Towards a Definition of “One Hundred Percent Access to Civil Justice”

With the setting by the Conference of Chief Justices (CCJ), and the Conference of State Court Administrators  (COSCA) by Resolution of 100% access to justice as an “aspirational goal,” the question of just what that term means becomes more and more important.

With the Resolution also calling for each state to develop access to civil justice strategic plans with “realistic and measurable outcomes,” agreement on what 100% would mean, as well as what “access” would require, are a key part of the process.  It should also be noted that the endorsement of a “continuum of meaningful and appropriate services,” makes both achieving the goal easier, and defining success more difficult and more important.  If you believe that everyone should have a lawyer for everything, and that is all that you need (special link for Jane Austen lovers), then you have your measure right there — what percentage actually get a lawyer.

Before offering a definition, let me urge, in the spirit of “real[ism]” in the linked to Resolution that we not engage in “goal creep,” and try not to load up the definition with everything.  That might well doom the whole effort.  So here is one starting tentative  suggestion:

A state is providing 100% access to justice in its courts and dispute resolution institutions when available justice services are such that any individual who either might gain by seeking the assistance of an institution to protect their significant interests, or who might gain from assistance in preventing another to use the institution to impinge on their interests, is sufficiently informed about such services to be able decide whether they wish to seek such services, to be able to take the steps required to obtain them if they choose, and can in fact obtain such services if sought.  Such services must be available without excessive burden, regardless of the individual’s  financial resources or other barriers such as language or capacity.  Such available and accessible services must be sufficient to ensure that the facts and the law are sufficiently placed before the decision-maker so that a neutral decision-maker can make the decision on the facts and the law, unless an individual decides, upon appropriate information, that they do not want to pursue their case.

Note that this draft does not require that everyone actually seek and get those services, only that they are “sufficiently informed” about them, and that they can get them if they decide to seek them.

Note also that while a decision on the facts and the law is critical in many cases, this definition allows a party to opt out of the process where appropriate.  (Often, for example, default is the optimum legal strategy.)

This version does include administrative agencies, although in a general sense only.  It some states it might not be appropriate for a Commission, depending on the Commission’s mandate.

This version does not include the federal courts.

Obviously it does not require that services be free, only that they not impose an excessive burden, and that they are not barred by resources or other barriers.

This definition does not include transactional services, such as will writing, contracts, leases, complaints, etc.

Nor does it directly deal with the merits of cases or the “justice” of underlying substantive law.  While it requires proper presentation of facts and law, it does not explicitly require that the decision maker be neutral, since that is taken care of in Codes of Judicial Conduct.

Maybe the way to deal with omissions is to think about what organizations should be asked to consider adopting a similar goal for their areas of responsibility.  Judicial leadership in promoting such initiatives would certainly be highly appropriate.  Interestingly, the hardest area then becomes the transactional one.

Another approach would be to draft a comprehensive definition, but then make clear the limited affirmative responsibility of each player.

I am totally open to proposed changes in this tentative definition, and would welcome such proposals and arguments in support of such changes.

Posted in Access to Justice Boards, Administative Proecdure, Bar Associations, Court Management, Judicial Ethics, Legal Aid, Planning, Research and Evalation, Systematic Change, Triage | 6 Comments

Celebrating 50 Incubators, and Raising A Research and Evaluation Challenge

There are now 50 law school incubators, as listed by the ABA.  Individual programs are listed and profiled here.  This news makes the movement a highly significant one, and the time has some to talk intellectual infrastructure.  In particular, it seems to me that the issues of research and evaluation now becomes critical.

I want to know what happens to the law graduates who go through these programs, and what kinds of practice they find sustainable.  I want to know whether the kinds of services and resources make a difference.  I am interested in who the clients are, both when the lawyers are in the incubators and afterwards.  I want to know what the clients think of the lawyers and of the programs.

I also think it is critical to assess the broader impact on access to justice.  Are the graduates making any significant dent in meeting unmet need?  How much would these programs need to scale before they did that, and how much would that change over time?  How do incubator innovations integrate with other innovations such as unbundled, online forms, navigators, technology and expanded non-lawyer options?  Do they have the effect of expanding pro bono?

In addition, it would be helpful to know what kinds of supervision are most effective, and in what contexts, as well as impacts on law school recruiting, loan repayment and reputations. In other words, the research agenda is enormous.

Now, law schools are research as well as educational institutions, so the question is how to leverage the research resources and opportunities, and to do so in a way that maximizes credibility and effectiveness.

