Highlights and Thoughts on the LSC 40th Anniversary

Earlier this week, LSC had its 40th anniversary shebang in DC.

As I understand it, the primary goal was to establish LSC and federal funding of community-based legal aid as a permanent bi-partisan commitment.  It certainly moved us a long way toward this goal, with, for example, speeches by Bush counsel and Supreme Court putative nominee Harriet Miers, and actual Republican Supreme Court Associate Justice Scalia.

More surprising, and very encouraging, was a slowly building focus on innovation.  Moreover, this focus was not just on technology and “efficiency” but also on ideas such as system change, and non-lawyer practice.  Among the highlights for me:

  • Professor Deborah Rhode, after analyzing the excessive lawyer market regulation, and the need for big change, summarizing it with something like: “We need less protection of lawyers and more protection of consumers,” a mantra I suggest we should all internalize
  • Massachusetts Chief Justice Ralph Gants, in response to Scalia’s statements about the importance of equality of access to justice, urging that the US Supreme Court should become much more active in promoting access to justice.  (I would add what a model for such a role Canada offers).
  • Three of the law school deans (Georgetown, Yale and Chicago) who spoke acknowledging interest in helping in proving training for non-lawyer practice.
  • Solicitor General Donald Verrilli talking about the corrosive effect on the bar of its integration with the countries economic inequality.

In the long term, I hope that LSC will be able to follow up with building a bipartisan agenda for access to justice innovation.  There is nothing in the emerging consensus that is not bipartisan.

A final note of disappointment about the media.  What a comment on the media, after such an important event, that the main media coverage seems to be entirely about VP Biden’s use of the word “shylock.”  (This is what happens when you Google “Legal Services Corporation 40th).

But this will be forgotten, and an integrated consensus approach to access, for which this celebration laid the groundwork, will not, because it will touch millions of lives.

 

 

 

 

 

 

 

Posted in Access to Justice Generally, LSC | Leave a comment

A Dubious Honor? Right Now I am the National Poster Child for Aging!

Yes, really, if you go to the National Institute on Aging website, you get so see a photo of me in front of a laptop and holding a phone. (Here is a link to the photo alone.)

The backstory is that my wife Joan and I live in a wonderful continuing care retirement community outside Washington called Collington, and NIA came with a photographer to get some stock photos of seniors, with a focus on activity and engagement.  Hence the computer and phone.

Really this post is an opportunity to sing the praises of Collington, a part of the Kendal network of Quaker value retirement communities.  While people at Collington come from a wide variety of backgrounds, from the military to the academic world, from the private sector to what is often vaguely referred to as “the government,”  and from nonprofits to medicine, there is a strongly shared “culture of contribution,” in which people sought, and continue to seek, to contribute to the world.

More generally, I would also like to take this opportunity to urge people not to delay too long making the decision to move to a community such as this.  Collington is a nonprofit Continuing Care Retirement Community, which means that the facilities here go all the way from independent living to the euphemistically named “memory care.”  Provided you are healthy enough when you first come here, you can contract to pay a fixed rate, regardless of the level of care you will need in the future.  So earlier is better to decide.  Moreover, the earlier you move, the easier it is to build a network of friends.  We have been astonished at how easy we found this to do.

I never thought I would be a poster child for anything.

Posted in Uncategorized | 4 Comments

Interesting Expansion of Access to Justice Interest in the Political Sphere

This blog has long urged greater engagement with the political sphere to expand access to justice.  So it is good news that the New York City Council has established a Committee on Courts and Legal Services.  To quote the press release:

“Every New Yorker is entitled to equal justice under the law, and the Committee on Courts and Legal Services and the City Council will work with community partners and city agencies to identify ways to meet that fundamental goal,” said Speaker Melissa Mark-Viverito. “Under the leadership of Chair Rory Lancman, the Committee will examine the demand for legal services and the resources and support needed for the courts to serve our city with integrity. Now more than ever, this is an important step forward and I look forward to commencing hearings in the weeks ahead.”

I hope that the title does not mean that this is going to be just a process for getting more money for community based legal aid, but rather a broader look at access to justice initiatives and the relationship of various levels of government to access.

The reference to the “support needed for the courts to serve or city with integrity” is encouraging. It will be interesting to see the scope of the hearings.

 

Posted in Access to Justice Generally, Political Support | 2 Comments

Good News on Electric Shock Judge

Judge Nalley is now history.  I have just received the following from the Office of Communications and Public Affairs of the Maryland Courts.

Good afternoon, Richard. I know you’ve been writing about Judge Nalley on your Access to Justice blog. To ensure that you have the most accurate and current information, I have attached an order from the Maryland Court of Appeals, which has rescinded Judge Nalley’s status as a recalled judge, effective September 5, 2014.  He is no longer eligible to preside over any cases in the state.

The Order is here.

If I had known of the Order at the time of my blog post, I would obviously have written the prior post differently.

Congratulations are due to the Court for their speedy response, and for their tracking and responding to the news about this incident.

