SRLN Announces Forms Competition

The SRLN Forms & Technology Working Group is holding its first ever Civil Legal Problems Forms Contest.  There are two categories in the competition:

  • Best Static Form
  • Best Automated Form

This is a great opportunity to be part of an energizing conversation within the court and legal aid access community about how to make forms (both static and automated) much better.

Given the huge role of forms in ANY innovation, this really has to be seen as a foundational project for any access to justice improvement.  To quote, in part, the Justice for All Guidance:

Twenty years of experience have taught us that it is almost impossible to deploy any innovation for court users without getting standardized forms in place. It has also taught us that the language and design of the forms are critical. Without such forms, self-help centers are only marginally useful, judges cannot know what questions to ask, and all but the most educated and confident litigants are effectively prevented from generating the documents that the rules require them to use.

 

As with all its components, the JFA Guidance includes a forms sufficiency assessment tools.

The Guidance also lists the following as the key elements of a full successful initiative:

  • Implementation of standardized plain language forms
  • Protocols for assessing and updating forms
  • Testing for comprehensibility and usability
  • Form data integration with the court information system

The deadlines for submissions for the competition is May 1, 2017, and link for submissions is here.  Winners get a free registration to the nex SRLN Conference

Go to it, folks.

Posted in 100% Access Strategy and Campaign, Access to Justice Generally, Document Assembly, Forms, SRLN

Another “Roles Beyond Lawyers” Evaluation Adds To the Very Encouraging Mosaic and Highlights Need For Replication Support

This week, the Preliminary Evaluation of the Washington State Limited License Legal Technician (LLLT) program, performed by the National Center for State Courts and the American Bar Foundation, was released.  The basic idea of the program is to permit certain highly trained nonlawyers to perform tasks traditionally viewed as limited to licensed lawyers.  The intent is to reduce the costs of access to justice.

The project should be seen as a companion project to the differently conceived New York Court Navigators program, the evaluation of which was performed using the same Framework.  The New York project is  evaluated here.

Here is the  important and very positive bottom line from the new Washington State LLLT Evaluation:

The LLLT program offers an innovative way to extend affordable legal services to a potentially large segment of the public that cannot afford traditional lawyers. While the scope of the role is limited and will not be the answer for every legal problem, LLLTs definitely can provide quality legal services to those who need it and also significantly reduce the stress of navigating a foreign process that is complex and daunting.

The LLLT program also offers the possibility of improving the quality of filings in court cases involving self-represented litigants and thus reducing the time and cost required for courts to deal with such cases. The Washington State example suggests that LLLTs and lawyers may form mutually advantageous business relationships, making referrals to each other as appropriate. Since LLLTs appear to assist customers who could not afford lawyers, they do not compete directly with lawyers.

This program should be replicated in other states to improve access to justice. As experience is gained and its program design is optimized, affordable legal services should become widely available to those with needs in areas where the public typically must now use self-representation. By offering low cost legal services, state bar associations will be able to compete directly with for profit businesses operating outside the regulatory umbrella of state justice systems. By doing so, they can ensure that the public has access to quality legal services.

I would urge everybody to read both evaluations.  But it might be helpful to start to pull together some overall lessons from the two together — and indeed from the emerging pattern around the country.

Roles Beyond Lawyers Work

Both pilots, one allowing license non-lawyers to enter the market, and one using non-lawyers to provide support, including the courtroom, but for free, are successes.

Opposition is less than expected

While both evaluations report some initial uneasiness, both seem to have achieved general acceptance.  This should give some reassurance to those still holding back on introducing an innovation.

There is opportunity for a wide range of experiments

While we only have two evaluated experiments — New York and Washington State — the general findings about utility, acceptance and impact on access to justice in these two very different contexts strongly suggests that there is room for many other kinds of expansion of the work that nonlawyers are permitted to do, and the kinds of contexts in which it is appropriate.

