Guest Blogger Claudia Johnson: What I’ve learned in the past 9 years of helping legal aid, courts, and other non-profits create online forms to promote Access for All

What I’ve learned in the past 9 years of helping legal aid, courts, and other non-profits create online forms to promote Access for All

Claudia C. Johnson*

While working across the U.S. in supporting states and courts adapt online forms to increase access to justice, I have learned multiple universal lessons. Although each state, and each legal aid community has unique factors and a unique mix of legal resources and cultures, I share these observations based on experience in seeing a multitude of projects succeed on their document assembly projects. I some of the main take away lessons learned over almost 9 years. For an online form project to succeed these are some of the dos of online form projects.

  1. Do pick a stable form. Pick a form that is not going to be changing frequently as you automate. If the law is likely to change—don’t build a project around that form or statute. If the form language is not fully developed and accepted by all who use the form—first create consensus on the form and then automate it. As much as possible get to agreement on having the forms and instructions come out in Plain Language. As much as possible, create gender neutral forms, particularly for family law forms.
  1. Do automate even if you state has not yet adopted uniform forms. Many states do not have uniform forms—this should not be a barrier to automate. Instead, view this as an opportunity to get multiple counties to buy in accepting the form. Eventually this might lead to the adoption of uniform online forms. In Illinois, for example ILAO automated online forms and eventually some of those forms became statewide forms. http://www.illinoiscourts.gov/forms/approved/divorce/financial_affidavit.asp
  1. Do pick a small, even modest group of forms to automate for your first project. If this is the first time you are doing a project—don’t select a large group of forms to automate. Some forms, even just a simple form, might need to accommodate multiple factual scenarios, so for your first projects, keep the number of form and attachments, simple. If the forms can be bundled into multiple outputs/packages pick the simplest set of case use scenario. If a form can support 80 different user types—don’t pick that form for your first project. Choose something that is simple and easier to test. However, if you pick a form that it is too simple—that might be overkill. In some states, they don’t automate forms that are less than 1 page, as automation is best when the user has to enter the same information over, and over, and over. The computer can focus on entering captions and information that repeats itself over and over, while the person can focus on what orders they need to request and prepare their materials and strategy for each remedy requested.  If this is your first project start with a package that will not require complicated logic or multiple calculations. So for example, don’t start with a child support modification project, instead target a simple probate form, or an adult change modification. This will save you time and money in many ways: including reducing the costs of 1) writing instructions, 2) plain language review 3) testing 4) hosting and 5) support once the forms go live. If your funding or highest area of need is for a complex form and process—keep it as simple as you can. Don’t promise to handle every single factual case that can use that form or proceeding, and don’t promise to create the language in more than 1 language. You can do these next steps—once you have completed the plain language English form—and you have it out and it is getting positive feedback and good usage before you move to more complex variations on that form/proceeding. The 2013 Document Assembly Programs, Best Practice Guide, for Court System Development and Implementation, by Judge Fisher and Rochelle Klempner, has helpful guidance on choosing forms starting at page 13. See http://www.nycourts.gov/ip/nya2j/pdfs/bestpractices_courtsystemdocument_assemblyprograms.pdf.  No matter how good your team is, or how great your partnerships are—less is better. As you build competency and deepen your understanding of the needs of user for your forms, you can increase the complexity. Once you have done a full form roll out then move to larger more complex forms and projects. If you must start with a very complex form/process—then do only 1 at a time.
  1. Do talk to others to identify what forms to pick for automation. Make sure you talk to other groups or organizations with different missions—and develop criteria to select your forms. Form selection will make or break a project. Criteria might include collecting data and information on:

1) What forms are filed the most by those without lawyers if the project is for forms that are filed with courts

2) Complexity and stability of a form (see point 1 and number 2),

3) is it a form that has the two parties filing or only one—don’t overlook the other side if you are doing self-help based work

4) Is it an area of law or demographic where there are no other resources or help? Or are there multiple stakeholders serving similar communities with this or similar issues? If so, include them in the conversation.

