Michigan Judge Inadvertantly Underlines Need for Changes in Language Access

In a week during which we have been given another opportunity to reflect upon the benefits of integrating people from all backgrounds into our richly varied country, we are — albeit unintentionally — reminded by a Michigan Judge of how far, even a system that is supposed to be about justice, has to go.  We are also given hope that the court system understands its responsibilities.

As reported by the Michigan Oceana County Press, Judge Terrence R. Thomas, of that state’s 27th Circuit, became annoyed when a defendant facing a cocaine possession charge brought an interpreter to court, rejecting his plea offer:

Thomas scolded Juan Leonel Estrada for wasting the court’s resources. “You don’t really need an interpreter,” Thomas said.  “You don’t impress the court by using another resource of the court that you don’t need.”

Estrada’s attorney, Doug Springstead, told the judge that Estrada is “fairly fluent,” but utilized an interpreter because he was nervous and doesn’t understand legal language. “The legal vocabulary is different from the English vocabulary,” Springstead said.

“It is for everybody,” Thomas retorted.

“I’m not going to play these games with this baloney,” the judge said. “Why is this court paying for a translator? I think you’ve misused the process of the court. I think you’re playing a game with me.”

.  .  .

The judge was so irked that he rejected Estrada’s plea and set the case for trial. “You’re going to pay for a translator at trial,” he told Estrada. “We’ll set the trial for as early as we can before the end of the year, and he might learn English in the meantime.”

In a final incomprehensible burst the judge ordered him to surrender his driving license:

“If you can’t understand English, how the heck did you get a Michigan driver’s license?” the judge asked. “You will surrender your driver’s license today.  Anybody who has a driver’s license and doesn’t understand English can plead guilty to a cocaine charge.  He’s getting his driver’s license suspended until he understands English and is safe on the road. He’s a threat to the public.

 When given an opportunity by this blog to comment, the Michigan Courts replied:

The Michigan Supreme Court and the State Court Administrative Office are committed to steadfast compliance with court rules regarding protections for persons with limited English proficiency (LEP).  We are aware of this case and will ensure the local trial court is fully cognizant of its responsibilities under MCR 1.111. [Interpreter rule - link added]

It does not take a lot of skill to read between the lines of this response.

More generally, however, we have to ask what changes in the system would help avoid these kind of embarrassing events. (see , e.g., my recent posts on the “electric shock judge”.)

P.S. We now also hear from the Oceana County Press that Judge Thomas has asked to be appointed Sheriff upon his mandatory retirement from the bench on Jan 1, triggered by his age.  No comment needed or offered.

Update:  a new pretrial date has been set, and “’I am certain that the case will move forward, and there will be a resolution acceptable to both sides,’ said Estrada’s court-appointed attorney Doug Springstead.” according to the Oceans County Free Press.

Posted in Judicial Ethics, LEP | Leave a comment

Proven Value of Timely Texting of Tips Might Extent to the Justice World

A recent report in the New York Times descried a study that showed that low income children’s reading skills improved very significantly when parents were texted timely reminders about how to help their kids learn:

A new study shows that mobile technology may offer a cheap and effective solution. The research, released by the National Bureau of Economic Research this month, found that preschoolers whose parents received text messages with brief tips on reading to their children or helping them sound out letters and words performed better on literacy tests than children whose parents did not receive such messages.

According to the abstract:

We find that READY4K! [the tool tested] positively affected the extent to which parents engaged in home literacy activities with their children by 0.22 to 0.34 standard deviations, as well as parental involvement at school by 0.13 to 0.19 standard deviations. Increases in parental activity at home and school translated into student learning gains in some areas of early literacy, ranging from approximately 0.21 to 0.34 standard deviations.

