Tribute to Judge Fern Fisher On Her Retirement From The New York Courts

Judge Fern Fisher of New York has been a stalwart of the national access to justice movement.  See here. for how frequently she has appeared in this blog.

So her retirement from the courts is a sad moment.

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Based on a video I made, my tribute to Fern was read at her retirement party.

Here is the full video:

We look forward to new great things, including from her new base at Hofstra Law School, as Special Assistant to the Dean for Social Justice and Public Interest Initiatives.

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Posted in Access to Justice Generally, Incubators, Transitions | Leave a comment

Opportunity To Suggest Improvements to Washington State Access to Justice Principles

I was the consultant to the Washington State Access to Justice Principles back in the early days of this century.

Now a process is underway to update and improve those principles, which were issued by the State Supreme Court in the form of an Order (see below link).  It takes no brilliance to know that risks and opportunities have changed in the last thirteen years!  Among them are the movements for nonlawyer practice, simplification, remote service delivery, triage and 100% access to justice.

Here is the call for comments and ideas passed on by Claudia Johnson:

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WA State is revising its Access to Justice Technology Principles

The Tech Committee of the Access to Justice Commission here in Washington State is collecting feedback to redo the Tech Access to Justice Principles  here in WA State.

As you know–our Principles  were issued in 2004 and adopted through a Court Order. Their release and adoption lead many others to release similar standards. https://accesstojustice.net/2011/09/20/california-courts-seek-comment-on-draft-principles-on-technology-and-access-to-justice/

Considering that so much time has elapsed, and how technology has improved and changed and become part of delivering legal services, we are now revising them to include the new ways technology is being used to increase access to justice.

This process started last Fall of 2016–a the 2016 Access to Justice Symposium in September 2016. http://www.atjweb.org/technology-justice-symposium/

Based on input at that meeting and to continue this important work the working group has created a survey to collect feedback on how the Principles can be improved and clarified, so that they can serve us well into the future.

We solicit feedback from all who are interested in the overlap between technology and legal services delivery. We request that before answering the feedback, to please the current Principles here to get a sense of how they are organized and what they cover: http://www.atjweb.org/read-the-principles/

And then answer the survey here:http://www.atjweb.org/atj-site-survey/

Once we conclude the feedback collection stage–we will reconvene and start drafting the revisions. The group welcomes examples from other states or countries, also information on best practices, examples, areas of concern, information on case law or ethics decisions, or state bar rules, and anything else people think it might be helpful for the group to consider in reviewing the Principles.

Thank you for helping us keep the Principles relevant and up to date,

Posted in Access to Justice Boards, Remote Services, Research and Evalation, Science, Security, Self-Help Services, Simplification, Systematic Change, Technology, Triage, Usabilty | Leave a comment

Video of Mary McClymont on Importance of Justice For All Innovations For Every Substantive Issue

Recently, I blogged about Mary McClymont’s moving and wonderful speech when she got the Champion of Justice Award.

Now, here is the video.

Some of the key text:

.  .  .  there is good news: the crisis has given rise in recent years to an array of innovations to help serve more people who cannot afford a lawyer—such as assisted self-help services, online information and forms, and non-lawyer specialists. When properly coordinated and resourced, these solutions can work together to serve millions more people and make possible a system that provides effective legal help to everyone—when they need it, and in a form they can use.

There is a movement for transformative change underway which includes more than the usual suspects: The highest level—chief justices of the state courts— have recently issued a clarion call for meaningful access to justice for all using a full spectrum of these services and innovations: they have asked leaders in each state to unite across organizational boundaries to make it happen.

The vanguard of this movement has issued a rallying cry of “justice for all” and not just for those who can afford it. I hope all you champions of justice in the room will hear and join in that cry and think how you can contribute to this critical need.

I would encourage the wide use of this video with multiple constituencies:

With potential funders because it uses their language

With boards because it frames things in ways that broad audiences can understand

With court and community based organization staff because it helps get them beyond a narrow view of mission

With policy advocates in non-legal areas because it emphases the links to their worldviews

With Access to Justice Commissions because it should help them embrace  broad common view of larger mission.

