If you don’t have an
attorney, remember that Court Clerks cannot assist with legal advice
By preventing clerks
from dispensing legal advice to unrepresented parties, courts protect the
impartial administration of justice and lessen the burden on the court system.
However, the problem remains that many people who need legal advice cannot not
get it unless they have the resources to at least consult with a lawyer.
Many
people who for one reason or another end up in Court do not have the financial
means to consult with, or hire, a lawyer. Their first point of contact with the
Court is in many cases the Clerk’s office of the Court. While many court clerks
want to help, they are limited in what they are authorized to do and say. Pro
se litigants are not alone in this situation. Even experienced attorneys often
wish they could ask Clerks about legal issues or procedures to resolve a legal
dispute. But lawyers know that they should not ask such questions.
In
this article, Alabama lawyer Ayn Traylor-Sadberry provides a brief overview of
the issues facing pro se litigants and court clerks.
You
might have seen in movies where a person being sued runs to the courthouse, is
sent from one desk to another, and finally one merciful court clerk with large,
horn-rimmed librarian glasses, reveals the legal strategy that ends the legal
quagmire. But that happens only in the movies.
In real life, court clerks are not allowed to dispense legal advice.
That can make life more difficult for any pro se litigant, and burdens the
legal system as a whole.
That
clerks cannot provide legal advice in Alabama is prominently stated in
documents and on websites. See, for example, “By law, the appellate and library
staff cannot provide legal advice,” (Website of Alabama Appellate Courts,
http://judicial.alabama.gov/appellate/appellatefaqs; “The court clerk cannot
give any legal advice … You should ask a lawyer to explain your legal rights to
you. The court clerk cannot give you legal advice. …” (Information Sheet of
Legal Services Alabama, https://www.alabamalegalhelp.org/files/A2447EEE-F644-D86C-0EED-38CCDA102137/attachments/1086BAD1-E720-47AE-B8EA-5CBC4EC9F23C/smallclaimscourtprint-2015-09-01.pdf).
A
2009 Report by the Alabama Access to Justice Commission (Christina Llop, Esq.)
notes that “Judges and clerks find consistent problems with self- represented
parties expecting them to provide legal advice, failing to understand rules of
procedure and evidence, failing to bring necessary witnesses and evidence to
court, and refusing to accept the court’s rulings. In fact, Judge Jack Lowther
expressed the same frustration heard from judicial officers around the nation:
having to rule against a self-represented litigant not because they did not
have a strong and possibly winning case, but because they did not know how to
prove their case or their damages. The result, apart from the significant
potential for failure to find redress for legitimate legal claims, is wasted
judicial and staffing resources.” (Report, page 10).
Thus,
one of the Report’s recommendations is to “Create clear statewide definitions
of legal information and legal advice and guidelines applicable to clerk
offices.” Another recommendation, to assist those in need of legal advice, is
to “Establish a pilot self-help center in Jefferson County’s District and
Circuit Courts.” See
https://alabamaatj.org/wp-content/uploads/2013/08/Alabama-Final-Report-SRL-Services.pdf
In
2002, the Judicial Council of California addressed this issue with a form
called “MC-800, Court Clerk’s Office: Signage” that allows court clerks to
offer specified assistance to court users. See “May I help you? Legal Advice
vs. Legal Information” (2003 by Judicial Council of California/Administrative
Office of the Courts, available online at http://www.courts.ca.gov/documents/mayihelpyou.pdf;
form at https://www.courts.ca.gov/documents/mc800.pdf)
The
brochure issued by the California Judicial Council explains “that The Code of
Ethics for the Court Employees of California requires you to ‘furnish accurate
information as requested in a competent, cooperative, and timely manner’ but to
avoid ‘giving legal advice.’ You may already know that you are not supposed to
give ‘legal advice’ to court users. … As a result, when people ask questions
where the line between legal information and legal advice is blurry, you may
avoid giving appropriate information about court procedures because you don’t
want to violate the Code of Ethics. Meanwhile, court users don’t get the
information they need and may become frustrated; more significantly, if they
don’t follow the right procedure, they may be denied access to the courts. In
an effort to address these concerns, the Judicial Council of California
recently approved form MC800, Court Clerks Office: Signage, for display in
court clerks’ offices throughout the state. The form is designed for posting at
the clerk’s counter or public window at each court location so that court users
can read and understand the guidelines that you are required to follow.”
(Brochure, page 1).
Let
us review the California approach, signage and brochure in more detail.
Code
of Ethics
The
nationwide rise in self-represented litigants has increased the need for
assistance that people seek from the court staff. This is where the Code of
Ethics comes into play. This code presents clear guidelines on how the Court
Employees should “furnish accurate information as requested in a competent,
cooperative, and timely manner”. However, they must avoid “giving legal advice”
on any matter that does not concern them.
