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.