We Now Have the Data That shows That The One-Side-Self-Represented Case is the Dominant Case Situation in US Civil State Courts and That We Need a Fundamental Rethink of The State Civil Justice System

Some data from NCSC should be helpful in relating access to justice strategy to overall legal system changes.

This is because this data simply blows away the way we think about the courts.

The dominant analytic mode has always been that cases involving self-represented litigants are the exception in state civil courts, deserving of special educational programs for judges, perhaps a self-help center and online forms, and, in a really progressive state, even some form of assistance in the courtroom.

Well and good.  But now we not only know, but have the data to show that it is all completely inside out.

Last year, NCSC’s Civil Justice Project issued its Landscape of Civil Litigation of State Courts, and this data has been made use of in the chart on page 11 of the Project’s Call to Action.  The chart shows percentages of plaintiff represented, defendant represented, and both represented in a variety of situations and contexts.

I have played with the percentages data, which comes from ten urban counties, randomly selected from counties that had participated in prior such studies.  The list and analysis is at page 14-15 of the Landscape.  Over 650,000 cases for which full representation status data was reported are included.  The only civil cases not included in the data collection are those described as “domestic” (Landscape at iii This is a critical fact for self-represented litigant analysis, and likely leads to significant under-inclusion of cases with no lawyer on both sides in the number.

So, at the general level, this is the Civil Court “Scope of the Problem” chart.

Overall

At a minimum, this chart shows that the problem, in civil court at least, is far more the cases with only one side having a lawyer (70%), than the very different problem of the situation of where neither side has a lawyer, and that these cases swamp both-sides- represented cases.  In contrast to our world view, the one-side represented situation is the modal one, and heavily so. As the Landscape Report Executive Summary puts it:  “At least one party was self-represented (usually the defendant) in more than three-quarters of the cases.”

What a shattering change to the self-image of courts this requires, and what a challenge to access to justice, and what a rethink of our whole court management, indeed whole civil justice system, challenge.

Given the total mismatch between the design assumption that almost everyone has a lawyer, and the reality shown by these numbers, its hard not to think that this is the core of all courts’ problems, and that other issues, like funding, delay, prestige, and private sector alternatives, are a directly or indirectly the product of this underlying force.

Among the immediate system design implications.

  • Clerks offices are now much less important than self-help centers.  It is not even clear that clerk’s offices should exist.  Probably they should be absorbed into self-help services.
  • Judicial education should be completely restructured, with the majority of courtroom training components focusing on cases with one self-represented litigant.
  • Judicial selection should be changed to ensure that we get judges with the right skills, and that those who think they want to be judges know what they are signing up for.  An unhappy judge is a bad judge.
  • Technology projects, and particularly e-filing, should be built so that they work as well for the self-represented as they do for lawyers.
  • Every court, and almost every court committee, needs individuals and senior managers with a primary focus on self-represented cases.
  • Rules should assume that the dominant mode of cases is the dominant mode.
  • Caseflow management must be focused on those who need help, rather than attorneys.  No wonder it fails now.

Thanks so much to NCSC for the very hard work of bringing this data together (we know how hard it is) and making it accessible.

More to come in future posts on the more detailed data, and its potential use in access to justice strategic planning.

A short note on methodology — let me know if you find a hole.  NCSC very kindly send me the percentages in the representation chart in the Landscape report in a spreadsheet, and I just played with them. The full sample represents about 5% of cases nationally, and the cases with representation data involve a bit more than two thirds of that.
  1. The “plaintiff only represented” percentage is derived by subtracting “both represented” from “plaintiff represented.”
  2. Similarly for “defendant only represented.”
  3. “Both represented” comes directly from the chart itself.
  4. Then “other than both sides represented” is derived from subtracting “both side represented” from 100%.
  5. Similarly, “Either only plaintiff represented or either only defendant represented” is derived by adding “only plaintiff represented”  and “only defendant represented.”
  6. Finally, “no representation for either side is derived by subtracting “either only plaintiff represented or either only defendant represented” from “other than both sides represented.”
Maye if I were better at Boolian algebra I could have made this simpler, but this way the logic is at least relatively clear.
Posted in 100% Access Strategy and Campaign, Access to Justice Generally, Attorney-Client, Self-Help Services, SRL Statistics, Systematic Change | Leave a comment

Meet Claudia Johnson’s Daughter Scarlet Johnson, Now Blogging Too

Everyone in our network knows Claudia Johnson, who frequently guest blogs in this space.

