As Julie MacFarlane blogs about the follow up to her Canadian SRL Report:

60 people gathered in Windsor to discuss the research report – 15 of them SRL’s from the study. The other 45 guests included judges from each participating province (including a Supreme Court of Canada justice), leaders of regulatory bodies (the Law Societies) in each province, directors of legal aid, court services managers, policymakers from the justice ministries and directors of pro bono service organizations. The goal? To present the normalcy, reasonableness and courage of SRL’s – and to give the 45 justice system folks a ring-side view on the experiences of individual SRL’s, in their own words.

Here is my favorite para:

First thing Saturday morning one of the SRL’s rose to his feet to say this: “In court, I felt like an outsider going into a bull fight. I was given the impression by the court that I was a troublemaker. Yesterday, through the discussions I felt that the burden of that label, that was imposed on me and I had accepted, was lifted.” Next a judge who had dined with a group of SRL’s the night before, stood up and said: “After years on the Bench, it is amazing to me that I need to come to Windsor, to get the first feedback I have ever had from a litigant who has appeared before my court. What other institution or service does not get direct feedback by some means from its client/customer/recipient population?” A SRL made the next, crucial, observation: “What I understood yesterday is that everyone is afraid, not just the SRL’s. Judges and lawyers don’t want to get involved with self-reps because they fear that then they will not be impartial. The court staff don’t feel that they can help because they are afraid of the consequences of giving legal advice. So the self-reps are always interacting with people who are fearful.”

Please read the whole thing, and think about how you might create a similar event in your jurisdiction.  What might we learn?  How might this stimulate change projects?

This is the most challenging finding, based on interviews with almost 300 self-represented litigants:

Among the differences from NY are limitation to programs and projects serving low income people, inclusion of “law school community education projects,” and allowing the work to be done prior to the date of admission, rather than prior to application for the bar.

This idea is spreading very quickly.  It will be interesting to see if it impacts long term pro bono participation.  Indeed, the NJ proposal includes an evaluation to be done in two years.

The experiment began over a decade ago.   Five “pilot study” judges committed to proactive case management in a randomized comparison with five “control courts.” These exercised the “laissez faire” docket management in vogue when the study commenced.  The pilot study judges moved their cases faster, with fewer motions and fewer temporary orders hearings. However, intense case management increased court appearances, and perversely reduced out of court settlement, because settlement occurred after early court intervention.  To the investigators’ surprise, discovery issues featured in fewer than 10% of domestic cases.

With ten years’ hindsight, the study provides no support for the idea that better pre-decree case management would yield reduced post-decree activity.  Approximately 75% of cases never came back to court in the ensuing decade, even when they involved young children. Families did not bring justiciable post-decree problems back to court, even though their children’s support and parenting needs likely changed over the decade.  One wonders, were litigants so satisfied, or so traumatized that they did not return in either pilot or control cases?

Finally, active case management seems to have helped with represented, rather than pro se litigants.  Settlement rates increased among represented parties, although cases with counsel tended to remain the most litigated, even post-decree.  This deserves more than academic interest, because this case management style became the rule in Colorado (C.R.C.P Rule 16.2).  There is a wealth of valuable detail in the full report here.

Simon Mole,  Magistrate in the 17th Judicial District, State of Colorado simon.mole@judicial.state.co.us

The National Center for State Courts Board has just approved its Strategic Campaign for 2013-2016, and, under the title Solutions for Enhancing Access to Justice for All, it includes as one of its four key elements access to justice.

The issue is explained as follows:

The Commissions Network now covers over half the states, continues to expand, and is recognized as at the core of the overall national access strategy.  The Conference of Chiefs has endorsed the approach.

However, there is a wide variety of forms of appointment, membership models, scope of authority, internal structure, relationship to the state Supreme Court, funding, hosting, relationship to IOLTA program, etc.

Maybe it is time to do an overall evaluation of the benefits and costs of different approaches to these organizational and structural issues.  Maybe we can start to identify best practices.  Yes, the situations in the states are all very different, but that does not make it impossible to analyze what works where, and why.

Perhaps its time to move to the next level of commissions.  This may be the way to start that process.

Maybe it is time to rethink the Federal Rules Project.

Back when the Federal Rules were first being put in place in the 1930′s, everyone assumed that everyone would have a lawyer, and no one had ever heard of computers or even photocopiers.

Yet those Rules, or versions with only relatively minor modifications, govern a huge percentage of the civil cases in the US.

Is it any wonder then that the system is choking on itself?

The Rules, after all were an access project, something we often forget, and we need to re-think what would facilitate accessibility in this new era.

While it is way too early to analyze what 21st century rules would look like, here are a few thoughts:

Burden of pleading, proof and production — these should be radically rethought in a world of massive databases, and corporate data aggregation. As a general matter, those with more information should be required to provide it much earlier — think about the mortgage fiasco and the damage it did the world economy.

Discovery — again, needs rethinking, refocusing, and a structure that puts more emphasis on who has or should have the data.

Compliance — the Rules Project did not nothing on compliance, and we still live with the unanticipated consequences.  As a general matter, and with protection against corporate overreach, we should make the courts more responsible for ensuring compliance, as has happened in the child support area.

Who moves the litigation — the Rules Project did not change the fundamental tradition that lawyers move cases (sometimes) and courts respond (sometimes).  The caseflow management movement can best be seen as a response to the partial recognition that this is not enough.  But, today, we need a much more fundamental re-think of this assumption.  So everything about motion practice (the hardest maybe for the self-represented) has to be rethought.

You will be hearing more from me about this.  I welcome thoughts not only on substance but also on strategy.  Where do we get this conversation going?  In law schools?  In access commissions?  At the Courts?

The core argument is simple:

The Summit was brought together to highlight and reflect upon several reports being generated on access issues. There is one on simplification (link not yet available), one on triage, one on legal aid, and one on family justice.  These reports were generated in response to a speech to the Canadian Bar in 2012 by their Chief Justice.

For me, the highlights were:

• A wonderful poverty simulation, based on this one. (biggest memory for me: the participant who reported that he did well in the simulation because of “luck,” not skill.)  Apparently the simulation does not usually include a legal aid office — hmm –although they added it for this one.
• The interest in developing access to justice Commission equivalents for the Canadian Provinces. (Steve Grumm, newly at the ABA, spoke at a plenary.)
• The fact that triage, simplification, judicial education for self-represented cases are on the developing agenda.
• Conceptions of triage that deal with services long before litigation, built in part on research on the breadth of legal need before litigation.
• The clear support from the judiciary for access.
• How similar the discussion about how to handle self-represented litigants in the court room is in the US and Canada.
• That some Canadian courts are able to provide services similar to those in the US, but that the systems of referral and non-legal assistance seem more robust, given the strength of their social service system.
• A debate on whether to advocate for a national system of “justice care,” analogous to their health care system.  While the political circumstances are very different, the lessons from this debate may help inform our emerging conversation about how to do more for middle income people excluded from the system.

I like to think that there may be opportunities for cross-border cooperation, particularly in areas of research, such as into judicial communication with the self-represented, networking among access commissions or equivalents, the development of new ideas for triage and simplification, and, of course, technology, which is always cheaper whens costs can be spread over a larger number of partners.

Justice Sotamoyor, in her 7-2 opinion used the lack of counsel in the procedures to support her decision in favor of simplicity in the law and process.  This could be used to cite either for the proposition that the lack of counsel requires a simple process, or that the complexity requires counsel.  Some of the language is below.