The law is a labyrinth of possibilities and interpretations, girded by time and place as determined by hindsight. It is somewhat like a casbah. In its buildings we find the parent trying to get child support, the loved ones of a murder victim seeking justice, the couple tangled in a divorce, the adult child seeking the guardianship of a parent suffering from dementia, the building contractor collecting a debt, landlords, tenants and many more individuals, businesses and governments resolving disputes under the rule of law.
The only requirement for entry to this legal casbah is possession of a specific bundle of skills: the ability to express ideas, analyze, argue, interpret, and compute in both written and oral forms. In other words, access to the courts turns on literacy—which one would not expect to be a concern in a country with free and compulsory education. The ugly truth, however, is that a very high percentage of Americans cannot read or comprehend everyday written materials.
The findings of a survey conducted by the National Center for Educational Statistics reveal that the average level of literacy is not particularly high. The 2003 National Assessment of Adult Literacy surveyed the literacy skills of a sample of over 19,000 individuals in the nation’s households and state and federal prisons. Scores were classified according to four performance levels: below basic, basic, intermediate, and proficient. The average scores for prose and document literacy fell at the low end of the intermediate range, while the average score for quantitative literacy fell at the high end of the basic level. (See Table 1 in the accompanying article “National Assessment of Adult Literacy and Literacy among Prison Inmates” for a description of abilities tested and score levels.)
The findings of the survey are startling, but once explored explain why so many employees, clients and customers in everyday situations often fail to complete forms accurately, do not provide information in a timely manner, do not demonstrate knowledge of written material that has been provided, or do not follow instructions. The reality is that most are not being oppositional, lazy or uncooperative; rather, the average American simply cannot process the information provided. And within the courts, this crisis in literacy has been amplified by the rise of self-represented litigants trying to navigate a system designed for use by lawyers.
Increase in the Self-Represented
During the last ten years, state courts throughout the country have experienced a steady increase in the number of self-represented litigants in civil cases, resulting in a situation in which self-representation is now the norm. Alaska’s experience is no different. This has particular significance in domestic relations cases because of the reverberating impact these decisions have on parents and children. The Alaska Family Law Self-Help Center estimates that 25 percent of contested domestic relations cases in Alaska have lawyer representation for both parties, 50 percent have lawyers on one side, and 25 percent have no lawyer involvement. For uncontested and post-judgment domestic relations cases, it is estimated that 95 percent of the parties are without lawyers.
Being your own lawyer—which is the position of a self-represented litigant—requires the ability to engage in the court process fully; there are no special rules for people without lawyers. Our courts are adversarial forums, in which the role of the judge or judicial officer is to be neutral and impartial, making decisions within a complex framework of legal precedents, statutory authority, and evidentiary and procedural rules. It takes years of education and experience to become competent operating within this framework, and more to excel. In a system with lawyer representation, the lawyers frame the issues and arguments and the judge decides.
However, in today’s courts, the judge is often in the courtroom with two lay people, who likely lack the necessary reading and comprehension skills. The judge must remain neutral and impartial, while the lay people must, in theory, read and analyze the relevant law, apply their facts to the law, construct a strategy for their case, draft clear, concise and persuasive legal documents, engage with evidentiary and procedural rules to their advantage, follow all pre-trial orders, and finally prepare for the day in court when they finally engage their adversary in a way authorized by rule and law Again, this is theory. In reality, lay people are struggling to complete very basic forms, and many just hope that the judge will “see what they mean.”
The purpose of this article is to elevate public understanding of the importance of literacy for effective participation in the court process, not to assess how the courts are meeting this challenge. Nevertheless, it’s worthy of mention that litigants in Alaska benefit from some of the nations most pro se friendly case law, as well as an institutional commitment to do all that is possible within ethical constraints to make the courts and justice meaningfully accessible.
To understand fully the impact literacy skills have on an individual’s ability to represent themselves in court, it is instructive to compare the tasks presented by the National Adult Literacy Survey (NAAL) to the tasks required by the court for individuals in domestic relations cases. Results from the NAAL formed the basis of the report mentioned above.