But I bet you did not know that her daughter Scarlet Johnson is now a blogger too, launching her blogging with this contribution, which exudes her mother’s warmth, intelligence, and humor.  Her topic is being bi-racial.

Being biracial is one of the most unique, complicated, exciting and confusing experiences one could ever have the opportunity to experience. Those of us that are biracial get to experience a diversity of cultures, food, music and language. While it is absolutely incredible, there are plenty of annoying situations we find ourselves in. Usually, attributed to the innocent ignorance of our non-biracial friends and family. Some of these, we can look back and laugh at, some of these are nothing short of obnoxious. Either way, most biracial people can relate to the following 15 things.

Number 1: People who use the word “Halfie”

One of my biggest pet peeves, as a biracial person, is when someone calls me a “Halfie.” I mean, I don’t know about other biracial people, but I at least feel pretty whole.

I do not know if I should be embarrassed or proud never to have heard the word.

Congrats to the whole family — welcome, Scarlet, to blogging.

Folks, read, enjoy and follow.

 

Posted in Access to Justice Generally, Discrimination, Guest Bloggers, This Blog | Leave a comment

Twenty First Century Strategic Planning and Innovation Deployment — Lessons From the 2016 Campaigns

A fascinating article and followup chat in the Washington Post may well lead us to a wiser and more effective strategic planning and innovation process for access to justice.  The general approach applies to any such process, and to a certain extent, at any level or size of entity.

Basically, unlike Trump,

As [Clinton] has reoriented her campaign for the general election, her team has devised a structure that reflects not geographic contiguity, with its common weather patterns or vernacular music traditions across neighboring states, but instead the different type of campaigning she will need to win each one. Most importantly, the structure acknowledges the increasing importance of early voting, which offers Clinton the potential to lock in an early lead when ballots begin to be cast in late September.  .  .  .

In Clinton’s Brooklyn headquarters, states with major opportunities for early voting—such as North Carolina and Colorado—are in their own pod, while the remaining states are divided into two. One pod has large, diverse states like Ohio and Pennsylvania, where mobilizing minorities and young whites will be essential to her victory. The other pod contains smaller, mostly white ones like Iowa and New Hampshire, which present fewer opportunities to identify and turn out new voters but a major need for persuasion.

To put it another way, the campaign recognizes that different things need to be done in different places, and planning for and managing places with different challenges and different opportunities together makes sense.

In access to justice we have long toyed with an approach that thinks differently about states in different situations.  Katherine Alteneder of SRLN has been a particularly forceful advocate and analyst of this general approach, making the case that a state has to know where it is before it can know what to do.  One possible set of  category names, for which she should in no way be blamed, is “advanced states,” “foundational service states,” and “emerging states.”

I personally read the Justice of All Strategic Planning Guidance as in general accord with this philosophy, although not necessarily with categories and labels.  In particular, the Chart of components, at page 4 of the Strategic Plan Action Guide, and the Component  Assessment Compilation in the Appendix to that document at page 14, help states and groups at all levels think in an overall way about where they are.  My dependencies doucument, discussed and linked here may also be helpful in this process.

I would reiterate that these materials can be very helpful indeed to states, counties and courts that are not necessarily thinking of responding to the Justice for All RFP.  They are a tool for all, and, in my humble and biased opinion, represent a significant step forward in thinking about strategy and action.

Posted in Access to Justice Boards, Access to Justice Generally, Court Management, Systematic Change | Leave a comment

A Dependencies Tool To Assist in ATJ Strategic Planning and Use of the JFA Guidance

I am sharing, in the hope it may make the process of access to justice strategic planning both for the community at large and specifically those participating in the Justice for All RFP and associated processes, this document that is my personal take for SRLN on the relationships between the different components in the JFA Guidance.  The document clusters the components the same way the Guidance suggests at page 4 of the Strategic Action Planning Guide, which is part of the Guidance pack.  Here is the chart showing that clustering.

cluster

I am attaching the document in both docx and pdf formats.  While I would encourage people edit this to reflect their own thoughts, and their state situation, I would ask that those modifications be noted and credited separately.

