American Constition Society Issuue Brief Addresses Multi-Layered Approach to Solving Access Crisis

Historically, I have found that the generally progressive community — even the generally progressive legal community — has been relatively traditional in is approach to the access to justice crisis.  The “line” has been right to counsel, and increased funding for LSC.

It is perhaps a harbinger of acceptance of a more nuanced view that the American Constitution Society (ACS) has released an issue brief titled Deconstructing the Right to Counsel.

While the document does not represent an official ACS view, and while its title initially scarred me off as a too theoretical document, in fact the document is useful as laying out the reasons that a binary right to counsel or nothing analysis is counterproductive, and as suggesting a broader perspective.

The writer, Lauren Sudeall Lucas, lays out a value driven approach in which the values discussed are access, efficiency, fairness and legitimacy.

.  .  .  the value framework has potential to better inform and foster more constructive dialogue among policymakers about the best way to accomplish shared goals on a system-wide level, rather than devolving into a war over specific entities, fought in terms of numbers and dollars. When the only currency for reform is lawyers, there is little room for negotiation or creativity. However, when the menu for reform includes many options, there is more reason to have a constructive conversation about which would be the best fit and why. This framework could serve as a basis for such a discussion. Seeking a sound basis for future policy decisions, many commentators have called for increased data collection to evaluate the effectiveness of various mechanisms providing an alternative to full representation by counsel; this framework could also be used to develop metrics to analyze such data.

The paper will be particularly useful to cite to academics out of touch with the changed reality on the ground.

Posted in Access to Counsel, Systematic Change | Leave a comment

Assessing the Strengths and Weaknesses of the Institutional Structure of Communty Based Legal Aid

As “access to justice” receives more and more attention, and as we start to put in place new structures such as the “communications hub,” perhaps it is time to step back and think about the strengths and weakness of our institutional structure, now essentially 20 years old.

In the mid-1990s, in response to the Gingrich era, community based legal aid moved to a highly decentralized model, with funding fragmented, a deep resistance to national leadership (at least most of the time and in most things) and very varied funding, leadership, alliances, and capacity at the state and local levels.

This had one huge and critical benefit — community based legal aid survived and at the local level is still there to play a very significant role.

But, at the same time, we have paid the price of a relative lack of coordination and leadership at the national level.  This is a structural, not a personal issue, and I am not pointing the finger at anyone.  Indeed, the new LSC board has made very significant efforts to play a major leadership role with the Pro Bono Initiative, and the Technology Summit — we look forward to their full fruits.  Similarly, the ABA Access to Justice Commissions Project (often working with the Chiefs and the National Center for State Courts), has had a huge impact on the setting up of Commissions in so many states.

But, as the successful establishment of the Communications Hub illustrates, there are many functions of overall coordination, planning, communication, research, and institutional and substantive advocacy that desperately need to be strengthened.  The post 90’s structure, which has served survivability goals so well, gets in the way of these establishing the systems that should be serving these functions.

In particular, as the state commissions movement illustrates, coordination with other aspects of legal aid — court and bar based, for example, provides a huge and critical opportunity for the development of an integrated 100% access to justice strategy.  Without an integrated strategy developed by integrated leadership of all the aspects of legal aid, we will not get there.

 

 

Posted in Access to Justice Boards, Access to Justice Generally, Communications Strategy, LSC, Systematic Change | Leave a comment

Shift of Poor People to Mobile Phones May Result in Undercounting in Legal Needs Studies

The Center for Disease Control has just released some stats on the relationship between poverty and cell phone use.  As they put it:

  • Adults living in poverty (56.2%) were more likely than adults living near poverty (46.1%) and higher income adults (36.6%) to be living in households with only wireless telephones.

Given that it is harder to track and poll cell phones, and given that most legal needs studies rely heavily on phone polling, this means that in future legal needs studies may be under counting the legal needs of the poor.

Moreover, this may not be corrected by poverty weighting of samples.  As the Washington Post summarizes the findings with respect to health:

But undercounting wireless users can skew crucial health survey information, such as how many American adults are diabetics, heavy smokers, or people who have a reliable place to find health care. And, as it turns out, the NHIS has found several statistically significant differences between wireless-only and landline homes.

Adults in wireless-only households are, for example, less likely to have received their flu shots and are more likely to have faced financial barriers to health care. They’re also more likely to smoke and drink heavily. And those correlations stick even when researchers control for factors such as age, income level and home ownership status.

