With Nate Silver’s Election Prediction Launch a Couple of Days Ago, Its a Good Time to Think About Statistics, Predictions, Triage, and Education for Public Policy

Posted on July 5, 2016 by richardzorza

Nate’s 2016 polls-only prediction is that Clinton has an 77.6% chance of winning.

For those of us who talk about how triage is critical, his methodology page is well worth some attention. It is highly sophisticated, and reminds us just how complex predictions are, particularly when you want to make not only general policy choices, but also individual choices based on them.

And that, of course, is exactly what the medical system does, and has to do, all the time.  Moreover, it is just what the legal system does all the time, usually without the benefit of statistics.  This is not only true in probation and sentencing decisions, but also in the often unconscious triage decisions made day after day in self-help centers, legal aid programs, and clerk’s offices.

So, I ask, can we start to develop a model for when we can or can not rely on a prediction.  In the triage context, the way to ask the question is “when are we certain enough that a more expensive assistance model is worth it?”  Note that this at the same time a simpler and more complex question than whether it would make a difference, or even how much.

Of course, in all social science the “confidence” level is calculated all the time, and thresholds are used to justify group decisions.  But we are constitutionally (and I mean the phrase only metaphorically here,  I think) deeply inhibited from saying, “well, since 95% of the time, that service a will be sufficient, we are just going to use it for everybody in that group.”  Although remember how low the standard for effective assistance of counsel is in both the criminal and civil contexts.

The problem with that reluctance, at least when there are major cost differences and significant resource restraints, is that the result is that while a few people get an even higher chance of success, the vast majority get less of a chance.  The third world medical analogy is exact.  Countries could spend all their limited resources on a few people, and do nothing for the many, or they could spend it all evenly, or they could muddle though with an informal and non-transparent allocation system, which is what I expect they do.  (I feel acutely the benefit I get from this advantage.  My hemoglobin target is now 9  (and the subject of potential upward negotiation).  I understand that in India you only get a transfusion at 6.  At 6, I simply would not be blogging at all.

So, I would say the following.  We need our decision-making systems to be transparnt.  We need any algorithms to be legitimate and to reflect the best knowledge.  We need to be honest about any uncertainty.  We need to provide a method for review  of decisions to increase both accuracy and legitimacy.  We need ongoing review of protocols and algorithms.  We must keep a human element or option, even as we apply rules electronically.

Perhaps most importantly of all, we must educate the public and decision-makers about the relationship of the resource limitations to the choices that are being made, and the broader interests at stake.  We can learn from the medical system public policy research which has shown that members of the public think very differently about things like the use of antibiotics, when they are shown the long term public benefits of more restrictive polities.  I.e. they are willing to be given less themselves, if it keeps the world as a whole safer (“Evidence of physical harm to individuals or the community led to increased acceptance of limits.”.  Interestingly, the public accepts the role of the professionals as general arbiters. So, hopefully, people might be willing to get less help if they knew that resulted in more justice overall.  This, of course, is fully consistent with the “public trust and confidence” research that people care more about the overall fairness of the process than that they themselves win..

 

 

Posted in Budget Issues, Funding, Medical System Comparision, Metrics, Outcome Measures, Public Education, Research and Evalation, Series: Outcome Measures, Systematic Change, Technology, Transparency, Triage | 1 Comment

David Brooks Brilliant Column on Outsider-Insiders, and its Relevance to Our 100% Access Movement

Posted on June 25, 2016 by richardzorza

David Brooks  had a brilliant column in the New York Times on June 25, 2016.  However, it was marred by a serious error that, while irrelevant to the force of the core idea, means that it is much less likely to be taken with the seriousness that it deserves.  Indeed, the error leads Brooks to miss a whole area of implication.

The column itself is headlined At the Edge of Inside.  The core idea is that:

[Beyond insider sand outsider] there’s also a third position in any organization: those who are at the edge of the inside. These people are within the organization, but they’re not subsumed by the group think. They work at the boundaries, bridges and entranceways.  .   .

A person at the edge of inside can see what’s good about the group and what’s good about rival groups. [Franciscan priest Richard]Rohr writes, “A doorkeeper must love both the inside and the outside of his or her group, and know how to move between these two loves.”

A person at the edge of inside can be the strongest reformer. This person has the loyalty of a faithful insider, but the judgment of the critical outsider. Martin Luther King Jr. had an authentic inner experience of what it meant to be American. This love allowed him to critique America from the values he learned from America. He could be utterly relentless in bringing America back closer to herself precisely because his devotion to American ideals was so fervent. .  .  .

 Rohr writes, “You have learned the rules well enough to know how to ‘break the rules properly,’ which is not really to break them at all, but to find their true purpose: ‘not to abolish the law but to complete it.’”

.  .  .  . [A] person on the edge of inside neither idolizes the Us nor demonizes the Them. Such a person sees different groups as partners in a reality that is paradoxical, complementary and unfolding.  .  .  .

When people are afraid or defensive, they have no tolerance for the person at the edge of inside. They want purity, rigid loyalty and lock step unity. But now more than ever we need people who have the courage to live on the edge of inside, who love their parties and organizations so much that they can critique them as a brother, operate on them from the inside as a friend and dauntlessly insist that they live up to their truest selves.

