With the setting by the Conference of Chief Justices (CCJ), and the Conference of State Court Administrators (COSCA) by Resolution of 100% access to justice as an “aspirational goal,” the question of just what that term means becomes more and more important.
With the Resolution also calling for each state to develop access to civil justice strategic plans with “realistic and measurable outcomes,” agreement on what 100% would mean, as well as what “access” would require, are a key part of the process. It should also be noted that the endorsement of a “continuum of meaningful and appropriate services,” makes both achieving the goal easier, and defining success more difficult and more important. If you believe that everyone should have a lawyer for everything, and that is all that you need (special link for Jane Austen lovers), then you have your measure right there — what percentage actually get a lawyer.
Before offering a definition, let me urge, in the spirit of “real[ism]” in the linked to Resolution that we not engage in “goal creep,” and try not to load up the definition with everything. That might well doom the whole effort. So here is one starting tentative suggestion:
A state is providing 100% access to justice in its courts and dispute resolution institutions when available justice services are such that any individual who either might gain by seeking the assistance of an institution to protect their significant interests, or who might gain from assistance in preventing another to use the institution to impinge on their interests, is sufficiently informed about such services to be able decide whether they wish to seek such services, to be able to take the steps required to obtain them if they choose, and can in fact obtain such services if sought. Such services must be available without excessive burden, regardless of the individual’s financial resources or other barriers such as language or capacity. Such available and accessible services must be sufficient to ensure that the facts and the law are sufficiently placed before the decision-maker so that a neutral decision-maker can make the decision on the facts and the law, unless an individual decides, upon appropriate information, that they do not want to pursue their case.
Note that this draft does not require that everyone actually seek and get those services, only that they are “sufficiently informed” about them, and that they can get them if they decide to seek them.
Note also that while a decision on the facts and the law is critical in many cases, this definition allows a party to opt out of the process where appropriate. (Often, for example, default is the optimum legal strategy.)
This version does include administrative agencies, although in a general sense only. It some states it might not be appropriate for a Commission, depending on the Commission’s mandate.
This version does not include the federal courts.
Obviously it does not require that services be free, only that they not impose an excessive burden, and that they are not barred by resources or other barriers.
This definition does not include transactional services, such as will writing, contracts, leases, complaints, etc.
Nor does it directly deal with the merits of cases or the “justice” of underlying substantive law. While it requires proper presentation of facts and law, it does not explicitly require that the decision maker be neutral, since that is taken care of in Codes of Judicial Conduct.
Maybe the way to deal with omissions is to think about what organizations should be asked to consider adopting a similar goal for their areas of responsibility. Judicial leadership in promoting such initiatives would certainly be highly appropriate. Interestingly, the hardest area then becomes the transactional one.
Another approach would be to draft a comprehensive definition, but then make clear the limited affirmative responsibility of each player.
I am totally open to proposed changes in this tentative definition, and would welcome such proposals and arguments in support of such changes.
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I’ll offer some thoughts, but in doing so, I don’t want to contribute to a discussion that leads us to never-ending debate on a definition/goal. In this context, an imperfect definition/goal is better than no definition/goal. So if my thoughts mean that we get bogged down in an endless discussion on definitions, I invite everyone to ignore them.
My major thought: you phrase the definition in terms of providing individuals with sufficient information so as to make informed decisions. In doing so, you put the onus on any A2J action upon the individual. That may maximize each individual’s autonomy, which most people would think is to the good. And as you point out, it allows people to default if they think it is the optimal legal strategy.
But a large, and growing, mountain of research going under various names (such as “behavioralism”) is suggesting that the majority of folks will not take action in areas in which they perceive action-taking to be difficult (law, health habits) even when action-taking is OVERWHELMINGLY in their own best interest. If that’s right, then a focus on maximizing individual autonomy and decision-making may simple recreate the world we live in now.