How about the incubator schools developing a research and evaluation consortium that would work on the following:

  • Establishing a research agenda
  • Developing typologies, terms, and definitions that would facilitate joint and comparable research
  • Assist in raising money to conduct research derived from the research agenda
  • Bring stakeholders into a process to ensure that the research would be practically useful.
  • Communicating with groups that focus on research in education (beyond legal education), on access to justice and on the profession, and on the people needing services (such as SRLN)
  • Developing evaluation tools and common comparable outcome measures.

Relatively small contributions from the schools should be enough to launch such a consortium.  Indeed, $10K contributions each from the 50 schools would provide half a million dollars.

 

 

 

 

 

Posted in Incubators, Law Schools, Research and Evalation, Unbundling | Leave a comment

Comments to FCC Could Help Support Broadband Access fund

On July 17, the FCC proposed a rule change that would modernize and expand its lifeline program.  The current comment period (following extension) closes on Sept 30, 2015.

While there are massive technical changes in the proposal, the bottom line for our constituencies is that poor people would be eligible for a subsidy of almost $10 a month that could be applied to wired and wireless internet fees, as well as  landline and cell service for which they are currently available (NYTimes article).

Obviously this has huge potential to improve access to justice, and it is important that the FCC hear from our community on this topic.

A very short comment is enough.  Courts, Commissions, or access to justice programs would all be appropriate commentators (provided, of course, consistent with any governing legal limitations).  Comments might include ways in which technology — and thus broadband access, are critical to access to justice, given the huge unfilled need.

Comments can be filed online at http://apps.fcc.gov/ecfs/upload/display.  The Docket numbers are: WC Docket No. 11,-42, WC Docket No. 09-197, and WC Docket No. 10-90.

 

 

 

 

 

 

Posted in Funding, Poverty, Technology | Leave a comment

A Digest of The Last Month’s Comments

Just over a month ago, we launched our “Board of Commentators,” with the hope that we could stimulate broad and open discussion about the future of access to justice.  So this Digest is intended to draw some attention to the helpful ideas offered — I am only pulling a small part of what was said in each comment, so please go and look at the full comments by clicking on the post link. Continue reading

Posted in Commentators | Leave a comment

Legislative Funding Best Practices For Legal Aid Endorsed by CCJ and COSCA Apply to Broad Definition of Legal Aid

As I recently blogged, the Conference of Chiefs and the Conference of State Court Administrators passed three important and inter-related Resolutions recently.  The first was about 100% access to justice, and the second about Best Practices for Supreme Court support for legislative funding for legal aid.  The text of the second Resolution is here.  (There was a third Resolution affirming support for LSC funding.)

As you will see from the texts below, the endorsement of the Best Practices in the legislative funding Resolution should go a long way to encouraging the already powerful and effective leadership from state Supreme Courts in moving the access agenda forward.  This resolution helps remove any lingering anxiety that such leadership might be inappropriate for a court.

What is fascinating is that the ideas endorsed in the document itself apply with equal force to a broad definition of legal aid — in fact to any service that contributes to meeting the 100% access aspirational goal in the first of the Resolutions.  This makes all the sense in the world because the polling and focus group branding recommendations (especially slides 7, 17 and 18) tell us of the great value of such a broad definition of legal aid.

So, these best practices can be used by, and urged upon Supreme Courts, and those who work with them, in the full context of support for 100% access innovation, not just what some of us call “community based” or “advocacy” legal aid — unbelievably valuable and critical though those are.  (And, indeed, many community based legal aid programs provide a broad range of services)

Here are the Best Practices prepared by the ABA Resource Center for ATJ Initiatives. (Link here.)

Provide leadership. In many states, the active and visible support of the state’s highest court and its individual members has determined the success or failure of initiating and increasing this very important funding source.

Build the leadership and support into the court’s culture. Success at the state legislature requires long‐ term, consistent support. In the most successful states, supportive justices have worked to ensure that the court as a whole sees access to justice and state funding for legal aid as a priority.

Create a high‐powered ATJ commission. Access to justice commissions are blue‐ribbon entities comprised of leaders representing, at minimum, the state courts, the organized bar, and legal aid providers, but often including legislators and representatives of corporations, foundations, the medical community, and human services organizations. ATJ commissions have been instrumental in obtaining or increasing state funding.

Speak and write publicly on behalf of the funding. Justices have testified on behalf of state funding for legal aid and chief justices have included a message of support in their annual state of the judiciary speeches to their legislatures. Justices have authored op‐ed pieces on the importance of state funding for legal aid.

Call for and/or host hearings or other public meetings and gatherings around the state to give representatives of the courts; the legal, business and faith based communities; human services organizations; and low income people the opportunity to share information about the value of legal aid and problems created by the lack of services.