5) How will each form under consideration benefit different audiences? Can those benefits be measured?

6) Talk with your partners and your team about what you would want to know after the forms are done? What would you define as success coming directly from using the form—and how would you measure it? Be realistic in these conversations and don’t underestimate the complexity of measuring outcomes.

If you pick forms that only your group wants then use volume of your forms might be limited from the get go and you won’t maximize the benefit of the project, investment. If you pick forms that multiple communities can use (for example adult name change, or powers of attorney)—those forms might get more referrals than forms that fit only a very discrete user need.

  1. Do measure before and after the online form goes live. Measure time, lines, number of people helped before and after the online form goes live.  Before you select a form, measure the amount of time it takes the lawyer, volunteer, and or self-helper to create the documents. Find out who is involved in giving out information on the process, and estimate how many FTEs are involved in the process. Do this before you release your online form. Then measure again after the form rolls out. For example, if it is a form that is going to be filed with a court, or administrative agency, find out how much time or how many times a day a clerk or court staff spend giving information to people in line. Notice the peak line length times—find out if people are getting turned away—on a daily or weekly basis. Keep track of what is happening at the location where people go for help. This will be greatly beneficial once the form is in use. This information will also help you design an online interview that hopefully only asks information once—and that reduces the amount of time it takes to produce a quality complex document. As much as you can, streamline the work flow around the forms—so that you are not put in the position to have one form for a clinic, for a pro bono placement, and for use by people at court or at home. Aim to have one online interview that works across county lines and case use scenarios that can be used used across in multiple work flows. Over time—and online form will let you provide assistance in different ways. Try to design a form that can be quickly modified or where the instructions can be redone—for use in other contexts or with other partners.

 