“This suggests to us that there’s something about these people’s personalities that may lead to health risk behaviors,” Blumberg said.

It may well be that there is a similar effect with legal problems, and we should be researching it. (Although I would prefer to think about it as “circumstances” rather than personalities.”)

For example, those without landlines may be “frequent movers” and perhaps not always voluntarily.

We need research on this.  Given that community-based legal aid programs collect phone numbers, one interesting study would be how the percentage of mobile only users compares with that of the poverty population generally — and indeed how that groups legal issues compares with intake generally.

More generally, the next legal needs study should look very carefully at this set of issues.

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Posted in Metrics, Research and Evalation | 3 Comments

Article on Spread of ATJ Commissions Implicitly Raises the Question Whether There is Any Good Argument Left To Justify A State Not Having an ATJ Commission

An excellent article in the NCSC Publication Court Trends, written by Chief Justice Nathan Hecht of Texas and Illinois Supreme Court Justice Thomas Kilbride of Illinois, includes timelines and listings of the spread of the Commissions movement.  It shows the movement starting in one place, Washington State, and accelerating in its spread to 34 states, with Puerto Rico, Oklahoma and Arizona joining the list in 2014.  Financial support from the Public Welfare and Kresge Foundations for support work has played a big role in this success story.

This wonderful story does however raise two questions:  Are there any good arguments left for not having a Commission, and what can be done within the community to help the “not yet” states become “yes” states?  (Disclosure, I work in various ways with NCSC  and the ABA on supporting expansion of Commissions, but these opinions are totally and completely my own.)

Some of the arguments I have heard against commissions are as follows:

We already work well together and do not need a Commission.

It may well be that the players — court, bar, community based legal aid — are indeed working well together already, but that is not the right question.  The question is whether more might be done with the additional structure of a Commission.  Many states have found that the convening authority of the state supreme court, using the tool of a Commission, has brought in other players such as the private sector, legislators, and administrative agencies.  Such states should look at all the Commission acheivements and ask themselves whether they might be able to do more with a Commission.

We do not want to put ourselves at the political mercy of our Supreme Court.

It is certainly true that some state supreme courts have become more politicized, and that on occasion, there is a correlation between political alignment and views of access to justice, but more frequently successful Commissions have been able effectively to make the case that access issues transcend politics.

Moreover, a well structured Commission has the potential to provide a continuing and institutionalized voice and coordinating force for access regardless of changes in the political environment.

The groups are not on the same page, and there is no point in trying to get them there.

That is less an argument than a restatement of the challenge.  The success and impact of the Commissions, so well documented in the Trends article, shows that it is worth the effort.  Which leads to the next question, what can those in states with Commissions do to fill the gap in the other states.

It seems to me that the following would be useful:

  • Increasing the documentation of Commission successes
  • Using constituency networks to talk to those with decision-making authority about the advantages of Commissions
  • Strengthen the national activities and coordination of the Commissions Network so that the advantages of participation become more obvious
  • Gently asking friends in the “no” states why they are depriving those in the Commission’s Network states of their help and support.

Any other arguments against Commissions, and any more ways to move them forward?

 

Posted in Access to Justice Boards | 3 Comments

Guest Post on Potential of Lay Advocates by Allan Rodgers

Allan Rodgers of the Massachusetts Law Reform Institute was my backup resource when I did unemployment advocacy before law school, back in the mid-70s.  His personal model of probity and vision is one the reasons I became a lawyer, and he has ever since been a highly valued mentor for me.  I am honored that this blog is able to carry his thoughtful and well-reasoned article on the potential of lay advocates.

Lay Advocates: An Untapped Resource for Otherwise Unrepresented Litigants

                             In Court and Agency Adjudicatory Hearings

                                           By Allan Rodgers

At long last, there is an upsurge of interest in some states in establishing programs that authorize trained lay advocates to represent people in adjudicatory hearings in court and at agency administrative hearings. But most of these programs propose to start with lay advocate roles that fall short of authorizing full representation in appropriate cases. I do not understand why the hesitancy. Lay advocate representation has a history of success in agency hearings going back more than forty years. Studies and experience have shown that lay advocates have an impressive record of success. I propose that we should move promptly to authorize these programs, under controlled circumstances initially, in order to start to fill the enormous gap in legal representation of poorer people. The potential numbers of people who would likely volunteer to do this is one of the most promising resources I can think of to narrow the gap.