Training, supervision and approval structures are important

In Washing the cost of establishing the program was high, and ongoing costs of education continue to be a concern. In New York, the impacts (and indeed even the goals) were closely tied to extent of, and investment in, training and supervision.  So new experiments would do well to pay particular attention to these aspects of the design — including perhaps experimenting with several different models at one time.

The kinds of tasks appropriate for such roles is only just beginning to be explored

Given the success of these projects , even with with somewhat limited authorization of tasks, there is every reason to believe that the programs would be even more effective if they authorized a broader range of tasks to be conducted by the nonlawyers.  The decision about the scope of such expanded roles should be based on the extent to which the education provided and other protections ensure that the nonlawyer can and will perform authorized tasks appropriately.  It should not be driven by a desire to protect the profession.

As we simplify systems, such roles will become even more appropriate

This is really obvious.  Right now, certain roles may not be appropriate for nonlawyers because they are so complex and/or uncertain.  So simplification gives yet another benefit by making it possible to have related tasks performed by less hyper-trained people.

Ongoing networking and advocacy among those conducting these programs, those planning them, and those considering them should be a high priority for all

This is a task that will take leadership and incur costs.  It is not fair to expect the pioneer states to absorb this burden.  Tasks will include organizing presentations at access to justice gatherings, supporting day to day networking and calls, developing materials (including videos), encouraging research, and advocating for the idea.

A particular priority should be integration into the Justice For All 100% Strategic Planning Processes

Now that we have two evaluations essentially putting American Bar Foundation and National Center for State Courts imprimaturs on this general approach, and indeed two specific implementations, there is just no reason not to consider this as one of the components of the full Justice For All System, as called for by the Chief’s Resolution — subject of course to triage assessment of appropriateness in particular situations.

The evaluation framework Works, and should be broadly used

The framework, while drafted initially for “Roles Beyond Lawyers, is in fact approariate, in my opinion for all access to justice innovation evaluations, and should be used whenever possible.  As here, such use will facilitate comparison and the building of an actionable overall picture.  Focusing on the three issues of Efficacy, Effectiveness and Sustainability, is a brilliant breakthrough that covers everything.

Finally, huge thanks to the Public Welfare Foundation, in the lead as always, for supporting the development of the Framework and its application to these two projects.

Disclosure: I have been involved in multiple ways with these projects.

Posted in 100% Access Strategy and Campaign, Bar Associations, Court Management, De-Regulation, Law Schools, Legal Aid, Legal Ethics, Mixed Model, Non-Lawyer Practice, Public Welfare Foundation, Research and Evalation, Systematic Change, Triage | 1 Comment

Nevada Shows It Is Time for Another Shot at the Equal Rights Amendment

I have been thinking for a few days that maybe it was time to think about a new initiative to pass the (gender) Equal Rights Amendment (ERA).

My thought was that the last failures to reach the required three quarter of states threshold were in part caused by the then superficially appealing claim that there was no need for such a constitutional change because of the idea of equality was both accepted and enshrined in law.

Well, whatever the truth of that back in 1982, the last year or so have shown the utter speciousness of that argument.  Things we thought were settled in this area just are not, and hostility to women’s rights remains a real and appealing force.

The news is that yesterday the Nevada Legislature actually passed the ERA!  (Some technical fixes, due in the next few days, are still reportedly needed.)  So, we need only two more states to get to the point that enough states have passed it that, had the enabling legislation not had a 1982 cut-off, the Amendment would have gone into force.  That does not make it the law, but would give the effort huge additional force.  As the LA Times also reports:

This year, Nevada was one of eight states with resolutions calling for ratification. But in six of those states — Utah, Arizona, Missouri, Virginia, Florida and North Carolina — at least one house of the legislature is controlled by Republicans, who have opposed ERA ratification.

Actually, I am somewhat surprised that the the Republicans continue affirmative opposition.  It seems to me that this is the perfect wedge issue, in that the Republican voters must be split on this issue.  Moreover, drawing national attention to it would be disastrous for the party as a whole, even if in some states it is still less toxic a position for them.  Amazingly, while being introduced every year into Congress, there has not been a floor vote since 1983.  Moreover, some non-ratification states have passed state versions.  Indeed, while some want an approach that removes the 1982 deadline by statute, I would argue that forcing Republicans in states that had already ratified to take stand again would be far more effective politically, and perhaps create unstoppable momentum very quickly.  For national figures this would be about as no-win as you can get.  (I wonder if there has been any poling on this recently?)