While obviously one should be careful about over generalizing, this study got me thinking more about the possible value of courts offering to text and email clients not only with reminders about court appearances and obligations, but also with links to tools that can help them prepare or even fulfill obligations.  For example:

  • Videos of the judge before whom people are to appear, showing their personality and what they expect
  • Lists of materials and evidence to bring to court, and tips on how to obtain and authenticate them.
  • Reminders about child support obligations, and how to make and document payments
  • Reminders about visitation times and conditions
  • Reminders about due dates for court and for the filing of papers
  • Links to document assembly programs to prepared required filings

The list is of course endless, and many of the possibilities apply just as much for a legal aid programs reminders to their clients, or an unbundled lawyer’s reminders to a client (caution that sending a reminder might impose additional obligations beyond the scope of the agreement.)

In any event, I remain confused about why so few courts make use of this simple and relatively cheap technology.  Maye this is an LSC/SJI opportunity to create a standard system that could interface with the major case management software in both court and legal aid worlds.  Obviously, such messages should be one of the products of any integrated portal.

If anyone knows why these systems were not deployed years ago, please let me know, and we can try to figure out how to get beyond the barriers.  (I would hate the think that the reason is that the content is not yet developed — if so, maybe an initiative like this would push the development of the content.)

Posted in Court Management, Technology | 3 Comments

Part IV of “Assessing Innovations,” The Private Sector Legal Market

Previous posts in this series have offered cost-benefit, rights-oriented  and “targeted representation” approaches to analyzing whether innovations should be viewed as appropriate.  This post asks the same question about innovations in the private sector market, although with more of a focus on human-delivered services.

In an unregulated market, of course, we don’t need to analyze it.  “If it buys, it flies.”

But the legal market is highly regulated, with strict limits on both human-provided legal service and constraints upon technology-enabled services that also derive from those strict limits which were originally written long before the possibility of technology in the delivery of the legal services.  (And I include the ball point pen and the photocopier in the definition of “before.”)

The initial additional complexity in the private sector comes in part from the fact that there are multiple decision-makers, the individual buyers.  I think the way to analyze  the problem is consider:  “At what point do we think the benefit of potential additional intermediate and lower-cost services that individuals choose to purchase is outweighed by the harm caused by individuals choosing to to purchase services that in fact do them more harm than good?”

When analyzed that way it becomes clear that the answer depends very much on the regulatory structure — not just who is allowed to do what, but how those limits are enforced by qualification and training requirements, and by enforcement of consumer protections.  Since it is not politically hard to get such consumer protections, given the strength of the organized bar, it seems reasonable that the analysis should assume that strong protections are in place and enforced.  Therefore what is permitted should not be reduced based on the worry that authorized non lawyers will do more than they are permitted and qualified to do.  (Although when such services are very strictly limited, there is often an underground market that is largely unregulated.)

Put this way, in the private sector analysis of the question becomes much more simply how to draw the line so that the tasks authorized are those that can competently be done by those individuals or those technologies authorized.  This is done by looking at the specific tasks and deciding what skills and competencies are needed to be able to perform them by the individuals.  It may well be that this specific analysis may be more productive than many of the general philosophical discussions currently taking place.  Moreover, this analysis will vary very much with the substantive area of law, and the custom and practice of the legal system in the jurisdiction.

I welcome additional thoughts on the topics raised in this series.

 

 

 

 

 

Posted in Non-Lawyer Practice, Systematic Change, Triage | 1 Comment

Evaluation of Idaho Informal Custody Trial Raises Interesting Questions

For several years, Idaho has been experimenting with an “Informal Custody Trial” (ICT).  They have recently released the evaluation, and we have permission to post it on this blog here, Informal Custody Trial Evaluation Report.

Big kudos to the state for the experiment, and for evaluating it.  As so often, these pioneering experiments raise more questions than they answer, and this is an important contribution.  As described in the evaluation:

On September 29, 2008, Idaho Rules of Civil Procedure 16(p) was adopted to include a Consent and Waiver for Informal Custody Trial (ICT). The basic premise of the ICT is suspension of the formal rules of evidence, waiver of the rules of discovery, and waiver of the normal question and answer format of trial that allows litigants to directly present their case, issues, and concerns to the court. The ICT model excludes cross-examination, a procedure that can increase conflict in an already highly emotional and often hostile environment.

