Tomorrow, Fri Feb 27, is Early Registration Deadline for EJC, Scheduled Just After SRL Pre-Conference

Tomorrow, Friday February 27 is the early registration deadline for the EJC Conference in Austin this May.  The SRL Pre-Conference is May 6,  and the SRL Pre-Conference May 7-9.  In addition to a full day of information, engagement, and networking with other expects, the Pre-Conference will feature an early evening reception at the Travis County Law Library self-help center which will include light refreshments and be open to all EJC attendees.  I strongly encourage STL folks to use this opportunity to invite their delegation colleagues to the reception, to give them a sense of what a self-help center can be like.  The Austin program is truly a national model.

The Pre-Coference itself will include segments on:

  • Judicial Engagement: the necessary ingredient for the success of SRL services and innovations
  • SRLN Update: working groups, research, projects and new initiatives
  • Ignite sessions on forms & technology, discussion to follow
  • The continuum of services & significance of partnerships
  • Problem solving

Katherine Alteneder has done a wonderful job putting the Agenda together, and this will be very worthwhile for all, including those who are coming to the ATJ Chairs meeting on Friday and Saturday.

There will, of course, also be a significant number of SRL/ATJ sessions at the main conference.

Registration link here.

See you there!

Posted in Meetings, Self-Help Services | 1 Comment

Supreme Court Decision on Teeth Whitening Regulation Has Interesting Implications for Bar Monopoly

Yesterday the US Supreme Court ruled in North Carolina Board of Dental Examiners v. Federal Trade Commission.  SCOTUS Analysis hereOpinion hereNYT here.

The Times story:

The Supreme Court on Wednesday ruled that a state dental board controlled by dentists may be sued under antitrust laws for driving teeth-whitening services out of business.

The decision, by a 6-to-3 vote, set standards that will most likely also apply to state licensing boards, including those for doctors, lawyers and other professionals. States often rely on such boards to decide which potential competitors may ply their trades.

What’s most significant is the analysis of the so-called “active supervision” requirement to fall within the “state action” immunity from anti-trust liability.  As SCOTUS explains:

The requirement of state supervision announced in today’s opinion applies to agencies “controlled by active market participants.” Actions taken by boards with no involvement from market participants may not have to satisfy that requirement. The opinion also identifies some factors concerning adequate state supervision. For example, the state supervisor must actually review the substance of the agency’s actions and have the power to overrule or modify the actions.

So, states can delegate to bar associations, but must actively supervise.  What is interesting to me is the idea that when a court, as in Washington, tells the bar to set up a regulatory system for nonlawyers, the court could hardly be said not to be actively supervising.  To the extent that courts may be more willing to move forward on these issues than the organized bar, this newly underlined incentive could be very good news indeed.

 

Posted in Anti-Trust, Non-Lawyer Practice, Supreme Court | Leave a comment

Nonlawyer Courtroom Navigator Follow-Up — Initial NY Report shows Value and Impact

Now we can read the full Navigator Report that led NY Chief Justice Lippman to report on the success of the Project and to announce his plan to propose to the legislaturelegislation this year that calls for a further level of involvement by non-lawyers in assisting litigants. This proposal would codify a more substantial role for non-lawyers by establishing a category of service providers called “Court Advocates” in Housing Court and in consumer credit cases to assist low-income litigants.”

The Executive Summary of the Report tells it all.

THE NEW YORK STATE COURT NAVIGATOR PROGRAM was begun in March 2014 following Chief Judge Jonathan Lippman’s announcement of the program in his February 2014 State of the Judiciary address.

The Navigator Program was created by the Chief Judge’s Committee on Nonlawyers and the Justice Gap in response to the need for assistance for the more than 2 million New York- ers each year who are unable to find lawyers as they navigate a complex system to deal with their legal problems. While ideally every litigant would have a lawyer to represent him or her in cases involving fundamental human needs, the reality is that many can neither afford a lawyer nor access free legal services. The Navigator Program seeks to fill that unmet need and provide support and assistance to low-income litigants.