For many years authorizing lay advocate representation in court has been a kind of third rail among lawyers and the judiciary in Massachusetts. Some of this opposition comes from people who doubt that lay advocates can do an adequate job of providing this representation. Even in the face of compelling evidence of their success for many years in agency hearings, many have reflexively stuck to this belief. Strong opposition has also been driven by the profession-protective prohibition of the unauthorized practice of law. This fear of losing legal business was present when efforts were started in the late 1960’s to fund legal services to the poor. We know that that belief was mistaken; if anything the presence of legal services advocates increased legal business for the private bar because opposing parties needed more legal representation in court when faced with poor people who now had lawyers. Since the present representational gap for poorer people is so severe, I’d predict that having lay advocates provide full representation to people in court will have no adverse impact on paying legal business.

My colleague at Mass. Law Reform, the late Tony Winsor, was an early and persistent champion of lay advocate representation in court. He advised several legal services programs that, with the cooperation of a local judge, operated lay advocate representational experiments in landlord-tenant cases, with demonstrated success. He trained and supervised college students in representing persons taking appeals to the state Department of Public Health from decisions on treatment by methadone maintenance clinics. Although the sample of these cases was comparatively small, these advocates won most of their hearings. Prior to the establishment of this program few persons prevailed. In 2010, Tony and I authored an article on these experiences, entitled Non-Lawyer Representation in Court and Agency hearings of Litigants Who Cannot Obtain Lawyers, published in the June, 2010 issue of the Massachusetts Law Review (Volume 93, Number 1).

For more than 40 years in Massachusetts (and no doubt in many other states), non-lawyer advocates have represented persons in administrative agency adjudicatory hearings in such programs as cash assistance, food stamps, unemployment insurance (UI) and at the Social Security Administration. During this time I have never heard of anyone complain that these advocates have been unlawfully practicing law. Of course this representation has been explicitly authorized in federal or state law or regulation. In UI appeals, non-lawyers also represent employers in many hearings. These hearings are in many respects similar to trials in court. The rules of evidence apply generally (although somewhat relaxed in certain cases), and a hearing involves the presentation of documents and witnesses, cross-examination of witnesses and final arguments. The hearings are transcribed and tapes are available upon request. Appeals go the court (or first to an administrative appeals agency in UI cases) but the limited standard of review of the facts is the same for appeals of both court and agency decisions. In all appeals a transcript of the hearing is prepared and the transcript and the record are forwarded to the reviewing tribunal. So the presentation of the case at trial is crucial in both types of trials. Of course there are some hearings where, because of the complexity of the factual or legal issues or the importance of the case for potential precedential reasons it is important that a lawyer handle the hearing. Legal services programs have been making those kinds of assignment decisions for many years.

Available studies show that those having representation in agency hearings, whether by a lawyer or a lay advocate, fare consistently better than those who do not. New England School of Law Professor Russell Engler collected the results of these studies in a 2010 article, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 Fordham Urb. L. J., 37, at 48-49 (February 2010).

The Massachusetts Access to Justice Commission has been reviewing this matter for several years. In its 2007 report to the Supreme Judicial Court, it “strongly” recommended that the Court redefine the unauthorized practice of law “to permit trained non-lawyers to speak in the courtroom in certain civil matters on behalf of low-income people.” Barriers to Access to Justice in Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court. (available at www. massaccesstojustice.org). More recently, the Access to Justice Commission established a Lay Advocate Study Committee to prepare some recommendations to the Commission on this subject. So even though the negative climate for this program has abated in recent years, the pace of deliberation remains slow in Massachusetts.

I think the evidence and experience with the success of lay advocacy in hearings shows that we really don’t need to study the general issue more at this point. We can adopt experimental programs for full representation now, and use the results to expand and modify them where the experiences show the need to do so. My concern about some of the more limited lay advocate programs discussed recently, nearly all of them proposing roles short of representation, is that these programs will consume large amount of time, resources and energy but are unlikely to get us much closer to taking advantage of this potentially enormous resource in hearings where representation makes a real difference.

So how, you would ask, should we start such a program, especially in court? Here are my suggestions.

1) I would start with the representation of poorer people by volunteers or by employees of legal programs and lawyers. Authorizing independent lay advocates or those who charge persons who can pay for it raises issues that are best left untouched until much further down the road, in my opinion.

2) The lay advocates should be trained and supervised by a lawyer or legal program. I would not recommend setting up a special certification apparatus to do this. The lawyer or legal program should be trusted to certify in writing that the advocate has received the standard training or experience and will be supervised by a lawyer for whom the lawyers’ ethical responsibilities apply.

