Another Important Piece of the Justice for All Strategy Falls Into Place — Resources and Funding for Strategic Planning

As every reader of this blog knows, the Access Resolution passed by the Conference of Chief Justices and the Conference of State Court Administrators is important not only because of its endorsement of the “aspirational goal” of 100% access to justice services, but because of its explicit call for each state Access to Justice Commission (or equivalent) to develop a strategic plan with “realistic and measurable outcomes.

Now, in an announcement from Massachusetts Chief Justice Ralph Gants and California Court of Appeal Associate Justice Laurie Zelon, the National Center for Stare Courts tells us of the launch, with funding from the Public Welfare Foundation, of the Justice For All Project.  To quote the (reformatted by me) key paragraph from the announcement:

.  .  . The project will develop a state assessment/inventory and strategic action plan template and guidance materials to assist states in their planning;

[A]ward grants to targeted states using an RFP process, for assistance with state assessment/strategic action planning; and

Provide funding for technical assistance to address specific state access needs.

The Project will be in the care of an Advisory Group, representing a broad range of leaders committed to access innovation and implementation, an Expert Working Group reflecting very broad knowledge and experience in the field, committed liaisons to CCJ and COSCA, and a skilled and expert staff consisting of Tom Clarke and Shelly Spacec Miller (NCSC) and Katherine Alteneder (SRLN).  The members of these groups are listed in full in the announcement.   (Disclosure: I was involved in discussions about the conceptualizing of this project, and am honored to serve on the Expert Working Group.)

The announcement promises more details and a “likely RFP target date of May 2016.

Indeed, “[a]ll states are encouraged to mobilize their partners in the access to justice community to begin the journey to implement the Resolution.”  With the RFP for funding states to work on their assessment/strategic action plans coming so soon, preliminary work would surely make sense.

To my mind, this is a very important step.  It is one thing to announce a goal, but very different to develop the tools needed to move forward, and to provide the resources that will help states fulfill that goal.  I think the process of developing the template and guide  for assessment and strategic planning will show us how much we have learned in the last 15 years, and also help focus us on the issues that will need further attention.  I would very much hope that as we learn from this planning and subsequent deployment, we will be able to use that experience to further improve the tools.

Special thanks, of course, to funder Public Welfare Foundation, and law firm DLA Piper, which will be providing pro bono research and technical assistance.

Posted in 100% Access Strategy and Campaign, Access to Justice Boards, Access to Justice Generally, Funding, Systematic Change | Leave a comment

Moving to 100% Access Strategic Plans – The LSC TIG Program as Opportunity and Harbinger

The 2016 Legal Services Corporation Technology grant solicitation,due Feb 29, suggests one of the ways that the Chefs 100% Resolution can move towards true implementation.

It creates as its first listed specific area of interest, “Achieving 100% Access,” which it describes as “use[ing] technology to further the goal of 100 percent access to effective assistance for essential civil legal needs, particularly through projects that advance related objectives developed by the Access to Justice Commission in the applicant’s state.

The full text of that portion of the request for letters of intent, which appears below, relies heavily on the Chief’s Resolution and quotes from it, including specifically the urging that courts and ATJ Commissions, or other relevant bodies, should develop “strategic plan[s] with realistic and measurable outcomes.

Achieving “100 Percent Access.” LSC’s 2013 Technology Summit Report  proposed  an integrated service-delivery system that would “move the United States toward providing some form of effective assistance to 100 percent of persons otherwise unable to afford an attorney for dealing with essential civil legal needs.” Recently, the Conference of Chief Justices and the Conference of State Court Administrators adopted a resolution advocating a similar access goal:

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.

With this area of interest, LSC seeks proposals that use technology to further the goal of 100 percent access to effective assistance for essential civil legal needs, particularly through projects that advance related objectives developed by the Access to Justice Commission in the applicant’s state.

