Jim Greiner Asks “What is Access to Justice For?”

Posted on March 28, 2015 by richardzorza

Jim Greiner, in a recent two part post for the Haarvard Law and Policy Review (here and here), urges that we need to decide what we are trying to achieve in our access work.

He points out that without a clear sense of goal, we are making strategic decisions without being guided by any sense of purpose.  He gives as an example the question why do we do debt collection work.

If the purpose of providing litigation defense to debt collection defendants is to keep the defendant from having to pay the debt, there’s a far, far, far cheaper way to do that:  Just buy the debt the plaintiff is suing on.  Buy the debt on the open market, and then forgive it by telling the alleged debtor that she’ll never have to pay.  You can probably do that for, say, five cents on the dollar.  So you can buy (and then forgive) a $2,000 debt for $100.  Is that more efficient than litigation defense?  It almost has to be.  When you think about what a litigator needs to function (computer, printer, IT support, office, transportation, salary, benefits, administrative support, etc.), it’s hard to think of how one can produce a functioning litigator for less than (this is a blind guess) $60,000 per year.  And how many $2,000 debt collection cases can that lawyer realistically defend in a year?  300?  400?  For $60,000, a legal aid office could buy and forgive 600 $2,000 debts.  So, the best thing to do for the legal aid office is not to hire a lawyer; rather, the best thing to do is to buy debts on the open market and forgive them.  You get twice the bang for the buck.

Acknowledging the incompleteness of that analysis, he goes on to discuss other possible goals such as changing the way the court system handles such cases, increasing peoples happiness, and public trust in the system — all valuable goals.  He also suggests strategic implications of such goals, including the possibility that some of these goals might not require the expensive systems of intake now in place.

Let me suggest a mode of analysis that might be quantified.  I think that most of us have a range of goals, but that the weighting of the goals varies with individuals and with institutions.  Some particularly value the anti-inequality impact of legal interventions, with some focusing on the individual impacts, and some the broader structural impacts.  Some value public trust and confidence.  Some focus on individual unfairness.  And so on.

It would be interesting, at least for research purposes, to find out the differing mix of values of stakeholders, and their estimates of the impact of the potential of individual types of cases or activities to achieve those goals.  A map of these “votes” would display a fascinating portrait of our community. (One that would not necessarily be comfortable to all.)

The next step would be to attempt to find ways to asses the impacts of potential groups of cases or activities, based on that map, to be used, in combination with an analysis of strategies and opportunity costs, in priority and triage decisions.  (After all, in a sense, that is what we already do in community-based legal aid priority setting, we just do it instinctively.)

Such a process of analysis would lay bare the broad differences in the legal aid coalition — but it would also allow for focus on commonalities, and for respect for the fact that different stakeholders and institutions can have different focuses, yet work together, particularly on certain strategies.  And it might lead to some surprises.  Maybe some of the banks that support access to justice do understand that too much inequality is a risk to stability!

Thanks, Jim, for getting this discussion started.

 

 

 

Posted in Funding, Research and Evalation, Systematic Change | Comments Off on Jim Greiner Asks “What is Access to Justice For?”

Please Help Mitigate Downside of Headline of Excellent Washington Post Article on NonLawyers

Posted on March 15, 2015 by richardzorza

Robert Ambrogi has an excellent article in today’s Washington (DC) Post on the Washington State Limited License Legal Technicians initiative.  Anyone interested should read and share.

Nothing in this post should be read to undercut the conclusion that this is a very important initiative that is creating a new profession that will be able to provide extensive access to justice services and do so in the marketplace in a fully sustaining way.

However, sadly, the positive impact of the article is dramatically undercut by the headline: Who says you need a law degree to practice law?

The risk, perhaps obviously, is that the article is suggesting the full and complete de-regulation of the practice of law, which is not what is being talked about at all.  The perceived suggestion might ramp up anxiety in the bar, even though the concept is currently moving forward with general bar support — and indeed in Washington State is being administered by the Bar itself.

The article itself does explain the limits of the initiative:

There are some limits. Washington’s LLLTs will be restricted to family-law issues, though administrators may eventually expand the program’s purview. And they can’t represent clients in court.

And:

 But LLLTs won’t replace lawyers, who will still be needed when a client goes to court or confronts a particularly challenging legal issue.

In the context of the dramatic headline, it is perhaps useful, at least in conversations with those who are freaked out by the idea, that the limitations upon the activities which LLLTs are authorized to perform are significant.  As Rules 28 F  says:

. . .

If the issue is within the defined practice area, the LLLT may undertake the following:

    (1)  Obtain relevant facts, and explain the relevancy of such information to the client;

    (2)  Inform the client of applicable procedures, including deadlines, documents which must be filed, and the anticipated course of the legal proceeding;

    (3)  Inform the client of applicable procedures for proper service of process and filing of legal documents;

    (4)  Provide the client with self-help materials prepared by a Washington lawyer or approved by the Board, which contain information about relevant legal requirements, case law basis for the client’s claim, and venue and jurisdiction requirements;

    (5)  Review documents or exhibits that the client has received from the opposing side, and explain them to the client;

    (6)  Select, complete, file, and effect service of forms that have been approved by the State of Washington, either through a governmental agency or by the Administrative Office of the Courts or the content of which is specified by statute; federal forms; forms prepared by a Washington lawyer; or forms approved by the Board; and advise the client of the significance of the selected forms to the client’s case;

    (7)  Perform legal research and draft legal letters and documents beyond what is permitted in the previous paragraph, if the work is reviewed and approved by a Washington lawyer;

    (8)  Advise a client as to other documents that may be necessary to the client’s case, and explain how such additional documents or pleadings may affect the client’s case;

    (9)  Assist the client in obtaining necessary documents, such as birth, death, or marriage certificates.