I would like to think that is the perfect description of the 100% access to justice movement, and particularly the Self Represented Litigation Network.  We, all of us, are part of an organization, but we are also outsiders who take a broader view, and are constantly trying to get all our organizations to do much better.  We agree that LSC and community-based legal aid do a lot of good, but we do not think that they alone offer the full solution, and indeed could do far more.  We love the changes in the courts, but think they have a long way to go it we are to get to 100% access.  We appreciate the organized bar, but demand far ore in real terms than has been done so far.

Hopefully, as explained in the Brooks column, we love the components, but we see they are not perfect.  (At an interview with NLADA, over ten years ago, I was asked why I wanted to be part of the leadership of an organization of which I was so often critical.  My answer — “you may be a dysfunctional family, but you are MY family.”

I particularly love the total on-pointedness of Brooks’ legal reference, quoting Rohr : “You have learned the rules well enough to know how to ‘break the rules properly,’ which is not really to break them at all, but to find their true purpose: ‘not to abolish the law but to complete it.’”

That is exactly what we have done time and again, with rethinking the role of court staff so they can provide legal information without being non-neutral, with re-conceptualizing judicial neutrality so that judges can be both engaged and neutral, with pushing the argument that expanding what non-lawyers can do is not inconsisten with protecting professionalism, and with clarifying that unbundling is not inconsistent with an appropriate attorney-client relationship.

We have both have perspective and credibility, and hopefully we will continue to earn it.

However, back to the specific problem with the Brooks column.  I just can not personally agree with the implications of these assertions:

These insiders are in the rooms when the decisions are made. Hillary Clinton, for example, is now at the core of the Democratic Party.

Then there are outsiders. They throw missiles from beyond the walls. They are untouched by internal loyalties and try to take over from without. Donald Trump is a Republican outsider.

In fact, in their own ways, both are “insider-outsiders.”  In Trumps case he is, at least to hear him tell it, hugely rich and at the center of events. In Clinton’s case, she has tried to be a change agent all her life, even if you may disagree with some of her efforts.

What this leads me to is an important distinction.  The real question is what people do with their “insider-ousidee” status.  Do they use their ability to move between institutions for selfish ends, or do they have a vision for how to make the world better, and try to use their unusual status to move it forward.

As with so much else in the world, it’s not where you stand, or what you have, but how you use them.  (And, I hope that you do not have to agree with my analysis of the candidates to see the value of both levels of the broader analysis.

I think I will be using the “insider/outsider” concept for the rest of my life.  Thank to David Brooks.  Now, please, Mr Books,  just take off the last of your now very flimsy partisan blinders.

P.S.  Claudia Johnson adds this comment:

Because the ways in which technology is being used is opening new career paths for different skill sets and levels of assistance and services, it is more important now than ever to make sure that groups making decisions do not fall into the “groupthink” fallacy. Really great projects and opportunities have missed their mark, because the group that made initial decisions fell into this trap. Groupthink is such a problem, that in most top public policy schools, it is studied in the core public policy analysis curriculum. When I was at the Goldman School of Public Policy, we spent a lot of time working on the case study of the Bay of Pigs invasion, followed by the bombing of Pearl Harbor where warnings were ignored. The more homogeneous and cohesive the group, the higher the risk to fall into the groupthink trap.

Stereotypes and implicit biases of self represented litigants will lead to groupthink as we develop solutions to the ATJ challenge. Groups making decisions about ATJ initiatives need to guard against groupthink by including others different type of organization, type of service background and experience, from other areas of the country doing similar work, different training and experience, different demographics. So for example, a group making decisions about applying a technology to SRLs should include members of the court (various parts of the court beyond court administration and IT, also self help centers and front line support, even interpreters), legal aid (including LSC and non LSC groups) pro bono projects, the Bar, and the appropriate substantive sections of a local Bar, and practicing attorneys in the relevant area of law (in the public and private sector), as well as social agencies that work with the populations most likely being impacted negatively by the decision.

If you have a homogeneous group making decisions about tech applications to ATJ challenges–and you happen to have an insider-outsider, ask them who else you could invite–to minimize the risk of group think. And if the insider-outside challenges the assumptions being made, thank them for that. They are helping your group think clearly.

Great post Richard! Good reminder to guard against groupthink–and to listen to those who are insider-outsiders. So lucky we have these resources in our community.

Posted in 100% Access Strategy and Campaign, ABA, Bar Associations, Judicial Ethics, Legal Aid, Legal Ethics, LSC, Non-Lawyer Practice, SRLN, Unbundling | 1 Comment

Analysis of Article 50 of Lisbon Treaty – The Secession Provision

Posted on June 25, 2016 by richardzorza

It is strange that there has been so little analysis of Article 50 of the 2007 Lisbon Treaty, which is being relied on in the UK’s apparently likely request for withdrawal.

I share with you, therefore, this fascinating article by Clemens M. Rieder of the University of Lancashire, published quite recently in the Fordham Journal of International Law.