With so much at stake, one can see why this is not getting the attention it deserves.  But, I suspect that many newly angry women (and men) would find opposition to the ERA beyond their understanding or acquiescence today.

Lets hear it from, for, and in support of, Nasty Women.

Wikipedia has a good history of the ERA.

Update:  On March 25, the New York Times posted an editorial on the same subject.

 

 

 

 

Posted in Constitution, Discrimination, Supreme Court

A Tool For Assessing SRL Hearing Quality from the US Dept. of Labor

As state start to think about evaluating how their judges do in cases without lawyers, this might be a useful starting point.  It is US Department of Labor Handbook on measuring hearing quality in unemployment hearings (in which the vast majority of claimants, and many employers do not have representation).  The link is here.

At least initially, such evaluation might well be a general statewide self-evaluation, rather than any attempt to get a  handle on individuals.

By breaking down specific kinds of behavior and hearing attributes which might be assessed, the Handbook might offer a useful beginning.

Here are the areas for which scoring systems are recommended:

decision-ass

For example, here is the scoring system for the administrative judge explanation of the process (#1):

CRITERION 1: PRE-HEARING/PRE-TESTIMONY EXPLANATION.

PURPOSE – At the start of the hearing, the hearing officer should clearly explain the procedures to be followed. The elements shall be covered in the recorded prehearing explanation or opening statement. The explanation must be clearly stated and delivered in an understandable manner.

SCORING SEGMENT

Good (6):  After recording began and before testimony was taken, the hearing officer clearly explained the hearing procedures. This explanation included: (a) the order of testimony, (b) the right to question witnesses, and (c) an opportunity for each of the parties to ask questions about the hearing process or procedures.

Fair (3):   The hearing officer allowed an opportunity to ask questions about the hearing process or procedures, but did not explain all of the elements (a) through (c). Unsatisfactory (0):  The hearing officer did not explain the procedures or did not allow an opportunity to ask questions about the hearing process or procedures.

While, obviously, this whole issue is very very sensitive indeed, we have to recognize that cases without lawyers provide particular quality challenges.  When there are two lawyers in the room, it is a reasonable bet that a) the judge will be aware of the possible consequences of sub-par performance, and b) that serious problems will ultimately be bought to the relevant authority.  However, when there are no lawyers, things may be different.  (I remember appealing a parking ticket in San Francsico in the 1970s, and hearing the hearing officer, a retired cop, comment to a different appellant that, “I do not believe the officer would have issued a ticket if you had done nothing wrong.”  So much for neutral judging.

So, we need some method of quality control, and a system like this, in place in all states through US government standard setting for unemployment hearings, is a good place to start the discussion.

 

 

 

Posted in Administative Proecdure, Judicial Ethics, Metrics, Research and Evalation | 1 Comment

Yet Another Way to Challenge the Legal Sufficiency of the Trump Presidency — Competency to Sign Orders and Bills

There has finally started to be some attention to the 25th Amendment mechanism for removal of the President (Larry Tribe on MSNBC, transcript here).

The main problem is that while the VP would surely welcome such a development, can not be seen to doing so.

However, there is another legal mechanism.  Surely any document is subject to forms of legal challenge when the signatory lacks sufficient mental capacity to sign it.  And, remember, the level of capacity required depends on the complexity of the document and issues, and to a certain extent its importance and significance.

So,  what about all those Executive Orders?  What about any bill that might get passed?  How do we know if Trump had or will have the mental capacity to sign them.