LSC’s Technology Summit Report provides examples of strategies for achieving 100 percent access, but proposals should not be limited to approaches discussed in the report. Applicants should work with their local commissions (where they exist) and/or other stakeholders to determine the best ways to use technology to move toward achieving this goal.

This has several obvious implications.  In the short term, to the extent that states already have developed even interim access strategies, it would make sense for the legal aid community in a state to work with the other stakeholders to identify the ways that technology could most effectively move forward those strategies and to develop TIG proposls that are integrated with these approaches.  It would similarly make sense to pay particular attention to ways that the technology could be deployed statewide with ease, either initially, or following a local pilot. (It would be hard to imagine a technology serving a state strategic plan if the technology was not designed to be deployed statewide.

In the longer term, it would make sense to make sure that the state access strategic plans include a strong technology component, particularly since LSC is so open to the use of its TIG funding for partnerships, and indeed to cover partners’ costs.  (I remain surprised that this fact is still not yet appreciated by all decision-makers in the access community.)

As a general matter, it is worth pointing out that the focus in the Resolution on “realistic and measurable outcomes,” further highlights the value of technology in the plans.  While not every technology project will measure ultimate outcomes, generally tech-driven projects do a far better job of data collection than non-tech projects, almost by definition.  The data is a byproduct, rather than generated by a separate activity.

I would hope that other funders, including but not limited to IOLTAs, will similarly use their leveraging ability to make sure that more and more investments of all kinds are fully integrated with overall state strategic plans.  That is the best way to ensure that the impact of all investments is maximized.  Indeed, in the long term, I would anticipate that a question as to the relationship to a state’s access strategic plan will become routine in our world.

I feel confident that we will be seeing more and more such integration.  Indeed, LSC can feel very proud of the role it has played in moving these 100% ideas forward.

P.S.  The short Letters of Intent are due Feb 29, here.

Posted in 100% Access Strategy and Campaign, Access to Justice Boards, Access to Justice Generally, Funding, IOLTA, Legal Aid, LSC, Outcome Measures, Systematic Change, Technology | Leave a comment

Thoughts on the Medical Consent Process and Implications for the Relationship Between Courts, Legal Advocates and Clients

Yesterday, I had a bone marrow biopsy, as part of my ongoing medical care dealing with bone marrow cancer.  That biopsy is not my favorite thing, but let me tell you, as often at Hopkins, you are reminded just what a difference a skilled and sensitive person doing the procedure can make.

The thing that has never happened before to me in all my dealings with the medical system, and that really set me thinking, was that, during the consent process, after briefly describing each risk, the nurse explicitly told me what she would be doing to minimize that risk.

It turned the formal consent process, often treated as a meaningless imposition on all involved, into an opportunity for making the two of us into a team.  The nurse communicated her concern for me, I could have pointed to any risks I was worried about, or had reason to believe might have been greater than usual, and the document had a purpose.

In contrast, I could not but help recall how, decades ago, I learned of an institutional public defender in which the lawyers considered it their task, in obtaining the consent of their clients to a guilty plea to, and directly quoting here, to “break the client.”  In other words, as the justification went, they were so certain that the client would be convicted if he went to trial, so certain of the terrible sentencing consequences, and so sure that the reluctance to plead came from irrelevant considerations like a refusal to admit guilt to the family, that they felt a moral obligation to “break the client.”  When I was telling a doctor friend about this, he said it reminded him of Guantanamo.

Now, I trust that most advocates do not see their relationship with their clients that way, but it would be good to think about ways that courts, lawyers, nonlawyer advocates and others could see the benefits of full transparency, including the communication and discussion or risks and how to avoid them, as something that would strengthen the trust of the client or litigant in the system, rather than the opposite.

For example, judges, in explaining the possible consequences of failing to obey a court order, could do this in a way that suggested it was about helping the person being ordered, rather than just frightening them, maybe compliance would be greater.  Maybe we need to be even more sensitive to how a discussion between lawyer and client, in both the civil and criminal areas, should include more of a discussion of risks and benefits of different choices, and of what the lawyer and client could do together to minimize those risks.

