Guest Post From Claudia Johnson On Washington ATJ Plan Including Racial Equity

Claudia writes: (Sorry for the Richard Zorza delay here in publishing.)

The Access to Justice Board of WA State just adopted a new State plan for the Delivery of Legal Services for the 2018 to 2020 working period. It is is an impressive and timely plan that describes priorities to “expand access to our civil justice system and identify and eliminate barriers that perpetuate poverty and deny justice”.

This plan was developed taking empirical data and findings into account. .

The goals for these next few years center around  Goal #1: Race Equity.

This goal calls for all organizations providing civil legal services to create a shared awareness and understanding of what is needed to achieve race equity.  As far as I know–this is the first time ever in the past 10 years-that a state planning documents puts race equity at the center of all of its goals. Removing disparate outcomes and aligning organizations’ race and equity justice goals will not be easy–but it an issue that cries out for attention, whose time has come, and that if done across systems will greatly reduce the disparities by race and ethnicity of negative outcomes and increase opportunities to achieve justice for all.

The other goals that reinforce goal #1 and each other are:

Goal# 2  Legal Awareness and Education

Goal #3 Access for Underserved communities

Goal #4–Holistic Client Centered Services

Goal #5–Systemic Advocacy

The most exciting part of this plan is that it is centered and anchored in conversations around race and equal opportunity–and brings back into our conversations race equity. Failure to focus our efforts on race equity and to have conversations about how race is determinative of most outcomes has led to drastic consequences for our society, our communities,and our system of justice.

Each goal has discussion, with specific strategies and implementation steps that each and every group can use to align their work and resources to achieve these goals.

Other groups doing state planning  should take a look at the document–and consider if there are similar priorities in your state–based on needs and population and see if they could achieve consensus in tackling systematic race and equity issues as a priority for the next 3-5 years.

This Plan  should inspire other states, Access to Justice Commissions, and legal services planners and planning groups,  to have these needed conversations, look at the data in their states,  and make commitments to understand and then tackle race based inequities  in the our civil justice and legal system.

Congratulations to the Alliance for Justice of WA state, the Washington State Bar, OCLA and everyone who worked to complete a well thought out, innovative, and responsive state plan!

Thank you to all who worked for months on this and now give us this plan and these priorities. The end result is on target and inspiring.

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

Seventh Circuit’s Response to Judge Posner Misses the Point

The Seven Circuit, through Judge Wood, has responded to Judge Posner’s criticism of the Court’s approach to those without lawyers as follows:

First, while [Judge Posner] is certainly entitled to his own views about such matters as our Staff Attorney’s Office and the accommodations we make for pro se litigants, it is worth noting that his views about that Office are not shared by the other judges on the court, and his assumptions about the attitudes of the other judges toward pro se litigants are nothing more than that — assumptions. In fact, the judges and our staff attorneys take great care with pro se filings, and the unanimous view of the eleven judges on the Seventh Circuit (including actives and seniors) is that our staff attorneys do excellent work, comparable to the work done by our chambers law clerks. We are lucky to attract people of such high caliber for these two-year positions.

While all the judges involved are surely entitled to the greatest respect, what Judge Wood has unfortunately done here is turned a general criticism of the Courts into a specific attack on the Court’s staff attorneys, and then defended them.

But the point is not how good the staff attorneys are, but rather the sysem as a whole adequately protects those without lawyers, and ensures that they are heard.  Indeed, the logic of Judge Wood position could become fearfully close to saying that no advocacy is needed for anyone.

To return to Judge Posner’s point:

“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner wrote.

And, in the New York Times:

In the Seventh Circuit, Judge Posner said, staff lawyers rather than judges assessed appeals from such litigants, and the court generally rubber-stamped the lawyers’ recommendations.

Judge Posner offered to help. “I wanted to review all the staff attorney memos before they went to the panel of judges,” he said. “I’d sit down with the staff attorney, go over his memo. I’d make whatever editorial suggestions — or editorial commands — that I thought necessary. It would be good education for staff attorneys, and it would be very good” for the litigants without lawyers.

“I had the approval of the director of the staff attorney program,” Judge Posner said, “but the judges, my colleagues, all 11 of them, turned it down and refused to give me any significant role. I was very frustrated by that.”

Indeed,  when I was a public defender in Massachusetts, I had one case in which a similar screening process in the court in which I was appearing for the defense led to a summary hearing, surely identified for affirmance,.  But my boss, on my telling him that Judge Benjamin Kaplan was to write the decision, told me to assume that there was a chance of reversal, and so I did, and soit was.  I am not sure if it was the same case, but in one summary affirmance case, the DA was so sure of victory that she did not turn up.  That case was a reversal, showing that staff attorneys do not always see things the same way as judges, no matter how good.

I think it would have been more helpful if Judge Woods, rather than re-framing Poner’s point, and then responding with a defense of the staff, would have instead addressed the general issue of openness to issues raised by those without lawyers.





