Playing Without A Helmet in Family Court

This article is reprinted with permission from
Tuesday, November 28, 2006 issue of
The Legal Intelligencer © 2007 NLP IP Company.
Further duplication without permission is prohibited.
All rights reserved.

Sharon Browning, Executive Director
Philadelphia VIP

Appearing Pro Se In Family Court: An Unfair Game

Several weeks ago, Judge Phyllis Beck gave a memorable keynote address at the First Judicial District's first annual Judges Pro Bono Awards ceremony. She analogized the plight of pro se litigants struggling through the court system without a lawyer to playing football without a helmet. The inherent unfairness of this means, she said, that "we risk our precious democracy when the judicial arena does not provide each team with the same advantages."

In the area of family law, this unequal access to justice is shockingly ubiquitous: according to the Women's Law Project report, fewer than 15% of all Family Court litigants are represented by attorneys; many more individuals and families never get through the long lines, metal detectors, and armed guards who are the first greeters at Family Court. We lawyers are failing miserably at guaranteeing even minimal passage through the gates of justice. Few families in crisis have the reassurance and benefit of an attorney, and without a lawyer, it is virtually impossible to navigate the legal system successfully to a stable, peaceful familial harbor.

Assistance in weathering the most serious storms a family can face is denied to the overwhelming majority of poor people. For a time this summer, there was not a single place in the city of Philadelphia where a low income person could go to get free assistance for a simple divorce. And although Philadelphia Legal Assistance has since opened intake and is accepting cases of those with the most urgent need, most poor Philadelphians still are left stranded and unassisted on the shores of marital distress.

And then there are the children. Without help in securing fair support orders, custodial parents struggle to stretch meager incomes to meet the needs of growing children. In poor families, the single largest and sometimes the only asset is the home; it is unconscionable that there is little representation available to assist in safeguarding the sole item that may create some financial and physical stability for our city's children…our children.

The emotional and economic costs of our neglect are astronomical: permanently scarred lives, increased financial burdens and deepening poverty among those already stressed, fluid and unstable custody and visitation arrangements, inability to heal wounds and move into more healthy relationships and environments, the list goes on and on. It's impossible to accurately convey the consequences and scope of such legal deprivation.

Lawyers are not strangers to these issues: if we ourselves have not suffered a fractured marriage, we all know someone who has. And through either personal or vicarious experience, we understand the importance of having sound, dispassionate legal counsel when the lives of all family members hang in such precarious imbalance. We depend upon our legal system to provide relief, on judges to sort out and render impartial judgment when emotional intimacy makes such decision making difficult if not impossible. But as our system currently functions, justice requires meaningful access to our courts. As Judge Beck observed, this means "giving everyone who enters the hall of 'justice' an opportunity to be heard. And heard through a lawyer who knows the rules of the game."

I fantasize about a groundswell of empathy, a force of concern for the poor among us so great that we are stunned by the power of our own passion and creativity. I know in my bones that such a response is possible in this legal community; it is within our power to give. We have the skills, the resources, the good hearts, a genuine desire to do the right thing, and even the ideology of the critical importance of stable families to the common good. We lack only the will to address this issue.

Personally, I don't know how to awaken this sleeping sense of justice; she slumbers lightly, I feel, and just needs a good shake or two to wake up. We at VIP spend our days (and sometimes our nights) trying to figure all of this out. Family law cases are the most difficult to refer to pro bono attorneys; the VIP staff is most wearied and worried by the chasm between the need and available volunteers in this substantive area. But whatever shape or form the solutions eventually take, they involve all of us, the entire Philadelphia legal community.

I invite your ideas. How do we create a commitment to help in these cases, how do we open our hearts to the tragedies unfolding daily in and out of our courtrooms when people are not represented in these life altering circumstances? Please, help strategize a solution to the scandal of unrepresented litigants in our family court. What should we do? How can you help? It isn't enough to aver lack of expertise in this area: lawyers by definition are smart people with a sharp learning curve. With a will to solve this, many firms, of all sizes, could develop a pro bono practice group in some area of family law: divorce, support, custody. Consider partnering with your clients' corporate law departments: it could be a bonding experience around the vital work of strengthening our families. Mentors to facilitate this process abound: in time, expertise can be acquired. VIP would be delighted to help you or your firm launch such a project and develop the expertise you need; it's what we do.

And if this solution doesn't appeal, how about getting your firm, either separately or collaboratively with another firm, to fund family law attorney positions or fellows at Philadelphia Legal Assistance, Women Against Abuse Legal Center, or VIP? Three additional legal services attorneys, available at less than the cost of one new associate, would narrow the gap noticeably.

None of this is a matter of exploiting your guilt. I am appealing to your heart and to your sense of justice. We're all in this together, and our failure to assist the most vulnerable among us diminishes us all. There are plenty of helmets to go around; we just need to all get in the game.

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