A Revolution on the Federal Judiciary About Treatment of Those Without Lawyers?

An ABA Journal article, could open a whole front in access to justice:

[Judge Posner] abruptly announced his retirement from the Chicago-based 7th U.S. Circuit Court of Appeals, effective the next day. The reason is due to “difficulty” with his colleagues over the court’s treatment of people who represent themselves, he told the Chicago Daily Law Bulletin in an email.

“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner said. The issue will be addressed in an upcoming book that will explain his views and those of his colleagues “in considerable detail,” Posner said.

Note that the ABA Journal quotes Harvard law professor Cass Sunstein calling Posner “probably the world’s most influential legal thinker over the last half-century.”

At a minimum, this may cause some in the federal system who have considered these issues as “beneath them,” to reconsider.

We look forward to the book.

p.s.  This has been a record-breaking post, thanks to Larry Tribe’s retweet.  So I am adding a link to a curriculum on the rapidly evolving topic of judicial engagement with those without lawyers.



Posted in Access to Justice Generally, Federal Courts, Self-Help Services, Systematic Change | 2 Comments

A Broader Branding Perspective for Access to Justice — Service and Change

I think it may be time to think our way through to a new and broader way we think and talk about our movement.  These suggestions are based on assumptions that I list below, that are strongly supported by the latest communications research funded by the Public Welfare Foundation .

Public Support for Major Changes in the Civil Justice System.  I believe that there is now broad public support for very significant changes in the civil justice system itself.  I believe that one, but not the only, driver of this demand for change comes from issues of access and affordability, all the way up the income scale.  (see page 23 of the research; “Half say it needs to be “completely rebuilt” or undergo “fundamental changes.””)  This support is deeply linked to growing anti-corporate feelings, and to the sense that the system is rigged.  See, e.g., strong support for “Our legal system allows the wealthy and powerful to mistreat ordinary Americans and avoid any accountability” at page 35 of research.  Support for specific reforms is listed at page 41 and 42.

Fascinatingly, that support for change varies very little when the need for additional taxes is explicitly mentioned, see page 27.)

Deep Concern About Universality.  I am certain that the public support depends on the sense that they too will get help when needed.  That is why Medicaid is now a third rail instead of a natural target.

Positive Views of Judges, the Courts, Legal Aid and Pro Bono Lawyers.  The public have strongly positive net views of all these stakeholders:  Pro Bono Lawyers, net +30, Civil Justice System, net+28, Civil Legal Aid, Net +27, the Judicial Branch, net +30. See page 21 of research.)

Negative Views of the Legal Profession.  This is in contrast, I also believe to net views of lawyers and the legal profession (Lawyers -5, Attorneys -1).  See p 21 of research.)

If I am right about these assumptions, then the public’s critiques of the system as a while is that the problem comes from the fee-for-service bar, far more than on courts and other sectors.  That leads to an additional important conclusion.

Messaging.  I think we tend to use inadequate messaging techniques.  We refuse to talk about our own critiques of the system, how it is “rigged” and our alliances are designed to change it.  We do this not because of incompetence on our parts, but because we are a) fearful of alienating by seeming overcritical, or b) worried about keeping specific institutions such as courts or the bar happy.  I think that if we faced up directly and honestly to those concern, we might find ways to transcend them.

If I am right about this, then we have far more freedom of maneuver than we realize in appealing together with the courts for support for the courts, and access to justice initiatives, in very close cooperation together at both the practical and messaging levels.

To be specific, the public wants the legal system to give people the help they need so that their rights are protected, they want the system reformed so that it can protect the rights of all, and they want someone (preferably everyone) to take a leadership role in ensuring that both those tasks are fulfilled.

So, again relying on the accuracy of these assumptions and conclusions, let me suggest the following messaging.  (In this piece, following the research, I have used the words “legal aid” to mean the broad comprehensive multi institution movement that includes the access components of courts as well as traditional advocacy organizations.  I continue to believe that this formulation raises problems that need to be addressed, but that is for another day.)