  1. Do test your forms and consider doing a soft launch before you stop editing them. Once you are testing an online form—measure how much time it takes your testers to use the form. Ask them how they feel about the task—was it too long? Too short? Ask them what other information they wish they had before they sat down on the form.  Make sure you do this also with people using mobile forms. Find out how they print out the forms. This will help you craft the instructions for your different user groups and fine tune the form for effective use. Pro Bono Net released a guide which might be helpful when thinking about how to set up computer terminals for users who need to create forms: http://www.connectingjusticecommunities.com/computer-station-best-practices-a-new-resource-from-lawhelp-interactive/2013/01/.   After you deploy, keep track of the length of the interview session. Find out how many people leave and come back to work on the online form. As more people move to mobile devices—time to completion will raise in importance. Be prepared to shorten the forms and stream line the process to meet the expectation of new emerging users. Be ready to provide support on saving, printing, and coming back to continue working on a form—and make sure your instructions provide that information also. So test the instructions as you test the form.
  1. Do think of the setting where the forms will be used. Make sure your locations have reliable and robust internet connectivity and printers. For mobile phone users make sure you have electric outlets so they can charge their phones as needed. Often times—computers/terminals, printers, paper and ink are not factored in whenever a new kiosk is being created where forms can be used. Make sure you cover these needs with your partners and there is a way to make sure these are available on demand. For mobile users—be prepared to provide printing support from mobile devices. See: http://www.connectingjusticecommunities.com/computer-station-best-practices-a-new-resource-from-lawhelp-interactive/2013/01/.  If you are providing a public space where people can sit down and use the form—think of what your patrons will need to use the form. Set up the desk and materials with an eye of encouraging privacy and concentration.
  1. Choose the right project lead. Do select a project lead who has the time to run the project and understands the end users and partner’s needs. Make sure that your lead person is someone who has strong relationships with other partners and has time to focus on the project.  If you give the project to someone who can’t allocate time to the project, the project will be at peril. The project lead does not need to be a lawyer, but does need to be a strong communicator and have basic project management skills. It has to be someone who has credibility and the backup of your administration. Your top leadership needs to believe in the project and support it.  Keep in mind, online form projects are change/innovation projects. See: https://www.forbes.com/sites/bernardmarr/2016/09/13/are-these-the-real-reasons-why-tech-projects-fail/#138411e17320.  If you give your project to someone who does not understand end users, the needs, the resources available, how to work with other groups and agencies, how to measure success, your project will face unnecessary hurdles and the implementation will be limited. If the project is approached as a technology project only—it will fail to leverage the positive changes that come from savings in time from using the form that can be put to provide other needed services, or create other work flows that promote access to justice. The best project lead is someone who has a vision to serve more people better, who is in a practice that faces serious constraints, and that can work with attorneys to help them adopt the form and change the way they produce legal documents.
  1. Do create an outreach plan. As you work on your forms plan, develop an outreach plan. Identify all the groups that can refer users to the form. Identify all the places where people go to ask for help—and let them know that the form is ready. Set up referral agreements. For some forms, your greatest referral source might be friends and family. For others, Court Clerks. Each problem area might require a unique outreach approach. Work with your web masters to post the form in easy to use and find webpages.
  1. Don’t burry the form urls deep into a page. When presenting your forms, design matters. The page, instructions where your users will find the online form—are important. Consider adapting best practices when designing those pages. For example, some stats have been successful in getting their forms used by making them part of a problem specific “mini-portal”. A mini portal has in 1 urls, essential resources a person will need to resolved one common and specific legal problem, for example, eviction, or divorce. It contains referrals, forms, videos, in one well designed page. Examples: htp://www.washingtonlawhelp.org/dissolution or http://www.lawhelpny.org/consumer.
  1. Do think about safeguarding your end user’s information. When someone is creating a legal form they will be entering a lot of sensitive data. They might be entering information about their credit, their marriage, their relationships, debt and accounts, assets health care information, income, etc. It might include children’s information. Make safety a top priority. Read privacy policies carefully. This ABA page summarizes ABA cloud ethics decisions that apply to attorneys, which might be helpful as you look at standards of care: https://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/cloud-ethics-chart.html
  1. Do request user feedback and act on it. Once your forms are live, give the users the opportunity to give you feedback. In the LHI platform, owners can post their own survey tool to the end of a form, to get survey feedback. In addition, Pro Bono Net shares end user feedback that comes through LHI w/the project owners on a routine basis as part of their support.  Read the feedback. Often times, feedback can alert you of changes in areas where you don’t have staff or offices. So for example, if a court changes a procedure, or address,—and end user might let you know about it, which is helpful if you don’t have staff in that office giving you updates and there is no standard way of being notified of local changes. Sometimes the forms or questions can be confusing to end users. That feedback can help you improve your forms and instructions as you maintain them. If your users can’t use the forms you have made available because their facts don’t fit the form’s topic, that feedback can help you garner resources to create forms in those areas of need.
  1. Use the online form to simplify the process. Creating an online form will give you the opportunity to simplify local processes and rules and remove barriers to access. For every question in a form—ask if that question is necessary? For every step in the process of getting a decision, ask if you need another form for that. Use the form as a magnifying glass to ID barriers for people without lawyers. Consider and identify anything that can be simplified before automating the form. Eliminate fees, simplify or eliminate notary requirements, bundle the fee waiver with the online form, eliminate any extra step that is a burden for the person without the lawyer if possible. As you create the form, simplify the process, simplify the instructions, simplify the number of steps and visits that it takes to complete the process. Use the form to reduce barriers as much as possible and focus on the process, not just the forms.
  1. Once you roll out the forms—set up a budget to sustain the form. Over and over we learn that states that continue investing in their forms, their design, their instructions, their videos, their work flow maps, their staging pages, the partnerships behind the forms, generally end up having more utilization of their forms, and wider form collections that states that do not plan or set aside a small budget to sustain their forms projects. So once your form goes live and the form creation part of a project is over, continue talking to your partners, continue monitoring what benefits use of the form brings. If you developed the ability to create new forms in house, consider adding online forms to other areas of need. Your staff can continue learning and increasing their capacity to create and manage online form projects on an ongoing basis by joining monthly calls and video remote trainings and calls through both Pro Bono Net, LSNTAP, and SRLN. These calls happen once a month—and don’t take a lot of time. If your staff continue to see other examples of how forms are increasing access, that capacity will lead to new forms, better forms or both. LSNTAP trainings can be found here: http://lsntap.org/trainings. You can find more information about SRLN here: http://www.srln.org and about LawHelp Interactive here: http://www.probono.net/lhi
  1. Reach out. Regardless of how many times you have done and rolled a successful online form project, there will be bumps in the road. When you find yourself in that situation, reach out. At Pro Bono Net, we have been supporting online form projects since 2006—and have helped many states grow to their collections over time. We are always interested in sharing best practices, supporting online forms—and helping those use online forms design and develop a successful project. So please reach out. You can visit http://www.probono.net/lhi to find resources you might find helpful as you plan and budget or evaluate an online form project or join the list serves: https://www.probono.net/dasupport/login/?membersonly&returnto=%2Fdasupport%2Fgroups%2F (will need to join the page).  You can also visit and join the SRLN, http://www.srln.org/taxonomy/term/97. SRLN has a forms and technology working group. For example, they have a listing of SRL interactive forms by state: http://www.srln.org/node/850/srl-interactive-court-forms-state-ncsc-2016 (password needed)–that lists the web pages and the platform that is used to make the forms available.

