Self-Represented/Non-Lawyer Litigant Initial Triaging Question List

Transcription

1 Self-Represented/Non-Lawyer Litigant Initial Triaging Question List This logic-branching questionnaire presupposes some ability to interact with a computerized system. Therefore, before someone even gets to the computer, there needs to be a way for litigants who are illiterate, have limited literacy, are non-english speakers, or cannot use a computer, to receive assistance. The question about whether the person is comfortable dealing with court proceedings in English should be asked before they start using the computer. We should also think about whether the forms and fee waiver issues should be addressed before or during this initial triaging. I have left the questions in for now. These proposed questions only go through the initial filing stage. I. REPRESENTATION Are you represented by a lawyer? NO YES I am a collections attorney and regularly file Complaints in bulk (e.g., more than 5 at a time on a regular basis). [This should move the filer seamlessly to the questions for the bulk collections filer]. I am a lawyer and am representing myself Other 1 II. QUESTIONS THAT FOLLOW A NO [I am not represented] Answer: A. FORMS. Do you have the forms you need to file your lawsuit? If not, [instructions on what to do]. [Or could the person be led to the correct form after filling out the case type? Eventually the system could be linked to a document assembly process so that 1 This is intended to catch situations where there is some kind of non-traditional representation. For example, it would flag businesses that are represented by a non-lawyer (which may not be permitted in the jurisdiction) or possibly persons who think that a notario who has helped them will continue to help them. This option is likely to elicit relatively few responses, but those cases may be worth catching. 1

2 answers could help populate a form. Some courts may have developed document assembly kiosks that could be linked to this triaging checklist]. YES [enables the person to proceed] NO [provides information on where to get the forms and what to do] I NEED HELP WITH THE FORMS [Stops the person at this stage and tells them where to get help. This assumes the forms are not produced as (semi-)assembled documents at the end of this process] B. FEE WAIVER. There may be a fee for filing your case. Fill out the following boxes to determine if you have to pay the fee. [Dropdown that includes the fee waiver requirements: household members/income; source of income criteria. Automatic calculation regarding fee waiver. See above question about whether this should come before the triaging process begins]. C. CASE TYPE. What is your case about? [drop down menu with types. It should instruct the person to check all that apply to the claims they are bringing to court. That way it eliminates asking how many claims they have something that they may not be able to parse] The other side owes me money [checking this takes you to the following:] For unpaid wages For something I sold For something I bought that I think is defective For money I lent or other debt that has not been paid back For breaking a promise or contract For rent [moves the person seamlessly to the landlord-tenant questions] For return of my security deposit Other The other side has taken my property and I want it returned to me. The other side damaged my property. I am a landlord or a tenant and this case involves my rental property or housing. [will move the filer seamlessly to the landlord-tenant questions] 2

3 I need protection from someone who has threatened or hurt me [may take the person to the DV/DR docket] The person who has threatened or hurt me is an intimate partner [takes the person to the DV docket and perhaps some immediate instructions] The person who has threatened or hurt me is a member of my family [takes the person to the DV or family docket and perhaps some immediate instructions] The person who has threatened or hurt me is not an intimate partner or a member of my family I was injured by the person or business on the other side: [these are likely to take the person to the Standard pathway, unless there are other factors pointing to significant complexity] I was hurt in a car accident I was hurt in another type of accident I was hurt by a medical procedure I was hurt in a natural disaster I was injured in a fight Other: I was hurt and my insurance company won t pay me for some or all of my expenses or cost of injury [likely to move the case to the Standard pathway] My case is against a government agency. [Likely to move the case to the Standard parthway] For benefits for me or a family member For another reason: My case is about something else: D. URGENCY. Is this case an emergency? NO 3

4 YES o Why? [triggers a kick-out or flag from the system so that a person can immediately assesses whether there is imminent harm] E. RELIEF SOUGHT. What do you want the court to do? o Order the other side to pay me money How much money: [drop down menu can be calibrated to identify small claims and others] o Order the other side to do something it is refusing to do What do you want the court to order: o Order the other side to stop doing something that is hurting me What do you want the court to order: o Something else: F. NUMBER OF PARTIES. How many persons or businesses are you suing in this case? One Two Three More than three G. JURISDICTION. Is this the right place for you to bring your claim(s)? Check all that apply. I live or do business in [jurisdiction] A person or business on the other side lives or does business in [jurisdiction] I was hurt in [jurisdiction] H. RELATED CASES. Do you know of any other cases or claims that have been filed in this court because of the same problem you want the court to resolve? YES. Please provide any names or numbers of the other case(s) that you know: NO. 4

