshold matter to make a reasonable effort to secure private counsel before considering a motion for “appointment” of counsel.12 There is no definition of “reasonable efforts,” but some courts apply the “three-attorneys rule.” That is, if the litigant can show the court letters from three attorneys refusing to accept their case, then he or she has established that they took reasonable efforts to secure private counsel. I have also seen a court order that a self-represented litigant not only provide evidence of three efforts to secure private counsel, but also required them to explain why each lawyer or firm refused to take the case.

Absent exceptional circumstances, the court in which our litigants appear will never attempt to recruit counsel for self-represented until after they prevail on the defendant’s motion for summary judgment. In routinely denying recruitment of counsel requests “without prejudice,” judges often note the ability of the litigant to adequately manage the litigation at an early stage of the case, based on their writing ability, their invocation of appropriate rules, or their application of pertinent case law. I have read language like the following from the court denying a motion for appointment of counsel this way: “If the case gets too complicated for plaintiff to manage, the court will reconsider attorney recruitment.”

Self-represented litigantss, with or without IFP status, have no inkling of the complexity of law. Yet most courts have held that such litigantss are held to the same rules as represented parties. So self-represented litigants have the obligation to find, understand, and follow the rules of civil procedure which is not easy for the lay person. They then have to navigate the dispositive motion to dismiss, when they cannot understand what is required of them when facing such a motion. After this they must engage in discovery, and then they respond to a motion for summary judgment. It is only after these three stages of litigation, if the plaintiff's claim is found sufficient to avoid summary judgment, that the court will begin its efforts to recruit counsel (or appoint settlement counsel).

This imposes a tremendous burden on self-represented litigants. It is the rare one indeed who can survive the typical lengthy and complex civil litigation process, to be fortunate to prevail against a defendant’s motion for summary judgment, and then to have counsel recruited by the court. An empirical study of the effects of the courts’ policy of delayed counsel recruitment on case outcomes would be helpful.

On occasion, a self-represented litigant with IFP status files a claim that I think has merit but he or she is unable to persuade the court to recruit counsel. In that case, or even if the client does not qualify for IFP status, I will take the liberty of referring the client to attorneys I know who have the expertise relevant to their claims. The fact that I am referring them to counsel I know gives them a little edge in terms of the lawyer considering whether to take the case.

Rules of Procedure

Our clients are usually referred to the program by the court, so most have already filed their complaint, usually using the court’s online forms. At this point they know nothing about the rules of procedure. I have found that self-represented litigants are, in most cases, unaware of the rules and unable to find, much less understand them.

The court’s web site has a page for the self-represented that provides a link to the government’s PDF version of the Federal Rules of Civil Procedure. The document has historical notes and comments and other extraneous matter up front, which are no doubt incomprehensible to the typical litigant. The actual rules appear lower on the document, but frustrated self-represented litigants may give up after trying to understand the first irrelevant sections. I, therefore, refer them instead to the Cornell Legal Information Institute website, which is much more user friendly, containing links to the full text of each rule. I also guide them to the local rules, which are also not easy to find on the court’s website. I try to explain to my clients the difference between the federal rules and the local rules, and how the court expects both to be followed.

Complaints

As noted above, the court’s website has a page for self-represented litigants, which contains two fill-in-the-blanks and check-the-boxes complaint forms, one for employment discrimination cases and the other for civil rights cases (one set for prisoners and another set for non-prisoners). They are not interactive PDFs, and, while useful, they provide only a few lines to state the facts of the case. The litigant is instructed to add additional pages to state the facts supporting their claims. Sometimes, the litigant's complaints are described in a long narrative that spans years, often including a litany of incidents that are not easy to follow.

Self-represented litigants are not aware of the rule requiring a short and plain statement of facts, and because they throw the proverbial “kitchen sink” in their complaints, it makes their often-prolix pleadings subject to dismissal. I counsel them to amend their complaint by reducing the number of allegations to those that are essential and limiting the number of exhibits. Many of the litigants who I see early in the litigation are unaware of the right to file an amended complaint before, in the face of, or after a motion to dismiss is grant- ed. I have been asked, “Is there a form for an amended complaint?”