In the plea example above, would it not be better for the lawyer to think of how to communicate a deep concern for the client’s interests, rather than how to terrorize him. (And, surely, just the use of that language can only color the interaction.)

Please share your thoughts.

Posted in Attorney-Client, Criminal Law, Defender Programs, Judicial Ethics, Legal Ethics, Medical System Comparision, Personal, Public Defender, Transparency | 2 Comments

Thinking About Designing Courthouses for Access to Justice

Some of us have long urged courthouses be designed physically with a view to access to justice.  We might find some inspiration from a recent video feature on Politico, on the “Post-Ferguson Police Station,”   I would suggest watching the video starting at 5 min 20 secs, for the visuals that show the ideas.

For a courthouse, the core ideas would be design the spaces and human flow to encourage access to the information that would enable people to assert their rights, to connect them with people who can help them, to reassure that they would not be treated as the cashbox, and to ensure that staff were kept cognizant of the human consequences of their actions.

Here is a crazy idea, that at least gets one thinking about the implications of design, set the staff and judicial entryways so they walk past the cells, reminding them that incarceration decisions are not about theory but about humanity. (I’d want to test the consequences, it might do more harm than good.)  You’d need to find a way to explain to those held that they were not being exhibited as objects — maybe it would be safer to just put big photos on the entry hall of the insides of prisons.

More generally, Module 3 of the Court Leadership and Self-Representation package is all about courthouse design for access.

What I would really like to see is an architecturalal design competition for an access-friendly courthouse.  We surely spend billions a year on building courthouses, so this would be very appealing to architects.  (See., e.g. Greenfield Massachusetts Trial Court, Project Cost$60 million;  Boston Federal Court, $170 million, completed 1999).

Once build, those courts can end up structurng the patterns of interaction for a century or so.  Lets get them right.

 

Posted in Court Management, Security, Self-Help Services | 5 Comments

Outcome Measures #2: LSC Outcomes Measures, Good News, Bad News, and A Challenge

This is number 2 in an occasional series on outcome measures.  Number 1 reiterated how important it is to develop and apply such measures system wide.

There is good news and bad news on LSC outcome measures.

The good news: LSC is moving to require the collection and use of outcome measures, and has made available the promised Toolkit on outcomes.  The bad news: there are as yet no national outcome measures, meaning that programs can still design all their own measures, and the utility of the process and product is therefore severely limited.

LSC has told its grantees that 1) they must begin collecting outcomes information by June 1, 2016, 2) must for 2017 grant applications, confirm that they are collecting outcomes, and, 3) for 2018 grant applications, must also provide a narrative of how they are using outcomes information

The Toolkit, developed after a long process, which some of us has originally hoped would develop true national measures, includes listings of possible outcomes by substantive areas, two case studies (Cleveland Ohio and Virginia), and a resources link.  I understand that additional case studies are to be added.

By far the star of the Toolkit and site is the Cleveland Case Study.  The study explains the reasons for the project, the process that was followed internally to develop the outcomes  (including, critically,  extensive staff input) and process, details how the system operates, and lists lessons learned.  Very important was full integration with the overall case management system.  Staff are enthusiastic.

I would hope that screenshots like this one would prove to all the logic, simplicity, and ease of use of the Cleveland system.

CLAS-Consumer-Outcomes I would also hope that charts like these would sell everyone on the value of the system for showing outcomes.

CLAS-HEWII-Health-and-Safety-Strategic-Goal CLAS-Historical-Trend-Report This one, comparing client and advocate views of outcomes shows how useful such systems can be in improving quality — and why we must always include clients in the discussion of what measures to use, and then of actual outcomes.  Why, one asks, are the clients as approximately as positive, or more positive, about every outcome area except the one that deals with keeping the person safe in the home.  I would assume this is the Domestic Violence measure, and wonder if the clients are less hopeful because they know the scope of the ongoing risk.  The obvious suggestion would be to ask clients what could be done to improve this outcome.