In the ICT model the judge still directs the proceeding, allowing the parties to speak, and the judge is allowed to ask parties additional questions designed to clarify and keep the testimony focused. Although the parties waive their rights to formal rules of evidence and other trial rights, including the right to direct and cross-examination, the judge still hears the evidence, makes a decision for the parties, and enters the orders based on his or her decision. This decision may consist of creating, modifying, or enforcing an order.

Based on observations of court proceedings around the country in recent years, this Idaho procedure may reflect the standard procedure in many states for dealing with cases in which both parties are self-represented, Judges take control of the courtroom process and proceed in this informal manner – ignoring the standard question and answer format of presenting evidence and using the rules of evidence only as a guide to the weight to be given to evidence introduced. The major difference is with respect to waiver of the formal rules of procedure: under the Idaho ICT there is a formal, written waiver; in other jurisdictions there is no such waiver.Some of the more detailed findings from the Idaho ICT are described as follows:

An encouraging finding is that 73% of parents reported that they understood the ICT before agreeing to participate. The data also shows that parents overall more often than not agreed that the ICT was fair (56%), focused on the best interests of the children (57%), that decisions made were good for the children (55%), and were glad they had decided to do an ICT (57%). Of note, statements on whether or not the ICT focused on the best interests of their children or whether the decisions made were good for their children garnered the most “strongly disagree” responses (36% strongly disagreed/disagreed for both statements). Also of note, parents were the most evenly split on perceptions of whether or not the ICT model decreased conflict: 34% agree/strongly agree, 31% neutral, and 34% disagree/strongly disagree.

Parents were also presented with two questions about their perceptions of the judge presiding on their case. The majority of parents (74%) agreed or strongly agreed the judge treated them with respect, and 60% believed the judge listened to them.

 As the report itself emphasizes, there was no survey of those who did not participate in the ICT, or affirmatively chose to refuse participation, so there are obviously huge limits to the inferences that can be drawn, but at least questions can now be asked about what might have shaped these results.

Some of the most interesting data comes from the second half of the study in which the participants were asked about the outcome.

 In the middle of the data collection period, it was determined that the parent survey should be enhanced with an additional statement: “The outcome of the informal custody trial was in my favor.”  This statement was added in order to better understand the extent to which the outcome of the ICT influenced parent responses to other survey questions.

Thirty-two (32) of the 75 respondents completed a survey with this additional question. A comparison was then done of those who believed the outcome was in their favor to those who did not believe the outcome was in their favor. Individuals who agreed or strongly agreed the outcome was in their favor also more often believed the ICT was fair, focused on the best interests of the children, and believed the decisions were good for their children.

 The report cautions that “This is a small number and making conclusions on this data is discouraged. The data presented is for informational purposes but cannot be considered conclusive. More study is warranted.”

Bearing that caution strongly in mind, however, the data is interesting:

As a general matter, it is unavoidable to conclude that litigants’ views were very significantly correlated with the outcome, and the extent of this effect (0% versus 100% for one question) means that even a small sample must be viewed with respect.

One the other hand it is interesting that more of the “outcome not in favor” group thought that the judge “listened to me” (23%) or “treated me with respect,” (42%) than that the ICT was fair (0%).

When I first read these results (and indeed for a time afterwards), it seemed to me that they were profoundly inconsistent with the procedural justice research, which teaches us at the most general level, that litigant satisfaction is driven more by how people are treated – specifically by whether they feel listened to, treated the same as the other side, treated with courtesy and respect, and whether they trust the judge – than by whether they win or lose. This, of course, is not consistent with the general expectation of the bar or judiciary, and this research has had a huge impact on facilitating a discussion within the judiciary about engagement as opposed to passivity.

