Marc Lauritsen Guest Post on Thinking of Legal Help System as an Ecosystem

Editor note:  This is a fascinating approach.

Legal Knowledge Gardening and Civil Justice Engineering

Marc Lauritsen

At a recent Justice for All event in Massachusetts I suggested that we consider our sprawl of legal help services as an ecosystem. That is, as a complex web of interacting organisms and environments, like a biological system. I showed this high-school-ish picture of a frog pond:

eco

My slides also included images of a spotty lawn, a wide expanse of green grass, and a verdant garden. Do any of these describe where we are or want to be?

The current civil legal assistance system here and elsewhere is clearly spotty. Barren patches and ‘advice deserts’ abound. Relatively few low-income people receive truly effective help with their essential needs. Legal aid providers and pro bono programs meet about the same small fraction of demand as they did forty years ago. And commercial solutions remain too expensive or otherwise unappealing for most people of modest means. The ‘latent’ market continues to be latent. A lot of legal work that would be useful to have done is not done because it costs more than people are able, or willing, to pay.

Unless you are well-off you are likely to have to muddle through legal problems largely on your own. Even those lucky enough to afford professional help, or to secure scarce forms of free assistance, encounter frustrating delays and inconsistent quality of service. Affluence doesn’t guarantee effective help, let alone optimal outcomes. We have deep shortages both of quantity and quality. There’s a lot of satisficing going on. And more doing without.

Lack of legal help in adversarial situations is a major disadvantage. Lack of knowledge is even more disadvantaging. If you make the right moves you may be able to make the best of tough situations. But legal strategies people aren’t aware of don’t get pursued. Rights people don’t know about don’t get exercised. Laws meant to protect people are not applied or enforced.

The failure to put a bigger dent in this problem has not been for a lack of trying. Most providers want to help everyone who needs them, but they operate in a world of puny funding and competing pressures. A blizzard of approaches have been and are being tried. If this was easy, we would have solved it long ago. Why should now be different?

If our legal help system were a spotty lawn, and money were no object, we could deploy enough fertilizer, seed, and irrigation to achieve a glorious blanket of continuous green grass. No more lifeless patches. Turf for everyone. But is that what we want? Or would that be too much of a monoculture? What about a diverse garden instead, with a wide variety of vegetables, fruits, herbs, and flowers?

In any event, it’s good to remember that we’re dealing with living systems, with all their magic and quirks. Natural systems do pretty well without organized supervision, but ones intended for human purposes tend to require proactive attention. Few today seem to have clear responsibility for the overall ecosystem.

Our justice fields need more farmers and gardeners.

Hard Stuff

An alternative conception of our legal help system is as a vast machine. A huge apparatus of reciprocating parts, institutional and technological. One with infrastructure, like a large city.

Infrastructure is more than physical manifestations like buildings, roads, wires, and computers. It includes intangibles like practices, conceptualizations, and standards.

From this perspective also the current situation here and elsewhere can appear bleak. The creaky wheels of justice turn slowly. They could use lubrication. The system is disconnected and poorly coupled. Pipes are leaky, rusty, clogged, or nonexistent.

Our delivery systems consist of complex and sparsely connected networks of providers and guiders. Big challenges include scalability and sustainability. Many efforts never scale or thrive. Hackathons yield feel-good prototypes and flash-in-the-pan pilots. There’s not enough continuity and succession planning.

Just as the justice system is dealing with more people than it can handle, it’s dealing with more suggestions for improvement than it can handle. We have a contagion of good ideas. It’s hard even for ‘experts’ to keep up with them, and people are constantly reinventing approaches without taking advantage of the successes and failures of related efforts elsewhere.

We have a knowledge distribution problem. There’s too much to know, and too little time. We’re like the apocryphal blind men around a very large elephant. Our processes for distributing knowledge and cultivating shared intentions are suboptimal.

Helping the Helpers

On the bright side, we have an abundance of organizations and efforts dedicated to helping people. Most strive for excellence, and tackle daunting problems with grit and determination. We have robust online resources and communication channels. There is a growing sense of collective responsibility to see to it that all essential needs are effectively addressed. The organized bar is stepping up with more flexible and affordable service packages. And major advances continue in applications of technology to legal service delivery. (See e.g. Practice Engineering for 21st-Century Legal Services, by Michael Mills.)

