Anne Holton, VP Nominee Tim Kaine’s Wife, was a Legal Aid Lawyer for Thirteen years, and a Judge for Seven

According to Wikipedia:

Following graduation from law school, Holton served as a law clerk for Judge Robert R. Merhige, Jr. of the Richmond-based United States District Court for the Eastern District of Virginia. From 1985 to 1998, she worked as an attorney for the Central Virginia Legal Aid Society, where she helped create an award-winning volunteer lawyers’ program in Richmond. From 1998 to 2005, she served as a Judge on the Juvenile and Domestic Relations District Court for the City of Richmond. Holton was chief judge of the court from 2000 to 2003. She resigned from the bench following her husband’s election as Governor in December 2005.

That sure sounds like an ideal resume for a person near the top of the Executive Branch.  Sounds like she brings experience with the three core pillars of the ATJ triad.

  • Experience as a line attorney,
  • Experience as a judge, including with administrative duties
  • Experience working in pro bono administration.

While others, like Hilary Clinton, have experience in one or more of these roles, Holton must be unique in this combination.

Holton is ideally positioned to be an advocate for not merely for funding, but for the range of innovations that can only happen with insight into the needs of all these sectors — and beyond.  Her current experience as Virginia Education Secretary, and her connections to the Anne E. Casey Foundation, suggest an openness to comprehensive and innovative approaches, that are designed strategically, often with a long term pilot state focus.

Lets hope that this will make it easier for us to start to think earlier rather than later about the transition to an even more ATJ friendly administration, and thinking about how the outgoing administration might be able to help lay the groundwork for such a major focus.  Hilary Clinton, after all, was the Chair of the LSC Board as far back as 1978-1980.

As the quote below from a 2011 interview prior to her giving the Commencement Address at the Univ of Richmond School of Law shows, she has stayed deeply interested in access:

Why did you decide to focus your work on helping families?

The focus on families and children came about through my legal aid work and as a judge in juvenile court and it’s such challenging and important work. … One of the things I learned in legal aid is the importance of treating people with respect and dignity — that means a lot to people, particularly those who haven’t been treated that way, even if you don’t get the results you hoped for. One of the most gratifying aspects about legal work in any capacity is that you are serving a client, you are a servant leader, and it is rewarding.

What has been your experience working with students from the University of Richmond School of Law?

They are a terrific group of students who are all very committed, enthusiastic, interested and eager to be out doing things in the community and getting their hands dirty in legal work. Back during my legal aid days, we had a non-credit clinical program where UR students volunteered under my supervision, representing clients in administrative hearings before the Virginia Employment Commission. Later on the law school had clinical law students working in for-credit positions at my court. I’ve also been an occasional guest speaker at the law school.

What’s your advice for students who want to work in public service careers?

There are lots of ways to do public service and that’s one fun thing about our careers, so it’s important to think broadly about what constitutes public service. No one will get rich being a public defender or a prosecutor or working in the commonwealth attorney’s office, but they are good positions and they pay decently and they offer a terrific learning environment. Also, in private sector law some people do pro bono work from within firms. There are so many ways to do public service law — we don’t all have to be legal aid attorneys.

More on Virginia Education Secretary Holton here.

 

Posted in Access to Justice Boards, Access to Justice Generally, Legal Aid, Vocation, White House | Leave a comment

Claudia Johnson Guest Post: Appellate Courts show willingness to reverse decisions where due process and decisions are not explained in SRL cases—Are DV cases the canary and a natural for innovation?

Multiple decisions have come to my attention where appellate courts are reversing trial courts on cases where one of the parties did not have a lawyer. All cases come from Domestic  Violence dockets. Is this a new trend for DV pro se dockets? T ime will tell.

The first case hails from NJ—C.H. v. J.S come from New Jersey, a case when a self-represented litigant (defendant) was not allowed to present his case at trial while defending a domestic violence order. The decision is not precedential and not published; nonetheless it is an interesting decision.

The second case hails from California, Michaels v. Turk, 15 @.O.S. 4195, and the issue on appeal was whether the pro per litigant had consented to have the case heard by a Commissioner. The case also comes from a domestic violence court.