Service problems are not uncommon after a self-represented litigant files his or her complaint. These are the same as those that lawyers face, such as not being able to find a named defendant or serving the person who is not a registered agent of a corporation and waiting on a response that will never come due to improper service. The self-represented are unaware of the requirement that corporations be served through their registered agent and try to serve the complaint on others in the defendant business or organization.13 Those who are suing the government, or an agency thereof, or certain public employees, are unaware of the special service rules that apply in those circumstances. The litigants with IFP status fare slightly better than those without it at the service stage. The clerk of court assists those with IFP status by providing them with the requisite court summons with instructions for filling it out and attaching a copy of the complaint, and by providing them with the USM 285 form to be filled out and sent to the U.S. Marshal Service for service on the defendants.

Filing, Docket Sheet, and Status Reports

Now that COVID-19 restrictions are lifting, some self-represented litigants will go in person to the office of the clerk of court to inquire about filing a complaint and getting the forms to do so if one is available. Others find the court’s website and locate these forms there. Still others with allegations not fitting into the court’s form will find a similar complaint through Google or other means and use it as a guide. The filing is accomplished by the litigant going to the clerk’s office or using an email address for the clerk’s office provided on the court’s website and sending the complaint and other papers thereby.

The clerk of court offers a required video training if a litigant seeks to use the court’s e-filing system. I have found only a few self-represented litigants who are willing to take the training and get their e-filing credentials. This may be because of their lack of literacy, their lack of confidence in their own computer skills, or even the lack of a computer, which is not uncommon.

While volunteer lawyers are provided the docket sheet in the self-represented litigant's case, unless they have earned credentials to go into the court’s e-filing system, they will not have access to it. Hard copies of orders entered in their cases are sent via United States Postal Service. Thus, litigants do not have a bird’s eye view of their case and all the dates of documents, events, and orders entered in it. When I share my Zoom screen and show them the docket sheet, they usually say they’ve never seen it before.

Status reports are required by many judges. These are usually termed Joint Status Reports in our court, which require the filing of an agreed report describing various features of the case. Self-represented litigants are unaware they will need to communicate directly with legal counsel for their adversary. Despite their reluctance to do so, I inform them that this will be a necessity throughout the litigation on a variety of matters. I show them where the form is located on the court’s, or the individual judge’s, website.

Since the start of my volunteering, I have noticed that many self-represented litigants do not have a computer. They enter a Zoom session and do all of their research and drafting on their smart phone. Many times, they enter a Zoom session via telephone, not being aware that they can access the session through video. I encourage them to enter a session through video, if possible, so I can share my screen and show them specific rules, resources on the court’s website, or to teach them legal research using Google Scholar.

Consent to Magistrate Assignment

It is common for federal courts to inform the parties at the outset of a case that the magistrate is available to be assigned the entire case— rather than merely hearing only preliminary matters and discovery—by consent of the parties. This notice is another of the myriad of confusing procedural things that are foreign to the self-represented. When asked what this notice means, I first explain the nature of the two levels of judgeships; the respective functions of each; and how (with the parties’ consent) the magistrate can go beyond handling preliminary matters and discovery to hear the entire case.

Of course, the client then asks why this is done. This requires an explanation of the factors that go into consenting to this option, such as knowing the magistrate’s general reputation as a “good” judge, knowing his or her leanings on the law, prior decisions, the fact the case may move more quickly, etc. In some cases, I am asked these questions after the litigant has already submitted the consent due to the time lag between their filing and the first appointment with a program lawyer.

Motions to Dismiss

The typical self-represented litigant is unfamiliar with this first line of defense to their complaint and what their obligations are when receiving it. I have to explain the nature of such a motion and ask them to summarize the points made in the motion if they have just received it. This is because the documents we get from the program coordinator are limited to the docket sheet and the latest complaint. We don’t see all the actual filings in the case.14

I explain the nature of the motion to the self-represented litigant and their obligation to respond to the points raised in the motion. After being informed of the nature of the points made in the defendant’s motion, I make suggestions for how the client can respond to each. Often, I can guess what the points are in the defendant’s motion just by looking at their initial complaint. We cannot ghostwrite the clients’ legal papers, so all I can do is tell them to take notes on my suggested responses and proposed language they could include in their response. Sometimes I have to go very slowly so they can write these things down. I often leave the session wondering how this brief session will translate into a coherent and readable response.

I also explain to them that they will need to conduct legal research to distinguish the caselaw cited by the defense in their motion to dismiss, find additional favorable caselaw to support their claims, and describe these to the court in their own legal memorandum. They are usually (and naturally) fearful of having to do all that, especially conducting legal research on their own. We show them Google Scholar,15 which provides them with basic research tools at no cost. I necessarily have to give them a quick law school lesson distinguishing authoritativeness versus persuasiveness in terms of what cases they plan to cite (preferably from our Seventh Circuit), how to cite a case, etc. Imagine having to learn these things in about the last 15 minutes of a 45-minute session.