Literacy is often assessed by evaluating grade-level reading skills, but this can provide a rather flat perspective without insights into an individual’s ability to function in the world. (Grade-level analysis can, however, be a useful tool for writers and editors as they draft forms and publications for public consumption. Professional accessible-language editors and consultants recommend that materials designed for the general public in government, law and medicine be written at the fifth grade level. See sidebar “Plain Language.”) The NAAL utilizes a different approach—one which is skills-based and unrelated to formal education levels. It looks at prose literacy, document literacy, and quantitative literacy.
Table 1 compares NAAL tasks with some basic tasks commonly encountered in court processes.
Understanding Court Tasks
The first step for a self-represented litigant is usually to identify forms and instructions necessary to accomplish the desired goal, such as a divorce. Lay people seem generally to expect that the legal process for these everyday situations will be administrative. In other words, they expect an experience similar to going to DMV: to change a title, it is necessary only to request the proper form, fill it out, and pay a fee. Matters heard within the court, however, are not administrative; every decision is in fact a choice between options with different consequences. For instance, if an individual requests the papers to get a divorce, two options immediately present themselves: the process can be a contested divorce or a dissolution.
Since dissolution is often considered one of the easiest and most straightforward of all civil court actions, analyzing it in terms of what prose, document and quantitative literacy skills are needed provides insight into the threshold competencies necessary to participate in court. Each NAAL task in Table 1 represents a very small piece of the more complicated meta-task of completing court forms such as a dissolution requires.
The dissolution packet for couples with children requires them to have the ability to:
- read and comprehend seventeen pages of single-spaced instructions (see Figure 3);
- summarize the procedures and requirements, apply the particular facts of a situation, and determine whether this procedure is appropriate;
- infer the ramifications of selecting this procedure: for example, since there is not a mandatory disclosure process, spouses must feel confident that each is fully informed about all marital property and debt;
- understand that hundreds of pieces of information from numerous sources, including banks, creditors, employers and the like, must be gathered, sorted, reviewed, analyzed, and computed;
- communicate and negotiate with the spouse being divorced;
- enter hundreds of pieces of information in the appropriate blanks on the fifteen-page Petition for Dissolution (see Figure 4).
Once the dissolution is completed, a hearing is scheduled for at least thirty days in the future, which both spouses must attend unless they have completed an Appearance and Waiver form. The hearing is usually brief, perhaps fifteen minutes. The judicial officer reviews the petition to ensure that it satisfies the legal standards of a fair and equitable division of property and that the custody and visitation plan is in the best interests of the children. The court inquires to determine whether there is any appearance of coercion and confirms that what is stated in the petition reflects the couple’s wishes.
The parties are not called upon to make legal argument and generally speak very little. The judicial officer advises the parties whether he or she will recommend approval of the petition; if so, the parties can expect to receive the final decree in the mail within several weeks. Unless there has been a deficiency in the petition, or the petition is denied, the parties are not required to file any additional paperwork or make any further court appearances. Generally, after fifteen minutes in the courtroom, the parties are done.
In terms of complexity of process, the dissolution is simple when compared to contested divorce proceedings, which require opposing parties to file numerous responsive documents, as well as exchange comprehensive discovery during the pre-trial period as issues are identified and narrowed. During this pre-trial phase, evidentiary or motion hearings may be necessary. When the trial finally arrives, parties are required to examine and cross-examine witnesses and exhibits, as well as make legal argument, all in accordance with the rules of evidence. Subsequent to trial, parties must be prepared to draft documents, as well as evaluate issues for appeal.
In terms of activities requiring prose, document and quantitative literacy, we see that the dissolution process requires tasks in each of these areas, although the NAAL survey tasks do not require an individual to manipulate nearly as much information as required in the dissolution.
For instance, the prose task of reading a one-page flier on SSI eligibility and subsequently answering the question, “If you are working, you may be able to get SSI as an individual if you earn less than what amount?” is somewhat similar to an individual reading the dissolution instructions and then being asked, “How many days can elapse between each spouse’s signature?”
Each assignment demands that an individual read the text, comprehend the text, and subsequently search the text for the right answer. However, a side-by-side comparison of the texts in which this information is embedded suggests that the dissolution task is significantly more difficult (Figures 1–4). The dissolution instructions comprise seventeen pages of single-spaced, full-page text, without any readily apparent suggestion of where the answer might be. The SSI flier has been drafted using many plain-language editing techniques: it is less than one page; it has narrow columns, white space, bolded section headings that serve as signposts, serif font, and easy-to-read mini-paragraphs with check-boxes used as bullets to draw attention to important specifics regarding income requirements, payments and essential rules. Even presented in this way, 58 percent of American adults could not find this specific piece of information: as a working individual, you may be able to receive SSI if you earn less than $821 per month. It would not be unreasonable then to project that more than half of the self-represented litigants attempting to digest instructions for a marital dissolution will miss key pieces of important information and will not be able to locate the answers to their questions.