Obviously, questions remain about the recall process.

p.s. Perhaps my use of the phrase “speedy response” was over-hasty.  The incident occurred on July 23, and was reported in the media at least as early as August 18.  The removal of the judge is dated Sept 5.

 

Posted in Legal Ethics | 3 Comments

Judge Orders Self-Represented Litigant To Be Given Electric Shock

This blog tries to avoid sensational horror stories about the courts, but this one is sui generis.  From the Washington Post.

Delvon L. King was acting as his own attorney in a gun-possession case when Charles County Circuit Court Judge Robert Nalley ran out of patience. The judge said that King was being “non-responsive” and “rude” and “citing case law that did not apply to his case.”

So Nalley ordered a deputy sheriff to administer a shock to King via a remote-controlled black box strapped to the defendant’s ankle. “Do it. . . . Use it,” Nalley said, according to a transcript of the July 23 proceeding.

The device is called a Stun-Cuff, and when the deputy pushed a button on a handheld transmitter, 50,000 pulsating volts shot into King’s Achilles’ tendon for five seconds. The defendant screamed, fell to the floor and writhed in pain.

That will surely teach more rigorous citation of cases.

The text below was written before I was infokrmed that the judge had been removed, effective Sept 5.

The Maryland judiciary has, with exceptions, a good reputation.  On can only hope that the call by the state’s chief Public Defender for the judge’s removal will meet with an appropriate response, and perhaps some soul searching about who are becoming judges.  But:

The Charles County Sheriff’s Department has since released the findings of an internal investigation, which is required after every “use of force” incident. The investigation concluded that Nalley and Deputy Sheriff Charles P. Deehan, who administered the shock, had not acted improperly.

The Milgram experiment lives, and the Nuremberg Principles do not. As Wikipedia puts it:

Principle IV states: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”.

This principle could be paraphrased as follows: “It is not an acceptable excuse to say ‘I was just following my superior’s orders'”.

Posted in Judicial Ethics | 3 Comments

LSC Announces Pro Bono Innovation Grants

LSC has just announced its first pro bono innovation awards, funded by a special line in the LSC appropriation.  These grants follow the TIG model, they are discretionary and competitive, and intended to be innovative.

This years grants cover the following:

  • Integration of pro bono into follow-up and brief services (Atlanta Legal Aid.)
  • Cooperate with bar to develop rural versions of metro clinics (Colorado Legal Services
  • Training institute to provide on-demand training relevant to low income practice (Legal Aid Foundation of Los Angeles and others)
  • Create a new pro bono practice group across organizations and coordinate pro bono opportunities, including with atty emeritus program (Legal Assistance of Western New York)
  • Pro bono staffed veterans hotline (Maryland Legal Aid)
  • Statewide technology platform targeting barriers to legal service delivery for solo practitioners, small firms, government attorneys, law students, and paralegals (Montana Legal Services Association)
  • Set of resources for services beyond brief services (Northwest Justice Project)
  • Pro bono, law- student-driven Medical-Legal Community Partnership with exiting programs (Philadelphia Legal Assistance)
  • Recruit pro bono attys with Illinois LegalAidOnline to provide family services in suburban areas (Prairie State Legal Services)
  • Partnering with the Self-Help Center of the State Courts, local State Bar Pro Bono committees,  a Legal Center, and volunteer law students and attorneys to provide a continuum of service for clients representing themselves in family law matters in rural areas (Utah Legal Services)
  • Test and prototype “pop-up” clinics, a customized virtual law firm platform, and cost-effective videoconferencing so bankruptcy experts can train and mentor pro bono attorneys. (Volunteer Lawyers Project of Boston Bar)

There is indeed a lot of potential here.  There is heavy use of technology — underlining how much the future of access is to be tied in with technology innovation.  There is at least some court cooperation, and themes of making better use of experts and resources.

Some tests for this high potential initiative are how quickly these innovations can be tested and spread throughout the pro bono world, how much they actually improve quality and volume, and whether they bring in new partners and lawyers.

Hopefully next year there will be a similar program, and even more ideas.  I am pasting in a list I previously offered on this blog:

  • Replicating successful pro bono innovations such as self-help center based pro bono clinics, attorney of the day programs, and programs that focus pro bono resources on cases that are almost ready for resolution.
  • Development of replication kits and technical support for such proven innovations.  It might be that LSC would be particularly interested in grants that would provide results quickly, helping to make the case for additional ongoing innovation funding.
  • Systems to promote corporate or other partner pro bono such as that highlighted recently at the White House.
  • Better data collection on the extent and impact of pro bono.
  • Systems to compare the effectiveness of different systems of pro bono administration, and identification of related best practices.
  • Programs to gather data on, and analyze the impact of, changes in bar rules that encourage pro bono.
  • Tools to measure attorney satisfaction with pro bono, and identify ways to improve matching clients with attorneys.
  • Experiments in use of attorneys and others in online chat and phone systems that provide information and advice.

Congrats to LSC for pursuing this initiative.