It is also necessary to explain the amendment process. The self-represented do not know they can amend their complaint several times after successive motions to dismiss. I explain that each time there may be one or more deficiencies found by the court in their complaint, these must be cured in the next amendment if further pleading is permitted by the court. I also advise them that, if they believe the first motion to dismiss has merit, e.g., improper party, then they can just seek leave to amend the complaint without the necessity of responding to the motion.

I don’t get into the possibility that the court may consider a motion to dismiss as a motion for summary judgment where facts are in dispute. This would require me to explain the summary judgment process, which in and of itself is so complex it would probably not be understood or remembered anyway. Fortunately, this treatment of a motion to dismiss as one for summary judgment is fairly rare, so it’s one less thing with which to burden them. They will eventually be burdened with learning about summary judgment anyway later in the litigation.

Discovery

If their complaint survives the defendant’s motion to dismiss, the self-represented litigant go on to the discovery stage. After the denial of the motion to dismiss, the parties meet with the court in a status hearing and a discovery schedule is agreed upon or ordered, with deadlines for the close of fact and expert discovery. Most do not know what to do next. They are unfamiliar with any of the discovery rules, so—hopefully at an early stage of discovery—I will provide them with a brief overview of the process and explanation of the different discovery tools available under the rules; mandatory discovery; the nature of planning strategy; and logistics of depositions, motions to compel, and other relevant issues.

In my experience many don’t engage in much discovery unless they have come to our program for guidance in this complicated stage of the litigation. I explain to them the importance of engaging in discovery, primarily focusing on its later use to oppose the defendant’s motion for summary judgment which will surely follow. For some, this is the first time they learn about the rules of civil procedure and the related local rules of court. They need to be informed of the strategy to be used in discovery, in terms of the order of use of discovery tools. They also need an understanding of depositions, how to prepare for them, how to schedule them, how to retain a court reporter, how to prepare exhibits, etc.

I have, on occasion, encountered self-represented litigants with a penchant for filing motions to compel discovery where they believe the defendant is withholding disclosure and production of evidence. Courts generally deny these based on counsel’s certification that there is nothing more to disclose. But some are so suspicious of defendants and are not satisfied with their denials so they make repeated but unsuccessful efforts to sanction their opponent.

A few are quite adept at propounding interrogatories, requests for production, and requests for admission. I have encountered several, what I would call, “expert self-represented litigants,” so called because of their ability to read and understand most of the law, the rules, and formalities of the justice system.16 Every once in a while, I encounter a client who seems to enjoy the litigation process because it has been so educational for them.

Summary Judgment

The motion for summary judgment argues that the movant is entitled to a judgment as a matter of law without trial because there are no genuine issues of material fact in dispute. In our court, both the rules of civil procedure and the local rules of the court describe summary judgment practice. Both describe the movant’s requirements, i.e., motion, memorandum of law in support, and statement of undisputed facts, supported by admissible evidence (sworn-to testimony and documents), and the respondent’s obligations, i.e., response to motion, memorandum in support, responses to defendant’s state- ment of undisputed facts, and a statement of supplemental facts in dispute in support of the response. Preparation of these documents, lawyers know, is very challenging. One can imagine the reaction of a self-represented litigant when informed of these requirements.

Fortunately, the court has a local rule that provides a lay person’s plain English explanation of the obligations of both summary judgment movants and respondents. But there are no forms available to them on the court’s website. Neither did our program have any forms or templates for summary judgment practice. I poked around through PACER on the court’s docket and found for the program a case that had examples of these documents that would be useful as forms to follow by our clients. In the course of providing the client with summary judgment instruction I find it also necessary to instruct them on the meaning of admissible evidence, cautioning them not to cite the allegations of their unsworn complaint or other statements in response to that motion. Legal research training is again required in order to strengthen the client’s response to the motion.

“I’m just overwhelmed” is a common refrain I have heard from our clients when they try to understand their obligations in litigation. I have heard several say they have a greater respect for attorneys now, even though they can’t persuade them to take their case, because they have come to understand the complexity of the justice system and the requirement of an in-depth education in order to navigate it.