The key paras for this sub-issue, which raises a fascinating question, are as follows:

Withdrawal from the European Union is regulated in article 50 of the TEU. What is rather obvious to notice is that the matter of withdrawal is dealt with in only one single and rather short provision. This somehow seems surprising given the significance and complexity of a potential withdrawal from the European Union. The wording of the clause can be considered ‘rather broad’ as it allows not only for consensual, but also for unilateral, withdrawal. This section will outline the structure of the provision and highlight some of its problems before it is discussed in the light of EU citizenship in the next section.

According to article 50.1 of the TEU, “[a]ny Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” The problem one encounters with this provision is that it would seem that it is the European Court of Justice (“ECJ”) which would be called on to decide whether a Member State (rebus sic stantibus) has in fact withdrawn in accordance with its own constitutional requirements. This means, as a consequence, that “this insertion has catapulted that court [ECJ] into the role of final arbiter of a significant issue of national constitutional law.”37 Needless to say, this could embroil the ECJ in questions which are highly sensitive for the withdrawing Member State.

I wonder if that phrase might mean, not that the exit request must be made according to leaving state constitutional procedures, but rather that it must be the result of some requirement that the state’s constitution requires it to ignore to comply with what the EU would require.

The paper raises the fascinating question as to what legal institutions would resolve any questions about withdrawal eligibility.

There is also the question of standing.  I might lose my right to live and work in the rest of the EU.  Would this give me standing?

 

Posted in Access to Justice Generally, International Cooperation | 2 Comments

Forced to Choose, In Spirit I Become a European-American Today, Rather Than a British-American

Posted on June 24, 2016 by richardzorza

Given the immigration and access implications, I am re-posting the below from my politics and humor blog.

Watching the results last night, I started to realize that I now feel more European then British.  If, as a result of the referendum, I am offered the choice of a British (UK) passport or a general European one, I think I would take the European one.  As a US dual passport holder, who has not lived in the UK since the beginning of 1968, I am not here renouncing my UK rights, but given that choice, that’s my feeling today.  It does not help that I did not even have the right to vote in the UK referendum, even though it is likely to result in the loss of my UK-based right to live and work in the EU.  (By the way, at the end of World War II, many people faced complex changes in citizenship, with hard to make choices.)

I, like many expats, have extensive family links in the EU, in my case in Poland, so that impacts my feelings.  I might even have rights to EU citizenship through Poland, Ireland, or even Scotland (assuming they leave the UK and join the EU, through ancestors.  But, that’s the point, we are European citizens, rather than UK or English ones, just like we are American, rather than Maryland citizens.

I am strongly influenced by respect for the German response to the refugee crisis, which is literally orders of magnitude better than the American.  (Germany has a bit more than a quarter of the US population, but is admitting 200 times the number of Syrian refugees, for a  multiplier of close to 800 times the US per capita rate).

But above all, Europeans have been far more forceful in promoting the European Project, while the latest vote is only the latest manifestation of British ambivalence going back to the 1950’s.  That was reflected in the appalling campaign, that was all, on both sides, about appeal to selfish interests.  (There’s a long history of this.  The Tory election slogan in 1959, inevitably reflecting Britain’s class realities, was “You’ve Never Had It So Good.  Note the “You.”)

In a positive campaign, the challenges Europe is facing would be a reason to stay and help, not one to flee and, literally, closing the UK (or probably just parts of it if) off.  I nearly typed “reason for us to stay and help,” and then realized that I do not feel “us” any more.

I suspect that many, but far from all, UK expats are feeling some of this today.  Even though the EU Project may be able to move forward, at least in the long term, better without the UK, it will ultimately be a less valuable project without my birth country.

Posted in Immigration, International Cooperation | Comments Off on Forced to Choose, In Spirit I Become a European-American Today, Rather Than a British-American

Strategic Planning for Access for All Released

Posted on June 14, 2016 by richardzorza

Here it is, the RFP for state strategic planning for access to Justice  for all. While the document speaks for itself, this might provide a good opportunity for some reminders and observations.

I can not emphasize enough that these observations are very much mine alone, notwithstanding my membership in the so-called experts group for the project.

  1. The touchstone for the RFP and the whole project is the CCJ/COSCA Resolution on 100% access.  I would urge those considering an application to go back to that Resolution, and to conisider its ambition and its emphases.
  2. The key para, not to be forgotten, sets and urges the  “aspirational goal of 100 percent access to effective assistance for essential civil legal needs and urge their members to provide leadership in achieving that goal and to work with their Access to Justice Commission or other such entities to develop a strategic plan with realistic and measurable outcomes.”  I have bolded the phrases that are, in my opinion, the most important.
  3. The RFP itself emphasizes the need for applicants to demonstrate the committement to active collaborative participation of all core stake holders.  This is something that needs to be started on early.  Note the ue of the word “demonstrated.”  I am dubious that a general letter would suffice.
  4. States will not be on their own in this project:“Specifically, two guides will be provided to all states during the summer of 2016: A guide for a strategic action plan, including a basic template for the possible plan; A guide for a state assessment/ inventory to help states identify and inventory the resources, services, and capabilities they have and may need, and consider how to address gaps in services to better meet the legal needs of all.”  Moreover, these is the potential for targeted pilot implementation efforts to those states that obtain the planning awards.
  5. The intended planning must be for a comprehensive and integrated vision and system, and not a few incremental steps forward:
  6. The evaluation measures should be considered as being at the heart of this project, referenced as they are in both the Resolution and the RFP.  The full Selection Criteria appear below, and might be viewed as perhaps the best guide to the DNA of the project as a whole.