Moreover, the limiting language in Rule 28 H is very explicit.  For example it prohibits LLLTs from the following:

(4)   Represent or advertise, in connection with the provision of services, other legal titles or credentials that could cause a client to believe that the Limited License Legal Technician possesses professional legal skills beyond those authorized by the license held by the Limited License Legal Technician;

    (5)  Represent a client in court proceedings, formal administrative adjudicative proceedings, or other formal dispute resolution process, unless permitted by GR 24;

    (6)  Negotiate the client’s legal rights or responsibilities, or communicate with another person the client’s position or convey to the client the position of another party, unless permitted by GR 24(b);

    (7)  Provide services to a client in connection with a legal matter in another state, unless permitted by the laws of that state to perform such services for the client;

    (8)  Represent or otherwise provide legal or law related services to a client, except as permitted by law, this rule or associated rules and regulations;

As I read this, for better for worse, this means that LLLTs are very limited, at least compared to lawyers.   LLLTs can do legal research but in certain circumstances where is goes beyond the specific authorization above,  it has to be approved by a real lawyer.  LLLTs and they can not appear in court in any way, even under the in courtroom supervision of a real lawyer.

While some of these limits may well change over time, this is a long way from what most people would understand from the phrase “practicing without a law degree” — not to mention the very careful regulatory structure put in place to ensure the quality of the assistance given.  (The rule is described in much more detail here.)  (Please note that in a prior version of this post I incorrectly stated that “LLLTs can . . . not really help [people] with major strategic decisions.”  That is not correct.)

Moreover, regardless of the ultimate way we label this —  “limited legal practice,” for example, right now we need to co-emphasize both how much help for access to justice this provides, and that this is no way undercuts the traditional role of the bar.

So when folks ask you about the article, please do emphasize the limits of what is currently getting put into place — as well as the rigor of the educational program, which includes practice area courses taught by a consortium of the state’s law schools.  But do so in the context of how incredibly valuable this initiative is.  It is particularly exciting that it is being rolled out in cooperation with Bar and law schools.

The limits listed above do not mean that research and pilots could not show that many of these limits are not needed —  and indeed I have argued for as broad as appropriate a definition of the role.  But we are far from there yet.  The good news, however is that Public Welfare Foundation has funded deep research by the American Bar Foundation and the National Center for State Courts into this initiative and the New York Navigator Project.  When completed, we will know much more about their impact, and hopefully be in a position to both optimize and expand them.

Posted in Non-Lawyer Practice | Comments Off on Please Help Mitigate Downside of Headline of Excellent Washington Post Article on NonLawyers

Building the ATJ Communication Capacity While Enhancing Public Awareness of Issues of Law and Poverty

Posted on March 11, 2015 by richardzorza

It occurred to me that the way that Voices for Civil Justice has responded to the recent Justice Department Report on Ferguson provides an opportunity to see how our access community is gaining in sophistication and effectiveness.

Those who are in the Justice Voices Network recently were invited to assist in developing the media follow-up strategy following the Report, with a focus on the role of legal aid (broadly defined) in protecting those subject to what might be called the “debtors’ prison railroad”, the process by which in jurisdictions such as Ferguson, courts use civil judgments or unpaid court fees to trigger warrants which result in incarceration because of inability to pay — a concept well familiar to Dickens, but not to those who take the Constitution seriously.

The idea is that legal aid programs will tell Voices of their efforts in this area, and that Voices will help the media find the stories and ideas in which the public will be interested.  Here is part of the solicitation e-mail:

.  .  .  [w]e know Ferguson isn’t the only place where people go to prison for being poor. We want to tell that story and how civil legal aid is involved.
So if your program, or a program you know of, is working on these issues, please reach out to us. We are interested in the full range of responses, including personal stories, new or pending legislation, creative collaboration with the courts branch – in general, any successful programs that are tackling the problem. Data showing prevalence and impact are a big plus.

The contact information on how to share this information, and also a link to join the JusticeVoices network, is here.

Sometimes, people have felt that the access to justice strategy for legal aid has tended to push aside the anti-poverty strategy.  I think this activity shows how untrue this can be.  Why, and how to integrate the two approaches, is a fascinating question.  I suspect that the key is understanding what the public as a whole thinks is an appropriate anti-poverty and anti-inequality strategy.

 

 

Posted in Communications Strategy, Legal Aid | Comments Off on Building the ATJ Communication Capacity While Enhancing Public Awareness of Issues of Law and Poverty

Why the New Judicial Ethics Rules on SRLs are Unlikely to Increase Complaints About Judges

Posted on March 9, 2015 by richardzorza

I have recently been involved in a discussion about whether rules authorizing judges to be more engaged with litigants in self-represented cases might increase complaints about judges, specifically for their failure to be more engaged.

These rules (or raher usually Comments to the Codes of Judicial Conduct (memo at link not necessarily up to date) vary from state to state, but make clear that judges “may” engage in certain forms of engagement, such as asking questions and making referrals, without being considered non-neutral.