Client-Advocate-Outcomes-Comparison

Surely, the case is made.

The bad news, again, is that we still do not end up with a common and comparable outcomes across the system.  I will be honest that I fail to understand why.  I would hope that the illustrations above show the value and potential universality of the approach, and indeed its details.  The lack of comparable outcomes throughout the system makes it impossible to compare the value of innovations or to do the kind of preliminary program and state comparability review that could lead to the more detailed explorations that could then lead to quality and outcome improvements, or, indeed, to a demonstration of the apparent inequities in courts of certain states.

While there is now funding to develop e-training materials on the toolkit (top listing), I very much hope the community will move aggressively to deploy outcomes measures nationally.  (Side Note:  Huge credit to LSC for getting out there and bringing in outside funding to support innovations and improvements, as listed in the above link.  This was a potential too long ignored, largely for fear of reducing local fundraising opportunities.  The truth is obviously the opposite.)

Indeed, with respect to the outcome measures, I offer a specific suggestion and a challenge.  Why not simply take the Cleveland System as the presumptive standard, make the changes necessary to have it work nationally, and then require it to be used?  Maybe the group that worked on the process tried this approach, and it failed.  Then perhaps the larger access to justice community should get an explanation of why this failed.

Similarly, I would offer the same challenge to every legal aid advocacy program, every IOLTA grant maker,  and every state access to justice commission: take a look at the Cleveland model, and see how, with modifications, if really needed, it can be adopted by your program or community.  The burden of justification of any “no” is on you.  If you do feel you need to make a change, minimize it, try to maintain full consistency, and remember the benefits of full comparability.

These are important steps forward.

Posted in Access to Justice Boards, IOLTA, Legal Aid, LSC, Metrics, Outcome Measures, Research and Evalation, Series: Outcome Measures

Outcome Measures #1: Why They are Critical for the Future of Access to Justice

This blog posting inaugurates a new feature, series blogs.  When I think an topic is particularly important, I will blog several times about the topic.  Each series will get its own listing in categories, so you can quickly find the whole sequence.

I am starting with a series on outcome measures because they remain somewhat controversial within the access to justice community, and I think it is important to lay out where we are and where we can and should be going.

Let me start by going back to the medical analogy.  Those of us who are thinking about treatments and drugs, and potentially life-changing choices constantly worry about things like impact on life expectancy.  While we may quibble (with energy) about the importance of designing quality of life outcome measures that value more than just time gained — and indeed I am enrolling in just such a study to validate such measures with respect to my disease — the fact is that we would be lost without that data on outcomes.  Imagine if we had to rely on an oncologist saying “Oh, we think that we have found from experience that this drug is better than that,” or “we tell you to hope for the best and prepare for the worst.”  (One of my favorite lines from Terms of Endearment is when the Shirley Mclaine character, in response to a doctor saying that that is what he tells all his patients, she shoots back, “And they let you get away with it.”)

But without validated and legitimate outcome measures that’s exactly where we are in the legal system.   And, just as it would be hard for the medical system to get much research money if they had not committed to studies based on outcome measures a few years before they they went for the big federal money, we are going to find it very difficult to get innovation and research money unless we can show that we are learning from the investments we make.  Indeed, while some would worry that it is unethical to do randomized experiments, I would argue that it may be more unethical to continue to “treat” people’s legal problems if we refuse to use available techniques to get data from which we could make better choices about how to do so.

But even at the substantive level, how can we even argue for innovation if it will not teach us anything?  How can we propose simplification, for example, if we have no way of looking at what the impact of any changes are?  How can we design incentives for simplification if we have no way of measuring what the benefit is?

How, similarly, can be we make decisions as to who would need and benefit from what services, unless we have a way of measuring the impact on outcomes of different services in different situations?  Without outcome measures, any triage systems will be intuitive at best, and surely inconsistent in their application.

