Lisa Foster’s speech at the ATJ’s Commission focus not on the usual self-congratulation, but on the encourages big changes in focus and vision. While I did not travel to Chicago for the Conference this year, just the text alone conveys a great, optimistic and trnsformative energy. While I would urge all to read the full text, including those who were in the room. Here, however, were some key points — with some links, annotations and suggestions added by me:
She started by citing Thomas Kuhn, urging a paradigm shift:
I’m going to talk today about why those of us who work in the justice system – all of us who care about access to justice – need to shift the paradigm and think differently about the justice system. I will argue that the most exciting and successful innovations in access to justice have come when perspectives have shifted. And I will contend that we will not be able to achieve the goal of meaningful access to justice for all without a paradigm shift.
Dead on. I would only add here that this will need to be a shift in how we organize and manage, as well as what services we deliver (see question at the end). That may be much harder to achieve.
We have structured the legal profession and the courts based on what’s best for us – the judges, the lawyers and the staff who work inside the justice system. Lawyers and paralegals sit in offices and expect the clients to come to us – during regular business hours. Courts are designed for lawyers, whose job it is to come to the courthouse and file papers or attend hearings or trials – during regular business hours. . . . .
What if we pressed the button on our cell phones and focused not on the profession and the courts, but on the people who need us – the people who need access to justice. We might view the work that needs to be done differently. Medical-legal partnerships are a great example of a paradigm shift – on the part of doctors. Doctors realized that despite the medicines they prescribed, some of their patients were not getting better. So they talked to their patients and learned that the real problems were not those that presented in the exam room, but larger social and economic issues . . . .
Here’s another example – the recently announced Legal Services Corporation, Microsoft and ProBonoNet initiative to build model online statewide portals. . . . The portal is thinking about access to justice from the perspective of a person who may know only that they have a problem and that they need help. It doesn’t assume the person knows the problem has a legal solution or which of any of a number of legal aid, government or social service offices or online resources in their community could help, or even which courthouse or administrative agency, if any, they will ultimately need to interact with.
A similar example from the courts is online case resolution. . . .
Exactly. It’s all about thinking from the system from the point of view of the public rather than the professionals. Indeed, I can not resist the urge to link to this video in which I talk a bit about how to bring the litigant voice into the process. What’s so great about the way Lisa goes so much further by putting this in the context of a paradigm shift, while also showing examples of how we are already starting to think this way.
Lisa Foster then went on to explain how LAIR represented a similar rethink of of the ATJ office within DOJ, from an initial focus on LSC funding to a broader focus:
But then, my colleague Karen Lash, shifted her perspective, and focusing on the executive branch realized that legal aid could help just about every federal anti-poverty program work better. That shift of focus also revealed how many agencies work to help low-income Americans. So we explained how legal aid could support the agencies’ efforts to increase access to housing, healthcare, employment, education, family stability and public safety. That subtle but profound shift launched the Legal Aid Interagency Roundtable – now, after President Obama signed a Presidential Memorandum in September 2015, the White House Legal Aid Interagency Roundtable (LAIR), staffed by my office, with Karen as its Executive Director. LAIR was built with a different paradigm: that federal programs run by executive branch agencies and targeting low-income and vulnerable populations work better – deliver better results – if legal aid is among the supportive services provided.
Its really nice to see this very well-earned shout-out for Karen Lash, who has done so much to put in place a long term funding infrastructure for a broad range of access innovations. I have to be direct that I do not think that most people in the legal aid community, broadly defined, particularly outside Washington, just do not appreciate how transformative her work has been. I am glad that Lisa is correcting this.
This also underline that the ATJ Office, LAIR, Lisa and Karen have always had a long term approach has always to define Legal Aid and the Roundtable broadly (see particularly item 3 in the linked list), meaning that it includes, just as the Commissions do, in its mission the leveraging of all partners in the access movement, including courts and bar rather than only the nonprofit community-based organizations that LSC and IOLTA focus their money on.
Judge Foster then moves on to a discussion of how Commissions might take advantage of the enormous moment of opportunity in the national attention to related issues:
The first of those forces is the growing recognition of income inequality. . . . . What’s different today is that everyone is talking about it. The impact of income inequality, including on the justice system, is part of the national conversation.
The second dynamic can be summarized in a word: protest. From Ferguson, Missouri, to Baltimore to Chicago to Los Angeles, thousands of people have marched to voice their concerns with the justice system. While the primary focus has been on law enforcement, there is growing recognition of the unlawful and harmful enforcement of fines and fees in certain jurisdictions. . . . The third relevant strain is criminal justice reform. . . .
Finally, for the first time, the United Nations included access to justice as part of its Post-2015 Sustainable Development Goals. It’s Goal 16, which the United States strongly supported. The inclusion of access to justice . . . recognizes that legal empowerment . . . is essential to economic and social stability and security.
The last time we had this much attention paid to poverty and justice in America was in the late 1960s and early 1970s when the Office of Economic Opportunity was created and the Legal Services Corporation was born. . . .
With respect to communications and messaging, it means connecting access to justice to these larger social issues. Access to Justice Commissions are uniquely qualified to take on that task. While we at Department of Justice – together with partners like the National Legal Aid & Defender Association, the American Bar Association, Voices for Civil Justice and others – are making the case at the national level, we need coordinated media, outreach and lobbying efforts to happen at the local and state level. Only people who know their communities can brainstorm opportunities to make the case for justice. That means thinking strategically about a coordinated media strategy and lobbying effort . . . emphasizing the ways in which access to justice will improve community health and safety. That is precisely what we at the Office for Access to Justice do with LAIR. . . . We educate federal agencies about the role legal aid can play in achieving their program goals. . . .
The speech continued specifically to the self-represented litigant issue:
With respect to self-represented litigants, there is so much opportunity, and Katherine Alteneder and the Self-Represented Litigants Network are outstanding allies. Court self-help centers and navigators are critically important, and they need to be expanded, because there will always be disputes where people need to come to court. Once people get to court – and specifically to courtrooms – we need to help judges better understand how to work with self-represented litigants. . . . One of the most successful [recent] reentry week activities was a simulated exercise where probation officers, prosecutors and others assumed the role of a person returning to their community after a period of incarceration. The participants came to understand the obstacles people reentering face and the frustrations they experience. What if we designed a similar simulation for judges? We could help them understand the court from the perspective of self-represented litigants. Paradigms might just shift.
Great idea, and another well-earned shout out for Katherine Alteneder, my SRLN successor.
Let’s figure out how to make the most of technology to do these simulations, and maybe even use the process of designing and deploying them as a way to give the litigants a voice. Now, tell me, has anyone ever asked litigants how judges should be educated/trained, let alone asked them to review the training materials?
After pointing to exciting examples of Commissions experimenting with “State LAIRs,” using Federal VOCA Funds, and after urgins states to consider becoming one of the two pilot Portals, Lisa conclused:
When everyone from President Obama to Pope Francis is talking about justice, this is truly our moment. Let’s all use this meeting to flip our cellphones, to change our perspective and shift the paradigm. When we do, we can think big – and be bold – and make access to justice for all a reality.
Right on! Thanks, Lisa, for being such a leader.
And, back to the thought at the top — do we have the national capacity to support this paradigm shift, and if not, what more do we need, and how should it be structured and organized?