Posted in Access to Justice Generally, Appellate Practice, Defender Programs, Federal Courts, Judicial Ethics, Non-Lawyer Practice | 1 Comment

More on Judge Posner’s Apostasy

This from Adam Liptak in the Times on Judge Posner’s resignation speaks for itself (read the whole piece, please).

“About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it.  .  .  .

The immediate reason for his retirement was less abstract, he said. He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters.

“These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.”

In the Seventh Circuit, Judge Posner said, staff lawyers rather than judges assessed appeals from such litigants, and the court generally rubber-stamped the lawyers’ recommendations.

Judge Posner offered to help. “I wanted to review all the staff attorney memos before they went to the panel of judges,” he said. “I’d sit down with the staff attorney, go over his memo. I’d make whatever editorial suggestions — or editorial commands — that I thought necessary. It would be good education for staff attorneys, and it would be very good” for the litigants without lawyers.

“I had the approval of the director of the staff attorney program,” Judge Posner said, “but the judges, my colleagues, all 11 of them, turned it down and refused to give me any significant role. I was very frustrated by that.”

His new book, he said, would have added to the tension. “If I were still on the court,” he said, “it would be particularly awkward because, implicitly or explicitly, I’m criticizing the other judges.” .  .  .

“The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” he said.

It is particularly appropriate that the Judge was thinking about internal changes to make sure that every case was given a real opportunity to be heard.

From  such insights  and courage come change and revolutions.  Thank you Judge Posner.


Posted in Access to Counsel, Access to Justice Generally, Appellate Practice, Books, Federal Courts, Pro Bono | 1 Comment

A Revolution on the Federal Judiciary About Treatment of Those Without Lawyers?

An ABA Journal article, could open a whole front in access to justice:

[Judge Posner] abruptly announced his retirement from the Chicago-based 7th U.S. Circuit Court of Appeals, effective the next day. The reason is due to “difficulty” with his colleagues over the court’s treatment of people who represent themselves, he told the Chicago Daily Law Bulletin in an email.

“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner said. The issue will be addressed in an upcoming book that will explain his views and those of his colleagues “in considerable detail,” Posner said.

Note that the ABA Journal quotes Harvard law professor Cass Sunstein calling Posner “probably the world’s most influential legal thinker over the last half-century.”

At a minimum, this may cause some in the federal system who have considered these issues as “beneath them,” to reconsider.

We look forward to the book.

p.s.  This has been a record-breaking post, thanks to Larry Tribe’s retweet.  So I am adding a link to a curriculum on the rapidly evolving topic of judicial engagement with those without lawyers.



Posted in Access to Justice Generally, Federal Courts, Self-Help Services, Systematic Change | 2 Comments

A Broader Branding Perspective for Access to Justice — Service and Change

I think it may be time to think our way through to a new and broader way we think and talk about our movement.  These suggestions are based on assumptions that I list below, that are strongly supported by the latest communications research funded by the Public Welfare Foundation .

Public Support for Major Changes in the Civil Justice System.  I believe that there is now broad public support for very significant changes in the civil justice system itself.  I believe that one, but not the only, driver of this demand for change comes from issues of access and affordability, all the way up the income scale.  (see page 23 of the research; “Half say it needs to be “completely rebuilt” or undergo “fundamental changes.””)  This support is deeply linked to growing anti-corporate feelings, and to the sense that the system is rigged.  See, e.g., strong support for “Our legal system allows the wealthy and powerful to mistreat ordinary Americans and avoid any accountability” at page 35 of research.  Support for specific reforms is listed at page 41 and 42.

Fascinatingly, that support for change varies very little when the need for additional taxes is explicitly mentioned, see page 27.)

Deep Concern About Universality.  I am certain that the public support depends on the sense that they too will get help when needed.  That is why Medicaid is now a third rail instead of a natural target.

Positive Views of Judges, the Courts, Legal Aid and Pro Bono Lawyers.  The public have strongly positive net views of all these stakeholders:  Pro Bono Lawyers, net +30, Civil Justice System, net+28, Civil Legal Aid, Net +27, the Judicial Branch, net +30. See page 21 of research.)

Negative Views of the Legal Profession.  This is in contrast, I also believe to net views of lawyers and the legal profession (Lawyers -5, Attorneys -1).  See p 21 of research.)

If I am right about these assumptions, then the public’s critiques of the system as a while is that the problem comes from the fee-for-service bar, far more than on courts and other sectors.  That leads to an additional important conclusion.

Messaging.  I think we tend to use inadequate messaging techniques.  We refuse to talk about our own critiques of the system, how it is “rigged” and our alliances are designed to change it.  We do this not because of incompetence on our parts, but because we are a) fearful of alienating by seeming overcritical, or b) worried about keeping specific institutions such as courts or the bar happy.  I think that if we faced up directly and honestly to those concern, we might find ways to transcend them.

If I am right about this, then we have far more freedom of maneuver than we realize in appealing together with the courts for support for the courts, and access to justice initiatives, in very close cooperation together at both the practical and messaging levels.

