Distinguishing Legal Distinguishing Legal Information from Legal Information from Legal

AdviceAdviceJohn Greacen, Greacen Associates, LLCJohn Greacen, Greacen Associates, LLC

Judy Meadows, State Law Librarian of MontanaJudy Meadows, State Law Librarian of MontanaSelf-Represented Litigation Network Self-Represented Litigation Network

WebinarWebinar3:00 pm Eastern (noon Pacific)3:00 pm Eastern (noon Pacific)

April 30, 2007April 30, 2007

YOUR ROLE IN THE JUDICIARY

You are generally the first stop on the ladder to justice; the first person someone talks to; the first chance someone has to form an opinion about the courts.

KEY CONCEPTS

ACCESS

CUSTOMER SERVICE

PROVISION OF ACCURATE INFORMATION

PRINCIPLES OF EQUALITY, IMPARTIALITY & OPENESS

ACCESS

Our doors are guaranteed to be open to all.

Not familiar territory

If customers do not understand how to use the system, and we don’t tell them, we are denying them access.

By providing access, we advance the administration of justice.

CUSTOMER SERVICE

This is why we are in this business.

We are competent, cooperative, and we do all we can to assist in a timely manner.

PROVISION OF ACCURATE INFORMATION

The Court is obligated to provide accurate information.

Accessibility is affected by this accuracy.

Small mistakes affect people’s lives.

EQUALITY

All litigants must be treated fairly & equally.

You may work to strengthen equality in the Courts by explaining your extraordinary knowledge about court procedures, requirements, & practices.

IMPARTIALITY

Impartiality to the individual litigants and to the outcome of a particular case.

You must provide the same information to either party.

OPENNESS

Court proceedings are, in general, conducted in the open.

An individual is permitted to participate in his/her proceedings.

Openness also means that the participant and the public must be able to understand the process.

It is not up to you to decide who needs information.

You provide appropriate assistance to anyone who requests it.

Your assistance to SRLs and your application of these principles furthers our goals of increasing the public’s trust and confidence in the Judiciary.

CLERKS CANNOT CLERKS CANNOT GIVE GIVE

LEGAL ADVICELEGAL ADVICE

MEANINGLESSMEANINGLESS

Problems with a vague standardProblems with a vague standard

Clerks tend to give less informationClerks tend to give less information

Practice varies from court to court and Practice varies from court to court and clerk to clerk and day to dayclerk to clerk and day to day

Clerks don’t treat everyone the sameClerks don’t treat everyone the same– Against laypersons and in favor of lawyersAgainst laypersons and in favor of lawyers– Against difficult people and in favor of nice Against difficult people and in favor of nice

onesones– Depending on the workloadDepending on the workload– Against minoritiesAgainst minorities

Standards that don’t workStandards that don’t workInvolving activities commonly performed by Involving activities commonly performed by lawyerslawyers

Requiring knowledge “greater than that Requiring knowledge “greater than that possessed by the average citizen”possessed by the average citizen”

Substance versus procedureSubstance versus procedure

Potential effect on the outcome of the casePotential effect on the outcome of the case

Importance to the requesterImportance to the requester

Information applicable to a specific fact Information applicable to a specific fact situationsituation

Situations where giving a different answer Situations where giving a different answer would constitute legal malpracticewould constitute legal malpractice

Principles upon Which toPrinciples upon Which toBuild a Sound PolicyBuild a Sound Policy

The courts must provide information to The courts must provide information to court users about how the process workscourt users about how the process works

The limitations on what court staff can The limitations on what court staff can provide derive from ethical principles provide derive from ethical principles governing the courtsgoverning the courts

Court staff need clear guidelinesCourt staff need clear guidelines

Ethical Obligations of Court Ethical Obligations of Court StaffStaff

To remain impartial To remain impartial

– with respect to parties in a casewith respect to parties in a case

– with respect to lawyerswith respect to lawyers

To maintain confidential informationTo maintain confidential information

To avoid To avoid ex parteex parte communications communications

To perform competentlyTo perform competently

State and Federal GuidelinesState and Federal Guidelines

ArizonaArizonaCaliforniaCaliforniaFloridaFloridaIdahoIdahoIowaIowaMichiganMichiganMissouriMissouriNew MexicoNew Mexico

New JerseyNew JerseyNew YorkNew YorkNorth DakotaNorth DakotaUtahUtahWisconsinWisconsinFederal Judicial Federal Judicial Center training Center training materialsmaterials

DefinitionsDefinitions

Legal informationLegal information

Facts about the law and the legal processFacts about the law and the legal process

Legal adviceLegal advice

Advice about the course of action a client Advice about the course of action a client should take to further his or her own best should take to further his or her own best interestsinterests

General GuidelinesGeneral Guidelines

Legal informationLegal information Staff should answer questions that call for Staff should answer questions that call for

factual information – questions that start factual information – questions that start with “who,” “what,” “when,” “where,” or with “who,” “what,” “when,” “where,” or “how.”“how.”Legal adviceLegal adviceStaff should not answer questions that call Staff should not answer questions that call for an opinion about what a litigant should for an opinion about what a litigant should do – questions that contain the words do – questions that contain the words “should” or “whether.”“should” or “whether.”