* About Claudia: Claudia is the Program Manager for LawHelp Interactive. Since 2008 Claudia has been working in motivating and supporting legal non profits, courts and other non profits to use online forms to help people with out attorneys create their own legal documents and resolved their legal problems. Part of her work includes working with resource constrained legal services providers and helping them use online forms to streamline their internal work flows for document creationg. Claudia’s work with LawHelp Interactive was featured in the NY Times in 2016: https://www.nytimes.com/2016/06/01/opinion/legal-aid-with-a-digital-twist.html?_r=0 https://www.nytimes.com/2016/12/06/opinion/a-year-of-big-ideas-in-social-change.html Claudia is an innovator that works and supports multiple groups and multiple states in using technology. for good and improve access to justice for all. She lives in the Pacific Northwest with her family and dog.

Posted in Document Assembly, Guest Bloggers, Self-Help Services, SRLN, Technology, Tools | Leave a comment

SRLN Announces Forms Competition

The SRLN Forms & Technology Working Group is holding its first ever Civil Legal Problems Forms Contest.  There are two categories in the competition:

  • Best Static Form
  • Best Automated Form

This is a great opportunity to be part of an energizing conversation within the court and legal aid access community about how to make forms (both static and automated) much better.

Given the huge role of forms in ANY innovation, this really has to be seen as a foundational project for any access to justice improvement.  To quote, in part, the Justice for All Guidance:

Twenty years of experience have taught us that it is almost impossible to deploy any innovation for court users without getting standardized forms in place. It has also taught us that the language and design of the forms are critical. Without such forms, self-help centers are only marginally useful, judges cannot know what questions to ask, and all but the most educated and confident litigants are effectively prevented from generating the documents that the rules require them to use.

 

As with all its components, the JFA Guidance includes a forms sufficiency assessment tools.

The Guidance also lists the following as the key elements of a full successful initiative:

  • Implementation of standardized plain language forms
  • Protocols for assessing and updating forms
  • Testing for comprehensibility and usability
  • Form data integration with the court information system

The deadlines for submissions for the competition is May 1, 2017, and link for submissions is here.  Winners get a free registration to the nex SRLN Conference

Go to it, folks.

Posted in 100% Access Strategy and Campaign, Access to Justice Generally, Document Assembly, Forms, SRLN | Leave a comment

Another “Roles Beyond Lawyers” Evaluation Adds To the Very Encouraging Mosaic and Highlights Need For Replication Support

This week, the Preliminary Evaluation of the Washington State Limited License Legal Technician (LLLT) program, performed by the National Center for State Courts and the American Bar Foundation, was released.  The basic idea of the program is to permit certain highly trained nonlawyers to perform tasks traditionally viewed as limited to licensed lawyers.  The intent is to reduce the costs of access to justice.