Legal aid is the spearhead for fundamental reform of the civil legal system.  Our effectiveness comes from the fact that we are both Protectors and Pioneers for ordinary people — all of us.  Every time a court-based self-help information program gives someone the information that person needs to present their case, we are learning how the services and process can be improved. Every time one of our non-lawyer navigators helps a person navigate their way through a barrier strewn procedural system and give that information to the judge, we are also getting information to present to managers about how the process can be simplified, and how judges can do a better job of asking questions.  Every time a lawyer stands up in court, they learn more about the problems that led to court in the first place, and get ideas for changes and now to advocate for them.  We protect ordinary folks, and we are the pioneers for the fundamental changes the system needs to fulfill the promise of laws and freedom.

Using the terms as in his para, the point is that we can not separate our protection work from our advocacy and leadership for change in the system. Now, the general public is, I think totally comfortable with this combined definition of legal aid. (note, some have suggested alternative terms for the two components, such as

Indeed, it would be fascinating to test a message that explicitly links the two ideas in this one message.


Posted in ABA, Access to Justice Generally, Bar Associations, Chasm with Communities, Communications Strategy, Legal Aid, Non-Lawyer Practice, Political Support, Public Welfare Foundation, Systematic Change | 1 Comment

Guest Blog From Claudia Johnson on Smartphone Usage

From Claudia, quoting a new Pew Report.

“As  is true of the population more broadly, smartphones play an especially prominent role in providing online access to blacks and Hispanics with relatively low household incomes. Only around half of blacks and Hispanics from households earning less than $30,000 per year have traditional broadband service at home. But 63% of blacks and 69% of Hispanics in this income bracket are smartphone owners.”

In legal aid, there is a concerted effort to make legal the information referrals and tools to be mobile first or mobile enabled designs and platforms.  States like WA and Georgia and others where on the forefront of making their legal information and referral websites mobile enabled.  https://www.washingtonlawhelp.org/

Going mobile forces you think not only about design, but also about how long people can be on a cell phone entering options or looking for information, since they are usually on the go. Can they do the task for 8 minutes? 20 minutes? Or will some stay on a tool for 40 minutes?

You also have to think about saving, downloading, and printing from a cell phone will work for those on the go–who might not be used to do this from a cell phone. Some of these issues don’t come up as often with  use is on a desktop and with an attached printer, etc.  In addition for those organizations that rely on .pdfs to provide information–this might require them to consider changing those resources to mobile enabled versions.

For groups interested in leveling the information gap this Pew Resource might be of interest as they craft their plans for keeping their online legal information relevant and accessible for ALL.

Posted in Access to Justice Generally, Guest Bloggers, Mobile Technology, Technology

A Small Caution for Trump on the Pardon Power With Respect to Federal Contempts

It does appear to be good law that even Federal Court criminal contempts are pardonable by presidents.  (I had  thought there might be a separation of power claim.)

However, the Supreme Curt has hinted, back in 1925, that a pattern of abuse could lead to impeachment.  The language might also provide some tools to persuade the Court to look differently at the Sheriff’s behavior, and any Trump pardon.

Here is what the court said in In the Matter of Philip Grossman, 267 U.S. 87 (1925)

A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor’s right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning confirmed by its common law origin and long years of practice and acquiescence.

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.
(Bold added.)

There just are not so many Supreme Court cases about impeachment, so every hint is meaningful.  This might stand for:

The proposition that use of pardons, in a pattern, could result in impeachment,

That acts that go to undermining the constitutional balance are appropriate for impeachment,

The idea hat the impeachment clause phrase “high crimes and misdemeanors,” is not necessarily limited to violations of the criminal code.

I would welcome additional suggestions.  Read and enjoy the full case.

More particularly, with respect to Arizona, the use of a pardon to undermine Federal authority is said to be particularly disturbing, for example in a “neighborhood.”   While the Sheriff is now out of power, such a pardon is far more threatening to Federal authority, than an individual violation of the law in the case the Supreme Court decided.

Indeed, a pardon for conviction for systematic abuses of governmental power in breach of the constitution would seem a classic exception requiring rethinking.

A sheriff’s county-wide pattern and practice of contempt for the constitution and the Federal Courts is far more damaging that an ongoing pattern of pardons for minor violations by individuals in a “neighborhood.”  Indeed, given that the case arose under the Prohibition Act, it is understandable that the Court felt the need to recognize that pardons might represent a threat to the enforcement of the law, and therefore hinted at remedies.