5 I. SERVICE. You need to give the other side a copy of the Complaint and any other papers you are filing in court. That is called service. After you complete service of the Complaint, you have to show the court what you did. You can do this in different ways. Please check the box showing how you have or will give the other side a copy of your Complaint and court papers. IF YOU NEED HELP UNDERSTANDING THE SERVICE RULES, PLEASE [go to a self-help center or other source of assistance]. [drop down menu, will need to be tailored to state law.] o If the other side is a person: I will or have given the other side a copy of the papers myself I paid or will pay a process server to give the other side a copy of the papers I asked or will ask the court clerk to have the Marshall do it for me I couldn t find the other side in person but I put a copy of the papers at their address I mailed the papers to the other side and have a return receipt I couldn t find the other side but I published the claim [where] o If the other side is a business: I will or have mailed a copy of the papers to the registered agent for the business. o I have brought a document showing that I served the other side to the clerk s office. J. NUMBER OF WITNESSES. Are there other people (witnesses) who know about the facts of your case and who you would like to bring to court to explain your case with you? Yes One other person Two to four other people More than four other people No K. EXPERT WITNESSES. Do you expect to bring someone to court who has special knowledge or experience that will help explain something about your case? Such a person is called an expert witness. There are many kinds of expert witnesses. Some of the more common are: doctors; inspectors; engineers; mechanics and economists. You may have to pay the expert witness for the time the person spends on your case. 5

6 YES NO I DON T KNOW L. PRIOR PROCEEDINGS. Has any issue in your case been heard by a court or administrative agency in the past? Please give the name of the court or agency and any numbers or names that would help us find records of the case: K. JURY TRIAL. I want my case tried by a jury: YES NO I DON T KNOW THIS ENDS THE QUESTIONS POSED TO THE INITIAL FILER AT THE TIME OF FILING UNLESS THE TYPE OF CASE HAS TAKEN THE FILER TO A SPECIALIZED DOCKET. THE SPECIALIZED DOCKET QUESTIONS KICK IN WHEN THE PERSON ANSWERS A QUESTION THAT MOVES THEM OUT OF THE GENERAL QUESTIONS AND SEAMLESSLY INTO THE SPECIALIZED QUESTIONS. 2 CONSIDERATIONS AND QUESTIONS FOR SPECIALIZED DOCKETS Collection Cases Bulk Filings In my experience, bulk filings in collection cases are virtually always handled by attorneys. They should have their own set of questions to which they are directed after they answer the first representation question above. Those questions should include at least those I drafted in response to the first homework assignment. The questions are not focused as much on 2 I have omitted from this initial section questions those that Committee members proposed seeking information about whether the case is based on certain documents and those relating to statutes of limitations. Those are not pathway determinative, but go to the adequacy of the initial filing for specific types of claims. They are therefore incorporated in the specialized track cases, where they are part of filing requirements or critical to the ability to state a claim. I also don t think lay litigants can properly answer limitations questions, but agree that such questions are appropriate in specialized tracks for represented parties. 6

7 determining the pathway to which the case should be assigned but to preliminary questions that will assist the processing of the case and reduce improper filings and unnecessary defaults. Landlord Tenant Cases (NOTE: THESE ARE JUST THE SELF-REPRESENTED QUESTIONS.) Are you: o The landlord o A managing agent of the landlord o A corporation or other business o A Tenant [NOTE: skips the following landlord questions and moves the filer to the tenant questions] o Other Is this case an emergency? YES NO Why? What do you want the court to do (CHECK ALL THAT APPLY) o Evict a RESIDENTIAL tenant Because the tenant has not paid rent Because the tenant has violated the lease Because the tenant has damaged the property Because the lease is over Because of problems with the housing subsidy Another reason: o Evict more than one household [may be a factor that move the case to the Standard or Complex docket] o Evict a business [This could, but not necessarily, move the case to the Standard track] o Pay me money o For unpaid rent; amount o For damage to the property; amount o For another reason: ; amount 7

8 o Other: Is the defendant still in the apartment, house or building area that was rented? Is there a written lease? Have you attached it to the Complaint? Attachment of required pre-filing notices o Demonstration that notices properly served [this needs more development and will ultimately have to be left to state courts to tailor to their own service and pre-filing notice requirements] Have there been complaints about the condition of the premises by the defendant? [In some states, this may direct the case to a special Conditions docket] Have you filed a complaint against this defendant before? When? How many times? What happened in those cases? Has this defendant filed a complaint against you in any court or administrative forum? Where? When? How many times? What happened in those cases? Do you want a jury trial? THIS IS WHERE THE TENANT-FILER QUESTIONS PICK UP: Is this case an emergency? YES Why? NO What do you want the Court to do? o Make my landlord fix my apartment or house o Tell my landlord that I do not have to pay rent until repairs are made o Stop my landlord from locking me out o Tell my landlord that I need accommodations because I am disabled 8

9 o Tell my landlord that I do not owe the amounts he or she says I owe o Prevent my landlord from coming into my apartment or house without asking me first o Make my landlord return my security deposit o Make my landlord pay me money o Amount: o Reason o Something else Have you been to Court or to an administrative agency regarding this problem before? When? What happened? Do you want a jury trial? 9