The program provides trained nonlawyers in Housing Court in Brooklyn and in a Civil Court consumer debt part in the Bronx. The role of the Navigators includes the provision of the fol lowing types of assistance, free of charge, to litigants:

 •Preliminary discussions with litigants to listen and explain the process

• Review of the papers litigants have received and assembled to explain their relevance to the process

• Provision of information to litigants about appropriate or available court services (including interpreters)

• Description for litigants of the individuals they will see in court and their roles (e.g. judge, court clerk, law clerk), as well as likely discussion topics and the best manner of response to each

• Assistance to litigants in filling out court-approved DIY forms and help in identifying additional resources available on the Internet

• Court accompaniment, including giving notes or reminders to litigants where and when necessary

• Statements of fact to the judge, but only if asked a direct factual question by the judge

• Taking notes during any conference or hearing to discuss with litigants afterwards so that the litigants are clear about what has been said or decided and • what the litigants must do to comply with any directions they may have been given

• Some Navigators in the Housing Court, in addition, provide more in-depth service and remain with litigants to help provide needed social services, including benefits to cover rent arrears where available (see full description in Overview of program below).

This report describes the operations of the Navigator Program and includes three views — “snapshots” — of the program. All three indicate that the program provides valued practical assistance to litigants and to judges. In addition, in cases in which a Navigator was involved, respondents raised additional and more specific defenses and, overall, obtained decisions that produced a better financial result for respondents.

In the first view, 61 participants spoke directly to interviewers and answered a series of questions about the impact of the program. Every litigant interviewed agreed strongly that Navigators were helpful and courteous and understood their questions. An overwhelming ma- jority agreed that Navigators were able to answer questions and help them to understand what was happening in their cases; most felt that Navigators made them feel progress was being made. In narrative comments, participants appeared to consider the assistance they re- ceived invaluable, making observations such as the following: “wonderful program,” “good to have someone to help,” and “I wish this program were here sooner”.

The second view provides the judicial perspective. The three judges who have overseen the program in their parts participated in individual interviews; two of these judges presided over cases staffed by Navigators for almost four months each in the Bronx Civil Court, and one judge has continuously overseen the Housing Court part in Brooklyn. While there were individual differences relating to the part and to the particular types of Navigators (those Navigators that were able to provide social services assistance were more likely to help to resolve the case), all of the judges and the one court attorney who participated in the interviews were unanimous that the program has been very helpful to litigants and to the court. Litigants who were accompanied by Navigators reported uniformly that they were more comfortable, less stressed, and better able to provide the court with the information needed. One of the judges stated that the Navigator program should be considered a “necessary” component that should be expanded. All of the judges stated that Navigators had never spoken out in court unless asked a direct question by the judge.

The third view is of the initial processing and outcomes of a sample of 100 cases in Brook- lyn Housing Court. Researchers obtained data for all 35,000 cases handled in Brooklyn Housing Court between January and August 2014, and the database was sorted to match 50 cases in which Navigators were present and 50 cases in which they were not. There were a number of significant differences between the two groups of cases, including in the area of defenses raised. Respondents who received assistance from a Navigator raised a total of 205 defenses (averaging more than 4 per case), while in the unassisted 50 cases there were a total of 66 defenses raised (or an average of 1.3 per case). The types of defenses also differed significantly. The most common defense offered by the unassisted litigants was a general denial. In the cases of those receiving assistance, the most common defenses were that the litigant did not receive the correct court papers as required by law, that the litigant was not asked to pay the arrears before the court action, that the rent had already been paid, and that elements of the petition were not correct. A significantly greater number of those assisted responded that they did not receive a copy or proper notice of the petition, that the amount of rent being demanded was not the legal rent, or that the landlord had failed to complete needed repairs, provide services, or address poor conditions.