Another case in California that went to the highest court in California, Nakamura v. Parker, a California case from 2007 was the first pro se case I saw where a trial court decision was vacated on appeal in a DV case where the victim was a pro se litigant. Originally this case came through Bay Legal through our hotline and was litigated by Susun Kim and Minouche Kandel. This case dealt with a local judge denying a protection order despite the facts entered in the record. The trial court did not explain its summary ruling and that was the basis for the appeal. On appeal, the order was reversed and the case was remanded to the trial court. In Nakamura, multiple DV advocacy led by the Partnership to End Domestic Violence had filed an application for leave to file an Amici Brief. Their petition read:

“These trial courts are denying domestic violence victims protective orders and hearings in cases where they have presented prima facie cases of abuse. Additionally, courts should not deny a protective order based solely on the fact that there has been a lull in the physical violence.”

The willingness of appeal courts to reverse trial court decisions should remind judges to be attentive to what the party without a lawyer is asking for and to not go on with “business as usual” mode where moving the cases becomes an objective in and of itself and the implicit bias by the judge or process is not checked.

If judicial training on how to manage self-represented litigant cases is not enough reversal by trial courts might get the attention of judges working in large SRL dockets. Becoming careful and observant of what the statutory and procedural requirements are will improve the outcomes for SRLs and reduce the risk for reversal, and improve outcomes for the litigants. Integrated assistance and information in these dockets that help those without lawyers submit strong pleadings and helping them understand their rights prior to hearing will also go a long way in promoting strong orders based on the merits.

Providing SRL friendly forms and assistance, is congruent with the Turner Supreme Court decision, where the interpretation is that Courts should provide those without lawyers meaningful ways to present their information through helpful forms and to the courts. The expansion of services in SRL and the provision of litigant friendly high quality forms that pull out all the relevant facts and defenses might reduce the risk of reversals in Turner-like cases.

Forms alone however are not enough. The forms need to have buy in from all the groups that work with the same population, and need to be easy to use and easy to find, and free. If legal advice and representation are not available in the locality due to limited funding , pro bono assistance , clinic based help, or limited/unbundled assistance are also key in making the protection afforded by the law meaningful and real to vulnerable groups. A great model of pro bono assistance is the NY Courts DV e-filing project, recently the recipient of the Law and Technology Award.
http://www.connectingjusticecommunities.com/ny-courts-honored-with-ltn-innovation-award-for-the-most-innovative-use-of-technology/2015/08/
http://www.nycourts.gov/ip/nya2j/news.shtml#news
http://at.law.com/dJpoT2

Another model is the established DASH Clinic in Los Angeles.

The Domestic Abuse Self Help Project is run by Neighborhood Legal Services of Los Angeles County, and has since 2006 assisted more than 1 Million self-represented persons. At the DASH clinics (it has 4 locations) they provide one on one guidance completing the forms in the morning and then they assist with filing in the afternoons. They have a devoted volunteer attorney in each location for assistance and review of the forms before being submitted. The online forms are created by the AOC and hosted through LawHelp Interactive. In addition to the 4 locations, they have a clinic in a shelter in Santa Clarita Valley, and also at the Develonshire Police Station. DASH does an outstanding job in working with those who have limited English Proficiency, and is a model worth considering for those thinking about improving outcomes for those without lawyers in DV, and other high volume areas of need. http://www.connectingjusticecommunities.com/commemorating-domestic-violence-awareness-month-with-tools-by-lawhelp-interactive/2015/10/

If others know of appeal cases with similar rulings as they relate to SRLs, please share them. If anyone wants to brainstorm on how to use modern tools to increase services for DV victims/sexual assault victims, or knows of other holistic meaningful assistance projects that include forms, but don’t stop there please share and feel free to reach out to me at cjohnson@probono.net.

 

 

Posted in Access to Justice Generally, Appellate Practice, Document Assembly, Domestic Violence, Family Law, Guest Bloggers, Judicial Ethics, Self-Help Services | 1 Comment

Would Having Famous White Actors Re-Enact Being the Shooting Victims Help Change White Attitudes?

It is great that celebrities are being used to draw attention to the wide variety of situations in which Black people can be shot by cops in the US.

But surely it would be more of an opinion changer if videos were made, exactly re-enacting recent shootings, in which the victims were played by white actors with whom very broad swathes of the American public strongly identify?

That might cause some of those who always put themselves in the position of the whites in such interactions to see the interaction differently — perhaps, to them, shockingly so.

Who could lead such an effort?

