Important New Canadian Report Highlights Challenges Facing the Self-Represented and Innovation and Research Lessons for the US

Posted on May 21, 2013 by

An important new report, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, by Dr. Julie MacFarlane, supported by grants from the Law Foundation of Ontario, the Law Foundation of Alberta, and the Law Foundation of British Columbia/ Legal Services Society of British Columbia, is part of a major access initiative in Canada.

This is the most challenging finding, based on interviews with almost 300 self-represented litigants:

Some SRL’s began with a reasonable sense of confidence; others began with trepidation. However within a short time almost all the SRL respondents became disillusioned, frustrated, and in some cases overwhelmed by the complexity of their case and the amount of time it was consuming.

And:

53% of the sample had been represented by counsel earlier in their action. Three quarters of these had retained a private lawyer, and the remainder had been legally aided, but this was now discontinued. These respondents had exhausted their available resources and were often resentful that despite significant expenditures on private legal services, they were still not at the end of their action. Past experience with legal counsel in an earlier case or legal transaction was not dispositive in their decision to self-represent.

I am not sure if we have exactly equivalent stats for the US, but we do know that there is a high level of change in representation status during cases.

The tone of the report is NOT that it is impossible for the court to open itself up to the self-represented, merely that it has not done so.  Of course, it would be nice to think that we do not have this problem in the US because of our investment in self-represented accessibility, but it would be the height of arrogance to come to that conclusion without data, and in any event such a conclusion would have to be state specific.

Here are just some of the other Canadian findings from this very comprehensive report:

  • The vast majority of the self-represented made the choice for financial reasons, and indeed had tried but failed to find lawyers they could afford (an interesting question we should survey more.)
  • Those litigants who saw the same judge each time they were in court were much more satisfied (this is a major lesson that we need to take to heart, and and a reform issue to which we have not yet paid enough attention.)
  • the self-represented lost money and even jobs as a result of the time and complexity of handling their cases.
  • Many litigants do take advantage of their right, available in most non-US common law countries, to being “friends” to court to provide moral and perhaps practical assistance, but there is confusion about the scope of this right. (Again something we should be .)
  • Litigants want and need coaching services (e.g. through unbundling.)
  • Online resources focus too much on legal technicalities and not enough on practicalities like presentation of evidence, negotiation etc. (Is this ever true in the US too!)

Everyone should take a look at this, not only because of the suggestive findings, but because of the methodological approach, which included a highly practical review of online resources.  We need to be doing the same kind of study.  The recommendations would be very familiar to us in the US, and are highly practical.

 

Posted in International Models, Research and Evalation, Self-Help Services | Tagged | 1 Comment

David Udell Blogs on New Jerseys Consideration of Bar Admission Pro Bono Requirment

Posted on May 17, 2013 by

David Udell, director of the National Center for Access to Justice has an excellent summary on his blog, here, of the NJ proposal for a bar admission pro bono requirement.

Among the differences from NY are limitation to programs and projects serving low income people, inclusion of “law school community education projects,” and allowing the work to be done prior to the date of admission, rather than prior to application for the bar.

This idea is spreading very quickly.  It will be interesting to see if it impacts long term pro bono participation.  Indeed, the NJ proposal includes an evaluation to be done in two years.

 

 

Posted in Law Schools, Pro Bono | Tagged | 1 Comment

Guest Blogger Magistrate Simon Mole on How Colorado’s Early Experiments with Proactive Case Processing are Fascinating from an ATJ Perspective

Posted on May 14, 2013 by

John Greacen and Pamela Gagel have reported here on using court-convened initial status conferences for managing domestic relations cases. The status conferences enabled triage and the shepherding of pro se litigants via differential case management.  Greacen and Gagel give subtle insights at a time when the ATJ community looks to simplify civil procedure for self-represented litigants.

The experiment began over a decade ago.   Five “pilot study” judges committed to proactive case management in a randomized comparison with five “control courts.” These exercised the “laissez faire” docket management in vogue when the study commenced.  The pilot study judges moved their cases faster, with fewer motions and fewer temporary orders hearings. However, intense case management increased court appearances, and perversely reduced out of court settlement, because settlement occurred after early court intervention.  To the investigators’ surprise, discovery issues featured in fewer than 10% of domestic cases.

With ten years’ hindsight, the study provides no support for the idea that better pre-decree case management would yield reduced post-decree activity.  Approximately 75% of cases never came back to court in the ensuing decade, even when they involved young children. Families did not bring justiciable post-decree problems back to court, even though their children’s support and parenting needs likely changed over the decade.  One wonders, were litigants so satisfied, or so traumatized that they did not return in either pilot or control cases?

Finally, active case management seems to have helped with represented, rather than pro se litigants.  Settlement rates increased among represented parties, although cases with counsel tended to remain the most litigated, even post-decree.  This deserves more than academic interest, because this case management style became the rule in Colorado (C.R.C.P Rule 16.2).  There is a wealth of valuable detail in the full report here.