1. Integration of Access to Justice Partners: Demonstrated support from all relevant stakeholders.

2. Use of Guidance Materials: Willingness to work with the inventory and strategic action plan guides developed by the Justice for All Expert Working Group or utilize an approved alternative approach.

3. Identify Local Resources: Identification of resources to support the strategic action planning effort and sustain stakeholder collaboration on planning. This includes a willingness to dedicate resources to the strategic action planning effort and, when the plan exists, a willingness to dedicate resources to plan implementation.

4. Sustainability of Stakeholder Collaboration: Demonstrate a willingness to undertake sustained stakeholder collaboration. Examples of previous coordination/collaboration among stakeholders may be provided.

5. Staff Commitment: Commitment of a staff person to oversee the inventory assessment and strategic action planning effort at the state level and prepare progress reports.

6. Reporting and evaluating: Demonstrate a willingness to submit quarterly reports and establish measures to evaluate implementation efforts.

 

Applications are due October 5, 2016.  The FRP provides contact information for questions. I hope that as many states as possible will take advantage of this very significant opportunity.

 

Posted in 100% Access Strategy and Campaign, Access to Justice Boards, Access to Justice Generally, Funding, Outcome Measures | Comments Off on Strategic Planning for Access for All Released

Social Workers as Nonlawyer Service Providers

Posted on June 7, 2016 by richardzorza

The recent Report from the Massachusetts Access to Justice Commission includes, in addition to many achievements and interesting ideas, a fascinating statistic about social workers in nonlawyer roles.

The Third Commission, through its Social Services Committee, continued to focus on how advocates at social services agencies and nonprofits serve as legal advocates for their clients. This past July, the Committee surveyed over 500 social service agency workers regarding their role in providing assistance to consumers regarding legal situations, with several interesting findings:

  • The vast majority of surveyed workers (80+%) have answered their client’s legal questions;
  • Workers lack overall knowledge of existing legal resources and legal websites. For example, fewer than 50% of respondents used the masslegalhelp.org website;
  • Fewer than 40% of workers knew which legal service program served their area; and
  • Workers have a great interest and need for additional information and training.

In October 2015, the committee convened a meeting of social service workers and legal service advocates to discuss the findings and to recommend next steps to the Third Commission. While seven recommendations were ultimately made to the Third Commission, the Committee focused initially on creating a website for social service workers. This proposed website – called, for now, the “helphub” – would be designed to educate and assist social service workers and to empower them to provide their clients with the legal information they need. This website would give links to other existing legal resources and websites (as opposed to providing such content itself) and would also have a “live chat” feature whereby, optimally, social service workers could ask lawyers questions and get real-time answers. Rosie’s Place has offered funding for a prototype website.

 That speaks for itself.  A few observations.

There appears to be no worry (as indeed there should not be) about social workers acting inappropriately in terms of providing legal information.

I am not clear about the relationship of prior content to the new website.  While I agree that full use of exiting content makes sense.  It is far from clear to me, however, that the website would not be far stronger with some content that reflects the special characteristics and capabilities of social workers.  Missing this opportunity would be a major mistake.

Similarly, its worth exploring what more social workers can do in terms of helping with information, that others without such qualifications can not necessarily do.  These issues are somewhat explored in the paper on nonlawyer practice that David Udell and I wrote.

Posted in Access to Justice Boards, Access to Justice Generally, Non-Lawyer Practice, Social Workers | 5 Comments

Watching for Signs of Dictatorship and the Legal System

Posted on June 4, 2016 by richardzorza

When I started my politics and humor blog, I had intended to maintain a pretty rigid line between the materials on that blog and this one.

It is a measure of how much things have deteriorated in the last month that that decision now seems neither appropriate or necessary.

It no longer appropriate, because the recent threats to our legal system are surely threats to access to justice — if judges are going to be attacked for entertaining class action litigation, that makes recent caselaw issues pretty minor.  So we have to analyse and track these things.

And it is no longer necessary because there is enough anxiety within the profession, the courts, and the legal system that “non-partisanship” no longer requires, if it ever did, silence in the face of the threats.

So, I want to reference my most recent politics blog analyzing the actual potential threats of dictatorships in a Trump Presidency, and of how to look for, and even sadly see now, the signs.  In particular, as a spur for action, I paste in this para on the role of the legal profession:

Attacks on the Legal Profession?

Interestingly, we seemed not to attract his ire, even though we are unpopular.  He focuses on judges, and the laws, not lawyers.  It may have something to do with how many he must rely on given the massive number of law suits he has been involved with.  So, lawyers are powerful and unpopular, and he leaves us alone.  What does that mean?

Does it have anything to do with our profession’s relative silence on Trump?  (Interestingly, it appears that the legal profession did not take on Hitler’s rise to power, although there was heroic resistance from some after the event. I am no expert on this, so would welcome correction.) It may be that the above linked NYT article is the beginning of a change.  It will be interesting to see if we are now honored with attacks.

Lets hope so, and I mean it.

I would encourage you to also subscribe to zorzapolitics.net.  It’s not all frightening.  I have tried for humor too.  See link to the Humor category.

