The week before last, the Conference of (state) Chief Justices, and the Conference of State Court Administrators jointly passed two Resolutions that together predict a tipping pint forward in moving to justice. One sets an aspirational goal of 100% access to justice services, and the other promotes best practices for funding legal aid.
This blog post focuses on the 100% Resolution, and a subsequent post will focus on the one dealing with best practices in funding for Legal Aid Services, and on how the two Resolutions support each other. In short, the 100% resolution assumes a robust legal aid system, and funding is critical to it. Moreover, optimum use of that funded system depends on the broader multi-component continuum envisioned in the 100% resolution
My reasons for declaring the 100% resolution a tipping point are outlined below the Resolution.
CONFERENCE OF CHIEF JUSTICES
CONFERENCE OF STATE COURT ADMINISTRATORS
Reaffirming the Commitment to Meaningful Access to Justice for All
WHEREAS, the Conference of Chief Justices acknowledged in 2001 in Resolution 23 that the promise of equal justice is not realized for individuals and families who have no meaningful access to the justice system and that the Judicial Branch has the primary leadership responsibility to ensure access for those who face impediments they cannot surmount on their own; and
WHEREAS, the Conference of Chief Justices and the Conference of State Court Administrators passed Resolution 2 in 2008 recognizing that ensuring access to justice in adversarial proceedings involving basic human needs, such as shelter, sustenance, safety, health, and child custody is one of the Conferences’ highest priorities and encouraged their members to take steps to ensure that no citizen is denied access to the justice system due to the lack of resources, or any other such barrier; and
WHEREAS, significant advances in creating a continuum of meaningful and appropriate services to secure effective assistance for essential civil legal needs have been made by state courts, national organizations, state Access to Justice Commissions and other similar bodies, and state bar associations during the last decade; and
WHEREAS, these advances include, but are not limited to, expanded self-help services to litigants, new or modified court rules and processes that facilitate access, discrete task representation by counsel, increased pro bono assistance, effective use of technology, increased availability of legal aid services, enhanced language access services, and triage models to match specific needs to the appropriate level of services;
NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and the Conference of State Court Administrators support the aspirational goal of 100 percent access to effective assistance for essential civil legal needs and urge their members to provide leadership in achieving that goal and to work with their Access to Justice Commission or other such entities to develop a strategic plan with realistic and measurable outcomes; and
BE IT FURTHER RESOLVED that the Conferences urge the National Center for State Courts and other national organizations to develop tools and provide assistance to states in achieving the goal of 100 percent access through a continuum of meaningful and appropriate services.
Adopted as proposed by the CCJ/COSCA Access, Fairness and Public Trust Committee at the 2015 Annual Meeting.
At the risk of repetition, I list below 12 ways in which this single Resolution moves the access agenda very significantly forward.
1. By “support[ing] the aspirational goal of 100 percent access to effective assistance for essential civil legal needs,” the Resolution can be said to make that goal the aspirational policy of the entire state court system. Since this really is first and foremost a court issue, this can also be said to make it the aspirational policy of the country, at least at the state level. This obviously has and with very significant implications for all the players, including other state branches of government and federal partners. (Indeed one of “wheras” paragraph states that “the Judicial Branch has the primary leadership responsibility to ensure access for those who face impediments they cannot surmount on their own.”)
2. By using the quantifiable “100 percent,” rather that more general phrases like “for all” or “equal” the Conferences have concretized and made much more specific the goal.
3. By “urge[ing] their members to provide leadership in achieving that [100%] goal and to work with their Access to Justice Commission or other such entities,” the Conferences recognize that courts and judges (indeed most specifically but not, only Chef Justices) are the critical leaders in moving toward the goal.
4. In so doing, they also recognize not only the essential role of Commissions, or equivalents, in moving to 100% access, but also that that role requires more than just a focus on fundraising for traditional community based legal aid and on pro bono (a step that all Commissions have made, at least at the conceptual and planning stage.)
5. By urging that the courts to “work with,” the Commissions or equivalents to develop a strategic plan to meet the 100% access goal, the Conferences create a path for the states to move forward on this policy — while recognizing the enormous flexibility that states will need to do so most effectively.
6. By recognizing the value of “expanded self-help services to litigants, new or modified court rules and processes that facilitate access, discrete task representation by counsel, increased pro bono assistance, effective use of technology, increased availability of legal aid services, enhanced language access services,” the Resolution explicitly endorses those approaches, making their broad adoption much easier.
7. By urging that tools and assistance for “achieving the goal of 100 percent access [should include support for] a continuum of meaningful and appropriate services,” the Conferences endorse the critical concept that the solution to 100% requires this continuum, and can not be be achieved by adopting only ad hoc innovations.
8. By similarly recognizing the importance of “triage models to match specific needs to the appropriate level of services,” the Resolution provides support for adoption of this difficult but critical concept.
9. By urging that the state 100% access strategic plans should include “realistic and measurable outcomes,” the Conferences build on the quantification of the “100%” in “100 percent access to effective assistance for essential civil legal needs” to help ensure that the states monitor and assess their achievements moving forward, while again allowing for the needed flexibility and innovation relevant to each state’s needs. As the social scientists tell us: “if it’s not measured, it’s not valued.”
10. To achieve such “realistic and measurable outcomes” justice, partners will need to buy into those outcomes and reporting needs, promising major impact system-wide.
11. By “urg[ing] the National Center for State Courts and other national organizations to develop tools and provide assistance to states,” the Resolution should catalyze those organizations to develop a wide variety of planning, implementation, research and, measurement and assessment tools and to assist in actual deployment of the many innovations that are to be supported.
12. Implicit in this urging is the assumption that all involved organizations need to create their own plans for “realistic and measurable outcomes” just as the states are being called upon to do. This is underlined by the recognition in one of the “wheras” paragraphs of how much a broad range of organizations have created the innovations that have made adoption of this goal possible: “significant advances in creating a continuum of meaningful and appropriate services . . . have been made by state courts, national organizations, state Access to Justice Commissions and other similar bodies, and state bar associations during the last decade.”
This really is a courageous and transformative step, and I look forward to seeing state and local organizations rise to the challenge. Of course, many of the ideas in the Resolution have been discussed in other places, and by other groups, but they have never been articulated together in one place, in such a coherent way, and by such a hugely important and influential group. That is a tipping point, that’s leadership, and that what brings real change.
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The issue of access to legal services is parallel to access to medical care, which is on my mind. To implement the admirable goal of 100% access to legal services, how do you measure it? The idea of “realistic and measurable outcomes” is fine but vague. There must be certain things every state needs to do. It would be impossible to do this from the beginning with all of the relevant issues included. A single specific metric is needed to start with. Perhaps it would be whether any legal help ever occurred, or the time from official notification – of a fine or arrest – to the time a specific personal involvement with legal help was initiated, or some similar measure. The amount of time that would be reasonable would be different for different categories of legal problem. These details would need to be agreed upon by all. Equally important, a specific universal process for data collection and analysis must be devised. This could provide comparability. Then variability in the metric from place to place, such as state to state, as a surrogate for the complex of legal needs could stimulate a continuing improvement process. The metric could grow in complexity over time.