Illinois “Safe Habor” Policy for SRL assistance Moves the Ball Foward

There has long been debate about whether listing what self-represented litigant assistance policies are permitted when performed by court staff is useful or harmful.  The argument for listing them is that it makes it much easier for staff to perform them without worry.  The argument against is that a listing may be interpreted as exclusive, and be used as an excuse to turn down experimentation and innovation.

I think  the argument in favor of the full listing approach is enhanced by the just released Illinois Supreme Court Order ( Letter here, Illinois Order here) which attempts a comprehensive approach including such a list, as well as one of prohibited activities and a discussion of confidentiality and ethical obligations.  Congratulations to the Court and the ATJ Commission.

The listing of Illinois permitted activities is here:

(d) Permitted Services. To assist court patrons, circuit clerks, court staff, law librarians, and court volunteers—acting in a non-lawyer capacity on behalf of the court—may, as resources and expertise permit:

(1)  Provide legal information about court rules, court terminology andcourt procedures, but not limited to providing information regarding; requirements for service, filing, scheduling hearings and compliance with local procedure;

(2)  Inform court patrons of legal resources and referrals if available,, including but not limited to:

Pro bono legal services;

Low-cost legal services;

Limited scope legal services;

Legal aid programs and hotlines;

Law and public libraries;

Non-profit alternative dispute resolution services;

Lawyer referral services;

Internet-based resources;

Court-sponsored or -affiliated educational classes, including, but not

limited to, parenting education and traffic safety classes and alternative

dispute resolution services;

Units or departments of government; or

Domestic violence resources.

(3)  Encourage self-represented litigants to obtain legal advice from a lawyer;

(4)  Provide information about security protocols at the courthouse and directions

around the courthouse, including, but not limited to, photocopier and telephone

locations, children’s waiting room locations and other courthouse offices;

(5)  Offer educational classes and informational materials;

(6)  Assist court patrons in identifying approved forms and related instructions based

on the court patron’s description of what he or she wants to request from the court, including but not limited to, providing approved forms for the waiver of filing fees. When necessary, explain the nature of the information required to fill out the approved forms. Where no approved form exists to accomplish the court patron’s request, inform the litigant of that fact and direct him or her to other legal resources;

(7)  Record verbatim information provided by the self-represented litigant on approved forms if that person is unable to complete the forms due to disability or literacy barriers;

(8)  Review finished forms to determine whether forms are complete, including checking for signature, notarization, correct county name and case number;

(9)  Provide assistance to litigants pursuing self-guided research;

(10)  Provide docket information, including but not limited to:

Stating whether an order has been issued

Explaining how to get a copy if one was not provided

Reading the order to the individual if requested

Providing instructions about how to access such information;

(11)  Inform court patrons of the process for requesting a foreign language or sign language interpreter;

(12)  At the direction of the court, review documents for completeness prior to hearing;

(13)  Provide a court patron with access to a case file that has not been restricted by statute, rule or order, or instructions about how to obtain such access;

(14)  Provide the same services and information to all parties to an action, as requested;

(15)  Provide services based on the assumption that the information provided by the court patron is accurate and complete;

(16)  Provide other services consistent with the intent of this policy.

While I suspect that I would expand this list, to include, for example, assisting to litigant to obtain information about related cases from other courts, and reviewing the completeness of the form even without “direction of the court,” and providing information and explanation about how to comply with, an obtain compliance with, a court’s order, overall I like it.  I think  I would also like an expanded list of how people can provide additional assistance in explaining what information a form actually seeks, without taking over from the litigant.  Often instructions are inadequate, and an explanation could be completely neutral.

It is reassuring that items 14, and 15 underline how to make sure that information is neutrally provided, and that item 16 includes a broad expansion of the “safe harbor” to “other services consistent with the intent of this policy,” which I would interpret as to provide as much assistance with access, provided that it is neither non-neutral, or runs the risk of being perceived as non neutral.  Indeed, the purposes section of the order says that:

The purpose of this policy is to provide guidance to circuit clerks, court staff, law librarians, and court volunteers acting in a non-lawyer capacity as to what services may and may not be offered to assist court patrons to achieve fair and efficient resolution of their cases. (Bold added.)

I would love for anyone to use the comments section to add more suggestions for additions to the permitted list.