Visit with legislators. A personal visit is almost always a good strategy for educating a legislator about how important an issue is. When a supreme court justice makes the effort to do this, it can have a powerful impact.

Find funding sources. Helping campaign leadership and legislators identify the most appropriate sources of state funding for legal aid.

Resolve conflicts. When concerns are raised about a funding mechanism or other issues, initiate discussions that might resolve conflicts and/or negotiate solutions.

Administer the funds. Where appropriate, agreeing that the administrative office of the court or other court entity will serve as administrator of the funds and/or include them in the courts’ budget.

Full text of the Resolution is here.

Conference of Chief Justices Conference of State Court Administrators

In Support of the Statement of Best Practices for State Funding of Civil Legal Aid

Prepared by the ABA Resource Center for Access to Justice Initiatives

WHEREAS, the Conference of Chief Justices and the Conference of State Court Administrators have consistently advocated for adequate resources to fund civil legal aid programs; and

 WHEREAS, Census Bureau data show that nearly one in five Americans—61.8 million people—are eligible for legal aid services, a 21% increase since 2007; and

 WHEREAS, the civil legal problems of low-income people involve essential human needs, such as protection from domestic abuse, safe and habitable housing, access to necessary health care, and parental rights; and

WHEREAS, the Conference of Chief Justices and the Conference of State Court Administrators in 2012 published a comprehensive policy paper[1] making clear that millions of people in America face legal crises without the benefit of legal counsel, thereby either giving up their legal rights or seeking judicial relief without assistance of counsel; and

WHEREAS, in 2002, 2009, 2011, and 2012, the Conference of Chief Justices and the Conference of State Court Administrators, by resolution, reaffirmed the importance of the federal Legal Services Corporation and, as recently as 2012, called upon all members of Congress “to fulfill our nation’s promise of ‘Equal Justice Under Law’, by restoring funding for the federal Legal Services Corporation to the level necessary to provide critically needed services to low-income and vulnerable Americans”; and

WHEREAS, federal funding of the Legal Services Corporation has declined from $420 million in FY 2010 to $375 million for the current fiscal year—a reduction of more than 10 percent; and

WHEREAS, it is advisable to pursue strategies to improve state and federal government funding of civil legal aid; and

WHEREAS, the American Bar Association’s Resource Center for Access to Justice Initiatives, a project of the Standing Committee on Legal Aid and Indigent Defendants, has carefully studied successful legal aid funding efforts in the states; and

WHEREAS, the ABA Resource Center has gathered a series of best practices to guide bench and bar leaders in their pursuit of increased funding of civil legal aid;

NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and the Conference of State Court Administrators encourage their members to consider the ABA Resource Center for Access to Justice Initiatives’ “Supreme Court Leadership on State Legislative Funding for Civil Legal Aid” (Updated July 15, 2015) as a worthy guide for their own endeavors to obtain increased funding for civil legal services to disadvantaged populations.

 Adopted as proposed by the CCJ/COSCA Government Affairs Committee and the CCJ/COSCA Access, Fairness, and Public Trust Committee at the 2015 Annual Meeting.

[1] “The Importance of Funding for the Legal Services Corporation from the Perspective of the Conference of Chief Justices and the Conference of State Court Administrators.”

Together the Resolutions are a great step.

Posted in Judicial Ethics, Access to Justice Boards, Legal Aid, Funding | 1 Comment

New CCJ/COSCA Resolution on 100% Access, and How to Get There, Is a Tipping Point

The week before last, the Conference of (state) Chief Justices, and the Conference of State Court Administrators jointly passed two Resolutions that together predict a tipping pint forward in moving to justice.  One sets an aspirational goal of 100% access to justice services, and the other promotes best practices for funding legal aid.

This blog post focuses on the 100% Resolution, and a subsequent post will focus on the  one dealing with best practices in funding for Legal Aid Services, and on how the two Resolutions support each other.  In short, the 100% resolution assumes a robust legal aid system, and funding is critical to it. Moreover, optimum use of that funded system depends on the broader multi-component continuum envisioned in the 100% resolution

My reasons for declaring the 100% resolution a tipping point are outlined below the Resolution.

