Traditionally, those who have pushed triage as a key component of 100% access have not always been fully clear about how the triage analysis actually fits in practice into the service modalities analysis. Here is one way of thinking that has occurred to me.
Step One: Design the basic accessible system, by putting in place all the things that we know work and can be done at low per litigant cost: simpler procedure, broad informational services such as forms, help choosing the path, and compliance information, training for staff and judges, caseflow management.
Step Two: Identify the specific tasks that need to be performed by the self-represented under this system. For example, litigants need to fill in their own forms, and answer questions posed by judges.
Step Three: Develop protocols to identify when certain tasks can not be performed by certain groups without additional assistance, what those tasks are, and who those people are. The main factors will be litigant capacity, opposition power, and complexity of task and case. For example, some might be so intimidated that they can not answer questions, or the case might be so complex that forms will not be sufficient to get a judge in the right position to explore what needs to be explored.
Step Four: Develop protocols to identify/design what kinds of additional assistance roles will be sufficient to get those tasks tasks done and when. Examples of such assistance roles might be navigators (courtroom or courthouse), nonlawyer services, unbundled lawyer services, and full representation. For example, it might be that appropriate navigators can get over most of the intimidation problem, but that unbunlded lawyers are needed for certain kinds of complexity.
Then you actually have the design of a 100% access system for that case type.
Step Five: Analyze whether you could save money by providing more at step one for everyone, so that the more expensive step four services would be needed by less people. Alternatively, it might be that money could be saved by increasing step four services, so that the level of step one services, provided to all, could be reduced. For example, if one expected judges to be responsible for less of the exploration through questioning, one might save so much time, that it would be worth paying for lawyers in the subset of cases in which such more limited questioning would not be sufficient.
This overall analysis would thus maximize cost effectiveness as well as access.
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As you know, I’m a huge fan of focusing on a more intentional and rational triage system. And we have to think about what a such a system would look like if we’re ever to get there. Your articulation here does trigger me to sit and contemplate for a moment how small our knowledge base is for constructing such a system. For example, you write in Step 3, ” The main factors will be litigant capacity, opposition power, and complexity of task and case.” One could interpret those phrases very broadly to encompass a huge variety of considerations, in which case I’m not sure what you mean by the “main factors.” But unless you make such a broad interpretation, it’s not clear to me how we know what the main factors are, and how to measure/asses them usefully. How many different variables/consideration go into litigant capacity? Here are seven to get us started: command of English; motivation & persistence; access to social networks, both traditional and electronic; presence or extent of disability; level of financial resources available to be dedicated to this matter; geographic proximity to the relevant decision maker; prior experience with the legal system, whether this matter type or some other; ability to advocate for oneself. Which of these, in combination or isolation, matters in terms of ability to take on a legal matter by oneself?
As always, lack of knowledge is not a reason for paralysis. We should try things and evaluate them as we go. But your post reminds me just how far we are from producing anything close to as “functional” as, say, or current health care delivery system.