With law students to show what this is all about

With pro bono lawyers to expand their view.

Enjoy.

 

 

Posted in 100% Access Strategy and Campaign, Access to Justice Boards, Access to Justice Generally, Bar Associations, Communications Strategy, Court Management, Funding, Law Schools, Legal Aid, Media, Political Support, Poverty, Public Education, Public Welfare Foundation, Self-Help Services, Social Workers, Systematic Change | Leave a comment

Job Opportunity at Harvard Law Access to Justice Lab

As many of you know, the Access to Justice Lab at Harvard Law School is an initiative to try to further evidence-based thinking within access to justice and court administration.

It focuses on conducting randomized field experiments to find out what works and on incorporating lessons from non-law fields into law.

It has randomized experiments underway on self-help with the legal aspects of debt, pretrial risk assessment scores, reduction of debt collection lawsuit default rates, divorce, and federal court mediation, with projects on triage of domestic violence victims and service of process in guardianship proceedings in planning.

The A2J Lab is looking for a full-time researcher.  For details, please see here or here.

Posted in Law Schools, Metrics, Outcome Measures, Research and Evalation, Self-Help Services

The Trump Endgame Is Going To Be About the Intersection of Political and Legal Contexts, Which Together Will Work To Speed the Process

There are several reasons why the received wisdom about the speed of the Trump removal process may be completely wrong.  Not surprisingly, most of the reasons relate as much to the political as to the legal context.

One:  Perhaps most importantly, unlike in prior impeachment situations, even this early, almost everyone in Washington really wants Trump gone.  There are literally only about 50 people for whom this is not true.  The difference between the parties this year is that the Democrats are not upset when people figure it out, but the Republicans are terrified about their base doing so.  (When the Republicans say they want to get all the facts out about malfeasance on their side, you know the subject of the investigation is in deep trouble.)

Two:  A prima facie case of obstruction of justice by President Trump has already been made out, most of it from his own statements and admissions.  This comes from his firing of Comey, his statement that he performed the firing because of his feelings about the Russia investigation, his statement to the Russians that he (and they) have gained from what he believed to be the successful firing.  While that alone is probably enough, there will be plenty more.  This could go to a grand jury very quickly.

Three:  This time round, no one seems to be suggesting any barriers, such as Executive Privilege or National Security, to getting the information quickly.  This is in very marked contrast to 1972 – 1974, when it took well over a year to resolve the barriers.  I think the main reason is listed in number one  above, that no one wants to protect Trump, it is just that one party does not want that fact to be too obvious.  It is also partly that Trump has waived many of the legal issues by his tweeting and statements.  I think it is less the reason for the absence of such privilege claims that the legal issues have already been resolved — US v. Nixon gave Nixon no outs, but clever lawyers have since then, with a sympathetic audience been able to find new arguments — it’s just that there is no such sympathetic audience outside the immediate Trump family and their hangers on.

Four:  It really does not matter whether a President can be indicted or not.  You just charge a conspiracy to obstruct justice, name the President as an un-indicted co-conspirator, and get all the information to Congress.  This is what happened with Nixon, in that case with the permission of the judge overseeing the grand jury (the now largely forgotten hero John Sirica.)

Five:  In today’s digital environment, not only is there additional evidence everywhere, but the process of finding and putting it in the right order will move much quicker.  In the Watergate investigation it look months to get all the interlocking evidence hand typed onto sorted color-coded index cards.  The timeline can be ready for grand jury presentation soon.

Six:  If they can get rid of Trump, the Republicans want it done as fast as possible.  This is because the other prong of the investigation, the one dealing with the underlying Russia collusion, is going to take much longer, but if successful, it is potentially much much more damaging to the legitimacy of Republican power.  If by the time we get a new President it is clear that the Democrats should or might have won without the collusion, the pressure on Pence to offer the Vice Presidency to Tim Kaine will be immense, and we will be in a period of coalition government.  If the Republicans do not accept something like this, they will be killed at the next election, whether midterms or the presidential.  Even if they do accept it, much of their radical agenda is gone.

