Opening of the Pro Se Legal Assistance Clinic of The Maurice A. Deane School of Law at Hofstra University at the Eastern District of New York's Central Islip courthouse in February. From left, Hofstra Law School staff attorney Ka Fei Wong, Eastern District Judge Joanna Seybert, Chief Judge Dora L. Irizarry of the Eastern District of New York, Judge Gail Prudenti, dean of Hofstra Law and Hofstra Law School professor Jennifer Gundlach. Photo: Hofstra Law/Facebook

This summer, a program founded in 2018 by renowned former Seventh Circuit Judge Richard Posner to help unrepresented parties in federal court closed its doors. Notably, it wasn't for lack of clients; rather, the Posner Center's Board of Directors announced that it was because the center was receiving many more requests for assistance from pro se litigants than it could handle.

The high demand for such services comes as no surprise to those few attorneys who run programs to assist unrepresented litigants in New York's federal courts. In 2018 alone, there were 4,844 new civil cases filed in the federal courts in New York by plaintiffs who did not have lawyers, and many defendants lack legal counsel as well.

It also wouldn't come as a surprise to those states around the country, including New York, that have convened Access to Justice Commissions, as they have focused for the past several years on developing initiatives to respond to the overwhelming need to provide assistance to unrepresented parties in their court systems.

Our New York state courts have been at the forefront of dramatically increasing funding for access to justice initiatives, beginning with leadership by former Chief Judge Johnathan Lippman and Chief Administrative Judge Gail Prudenti (now Dean at the Maurice A. Deane School of Law at Hofstra University), and with the continuing support of our current Chief Judge Janet Difiore.

Unfortunately, most federal courts around the country have not yet truly begun to address the needs of unrepresented civil litigants, and instead rely on their clerks' offices to provide first-line resources to those parties. But as court employees and non-lawyers, clerks cannot give legal advice.

Those who are skeptical about the value of legal assistance clinics for unrepresented federal litigants often hold the mistaken belief that virtually all such cases lack merit. The reasoning is that if a plaintiff has a potentially meritorious case, some lawyer will take it on. But in our experience, litigants proceed without representation for numerous reasons that bear no relation to whether they have good claims. One common scenario is that a plaintiff cannot secure private counsel because the cost of litigation would exceed the anticipated damages, even though the damages would be highly significant to the litigant.

Plaintiffs and defendants alike often cannot afford to pay for legal services. Moreover, many private lawyers refuse to assist parties in a variety of civil rights, consumer and employment cases because of concerns that the representation will negatively impact their community relationships or their work with other clients.

Nevertheless, to date, federal courts in only ten states have active legal assistance clinics or programs addressing the legal needs of unrepresented civil litigants. The federal courts in New York are among the leaders in this area. In 2014, the University of Buffalo School of Law and the Erie County Volunteer Lawyers Project launched a program with the Western District of New York. The Eastern District began supporting programs run by the New York City Bar Justice Center and the Maurice A. Deane School of Law in 2015 and 2019, respectively, and the Southern District began sponsoring a program run by the New York Legal Assistance Group in 2016. Together, these programs have aided approximately 4,500 self-represented litigants in federal court, including both plaintiffs and defendants.

The majority of individuals making use of federal pro se clinics in New York come from historically underrepresented groups: depending on the specific program, the proportion of self-represented litigants identifying themselves as racial minorities ranges between 45% and 75%, and most clients of these clinics live at or near the poverty level.

Based on the types of cases being brought by these litigants, it is clear that they view the federal courts as a vital protector of their civil rights. Indeed, civil rights cases (that is, cases involving allegations of constitutional violations or employment discrimination) make up at least half of all of the matters seen at each of the programs operating in federal courts in New York.

As Chief Judge Dora Irizarry of the Eastern District of New York noted in connection with the opening of the Eastern District clinic in Islip, New York, the "lack of legal representation for the poor is an issue of national concern." Federal civil pro se clinics play an important role in making it possible for unrepresented litigant–who are disproportionately poor and members of racial minorities–to understand how to navigate the federal courts so that they can obtain equal access to justice and, perhaps equally important, conclude that they received a fair hearing.

The programs serve other laudable goals as well. Anecdotal evidence suggests that legal assistance programs for unrepresented federal litigants lead to fewer pro se cases being improperly filed in federal court, fewer discovery disputes arising in pro se cases, and an increase in the number of settlements involving unrepresented litigants.

Additionally, as Dean Prudenti has emphasized, clinics for unrepresented parties afford important opportunities to law students under the supervision of lawyers to assist the public. Providing competent legal assistance to unrepresented federal civil litigants is critical to equipping those parties with the knowledge they need to access the federal courts in a meaningful way, including navigating procedural complexities as well as understanding the applicable substantive law.

We commend the federal courts in New York and elsewhere for the important steps they have taken to support programs to assist unrepresented civil litigants. We encourage them to continue to provide critical financial and other aid that makes these initiatives possible. It is now time for federal courts across the country to follow the example of these judicial pioneers and develop programs that offer legal assistance to unrepresented civil litigants. The closing of the Posner Center amply demonstrates the substantial unmet need.

Jennifer A. Gundlach is the director of the Hofstra Law Pro Se Legal Assistance Program. Lynn Kelly is the executive director of the City Bar Justice Center. Robyn Tarnofsky is the director of NYLAG Legal Clinic for Pro Se Litigants. Bernadette Gargano is the director of the Buffalo Law Pro Se Assistance Program.