At the Symposium, Earl Johnston presented on the concept of Civil Gideon, and I was one of the two responders.  As part of this presentation (and by e-mail before the meeting) he had presented some questions that he suggested would be helpful in analyzing the options presented at the meeting.  He also, made clear that he did not necessarily support providing lawyers in all cases or situations.

I thought it might be useful to pose some of his questions, and my thoughts on the ways of thinking about them — although I did not in fact get time to go into the questions, rather spending my time on triage and simplification, which I argued were the keys to any continuum of services system and thus to 100% access to justice.

Except in subject areas where the law is straight forward and self-contained can the judges accurately determine the applicable legal principles without the assistance of lawyers presenting competing versions of what those principles are?

Its a good and fair question.  And complex legal principles are surely something that lawyers are trained to figure out and argue.  But the practical reality in that only a small percentage of cases involve disputes about what legal principles apply.  In the vase majority it is only about how to apply the facts to those principles.

Indeed, the question should be “how do we identify the cases in which there are principles that need to be identified, changed or resolved, and how do we get resources to those cases.”  Its called triage, and we certainly don’t do that now.

Without lawyers to recognize errors — procedural and substantive–which a judge makes — and appeals same, how  will we know judges are making legally correct decisions and following lawful procedures?  In other words, how do we ensure we have a system of laws and not men (or women)?

The fact is that our current system is, with respect to this issue,grossly over- and under inclusive.  Our standards of review — which are tailored to a fully attorney-staffed system — protect many errors from review, even in fully attorney loaded cases.

Rather we should be asking what changes might reduce errors, not just by adding attorneys.  This would involve developing other systems of review beyond the search for technical “errors of law,” and more of a focus on preventing errors rather than correcting some of them, or rather one type of error.  This might involve more use of protocols to guide decisions, routine review of decisions regardless of expensive appeal, having several judges, or judges and laypeople, sit on cases, and statistical monitoring of results to identify outlier judges.

Can a judge deliver both the reality and appearance of justice in cases where one side is represented by counsel and the other side isn’t?

Another fair and key question (and one that presents a double challenge to civil Gideon because of the question of what happens when the state provides counsel to one side but not the other.)

What we do know is that the answer depends on the procedural rules, and the way the judge handles the courtroom.  While judges are made more nervous about these cases that the two self-represented cases, as a general matter, it is certainly possible for the judge to ensure that both sides are properly heard.  There are extensive writing and curricula on the issue.  The key is “neutral engagement” with a lot of transparency.

The simpler the process, the easier for it to work.

If the trial judge finds it impossible in a particular case, then Turner should be read to entitle him to order counsel.  And, don’t forget the possibility of McKenzie friends to assist.

Can judges operating as inquisitorial judges effectively find the facts in cases where much of the relevant evidence must be found outside the courtroom and before the hearing as opposed to just questioning the litigants before the judge?

The answer depends on the tools the litigant is given — such as protocols to assist in understanding the rules of relevance and in the gathering and presentation of evidence.  It also depends on the substantive rules — which can add enormously to the complexity of relevant evidence.  It depends on the rules of admissibility.   And on the attitude and skill of the judge.  And, finally on how much help may be given through self-help programs, non-lawyer assistance and the like.

Does it take longer for a judge to ask all the questions needed to fully develop the facts than to hear lawyers do so?  If so, can they afford the extra time and will the legislature give the courts more funding so they can? In a related question will more or fewer cases settle without court proceedings if lawyers are taken out of the equation — and what are the cost implications for the judiciary and the judicial system?

While the data are in conflict on this,once again it really depends on the factors discussed above.  We certainly need research on cost-effectiveness,  and this data must include a full cost calculation including number and cost of returns to court.

As to settlement, numbers will again be impacted by the number and type of services that are provided.  We certainly need more neutrals being trained in providing access to the self-represented.

I hope you will agree that this analysis  shows how critical simplification and triage are to a full solution.  I look forward to getting comments, including from Symposium participants.

Update:

The video and summaries from the Symposium are here.  The first one has Earl’s keynote, and my response starts at the 41.10 minute point.