 

 

 

 

Posted in Chasm with Communities, Constitution, Criminal Law, Policing | 2 Comments

The Legal System Continues, per Ginsburg, J., To Protect the Constitutional System Against Trump

Yesterday morning the New York Times published a precedent-shattering interview with Justice Ruth Bader Ginsburg.

Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.

These days, she is making no secret of what she thinks of a certain presidential candidate.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

At the risk of belaboring the obvious, these are remarks beyond imagining in anything other than frightening times.  They simultaneously communicate who she wants to lose the election, her feelings about the depth of the impact on the country were Trump were to win, the fact that it would have a huge significance for the court, the fact that this impact would last for a very long time, and the sense that at least for her family, watching it up close would be unbearable.

That is heady stuff.

Yet, almost a day later, no rebuke from a fellow justice, no statement of limitation from the Court press office, no statements of outrage from Republican senators, no demands for impeachment from the right.

Some of these will surely come, and perhaps part of the apparent quiet can be explained by the heavy focus on the shootings last week, and by Trump’s managers trying to keep him under wraps, which may also have inspired them to try to keep the surrogates quiet too.  Moreover, that Scalia and Alito have been somewhat loose in their comments too — but not nearly as much as Ginsburg was here — may have inhibited reaction somewhat.

But it is hard not to imagine how the media (and many of us) would have reacted  if, for example, Justice Alito had implicitly threatened to leave the country if Clinton became president, or if Justice Thomas had said he did not want to think about the decades long impact on the Court of a Clinton presidency.

I think the explanation for the silence may be that it reflects the quiet conspiracy of the elites that a Trump presidency just can not be allowed to happen.  Who knows, maybe Ginsburg even cleared her remarks with Chief Justice Roberts, or more likely gave him the opportunity to dissuade her.  Can you imagine the Chambers or Conference discussions among the Justices about the election?

In any event, this has to be a hint of what more might be to come, from everyone from the Chamber of Commerce to retired senior military officers, to our former presidents,  if in late October a Trump victory seems a real possibility.

Posted in Access to Justice Generally, Constitution, Judicial Ethics, Supreme Court, White House | 1 Comment

Advocate System Versus System That Does Not Need Advocates

A recent conversation with my friend Peter Fielding, a doctor who lives at our retirement community about patient/client advocates led to some interesting conclusions for both the medical and legal worlds.

When Peter and I discussed the fact that some medical patient and family caregivers councils have set as a goal having a patient advocate for each patient, he said, in effect: “No, you want the system to be so good that nobody needs an advocate.”  His point was that if you give everyone an advocate you take away the incentive to improve the system.  You just fix each problem as it occurs.

We in the legal system, are in a very different place.  We have build a system that assumes that everyone has an advocate, but then made it so that only a small minority can afford one.  That’s the worst of all worlds.

So, we are trying to do four things:  change the system so that as few people as possible need advocates, find the resources to pay for those who need them even in the transformed system, build ways that less highly trained, and therefore less expensive people, can perform some of the advocacy, and, critically, design good systems that decide who really does need an advocate, and what kind of advocate, even in a reformed system.

Back to the medical system, therefore, the questions become:  How can one design a system that behaves so that as few people as possible need an advocate, how can one identify the tasks and situations in which patients still need advocates, how can we provide advocates, with what skills in those situations, and how can those advocates be trained and connected to the system so that they provide the feedback and information that allows the system to even further reduce the need for patient advocates.

In a way, the analog to the last point would be, in the legal system, having part of the role of lawyers be to support the reduction of the need for lawyers.  It’s sort of like the role of dentists in promoting fluoride.

In a way, it is what the legal self-help services movement, and the Self-Represented Litigation Network do.

_____________________________________________

Peter adds:

This is a thought starter piece. If we were to pursue the topic we would need to define Advocate and why / for what purposes they may be needed: Technical issues; emotional support ; checking function about treatment details and timing; hotel functions in hospitals; violations of individual autonomy; poor doctor /patient relationship issues and so on. This list of the  “ Surveillance Domains” could be quite long.

Clearly we would need a “Systems approach” to mitigate the need ( or some of the need) for Advocacy: probably the most important being the setting of standards which would form the basis of education:  self-correcting / self-flagging  methods of data recording ; blame free cultural development ;  putting patient needs first ; policy and procedures for Quality Improvement ,  error correction ,and in more critical issues methods and experience in conducting Root Cause Analysis.