Some people are fearful that such language will increase complaints because litigants will feel that judges should have done the things and failed to do so.

Probably the most important point to make in response to these concerns is that while many states have now passed some form of this language, we have heard of no such increases reported in any states.

Some have also made the excellent point that since these rules clarify that these practices, which most litigants find helpful, are permitted, it is likely that they may reduce, rather than increase the number of complaints.

Moreover, given that the language tends to the use the word “may” or equivalent, they tend to create discretion, rather than reduce it, thus making the chance of such complaints.

There is one caveat, which may be significant in some cases.  Since the rules/comment changes make clear that judges do have discretion to take such engaged steps, any judge who affirmatively refuses to consider the possibility that such steps would be appropriate in a case is engaging in an abuse of discretion.  “No, I am not allowed to do that.”  “The rules stop me doing that.” That is where the appellate cases are likely to come from.  Of course, a judge who explains why he does not think such a use of discretion in the circumstances of the case is appropriate will be well protected.  As always, transparency is best.

Posted in Judicial Ethics | Comments Off on Why the New Judicial Ethics Rules on SRLs are Unlikely to Increase Complaints About Judges

Exciting Job Position at ABA on Access to Justice.

Posted on March 6, 2015 by richardzorza

The ABA is listing the following job:

Director of the ABA Resource Center for Access to Justice Initiative

This position serves as the Director of the ABA Resource Center for Access to Justice Initiatives. The Resource Center, operating under the auspices and oversight of ABA Standing Committee on Legal Aid and Indigent Defendants, provides support to state supreme courts, state bar leaders and state civil legal aid leaders, to nurture the creation and expansion of state blue-ribbon commissions on access to civil justice. The position provides support for 38 state blue-ribbon commissions, and their chairs, members and staff.

Its obviously a job that can have huge impact on the ATJ movement. With the Commissions playing a larger and larger role, and the networking among them starting to have more and more impact and leverage, and with national leadership building capacity, this is a great moment for anyone interested in taking on this role and exerting leadership.

The job listing states “Job Type/Location: Full-Time; Chicago.”  Given the importance of the job, and speaking strictly personally, I hope that those responsible will interpret this flexibly.  The fact is that this is a national job, with a lot of travel, as well as the need for integration with the ABA.

 

Posted in Uncategorized | 1 Comment

Nice Development for Incubators

Posted on February 27, 2015 by richardzorza

The International Justice Center for Postgraduate Development at Touro Law Center and Lexis have announced an arrangement by which lawyers in incubator and residence type programs will get a year’s free access to Lexis tools.

This is obviously good news for the lawyers who are working with and in these programs.  It suggests that other content providers of all kinds should think of similar ways to help the incubator movement, which is spreading very fast.

Indeed, I understand that there are 160 people right now at the Incubator Conference in San Diego.

From looking at the impressive agenda for the conference, I am hopeful that it will help keep the incubator movement focused on access to justice, rather than serving the interests of law schools.  I would hate to see the movement become focused on academics or legal jobs for their own sake.  The focus on technology is particularly interesting.

 

Posted in Incubators, Meetings | 1 Comment

Tomorrow, Fri Feb 27, is Early Registration Deadline for EJC, Scheduled Just After SRL Pre-Conference

Posted on February 26, 2015 by richardzorza

Tomorrow, Friday February 27 is the early registration deadline for the EJC Conference in Austin this May.  The SRL Pre-Conference is May 6,  and the SRL Pre-Conference May 7-9.  In addition to a full day of information, engagement, and networking with other expects, the Pre-Conference will feature an early evening reception at the Travis County Law Library self-help center which will include light refreshments and be open to all EJC attendees.  I strongly encourage STL folks to use this opportunity to invite their delegation colleagues to the reception, to give them a sense of what a self-help center can be like.  The Austin program is truly a national model.

The Pre-Coference itself will include segments on:

  • Judicial Engagement: the necessary ingredient for the success of SRL services and innovations
  • SRLN Update: working groups, research, projects and new initiatives
  • Ignite sessions on forms & technology, discussion to follow
  • The continuum of services & significance of partnerships
  • Problem solving

Katherine Alteneder has done a wonderful job putting the Agenda together, and this will be very worthwhile for all, including those who are coming to the ATJ Chairs meeting on Friday and Saturday.

There will, of course, also be a significant number of SRL/ATJ sessions at the main conference.

Registration link here.

See you there!

Posted in Meetings, Self-Help Services | 2 Comments

Supreme Court Decision on Teeth Whitening Regulation Has Interesting Implications for Bar Monopoly

Posted on February 26, 2015 by richardzorza

Yesterday the US Supreme Court ruled in North Carolina Board of Dental Examiners v. Federal Trade Commission.  SCOTUS Analysis here.  Opinion here.  NYT here.

The Times story:

The Supreme Court on Wednesday ruled that a state dental board controlled by dentists may be sued under antitrust laws for driving teeth-whitening services out of business.

The decision, by a 6-to-3 vote, set standards that will most likely also apply to state licensing boards, including those for doctors, lawyers and other professionals. States often rely on such boards to decide which potential competitors may ply their trades.