One answer here is to focus on the default rules. (Here, “default” means what happens if nothing happens.) For example, what happens in a credit card debt collection case if the defendant does not answer? The current system automatically enters judgment for the plaintiff. That is true even though courts have found that some (perhaps many, we don’t know) plaintiffs do not have the evidence to prove their cases. And it is true even though courts have found that some (perhaps many, we don’t know) plaintiffs have no intention of continuing to litigate if they meet determined opposition. Suppose we were to provide a lot of information to debt collection defendants about the costs and benefits of contesting debt collection cases. Would the world change much? Behavioralist theory, and one of my own (still ongoing) randomized experiments, suggest that providing information to debt collection defendants helps some, enough to be worthwhile. But information alone doesn’t come close to solving the problem or, in your language, providing 100% access to justice. Behavioral barriers as strong as high brick walls prevent the majority of people from taking constructive action.
If all of this is right, then the problem may be the default rule. (Again, here, “default” means what happens if nothing happens.) To stay with the same example: In the debt collection context, the “default” rule is . . . default (by the defendant). What if the default rule were different? What if the rule were that the plaintiff had to make a serious evidentiary showing of entitlement to relief before a judgment could be entered? A rule like that would not fit within your definition because it does not focus on maximizing individual/defendant empowerment and choice. But it may be (again, we need more research here) to allow effective access.
Some will argue that in talking about “default” rules, I’ve left a discussion of ACCESS to justice and started talking about justice. Those people are wrong. The only way their argument works is if there is some “neutral” or predetermined (perhaps from a deity) way in which default rules should be set. There isn’t. We set default rules, and they are the fundamental skeleton upon which the justice system is based. We can set them differently if we need to do so in order to make justice accessible.
Glenn Rawdon did an amazing job at explaining what effective legal assistance means at the April 2015 White House Forum. http://www.lsc.gov/media/news-items/2014/glenn-rawdons-speech-everyone-anytime-anywhere-how-technology-transforms-civil-legal-aid. He laid out a 3 tiered level of assistance vision consisting of a) information b) advice and c) representation using well proved and understood technology and new technology to deliver these 3 different types of services. So in addition to well developed and mature technology (statewide websites, web chat, free plain language online forms), new technology that allows for the delivery of advice and representation, as well new ways to deliver as information and assistance, are brought online. This powerful approach is inherently interdisciplinary and collaborative. As he said “Everyone. Anytime. Anywhere”.
What we are missing as you state in this blog is in fact a definition of “Access to Justice” (with a capital T) that will serve us well for the next 10-15 years, maybe longer since this could be a movement. Your definition, as excellent as it is, however, seems to focus on legal help and services, and not on what Access to Justice means in those decision making forums/institutions. The service and help aspect are covered by Glenn’s speech really well—but we are missing what the institutions will do to improve access to justice as they issue decisions. At the end both elements (help/assistance/legal services) and how decisions are made by those institutions (procedural fairness) will go hand in hand to create 100% Access to Justice.
Moreover, since injustice and harm to vital interests occur in many settings, the definition needs to include Justice granting forums beyond courts. “Only 14% of civil justice problems are taken to a court or hearing body” http://www.americanbarfoundation.org/uploads/cms/documents/sandefur_-_civil_legal_needs_and_public_legal_understanding_handout.pdf
Though the work might at first focus on courts-eventually this will need to move out to other types of problems and forums outside of public benefit settings, if we are talking truly achieving Justice in our democratic society.
Here is some new suggested language—that could be commentary– based mostly on procedural fairness and due process concepts as embodied in the Goldberg v. Kelly, 397 U.S. 254 (1970) because at the end what we are really talking about is how do we insert procedural fairness when decisions are being made in non-public benefit cases. Justice Durrant from Utah said as much in his speech to the legislature in Jan 2014. “The elements of procedural fairness are voice, neutrality, and respect.” “Where there is procedural fairness, people believe they have the opportunity to speak and are listened (their voice is heard) and they feel they are treated with respect, and they understand what is happening and why. http://www.utcourts.gov/resources/reports/statejudiciary/2014-StateOfTheJudiciary.pdf
The language should include those who have not option but to respond in court, because they have already been sued or a proceeding has started for them. This group will need to understand the harm of not taking action.