Assuming that there will continue to be a need for Patient Advocacy should such a person come to the event/situation on the arm of the patient or should it be the institution which provides independent patient navigators and advocates in support of the usual declared aspiration of “ providing the highest standards of care “.

In practice most hospitals , PCP groups, and other health care organizations have a hard time just keeping up with clinical and bureaucratic demands which are currently placed on their shoulders.

So how can we get enough “ blue sky” to think about ,implement, and then manage such a big task ? A challenge indeed.

Peter Fielding

 

 

Posted in Access to Justice Generally, Attorney-Client, Medical System Comparision, Systematic Change | 6 Comments

With Nate Silver’s Election Prediction Launch a Couple of Days Ago, Its a Good Time to Think About Statistics, Predictions, Triage, and Education for Public Policy

Nate’s 2016 polls-only prediction is that Clinton has an 77.6% chance of winning.

For those of us who talk about how triage is critical, his methodology page is well worth some attention. It is highly sophisticated, and reminds us just how complex predictions are, particularly when you want to make not only general policy choices, but also individual choices based on them.

And that, of course, is exactly what the medical system does, and has to do, all the time.  Moreover, it is just what the legal system does all the time, usually without the benefit of statistics.  This is not only true in probation and sentencing decisions, but also in the often unconscious triage decisions made day after day in self-help centers, legal aid programs, and clerk’s offices.

So, I ask, can we start to develop a model for when we can or can not rely on a prediction.  In the triage context, the way to ask the question is “when are we certain enough that a more expensive assistance model is worth it?”  Note that this at the same time a simpler and more complex question than whether it would make a difference, or even how much.

Of course, in all social science the “confidence” level is calculated all the time, and thresholds are used to justify group decisions.  But we are constitutionally (and I mean the phrase only metaphorically here,  I think) deeply inhibited from saying, “well, since 95% of the time, that service a will be sufficient, we are just going to use it for everybody in that group.”  Although remember how low the standard for effective assistance of counsel is in both the criminal and civil contexts.

The problem with that reluctance, at least when there are major cost differences and significant resource restraints, is that the result is that while a few people get an even higher chance of success, the vast majority get less of a chance.  The third world medical analogy is exact.  Countries could spend all their limited resources on a few people, and do nothing for the many, or they could spend it all evenly, or they could muddle though with an informal and non-transparent allocation system, which is what I expect they do.  (I feel acutely the benefit I get from this advantage.  My hemoglobin target is now 9  (and the subject of potential upward negotiation).  I understand that in India you only get a transfusion at 6.  At 6, I simply would not be blogging at all.

So, I would say the following.  We need our decision-making systems to be transparnt.  We need any algorithms to be legitimate and to reflect the best knowledge.  We need to be honest about any uncertainty.  We need to provide a method for review  of decisions to increase both accuracy and legitimacy.  We need ongoing review of protocols and algorithms.  We must keep a human element or option, even as we apply rules electronically.

Perhaps most importantly of all, we must educate the public and decision-makers about the relationship of the resource limitations to the choices that are being made, and the broader interests at stake.  We can learn from the medical system public policy research which has shown that members of the public think very differently about things like the use of antibiotics, when they are shown the long term public benefits of more restrictive polities.  I.e. they are willing to be given less themselves, if it keeps the world as a whole safer (“Evidence of physical harm to individuals or the community led to increased acceptance of limits.”.  Interestingly, the public accepts the role of the professionals as general arbiters. So, hopefully, people might be willing to get less help if they knew that resulted in more justice overall.  This, of course, is fully consistent with the “public trust and confidence” research that people care more about the overall fairness of the process than that they themselves win..

 

 

Posted in Budget Issues, Funding, Medical System Comparision, Metrics, Outcome Measures, Public Education, Research and Evalation, Series: Outcome Measures, Systematic Change, Technology, Transparency, Triage | 1 Comment

David Brooks Brilliant Column on Outsider-Insiders, and its Relevance to Our 100% Access Movement

David Brooks  had a brilliant column in the New York Times on June 25, 2016.  However, it was marred by a serious error that, while irrelevant to the force of the core idea, means that it is much less likely to be taken with the seriousness that it deserves.  Indeed, the error leads Brooks to miss a whole area of implication.