CONFERENCE OF CHIEF JUSTICES

CONFERENCE OF STATE COURT ADMINISTRATORS

RESOLUTION 5

 Reaffirming the Commitment to Meaningful Access to Justice for All

 WHEREAS, the Conference of Chief Justices acknowledged in 2001 in Resolution 23 that the promise of equal justice is not realized for individuals and families who have no meaningful access to the justice system and that the Judicial Branch has the primary leadership responsibility to ensure access for those who face impediments they cannot surmount on their own; and

WHEREAS, the Conference of Chief Justices and the Conference of State Court Administrators passed Resolution 2 in 2008 recognizing that ensuring access to justice in adversarial proceedings involving basic human needs, such as shelter, sustenance, safety, health, and child custody is one of the Conferences’ highest priorities and encouraged their members to take steps to ensure that no citizen is denied access to the justice system due to the lack of resources, or any other such barrier; and

WHEREAS, significant advances in creating a continuum of meaningful and appropriate services to secure effective assistance for essential civil legal needs have been made by state courts, national organizations, state Access to Justice Commissions and other similar bodies, and state bar associations during the last decade; and

WHEREAS, these advances include, but are not limited to, expanded self-help services to litigants, new or modified court rules and processes that facilitate access, discrete task representation by counsel, increased pro bono assistance, effective use of technology, increased availability of legal aid services, enhanced language access services, and triage models to match specific needs to the appropriate level of services;

NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and the Conference of State Court Administrators support the aspirational goal of 100 percent access to effective assistance for essential civil legal needs and urge their members to provide leadership in achieving that goal and to work with their Access to Justice Commission or other such entities to develop a strategic plan with realistic and measurable outcomes; and

BE IT FURTHER RESOLVED that the Conferences urge the National Center for State Courts and other national organizations to develop tools and provide assistance to states in achieving the goal of 100 percent access through a continuum of meaningful and appropriate services.

 Adopted as proposed by the CCJ/COSCA Access, Fairness and Public Trust Committee at the 2015 Annual Meeting.

 At the risk of repetition, I list below 12 ways in which this single Resolution moves the access agenda very significantly forward.

1.  By “support[ing] the aspirational goal of 100 percent access to effective assistance for essential civil legal needs,” the Resolution can be said to make that goal the aspirational policy of the entire state court system.  Since this really is first and foremost a court issue, this can also be said to make it the aspirational policy of the country, at least at the state level.  This obviously has and with very significant implications for all the players, including other state branches of government and federal partners.  (Indeed one of  “wheras” paragraph states that “the Judicial Branch has the primary leadership responsibility to ensure access for those who face impediments they cannot surmount on their own.”)

2.  By using the quantifiable “100 percent,” rather that more general phrases like “for all” or “equal” the Conferences have concretized and made much more specific the goal.

3.   By “urge[ing] their members to provide leadership in achieving that [100%] goal and to work with their Access to Justice Commission or other such entities,” the Conferences recognize that courts and  judges (indeed most specifically but not, only Chef Justices) are the critical leaders in moving toward the goal.

4.  In so doing, they also recognize not only the essential role of Commissions, or equivalents, in moving to 100% access, but also that that role requires more than just a focus on fundraising for traditional community based legal aid and on pro bono (a step that all Commissions have made, at least at the conceptual and planning stage.)

5.  By urging that the courts to “work with,” the Commissions or equivalents to develop a strategic plan to meet the 100% access goal, the Conferences create a path for the states to move forward on this policy — while recognizing the enormous flexibility that states will need to do so most effectively.

6.  By recognizing the value of “expanded self-help services to litigants, new or modified court rules and processes that facilitate access, discrete task representation by counsel, increased pro bono assistance, effective use of technology, increased availability of legal aid services, enhanced language access services,” the Resolution explicitly endorses those approaches, making their broad adoption much easier.

7.  By urging that tools and assistance for “achieving the goal of 100 percent access [should include support for] a continuum of meaningful and appropriate services,” the Conferences endorse the critical concept that the solution to 100% requires this continuum, and can not be be achieved by adopting only ad hoc innovations.

8. By similarly recognizing the importance of “triage models to match specific needs to the appropriate level of services,” the Resolution provides support for adoption of this difficult but critical concept.

9.  By urging that the state 100% access strategic plans should include “realistic and measurable outcomes,” the Conferences build on the quantification of the “100%” in “100 percent access to effective assistance for essential civil legal needs” to help ensure that the states monitor and assess their achievements moving forward, while again allowing for the needed flexibility and innovation relevant to each state’s needs. As the social scientists tell us: “if it’s not measured, it’s not valued.”

10.  To achieve such “realistic and measurable outcomes” justice, partners will need to buy into those outcomes and reporting needs, promising major impact system-wide.

11.  By “urg[ing] the National Center for State Courts and other national organizations to develop tools and provide assistance to states,” the Resolution should catalyze those organizations to develop a wide variety of planning, implementation, research and, measurement and assessment tools and to assist in actual deployment of the many innovations that are to be supported.