 

 

 

 

Posted in Access to Justice Generally, Bar Associations, Constitution, Federal Courts, White House | Comments Off on Watching for Signs of Dictatorship and the Legal System

Great NYT Online Piece on “Legal Aid With A Digital Twist” Features Claudia Johnson, Law Help Interactive, and Others

Posted on June 1, 2016 by richardzorza

At last, the media is staring to “get” that legal aid is not just traditional advocacy.

The Time’s Fixes has a piece on digital expungment, ATJ hackathons, our guest blogger Claudia Johnson, Law Help Interactive and more.

The rise of online legal forms may not be a gripping subject, but it matters. Tens of millions of Americans need legal help for civil problems — they need a divorce, child support or visitation, protection from abuse or a stay of eviction. They must hold off debt collectors or foreclosure, or get government benefits.

They often have to fight these battles on their own because — despite the fact that civil cases can result in people going to jail, or losing a house, health care or custody of their children — they don’t have the right to a lawyer, as defendants in criminal cases do. Four out of five people who need a civil legal aid lawyer don’t have one.

Walk into a court case between landlords and tenants, or creditors and debtors. The landlord always has a lawyer. The credit card company always has a lawyer. The tenant or debtor practically never does.

This is not just a problem for overmatched individuals. “It creates industries that become more abusive,” said Claudia Johnson, the program manager of LawHelp Interactive, a nationwide initiative to increase access to justice. “They feel ‘we can do whatever we want.’ This is part of the reason we have lost social mobility.”

The solution is to establish a right to counsel in the civil cases where the most is at stake. Many state bar associations support a civil right to counsel, and 18 states are considering laws to guarantee a lawyer in certain civil cases. But until that happens — and we may wait a long time — it makes sense to take a harm-reduction approach and help the self-represented do the best they can. One way is with online forms and apps.

 What’s really great about the piece is that it starts the brainstorming process about the other possibilities that come from automated court access, forms, etc, including the idea that programs could be proactive.  Wonderful.

What else could technology do? “There’s a lot of low-hanging fruit that hasn’t been grabbed yet,” said Stubenberg [of the Maryland Online Expungement Project]. “Foreclosure, for instance, deals a lot with whether certain papers were filed at the right time. Banks have to file certain papers in the right order and on the right date.” It’s a significant issue. One study of the behavior of mortgage companies in consumer bankruptcies found that in a majority of cases, the mortgage companies had not complied with the law.

“An app could find all the times the bank made a mistake,” said Stubenberg. “And we could find the clients. We could tell them, ‘You have a house that can be saved because banks screwed up. Would you like us to help you?’ In theory, you’d have a success rate of nearly 100 percent.”

Thanks, NYT and writer Tina Rosenberg, who is also one of the founders of the Solutions Journalism Network.

p.s. I have previously blogged about the idea of a national expungement project, here.  Also more generally about the potential of mobile technology for access to justice.

Posted in Access to Justice Generally, Consumer Rights, expungement, Foreclosure, Forms, Self-Help Services, Technology | Comments Off on Great NYT Online Piece on “Legal Aid With A Digital Twist” Features Claudia Johnson, Law Help Interactive, and Others

Additional Evidence That Constitutional Institutions Are Moving to Protect the Constittional Balance

Posted on May 28, 2016 by richardzorza

I recently blogged about how US institutions are moving to protect the Constitution in the event of a Trump Presidency.

Now comes evidence that the Federal Courts, at least, are moving to make it less likely that one who has contempt for the constitutional balance becomes President.

Yesterday, candidate Trump showed contempt for the judiciary, as well as contempt for diversity, by insulting the Judge who he called the “Mexican Judge,” hearing the so-called “Trump University” Federal Court case.

Trump delivered a lengthy monologue about the years-old case involving students who claim they were defrauded by Trump’s real estate “university.” He delved so deeply into details of the case — at one point, he talked about the origin of the name of the law firm representing him — that he seemed to lose the attention of his crowd.

Trump leveled a series of blows against Curiel. He called him “a hater of Donald Trump” and “very hostile” person who had “railroaded” him. He then taunted the judge, who has scheduled a trial for late November, after the election.

“I’ll be seeing you in November, either as president…” Trump said, trailing off. “I think Judge Curiel should be ashamed of himself. I think it’s a disgrace that he’s doing this.” Trump brought up Curiel’s ethnicity: “The judge, who happens to be, we believe, Mexican…I think the Mexicans are going to end up loving Donald Trump.”

Now, today, we hear that the Judge has ordered (link to order) documents in the case released in response to a request from the Washington Post.

As the Post put it.

In his order, Curiel noted that Trump had emerged as a leading presidential candidate over the course of the civil case against Trump University and that Trump had “placed the integrity of these court proceedings at issue.” The judge pointed to a previous case to say that courts deciding on public disclosure must weigh “whether a party benefitting from the order of confidentiality is a public entity or official; and . . . whether the case involves issues important to the public.”