The project should be seen as a companion project to the differently conceived New York Court Navigators program, the evaluation of which was performed using the same Framework.  The New York project is  evaluated here.

Here is the  important and very positive bottom line from the new Washington State LLLT Evaluation:

The LLLT program offers an innovative way to extend affordable legal services to a potentially large segment of the public that cannot afford traditional lawyers. While the scope of the role is limited and will not be the answer for every legal problem, LLLTs definitely can provide quality legal services to those who need it and also significantly reduce the stress of navigating a foreign process that is complex and daunting.

The LLLT program also offers the possibility of improving the quality of filings in court cases involving self-represented litigants and thus reducing the time and cost required for courts to deal with such cases. The Washington State example suggests that LLLTs and lawyers may form mutually advantageous business relationships, making referrals to each other as appropriate. Since LLLTs appear to assist customers who could not afford lawyers, they do not compete directly with lawyers.

This program should be replicated in other states to improve access to justice. As experience is gained and its program design is optimized, affordable legal services should become widely available to those with needs in areas where the public typically must now use self-representation. By offering low cost legal services, state bar associations will be able to compete directly with for profit businesses operating outside the regulatory umbrella of state justice systems. By doing so, they can ensure that the public has access to quality legal services.

I would urge everybody to read both evaluations.  But it might be helpful to start to pull together some overall lessons from the two together — and indeed from the emerging pattern around the country.

Roles Beyond Lawyers Work

Both pilots, one allowing license non-lawyers to enter the market, and one using non-lawyers to provide support, including the courtroom, but for free, are successes.

Opposition is less than expected

While both evaluations report some initial uneasiness, both seem to have achieved general acceptance.  This should give some reassurance to those still holding back on introducing an innovation.

There is opportunity for a wide range of experiments

While we only have two evaluated experiments — New York and Washington State — the general findings about utility, acceptance and impact on access to justice in these two very different contexts strongly suggests that there is room for many other kinds of expansion of the work that nonlawyers are permitted to do, and the kinds of contexts in which it is appropriate.

Training, supervision and approval structures are important

In Washing the cost of establishing the program was high, and ongoing costs of education continue to be a concern. In New York, the impacts (and indeed even the goals) were closely tied to extent of, and investment in, training and supervision.  So new experiments would do well to pay particular attention to these aspects of the design — including perhaps experimenting with several different models at one time.

The kinds of tasks appropriate for such roles is only just beginning to be explored

Given the success of these projects , even with with somewhat limited authorization of tasks, there is every reason to believe that the programs would be even more effective if they authorized a broader range of tasks to be conducted by the nonlawyers.  The decision about the scope of such expanded roles should be based on the extent to which the education provided and other protections ensure that the nonlawyer can and will perform authorized tasks appropriately.  It should not be driven by a desire to protect the profession.

As we simplify systems, such roles will become even more appropriate

This is really obvious.  Right now, certain roles may not be appropriate for nonlawyers because they are so complex and/or uncertain.  So simplification gives yet another benefit by making it possible to have related tasks performed by less hyper-trained people.

Ongoing networking and advocacy among those conducting these programs, those planning them, and those considering them should be a high priority for all

This is a task that will take leadership and incur costs.  It is not fair to expect the pioneer states to absorb this burden.  Tasks will include organizing presentations at access to justice gatherings, supporting day to day networking and calls, developing materials (including videos), encouraging research, and advocating for the idea.

A particular priority should be integration into the Justice For All 100% Strategic Planning Processes

Now that we have two evaluations essentially putting American Bar Foundation and National Center for State Courts imprimaturs on this general approach, and indeed two specific implementations, there is just no reason not to consider this as one of the components of the full Justice For All System, as called for by the Chief’s Resolution — subject of course to triage assessment of appropriateness in particular situations.

The evaluation framework Works, and should be broadly used

The framework, while drafted initially for “Roles Beyond Lawyers, is in fact approariate, in my opinion for all access to justice innovation evaluations, and should be used whenever possible.  As here, such use will facilitate comparison and the building of an actionable overall picture.  Focusing on the three issues of Efficacy, Effectiveness and Sustainability, is a brilliant breakthrough that covers everything.