Think about it this way.  As a lawyer, given Trump’s constant changes of direction, denial of reality, and inability to engage with, remember the accuracy of , and act on, facts as presented to him, would you be willing to submit his will to probate? Surely yes.  Would you tell relatives who wanted to challenge the will that there can be no case at all if lack of capacity?  Well maybe yes, maybe no.  But, more importantly, is it the case that under no theory could the case be made?  Not so sure at all.  Moreover, it is far from clear that the capacity standard for the signing of an Executive Order or a Bill is as low as that for a will.  (Think of it as a will that gives away the whole country!)

While it is hard to imagine a court ultimately voiding Trump’s presidency based on this, it is not hard to imagine this as a way of legitimately and legally drawing attention to, and promoting discussion of, the 25th Amendment approach.  Indeed, the only reason it is hard is because if the evidence started to stick together, the 25th Amendment process would kick in.

Any thoughts, folks?

Posted in Access to Justice Generally, Attorney-Client, Congress, Constitution, Supreme Court, White House

Cop House Lawyers Ordered In Chicago

This could be the begining of a major change.  As few outside the criminal justice system know, in the US most people without resources do not get to talk to a lawyer until shortly before they see a judge.

That means that opportunities for early investigation, for getting the family in for the bail hearing, for preparing arguments for ail are all lost, with immeasurable negative impacts on poor defendants.

But now, as reported by the Hufffington Post:

Chief Judge Timothy Evans of the Circuit Court of Cook County signed an order Tuesday that would make a county public defender or a designated private attorney available to anyone who is in custody at one of the Chicago Police Department’s 22 stations with lockup facilities.

It is not clear from the article if the prosecutors or police have any objection or how the assistance is going to structured and coordinated, but the overall feeling is that the ducks are in a row for this important change.  I suspect a lot of behind the scenes negotiation.

I hope it will be properly researched, and the savings in jail time documented.  If so this could be the beginning of a very major change,finally bringing the US more in line with the rest of the higher income countries.

 

Posted in Bail, Chasm with Communities, Criminal Law, Defender Programs, Policing, Public Defender, Research and Evalation

What Does It Say That Courts Records Are No Longer To Be Used For Credit Score Calculating and Reporting

What a judgment on the courts.  As reported by the Washington Post — (Kenneth R. Harney):

In a little-known policy shift, the three national credit bureaus — Equifax, Experian and TransUnion — plan to stop collecting and reporting substantial amounts of civil judgment and tax lien information on public records affecting millions of American consumers starting July 1.

OK.  But why?

In response to a request for this column, the bureaus’ national trade organization, the Consumer Data Industry Association, provided a statement indicating that the changes are part of the bureaus’ “National Consumer Assistance Plan” that follows a settlement in 2016 with 31 state attorneys general over alleged problems with credit reporting accuracy and correction of errors on credit reports.

Eric J. Ellman, the group’s interim president, said the bureaus have adopted “enhanced public record data standards for the collection and timely updating of civil judgments and tax liens.” The standards will apply to new and existing data in files and will require that the public records sources include the individual’s name, address and Social Security number or date of birth. Public records sources will also need to be updated on a timely basis to be eligible for inclusion in credit files. Most civil judgment data and up to half of tax lien information cannot currently meet these tests, according to one industry estimate.

In other words, the data is neither sufficiently identified, nor sufficiently up-to-date to be used in something as important as a credit score.

You do not have to be too much of a troublemaker to ask the obvious question:  So, how come its OK to use them for other things — like landlord eviction databases, and got knows what other purposes to which this data — now often public and aggregated — can be put to.

Surely this development makes those who make use of this data vulnerable to all kinds of claims, including defenses in particular situations, and affirmative litigation to reduce abusive practices.  And that’s without even getting into issues of warrants, arrests, fees, and the Ferguson Chasm.

This has to raise all kinds of uncomfortable questions for the courts — although it might help engender corporate and prosecutor support for court funding increases.

Good for the AGs.

(Thanks to David Udell for pointing this perspective out.  Maybe a court record reliability number should go in the Justice Index?)

 

 

Posted in Bankruptcy, Consumer Rights, Court Fees and Costs, Court Management, Debt Collction, Evictions, Foreclosure, Housing | 3 Comments