These are totally my own opinions and judgments, and no other else should be tarred with them.

Posted in 100% Access Strategy and Campaign, Access to Justice Generally, Court Management | 2 Comments

Integrating the ABA Futures Report and the Justice For All Components

Its finally here, the ABA Future of Legal Services Report.

As expected, it covers a lot of ground, and is a lot to read.

As an aid to speedy integration into other projects, I have prepared this table that compares the Components analyzed in the Justice for All Guidance, with the Recommendations in the ABA Futures Report.

I very much hope that this table will:

Help those working in each and both groups find support in the different documents for moving forward on both the agendas.

Encourage thinking about the kinds of specific collaborations that the many parallels between the documents could spur.

Strengthen the feeling that this is all in support of a broad consensus in support of not only the goal of access to justice, but also about how to get here.

Encourage people whose primary current engagement is in one of the silos of bar, court, legal aid, to think about how they could help those in other silos do their work.

Encourage other groups developing agendas, strategic plans to think about including in their analysis and reports just this kind of table.  It would be interesting, for example, if the current LSC strategic planning process included such a chart (in this case with three columns) in their final document.

Here is the chart.  Comments and suggests very much appreciated.

Posted in 100% Access Strategy and Campaign, ABA, Access to Counsel, Access to Justice Generally, Alternative Business Structures, Attorney-Client, Bar Associations, Court Fees and Costs, Court Management, Document Assembly, E-filing, Incnetives, Law Schools, Legal Aid, Legal Ethics, LEP, Mediation, Middle Income, Mixed Model, Non-Lawyer Practice, Outcome Measures, Plain Language, Planning, Referral Systems, Research and Evalation, Rules Reform, Self-Help Services, Simplification, Systematic Change, Technology, Transparency, Triage, Unbundling | 1 Comment

A Blockbuster Recommendation In the ABA Futures Report Is for A National Commission on Uniform Court Forms

The Recommendation, at page 46 , of the Report, reads as follows:

“The ABA, the National Center for State Courts, the Conference of Chief Justices, and the Conference of State Court Administrators should collaborate to create a National Commission on Uniform Court Forms, similar to the National Conference of Commissioners on Uniform State Laws. The purpose of the Commission would be to generate model forms to be used by both represented and unrepresented litigants on a multi-state basis in ways that create consistency and accommodate simplified technological document preparation.”

Given that part of the reluctance of some courts and judges to move towards standardization has been a fear that such a step would antagonize the bar, this has to be a critical recommendation for the future.

Imagine the impact upon the Texas forms debate if such a Commission had been in place, and Texas had merely been asking for comments on the proposed modifications to the Uniform Form to account for Texas law and practice.

I see no intelligent reason that this can not move forward as soon as possible.

Posted in ABA, Access to Justice Generally, Forms, Plain Language, Self-Help Services | Leave a comment

Fascinating Parallel Between Rule Against Diagnosis Without Examination By Psychiatrists and Legal Information/Judgement Distinction

Here is the link to the recent statement by the American Psychiatric Association President drawing attention to the so-called “Goldwater Rule”:

On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement. (Bold added.)

Interestingly, the Washington Post puts it this way:

The short version: It’s okay to talk about psychiatric issues — but not okay to diagnose people you haven’t treated.

Of course, there is a lot of daylight between “shar[ing] with the public .  .  . expertise about psychiatric issues in general” and “offer[ing] a pofessional opinion.”  Most of that uncertainty derives from the wiggle room in the phrase “in general.”  Note also that the Post short version above does not include the qualification, and I have to feel that the Post article overall, while quoting extensively, feels less restrictive than the APA statement.

In any event, I note that there is a lot of parallel with our issues about legal information.  I would suggest that the no opinion from shrinks rule might help us say that the information only rule can seen as simply a “no opinion” rule.  In other words, the simple explanation of our rule is “just the facts, m’am.”  Of course, some would argue that there are no facts in psychiatry — or law.

As to the practical impact on psychiatrists however, I do recall the lovely line in House of Cards, when the FU character drops a hint, the naive young journalist asks the intended follow-up and FU replies:  “Now, you might well think that, but I couldn’t possibly comment.”  That phrase has passed into English, at least in English politics.

Posted in Legal Ethics, Self-Help Services | 1 Comment