People
often get angry when they feel the response given to them is automated. What
they don’t know is that the court employees have to follow strict rules
regarding legal advice and legal information. Both terms differ vastly and
therefore, the court employees have to think before they speak or else they
might risk violating the Code of Ethics.
From
a legal standpoint, legal advice concerns areas on how the person can further
pursue the actions against litigation. It specifically applies to the law. The
court employees here cannot tell the litigant whether they “should” file a case
or not. On the other hand, they can explain the legal system and the law in
general terms.
Here’s
an example for you:
Procedural
Definition
You
are filing a lawsuit regarding an encroachment on your business land. You visit
the court to get some legal information and seek assistance from an attorney.
Legal
Information
You
tell the court clerk the type of case you are pursuing and he tells you about
the different reasons why the other party might want to adjourn the
application.
Legal
Advice
You
are advised on what type of application you should submit and which court to
visit. The attorney advices you on asking for adjournment at the next court
hearing because…
A
List of Things the Court Staff Can and Cannot Do For You
Following
are seven areas where a court staff can and cannot assist you:
Can
Assist In…
1.
Answer Questions
The
court staff can answer any questions regarding the case you are pursuing. Bear
in mind that the information given will cover the surface of the problem, and
it will not give you insight on how you should proceed rather the ways you can
proceed.
2.
Provide Referrals
The
court staff can provide you with referrals for a local lawyer’s service, family
law facilitator program, legal services program, and other such services where
you can get access to legal information. Don’t expect to get information on the
spot about any litigation.
3.
Direction on Rules and Regulations
The
court staff can provide you with information on court procedures, rules, and
practices. This will help you to take the right steps when you are thinking
about filing a lawsuit.
4.
Provide Court Schedules
As
a first-time court user, you might not know which person and department to
visit. Here, the court staff can give you information regarding various court
schedules and how you can get the case filed. This will help you make timely
appearances and avoid missing deadlines.
5.
Review the Case File
Say
your case file contains information that is difficult for you to understand.
Here, the court staff can help you understand what the information means and
where you can seek further help.
6.
Provide Forms and Applications
The
court staff can help you with the right applications and forms, as well as
directions on where to file them.
7.
Guidance on Deadlines
Every
lawsuit has its deadline, and the court staff can assist you in meeting them.
They will answer your questions on how early you need to submit your forms and
may also provide you information on how soon your application will be approved.
Cannot
Assist In…
1.
Case Approval
The
court staff cannot tell you whether you should take your case to the court or
not.
2.
Writing of the Form
The
court staff cannot assist you on how to write an application. However, they
will check the form for you to make sure it is complete. The few things that
are noted include signatures, correct county name, notarization, legal document
attachments, and the correct case number.
3.
The Appeal
The
court staff cannot tell you how to present your case or what words you should
use to make your appeal sound more passionate.
4.
Opinions
The
court staff cannot tell you how your case will go once it is on the docket and
you are at the court for the hearing.
5.
Talk to the Judge
No
matter what the case, the court staff cannot talk to the judge on your behalf,
even if you have a personal relationship with the employee.
6.
Tell You the Judge’s Court Timings
The
court staff cannot give out information on when the judge leaves the chambers,
so that you can talk to him/her outside the court.
7.
Change Legal Documents
Say
your case hearing is on Monday. However, you have an important commitment you
cannot get out of and now you are looking for a change in the date of your
court hearing. The court staff cannot make any changes on legal documents
whether it concerns the date or any other matter.
Now
that you know what information you can get at the court from the court clerk,
you can ask the right questions and not get twisted in circles, visiting one
department from another. Keep in mind, you might not always get the information
you are seeking, so be patient and ask for further directions rather than
getting frustrated and breaking any rules and regulations.
Ms.
Traylor-Sadberry concludes that while the California signage and brochure
clarifies the clerks’ duties, it does not help pro se litigants in need of
legal help. Also, the California approach does not lessen the burden on the
court system, since it is unlikely that pro se litigants will read the brochure
“May I help you?” before asking a court clerk.
It
seems this issue will continue. Legal self-help centers (as suggested in the Report
by the Alabama Access to Justice Commission, cited above), flexible payment
plans offered by attorneys, and allowing paralegal professionals to provide
limited representation (as proposed in some other States) may provide some
relief.
About Ayn
Traylor-Sadberry
Ayn
Traylor-Sadberry is a domestic relations & family law attorney in
Birmingham, Alabama.
References
Law
Firm Website:
https://www.traylorsadberry.com
Attorney
Profile https://solomonlawguild.com/ayn-traylor-sadberry
LinkedIn
Profile: https://www.linkedin.com/in/ayn-traylor-sadberry-28a168169/
*** Ayn Traylor-Sadberry is a domestic relations & family attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: www.TraylorSadberry.com