So, almost all the rational incentives align in the same direction.

The only questions are whether the Republicans can figure this out, and if the Democrats want and are able to, can figure out how to take advantage of the alignment.

Actually, the main reason I now think that impeachment is the more likely route is that Republicans do not have to be the ones obviously triggering the process, at least until very near the end of the game.  In contrast, if they used the 25th Amendment, it would basically Republicans starting and managing the process.

But, that choice of remedy analysis assumes that new bombshell inherently destructive of Trump’s relationship with his core base comes out — and that might happen tomorrow at 5 PM.  Tax returns, anyone.

(First posted in my politics and humor blog.)

Posted in Dept. of Justice, History, Judicial Supremacy, White House

Mary McClymont’s Inspiring Clarion Call

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Earlier today Mary McClymont, President of the Public Welfare Foundation, received the Champions for Justice Award from the Alliance for Justice.

Here are her remarks.  I have bolded the first couple of paragraphs that focus on access to justice. 

Martin and Peter, thank you for those lovely introductions. It means a lot to me especially coming from each of you.

To Nan and the Alliance for Justice, thank you so much for this generous award. And to all present, thank you so much for coming and for supporting AFJ which safeguards our federal judiciary and teaches us all how to do truly bolder advocacy.

For me, this feels like old home week with many friends, co-workers and mentors from different parts of my career in and out of philanthropy. I’m also delighted to see many of the Public Welfare grantees and of course –a very big shout out to my own stellar board members and brilliant staff colleagues. I love our team and I’m so proud of the work they do at the Foundation with our grantees.

When Nan called and said I was to receive the “champion of justice” award,  I had two thoughts: First, to be recognized for my commitment to justice is very special to me personally since all I’ve ever wanted in my career was to contribute to human rights and social justice and to do that in the good company of fellow seekers of justice, whether with a team doing prison conditions cases, or conspiring with grantees on the best way to make real change through a set of grants. You see, for me, it’s that very collaboration that makes the work especially rewarding.

The second thought I had was how humbling it is to be singled out since I know well that so many others could be up here at the podium. All of us are champions of justice, whatever our particular issue, whether we work globally or here in the US. And I believe that what makes us effective champions, especially in these treacherous times, is bringing both passion and laser focus to our particular cause.

I started my career as a lawyer, and I was asked recently how I got into philanthropy. Well, I was recruited by my boss at the CRD of the Dept. of Justice, the brilliant lawyer Lynn Walker Huntley. She had left DOJ to go to the Ford Foundation.  Lynn showed me how philanthropy could also be a place where I, a lawyer, could in fact be a social change agent for what I care about in the world. My philanthropy work thus became intertwined with the social justice work I did on the frontlines. Having the “real world” experience as an advocate was what helped me understand how to do good philanthropy. I’ve been most privileged to pursue my career in both arenas.

A key lesson I learned at Ford was how important it is for philanthropy to be willing to take on and stick with and build advocacy infrastructure around unpopular, politically difficult and intractable social justice issues–such as the scourge of racism, attacks on immigrants or the issues we focus on and stick with at PWF—destructive incarceration of massive numbers of adults and children, who are largely people of color, or unaccountable employers ripping off hard earned wages or imposing unhealthy conditions on workers—such tenacious issues, which all call for transformative change.

So many important overlooked issues to highlight, but I wanted to raise up one about which I’m especially passionate. I have worked on this in philanthropy, earlier at Ford, and, as you heard from Peter, at PWF in recent years with our wonderful grantees. It is an issue that undergirds so much of what we all work on.

What I’m talking about is the complete failure to provide basic legal help to people as they navigate our complex civil justice system on common, yet critical life issues—eviction, debt collection, domestic abuse, child custody or wage theft. The consequences are profound: without legal help on such matters, people can lose their families, their homes, and their livelihoods, be pushed further into poverty, and even wind up incarcerated.