3) The programs should be started in courts on an experimental basis at first, but with a periodic review process designed to address questions and concerns about how it is working, but with the understanding that it can be expanded by the local judges if it goes well. Statistics on numbers of cases and their results should be kept for future review and analysis.

4) The courts should set up a special group to oversee and make recommendations about lay advocacy in court. Its first task should be to review the kinds of cases in which lay advocates can capably provide representation and set up rules by which local courts can accept or make assignments.

5) Persuade the courts to make clear that lay advocates providing representation in these cases, in courts and at agency hearings, are not engaged in the unauthorized practice of law.

6) Because (at least in Massachusetts, and probably in most states) lay advocate representation in agency adjudicatory hearings is already authorized, and there is no need for a regulatory structure, the biggest task is to find people who will volunteer to do this. I think the best way to do this is to fund a central program whose responsibility it is to develop this resource. The shortage is particularly acute for agency hearings. Even with legal services and other resources, probably less than 10% of the people who face agency hearings have representation. Yet there are many groups from which volunteers might come, such as college and law students, retirees and people who might see this as an opportunity to get work experience.

I think the pieces are already in place to start lay advocacy adjudicatory hearing programs that are workable and will bring large increases in available advocates into our ranks.

What are we waiting for?

Posted in Court Management, Non-Lawyer Practice, Systematic Change | 2 Comments

How Could Interpreter Costs Be Understood So That They are Not In Conflict With ATJ Goals

A recent excellent New York Times article by Fernanda Santos about how the push to provide interpreters is putting strain on court budgets, and forcing delay or reduction of other expenditures, highlights the long term costs of state inattention to language access and also raises the question of how to avoid conflict between ensuring the protection of language access rights and general access rights.

The first and perhaps most important point is that in an ultimate sense there is no conflict.  If someone who needs an interpreter does not get one, then all the other expenditures are wasted, because no amount of resources spend on other access tools can compensate for the lack of understanding and opportunity to contribute.

The second point is that in statistical terms the language access crisis overlaps very heavily with the self-represented challenge.  While we do not yet have the numbers, there can be no argument, given poverty statistics, that LEP folks are far more frequently self-represented than the general population, and it is therefore a huge and still largely unrecognized mistake to see them as different problems, or, as often happens,to have a minor discussion of self-represented litigants in the context of a far larger and broader discussion of interpreters.

In fact, I suspect that the “typical” LEP litigant in civil cases is self-represented, and that is the way the analysis should start, with a separate and less urgent discussion about what to do when the litigant has a lawyer, who can presumably be relied upon to protect the client’s language access rights.

Thirdly, we usually fail to understand that providing broader access services can reduce the total costs of interpreter services.  This can be done by providing up-front multilingual services, by using the triage process to identify language access needs, and by providing case management services that can reduce court time.

I would urge that we really need those statistics.  The NCSC standards for counting self-represented cases should provid at least a start.  If states are also counting language access needs, then a cluster diagram plotting SRL stats versus language access needs, court by court, and state by state would provide compelling statistics.

 

Posted in Court Management, Funding, LEP, SRL Statistics | Leave a comment

The Legal Aid Community Should be Ready to Help the Nation’s Response to Crisis

Recent news events have led me to reflect on how the legal aid community, broadly defined, needs to be ready to help when crisis hits.  While the ultimate outcome of events in Iraq remains uncertain, it is all too possible that we may soon be faced with the moral necessity of absorbing a wave of refugees who have been displaced by events, and who are at high risk because of the roles they played helping the US.

Similarly, the recently uncovered scandals at the Veterans Administration have focused the country on the need for resources to make that system work.

In both cases the legal aid community, broadly defined, has a major role to play.  Put simply, refugees and veterans need advocates and helpers, that’s what the different community and court components of legal aid can provide.

We need to be ahead of this game, with a planning infrastructure.  In the end, it is not about money, but it is not a good symptom that the legal aid role in the VA crisis has been largely absent from the public dialog, and that there is no legal aid component in the emergency VA funding that now has bi-partisan support.  Have any state commissions moved to be involved?  Are they structured to respond quickly?  Have we broadened and institutionalized our response to weather disasters to other kinds?

All too often the failure to legal aid to be involved is blamed on lack of resources.  It is my belief, however, that generally people give you money because of what you do, or are ready to do, not because you refuse to act without funding.

Another argument for better coordination at all levels.

Posted in Funding, Planning, Systematic Change | 1 Comment