The rally in San Diego appears to have started at 2 PM pacific, and I can not tell from the Order itself whether it was released before or after the rally, although there was a hearing on May 27 itself, as stated in the Order. (Indeed, Politico reports that hearing and rally took place around the same time, but comes to no conclusion as to whether the Judge knew of the new insults.  It reports on more detail on the prior insults, “including an NBC story which noted Trump called Curiel “extremely unfair” and an Associated Press story titled, “Trump: Judge’s ethnicity matters in Trump University suit.””

However, given Trumps prior behavior, the interrelationship between Trump’s attitude and the new order is plain on its face, regardless of the timeline. (The Order cites to the Washington Post Motion in support of the proposition that Trump, “placed the integrity of these court proceedings at issue.”

Note how very careful this is.  This is NOT, REPEAT NOT, a judge retaliating against a public figure litigant who insults him.  No, it is a court moving to protect the integrity of the judicial process and the constitutional balance by making clear that one who shows contempt for those principles thereby places the integrity of the proceedings at issue, thus making public interest in the disclosure of documents much greater, and indeed necessary of the protection of those principles.

I would suggest that this will not be the last we hear of this concept, or indeed of perhaps many other ways and legal theories that will help institutions move to protect our constitutional values, with possible risk to one campaign.

By the way, I would hope that any recussal motion woldbe laughed out of court, given that if anyone could obtain recusal by insulting the judge, a litigant such as Trump could always choose his or her judge.

Posted in Access to Justice Generally, Constitution, Federal Courts | Comments Off on Additional Evidence That Constitutional Institutions Are Moving to Protect the Constittional Balance

Claudia Johnson Suggests Incentive Awards ATJ Innovation

Posted on May 26, 2016 by richardzorza

These observations are from Claudia Johnson. Thanks, Claudia, as always.

Let’s create a Competition to solve the Access to Justice Problem!

At the recent SRLN, the keynote speaker, Judge Burke from Minneapolis, gave took us back to basics and went back to the core principles of due process and public perception of fairness and legitimacy and the need to focus again on reducing the intimidation factor of courts.

That same day, Richard shared his video on ideas on how to create incentives to achieve access to Justice. He has posted his video here: https://accesstojustice.net/2016/05/12/my-video-on-five-ways-to-incentivize-bar-courts-legal-tech-and-nonprofits-to-get-us-to-access-for-all/ I highly recommend those interested in ATJ policy to watch the video—because it is one of the rare instances where policy analysis tools from micro and macroeconomics are being applied to the provision of legal services to the poor. And it the ideas he proposes are thought provoking and hopefully will generate a dialog.

Some of the ideas Richard discusses include using techniques that come from well-known micro economics and taxation strategies, to create economic incentives that help aligning the behavior of attorneys, bar associations, legal aid groups, and courts in such a way that they improve access to Justice. The premise is that practicing law is a privilege and that the receipt of privilege requires something in return that promotes the public good. In a nutshell, these were the points he made:

  1. Return the responsibility to ensure access to Justice to the Bar.
  2. Internalize the costs of ATJ—have courts internalize the costs of ensuring access to justice., by making them pay the advocacy budget
  3. Align the tax incentives for access to justice, such as by allowing tentants to deduct legal fees, the same way landlords already can, and by making pro bono service tax deductible in some way
  4. In the context of licensing services, a quid pro quo approach—create a limited license technology exemption licensed by the FTC—where legal technology companies can provide services if they grant free licenses and free and marginal cost services to the poor and those who cannot afford lawyers.
  5. Same as above, but for legal nonprofits–create a regulatory exception for any nonprofit legal aid organization.

In my comments that day, I mentioned that as we think of economic/financial incentives, we should also think of real incentives—in particular awards and prizes, to recognize court systems that create and share ways in which they improve the outcomes for those without lawyers. I referenced as an example the Star Award’s that the NY Access to Justice Initiative gives clerks that use online forms. https://www.nycourts.gov/ip/nya2j/DIYawards/awardNewYorkCivil_photos.shtml This Award has led to significant use of the Court DIY forms that run on LawHelp Interactive—increasing efficiency across multiple case types across NY. https://www.nycourts.gov/CourtHelp/DIY/index.shtml

My suggestions are based on the concept of Inducement prizes, a well known approach mostly in engineering to create a solution for a very hard concrete problem. Inducement prizes are a well known area of study. For those who want to read about the effectiveness of prize awards and competition in agriculture, this might be of interest: http://www.hbs.edu/faculty/Publication%20Files/11-118_089bff4b-868a-41f1-8f3d-351d1a58d2c2.pdf Some of their comments are of note: “Mega prizes, such as those offered by the X-Prize Foundation presuppose that inventors are incentivized by large pecuniary inducements, but R&D costs typically exceed the value of the prize”. (http://www.hbs.edu/faculty/Publication%20Files/11-118_089bff4b-868a-41f1-8f3d-351d1a58d2c2.pdf at page 25).

Incentive prizes are not new. Two of the most famous inducement competitions include the Longitude competition of 1714 and the Orteig price. The Longitude competition led to a solution to how best to determine the longitude of a ship accurately. These were the days when the world’s travelers to and from other continents, and commerce and cargo moved exclusively through ships and thus exact location was a need. The Orteig competition was the competition that motivated Charles Lindbergh to fly the Spirit of St. Louis in 1927—the price was $25,000 in 1919. That would be equivalent to $358,000 today.