I would conclude that the one thing we know for sure is that with experience we are learning more and more about how broader assistance can be given in a neutral manner, and that often services are initially perceived as non-neutral only because they have not previously been provided.  Perhaps the way to test whether a service is neutral is not to ask if it is, but rather to ask how it might be provided in a neutral manner, and then see if that is practical.

Posted in Court Management, Self-Help Services | 1 Comment

Joking About Clients — Understandable and Maybe Helpful — But There’s a Test About When It’s OK

There is a provocative, but also disturbing article in the Washington Post that all who serve others, including lawyers and court and self-help staff, might want to think about.  It is titled, Nurses make fun of their dying patients. That’s okay.

As the article puts it:

.  .  . [W]hile people may readily excuse gallows humor among, say, soldiers at war, they may have a lower tolerance for it among health-care professionals. “Derogatory and cynical humour as displayed by medical personnel are forms of verbal abuse, disrespect and the dehumanisation of their patients and themselves,” Johns Hopkins University professor emeritus Ronald Berk contended in the journal Medical Education. “Those individuals who are the most vulnerable and powerless in the clinical environment … have become the targets of the abuse.”

I strongly disagree. The primary objections to gallows and derogatory humor in hospitals are that it indicates a lack of caring, represents an abuse of power and trust, and may compromise medical care. But in my reporting, I found that nurses who use this humor care deeply about their patients and aren’t interested in abusing their power. Their humor serves to rejuvenate them and bond them to their teams, while helping to produce high-quality work. In other words, the benefits to the staff — and to the patients they heal — outweigh occasional wounded feelings.

To be fair to the writer, she does draw limits:

That’s not to excuse all humor by health-care professionals. For example, mocking disabilities and using racial, ethnic or other cruel epithets go too far.

Consider the case of a Virginia colonoscopy patient who says he set his cellphone to record post-procedure instructions and ended up recording his doctors making fun of him while he was under anesthesia. The patient claims that his doctors called him a “retard” and joked that he might have syphilis or “tuberculosis in the penis.” He is suing for defamation and seeking more than $1 million in damages.

“Tuberculosis in the penis” is funny because it makes no sense. But “retard” is an unacceptable word under any circumstances. If the patient’s claims are true, his doctors crossed a line.

But, as a frequent flier at the wonderful Johns Hopkins, I found myself disturbed by the thought that people who need to go the hospital might defer because of fear of being laughed at.  Consider the following from the article:

The nurses I interviewed maintained that situations and symptoms, more often than patients, are the targets of jokes. I learned that some units have a dedicated “butt box” for items retrieved from patients’ rectums — glass perfume bottles, an entire apple, etc. — though after Indiana nurses pulled out a G.I. Joe, the real unfortunate hero assumed pride of place in the nurses’ station.

Hard not to see this as funny, but shyness and anxiety already prevent too many from getting needed care.

This is what I think.  If you could share the joke with the patient, then it is probably OK, regardless of whether they actually hear the joke.  If you could not, then the joke is creating “us versus them.”  And, that is not to mention the fact that some patients under anesthesia may be hearing or remembering more than we realize.

Humor, as the article says, helps patient care teams bond, but it should also help patients and caregivers bond too.  I often find myself joking with doctors and nurses. (I am particularly proud of one joke I developed about the string that is used to retrieve a urinary tract stent, and its possible relationship to an IUD string — “gives new meaning to the phrase “tying the knot.”)  It a way of making my clinicians’ day go better, thanking them for the help, seeing them as human beings, and, frankly, of reminding them that I am human too.

All the same goes for lawyers, self-help, and court staff.

I still remember with pain visiting a self-help center in which one of the staffers had an ugly doll on her desk, labeled “self-represented litigant.”  Some customers of the center might well have seen it.  That it was there was obviously a management as well as a staff attitude problem.  I am still embarrassed that I said nothing.

There is an extra problem in that humor can be a way of saying “I am on your side,” and while that is totally appropriate in a medical staffer, or a legal advocate, if we are in a neutral role, we need to be a bit cautious.

Again the solution is a simple test, the same one for anything someone in a neutral role says to a litigant: “Would you say the same thing if the opposing party were there?”

So, in the end, both tests are the same.  Transparent humor is OK.  But “us against him, her, or them,” is not.  (But disease and unwanted death are acceptable enemies, by my lights at least.)