Problem Clients

Our clients are overwhelmingly grounded individuals who believe in good faith that they have been wronged and now seek justice. I have on a very few occasions encountered four problem clients. There is the client who had a patently frivolous case but became upset when I informed him the court may very well dismiss it. Another was, in my opinion, delusional, and I asked not to be assigned to him again in the future. Still another was so angry over his treatment in a correctional institution that it distracted him from understanding my explanation of the litigation process. Lastly, there was the client who said, “I know all that . . .” and didn’t want to hear anything further. Fortunately, these clients were a rare occurrence during my time volunteering for the program and should not deter anyone from volunteering in a program such as this. The overwhelming number of clients are rational and suing in good faith with colorable claims.

Observations and Suggestions

My experience in the pro bono assistance program has been extremely gratifying. I feel I and the other lawyers in the program provide valuable assistance and increased access to justice for our clients. We can give them specific advice relating to their case, not just general advice that they may find from the internet or other sources. We do so anonymously, in so far as the court is concerned, thus the reference to “ghost coaching” in the title of this paper.

This court, like some others, is on the one hand adamantly against ghostwriting, that is, the practice of lawyers drafting complaints or other legal papers for a self-represented litigant (with or without disclosing their identity to the court or opposing counsel), on ethical and other grounds.17 In contradiction to its anti-ghostwriting position, the court favors the ghost coaching I and other pro se assistance program volunteer lawyers offer. In fact, the program model using volunteer lawyers who need not enter an appearance to provide “behind the scenes” individualized legal services originated at the court’s instance in 2001. The contradiction should be addressed so that our clients can receive both ghost coaching and ghostwriting assistance. It makes no sense to deny one and favor the other.

I would also suggest the program be expanded to allow lawyers to provide substantive legal advice, not just procedural advice. We need to point out statutes of limitation, for example, or the statutory elements of a cause of action, or provide other information that falls within the mixed substantive/procedural category. Grant funding sources and malpractice insurance carriers (who can insist on appropriate liability waivers from clients) should support and cover such substantive advice services that are as critical to a client as procedural matters.

I would recommend changing the lawyer assignment process such that self-represented litigants could sign up for specific volunteer lawyers. This would establish a maximum (but not perfect) continuity of legal services and avoid the necessity of the client having to describe the facts or procedural posture of their case each time they seek advice. I enjoyed seeing some of the same clients from time to time and seeing how their cases have progressed. Attorneys who prefer random assignment should be given that option.

On a personal level, I found that I wanted to take almost every case which I thought had merit, but of course I didn’t have the time or resources to do so. So, I enjoyed being involved in a case and helping the clients and the court without having the stress of litigation. I find it unfortunate, however, that not enough attorneys are willing to undertake representation of the litigants who have meritorious cases either because of their perceived low dollar value, or the clients’ inability to pay a retainer. Many of our clients litigate employment discrimination and civil rights cases, where the need for representation is the highest, but where the ability to pay standard legal fees is the lowest.

A final suggestion is that all courts, state and federal, establish a version of the traditional pro se small claims courts—which have simplified procedures and don’t strictly apply the rules of procedure and evidence—but for higher dollar value civil cases. They would be governed by a “Rules of Simple Procedures” that are stripped of unnecessary verbiage and understandable by the lay person. Many courts are working on simplification of forms, but simplified procedures for use by self-represented litigants would be as, if not more, useful.

Supported by strong volunteerism in the tradition of the pro bono movement, programs like the Hibbler Center described above can and should be expanded. In addition, the modifications I’ve proposed will improve such programs, assist the court in streamlining pro se litigation, and enhance their access to justice as envisioned by the Model Rules of Professional Conduct. 

Dr. Jona Goldschmidt is a professor emeritus in the Department of Criminal Justice and Criminology of Loyola University Chicago. He is president of the Illinois Academy of Criminology, a member of the Illinois and California bars, and is admitted to the bars of the Supreme Court of the United States, the Seventh and Eighth U.S. Circuit Courts of Appeal, and the U.S. District Courts for the Southern and Northern Districts of Illinois. Before coming to Loyola, Dr. Goldschmidt was a litigator in private practice, a member of the faculty of Northern Arizona University's Department of Criminal Justice, and assistant executive director of the American Judicature Society.

Endnotes

1Library Blog, Roger Williams University School of Law, The History of Lawyer Pro Bono Services, https://law.rwu.edu/library/blog/ history-lawyer-pro-bono-services.

2ABA, Pro Bono , https://www.americanbar.org/topics/probono/.