General GuidelinesGeneral Guidelines

Legal informationLegal informationStaff should tell a litigant how to bring an Staff should tell a litigant how to bring an issue to the attention of the court.issue to the attention of the court.Legal adviceLegal adviceStaff should not suggest whether it is wise Staff should not suggest whether it is wise to bring that issue before the court, how to bring that issue before the court, how best to present the issue, or how the judge best to present the issue, or how the judge is likely to decide the case.is likely to decide the case.

General GuidelinesGeneral Guidelines

Legal informationLegal information

Staff should inform a litigant of his or her Staff should inform a litigant of his or her options and the steps to carry out an options and the steps to carry out an optionoption

Legal adviceLegal advice

Staff should not suggest which option the Staff should not suggest which option the litigant should pursuelitigant should pursue

General GuidelinesGeneral Guidelines

If you don’t know, don’t guess. If you don’t know, don’t guess.

Even if you would be allowed to provide Even if you would be allowed to provide the information if you knew it, you must the information if you knew it, you must say “I don’t know” if you are not sure.say “I don’t know” if you are not sure.

Refer these questions to a supervisor.Refer these questions to a supervisor.

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff can explain common, routinely Staff can explain common, routinely employed court rules and employed court rules and proceduresprocedures

Staff cannot suggest which of Staff cannot suggest which of several available procedures a several available procedures a litigant should followlitigant should followStaff should not attempt to apply a Staff should not attempt to apply a rule to the facts of a litigant’s caserule to the facts of a litigant’s case

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff can tell litigants how to file a Staff can tell litigants how to file a complaint or other pleadingcomplaint or other pleading

Staff cannot advise litigants whether to Staff cannot advise litigants whether to file a complaint or other pleading, file a complaint or other pleading, whom to name as a defendant in a whom to name as a defendant in a complaint, what sort or amount of complaint, what sort or amount of damages to seek, what arguments to damages to seek, what arguments to include in a complaint or pleading, or include in a complaint or pleading, or what arguments to make in response to what arguments to make in response to a filing by the other sidea filing by the other side

North Dakota’s guidelinesNorth Dakota’s guidelinesStaff can provide litigants with Staff can provide litigants with pamphlets or information on how to pamphlets or information on how to present evidence in courtpresent evidence in court

Staff cannot tell litigants specific Staff cannot tell litigants specific questions to ask witnesses in courtquestions to ask witnesses in courtStaff cannot recommend techniques for Staff cannot recommend techniques for presenting evidence in courtpresenting evidence in courtStaff cannot recommend objections to Staff cannot recommend objections to raise to motions or evidence submitted raise to motions or evidence submitted by the other sideby the other side

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff may tell litigants how to request a Staff may tell litigants how to request a continuancecontinuance

Staff may not recommend to litigants Staff may not recommend to litigants whether to request a continuancewhether to request a continuance

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff can tell litigants what to do when Staff can tell litigants what to do when they have settled a lawsuitthey have settled a lawsuit

Staff cannot recommend when or Staff cannot recommend when or whether a litigant should settle a whether a litigant should settle a disputedispute

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff can explain the process for Staff can explain the process for appealing a judge’s decisionappealing a judge’s decision

Staff cannot recommend whether a Staff cannot recommend whether a litigant should appeal a judge’s litigant should appeal a judge’s decisiondecision

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff can provide information about Staff can provide information about past rulings in a casepast rulings in a case

Staff cannot predict what the court Staff cannot predict what the court will dowill do

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff can provide cites to (or show Staff can provide cites to (or show litigants how to find) statutes, court litigants how to find) statutes, court rules, and ordinancesrules, and ordinances

Staff cannot provide an analysis or Staff cannot provide an analysis or interpretation of statutes or interpretation of statutes or ordinances based on the specific ordinances based on the specific facts of a litigant’s casefacts of a litigant’s caseStaff cannot perform legal research Staff cannot perform legal research for a litigantfor a litigant

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff can explain what records are Staff can explain what records are kept by the court and provide those kept by the court and provide those records that can be made available to records that can be made available to the public (including confidential the public (including confidential files pertaining to the requestor)files pertaining to the requestor)

Staff cannot provide access to court Staff cannot provide access to court records that are sealedrecords that are sealed