Perhaps most importantly in this moment of unqie opportunity, how can we develop and test strategies for 100% access without the “realistic and measurable outcomes” urged by the CCJ/COSCA Resolution.

So we, and by “we” I mean both courts and advocacy organizations, have to get over this hump and design accepted, legitimate, and validated outcome measures.

I would note that one of the hesitations about doing so comes from the continuing confusion about the relationship between what courts need from such measures and what representation/advocacy organizations need.  The two sets of needs have to be different, because advocates want to get the best possible result for each of their clients, while courts want to be fair, neutral, and accessible to all.  I have come to believe that it is possible to develop an overall system of outcome measures that meets the goal of reflecting these different needs and perspectives, and yet ultimately allows the two kinds of institutions to be assessed as an integrated whole.

Stay tuned.

 

Posted in Outcome Measures, Series: Outcome Measures | 5 Comments

Important Paper On Impact of Technology On Need For Lawyers May Answer One Question, But Ask Bigger Ones

A recent New York Times article reports on a just drafted study on the potential impact on legal employment markets of the spread of technology. As explained in the Times:

. . . [T]here are many human activities that cannot be formally described. It is those aspects of human behavior that computers cannot be programmed to simulate.

That view is supported by a new study, “Can Robots Be Lawyers?”, a draft of which was posted last week on the Social Science Research Network by Dana Remus, a professor at the University of North Carolina School of Law, and Frank S. Levy, an M.I.T. labor economist. In the study, they explored which aspects of a lawyer’s job could be automated.T he research suggested that, for now, even the most advanced A.I. technology would at best make only modest inroads into the legal profession. Based on their analysis of actual billed hours, the researchers examined the work that lawyers do in broad general categories. They then analyzed how much of each category might be displaced by existing A.I. and automation technologies.

As it turns out, being a lawyer involves performing a range of tasks, from reading and analyzing documents, to counseling, appearing in court and persuading juries. Indeed, reading documents accounts for a relatively modest portion of a lawyer’s activities.

The researchers noted that many of the tasks that lawyers perform fall well within what Polanyi defined as human behavior that cannot be easily codified. “When a task is less structured, as many tasks are,” the researchers wrote, “it will often be impossible to anticipate all possible contingencies.”

The paper itself, after careful analysis of the tasks lawyers perform, and the kinds of skills they require, as well as the extent to which they can reasonably be automated, comes to a less dramatic conclusion about the impact of technology than many have embraced, that here would only be a 13% reduction of legal work if there were full use of technologies.

Key is an astonishing analysis of a huge database of hours billed by law firms in a billing companies database (pp. 33-34), leading to a table showing the percentages of time billed by activity, with the activities divided into categories of extent of likely employment impact of technology.

The conclusion (reporting only tier 1 first here, although all tiers give very similar results) is that only 4.1% of work is subject to “strong employment effects” of technology (document review), with 39.7% subject to moderate effects and 56% to light potential effects (such as court appearances) (p. 35). Interestingly, the percentages of time do not change much with length of tenure at the firm, with the exception that document review is very sensitive to tenure, varying from 8.5% for first two years to 1.1% for partners (p. 39). (A side implication may be that labor is not nearly divided enough in the firms, or maybe that the routine work is already all handled by paralegals and computers.)

The paper, by analogizing to data from other fields, then estimates the likely savings of time in these areas from full technology deployment (pp. 39-43). Areas with light employment effects are analogized to the medical context, specifically impact on clinician productivity of electronic medical records (p. 43).   Those with medium level effects are analogized to exceptions processing at a bank (p. 42). The one with high effects (document review) concedes a high 85% impact (p. 41). The bottom line is then the net 13% reduction in lawyer employment, far less than many of the more dramatic articles cited in the paper appear to posit. Applying the assumption that these technologies will take 5 years to deploy fully, the paper goes on to calculate an overall low impact at any point (p. 48).

The final part of the paper discusses the impact of technology upon the legal ethics and deregulation issue, pointing out that replacing the legal analysis activities that are being projected to be replaced by prediction could be both dangerous and less productive than it might seem.