With the document and quantitative exercises, we see a similar pattern, with the NAAL assignment answered incorrectly by 50 percent or more of the general population, while presenting a significantly less complicated task than those required by a dissolution.
The document test (referenced in Table 1 and Figure 2) was answered incorrectly by 50 percent of the respondents, with only three pieces of information needing to be transferred to the log sheet. A dissolution (Figure 4) requires hundreds of pieces of information. Similarly in the quantitative test, which 62 percent answered incorrectly, one piece of information needed to be found (the monthly benefit), and one computation completed (monthly benefit X 12 = annual benefit); whereas the dissolution requires many more computations (Figure 4).
With this discussion in mind, we must recognize that this court proceeding—one of the easiest—is, in fact, a fairly incomprehensible procedure for most. And in reality, the majority of dissolution petitions are not completed adequately. During dissolution hearings, bench officers are regularly called upon to take testimony to clarify visitation schedules, gather earnings information, and perform the necessary child-support calculations. In other words, the court has come to accept that it will have to do the people’s homework. In addition to real-time facilitation provided during hearings, the court now produces forms and instructions in plain English, provides extensive self-help services for self-represented litigants in domestic relations cases, and provides judicial education about the literacy crisis and tips for editing in plain English.
It is also worth noting that while the NAAL survey did not assess people’s ability to write, writing ability is one of the most critical skills in the bundle of literacy skills required when participating in the court system. Judges are often called upon to muddle through garbled text in an effort to understand what a litigant is requesting and to parse the relevant legal information from the emotional. Interpreting these communications and fitting them into the law is often a Herculean task. The following is an example of an e-mail inquiry to the Alaska Family Law Self-Help Center. (It has been edited only to protect privacy.)
I am Emailing to find out if can make Appointment to talk to over case I have down in [WA]. I need to file here in Alaska. Youcame Highly recommended by [Bob]. My email [sally@dotcom] My home Number is [555-1212] or my Husband [555-1212].Yes by way My name Is [Sally] My Husband is [John]/[Jack]/ is what everyone calls him. I need to get in touch with as soon possible or have you referr me to someone....I really dont have idea about to go about this so hope you have Patience..lol...I have 42 days to get this filed here in alaska asking for full custody of my Girls which case was done in [WA] that is were resided, but kids afriad to go back home & incident report from person who say My Ex & his Wife so drunk & had gun driveing with My daughters not frist time she only one willing to file incident report due that people are afraid of him in Home down...small town..I have lived here in AK for pass 3 years....Thank You For any help you can give to me....
As this email illustrates, in addition to basic literacy challenges, individuals in court are extremely stressed by their circumstances and are facing a myriad of confusing requirements that require multiple tasks to be completed within tight timelines. They are often in a panic and firing blind. Under these conditions, literacy drops for everyone. To complicate matters even further, some studies show that the marginally literate are generally unaware that they are not reading, comprehending or writing at a proficient level and therefore honestly do not appreciate that they are not communicating.
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America’s literacy crisis has serious repercussions for the justice system. The causes of this crisis are complex and beyond the scope of this article; however, the crisis is real, and since successful communications are essential for justice to be delivered, all providers within the justice system must be aware of these issues, and not presuppose that clients, customers, or consumers have skills adequate to the demands of a particular process.
Successful management may require a re-evaluation of an institution’s approach to service delivery. A realistic understanding of an individual’s literacy proficiency is paramount for successful communications, and where appropriate, this may include conducting an assessment or developing protocols for staff to screen for behaviors that may mask illiteracy. In addition, providers can develop strategies to evaluate and revise written and web-based materials using editing techniques recommended by plain language experts. As these efforts clear the path for more effective communications, providers are likely to be more efficient and even lower costs, and most importantly, justice will have been delivered more effectively.
Katherine Alteneder is Co-Director of the Alaska Court System Family Law Self-Help Center.