What’s most significant is the analysis of the so-called “active supervision” requirement to fall within the “state action” immunity from anti-trust liability.  As SCOTUS explains:

The requirement of state supervision announced in today’s opinion applies to agencies “controlled by active market participants.” Actions taken by boards with no involvement from market participants may not have to satisfy that requirement. The opinion also identifies some factors concerning adequate state supervision. For example, the state supervisor must actually review the substance of the agency’s actions and have the power to overrule or modify the actions.

So, states can delegate to bar associations, but must actively supervise.  What is interesting to me is the idea that when a court, as in Washington, tells the bar to set up a regulatory system for nonlawyers, the court could hardly be said not to be actively supervising.  To the extent that courts may be more willing to move forward on these issues than the organized bar, this newly underlined incentive could be very good news indeed.

 

Posted in Anti-Trust, Non-Lawyer Practice, Supreme Court | 1 Comment

Nonlawyer Courtroom Navigator Follow-Up — Initial NY Report shows Value and Impact

Posted on February 25, 2015 by richardzorza

Now we can read the full Navigator Report that led NY Chief Justice Lippman to report on the success of the Project and to announce his plan to propose to the legislature “legislation this year that calls for a further level of involvement by non-lawyers in assisting litigants. This proposal would codify a more substantial role for non-lawyers by establishing a category of service providers called “Court Advocates” in Housing Court and in consumer credit cases to assist low-income litigants.”

The Executive Summary of the Report tells it all.

THE NEW YORK STATE COURT NAVIGATOR PROGRAM was begun in March 2014 following Chief Judge Jonathan Lippman’s announcement of the program in his February 2014 State of the Judiciary address.

The Navigator Program was created by the Chief Judge’s Committee on Nonlawyers and the Justice Gap in response to the need for assistance for the more than 2 million New York- ers each year who are unable to find lawyers as they navigate a complex system to deal with their legal problems. While ideally every litigant would have a lawyer to represent him or her in cases involving fundamental human needs, the reality is that many can neither afford a lawyer nor access free legal services. The Navigator Program seeks to fill that unmet need and provide support and assistance to low-income litigants.

The program provides trained nonlawyers in Housing Court in Brooklyn and in a Civil Court consumer debt part in the Bronx. The role of the Navigators includes the provision of the fol lowing types of assistance, free of charge, to litigants:

 •Preliminary discussions with litigants to listen and explain the process

• Review of the papers litigants have received and assembled to explain their relevance to the process

• Provision of information to litigants about appropriate or available court services (including interpreters)

• Description for litigants of the individuals they will see in court and their roles (e.g. judge, court clerk, law clerk), as well as likely discussion topics and the best manner of response to each

• Assistance to litigants in filling out court-approved DIY forms and help in identifying additional resources available on the Internet

• Court accompaniment, including giving notes or reminders to litigants where and when necessary

• Statements of fact to the judge, but only if asked a direct factual question by the judge

• Taking notes during any conference or hearing to discuss with litigants afterwards so that the litigants are clear about what has been said or decided and • what the litigants must do to comply with any directions they may have been given

• Some Navigators in the Housing Court, in addition, provide more in-depth service and remain with litigants to help provide needed social services, including benefits to cover rent arrears where available (see full description in Overview of program below).

This report describes the operations of the Navigator Program and includes three views — “snapshots” — of the program. All three indicate that the program provides valued practical assistance to litigants and to judges. In addition, in cases in which a Navigator was involved, respondents raised additional and more specific defenses and, overall, obtained decisions that produced a better financial result for respondents.

In the first view, 61 participants spoke directly to interviewers and answered a series of questions about the impact of the program. Every litigant interviewed agreed strongly that Navigators were helpful and courteous and understood their questions. An overwhelming ma- jority agreed that Navigators were able to answer questions and help them to understand what was happening in their cases; most felt that Navigators made them feel progress was being made. In narrative comments, participants appeared to consider the assistance they re- ceived invaluable, making observations such as the following: “wonderful program,” “good to have someone to help,” and “I wish this program were here sooner”.

The second view provides the judicial perspective. The three judges who have overseen the program in their parts participated in individual interviews; two of these judges presided over cases staffed by Navigators for almost four months each in the Bronx Civil Court, and one judge has continuously overseen the Housing Court part in Brooklyn. While there were individual differences relating to the part and to the particular types of Navigators (those Navigators that were able to provide social services assistance were more likely to help to resolve the case), all of the judges and the one court attorney who participated in the interviews were unanimous that the program has been very helpful to litigants and to the court. Litigants who were accompanied by Navigators reported uniformly that they were more comfortable, less stressed, and better able to provide the court with the information needed. One of the judges stated that the Navigator program should be considered a “necessary” component that should be expanded. All of the judges stated that Navigators had never spoken out in court unless asked a direct question by the judge.

The third view is of the initial processing and outcomes of a sample of 100 cases in Brook- lyn Housing Court. Researchers obtained data for all 35,000 cases handled in Brooklyn Housing Court between January and August 2014, and the database was sorted to match 50 cases in which Navigators were present and 50 cases in which they were not. There were a number of significant differences between the two groups of cases, including in the area of defenses raised. Respondents who received assistance from a Navigator raised a total of 205 defenses (averaging more than 4 per case), while in the unassisted 50 cases there were a total of 66 defenses raised (or an average of 1.3 per case). The types of defenses also differed significantly. The most common defense offered by the unassisted litigants was a general denial. In the cases of those receiving assistance, the most common defenses were that the litigant did not receive the correct court papers as required by law, that the litigant was not asked to pay the arrears before the court action, that the rent had already been paid, and that elements of the petition were not correct. A significantly greater number of those assisted responded that they did not receive a copy or proper notice of the petition, that the amount of rent being demanded was not the legal rent, or that the landlord had failed to complete needed repairs, provide services, or address poor conditions.