 

Posted in Funding, LSC, Pro Bono, Technology | Leave a comment

Guest Blogger Dave Pantzer on “What can a surgeon, a jet pilot, and a construction foreman teach us about the legal profession?”

This post from guest blogger Dave Pantzer discusses Atul Gawande’s 2009 book The Checklist Manifesto: How to Get Things Right, and suggests that the legal profession take seriously the challenges and opportunities set forth in the book.

Anthony DeFilippo almost died in intensive care after one of the lines a doctor had inserted into his blood stream apparently became infected. The data on line infections are grim: “ICUs put five million lines into patients each year, and national statistics show that after ten days 4 percent of those lines become infected. Line infections occur in eighty thousand people a year in the United States and are fatal between 5 and 28 percent of the time.” There are countless other risks as well, but just eliminating line infections would make a huge difference to the safety of intensive care.

One doctor at Johns Hopkins, Peter Pronovost, set out to eliminate that one source of risk, using the following five-step checklist: Doctors must:

  1. Wash their hands with soap;
  2. Clean the patient’s skin with antiseptic;
  3. Put sterile drapes over the entire patient;
  4. Wear a mask, hat, sterile gown, and gloves; and
  5. Put a sterile dressing over the insertion site once the line is in.

It sounded simple, even silly, but they found that in one third of cases, at least one of these obvious steps was skipped. To ensure compliance with the checklist, the hospital administration empowered nurses to stop doctors if they saw a missed step. Nurses were also directed to check with doctors daily about which patient lines could be removed.

The results? After a year of trying the plan, the data was almost unbelievable: “the ten-day line-infection rate went from 11 percent to zero. So they followed patients for fifteen more months. Only two line infections occurred during the entire period. They calculated that, in this one hospital, the checklist had prevented forty-three infections and eight deaths and saved two million dollars in costs.”

This startling account appears early in the pages of Dr. Atul Gawande’s thought-provoking book The Checklist Manifesto: How to Get Things Right. This book, written by a surgeon, is not just about the medical profession. Dr. Gawande investigates how different kinds of checklists can prevent errors in disciplines as varied as investing, building skyscrapers, and flying airplanes.

Of course, not all tasks can be performed by a single expert with a five-step checklist. Constructing a new building, for instance, involves the interaction of specialists and experts from sixteen different trades. Each trade may have its own checklists to ensure their individual responsibilities are met, but what happens when the experts from the different trades have different ideas? How are decisions made in the face of major, unexpected developments? Can checklists help prevent errors in situations of such complexity?

For this situation, the construction industry uses a different type of checklist – a communications checklist: “the way project managers dealt with the unexpected and the uncertain was by making sure the experts spoke to one another – on X date regarding Y process. The experts could make their individual judgments, but they had to do so as part of a team that took one another’s concerns into account, discussed unplanned developments, and agreed on the way forward.”

The book is about very simple processes (task verification checklists and communication checklists) and how they can, and have, incredibly reduced error rates in high-impact disciplines like surgery, flying airplanes, building high-rises, and even investing (despite the fact that many of these tend to be high-intuition, expert-driven, even lone-ranger types of professions.)

The Checklist Manifesto concludes with a challenge to, among others, the legal profession – a challenge to search out the patterns of mistakes that plague our profession and to identify and develop solutions. And the good news is that many of those solutions are cheaper, simpler, and more elegant than we might think.

“We are all plagued by failures – by missed subtleties, overlooked knowledge, and outright errors. For the most part we have imagined that little can be done beyond working harder and harder to catch the problems and clean up after them. We are not in the habit of thinking the way the army pilots did as they looked upon their shiny new Model 299 bomber – a machine so complex no one was sure human beings could fly it. They too could have decided just to ‘try harder’ or to dismiss a crash as the failings of a ‘weak’ pilot. Instead they chose to accept their fallibilities. The recognized the simplicity and power of using a checklist.”

Which balls do we see being repeatedly dropped in the legal profession?

For the bench: Which entirely preventable procedural errors cause otherwise good decisions to be overturned on appeal? What players in the system need to be empowered, like the nurses at Johns Hopkins, to throw a flag and stop the play?

For the bar: What steps are lawyers missing, not because they are uninformed or unprofessional, but just because the situation is unusual, or because too many voices are clamoring for their attention?

For all the players in any one of a thousand situations that affect the lives and livelihoods of litigants: Where do we need to stop and make sure concerns are raised and voices heard? And what systems can we formalize to make sure we all learn about the solution to a problem that one of us just solved?

These aren’t rhetorical questions. I don’t know the answers. I suspect that if we regularly pause to discuss and assess the patterns of our mistakes (and our successes) we will find that many problems can be solved, and much pain can be avoided, with this free technology: the checklist.

 

Dave Pantzer manages the Maryland People’s Law Library (www.peoples-law.org) for the Maryland State Law Library. Dave teaches undergraduate law at Towson University and gives seminars on clear writing. He can be reached at dave.pantzer@mdcourts.gov.

Posted in Systematic Change | 2 Comments