P.S. I strongly urge that the linked article in Medical Education be read.  It includes suggestions for how medical education could be changed to ensure greater patient respect. We should think similarly about our own educational processes.  This would be particularly relevant to clinical programs, with their high level of client contact.

Posted in Legal Ethics, Medical System Comparision, Self-Help Services

Hearing Lisa’ Foster’s Keynote at the Equal Justice Conference Should Be An Important Moment

We have just heard that Lisa Foster, the head of the DOJ Access to Justice Initiative, will be keynoting the Equal Justice Conference next month.

The chance to hear what she has to say from her perch as one of the very few people with an overview perspective of all the elements of the access to justice system should be quite something.

That this conference will be hearing for the very first time from someone in this role underlines what a very different time this is, with change happening on so many fronts — sometimes even integrated.

For so long the “Department of Justice” was really a “Department of Prosecution.”  Now, since the access position was created by President, we have had an advocate within DOJ for the critical and necessary access perspective.  That’s a different world.

I look forward to the keynote.

 

 

Posted in Access to Justice Generally, Dept. of Justice

The Risks Bars Face Unless They Approach Strategic Planning From a Public Interest Perspective

After recently being part of a focus group for a Bar, part of a strategic planning process, I have some thoughts that might be helpful for bars entering into this process.

Since the US Supreme Court case of North Carolina Board of Dental Examiners v. Federal Trade Commission, it is clear that exemption from anti-trust challenge only applies for a bar if a self-regulating profession is actively supervised by a true state agency.  This is necessary to ensure that protection of the public interest.

In my view, for unitary bars, in which all admitted lawyers must be members, and in which the bar regulates and disciplines, this means that if they fail to structure their strategic planning process around the needs of the public, they may be subjecting themselves to anti-trust scrutiny and to losing the state action exemption on which many such groups have relied.

So, to the extent that a bar makes it clear that its decision-making is driven by other than the public interest, that may be viewed as evidence of lack of active supervision by a public-interest driven true state entity, and cause the anti-trust exemption to fall — something that should be terrifying in this age of challenges to the lawyer monopoly as currently structured.

While non-unitary, non-self-regulating bars do not face exactly this set of risks, they do nonetheless need to make sure that their strategic planning is seen by the public as being driven by an analysis of the public interest.  If they fail to do so, they risk challenges to the structures of regulation and monopoly, and with good reason.

How might a bar structure strategic planning to meet these goals:

  • Finding out what the public actually wants from the profession — look here for some work on public attitudes to the system, with a focus on legal aid, broadly defined.
  • Looking at the actual public interest problems with the legal system
  • Looking at the potential role of the organized bar in overcoming these problems
  • Studying whether the current definitions of limitations upon practice are appropriate in an era of far greater client knowledge and availability of information and tools, including over the Internet. (See New York State Bar flexibility here.)
  • Looking at alterantive structures of ownership, and how to combine the advantages of flexibility with the need to protect the public interest against certain of the pernicious impacts of commercialism.

Other suggestions please?

Many others will surely come from the broad inquiry being entered into by the ABA Commission on the Future of Legal Services.

 

 

 

Posted in Anti-Trust, Bar Associations, Non-Lawyer Practice | 1 Comment

Steps in New York Underline Speed of Acceptance of “Roles Beyond Lawyers”

Two very exciting steps forward in the movement to allow non-lawywers to do more to help with access to justice.  First, I can now post the promised OCA proposal which is in the process of being formally submitted to the legislature.  I understand that the number OCA 2015-21, is the best way to refer to the bill until is formally introduced and gets the right kind of number.

Second, I can report that the House of Delegates of the New York State Bar Association has voted to support the bill.  Obviously, one can not overstate the importance of these steps for access to justice, or praise enough the NYSBA and NY Chief Judge Lippman.  (Disclosure and disclaimer: I am on the group that initially proposed the bill, but any opinions here are strictly my own.  The language speaks for itself.)

As to the bill, in one sense it is very carefully limited.  While authorizing a significantly expanded list of activities that may be performed by nonlawyers, it does so only in a small range of contexts, which should enable us to learn more in a low risk context.