The column itself is headlined At the Edge of Inside.  The core idea is that:

[Beyond insider sand outsider] there’s also a third position in any organization: those who are at the edge of the inside. These people are within the organization, but they’re not subsumed by the group think. They work at the boundaries, bridges and entranceways.  .   .

A person at the edge of inside can see what’s good about the group and what’s good about rival groups. [Franciscan priest Richard]Rohr writes, “A doorkeeper must love both the inside and the outside of his or her group, and know how to move between these two loves.”

A person at the edge of inside can be the strongest reformer. This person has the loyalty of a faithful insider, but the judgment of the critical outsider. Martin Luther King Jr. had an authentic inner experience of what it meant to be American. This love allowed him to critique America from the values he learned from America. He could be utterly relentless in bringing America back closer to herself precisely because his devotion to American ideals was so fervent. .  .  .

 Rohr writes, “You have learned the rules well enough to know how to ‘break the rules properly,’ which is not really to break them at all, but to find their true purpose: ‘not to abolish the law but to complete it.’”

.  .  .  . [A] person on the edge of inside neither idolizes the Us nor demonizes the Them. Such a person sees different groups as partners in a reality that is paradoxical, complementary and unfolding.  .  .  .

When people are afraid or defensive, they have no tolerance for the person at the edge of inside. They want purity, rigid loyalty and lock step unity. But now more than ever we need people who have the courage to live on the edge of inside, who love their parties and organizations so much that they can critique them as a brother, operate on them from the inside as a friend and dauntlessly insist that they live up to their truest selves.

I would like to think that is the perfect description of the 100% access to justice movement, and particularly the Self Represented Litigation Network.  We, all of us, are part of an organization, but we are also outsiders who take a broader view, and are constantly trying to get all our organizations to do much better.  We agree that LSC and community-based legal aid do a lot of good, but we do not think that they alone offer the full solution, and indeed could do far more.  We love the changes in the courts, but think they have a long way to go it we are to get to 100% access.  We appreciate the organized bar, but demand far ore in real terms than has been done so far.

Hopefully, as explained in the Brooks column, we love the components, but we see they are not perfect.  (At an interview with NLADA, over ten years ago, I was asked why I wanted to be part of the leadership of an organization of which I was so often critical.  My answer — “you may be a dysfunctional family, but you are MY family.”

I particularly love the total on-pointedness of Brooks’ legal reference, quoting Rohr : “You have learned the rules well enough to know how to ‘break the rules properly,’ which is not really to break them at all, but to find their true purpose: ‘not to abolish the law but to complete it.’”

That is exactly what we have done time and again, with rethinking the role of court staff so they can provide legal information without being non-neutral, with re-conceptualizing judicial neutrality so that judges can be both engaged and neutral, with pushing the argument that expanding what non-lawyers can do is not inconsisten with protecting professionalism, and with clarifying that unbundling is not inconsistent with an appropriate attorney-client relationship.

We have both have perspective and credibility, and hopefully we will continue to earn it.

However, back to the specific problem with the Brooks column.  I just can not personally agree with the implications of these assertions:

These insiders are in the rooms when the decisions are made. Hillary Clinton, for example, is now at the core of the Democratic Party.

Then there are outsiders. They throw missiles from beyond the walls. They are untouched by internal loyalties and try to take over from without. Donald Trump is a Republican outsider.

In fact, in their own ways, both are “insider-outsiders.”  In Trumps case he is, at least to hear him tell it, hugely rich and at the center of events. In Clinton’s case, she has tried to be a change agent all her life, even if you may disagree with some of her efforts.

What this leads me to is an important distinction.  The real question is what people do with their “insider-ousidee” status.  Do they use their ability to move between institutions for selfish ends, or do they have a vision for how to make the world better, and try to use their unusual status to move it forward.

As with so much else in the world, it’s not where you stand, or what you have, but how you use them.  (And, I hope that you do not have to agree with my analysis of the candidates to see the value of both levels of the broader analysis.

I think I will be using the “insider/outsider” concept for the rest of my life.  Thank to David Brooks.  Now, please, Mr Books,  just take off the last of your now very flimsy partisan blinders.

Posted in 100% Access Strategy and Campaign, ABA, Bar Associations, Judicial Ethics, Legal Aid, Legal Ethics, LSC, Non-Lawyer Practice, SRLN, Unbundling | 1 Comment