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff should recommend the use of a Staff should recommend the use of a lawyer and provide information lawyer and provide information concerning lawyer referral services concerning lawyer referral services and legal aidand legal aid

Staff cannot recommend a specific Staff cannot recommend a specific lawyerlawyer

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff can provide forms and Staff can provide forms and instructions, and record on the forms instructions, and record on the forms information provided by the litigants information provided by the litigants if the litigants are not capable of if the litigants are not capable of filling out the form themselvesfilling out the form themselves

Staff cannot provide or suggest the Staff cannot provide or suggest the information that should be entered information that should be entered on the formson the forms

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff can provide general information Staff can provide general information about the courts, procedures and about the courts, procedures and legal terminologylegal terminology

Staff cannot provide advice about Staff cannot provide advice about the course of action a litigant should the course of action a litigant should take to further his or her own take to further his or her own personal interestspersonal interests

North Dakota’s guidelinesNorth Dakota’s guidelines

Staff shall not disclose the outcome of Staff shall not disclose the outcome of a case before the information is a case before the information is released to the publicreleased to the publicExcept in emergencies, staff should tell Except in emergencies, staff should tell litigants to put in writing information litigants to put in writing information that they want to convey to the judge that they want to convey to the judge and provide a copy to the other sideand provide a copy to the other sideIn emergencies, staff may convey to the In emergencies, staff may convey to the judge information provided orally by a judge information provided orally by a partyparty

Guidelines are not enoughGuidelines are not enough

Clerks need procedures manuals to which Clerks need procedures manuals to which they can refer for correct answers to they can refer for correct answers to procedural questionsprocedural questionsClerks need standard handouts on FAQs, Clerks need standard handouts on FAQs, such as service of processsuch as service of processInformation websites can be helpful to staff Information websites can be helpful to staff as well as to litigantsas well as to litigantsClerks need trainingClerks need trainingClerks need customer service skills Clerks need customer service skills

Reviewing Questions Reviewing Questions Submitted by Participants in Submitted by Participants in

AdvanceAdvance

Questions from LitigantsQuestions from Litigants

1. Should I hire an attorney? Do I need to 1. Should I hire an attorney? Do I need to have an attorney? have an attorney?

2. Who is a good attorney?2. Who is a good attorney?

3. My ex refuses to let me have my daughter 3. My ex refuses to let me have my daughter on Saturday nights even though that is what on Saturday nights even though that is what the court order says. What can I do?the court order says. What can I do?

4. My husband and I are separated. He is an 4. My husband and I are separated. He is an illegal alien. I want to make sure he cannot illegal alien. I want to make sure he cannot get my daughter. What do I do?get my daughter. What do I do?

Questions from LitigantsQuestions from Litigants

5. The father of my child is not on the birth 5. The father of my child is not on the birth certificate and has been away most of her certificate and has been away most of her life. He just showed up and wants to start life. He just showed up and wants to start supporting her and seeing her. I don’t supporting her and seeing her. I don’t want to let him see her and am afraid that want to let him see her and am afraid that he will take her away from me. What do I he will take her away from me. What do I do?do?

6. Do you have a form to establish joint legal 6. Do you have a form to establish joint legal custody?custody?

Questions from LitigantsQuestions from Litigants

7. I did time for an assault three years ago. I 7. I did time for an assault three years ago. I want to get it off my record. How do I do want to get it off my record. How do I do that?that?

8. My daughter is 17 and she wants to 8. My daughter is 17 and she wants to divorce her mother. How does she do divorce her mother. How does she do that?that?

9. My mother is in an assisted living facility 9. My mother is in an assisted living facility but still owns a home. Can she get a but still owns a home. Can she get a refund on her property taxes?refund on her property taxes?

Questions from LitigantsQuestions from Litigants

10. My mother can’t afford her eye drops. 10. My mother can’t afford her eye drops. She has Part D Medicare but it doesn’t She has Part D Medicare but it doesn’t cover the drops. How can I get help cover the drops. How can I get help paying for these drugs?paying for these drugs?

11. What if your landlord did not do a walk-11. What if your landlord did not do a walk-through with you prior to moving in. Do I through with you prior to moving in. Do I have to do a walk-through now that the have to do a walk-through now that the lease is coming to an end? Can I use the lease is coming to an end? Can I use the deposit to pay the last month’s rent?deposit to pay the last month’s rent?

Questions from ParticipantsQuestions from Participants

If a litigant asks for a form that you know is If a litigant asks for a form that you know is the wrong form, can I tell them what the the wrong form, can I tell them what the right form is?right form is?

Can I provide information on affirmative Can I provide information on affirmative defenses and if so how?defenses and if so how?

What about statutes of limitations?What about statutes of limitations?

What about jurisdiction and venue?What about jurisdiction and venue?

Thank You For ParticipatingThank You For Participating