Our current infrastructure includes systems that provide legal information (like MassLegalHelp and court libraries), that help people who need legal help find help (like the Legal Resource Finder), that help provider organizations coordinate with referrers and each other (like the “Intake Update” maintained by Boston’s Volunteer Lawyers Project), and that enable lawyers to provide free legal answers online. There are shareable platforms that provide interactive interviews and customized documents (like DocAssemble.org and LawHelp Interactive.) Next generation ‘portals’ are on the drawing board at Microsoft and elsewhere.

Yet plenty of other kinds of systems and practices would make it easier for folks to avoid duplicating effort, repeating mistakes, and missing opportunities. They might include:

  • Collaborative triage systems that promote mutual education and shared rules of engagement.
  • A Wikipedia-like complex of articles that document the organizations, people, initiatives, experiments, studies, events, and publications that are afoot in the field.
  • Collaborative tools that help people make better informed choices. (See A Decision Space for Legal Service Delivery.)
  • Facilities that monitor potential sources of funding and promote early awareness of opportunities so that credible proposals and collaborations can be arranged.
  • Nonprofit and public-sector analogs to the Corporate Legal Operations Consortium (“CLOC”).

Both And

Some predict that by 2030 we will have 80% fewer cars than today, thanks to autonomous vehicles that will make transportation radically more efficient. (That will liberate a lot of parking spaces!) If a comparably more efficient ‘fleet’ arose in law, we might actually be able to give effective assistance to the 80%+ of people presently deprived of it. Are autonomous legal vehicles then the answer? Or at least part of it? (The law and policy around ‘unauthorized practice’ as relates to software remains strangely unsettled. Liberty, Justice, and Legal Automata makes a freedom-of-expression case for uninhibited artificial expertise.)

The United States is pathetically far behind many other democracies in terms of access to legal help. But that means that the opportunity for radical improvement here is immense. We could usher in a Golden Age of legal assistance. Imagine if there was a surplus of help available. The coming abundance of human time and attention (as machines take over other jobs) could reverse present scarcity. We may have a lot of time on our hands, and compete for meaning-driven occupation.

Transformational change will require new alliances of the born and the built. We’ll need to mobilize both machines and people, lawyers and other legal helpers, central resources and ones distributed among communities, cognitive and emotional resources. We’ll need a rainbow of disciplines and approaches. Designers, journalists, meta-helpers. Trackers as well as hackers.

An ideal legal help system would combine world-class logistics with high quality ingredients. It would enlist business ‘ops’ experts and apply Lean methods to lawyering and court processes. Something like the proposed merger of Amazon and Whole Foods.

If today’s sparse meadows are to become bountiful gardens our legal help ecosystem will need both park rangers and city managers, both knowledge gardeners and civil engineers. These are some of the vocations we should cultivate.

Another Editor Note:  When Marc asked if this blog had any guidleiness, I replied that he had earned he right to write whatever he wanted.  Now you see why.

Posted in 100% Access Strategy and Campaign, Access to Justice Generally, Guest Bloggers, Science, Systematic Change

Illinois Strategic Plan Combines Principles, Initiatives, and Success Measures

The superb new strategic plan from the Illinois Access to Justice Commission is a model in may ways.  I want, however, to emphasize one, its structure.  This approach gives them, and us, a strong and effective document that will serve over thime.  The Principles are as follows:

  • Plain Language Principle: Court users should have access to a wide variety of plain language resources designed to help them understand and exercise their civil and procedural rights and reduce the number of barriers encountered while using the court system.
  • Process Simplification Principle: Court users should find that court procedures and policies are streamlined and efficient to allow for a positive user experience with the court system while still preserving substantive and procedural fairness and due process rights.
  • Procedural Fairness Principle: Court users should have access to a court system that serves as a fair, impartial, and transparent forum in which they are addressed with dignity, respect, equality, and professional courtesy by all judges, circuit clerks, and other court staff .
  • Equal Access Principle: Court users should have access to justice through full participation in the judicial process, regardless of their socio-economic status, English language proficiency, cultural background, legal representation status, or other circumstances.
  • Continuous Improvement Principle: The ATJ Commission should strive for continuous improvement and increased capacity to best meet the diverse and constantly evolving needs of court users.

Courts everywhere could do far worse than engrave this on the front hallway wall just after, or indeed just before, security.

Then for each principle, a set of one or more specific initiatives are laid out. For the first Principle:

Initiative 1: Develop, automate, and translate standardized, plain-language legal forms and other resources for areas of law frequently encountered by self-represented litigants into commonly spoken languages.

• Initiative 2: Support the continued and expanded use of court-based facilitators/navigators, including JusticeCorps, and evaluate the effectiveness of these services as a means to assist self- represented litigants and contribute to the efficient operation of the Illinois courts and study how to make facilitators/navigators most effective.