While this examination of the Navigator program is preliminary (the Navigator program will be the subject of a specific independent and comprehensive social science inquiry in 2015, as described below), our initial assessment is that the Navigator program is a valuable innovative addition to the state court system. In addition, a number of participants in both the Navigator program and the reviews made important suggestions contributing to the improvement of the operation of the program that will be implemented wherever possible. Overall, the initial findings are consistent with observations of committees, foundations, bar associations, and experts throughout the country, who have reported consistently that the Navigator model, although not a substitute for representation by a lawyer, provides a level of service that can help to promote basic fairness for people otherwise unable to receive legal assistance in mat- ters of significant consequence to their lives.

A few points bear emphasizing (disclosure: I am on the Committee, and involved with evaluation design, but these opinions are my own alone).  Perhaps for people in many states, the best way to think about this is “self-help center plus.”  These roles are best considered an extension of the services already being provided in the self-help center.  They are not advocacy, but informational, and designed to ensure that judges have as much information as possible.  These roles are not in any way in violation of statutory prohibitions dealing with the unauthorized practice of law, since that is simply not what the navigators so.  Moreover, these services are provided without fees being paid by the litigants, and the idea provides a wonderful way for social service agencies to leverage their resources and effectiveness into the courthouse.  Finally, I would emphasize to those who argue that the provision of these services had no impact, I would point to the dramatic increase in the number and specificity of defenses asserted by those assisted. by the program.

I believe that as its effectiveness is demonstrated, this kind of program will spread very quickly, and become a major component of the access solution.

Posted in Access to Justice Generally, Self-Help Services, State of Judiciary Speeches | 2 Comments

Steps Forward in Nonlawyer Innovations in New York CJ’s Speech

Good news on nonlawyer innovations (which I like to call Beyond Lawyer Roles) from Chief Justice Jonathan Lippman’s recent State of the Judiciary Speech.

In our fight to close the jstice gap in New York State, non-lawyers have been an increasingly powerful force. Two years ago, I asked Roger Maldonado and Fern Schair to chair a Committee on Non-Lawyers and the Justice Gap and to explore ways that people without law degrees could make meaningful contributions to helping low-income people with legal problems. Since then, we have established programs in Housing Court in Brooklyn and in consumer debt cases in Civil Court in the Bronx.  These programs use “navigators” — trained non-lawyers — who provide an array of services, including information, guidance within the court house, and moral support.  They assist litigants in completing do-it-yourself forms, assembling documents, identifying possible sources of assistance funding, and in certain cases, accompany litigants and answer factual questions in the courtroom. The Navigators help litigants understand the process and reinforce the timetables and responsibilities as set out by the court. The Committee recently completed a report that demonstrates a marked difference in the behavior of litigants accompanied by Navigators — a greater ability to more clearly set out the relevant facts and circumstances and a significant increase in use of relevant defenses for those litigants. We have shared the progress of this program with the New York State Bar Association, which also sees the great promise of this exciting new concept.
 
I am pleased to announce today, that I intend to introduce legislation this year that calls for a further level of involvement by non-lawyers in assisting litigants. This proposal would codify a more substantial role for non-lawyers by establishing a category of service providers called “Court Advocates” in Housing Court and in consumer credit cases to assist low-income litigants.
 
While there is no substitute for a lawyer, the help of a well-trained non-lawyer standing by a litigant’s side is far preferable to no help at all. We have already seen what a difference it can make. (Bold added)

“[F]ar preferable to no help at all,” is the essence of it.  I must re-disclose that I am a member of the Committee described above, but I doubt that it is any secret that I am very proud of what it – and more importantly the Chief – have done.  Its not just a concrete innovation, but the way the Chief phrases the issue; “far preferable” is just right for the test and it can and should be applied more generally.

p.s. It is surely very encouraging that the State Bar President has been publicly generally supportive.   As a press release from the NY State Bar puts it:

In his speech, the chief judge proposed creating a Court Advocates program to assist low-income litigants in housing court and in consumer-debt cases. The court advocates would be nonlawyers-supervised by attorneys-who help guide the litigants through the court system, helping them, for example, in completing do-it-yourself court forms and appearing with them in court.