12.  Implicit in this urging is the assumption that all involved organizations need to create their own plans for “realistic and measurable outcomes” just as the states are being called upon to do.  This is underlined by the recognition in one of the “wheras” paragraphs of how much a broad range of organizations have created the innovations that have made adoption of this goal possible:  “significant advances in creating a continuum of meaningful and appropriate services .  .  .  have been made by state courts, national organizations, state Access to Justice Commissions and other similar bodies, and state bar associations during the last decade.”

This really is a courageous and transformative step, and I look forward to seeing state and local organizations rise to the challenge.  Of course, many of the ideas in the Resolution have been discussed in other places, and by other groups, but they have never been articulated together in one place, in such a coherent way, and by such a hugely important and influential group.  That is a tipping point, that’s leadership, and that what brings real change.

Posted in Access to Counsel, Access to Justice Boards, Access to Justice Generally, Bar Associations, Communications Strategy, Court Management, Forms, Legal Aid, Mobile Technology, Outcome Measures, Political Support, Research and Evalation, Rules Reform, Self-Help Services, Simplification, Systematic Change, Technology, Triage, Unbundling | 3 Comments

A Challenge on Civil Advocacy Legal Aid Outcome Meaures

While there is now general agreement that outcome measures for civil advocacy legal aid are a good idea, and that measures need to be different in different areas of substantive advocacy, it is apparently hard to get agreement on common measures that can be used in different jurisdictions.

So, I offer a challenge to those working on this and to the advocacy legal aid community:

Either show why the measures in the Massachusetts eviction studies are so bad that they should not be used, offer better ones, or try these as a national outcome measure in eviction cases, so we can learn how they might be improved for this purpose.

The measures were developed by Harvard’s Jim Greiner and a variety of stakeholders for this paper.  They have been the subject of extensive debate and analysis.  The paper abstract gives both the general methodology and the conclusion.

At least for the clientele involved in this District Court Study – a clientele recruited and chosen by the legal aid provider’s proactive, timely, specific, and selective outreach and intake system – an offer of full representation mattered. Approximately two-thirds of occupants in the treated group, versus about one-third of occupants in the control group, retained possession of their units at the end of litigation. Using a conservative proxy for financial consequences, and based on a subset of cases in which financial issues were at the forefront, treated-group occupants received payments or rent waivers worth on average a net of 9.4 months of rent per case, versus 1.9 months of rent per case in the control group. Both results were statistically significant.
(outcome related to burden on court omitted)

In simple terms the two measures are retention of possession and value of payments or rent waivers.  The methodology for these two outcome measures is described in much more detail it the full paper here.

I do not think that anyone would seriously argue against the proposition that these are valid and valuable measures of the impact of legal aid advocacy — which is not to say that they are the only ones, or that they can not be improved.

Now, obviously, if one applied these measures across the country, one would discover that there are huge differences, certainly between states, almost definitely within states, and very possibly between programs within units and kinds of locations within states.  Equally obviously, the first question will be to seek explanations for those differences, particularly which of the differences can be attributed to differences in the law, differences in court culture, differences in legal aid programs advocacy, and difference in intake policies.

Surely that is a critical debate, one that should have huge implications for access to justice commissions as they look at the whole system, to courts as they consider their structures, to advocacy legal aid boards and management as they work to improve their quality, and challenge courts to improve their structures.  Depriving ourselves of the data to have this debate is, simply put, crippling for access to justice.

Perhaps the unwillingness, so far, to accept such common studies comes from the force of the argument that every defect in a measure has to be perfect before it is safe to use them.  That’s the wrong test.  The right question is whether a proposed measure is so bad that it can not be used.  (For some history of the discussion of outcomes measures in legal aid, see here.)

I think that the medical analogy is useful.  For many years the 5 year survival rate was used as the measure of success of cancer treatment.  More specifically, mean survival after treatment began was often used.  Now the strong trend is to report both actual survival and an “is is worth it to the patient” test, called generally “health-related quality of life.”  As one paper put it as far back as 2001,

Over the last decade, clinicians have accepted that while survival and disease-free survival are critical factors for cancer patients, overall quality-of-life is fundamental. This review considers recent developments in the field of quality of life, oncological challenges and future directions.

For a more recent (2011) study of such outcome measures, see here.  Here is the report of the development of a disease specific quality of life measure (analogous to a substantive area specific outcome) that might be methodologically helpful to us, since the patients helped develop the measures (hmm).

The point being that over time we can improve the measures, but only if we get started and see what happens with imperfect or incomplete ones.

So, I repeat the challenge, tell us why the Greiner measures are too bad to use, give us a better set, or try these and see.

 

Posted in Research and Evalation, Legal Aid, Medical System Comparision, Metrics, Outcome Measures | 1 Comment