• Initiative 3: Evaluate the self-help services that are currently available through courts in Illinois, including court websites, and recommend policies that promote effective and efficient services.

The ways of implementing these are then laid out in detail in the Plan.

Now, and this is most radical, the Plan then proposes for each Initiative a definition of success.  Here is the forms one, in the plain language initiative.

Forms are standardized, written in plain language, simple, self-explanatory, actionable, multi-lingual, accessible, fillable, savable, printable, and available in both electronic and print versions. Moreover, self-help information is available, simple, easy to understand, consistent across courts and technologies, and able to provide a roadmap of court procedure. Judges, circuit clerks, court staff, legal aid attorneys, and other stakeholders are familiar with the standardized forms and other self-help resources and regularly refer self-represented litigants to them.

Note that while these definitions are not themselves numerical, they are easy to convert into numerical measures.  How about:

The percentage of forms, availability of information, extent of staff understanding, and actual offers, weighted by the frequency of need for use, of forms that meet this standard.

Here also is the definition of success for the simplification initiative,

Court users will find some cumbersome rules and procedures have been simplified and streamlined to improve access to the courts and compliance with procedural requirements. A triage system will be implemented in some pilot sites with high volume civil dockets with the goal of improving judicial efficiency while ensuring that litigants obtain a procedurally fair outcome. Simplification efforts will be evaluated regularly to determine if additional modifications are needed.

As is appropriate for such a new area, there is more wiggle room here.  But is it not hard to imagine this being converted into a stronger definition in the future.

The Plan includes budget and staffing recommendations, which are very reasonable and manageable, as well as detailed information bout each of the initiatives.

I would note that the great thing about a principles-driven approach is that when disputes arise, the principles provide a way of resolving them, just like with a Constitution.

I would urge that all states look at this one very carefully.

I only wish I could say that I helped write it!

 

 

 

Posted in 100% Access Strategy and Campaign, Access to Justice Boards, Access to Justice Generally, Communications Strategy, Court Management, Outcome Measures, Plain Language, Planning, Research and Evalation, Rules Reform, Self-Help Services, Simplification

Contribute to a UK Survey of Law Schools and Access and Technology

Richard Moorhead, a longtime UK and international expert on legal aid, innovation, and technology, is gathering information on the role of law schools in spreading these ideas.

As Richard puts it:

So I am asking you, if you are in legal education, to help me collect some information on what is already happening in the nation’s law schools (and I am defining nation as meaning the UK here but really would be delighted if others wanted to join in).  If you are willing (and you can provide your information confidentially) I will publish a summary and if you are keen, I will try and organise a way of bringing all those interested together to discuss progress and problems in this area.

Richard is dong this in part to enrich the discussion triggered by a blog post by the equally expert Roger Smith, arguing that:

Proposals  by the Solicitors Regulation Authority (SRA) to upend the traditional organisation of legal education in England and Wales offer the opportunity for discussion of the importance of covering the impact of technology on the training of lawyers. The SRA intends to end the autonomy of law schools to pass students for both the academic and practical stage of qualification. In its place will come the return of nationally set tests – the Solicitors Qualifying Examinations Stages 1 and 2. It is vital that both reflect the degree of change driven by technology in the legal profession.

Domestic English law schools have been rather slower than their American cousins in absorbing technology into the syllabus. Richard Susskind reports ‘with a heavy heart’ that ‘not a single law school in England can boast of a centre focusing on either the future of legal services or the role of technology’ in the recently released second edition of his Tomorrow’s Lawyers: an introduction to your future (OUP).

I am less convinced that we deserve these plaudits, although Roger’s listing of things we are dong here is impressive, and worth a read.

The survey is here.

Posted in Access to Justice Generally, Bar Associations, De-Regulation, International Cooperation, International Models, Systematic Change, Technology

Tribute to Judge Fern Fisher On Her Retirement From The New York Courts

Judge Fern Fisher of New York has been a stalwart of the national access to justice movement.  See here. for how frequently she has appeared in this blog.

So her retirement from the courts is a sad moment.

FullSizeR

Based on a video I made, my tribute to Fern was read at her retirement party.

Here is the full video:

We look forward to new great things, including from her new base at Hofstra Law School, as Special Assistant to the Dean for Social Justice and Public Interest Initiatives.

fern-fisher

Posted in Access to Justice Generally, Incubators, Transitions

Opportunity To Suggest Improvements to Washington State Access to Justice Principles

I was the consultant to the Washington State Access to Justice Principles back in the early days of this century.

