Management Information Exchange Journal has just published an article of mine called:
The Relationship of the Right to Counsel and Self-Represented Litigant Movements.
The paper attempts to identify the common assumptions of the two movements, the possible sources of their different perspectives, the risks of those differences, and strategies to focus effectively on common access to justice interests. The core approach is to show that the movements are not incomsistent, but working on parallel paths to a common goal.
Here is the link to the pdf.
Here is the section that attempts to list the areas of agreement, as follows:
1. That access to justice for all is a critical component of a democratic society, and that justice institutions have a responsibility for guaranteeing such access.
2. That there are cases in which it is critical for people to have a lawyer in order to obtain such access to justice.
3. That there are cases in which, regardless of the ultimate desirability of people having a lawyer (a matter on which there might be disagreement), it is far less critical for them to have a lawyer.
4. That, in any event, it is not financially realistic in the near future to provide full service representation for all, even in areas of substantive law listed in the ABA Resolution.
5. That there is need for some criteria or process for deciding who needs and gets whatever service is needed to ensure access, including possibly a lawyer.
6. That among the issues that appear to make a differ- ence in whether a lawyer is most critical are potential disparities of power, the complexity of the case, and the importance of the issue at stake.
7. That research is important in moving forward an access agenda.
8. That law reform (including access to justice reform) requires the involvement of legal aid and access to justice non-profits.
9. That access to justice is advanced by close collaborations between a variety of partners, including bench, bar, and legal aid.
Here is the full text of the final section of the article, dealing with potential joint strategies:
In formulating those [joint] strategies, it must always be remembered that the courts and legal aid are different institutions, and their different needs for neutrality and for the freedom to advocate cannot be ignored. Thus the courts cannot commit to Civil Gideon as constitutional right, except through appropriate procedure, and legal aid cannot compromise its freedom to advocate for Civil Gideon in the courts if it chooses.
Common Set of Principles
While I am far from sure that it would be practical to draft and/or ratify such a document, it is at least worth thinking about a common set of access principles that might resonate with participants in both groups. Such a statement might have elements similar to those listed in Part II, above. Such a statement might help keep both groups focused on innovations and research that would fit within common parameters, rather than pulling against each other.
Continuum of Services
Implicit in the idea of a common approach is the idea of an integrated system of access in which a continuum of services is available, depending on need and circumstances. This is the foundation of getting away from an either/or view to a more subtle evidence- based set of solutions, and requires each side to think flexibly about how its services fit into the overall system.
Triage and Assignment
There needs to be a focus on experiments which attempt to test different ways of allocating scarce resources to those most in need, and most likely to benefit from them. The two groups may have interest in testing different approaches — legal aid groups, for example, might have stronger interest in showing the value of triage by legal aid, while court-based self-represented programs might want to test whether a neutral triage methodology can be established to identify needs that litigants have beyond self-help and develop a streamlined system with legal aid to minimize litigants getting inappropriate referrals. However, both have a strong common interest in developing and demonstrating a system that works and is efficient.
This suggests the potential for a common research agenda. Both groups, for example, need to know what factors should be considered in deciding who needs what service, even if they may have somewhat different perspectives in deciding how such services are provided. Neither group wants to spend money on resources that are not needed, and both want to get needed and sufficient services to as many people in need as possible. Moreover, both have an interest in seeing all services delivered as efficiency and effectively as possible.
After Turner v. Rogers, there is some force to the argument that states should be self-assessing their procedures for the self-represented for general compliance with that cases requirements of sufficiency of procedures to provide the fairness and accuracy appropriate to the matter at stake – including potentially whether there are sufficient procedures to identify if there is need for counsel. (It is interesting that at the December 2011 NLADA Annual Conference, Justice Breyer, the author of Turner, encouraged debate on the possible need for triage.) Such self-audit seems fully consistent with both perspectives.
As courts, legal aid, and the bar all struggle with declining financial resources, there is really only one way to manage budgets while increasing access and that is to make each case cheaper for all the players to handle. That makes it easier to fund counsel, when needed, and easier for the court, legal aid or other bar organizations to provide alternative services when those can be sufficient.
Thus both groups might be able to make common cause in the interests of simplification of rules, forms and procedures, particularly in those areas in which a high percentage of the cases involve low-income people.
Finally, and obviously, we need to find better ways to maintain communication between those working in both areas, while recognizing that respectful creative tension can be highly productive.
I would very much appreciate any comments and reactions to this analysis.