Simon Mole,  Magistrate in the 17th Judicial District, State of Colorado simon.mole@judicial.state.co.us

Posted in Access to Justice Generally, Court Management, Guest Bloggers | Leave a comment

National Center for State Courts Strategic Campaign Prioritizes Access to Justice and Sets Rules Simplification as Objective

Posted on May 12, 2013 by

This is great news.

The National Center for State Courts Board has just approved its Strategic Campaign for 2013-2016, and, under the title Solutions for Enhancing Access to Justice for All, it includes as one of its four key elements access to justice.

The issue is explained as follows:

If state courts are to remain viable they must over-come numerous challenges. None may be more important than providing access to courts for all citizens. Failure to solve this problem may relegate courts to a diminished role in our democracy. There are four aspects to this problem. First, current services for litigants with limited English proficiency are woefully inadequate. Second, courts must find ways to accommodate the growing number of self-represented litigants. Third, it is no longer just the poor who cannot afford lawyers. Most middle-income people find it difficult to hire a lawyer for anything other than a specific task. And fourth, under current court rules and procedures, the legal process for most civil litigants is too complex, lengthy, and expensive.

Moreover, the three identified objectives include rules simplification:

• Use “cloud” technology to provide remote court interpreters across the country and develop a process for state courts to cross-certify court interpreters.

• Help courts simplify and streamline their rules of civil procedure.

• Increase convenience for court users by developing models to allow appropriate transactions to be completed online.

This all represents a huge potential to help move the access agenda forward.  In addition to the specific tools and services that NCSC will develop, it will surely be of use to access advocates at the state level to highlight the national priority being given to this issue.

Posted in Rules Reform, Simplification, Systematic Change | 1 Comment

Time for An Overall Evaluation of the ATJ Commission Network?

Posted on May 9, 2013 by

Its now 20 years since Washington State launched the first Access to Justice Commission (actually they called it a Board).

The Commissions Network now covers over half the states, continues to expand, and is recognized as at the core of the overall national access strategy.  The Conference of Chiefs has endorsed the approach.

However, there is a wide variety of forms of appointment, membership models, scope of authority, internal structure, relationship to the state Supreme Court, funding, hosting, relationship to IOLTA program, etc.

Maybe it is time to do an overall evaluation of the benefits and costs of different approaches to these organizational and structural issues.  Maybe we can start to identify best practices.  Yes, the situations in the states are all very different, but that does not make it impossible to analyze what works where, and why.

Perhaps its time to move to the next level of commissions.  This may be the way to start that process.

 

Posted in Access to Justice Boards, Research and Evalation | 3 Comments

Towards a New Accss-Friendly Rules Project

Posted on May 9, 2013 by

Here is a potentially transformative idea that I raised at the recent Symposium at Harvard Law School on Civil Gideon.

Maybe it is time to rethink the Federal Rules Project.

Back when the Federal Rules were first being put in place in the 1930′s, everyone assumed that everyone would have a lawyer, and no one had ever heard of computers or even photocopiers.

Yet those Rules, or versions with only relatively minor modifications, govern a huge percentage of the civil cases in the US.

Is it any wonder then that the system is choking on itself?

The Rules, after all were an access project, something we often forget, and we need to re-think what would facilitate accessibility in this new era.

While it is way too early to analyze what 21st century rules would look like, here are a few thoughts:

Burden of pleading, proof and production — these should be radically rethought in a world of massive databases, and corporate data aggregation. As a general matter, those with more information should be required to provide it much earlier — think about the mortgage fiasco and the damage it did the world economy.

Discovery — again, needs rethinking, refocusing, and a structure that puts more emphasis on who has or should have the data.

Compliance — the Rules Project did not nothing on compliance, and we still live with the unanticipated consequences.  As a general matter, and with protection against corporate overreach, we should make the courts more responsible for ensuring compliance, as has happened in the child support area.

Who moves the litigation — the Rules Project did not change the fundamental tradition that lawyers move cases (sometimes) and courts respond (sometimes).  The caseflow management movement can best be seen as a response to the partial recognition that this is not enough.  But, today, we need a much more fundamental re-think of this assumption.  So everything about motion practice (the hardest maybe for the self-represented) has to be rethought.

You will be hearing more from me about this.  I welcome thoughts not only on substance but also on strategy.  Where do we get this conversation going?  In law schools?  In access commissions?  At the Courts?

Posted in Access to Justice Generally, Court Management, Simplification | 1 Comment

Briefing Paper on Natural Alliance Between Legal Aid and Philanthropy

Posted on May 7, 2013 by

The Public Welfare Foundation and the Kresge Foundation have released an excellent and useful briefing paper on the relationship between legal aid and philanthropy.

The core argument is simple:

Ultimately, civil legal aid is a powerful tool that can increase the impact of a funder’s support. At the same time, it empowers low-income people and communities to have an equal shot at the justice they deserve to meet their basic needs, promotes more dignity and stability in their lives, and creates pathways out of poverty.

The briefing paper discusses the core areas of legal aid work, including both individual advocacy and broader work, points out the impact of the funding crisis, and suggests ways that the two partners can work together.

I very much hope that it will have the impact that it deserves.  Please spread it around.

 

Posted in Access to Justice Generally, Funding, Legal Aid | Leave a comment