Why else should we care? 1) the problem is enormous: Because millions of people can’t afford an attorney and have no right to counsel , in a shocking 75 percent of civil cases today in our state courts , one or both parties are going it alone in court, completely unrepresented in a system designed for lawyers. 2) They are mostly poor and people of color, mainly women. 3) The issue is virtually invisible to the public, and largely overlooked by the media, philanthropy, and policy makers. 4) Surely we all agree that a functioning justice system that enables people to protect their essential life needs is absolutely foundational to achieving the rule of law, especially in our democracy.

I ask that we bring fresh eyes to this problem and to our state court access crisis where these high stakes problems of low income people arise.

After all, there is good news: the crisis has given rise in recent years to an array of innovations to help serve more people who cannot afford a lawyer—such as assisted self-help services, online information and forms, and non-lawyer specialists. When properly coordinated and resourced, these solutions can work together to serve millions more people and make possible a system that provides effective legal help to everyone—when they need it, and in a form they can use.

There is a movement for transformative change underway which includes more than the usual suspects: The highest level—chief justices of the state courts— have recently issued a clarion call for meaningful access to justice for all using a full spectrum of these services and innovations: they have asked leaders in each state to unite across organizational boundaries to make it happen.

The vanguard of this movement has issued a rallying cry of “justice for all” and not just for those who can afford it. I hope all you champions of justice in the room will hear and join in that cry and think how you can contribute to this critical need.

Thank you.

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Photos used with permission, copyright Noel St John, more at www.noelstjohn.com. (click on clients)

p.s.  Here is the story on the PWF site.

Posted in 100% Access Strategy and Campaign, Access to Justice Generally

Access to Justice: Why Focus On This Issue In an Era With So Many Existential Crises

Sometimes we advocates for access to justice quietly admit to each other that with so many other issues threatening our planet, the poor, and our democracy, that it is hard to argue for access to justice a a funding priority.

Without in any way undercutting the importance of all those issues, I think I may have figured out why access to justice remains such an overwhelming issue.  Interestingly, my take may suggest a way of talking about the issue that will appeal to the right as much as, or perhaps even more than, to the left.  It is simply this:

Access to justice is about ensuring that when the coercive power of the state intervenes or is called upon in relationships between individuals and, organizations, and indeed the state, that the outcome is determined on the merits, not on other factors.

As  very gross generalization, to which we can all find counter examples, criminal access issues arise when the state tries to use its coercive power to discipline an individual. Civil access is about everything else, but really when one party or anther, or both, call on the threat of the coercive power of the state to reorder their relationship.  As part of that process, the legal system has to decide, before deploying that coercive power, what happened in the case, and what the law permits and requires.  It is that decision-making process that then provides legitimacy to the specific use of the coercive power of the state.

Moreover, it is the availability of that coercive power and the process of deciding if and when to deploy it, that provide legitimacy to the state as a whole, and particularly to the availability of the coercive power.

For every political position (other than anarchist), that makes the accessibility of the justice system critical not only to their theory of the state, but also to having the means to do what they believe should be done by the state, in every area of life.

So, the trick is finding the words that will appeal to the universality of this general support.

What makes it hard is that it is an appeal to beliefs about process, not about outcomes, which makes it a harder sell to less-educated low information voters (who do not necessarily find resonance in process concepts such as evolution, statistical analysis, market dynamics, or cross-examination).  But fairness arguments, and those that appeal to the placing of limits upon the power of the state, do appeal strongly to such voters.

So, maybe the highest common denominator here is about guiding and constraining the power of courts so that they can protect us all.

Making sure courts are fair and truly open to all.

Making sure courts are there to help, not hurt.

Giving everyone the information and help they need to keep courts honest, fair and available to all when needed.

Posted in 100% Access Strategy and Campaign, Access to Counsel, Communications Strategy