“While there is no substitute for a lawyer, the help of a well-trained nonlawyer standing by the litigant’s side is far preferable to no help at all,” said Lippman

Lau-Kee said the concept of helping low-income litigants who cannot otherwise afford attorneys has merit. “It will be presented to the Association for further review,” he added.

p.p.s  The New York Times Editorial Board chimes in (Bold Plans for New York Courts):

In his annual address on Tuesday, which received wide attention for its ideas about overhauling the way grand juries handle police-related killings, Judge Lippman addressed a range of issues. He said he was seeking a resolution from the State Legislature endorsing the principle that poor litigants in life-altering civil cases are entitled to effective legal representation, known as “civil Gideon.”

He will also submit legislation to authorize greater use of trained non-lawyers, called court “navigators,” to assist unrepresented litigants in housing, consumer debt and other legal matters. This builds on pilot projects in Brooklyn and the Bronx that have shown great promise.

This raises fascinating questions about the integration of Civil Gideon and non-lawyer service initiatives.

Posted in Non-Lawyer Practice, State of Judiciary Speeches | 1 Comment

Core Strategies for Legal System Reform

I have been thinking recently about what we might think of as the core strategies for justice system reform, and here are some preliminary suggestions, on which I welcome debate:

1.     Set Ambitious Goals Grounded in Core Values and Mission

After some discussion, I offer this — By 2030, no person with a legal problem should have the problem wrongly resolved as a result of inadequate processes or access to justice services.  (It should go without saying that such services would need to be provided by a wide variety of stakeholders, and would include such things as changes in judicial practices.)

2.     When Things go Wrong, Assume That They Are Caused by a System Design Problem, Rather than a Human Failure.

One of the hardest things about working in the justice system is that its DNA has been about assigning past blame, rather than planning for the future.  Yet, in the real world of many players and endless repetition of patterns, blame analysis does not advance the cause of prevention.  It is only by asking what in the system allowed something to happen that we can make the design changes to stop it happening again.  Thus, fatality review in domestic violence cases does not replace a criminal trial, but it does help us figure out how to stop the next situation  getting to the need for a murder trial.

3.     Create a Culture of Constant Small Improvements.

Japanese automakers have achieved their impressive quality reputations by constant attention to small things, and being willing to make small changes that together add up to far higher reliability.  When we started Midtown Community Court in the mid-90’s at the end of every day the staff and the judge met to talk about what happened, about what had been learned, and about what could be done better next time.  That’s how you get it right.

4.     Don’t Be Afraid of Data, Big and Small.

It still leaves me breathless with frustration how much energy legal institutions put into making the case that data can not be trusted, that it has no meaning, and even that it is dangerous.  While all data is imperfect, and while data should be the beginning of the conversation, not the end, we will simply never get where we need to be unless we can find ways to understand what is happening in our systems.

5.     Foster Leadership.

At the risk of offending, I have to say that the culture of our communities is deeply resistant to being led.  Huge energy goes into maintaining local autonomy for courts, community-based legal aid, and others.  Yet the reality is that to be effective, you need the leveraging power of size, and you need the willingness to respond to leaders, rather than prevent them developing in that role.  (There is a reason that the EU got created — or for that matter the US.) The challenge should not be preventing the development of forceful leadership, but rather developing the mechanisms by which leadership accurately reflects a community as a whole (And there are ways in which the EU clearly has not yet got it fully right, and that it took a civil war for us to get over our biggest failure).

6.     Make Sure that Targets and Goals Are Embraced By All, and That Success is Assessed.

It is critical that every organization decides what its contribution is to the meeting of the overall target or targets should be.  Courts look at how they process cases, and whether the rules and processes minimize the risk of error.  Community-based legal aid should look at its efficiency, at its quality, and its use of resources, in terms of the goal.  Each organization sets sub-goals.  Each organization and group has to be responsible to the community as a whole for assessing progress.

7.     Don’t Be Frightened of Major Changes.

The last decade has seen a major reassessment of the requirements of judicial neutrality, a re-conceptualization of the role of court staff, and a rethinking of the division of labor between counsel and client.  These are surely just a beginning, and we should apply the same process of going back to first principles to other professional roles within the system, such as interpreters and mediators, apply the same logic to our procedural rules, and look at whether we should go even further in the areas in which significant progress has been made, such as by considering the creation of new professions that can provide assistance more cheaply.

