A recent paper by Colleen F. Shanahan, Anna E. Carpenter and Alyx Mark makes a very important point that, as the abstract puts it:
Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases, and our legal system develops devoid of law reform that reflects the needs of low- and middle-income litigants. (Links added by this blog.)
The core idea, based on detailed analysis of hearings in the Washington DC unemployment insurance system, focuses on the actual evidence techniques used in the hearings, and the costs of lack of strategic judgements. The more detailed analysis is in this parallel paper from the same authors.
To me, this suggests a two pronged approach to improving courts that thinks about the system as a whole, rather than individual cases. In the first phase, you make heavy use of experienced counsel who can essentially “clean up” the court’s practices, including where necessary taking up the appeal to change the law or make sure that it is followed in the court. When that process has been successful, then you move in with nontraditional services, in which those providing them are trained in the skills needed to make sure that facts and law are presented to the court. You keep traditional legal representation in a small number of cases, and make sure that referral is both available, and known to be available for those having to rely on those without full legal training.
A sophisticated triage system would actually be designed to adjust recommendations based on an analysis of where the court or forum was in this reform and support system.
Similarly, a sophisticated access to justice strategy would be designed to develop such a multi-state approach, test and modify it in a few forums, and then apply it statewide.
Different stakeholders would play different roles, with advocacy organizations providing representation, and the courts providing parallel staff training and perhaps support systems for the new forms of assistance.
Let’s think strategically here.
P.S. I should note that it was reading these papers that also got me going on the analysis and suggestions in my earlier post here about the relationship between triage and court simplification redesign.