Over the past few decades, the number of pro se litigants in state civil courts has risen exponentially-between 75 percent and 90 percent of litigants in family law cases, landlordtenant disputes, and small claims actions did not have a lawyer in 2015. Procedural rules governing those proceedings, however, often impose requirements that disproportionately burden unrepresented litigants, fail to optimally protect the due process rights of those parties, and thereby deny them access to justice. Rules governing service of process illustrate this problem by requiring litigants to find a third party to hand-deliver court papers to a defendant directly or to a co-resident at the defendant's home. For many low income, pro se litigants, this poses a significant barrier: housing instability, homelessness, and unemployment make it extraordinarily difficult to locate low-income defendants and serve them in the manner prescribed by the rules, a task made even more challenging by the requirement that the plaintiff secure a third party to serve.
Until plaintiffs can accomplish service, they are denied access to a hearing on the merits of their claim and defendants are denied notice of the claims brought against them. In short, burdensome service of process rules bar access to justice for both parties. Using those service of process rules as a case study, this article advances an access-to-justice framework through which rulemakers can re-evaluate procedural rules in courts hearing predominately pro se cases and better protect the parties' procedural interests. First, rulemakers must identify the full scope of procedural rights at stake for
both parties. Second, rulemakers should view the rules in context, considering how the rules operate in practice, the experiences of each class of litigants involved, and how the rules will affect low-income, unrepresented litigants in particular. Finally, rulemakers should adjust the rules to reflect that context, aiming to optimally protect each procedural interest at stake. Applying this framework to service of process rules in domestic violence cases shows that both parties' rights can be better protected by allowing a new form of service of process: service through electronic media, such as text message, email, and social media messaging. By updating court rules to capture the realities of low-income, pro se litigants, the legal community can increase efficiency and fairness, thereby giving litigants better access to the just resolution of legal disputes.
Andrew C. Budzinski,
Reforming Service of Process: An Access-to-Justice Framework,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol90/iss1/4