The Idaho study collected data on two of the four procedural justice factors, but not on the other two (an even playing field for the participants and trust in the judge as a benevolent figure who cares about the parties and visibly seeks the best resolution of the proceeding. If fact, from this research we do not know enough about what really transpired in the ICT courtrooms to suggest an explanation of the high correlation of negative feelings about the process and the litigant’s perception of losing the case. However, the findings are sufficiently disturbing that they warrant further such studies. Idaho will soon begin implementing new family court rules under which the rules of evidence will be inapplicable in all family law hearings unless both parties stipulate to their applicability. Idaho would be well advised to continue to gather data on litigant outcomes and litigant satisfaction under the new procedures, perhaps with the addition of a control group of cases in which the parties opt to make the rules of evidence applicable to their hearings.

In any event, forcing people to surrender formality is a path, regardless of constitutionality, that should be treated with great caution.

In the end, it is our job to ensure engagement and fairness regardless of procedural environment, as well as to understand what procedural environment best produces engagement and fairness.

Much more generally, obviously, as pointed out in the Report, we need proper control data, and really a randomized experiment, in which some would be offered, and others would not, the ICT.

Similarly, we need better data on what happens in actual ICT cases, and thinking about which procedures should be waived.  I, for example, would prefer to full waiver of cross examination, a system in which the litigant is asked by the judge if there are any questions that the litigant would like the judge to ask the opposing party.  This seems to work quite well in some administrative procedures, such as New York unemployment hearings.  While it does away with the element of surprise, it keeps the value of the admission by the opponent, which is far more useful that the assertion by a party on their own behalf.

This is totally speculative, but it might also be that additional judicial probing skills might increase the sense of fairness. In particular, I think that when a judge feels that a litigant has not carried the burden on an important element, the judge should so inform the party and ask if they have any other evidence.

More generally, we should be thinking about how to design a new set of friendlier procedures that nonetheless improve satisfaction and also actually improve substantive outcomes (an issue not explored at all in this evaluation, yet obviously critical.)

All in all, there is lots here to think about, as we try to make the system that deals well with the reality that most people just do not have lawyers.

Note: Special thanks to John Greacen, who helped particularly with this post.  Opinions and faults remain my own.

Posted in Court Management, Judicial Ethics, Research and Evalation, Systematic Change

Part III of “Assessing Innovations”: Guest Post by Russell Engler on the Targeted Representation Approach

I am happy to guest post Russell Engler’s helpful and insightful response to Part II of my series on assessing innovations.  Part II focused on a rights-oriented analysis.  Russell writes about what he calls the “targeted representation” approach as follows:

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++

There are a broad range of views among Civil Right to Counsel /Civil Gideon advocates, which are not fully represented in Richard’s discussion.   The apparent either/or choice Richard describes is between a categorical right to counsel, in which everyone with a certain type of case gets counsel, or individualized system in which the right is determined on a case-by-case basis. I believe this analysis misses the targeted represented option which is in between, and frankly fits the notion of triage.

The targeted representation approach involves the identification of subcategories within certain substantive areas, and triggers to identify them.  The subcategories could be all elders, minors or people with disabilities or children, within such a substantive category.  They could instead be gleaned from factors related to power imbalances, with or without a merits screen.  But once the trigger is identified (or features identified in a jurisdiction or type of proceeding) the right kicks in.  Outside the scope of the subcategory, there still would be the right/obligation to have the court look at the matter on an individualized basis.  But the subcategory analysis avoids putting the demonstrative burden of proving the RTC on the vulnerable litigant most in need of counsel and ill-equipped to prove the need.  The litigant who can articulate the need for the right and carry the burden is probably less likely to need counsel. In my view, the targeted representation model flips the burden in a crucial way, and better protects the most vulnerable litigants without putting them in the impossible situation of having to prove the need for counsel in the face of a system that resists appointment.