The goal of 100% Access to Justice is that those who seek decisions from decision making forums, sufficiently informed and educated before they decide to start a case, and for those who have to respond to a case or action to also know the implications of not taking action in that forum or case. It requires that in those forums procedural fairness and due process practices be implemented and followed, to ensure that those asking for decisions voluntarily or because they have to respond have an opportunity to present their case are heard and listened to, understand what is happening and why, and walk out with a clear decision they can understand and follow, regardless of representation status or other personal characteristics.
Excellent draft Richard. We really need to pay attention to the definitions as everyone seems to have a different interpretation of key words and phrases such as “access to justice”! One question about your suggested paragraph: while I appreciate this is focused squarely on the courts, I believe many US courts offer mediation services as well as adjudicative services (decisions by judges). With that in mind, is the last sentence too narrow, since mediation does not rely on the mediator making a “decision” – instead, the parties are empowered to make their own decision with the assistance of the mediator as facilitator? Perhaps limit that last sentence to situations in which the individual decides to seek a decision-based process?
I really appreciate your comment that not all services should be free. We (Mediate BC) are currently testing sliding scale services for family mediation – so the cost is tailored to meet the family’s unique financial situation. If this kind of an approach could be used for legal services as well (encompassing pro bono services at the very low end of the scale) the hope is we could meet your test of “not imposing an excessive burden”.
Keep up the great work.
In response to the Jane Austen comment, I think that if we are all going to agree that some people don’t get lawyers, then that should be equitably applied whether people are rich or poor. So thus the system needs to be the same for everyone…some courts or certain types of cases are run without lawyers, and others require them. I think for us to suggest that people with lots of resources get lawyers, and others get something short of that, is not an equitable system. Lets stop talking about what is enough assistance for poor people to get, and instead talk about how the whole system should run. If we are going to now design a system where lawyers are not needed, then no one should have one. If the system is still designed where lawyers come in with people who can afford it, then everyone should have that same benefit. I agree that of course its unrealistic that we provide lawyers for everything. So then lets make systems that don’t require or allow the use of lawyers in certain areas. But we shouldn’t be talking about making poor people use a system without a lawyer, where everyone with money uses a lawyer.
Legal Aid should not be based on income. It should be based on “need.” Attorneys should use some of their skills to advance the betterment of society, rather then primarily focusing on their financial gain.. Citizens who choose to represent themselves, rather than to seek an attorney as a mediator between themselves and the administration of justice, should be respected by all employed by the Judicial system. The First Amendment of the United States Constitution which provides a guaranteed right (not a privilege) to every U.S. Citizen in these United States, should be honored and respected by those who have received the honor and privilege of administering justice for all. The Right to Access Justice for All already has been defined clearly through the Constitution of the United States. Its application and enforcement is the issue. Its infrastructure is already well funded through the U.S. taxpayers. Its up to the Federal and State Judiciaries to administer fairly and without prejudice. It seems to me that making funding for legal services the primary focus overlooks the existence of what is already available to the public, but for lack of enforcement and accountability by those who have been empowered.
I’m not certain whether the “everyone has a lawyer for everything” statement is an attempt to encapsulate the goals of the civil right to counsel movement, but I feel compelled to point out for those unfamiliar with the movement that this is not the goal.
First, the movement seeks to establish a right to counsel not for all civil cases, but for cases involving “basic human needs”, a flexible term that permits different jurisdictions to come up with different coverage models (and that likely excludes many “routine” civil proceedings such as torts, personal injury, nuisance, etc). In speaking with many people in the access to justice world, it’s become clear to me that most agree there are *some* types of cases (or classes of litigants) where a lawyer is absolutely necessary, so the only real disagreement is which categories of cases/litigants fall into that camp. As the Jane Austen post says, we must “identify what cases for low-income people must absolutely have a lawyer to obtain access to justice, and try to provide that lawyer free of charge.”
Second, some of the suggested implementation models, such as those developed by the ABA (http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_104_revised_final_aug_2010.authcheckdam.pdf) and the Maryland Access to Justice Commission (http://mdcourts.gov/mdatjc/pdfs/implementingacivilrighttocounselinmd2011.pdf) contemplate considerable flexibility in the exact level of service provided, potentially including services such as limited scope representation in addition to full representation.