I think I may have been guilty of thinking about the relationship of triage, court simplification and expansion of non-lawyer roles the wrong way round.
I have basically been saying something like this:
For each case, we should do triage, look at the tasks the person has to do, decide what kind of expert, if any, is needed to do them, and then route the case appropriately. We may then seek to simplify the system so that this works better. We may also then ask if a less trained person could do the job, and who that might be.
But maybe what we should be doing, is deciding what kind of skills and training (if any) we want we think should be need to handle particular kinds of situations, and then simplify the courts, and train the helpers, so that that becomes viable. Some processes for some situations should be designed to have minimal help in most factual circumstances. Others to provide whatever additional is needed at particular steps in the process.
For example, uncontested equal-power divorces really should need no help. So the processes should be designed so anyone can navigate them. But significantly unequal power divorces need processes that lay the groundwork well for the use of the ongoing monitored coercive power of the state. They also need the mechanisms to ensure that all the facts are gathered and presented properly. A lawyer maybe, but certainly those with the skills to manage their clients on both sides of the dispute (very different skills), and a process that works with and supports those skills. Each of these roles may be designed very differently from the traditional lawyer.
Our general mistake has been thinking about triage on the assumption that the court’s process is fixed and unchangeable. We have also thought about new legal assistance roles as being defined by particular situations, rather than designing the processes so that they can work best with the skills really needed.
The basic idea is simple. Do not treat the court process as a given. Do not treat the roles as given. Design them so they can work with whatever skills and help would be most appropriate in the situtation.
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I like this a lot. First, it forces attention back to the processes and the need to simplify them. Second, it recognizes that the solution is not to try to make litigants know what lawyers know (the implicit court self-help paradigm). Third, that degree of granularity in analysis accords well with the discussion in Becky Sandefur’s recent article about what we know and don’t know. We simply don’t know what additional capabilities we need until are able to do this kind of analysis with some kind of confidence.
:Our general mistake has been thinking about triage on the assumption that the court’s process is fixed and unchangeable.” I could not agree more, and the corollary principle is that we should not take it as given that a certain number of litigants are going to be unrepresented; we ought to be looking first at how many of them shouldn’t be.
Thanks. Agreed that we should not regard the number of unrepresented as fixed. Nor should we regard the number who should not be self-represented as fixed. That too can be shifted by the design of the overall process, and the forms of assistance provided.
“They also need the mechanisms to ensure that all the facts are gathered and presented properly. A lawyer maybe, but certainly those with the skills to manage their clients on both sides of the dispute (very different skills), and a process that works with and supports those skills.”
To some extent, this is the idea behind a project coming out of Frederick County, Maryland. The project involves a workbook designed for use in domestic cases. It starts by leading a self-represented litigant through an information-gathering process; proceeds through explanation of legal standards; guides the development of the litigant’s “facts” from feelings through reasons to evidence; and eventually becomes a trial notebook of sorts.
Along the way, the book integrates with Maryland’s in-person and online legal information, and is designed to have key points at which lawyer assistance is sought, to keep the train on the right tracks. The hope is that the book will be refined into a tool that many legal services lawyers, and even private limited scope and pro bono lawyers are familiar and comfortable with, so they can readily help self-represented litigants with the milestone checks, or even take cases that look appropriate.