This targeted representation approach is certainly the one embraced by Civil Right to Counsel Advocates in Massachusetts, as reflected in two reports identified below. In California, the Sargent Shriver pilots projects are consistent with the targeted representation approach, involving a sorting of cases, both in the housing and custody area, based on a series of factors that lead some clients to receive full representation and others limited representation. The Civil Right to Counsel in the immigration area is evolving this way as well (unaccompanied minors and people with mental disabilities, so tied to capacity, though note the push for full representation in NYC for detained immigrants, with a cost savings justification).  The approach is also consistent with some of the City Council ordinances championed by housing advocates in NYC- one version provides counsel for seniors facing eviction, while a second provides counsel for all families with children (a third would provide a more comprehensive right to counsel ion eviction proceedings)

For those unfamiliar with the developments in the areas I have described, I list below resources for more information. My main point is to move our collective thinking past the point of either/or analysis and to a consideration of the targeted representation approach. The line-drawing can be painful, but where consensus can be reached in a jurisdiction about subcategories, the approach offers the promise of protection for many vulnerable litigants facing loss of their basic human needs without the automatic requirement that full representation must as a result be available to every litigant in a substantive category even in the face of evidence that lesser forms of assistance might achieve comparable results.

The links, or citations, below provide more information on the initiatives referred to above, including 1) the two reports from Massachusetts, 2) two articles by Clare Pastore describing the Shriver Pilots in CA, 3) links to litigation and reports in the Immigration area and 4) links to the NYC housing ordinances.

Massachusetts Reports:

Boston Bar Association Task Force on Expanding the Civil Right to Counsel Gideon’s New Trumpet: Expanding the Civil Right to Counsel in Massachusetts, (2008). available at https://www.bostonbar.org/prs/nr_0809/GideonsNewTrumpet.pdf

The Importance of Representation in Eviction Cases and Homelessness Prevention: A Report on the BBA Civil Right to Counsel Housing Pilots (March 2012)( The Importance of Representation).  http://www.bostonbar.org/docs/default-document-library/bba-crtc-final-3-1-12.pdf.

 California- Shriver Pilots

Clare Pastore, “Gideon is My Co-Pilot: The Promise of Civil Right to Counsel Pilot Programs,” 17 U.D.C. L.Rev. 75 (2014)  http://www.udclawreview.com/wp-content/uploads/2014/08/GIDEON-IS-MY-CO-PILOT-THE-PROMISE-OF-CIVIL-RIGHT-TO-COUNSEL-PILOT-PROGRAMS.pdf

Pastore, Clare, California’s Sargent Shriver Civil Counsel Act Tests Impact of More Assistance for Low-Income Litigants, Clearinghouse Review Journal of Poverty Law and Policy, 47 Clearinghouse Rev. 97, July-August 2013

 Immigration

Franco-Gonzalez litigation (mental capacity)

https://www.aclu.org/immigrants-rights/franco-gonzales-v-holder

JEFM litigation (unaccompanied minors)

The case, J.E.F.M. v. Holder, was filed in U.S. District Court in Seattle, Wash.

The Complaint is available at: http://legalactioncenter.org/sites/default/files/Counsel%20Complaint.pdf

NYC Report on Cost Savings involved in representing detained immigrations facing deportation:

http://nylawyer.nylj.com/adgifs/decisions14/060214report1.pdf

NYC Housing Ordinances

http://www.civilrighttocounsel.org/major_developments/829

Posted in Access to Counsel, Systematic Change, Triage | 1 Comment

Finding Good News and a Strategy for Access After the Midterms

Obviously, the results of yesterday’s election are potentially very bad news for legal aid funding (broadly defined).  Notwithstanding the generally bipartisan support demonstrated for LSC at its recent 40th anniversary, the risk of cuts to the LSC budget is very real.