As referenced above, the most current example of inducement price competitions for a Mega prize is the X Prize Foundations. http://www.xprize.org/ This foundation runs competitions in chosen fields.

Another example of our times, might be hackathons. Many of the winner concepts developed never become products and stop at the demonstration phase. However, it is encouraging to see that some competition winners have been adopted after the competition is over, and have benefited from additional work and investments to make then real products, but that might be the exception, not the rule. http://www.connectingjusticecommunities.com/jasa-and-pbn-team-up-to-relax-in-the-den/2014/11/ This example is from the much watched Iron Tech Law Competition and class that happens each year at Georgetown law: https://www.law.georgetown.edu/academics/centers-institutes/legal-profession/legal-technologies/iron-tech/index.cfm

So how about creating a competition to reduce the intimidation level of those without lawyers in courts, make courts more transparent from the eyes of litigants, and create court systems that are responsive not just to the needs of litigants that can pay a lawyer to move their case, but also for those who are in court on their own—regardless of income or language spoken, or race and gender?

Could a major founder or a group of foundation(s) could sponsor such a prize competition, were the problem to be solved is so clearly outlined that it encourages a genuine number of approaches to arrive at the specified goal, where in addition to creativity and willingness to change, outcomes are measured, theories of litigant behavior are confirmed and tested, and the behaviors and procedures of courts are also evaluated using as the main criteria improving the access to justice and court experience satisfaction? The prize should include additional support and funds to move the project from idea to product, so that if group competes—it commits to finding a way to productize the project after they win the prize. So in effect, include some R&D capacity—and this way make sure the product does not die in what some call “the valley of death”. http://www.symmetrymagazine.org/article/february-2011/crossing-the-valley-of-death.

Such a competition will encourage collaboration between groups that serve overlapping populations—much as the SJI grants used to do in the late 2000s when SJI and LSC used to fund projects jointly.

A complex problem cannot be solved by one group or one perspective alone. Considering how law has become more complex and how much more endemic poverty is in our country, a competition like this should encourage participation across disciplines, including data scientists, behavioral change experts in the realm of public health, legal aid attorneys, legal hotline attorneys, substantive experts in those ears of law (plaintiff and defendant experience), courts, court self-help center staff and leaders, legal nonprofit technology groups, social science researchers in areas of interest (expungement, child support, juvenile dependency cases, housing/eviction, consumer law) UX designers, database experts, privacy and confidentiality experts, and maybe even some Federal experts on privacy like the FTC and the ACLU.

Crafting the call and defining the problem would not be a quick task—and would require a group of experts and thinkers to define the challenge and the concrete goals (like fly from NY to Paris). The group would need to be diverse and inclusive to arrive at a good challenge. Considering the high level of thought and expertize in our community—this could be a worthy project—and one where at the end we have one or two concrete approaches that maybe then can be deployed in other areas of the country and other areas of law.

Any thoughts and reactions on using competitions and awards to incentivize solutions to hard problems in access to justice? If you know of competitions and awards that have led to innovation, embracing change, and ongoing improvement in your state Vis a Vis access to justice, please share them.

 

 

Posted in Access to Justice Generally, Incnetives, Technology | 1 Comment

Employee Orientation Is Where Access-Focused-Institutions Might Start

Posted on May 24, 2016 by richardzorza

How does a court or other legal institution refocus itself to ensure that its mission and day to day activities are turned towards serving the litigants, rather than towards maintaining the primary focus on the interests of the institution.

Surely one way is the way that new (and indeed existing) employees are told about the institution and the potential and the responsibilities of  joining the community.

So, many might find this letter, sent to all the employees of the Johns Hopkins Hospital system, as a model to “re-orient reorientation,” and thus the organization.  (Below, I make a couple of suggestions about how this approach might work out in the legal context.)

Congratulations.

Dear Colleagues,

Patient- and family-centered care is one of the six pillars that form the foundation of the Johns Hopkins Medicine Strategic Plan. We are pleased to share that New Employee Orientation has been redesigned to focus on this strategic priority and on the definitions of our core values—be the best, be open, be a role model and be kind .  .  .  .

This has been an extraordinary effort. Over the last year, staff members met to identify important messages that support a positive patient- and family-centered experience. We appreciate the efforts of our leaders who guide the patient- and family-centered care pillar, and the collaborative work of our colleagues from service excellence, the Department of Human Resources, the Office of Diversity and Inclusion, infection control, quality, safety and other groups that have been represented in the orientation.

We also partnered with the Armstrong Institute for Patient Safety and Quality’s learning and development team to design a program that appeals to and engages adult learners. We will use videos, case studies, discussion and other facilitated interactions. Facilitators will engage new employees in conversations about what it means to work in a health care and hospital environment. Additionally, facilitators will have new employees who have experience in clinical and nonclinical positions help those new to health care understand the patient and family environment. They will learn our history and how they can contribute to delivering the promise of medicine in a patient- and family-centered way.

The result is an orientation that we believe represents a significant improvement in the way we introduce new staff members to Johns Hopkins Medicine.

The first day begins with a welcome from senior leadership. With one facilitator leading the orientation in the morning and another in the afternoon, we will then cover methods to provide the best patient and family experience such as with excellent service and Language of Caring communication skills, practice inclusion, keep our patients and employees safe, protect everyone from infections, and meet all regulatory requirements.