Posted in Access to Justice Generally, Constitution, Contempt, Criminal Law, Federal Courts, White House

The Charlottesville Victim Was a Paralegal

Here is my politics post in her honor:

If anyone worries about the future of the world, just look into Ms. Heyer’s eyes. (Photo from Facebook, and in other media.)


That gentleness and strength, as detailed in these two articles, here and here, is all we need.

Posted in Access to Justice Generally, Love, Race

Speculative Thoughts on Changing Lawyers in Mid-Case — Manafort Edition

I want to draw your attention to the some specific language in the Politico story on Paul Manafort’s change of lawyers, quoting a Manafort spokesman (see especially my bold language):

A spokesman confirmed the change. “Mr. Manafort is in the process of retaining his former counsel, Miller & Chevalier, to represent him in the office of special counsel investigation. As of today, WilmerHale no longer represents Mr. Manafort,” Jason Maloni said in a statement.

Now I have absolutely no factual knowledge of the situation.

However, I can not help but notice this.  Apparently, the process of moving back representation to prior counsel was not, at least at the time of the statement, complete.  But, “as of today,” WilmerHale is out of the picture, and apparently it has become important that this is made clear immediately.

Now all the media coverage has focused on the possibility that this change reflects realization of the newly serious situation Manafort faces.  But what strikes me is the apparent speed and finality of the change — so fast that the statement is issued before the retaining of new counsel is complete.  This is in direct contrast to changes made in representation of others caught up in this scandal.  Of course, in a fast moving case, in which the prosecutor has already  shown a willinness to push hard, going even an hour without a lawyer can be very risky.

As a totally general matter, it is an open secret among lawyers that “getting off a case,” is often triggered by disagreement about testimony, or representations made by counsel to legal bodies. Sometimes this can be related to prior testimony or such representations.  More specifically often the problem is the reluctance of counsel to become embroiled in knowing (emphasis added) that testimony is false.  (One might speculate that in such situations, timing can be of the essence.)

Regardless of whether any of my speculation is accurate, you can be sure that Mueller’s staff are already going through everything they have to try to figure out where any problem might be, and to then adjust their strategy.

Not good news for any of those potentially implicated.





Posted in Access to Counsel, Access to Justice Generally, Attorney-Client, Criminal Law, Dept. of Justice, Judicial Ethics, Legal Ethics

Medicaid Survival Has Critical Messages for Access to Justice Strategy

For decades, legal aid advocates were terrified of the potential political appeal and horrendous damage that block granting Medicaid would do. We feared that as a “poor people’s program” it would have few defenders and no voting clout. We were right in our fear, but wrong in the implicit anticipated outcome. That teaches us a critical lesson for an effective ATJ strategy.

Medicaid now appears not only safe but unassailable. I wish I could say that the public has gained sudden sympathy for the poor, but I am skeptical.

Much more likely is that the expansion of medicaid coverage up the income ladder, the realization of how high a percentage of the population relies on the nursing home benefit, either for themselves or a family member, and the impact of the opiod crisis, have changed the perception of the program. They have caused people to understand that for almost every family, in one way or another, this is “their” program. (Sadly, it does not hurt that opiates are now seen as a “white” problem.)

Moreover, the very strong economic interests of providers played a critical role in the alliance that prevented the immediate demolition of Medicare.

The implications are little short of obvious. Access to Justice will only move forward, and survive challenges if it is understood as much more than a poor people’s program, and if providers have strong, not just rhetorical incenties, to protect the prgram.

The further implications are also simple. Services, although no necessarily the same serices, have to provided all the way up to the income level at which people can afford ATJ serices on their own. And, the provider base has to go way beyond a fw thouant salaried lawers and advocates, to hundreds of thousands of lawyers. Moreover, this is not as difficult as it sounds. A small tax on legal fees, would suport many lower-priced lawyers doing a lot of access work.

I beleie that something similar is politically necessary for 100% access.

P. S. I would add that this approach has huge, and much less obvious, implications for branding. I will address these in a future post.

Posted in Access to Justice Generally