While this examination of the Navigator program is preliminary (the Navigator program will be the subject of a specific independent and comprehensive social science inquiry in 2015, as described below), our initial assessment is that the Navigator program is a valuable innovative addition to the state court system. In addition, a number of participants in both the Navigator program and the reviews made important suggestions contributing to the improvement of the operation of the program that will be implemented wherever possible. Overall, the initial findings are consistent with observations of committees, foundations, bar associations, and experts throughout the country, who have reported consistently that the Navigator model, although not a substitute for representation by a lawyer, provides a level of service that can help to promote basic fairness for people otherwise unable to receive legal assistance in mat- ters of significant consequence to their lives.

A few points bear emphasizing (disclosure: I am on the Committee, and involved with evaluation design, but these opinions are my own alone).  Perhaps for people in many states, the best way to think about this is “self-help center plus.”  These roles are best considered an extension of the services already being provided in the self-help center.  They are not advocacy, but informational, and designed to ensure that judges have as much information as possible.  These roles are not in any way in violation of statutory prohibitions dealing with the unauthorized practice of law, since that is simply not what the navigators so.  Moreover, these services are provided without fees being paid by the litigants, and the idea provides a wonderful way for social service agencies to leverage their resources and effectiveness into the courthouse.  Finally, I would emphasize to those who argue that the provision of these services had no impact, I would point to the dramatic increase in the number and specificity of defenses asserted by those assisted. by the program.

I believe that as its effectiveness is demonstrated, this kind of program will spread very quickly, and become a major component of the access solution.

Posted in Access to Justice Generally, Self-Help Services, State of Judiciary Speeches | 3 Comments

Steps Forward in Nonlawyer Innovations in New York CJ’s Speech

Posted on February 20, 2015 by richardzorza

Good news on nonlawyer innovations (which I like to call Beyond Lawyer Roles) from Chief Justice Jonathan Lippman’s recent State of the Judiciary Speech.

In our fight to close the jstice gap in New York State, non-lawyers have been an increasingly powerful force. Two years ago, I asked Roger Maldonado and Fern Schair to chair a Committee on Non-Lawyers and the Justice Gap and to explore ways that people without law degrees could make meaningful contributions to helping low-income people with legal problems. Since then, we have established programs in Housing Court in Brooklyn and in consumer debt cases in Civil Court in the Bronx.  These programs use “navigators” — trained non-lawyers — who provide an array of services, including information, guidance within the court house, and moral support.  They assist litigants in completing do-it-yourself forms, assembling documents, identifying possible sources of assistance funding, and in certain cases, accompany litigants and answer factual questions in the courtroom. The Navigators help litigants understand the process and reinforce the timetables and responsibilities as set out by the court. The Committee recently completed a report that demonstrates a marked difference in the behavior of litigants accompanied by Navigators — a greater ability to more clearly set out the relevant facts and circumstances and a significant increase in use of relevant defenses for those litigants. We have shared the progress of this program with the New York State Bar Association, which also sees the great promise of this exciting new concept.
 
I am pleased to announce today, that I intend to introduce legislation this year that calls for a further level of involvement by non-lawyers in assisting litigants. This proposal would codify a more substantial role for non-lawyers by establishing a category of service providers called “Court Advocates” in Housing Court and in consumer credit cases to assist low-income litigants.
 
While there is no substitute for a lawyer, the help of a well-trained non-lawyer standing by a litigant’s side is far preferable to no help at all. We have already seen what a difference it can make. (Bold added)

“[F]ar preferable to no help at all,” is the essence of it.  I must re-disclose that I am a member of the Committee described above, but I doubt that it is any secret that I am very proud of what it – and more importantly the Chief – have done.  Its not just a concrete innovation, but the way the Chief phrases the issue; “far preferable” is just right for the test and it can and should be applied more generally.

p.s. It is surely very encouraging that the State Bar President has been publicly generally supportive.   As a press release from the NY State Bar puts it:

In his speech, the chief judge proposed creating a Court Advocates program to assist low-income litigants in housing court and in consumer-debt cases. The court advocates would be nonlawyers-supervised by attorneys-who help guide the litigants through the court system, helping them, for example, in completing do-it-yourself court forms and appearing with them in court.

“While there is no substitute for a lawyer, the help of a well-trained nonlawyer standing by the litigant’s side is far preferable to no help at all,” said Lippman

Lau-Kee said the concept of helping low-income litigants who cannot otherwise afford attorneys has merit. “It will be presented to the Association for further review,” he added.

p.p.s  The New York Times Editorial Board chimes in (Bold Plans for New York Courts):

In his annual address on Tuesday, which received wide attention for its ideas about overhauling the way grand juries handle police-related killings, Judge Lippman addressed a range of issues. He said he was seeking a resolution from the State Legislature endorsing the principle that poor litigants in life-altering civil cases are entitled to effective legal representation, known as “civil Gideon.”

He will also submit legislation to authorize greater use of trained non-lawyers, called court “navigators,” to assist unrepresented litigants in housing, consumer debt and other legal matters. This builds on pilot projects in Brooklyn and the Bronx that have shown great promise.