But the passage of the minimum wage referenda, often by overwhelming margins, by very red voting pools in several states such as South Dakota and Alaska, as well as in bluer Pennsylvania and Illinois, suggests that the unfairness of income inequality is well known and understood as an action item by huge swathes of even this red electorate.

So, while I would obviously not advocate branding legal aid as “the legal arm of the minimum wage increase movement,” we should think about how to build on the fairness arguments (“Civil legal aid helps ensure fairness for all in the justice system, regardless of how much money you have.”) which came out of the legal aid communications research.

Given that this communications research indicates that support for legal aid depends on the sense that it will be available to those in the middle, the minimum wage referenda might be explained by the widespread fears that they, or their family members, may need the protection of minimum wage.  It might also be true that people understand that, to misquote, “a rising minimum wage lifts all boats except the heaviest.”  Or it may just reflect the power of very simple fairness arguments even in this very angry and bad tempered electorate.

In any event, time for careful thinking on how to apply these fairness arguments most effectively to the access context.

Posted in Communications Strategy, Funding | 1 Comment

Part II of “Assessing Innovations” — A Rights Oriented Analysis

A recent post discussed how to analyze the value of different approaches to access to justice in cost benefit terms.  This follow-up post takes a different approach, looking at the same issue — of how to decided whether to implement an innovation in more traditional rights terms.

Civil Gideon” advocates assert a “right to counsel” in certain types of cases.  While they are deeply nervous about individualized assessment at the counsel assignment stage, they generally concede that there are cases that do not need, or are simply not worth, counsel.

More general access advocates assert that the right should be to access to justice, and that at a minimum one is entitled to an individualized (or triaged) analysis of what is needed to fulfill that right.  They believe that Turner, regardless of what it does to the right to counsel argument, strongly supports the general access argument in any case in which there is no right to counsel.

So, what does one do when faced, for example, with the question whether to implement an unbundled attorney advice only program, or a non-lawyer initiative?

For the general access advocates, the argument is simple, at least conceptually.  The question is whether the program, as designed, provides “access.”  Presumably that means whether the case is sufficiently presented that it is heard on the substantial and procedural merits in the particular forum.  How that is answered will depend on the court environment, as well as how what is being offered fits against what is needed to get the case prepared and presented — i.e. triage.

For right to counsel advocates, perhaps the question is simpler, whether this case fits in the broader class of case in which an attorney is necessary for such a presentation.  If the answer is yes, then it should be a right to counsel case.

If this is a fair analysis (and I welcome more nuanced versions or alternatives), then the benefit of the right to counsel analysis is that, assuming resources are available, it is less likely to produce cases in which cases that need counsel do not get them.  The obvious problem is that the resources are just not available, and are unlikely to be unless the class of cases in which counsel is needed can be radically reduced.  This too can be achieved by changes in court process.  (I would urge “right to counsel” advocates to focus heavily on court processes, and thus strengthen their argument for counsel when the process can not be changed enough.)

On the other hand, the benefit of the right of access analysis is that is more flexible, and perhaps easier to achieve, while the risks include that more complex cases are wrongly pushed into the wrong service category, or that lower levels of service to not provide the supervision and skill in fact required, given the stakes.

Perhaps the long term way to integrate these perspectives is to make sure that access innovations include real individualized triage that reduces the risk of the above errors.  It is equally important that they build in sufficiently specific and nuanced evaluations that that the lessons can constantly improve the triage process.

Similarly, perhaps right to counsel folks should focus as much as who does not need counsel as who does.

Once again, I welcome comments and alternative views on this central, important and difficult subject.

I hope to post a third part of this series, applying these modes of analysis specifically to situations in which the litigant is paying directly for the resource.  We will see how customer choice impacts the analysis, and whether this analysis then impacts back on the cost-benefit and rights analyses.

Posted in Access to Counsel, Budget Issues, Legal Aid, Non-Lawyer Practice, Systematic Change, Technology, Triage, Unbundling | 1 Comment