8.     Don’t Be Paralyzed By Funding Issues.

There will never be enough money, former Chief Justice John Broderick of New Hapshire used to say, “so get over it.”  Resources follow ideas and more resources follow achievement.  Above all, we should never be fearful that success will lead to lesser resources.  Efficiency is not something to be frightened of.

Lets get to it.  I welcome more suggestions.

 

 

Posted in Access to Justice Generally, Systematic Change | 1 Comment

Child Support Proposals in the President’s Budget Would Support Research Into Innovative Approaches

Mark Greenberg, Acting Assistant Secretary, Administration for Children and Families has this to say in summarizing the budget proposals on child support:

For the Child Support Program, we are renewing a number of prior proposals for efforts to ensure that children benefit when support is paid, for promoting access and visitation, and for improving program efficiency. In addition, we are proposing a $100 million per year Research Fund designed to support research on family-centered strategies and support state efforts to implement these evidence-based strategies.

 Justification of Estimates further explains the research proposal as follows (bold added):

The second new proposal for FY 2016 is the creation of a $1 billion over ten years Child Support Research Fund to encourage state IV-D programs to implement family-centered services to support parents in their efforts to support their children, and tailor the appropriate child support enforcement tools for each family. Family-centered strategies are especially needed for poor and low-income families who face multiple barriers to supporting their children. Traditional enforcement remedies are often not as effective as they could be with this population.

There has been significant underinvestment in research on child support interventions. While the field is eager for strategies to produce better child support outcomes for all kinds of families in the caseload, many child support interventions are not evidence-based and the field lacks rigorous evaluation results to guide program administration.

A limited number of demonstration projects have been implemented via a competitive grant program from OCSE. These grants have helped to build up an emerging evidence base from states in areas including employment services, early intervention, specialized case management for military members and veterans, child support savings accounts, health care coverage outreach, fatherhood partnerships, and financial education. State child support programs respond well to performance incentives and opportunities for implementing evidence-based practices resulting from research, and most states are very interested in piloting and implementing family-centered strategies, but have not had the funding to do so. The child support field has a significant, unfunded potential for much greater program research because existing small grant funds can be awarded to only a handful of states for a limited period of time. .

        .  .  .  .

The first part of the Research Fund would provide $50 million per year in competitive grant program funding (Developing Evidence-Based Research), open to state child support agencies, to test and evaluate family-centered strategies to improve program effectiveness. The evidence gleaned through the Child Support Research Fund would be used to promote continuous, incremental improvement throughout the child support program.

The second part of the Research Fund would provide a $50 million mandatory formula grant component per year (Sustaining Evidence-Based Research), to be divided among 54 state child support agencies on an ongoing basis. This grant program is designed to encourage states to incorporate evidence-based approaches and assure that families in all states have the opportunity to benefit from family-centered child support services. Each state would receive an allotment based on the percent of children in the state who are eligible for the IV-D Program (that is, the percent of children who live apart from one or both parents). A minimum state allocation could be created to ensure adequate funding levels.

While the chance of initial enactment may be small, given the chaos in the budget making process on the Hill, it is surely good news for the future that the administration sees the value of evidence-based research in this area.

In the long term this potentially $100 million a year fund could lead to very significant research opportunities for courts and other access to justice agencies that have established partnerships with their state child support agencies.  One could imagine this project funding a wide range of experiments in adjudication, self-help, Turner compliance, counsel, nonlawyer help, etc.

Given the generally bipartisan support for child support programs, this is one of those areas in which things might move forward faster then one might expect.  The ultimate impact on a massive program, impacting millions of lives, could be enormous.

Finally, I would note that the potential availability of this innovation money provides yet another incentive for the courts to enhance their relationships with child support programs, and engage their state programs with the design of court innovations.