This raises fascinating questions about the integration of Civil Gideon and non-lawyer service initiatives.

Posted in Non-Lawyer Practice, State of Judiciary Speeches | 1 Comment

Core Strategies for Legal System Reform

Posted on February 8, 2015 by richardzorza

I have been thinking recently about what we might think of as the core strategies for justice system reform, and here are some preliminary suggestions, on which I welcome debate:

1.     Set Ambitious Goals Grounded in Core Values and Mission

After some discussion, I offer this — By 2030, no person with a legal problem should have the problem wrongly resolved as a result of inadequate processes or access to justice services.  (It should go without saying that such services would need to be provided by a wide variety of stakeholders, and would include such things as changes in judicial practices.)

2.     When Things go Wrong, Assume That They Are Caused by a System Design Problem, Rather than a Human Failure.

One of the hardest things about working in the justice system is that its DNA has been about assigning past blame, rather than planning for the future.  Yet, in the real world of many players and endless repetition of patterns, blame analysis does not advance the cause of prevention.  It is only by asking what in the system allowed something to happen that we can make the design changes to stop it happening again.  Thus, fatality review in domestic violence cases does not replace a criminal trial, but it does help us figure out how to stop the next situation  getting to the need for a murder trial.

3.     Create a Culture of Constant Small Improvements.

Japanese automakers have achieved their impressive quality reputations by constant attention to small things, and being willing to make small changes that together add up to far higher reliability.  When we started Midtown Community Court in the mid-90’s at the end of every day the staff and the judge met to talk about what happened, about what had been learned, and about what could be done better next time.  That’s how you get it right.

4.     Don’t Be Afraid of Data, Big and Small.

It still leaves me breathless with frustration how much energy legal institutions put into making the case that data can not be trusted, that it has no meaning, and even that it is dangerous.  While all data is imperfect, and while data should be the beginning of the conversation, not the end, we will simply never get where we need to be unless we can find ways to understand what is happening in our systems.

5.     Foster Leadership.

At the risk of offending, I have to say that the culture of our communities is deeply resistant to being led.  Huge energy goes into maintaining local autonomy for courts, community-based legal aid, and others.  Yet the reality is that to be effective, you need the leveraging power of size, and you need the willingness to respond to leaders, rather than prevent them developing in that role.  (There is a reason that the EU got created — or for that matter the US.) The challenge should not be preventing the development of forceful leadership, but rather developing the mechanisms by which leadership accurately reflects a community as a whole (And there are ways in which the EU clearly has not yet got it fully right, and that it took a civil war for us to get over our biggest failure).

6.     Make Sure that Targets and Goals Are Embraced By All, and That Success is Assessed.

It is critical that every organization decides what its contribution is to the meeting of the overall target or targets should be.  Courts look at how they process cases, and whether the rules and processes minimize the risk of error.  Community-based legal aid should look at its efficiency, at its quality, and its use of resources, in terms of the goal.  Each organization sets sub-goals.  Each organization and group has to be responsible to the community as a whole for assessing progress.

7.     Don’t Be Frightened of Major Changes.

The last decade has seen a major reassessment of the requirements of judicial neutrality, a re-conceptualization of the role of court staff, and a rethinking of the division of labor between counsel and client.  These are surely just a beginning, and we should apply the same process of going back to first principles to other professional roles within the system, such as interpreters and mediators, apply the same logic to our procedural rules, and look at whether we should go even further in the areas in which significant progress has been made, such as by considering the creation of new professions that can provide assistance more cheaply.

8.     Don’t Be Paralyzed By Funding Issues.

There will never be enough money, former Chief Justice John Broderick of New Hapshire used to say, “so get over it.”  Resources follow ideas and more resources follow achievement.  Above all, we should never be fearful that success will lead to lesser resources.  Efficiency is not something to be frightened of.

Lets get to it.  I welcome more suggestions.

 

 

Posted in Access to Justice Generally, Systematic Change | 1 Comment

Child Support Proposals in the President’s Budget Would Support Research Into Innovative Approaches

Posted on February 6, 2015 by richardzorza

Mark Greenberg, Acting Assistant Secretary, Administration for Children and Families has this to say in summarizing the budget proposals on child support:

For the Child Support Program, we are renewing a number of prior proposals for efforts to ensure that children benefit when support is paid, for promoting access and visitation, and for improving program efficiency. In addition, we are proposing a $100 million per year Research Fund designed to support research on family-centered strategies and support state efforts to implement these evidence-based strategies.

 Justification of Estimates further explains the research proposal as follows (bold added):

The second new proposal for FY 2016 is the creation of a $1 billion over ten years Child Support Research Fund to encourage state IV-D programs to implement family-centered services to support parents in their efforts to support their children, and tailor the appropriate child support enforcement tools for each family. Family-centered strategies are especially needed for poor and low-income families who face multiple barriers to supporting their children. Traditional enforcement remedies are often not as effective as they could be with this population.

There has been significant underinvestment in research on child support interventions. While the field is eager for strategies to produce better child support outcomes for all kinds of families in the caseload, many child support interventions are not evidence-based and the field lacks rigorous evaluation results to guide program administration.