Specifically, the key part of the statute would read:

. . . [T]he judiciary shall implement and oversee a program for the free provision of certain services to unrepresented persons living at or below two hundred percent of the federal poverty level who must appear in the proceedings specified in this article in the civil court of the city of New York and in the housing part thereof (“program”). Under this program, these services shall be provided by specially trained non-lawyers (certified as housing court advocates or consumer court advocates as provided herein) under the supervision of attorneys-at- law admitted to the practice of law in this state in the employ of not-for-profit service providers, including but not limited to legal services provider organizations, approved by the chief administrator of the courts.

The not for profit organizations have to have plans and programs specifically approved by,and those who wish to play such roles also have to be individually certified by, the chief administrator, provided the individuals meet the educational, training and other standards to be established by the chief administrator.

The authorizations, even within the limited listed courts, are also constrained to certain actions.

(i) for a housing court advocate, the provision of such services may not be authorized other than in (A) summary proceedings brought pursuant to 22 NYCRR 208.42(d), and (B) actions described in subdivision (n) of section two hundred three of the New York city civil court act, and (ii) for a consumer court advocate, the provision of such services may not be authorized other than in actions and proceedings in relation to a consumer credit transaction as defined in subdivision (g) of section two thousand one hundred one of the New York city civil court act.

However, and this is the good part, while the advocates are not broadly authorized to practice law, they will be able to do enough to make a big difference.  (Compare the much more limited roles in the already functioning Navigator program which did not require a change in law.) Specifically, the advocates will be able to provide:

(a) advice, counsel or other assistance in the preparation of pleadings;

 (b) advice, counsel or other assistance in the preparation of an order to show cause to vacate a default judgment, prevent an eviction or restore an action or proceeding to the calendar to amend or enforce provisions of a stipulation or order previously entered into; provided this shall include authority to sign an answer or order to show cause;

(c) negotiate with a party or his or her counsel or representative the terms of any stipulation or order to be entered into; and

(d) address the court on behalf of any such person.

 There will be a fourteen person advisory board.  Finally, four years after the start of the authorization, the courts are to submit an evaluation which might include recommendations as to expansion as to courts and areas of practice.

It is also important that the Fact Sheet that goes with the bill (and which lays out the case for the innovation with great if restrained force)  says:

Except as expressly authorized by this measure, HCAs and CCAs would be prohibited from performing any other acts or providing any other services that would constitute the practice of law or from holding themselves out as being entitled to practice law in any way, and would remain subject to all the restrictions and civil and criminal penalties prescribed by law for the unauthorized practice of law. As all advice, counsel and other services provided by HCAs and CCAs will be rendered under the supervision of an attorney, the requirements of confidentiality and evidentiary privileges, including the attorney-client privilege, shall continue in effect.

Of course, with the support of the NYSBA, I am highly optimistic that this will pass and will be a great model for the country, particularly in its demonstration of the role that consultation and collaboration can play in moving forward.  These are turning points on which we will look back.

Posted in Non-Lawyer Practice | 1 Comment

Guest Post From Sherna Deamer on Making Justice Truly Blind — Where it Should Be

This blog loves to share provocative “out of the box” ideas that can get conversation going.  Here is one on how to remove some of the unconscious cultural and ethnic bias in our legal system.  It comes from Sherna Deamer, retired director of the Contra Costa Virtual Self Help Center (obviously speaking only for herself).

BACKGROUND:

Until the 1960s, there were virtually no women in any of the major orchestras in the United States. The sad truth, we were told, was that women just couldn’t play any orchestral instruments as well as men could. That was just a fact of life. Then, musicians in the women’s liberation movement suggested (fought for) the holding of auditions behind curtains, so the judges couldn’t see whether the applicant was a man or a woman. Well! All of a sudden there were women in all sorts of orchestras, and now it is common place to see a woman even in the position of first violin.

SUGGESTION:

What if, for criminal cases, the case would be given a temporary name for use until adjudication: “State vs. 02/12/15 #6” for example – the date the case was filed, plus an identifying number.   That way, the actual name of the defendant would not be generally known. Is it McGee? Or is it Sanchez? Does that matter, if the goal is to try the case on the merits of the facts?   Would “Defendant 02/12/15 #6” work just as well in the interest of justice?

The judge who would do the arraignment would meet the defendant, presumably, but none of the other judicial offices would. Further, the records would be redacted so that none of the judicial officers involved in the case would know whether either of the parties was male or female, black or white, young or old, rich or poor.   All of the pretrial hearings on motions, evidentiary hearings, and so on, would be done by judges who could not be the trial judge. They would just be deciding the legal issues being raised by the lawyers.

