With the release of the NCSC Call for Action on Limited English Proficiency, I have been thinking about the very complex relationship between the access to justice challenges suffered by those without a lawyer, and those without effective English proficiency.

The first point is obvious.  There is a huge overlap between the Limited English Proficiency (LEP) and Self-Represented Litigant (SRL) populations.  Indeed, my own personal inferential and impressionistic sense of the civil litigation population is that maybe as many as a third of SRLs are LEP and that, more importantly for LEP strategy, maybe  as many as 90% of LEP litigants are self-represented.  Of course, the figures must vary hugely from court to court — the 2005 California Pilot Study, with one Pilot aimed specifically at the LEP population reported 16%, 16%, 47% and 87% of self-help center clients using a language other than English at home.  As a baseline, the overall national statistic is that in 2010, 9% of the population were LEP [Call to Action at iv.)

In any event, the non-LEP population will have a far higher representation percentage of SRLs.  This is because of economic status, lack of connection to referral networks, and, of course, the lack of attorneys who are bilingual and/or available to LEP populations.  Any court or self-help center not seeing the number of SRL-LEP cases predicted by census data might ask itself if the LEP population is simply staying away — and why.

This really means that we need to re-think how we conceptualize the LEP problem — on the civil side it is not an LEP problem, it is an SRL-LEP problem, and our thinking about civil LEP should be structured to focus on what we have to do to provide access to the SRL-LEP population.

Indeed, this makes all the sense in the real world.  If you have a lawyer, then there is someone who can help in getting interpreter services, can object when those services are not provided, and can help ensure that the client understands what is going on, and that the client can be understood by the court. On the other hand, if you are an SRL with no lawyer, unless there is good assistance structured for an LEP litigant, you are going to be completely at a loss.  “No lawyer plus no interpreter equals no access” is a pretty safe descriptive formula.

So, if the right way to think about this problem is as an LEP-SRL problem with some limited exceptions for those who do have access to attorneys, what are the service and access agenda implication?

• The gateways to the system are very important.  LEP Concierge, multi-lingual forms, signage, and multi-lingual websites, are critical to even getting in to the system.  Those with attorneys seldom face these challenges.
• Testing of the physical and electronic gateways — bringing an outsider in and having them describe what is happening so court leaders see it through users’ eyes — must be done with LEP folks, as well as those who speak English proficiently.
• Self-Help services must be fully integrated with LEP capacity.  While controversial with some interpreter groups, interpreters should provide direct informational assistance to the extent of their training and capacity.  Consideration should be given to additional certification and payments to such interpreters.
• Just providing interpreters for standard English language services to those in need is not sufficient for the self-represented.  This is because the informational and support needs of the LEP population are both greater than, and different from, those of the English-speaking population.  The LEP population is likely to face additional challenges in understanding the US legal culture, and what is required to participate fully and appropriately in the case, as well as be able to do so.  It is not only that the legal culture may be different, it is also that LEP folks may have seen less TV on the subject, and be less experienced at navigating US institutions.
• Because self-help is required for so much greater a percentage of the LEP than the non-LEP population, looking at the case flow as a whole, and integrating needed bi-lingual self-help services is even more important.
• Community outreach is obviously even more important for the self-help population.
• Self-help capacity can help ensure that interpreters are provided all the way through the case — including compliance.
• Data is critical.  Every court should be comparing its LEP caseload to census figures, and, if the numbers – taking into account poverty distribution – are not at least as predicted, should be asking itself why.

I very much hope that these thoughts will stimulate a more comprehensive dialog between LEP and SRL advocates.  Please participate in the comments and share this blog post.