Now a process is underway to update and improve those principles, which were issued by the State Supreme Court in the form of an Order (see below link).  It takes no brilliance to know that risks and opportunities have changed in the last thirteen years!  Among them are the movements for nonlawyer practice, simplification, remote service delivery, triage and 100% access to justice.

Here is the call for comments and ideas passed on by Claudia Johnson:

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WA State is revising its Access to Justice Technology Principles

The Tech Committee of the Access to Justice Commission here in Washington State is collecting feedback to redo the Tech Access to Justice Principles  here in WA State.

As you know–our Principles  were issued in 2004 and adopted through a Court Order. Their release and adoption lead many others to release similar standards. https://accesstojustice.net/2011/09/20/california-courts-seek-comment-on-draft-principles-on-technology-and-access-to-justice/

Considering that so much time has elapsed, and how technology has improved and changed and become part of delivering legal services, we are now revising them to include the new ways technology is being used to increase access to justice.

This process started last Fall of 2016–a the 2016 Access to Justice Symposium in September 2016. http://www.atjweb.org/technology-justice-symposium/

Based on input at that meeting and to continue this important work the working group has created a survey to collect feedback on how the Principles can be improved and clarified, so that they can serve us well into the future.

We solicit feedback from all who are interested in the overlap between technology and legal services delivery. We request that before answering the feedback, to please the current Principles here to get a sense of how they are organized and what they cover: http://www.atjweb.org/read-the-principles/

And then answer the survey here:http://www.atjweb.org/atj-site-survey/

Once we conclude the feedback collection stage–we will reconvene and start drafting the revisions. The group welcomes examples from other states or countries, also information on best practices, examples, areas of concern, information on case law or ethics decisions, or state bar rules, and anything else people think it might be helpful for the group to consider in reviewing the Principles.

Thank you for helping us keep the Principles relevant and up to date,

Posted in Access to Justice Boards, Remote Services, Research and Evalation, Science, Security, Self-Help Services, Simplification, Systematic Change, Technology, Triage, Usabilty

Video of Mary McClymont on Importance of Justice For All Innovations For Every Substantive Issue

Recently, I blogged about Mary McClymont’s moving and wonderful speech when she got the Champion of Justice Award.

Now, here is the video.

Some of the key text:

.  .  .  there is good news: the crisis has given rise in recent years to an array of innovations to help serve more people who cannot afford a lawyer—such as assisted self-help services, online information and forms, and non-lawyer specialists. When properly coordinated and resourced, these solutions can work together to serve millions more people and make possible a system that provides effective legal help to everyone—when they need it, and in a form they can use.

There is a movement for transformative change underway which includes more than the usual suspects: The highest level—chief justices of the state courts— have recently issued a clarion call for meaningful access to justice for all using a full spectrum of these services and innovations: they have asked leaders in each state to unite across organizational boundaries to make it happen.

The vanguard of this movement has issued a rallying cry of “justice for all” and not just for those who can afford it. I hope all you champions of justice in the room will hear and join in that cry and think how you can contribute to this critical need.

I would encourage the wide use of this video with multiple constituencies:

With potential funders because it uses their language

With boards because it frames things in ways that broad audiences can understand

With court and community based organization staff because it helps get them beyond a narrow view of mission

With policy advocates in non-legal areas because it emphases the links to their worldviews

With Access to Justice Commissions because it should help them embrace  broad common view of larger mission.

With law students to show what this is all about

With pro bono lawyers to expand their view.

Enjoy.

 

 

Posted in 100% Access Strategy and Campaign, Access to Justice Boards, Access to Justice Generally, Bar Associations, Communications Strategy, Court Management, Funding, Law Schools, Legal Aid, Media, Political Support, Poverty, Public Education, Public Welfare Foundation, Self-Help Services, Social Workers, Systematic Change

Job Opportunity at Harvard Law Access to Justice Lab

As many of you know, the Access to Justice Lab at Harvard Law School is an initiative to try to further evidence-based thinking within access to justice and court administration.

It focuses on conducting randomized field experiments to find out what works and on incorporating lessons from non-law fields into law.

It has randomized experiments underway on self-help with the legal aspects of debt, pretrial risk assessment scores, reduction of debt collection lawsuit default rates, divorce, and federal court mediation, with projects on triage of domestic violence victims and service of process in guardianship proceedings in planning.

The A2J Lab is looking for a full-time researcher.  For details, please see here or here.

Posted in Law Schools, Metrics, Outcome Measures, Research and Evalation, Self-Help Services