More specifically, the paper asks what will be lost if software replaces lawyers in estate planning and tax. It answers: counseling, robust understanding, respect for clients’ interests, access to reasons, and interaction with the legal system (pp. 64-65).

There is an interesting and complex relationship between this list, and some of access innovators’ thinking about how to define the practice of law, with my own analysis focusing on certainty versus exercise of judgment. Many of these things come from substantive expertise, with many of us believing that the needed skill may sometimes be better found in one without a law degree, as summarized by Lippman, then CJ, at the White House, “Sometimes an expert non-lawyer is better than a lawyer non-expert.”

Obviously this paper has very large implications for our access to justice strategy, which has long included as a critical component the use of technology to increase the efficiency of access to justice services. See. e,g, the recent resolution by the Conference of Chief Justices on 100% access, which explicitly lists technology and many other innovations, themselves leveraged by technology.

Some thoughts on the access distinction:

  1. As a general matter, much of the legal aid access to justice caseload is routine, making much more of the work potentially automate-able. Indeed, the huge numbers of those served by LSC grantees through technology shows the extent to which this already occurring (almost 18 million in 2014, LSC Fact book at 29. Obviously this does not apply to class actions or complex cases.

2.Access to justice innovation, largely unhindered by fears of reducing billable hours, has placed a large emphasis on self-help services and assisted pro se, with technology playing a huge part in this.

3.We have also moved to make much better use of nonlawyers, including not necessarily supervised by lawyers. In this context technology may be the most useful, because it allows the human context to be provided by less expensively trained and paid people, with some of the expertise internalized in the support software.

4.We have promoted discrete task representation which again shifts as much of the work as possible to the client, with the lawyer doing only what the client wants (and can pay for). This again can be done far more easily and safely when the client can use software for things like preliminary document drafting, data gathering, and even outlining of oral presentation.

Perhaps ultimately even more significantly, with initial impact on the access the justice end, but ultimately on the whole legal system, is the potential of technology to change how the dispute resolution and compliance systems themselves work, thus reducing the total need for lawyers.

In the long term, the real savings (and such savings should be seen as positive, rather than negative) will come from changes in the underlying ways in which relationships are formed and in the ways that disputes are resolved when those relationships break down. An analogy might be from the time when it seemed as if horse driven carts would be replaced by engine driven carts. There were surely plenty of theories as to why this would not happen (horses are more intelligent, they navigate varied pathways better, they are more reliable, etc), but the building of high quality roads and other changes made these distinctions irrelevant.

Thus the technical capacities discussed in the paper will not only assist in the specific tasks that the law currently requires, but they are likely to mean that dispute resolution will take fundamentally different forms. We are beginning to see hints of this with moves to simplify court procedures, reduce the numbers of forms and hearings, involve the courts more in the enforcement of the judgements, something that it now left almost entirely to the litigants and lawyers.

To take the enforcement example, all kinds of effort is now required to get money out of the losing party. Linking of banks, government, business databases, could make that largely automatic. Similarly, much of the discovery process could be automated, in the sense that any electronic information required to be provided to the court could be gathered automatically.

It may well be that it will be easier to pilot these changes in low income areas of practice, in which most people cannot afford lawyers, both because there will be less vested interest resistance, and because even the complex tasks may be simpler.

Indeed, this approach is highlighted as follows at the end of the paper:

We have also argued that the existing literature focuses too narrowly on employment impacts, ignoring an important set of broader questions. The broader inquiry starts with the ways in which computers approach particular tasks differently than humans, and then asks how those differences may change legal practice and through it, the law itself. These questions are critical to a meaningful normative and regulatory approach to new technologies, and will only become more pressing as legal technologies continue to advance.

 

 

Posted in Access to Justice Generally, Attorney-Client, Bar Associations, Document Assembly, Metrics, Non-Lawyer Practice, Research and Evalation, Rules Reform, Simplification, Technology