 

Posted in Child Support, Funding, Research and Evalation, Self-Help Services | 1 Comment

President’s Budget Proposes Civil Legal Research and Civil Legal Aid Competitive Grant Program

Two important development for the future in the federal budget process.  While these proposals are unlikely to be sucessful tis year, they help create the environment thefuture, and can also be cited for the position of the Executive as to need and ohilosophy.

The president’s budget (portion from fact sheet below at p. 194) includes a request for $3.0 million for research on indigent defense strategies, and for $2.7 million for civil legal research to be managed by NIJ in cooperation with DOJ’s Access to Justice Office.

Within the $16.5 million requested increase, 5.0 million will fund the Collecting Digital Evidence Initiative in order to improve the means to conduct digital forensics of large-scale computer systems and networks; $3.0 million will fund Social Science Research on Indigent Defense, which will include evaluations of current strategies for indigent defense, as well as research and development to generate new research-based strategies for strengthening and safeguarding indigent defense in the U.S.; $2.7 million will support Civil Legal Research , which will be managed by NIJ, in coordination with the Department’s Access-to-Justice (ATJ) Initiative Office; and $5.8 million will support NIJ’s base set of programs, which support criminal justice-focused social, physical, and forensic science research.

 It is potentially very important for the future that DOJ adds the following language to the fact sheet describing changes required in the appropriation language to permit the civil research.

Currently, NIJ’s ability to examine the broad area of civil justice is limited by its authorizing statutes; it can conduct research on civil justice issues only when they “bear directly and substantially” on or are “inextricably intertwined with” criminal justice issues and criminal justice administration (42 U.S.C. 3789n). As part of the FY 2016 Budget proposal, the Department is requesting new appropriations language that will ensure NIJ has the necessary authority to successfully carry out the new civil justice-related programs mentioned above.

Even if the requested additional money were not allocated, maybe such a language change would help permit more flexibility in current grant flows.

The President is also asking $5.0 million for a competitve program of grants to support civil legal aid planning processes, system improvements, and innovation (at p 245 of the Fact Sheet.)

In FY 2016, the President’s Budget requests $5.0 million for a Civil Legal Aid Competitive Grant Program. This program, which will be administered by the Bureau of Justice Assistance (BJA) in collaboration with the Department’s Access to Justice Initiative (ATJ), will provide funding, training, and technical assistance to incentivize civil legal aid planning processes and system improvements, supporting innovative efforts to improve and expand civil legal assistance services at the state, local, and tribal levels.

 It should be noted that the phrase “civil legal assistance services” in this description would support a broad definition of “legal aid” in any ultimate grantmaking — one not limited to lawyer-only services or to specific organizations.  Similarly, it is helpful that the impact on performance discussion (at p. 246) includes reference to “leverag[ing] existing legal aid nonprofits, state courts, local bar associations, technology innovations, law schools, and pro bono programs to develop innovative models that make use of public/private collaboration.”

The Civil Legal Aid Competitive Grants Program can be used to promote a “race to the top” for access to civil legal justice that would challenge state, local, and tribal governments to develop truly integrated civil legal aid systems. These systems will leverage existing legal aid nonprofits, state courts, local bar associations, technology innovations, law schools, and pro bono programs to develop innovative models that make use of public/private collaboration. By requiring an evaluation of each project funded by this program, OJP will also further the Administration’s efforts to use evidence-based decision-making to improve results. This program offers the Department an opportunity to provide national leadership in the area of civil legal aid programs and help state, local, and tribal grantees to adapt their own blueprint for building integrated civil justice assistance systems in their jurisdictions through the lessons learned.

 Much of the remaining narrative discuses the extent and consequences of lack of representation, and that should be considered as  designed to underline the need.

Of course, the focus on integration is particularly helpful in terms of encouraging a triage and continuum of services approach.  ATJ Commissions should shurely be focusing on all these aspects of the future, including the possibility of this supportive Federal role.

Change is slow, but this is what starts to happen when you have an institutionalized office with dedicated and energetic staff.

 

Posted in Defender Programs, Dept. of Justice, Funding, Triage, White House | 1 Comment