During the trial itself, both the victim and the accused would sit behind curtains. Again, neither the judge nor jury would know whether either of the parties was male or female, black or white, young or old, rich or poor.   Both the victim and the defendant would testify, and submit to cross-examination, but they would speak to a “translator” – someone with a BBC-trained neutral voice – who would then repeat what they said into a microphone for all to hear. And both “translators” would be of the same sex: two female “translators”, or two male “translators” so as not to prejudice the judge and jury.

The lawyers for each side would have to know who they were representing. But they there would have to be very strict rules about what they could say in court. “Just the facts,” as they say.   “The victim claims that this is what happened to him or her, and here is the evidence that that is true.” “The defendant claims that he or she did not commit the crime, and here is the evidence that that is true.” Then let the judge and jury decide based on fact, not on prejudice.

WORTH SOME EXPERIMENTS

This would be a super-simple system to cheat. I can think of dozens of ways the court staff, judicial officers, lawyers and others could all “slip” and move the case from the factual to the emotional. However, if there were a judicial system somewhere that was willing to try doing what it could to eliminate known prejudices, perhaps a lot could be learned.

Posted in Court Management, Judicial Ethics, LEP, Research and Evalation | 2 Comments

Jim Greiner Asks “What is Access to Justice For?”

Jim Greiner, in a recent two part post for the Haarvard Law and Policy Review (here and here), urges that we need to decide what we are trying to achieve in our access work.

He points out that without a clear sense of goal, we are making strategic decisions without being guided by any sense of purpose.  He gives as an example the question why do we do debt collection work.

If the purpose of providing litigation defense to debt collection defendants is to keep the defendant from having to pay the debt, there’s a far, far, far cheaper way to do that:  Just buy the debt the plaintiff is suing on.  Buy the debt on the open market, and then forgive it by telling the alleged debtor that she’ll never have to pay.  You can probably do that for, say, five cents on the dollar.  So you can buy (and then forgive) a $2,000 debt for $100.  Is that more efficient than litigation defense?  It almost has to be.  When you think about what a litigator needs to function (computer, printer, IT support, office, transportation, salary, benefits, administrative support, etc.), it’s hard to think of how one can produce a functioning litigator for less than (this is a blind guess) $60,000 per year.  And how many $2,000 debt collection cases can that lawyer realistically defend in a year?  300?  400?  For $60,000, a legal aid office could buy and forgive 600 $2,000 debts.  So, the best thing to do for the legal aid office is not to hire a lawyer; rather, the best thing to do is to buy debts on the open market and forgive them.  You get twice the bang for the buck.

Acknowledging the incompleteness of that analysis, he goes on to discuss other possible goals such as changing the way the court system handles such cases, increasing peoples happiness, and public trust in the system — all valuable goals.  He also suggests strategic implications of such goals, including the possibility that some of these goals might not require the expensive systems of intake now in place.

Let me suggest a mode of analysis that might be quantified.  I think that most of us have a range of goals, but that the weighting of the goals varies with individuals and with institutions.  Some particularly value the anti-inequality impact of legal interventions, with some focusing on the individual impacts, and some the broader structural impacts.  Some value public trust and confidence.  Some focus on individual unfairness.  And so on.

It would be interesting, at least for research purposes, to find out the differing mix of values of stakeholders, and their estimates of the impact of the potential of individual types of cases or activities to achieve those goals.  A map of these “votes” would display a fascinating portrait of our community. (One that would not necessarily be comfortable to all.)

The next step would be to attempt to find ways to asses the impacts of potential groups of cases or activities, based on that map, to be used, in combination with an analysis of strategies and opportunity costs, in priority and triage decisions.  (After all, in a sense, that is what we already do in community-based legal aid priority setting, we just do it instinctively.)

Such a process of analysis would lay bare the broad differences in the legal aid coalition — but it would also allow for focus on commonalities, and for respect for the fact that different stakeholders and institutions can have different focuses, yet work together, particularly on certain strategies.  And it might lead to some surprises.  Maybe some of the banks that support access to justice do understand that too much inequality is a risk to stability!

Thanks, Jim, for getting this discussion started.

 

 

 

Posted in Funding, Research and Evalation, Systematic Change