To be specific, the public wants the legal system to give people the help they need so that their rights are protected, they want the system reformed so that it can protect the rights of all, and they want someone (preferably everyone) to take a leadership role in ensuring that both those tasks are fulfilled.

So, again relying on the accuracy of these assumptions and conclusions, let me suggest the following messaging.  (In this piece, following the research, I have used the words “legal aid” to mean the broad comprehensive multi institution movement that includes the access components of courts as well as traditional advocacy organizations.  I continue to believe that this formulation raises problems that need to be addressed, but that is for another day.)

Legal aid is the spearhead for fundamental reform of the civil legal system.  Our effectiveness comes from the fact that we are both Protectors and Pioneers for ordinary people — all of us.  Every time a court-based self-help information program gives someone the information that person needs to present their case, we are learning how the services and process can be improved. Every time one of our non-lawyer navigators helps a person navigate their way through a barrier strewn procedural system and give that information to the judge, we are also getting information to present to managers about how the process can be simplified, and how judges can do a better job of asking questions.  Every time a lawyer stands up in court, they learn more about the problems that led to court in the first place, and get ideas for changes and now to advocate for them.  We protect ordinary folks, and we are the pioneers for the fundamental changes the system needs to fulfill the promise of laws and freedom.

Using the terms as in his para, the point is that we can not separate our protection work from our advocacy and leadership for change in the system. Now, the general public is, I think totally comfortable with this combined definition of legal aid. (note, some have suggested alternative terms for the two components, such as

Indeed, it would be fascinating to test a message that explicitly links the two ideas in this one message.


Posted in ABA, Access to Justice Generally, Bar Associations, Chasm with Communities, Communications Strategy, Legal Aid, Non-Lawyer Practice, Political Support, Public Welfare Foundation, Systematic Change | 1 Comment

Guest Blog From Claudia Johnson on Smartphone Usage

From Claudia, quoting a new Pew Report.

“As  is true of the population more broadly, smartphones play an especially prominent role in providing online access to blacks and Hispanics with relatively low household incomes. Only around half of blacks and Hispanics from households earning less than $30,000 per year have traditional broadband service at home. But 63% of blacks and 69% of Hispanics in this income bracket are smartphone owners.”

In legal aid, there is a concerted effort to make legal the information referrals and tools to be mobile first or mobile enabled designs and platforms.  States like WA and Georgia and others where on the forefront of making their legal information and referral websites mobile enabled.

Going mobile forces you think not only about design, but also about how long people can be on a cell phone entering options or looking for information, since they are usually on the go. Can they do the task for 8 minutes? 20 minutes? Or will some stay on a tool for 40 minutes?

You also have to think about saving, downloading, and printing from a cell phone will work for those on the go–who might not be used to do this from a cell phone. Some of these issues don’t come up as often with  use is on a desktop and with an attached printer, etc.  In addition for those organizations that rely on .pdfs to provide information–this might require them to consider changing those resources to mobile enabled versions.

For groups interested in leveling the information gap this Pew Resource might be of interest as they craft their plans for keeping their online legal information relevant and accessible for ALL.

Posted in Access to Justice Generally, Guest Bloggers, Mobile Technology, Technology

A Small Caution for Trump on the Pardon Power With Respect to Federal Contempts

It does appear to be good law that even Federal Court criminal contempts are pardonable by presidents.  (I had  thought there might be a separation of power claim.)

However, the Supreme Curt has hinted, back in 1925, that a pattern of abuse could lead to impeachment.  The language might also provide some tools to persuade the Court to look differently at the Sheriff’s behavior, and any Trump pardon.

Here is what the court said in In the Matter of Philip Grossman, 267 U.S. 87 (1925)

A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor’s right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning confirmed by its common law origin and long years of practice and acquiescence.

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.
(Bold added.)

There just are not so many Supreme Court cases about impeachment, so every hint is meaningful.  This might stand for:

The proposition that use of pardons, in a pattern, could result in impeachment,

That acts that go to undermining the constitutional balance are appropriate for impeachment,

The idea hat the impeachment clause phrase “high crimes and misdemeanors,” is not necessarily limited to violations of the criminal code.

I would welcome additional suggestions.  Read and enjoy the full case.

More particularly, with respect to Arizona, the use of a pardon to undermine Federal authority is said to be particularly disturbing, for example in a “neighborhood.”   While the Sheriff is now out of power, such a pardon is far more threatening to Federal authority, than an individual violation of the law in the case the Supreme Court decided.

Indeed, a pardon for conviction for systematic abuses of governmental power in breach of the constitution would seem a classic exception requiring rethinking.

A sheriff’s county-wide pattern and practice of contempt for the constitution and the Federal Courts is far more damaging that an ongoing pattern of pardons for minor violations by individuals in a “neighborhood.”  Indeed, given that the case arose under the Prohibition Act, it is understandable that the Court felt the need to recognize that pardons might represent a threat to the enforcement of the law, and therefore hinted at remedies.



Posted in Access to Justice Generally, Constitution, Contempt, Criminal Law, Federal Courts, White House