The second day will address broader human relations-focused issues, such as benefits, employee engagement and performance management. .  .  .  .

Feel free to solicit feedback from your employees about the new employee orientation. We will update you on the feedback we receive in the coming weeks and months. Thank you for all you do for our staff members.

For courts, such an approach would be a good opportunity to make sure that staff understood both the obligations of neutrality, and the interrelated obligation of helpfulness.  One might post the orientation introduction to that the pbulci gets the message too.

For legal aid programs (traditionally defined) there might be special obligations in dealing with the fact that most people are turned away, rather than served.

I look forward to hearing from others of how legal institutions are thinking about staff orientation and mission change.

Posted in Court Management, Medical System Comparision, Self-Help Services | Comments Off on Employee Orientation Is Where Access-Focused-Institutions Might Start

Find and Join The Patient Council at Your Hospital — a Way to Learn About User-Centered Organizations

Posted on May 20, 2016 by richardzorza

Following up on Department of Justice Access to Justice Director Lisa Foster’s recent speech, and my video on “The Litigant Voice,” I had an idea about how we can all start to think about, in Lisa Foster’s words:

What if we pressed the button on our cell phones and focused not on the [legal] 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.

Specifically, at least 20% of hospitals in the US now have some form of patient and family caregiver council (I am on the Johns Hopkins Oncology one — vision: “To integrate the patient and their caregiver’s perspective into all aspects of cancer treatment from diagnosis thru survivorship. Our goal is to instill hope and humanity in the evolving world of cancer care..”)  (By the way, the general link is a comprehensive survey of modes of patient engagement in hospitals, and includes many others, probably of which we might find suggestive in the legal context.)  In other words, these councils are trying to do just what Lisa suggests, and, based at least on my very limited experience, making real progress.

While they surely vary, the councils present an opportunity for communication between consumers and managers/providers, with ATJ folks having an opportunity to reflect on the experience of being an outsider in a powerful system. (Indeed, at a recent National Academy of Medicine meeting on the general subject, I got some mileage by telling folks that the way we got judges to think about feeling powerlessness was to reflect on their encounters with the medical system.  The point was well taken.)  I would think that self-help center staff and leaders, as well as court leaders generally, would particularly enjoy the crossover experience between our two systems.

And if there is no Council in place where you get health care, suggest it.  (By the way, if you get the feeling that having a law person around makes them uncomfortable, change hospitals ASAP.)

Lots more to come in future blogs about cross cutting ideas.

 

Posted in Access to Justice Generally, Court Management, Litigant Voice, Medical System Comparision, Self-Help Services | Comments Off on Find and Join The Patient Council at Your Hospital — a Way to Learn About User-Centered Organizations

Lisa Foster’s ATJ Commissions Meeting Speech Focuses on Big Changes

Posted on May 15, 2016 by richardzorza

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.  .   .  .

As Lisa points out, this provides enormous opportunities for the Commissions around the country, as they reach out to allies and build strategic plans, as called for in the Chiefs’ Resolution.

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?

 

 

 

 

 

Posted in 100% Access Strategy and Campaign, Access to Justice Generally, Budget Issues, Chasm with Communities, Dept. of Justice, LAIR, Legal Aid, Litigant Voice, Media, Mediation, Medical System Comparision, Poverty, Reentry, Self-Help Services, Simplification, SRLN, Systematic Change, Technology, video, White House | Comments Off on Lisa Foster’s ATJ Commissions Meeting Speech Focuses on Big Changes

The Pop-Up Book to Educate Kids (and Others) About The Courts

Posted on May 13, 2016 by richardzorza

I just posted a humorous political pop-up book idea about you know who, on my Politics and Humor blog.  It got me thinking about how to do a pop-up book for kids and adults to explain the court system.

Using the computer at the library to find information (a wheel spins to change the screens.

“Fill out” lines in a form by pulling out separate tabs.

File at the clerks office.

Help the judge put their robe on.

All stand up as the judge comes in!

Raise your arm to swear or affirm.

Give the judge the decision to read.

Etc, etc.

Anybody up for it?  Conceptual copyright reserved.

 

 

 

Posted in Humor, Public Education | 1 Comment

My Video on Five Ways to Incentivize Bar, Courts, Legal Tech and Nonprofits to Get Us to Access for All

Posted on May 12, 2016 by richardzorza

Here is my second short video, made initially for the SRLN day at the Equal Justice Conference.  This one lays out five ways to use the power and threat of regulation/deregulation, and other incentives such as the tax code, to get the players to make the kind of changes that would get us to 100% access to justice.

These ideas are laid out briefly in this post.  Here is the video.

As with the prior video, I welcome comments, both about the substance, and about their utility as discussion-stimulating tools.

Posted in 100% Access Strategy and Campaign, ABA, Access to Justice Boards, Bar Associations, Budget Issues, De-Regulation, Funding, Incnetives, Legal Aid, LSC, Middle Income, Mixed Model, Non-Lawyer Practice, Planning, Self-Help Services, Simplification, Software Developers, SRLN, Systematic Change, Tax Policy, Technology, video | 1 Comment