3MRPC Preface: Lawyer’s Responsibilities [6]. The rule goes on to say that lawyers: should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

4 ABA Standing Committee on Pro Bono and Public Service, New York’s 50-hour Preadmission Pro Bono Rule: Weighing the Potential Pros and Cons 7 (2013). Regarding Rule 6.1(b)(3), allowing lawyers to meet their pro bono obligation by “participation in activities for improving the law, the legal system or the legal profession," Comment [8] to the rule states: Serving on bar association committees, serving on boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, a mediator or an arbitrator and engaging in legislative lobbying to improve the law, the legal system or the profession are a few examples of the many activities that fall within this paragraph.

5The call by the ABA Standing Committee on Pro Bono and Public Service states: "We continue to face an extraordinary need for legal assistance on multiple fronts -- from the eviction crisis arising from the COVID pandemic to assistance for refugees from Afghanistan and Haiti as well as other areas, to the legal issues arising from disasters including tornadoes in Arkansas and Kentucky, wildfires in Colorado. The time to volunteer is now. Over the next three months, we urge you to commit to 10 hours of pro bono – or just under a quarter of the Model Rules of Professional Conduct aspirational goal of 50 hours annually per lawyer. Legal assistance at the right time can keep families in their homes, prevent a small business from closing, and offer refuge to those in need. Whatever your practice area, interest, or availability, a pro bono opportunity awaits you. Take this moment to change a life for the better." https://www. americanbar.org/groups/probono_public_service/projects_awards/ probononow/.

6See Forrest S. Mosten, Unbundling of Legal Services and The Family Lawyer, 28 Fam. L.Q. 421(1994). Unbundling can be either vertical or horizontal. Vertical unbundling breaks up the lawyer’s role into a number of limited legal services, empowering the client to select only those needed. Horizontal unbundling limits the lawyer’s involvement to a single issue or court process.” Forrest S. Mosten, Unbundled Legal Services Today–and Predictions for the Future, 35 Family Advocate (ABA Section of Family Law) 14 (2012) (available at http://www.mostenmediation.com/books/articles/Unbundled_ Legal_Services_Today_and_Predictions.pdf). Ghostwriting is classified as an example of vertical unbundling.

7https://www.ilnd.uscourts.gov/Pages. aspx?/2+UWDbtVzCDq3Lu8BusuQ==.

8Id

9In this pro bono program, volunteer lawyers: "do not prepare the case for trial or engage in discovery and motion practice. Rather, their duties are limited to analyzing the case, working with the plaintiff to develop a strategy to settle the case, making a specific settlement demand and representing the plaintiff at a settlement conference with the judge." Chicago Lawyers’ Committee for Civil Rights, Settlement Assistance Program: Mission and Staff, https:// www.clccrul.org/settlement-assistance-program.

10Mallard v. U.S. District Court for the So. Dist. of Iowa, 490 U.S. 296. 302 (1989) (lawyers may not be compelled to accept representation of indigent parties under 28 U.S.C. § 1915(e)).

11The FAQ sheet about the Trial Bar membership states: "Among the responsibilities of Trial Bar attorneys is the duty to be available for assignment by the Court to represent and assist in the representation of those who cannot afford counsel. Once a Trial Bar member has been assigned and fulfilled the duty to provide pro bono representation, they will not be called upon again until each member of the Trial Bar has similarly fulfilled their obligation." Frequently Asked Questions about Trial Bar Membership, https://www.ilnd. uscourts.gov/_assets/_documents/qaTrialBarRenewalFINAL.pdf.

12See e.g., Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010)

(court must first consider whether the indigent plaintiff “has made reasonable attempts to secure counsel on his own, or conversely, if he has been precluded from doing so.”).

13In one case, a self-represented litigant had sued the CT Corporation, it being merely a company that serves as a registered agent for other companies.

14The program manager explained that they are loathe to give out their office’s PACER password. Hopefully, this situation can be remedied in the future in this or similar programs. 15Found at www.scholar.google.com.

16See Jona Goldschmidt, Equal Injustice for All: High Quality SelfRepresentation Does Not Ensure a Matter is “Fairly Heard,” 44.2 Seattle L. Rev. SUPRA 75 (2021) (describing cases in which knowledgeable and articulate SRLs have been treated unfairly despite their compliance with procedural rules).

17For an overview of the divide between state and federal courts on the question, see Jona Goldschmidt, Ghosting. The Courts’ Views on Ghostwriting Ethics are Widely Divergent: It’s Time to Find Uniformity and Enhance Access to Justice, 102 Judicature (December 2018).