Finally, huge thanks to the Public Welfare Foundation, in the lead as always, for supporting the development of the Framework and its application to these two projects.

Disclosure: I have been involved in multiple ways with these projects.

Posted in 100% Access Strategy and Campaign, Bar Associations, Court Management, De-Regulation, Law Schools, Legal Aid, Legal Ethics, Mixed Model, Non-Lawyer Practice, Public Welfare Foundation, Research and Evalation, Systematic Change, Triage | 1 Comment

Nevada Shows It Is Time for Another Shot at the Equal Rights Amendment

I have been thinking for a few days that maybe it was time to think about a new initiative to pass the (gender) Equal Rights Amendment (ERA).

My thought was that the last failures to reach the required three quarter of states threshold were in part caused by the then superficially appealing claim that there was no need for such a constitutional change because of the idea of equality was both accepted and enshrined in law.

Well, whatever the truth of that back in 1982, the last year or so have shown the utter speciousness of that argument.  Things we thought were settled in this area just are not, and hostility to women’s rights remains a real and appealing force.

The news is that yesterday the Nevada Legislature actually passed the ERA!  (Some technical fixes, due in the next few days, are still reportedly needed.)  So, we need only two more states to get to the point that enough states have passed it that, had the enabling legislation not had a 1982 cut-off, the Amendment would have gone into force.  That does not make it the law, but would give the effort huge additional force.  As the LA Times also reports:

This year, Nevada was one of eight states with resolutions calling for ratification. But in six of those states — Utah, Arizona, Missouri, Virginia, Florida and North Carolina — at least one house of the legislature is controlled by Republicans, who have opposed ERA ratification.

Actually, I am somewhat surprised that the the Republicans continue affirmative opposition.  It seems to me that this is the perfect wedge issue, in that the Republican voters must be split on this issue.  Moreover, drawing national attention to it would be disastrous for the party as a whole, even if in some states it is still less toxic a position for them.  Amazingly, while being introduced every year into Congress, there has not been a floor vote since 1983.  Moreover, some non-ratification states have passed state versions.  Indeed, while some want an approach that removes the 1982 deadline by statute, I would argue that forcing Republicans in states that had already ratified to take stand again would be far more effective politically, and perhaps create unstoppable momentum very quickly.  For national figures this would be about as no-win as you can get.  (I wonder if there has been any poling on this recently?)

With so much at stake, one can see why this is not getting the attention it deserves.  But, I suspect that many newly angry women (and men) would find opposition to the ERA beyond their understanding or acquiescence today.

Lets hear it from, for, and in support of, Nasty Women.

Wikipedia has a good history of the ERA.

Update:  On March 25, the New York Times posted an editorial on the same subject.

 

 

 

 

Posted in Constitution, Discrimination, Supreme Court | Leave a comment

A Tool For Assessing SRL Hearing Quality from the US Dept. of Labor

As state start to think about evaluating how their judges do in cases without lawyers, this might be a useful starting point.  It is US Department of Labor Handbook on measuring hearing quality in unemployment hearings (in which the vast majority of claimants, and many employers do not have representation).  The link is here.

At least initially, such evaluation might well be a general statewide self-evaluation, rather than any attempt to get a  handle on individuals.

By breaking down specific kinds of behavior and hearing attributes which might be assessed, the Handbook might offer a useful beginning.

Here are the areas for which scoring systems are recommended:

decision-ass

For example, here is the scoring system for the administrative judge explanation of the process (#1):

CRITERION 1: PRE-HEARING/PRE-TESTIMONY EXPLANATION.

PURPOSE – At the start of the hearing, the hearing officer should clearly explain the procedures to be followed. The elements shall be covered in the recorded prehearing explanation or opening statement. The explanation must be clearly stated and delivered in an understandable manner.

SCORING SEGMENT

Good (6):  After recording began and before testimony was taken, the hearing officer clearly explained the hearing procedures. This explanation included: (a) the order of testimony, (b) the right to question witnesses, and (c) an opportunity for each of the parties to ask questions about the hearing process or procedures.