A limited number of demonstration projects have been implemented via a competitive grant program from OCSE. These grants have helped to build up an emerging evidence base from states in areas including employment services, early intervention, specialized case management for military members and veterans, child support savings accounts, health care coverage outreach, fatherhood partnerships, and financial education. State child support programs respond well to performance incentives and opportunities for implementing evidence-based practices resulting from research, and most states are very interested in piloting and implementing family-centered strategies, but have not had the funding to do so. The child support field has a significant, unfunded potential for much greater program research because existing small grant funds can be awarded to only a handful of states for a limited period of time. .

        .  .  .  .

The first part of the Research Fund would provide $50 million per year in competitive grant program funding (Developing Evidence-Based Research), open to state child support agencies, to test and evaluate family-centered strategies to improve program effectiveness. The evidence gleaned through the Child Support Research Fund would be used to promote continuous, incremental improvement throughout the child support program.

The second part of the Research Fund would provide a $50 million mandatory formula grant component per year (Sustaining Evidence-Based Research), to be divided among 54 state child support agencies on an ongoing basis. This grant program is designed to encourage states to incorporate evidence-based approaches and assure that families in all states have the opportunity to benefit from family-centered child support services. Each state would receive an allotment based on the percent of children in the state who are eligible for the IV-D Program (that is, the percent of children who live apart from one or both parents). A minimum state allocation could be created to ensure adequate funding levels.

While the chance of initial enactment may be small, given the chaos in the budget making process on the Hill, it is surely good news for the future that the administration sees the value of evidence-based research in this area.

In the long term this potentially $100 million a year fund could lead to very significant research opportunities for courts and other access to justice agencies that have established partnerships with their state child support agencies.  One could imagine this project funding a wide range of experiments in adjudication, self-help, Turner compliance, counsel, nonlawyer help, etc.

Given the generally bipartisan support for child support programs, this is one of those areas in which things might move forward faster then one might expect.  The ultimate impact on a massive program, impacting millions of lives, could be enormous.

Finally, I would note that the potential availability of this innovation money provides yet another incentive for the courts to enhance their relationships with child support programs, and engage their state programs with the design of court innovations.

 

Posted in Child Support, Funding, Research and Evalation, Self-Help Services | 1 Comment

President’s Budget Proposes Civil Legal Research and Civil Legal Aid Competitive Grant Program

Posted on February 4, 2015 by richardzorza

Two important development for the future in the federal budget process.  While these proposals are unlikely to be sucessful tis year, they help create the environment thefuture, and can also be cited for the position of the Executive as to need and ohilosophy.

The president’s budget (portion from fact sheet below at p. 194) includes a request for $3.0 million for research on indigent defense strategies, and for $2.7 million for civil legal research to be managed by NIJ in cooperation with DOJ’s Access to Justice Office.

Within the $16.5 million requested increase, 5.0 million will fund the Collecting Digital Evidence Initiative in order to improve the means to conduct digital forensics of large-scale computer systems and networks; $3.0 million will fund Social Science Research on Indigent Defense, which will include evaluations of current strategies for indigent defense, as well as research and development to generate new research-based strategies for strengthening and safeguarding indigent defense in the U.S.; $2.7 million will support Civil Legal Research , which will be managed by NIJ, in coordination with the Department’s Access-to-Justice (ATJ) Initiative Office; and $5.8 million will support NIJ’s base set of programs, which support criminal justice-focused social, physical, and forensic science research.

 It is potentially very important for the future that DOJ adds the following language to the fact sheet describing changes required in the appropriation language to permit the civil research.

Currently, NIJ’s ability to examine the broad area of civil justice is limited by its authorizing statutes; it can conduct research on civil justice issues only when they “bear directly and substantially” on or are “inextricably intertwined with” criminal justice issues and criminal justice administration (42 U.S.C. 3789n). As part of the FY 2016 Budget proposal, the Department is requesting new appropriations language that will ensure NIJ has the necessary authority to successfully carry out the new civil justice-related programs mentioned above.

Even if the requested additional money were not allocated, maybe such a language change would help permit more flexibility in current grant flows.

The President is also asking $5.0 million for a competitve program of grants to support civil legal aid planning processes, system improvements, and innovation (at p 245 of the Fact Sheet.)

In FY 2016, the President’s Budget requests $5.0 million for a Civil Legal Aid Competitive Grant Program. This program, which will be administered by the Bureau of Justice Assistance (BJA) in collaboration with the Department’s Access to Justice Initiative (ATJ), will provide funding, training, and technical assistance to incentivize civil legal aid planning processes and system improvements, supporting innovative efforts to improve and expand civil legal assistance services at the state, local, and tribal levels.

 It should be noted that the phrase “civil legal assistance services” in this description would support a broad definition of “legal aid” in any ultimate grantmaking — one not limited to lawyer-only services or to specific organizations.  Similarly, it is helpful that the impact on performance discussion (at p. 246) includes reference to “leverag[ing] existing legal aid nonprofits, state courts, local bar associations, technology innovations, law schools, and pro bono programs to develop innovative models that make use of public/private collaboration.”

The Civil Legal Aid Competitive Grants Program can be used to promote a “race to the top” for access to civil legal justice that would challenge state, local, and tribal governments to develop truly integrated civil legal aid systems. These systems will leverage existing legal aid nonprofits, state courts, local bar associations, technology innovations, law schools, and pro bono programs to develop innovative models that make use of public/private collaboration. By requiring an evaluation of each project funded by this program, OJP will also further the Administration’s efforts to use evidence-based decision-making to improve results. This program offers the Department an opportunity to provide national leadership in the area of civil legal aid programs and help state, local, and tribal grantees to adapt their own blueprint for building integrated civil justice assistance systems in their jurisdictions through the lessons learned.

