Here are some of the highlights from the presentations of Chief Judge Lippman of New York, and Associate Justice Laurie Zelon of the California Court of Appeal to the gathering at the Equal Justice Conference of Access to Justice Commissions and staff on May 21.
Together the two presentations sum up an integrated approach to access — a savvy collaborative process for increasing access funding, and a comprehensive look at the whole system, itself impacting on who needs access services and how they are provided and made effective.
The highlights are as remembered by me. However, the two Judges have signed off on the descriptions/summaries of their respective portions.
I. Chief Judge Jonathan Lippman of the New York Court of Appeals, as interviewed by Helaine Barnett, Chair of the Task Force to Expand Access to Civil Legal Services in New York, about the inclusion in the NY budget of $27.5 million for legal aid.
The goal from the beginning was not just to get one shot money, rather it was to institutionalize a long term funding stream.
It was important that the process was started by hearings conducted by the Chief Judge around the state, with the help of a Task Force on Access, and that both Houses of the Legislature passed a resolution endorsing the hearings, and specifically asking for a Report that would tell them what was needed to provide access to justice. (That Report is here.)
It was equally important that the members of the Task Force were not the “usual suspects,” but included legislative participation, as well as from the health care sector, as well as large law firms. (Membership listed at beginning of the Report.)
The panel was a “hot bench” and its work was supplemented by independent research conducted by the Task Force.
The process was not funded by the courts, but largely by in-kind contributions from major law firms, which had partners on the Task Force. Indeed, one firm took responsibility for each of the hearings. In addition, there was independent needs analysis work done, funded by members of the Task Force.
The Chief Judge’s hearing panel had testimony from a broad range of interests, many of which might not usually be considered to be interested in access to justice. Testimony was heard, for example, from the Hospital Association and from the landlords’ bar. The approach of this testimony was not just that representation was an ethical and moral responsibility, but that it was necessary for organizations such as these to protect their bottom lines. That, for example, it does not help the landlord to have the tenant unrepresented, and that the hospitals are hurt if there is no advocate there to help tap federal financial resources for the patients’ bills. Educators testified. Bankers, including Chase and CitiBank, testified. It was a real eye-opener.
A deliberate decision was made to limit providers to written testimony, with minor exceptions. All were welcome and invited to submit written testimony, which was taken into full account by the Task Force
Judges were highly effective in talking about the problems inherent in trying to ensure access for the 2.3 million unrepresented litigants in the state.
The study showed that about $5 is brought into the state from each $1 invested in legal assistance.
The process ultimately involved a political judgment about how much to ask for. The decision was made to ask for $25 million to start, building up to a total of $100 million over four years. It was realized that there was not enough money in the world to meet all the needs. This was a number that would be realistic for the legislature to consider.
Finally, it was felt that putting the money in the judiciary budget would provide it some protection in the long term.
II. Associate Justice Laurie Zelon, of the California Court of Appeal (and former co-chair of the state’s Access to Justice Commission) on Responses to Overall Changes in the Court System.
The courts are not as they were before. The old system in which it is assumed that a judge makes a decision based on the facts and law as presented by counsel is gone in many cases. Now we face new challenges, including the vastly increased number of the self-represented and the opportunity to use technology either to provide access or to do things that result in additional barriers. In addition, the societal economic dislocation increases litigation, and means that people have less money for lawyers and that there is less support for advocacy, as well as less money for court budgets.
What can be done? We have to find new ways to make the courts work. We are just not in the cloister any more.
Courts need to look beyond traditional partnerships. Being partners with the bar is just not enough any more. Justice is a broad societal issue. If courts can not meet needs then there are deep impacts on the economy and on confidence in our democratic institutions.
I am going to focus on three major areas: re-imagining the court system, education, and language access.
Re-Imagining the System
First re-imagining the system. I am going to tell you a little about our Elkins process. In the Elkins decision a few years ago, our Supreme Court reaffirmed that family law must be consistent with due process — and then, recognizing the problems that we faced, called for our Judicial Council to establish a Task Force to examine all of family law system.
There were 39 people on the task force, which I chaired (It was impossible to say no to our Chief, Ron George). We asked the very broad question: what, if we did not have the current family law system, would we do. We kept fully open minds, held hearings, met with litigants, lawyers, judges, and court administrators. Our meetings were open and we obtained extensive public comment.
Let me tell you, there is nothing so eye-opening as hearing directly from self-represented litigants in family law.
We made 200 recommendations for change, put them out for comment, and ended up creating a 1,000 page long chart of comments. We revised the proposals and recommended them unanimously to the Judicial Council, which then accepted them.
We are now in the implementation phase. Hardest is taking a vision of a streamlined system, in which resources are deployed based on caseload and case type, and making it happen.
There are five areas of recommendation in the Report — with the fifth being the foundation for future possible changes. A couple of points:
We decided that if you can make the system work for the self-represented, then it will work better for others too.
In the past, family court assignments were viewed as undesirable, or limited to newer judges. We want to make such service a badge of honor.
We want to take services into the community. We want to work with child welfare and other social services, so that the family is taken care of.
We hope this is an iterative process, and that we will make things better and that will start a process for making them even better.
We hope that this will make things better for the 80% of cases in which at least one party is self-represented and cheaper for those who hope to be able to afford counsel.
We believe in live testimony — we hear that some lawyers are now going to have to brush up on the laws of evidence!
Education and Services.
California now has a self-help center in every county court, funded through the courts budget. They operate under strict guidelines, providing information and education. We work with community services and encourage limited scope services.
We provide extensive education for judges. In the old days judges were taught to say as little as possible. That may be true if the goal is not to be reversed under any circumstances, but things are simply different with the self-represented. Litigants want to know why a judge decided what he or she decided. They may need a judge to ask questions to get to the facts. We tie this in with the changes in the Canons of ethics so that judges feel comfortable with this role.
There are now 224 languages spoken in the courts of California. Almost forty three percent use a language other than English at home. Four percent have no English.
So we have no choice but to deal with these language access issues. We have to find culturally aware solutions. Nationally, this will all surely involves standards in some form, and engagement with DOJ. We have to look to communities for partners with which to share resources and to develop more resources (not take away from them — not fighting for the crumbs).
We have had an access to justice commission in California for 15 years now. It has been immensely satisfying, and we feel that we have made things better for the people who use the system.