Fair (3):   The hearing officer allowed an opportunity to ask questions about the hearing process or procedures, but did not explain all of the elements (a) through (c). Unsatisfactory (0):  The hearing officer did not explain the procedures or did not allow an opportunity to ask questions about the hearing process or procedures.

While, obviously, this whole issue is very very sensitive indeed, we have to recognize that cases without lawyers provide particular quality challenges.  When there are two lawyers in the room, it is a reasonable bet that a) the judge will be aware of the possible consequences of sub-par performance, and b) that serious problems will ultimately be bought to the relevant authority.  However, when there are no lawyers, things may be different.  (I remember appealing a parking ticket in San Francsico in the 1970s, and hearing the hearing officer, a retired cop, comment to a different appellant that, “I do not believe the officer would have issued a ticket if you had done nothing wrong.”  So much for neutral judging.

So, we need some method of quality control, and a system like this, in place in all states through US government standard setting for unemployment hearings, is a good place to start the discussion.

 

 

 

Posted in Administative Proecdure, Judicial Ethics, Metrics, Research and Evalation | 1 Comment

Yet Another Way to Challenge the Legal Sufficiency of the Trump Presidency — Competency to Sign Orders and Bills

There has finally started to be some attention to the 25th Amendment mechanism for removal of the President (Larry Tribe on MSNBC, transcript here).

The main problem is that while the VP would surely welcome such a development, can not be seen to doing so.

However, there is another legal mechanism.  Surely any document is subject to forms of legal challenge when the signatory lacks sufficient mental capacity to sign it.  And, remember, the level of capacity required depends on the complexity of the document and issues, and to a certain extent its importance and significance.

So,  what about all those Executive Orders?  What about any bill that might get passed?  How do we know if Trump had or will have the mental capacity to sign them.

Think about it this way.  As a lawyer, given Trump’s constant changes of direction, denial of reality, and inability to engage with, remember the accuracy of , and act on, facts as presented to him, would you be willing to submit his will to probate? Surely yes.  Would you tell relatives who wanted to challenge the will that there can be no case at all if lack of capacity?  Well maybe yes, maybe no.  But, more importantly, is it the case that under no theory could the case be made?  Not so sure at all.  Moreover, it is far from clear that the capacity standard for the signing of an Executive Order or a Bill is as low as that for a will.  (Think of it as a will that gives away the whole country!)

While it is hard to imagine a court ultimately voiding Trump’s presidency based on this, it is not hard to imagine this as a way of legitimately and legally drawing attention to, and promoting discussion of, the 25th Amendment approach.  Indeed, the only reason it is hard is because if the evidence started to stick together, the 25th Amendment process would kick in.

Any thoughts, folks?

Posted in Access to Justice Generally, Attorney-Client, Congress, Constitution, Supreme Court, White House | Leave a comment

Cop House Lawyers Ordered In Chicago

This could be the begining of a major change.  As few outside the criminal justice system know, in the US most people without resources do not get to talk to a lawyer until shortly before they see a judge.

That means that opportunities for early investigation, for getting the family in for the bail hearing, for preparing arguments for ail are all lost, with immeasurable negative impacts on poor defendants.

But now, as reported by the Hufffington Post:

Chief Judge Timothy Evans of the Circuit Court of Cook County signed an order Tuesday that would make a county public defender or a designated private attorney available to anyone who is in custody at one of the Chicago Police Department’s 22 stations with lockup facilities.

It is not clear from the article if the prosecutors or police have any objection or how the assistance is going to structured and coordinated, but the overall feeling is that the ducks are in a row for this important change.  I suspect a lot of behind the scenes negotiation.

I hope it will be properly researched, and the savings in jail time documented.  If so this could be the beginning of a very major change,finally bringing the US more in line with the rest of the higher income countries.

 

Posted in Bail, Chasm with Communities, Criminal Law, Defender Programs, Policing, Public Defender, Research and Evalation | Leave a comment