 Much of the remaining narrative discuses the extent and consequences of lack of representation, and that should be considered as  designed to underline the need.

Of course, the focus on integration is particularly helpful in terms of encouraging a triage and continuum of services approach.  ATJ Commissions should shurely be focusing on all these aspects of the future, including the possibility of this supportive Federal role.

Change is slow, but this is what starts to happen when you have an institutionalized office with dedicated and energetic staff.

 

Posted in Defender Programs, Dept. of Justice, Funding, Triage, White House | 1 Comment

A Humorous Aside on Car Safety Technology — Back Seat Driver Assist and More

Posted on February 2, 2015 by richardzorza

I recently blogged about one car company’s safety goals, and how that might be a model for access to justice goal setting.  That set me thinking about more advanced technology, going beyond such things as collision avoidance and blind spot monitoring.

Here are some of the next generation technology, supposedly under development.  Perhaps not the best recipe for safer roads!

Back Seat Driver Assist

Back Seat Driver Assist (BSDA) makes suggestions to the back seat driver on “helpful” comments that might be made to the driver, based on road conditions.  (The back seat driver chooses between two modes, one triggered by actual intervention situations and one those merely intended to be irritating.)

An advanced “Restrained Mode” prompts the backseat driver when he or she can say something like “I held back when you crossed the yellow line, three, five an seven minutes ago, but this is the fourth time.”)

An even more fully automated mode allows the backseat driver to train the software to speak in his or her own voice.  Then the backseat driver can go to sleep, secure in the knowledge that the driver will receive appropriate comments.  Upon awaking, the backseat driver can review the comments made for future reinforcement.

Baby Mute

Baby Mute (BM) allows the driver to trigger an alcoholic mist in front of baby’s face when needed.  An advanced BMBM more triggers automatically even before baby starts to fuss from a dirty diaper.

Aggressive Driving Package

While most software is built to enhance defensive driving, unfortunately it is far from clear that this will be appealing to the full range of drivers.  Thus the Aggressive Driving Package (ADP) will appeal to a broader range of drivers with features such as those that allow the pedestrian and bike avoidance tools to be redirected to attack mode. (Of course, this mode may be of less appeal if the car’s computer keeps track of usage and impacts.)

There’s also a feature that responds by breaking when people tailgate.

Programmable Personal Driving Style

PPDS pemits the driver to choose from pre-programmed driving styles such as NGWTM Never Give Way to a Mercedes) or PKTAS (Be Kind to Obama Supporters) which look for car brands and bumper stickers and the like, and adjust in accordance with the drivers instincts.  It is even rumored that Consumer Reports will be testing wich cars are better at detecting red or blue voters.  You can also create your own programs from such variables.

Thinking about all this makes we think we will probably be safer with completely driverless cars as soon as possible — but we all knew that already.

Posted in Humor | Comments Off on A Humorous Aside on Car Safety Technology — Back Seat Driver Assist and More

Could Volvo’s No Death Goal Show The Way for Access to Justice Innovation

Posted on February 1, 2015 by richardzorza

I recently discovered that Volvo Cars has set a zero death goal for its new cars by 2020.

“Our vision is that no one is killed or injured in a new Volvo by 2020,” the chief of governmental affairs is reported to have sad.  Whether or not they actually achieve the specifics of that goal is less important than the fact that by setting such a goal, and doing so publicly, they change their whole system from thinking day to day, or year to year, to where they really want to be.  (More on the vision here.)  Interestingly, it turns out that a bit less than 20 years ago Sweden set as a goal that “Nobody should be killed or seriously injured within the road transport system” so this is also an example of corporate culture following governmental policy.

So the obvious question is this:  What similar realistic, but challenging goals could we set for access to justice — goals that would require long term strategic thinking, and that recognize that system problems require systemic solutions.  Different organizations should set such component goals for themselves.

Indeed, Katherine Alteneder of SRLN has already promised here, that:  “The Self-Represented Litigation Network, leading advocates for an accessible and integrated justice system, has made a commitment to help facilitate the development of self-help centers in every state by 2020, and to ignite local and regional dialogues on how to connect self-represented litigants with attorneys providing limited scope services.”

More generally, how about these as such goals:

  • No unintentional defaults in our court — no one abandons a case without making an informed decision
  • Every case and situation with significant non-lawyer caseload has a plain English and easy to use free online form system
  • All judges have been fully trained in handling self-represented cases, including having the opportunity to see themselves on video
  • All states have an Access to Justice Commission or Equivalent
  • Every jurisdiction has an accessible and functioning referral system for unbundling cases
  • Every court has self-help services
  • Every state has a funding system for when judges find a right to counsel not covered by existing funding mechanisms
  • Every Rules Committee has an expert on self-represented cases.

The Justice Index can help us establish, and monitor movement towards, such goals.  But establishment of such goals is clearly in part a national leadership and state partnership function.

I have deliberately avoided listed what should be really the overall goal — no cases wrongly decided because of lack of access help — because that seems too huge — but then Volvo’s goal seems pretty massive from here.

Posted in Self-Help Services, Systematic Change | 4 Comments