American Constition Society Issuue Brief Addresses Multi-Layered Approach to Solving Access Crisis

Posted on July 28, 2014 by richardzorza

Historically, I have found that the generally progressive community — even the generally progressive legal community — has been relatively traditional in is approach to the access to justice crisis.  The “line” has been right to counsel, and increased funding for LSC.

It is perhaps a harbinger of acceptance of a more nuanced view that the American Constitution Society (ACS) has released an issue brief titled Deconstructing the Right to Counsel.

While the document does not represent an official ACS view, and while its title initially scarred me off as a too theoretical document, in fact the document is useful as laying out the reasons that a binary right to counsel or nothing analysis is counterproductive, and as suggesting a broader perspective.

The writer, Lauren Sudeall Lucas, lays out a value driven approach in which the values discussed are access, efficiency, fairness and legitimacy.

.  .  .  the value framework has potential to better inform and foster more constructive dialogue among policymakers about the best way to accomplish shared goals on a system-wide level, rather than devolving into a war over specific entities, fought in terms of numbers and dollars. When the only currency for reform is lawyers, there is little room for negotiation or creativity. However, when the menu for reform includes many options, there is more reason to have a constructive conversation about which would be the best fit and why. This framework could serve as a basis for such a discussion. Seeking a sound basis for future policy decisions, many commentators have called for increased data collection to evaluate the effectiveness of various mechanisms providing an alternative to full representation by counsel; this framework could also be used to develop metrics to analyze such data.

The paper will be particularly useful to cite to academics out of touch with the changed reality on the ground.

Posted in Access to Counsel, Systematic Change | Comments Off on American Constition Society Issuue Brief Addresses Multi-Layered Approach to Solving Access Crisis

Assessing the Strengths and Weaknesses of the Institutional Structure of Communty Based Legal Aid

Posted on July 21, 2014 by richardzorza

As “access to justice” receives more and more attention, and as we start to put in place new structures such as the “communications hub,” perhaps it is time to step back and think about the strengths and weakness of our institutional structure, now essentially 20 years old.

In the mid-1990s, in response to the Gingrich era, community based legal aid moved to a highly decentralized model, with funding fragmented, a deep resistance to national leadership (at least most of the time and in most things) and very varied funding, leadership, alliances, and capacity at the state and local levels.

This had one huge and critical benefit — community based legal aid survived and at the local level is still there to play a very significant role.

But, at the same time, we have paid the price of a relative lack of coordination and leadership at the national level.  This is a structural, not a personal issue, and I am not pointing the finger at anyone.  Indeed, the new LSC board has made very significant efforts to play a major leadership role with the Pro Bono Initiative, and the Technology Summit — we look forward to their full fruits.  Similarly, the ABA Access to Justice Commissions Project (often working with the Chiefs and the National Center for State Courts), has had a huge impact on the setting up of Commissions in so many states.

But, as the successful establishment of the Communications Hub illustrates, there are many functions of overall coordination, planning, communication, research, and institutional and substantive advocacy that desperately need to be strengthened.  The post 90’s structure, which has served survivability goals so well, gets in the way of these establishing the systems that should be serving these functions.

In particular, as the state commissions movement illustrates, coordination with other aspects of legal aid — court and bar based, for example, provides a huge and critical opportunity for the development of an integrated 100% access to justice strategy.  Without an integrated strategy developed by integrated leadership of all the aspects of legal aid, we will not get there.

 

 

Posted in Access to Justice Boards, Access to Justice Generally, Communications Strategy, LSC, Systematic Change | Comments Off on Assessing the Strengths and Weaknesses of the Institutional Structure of Communty Based Legal Aid

Shift of Poor People to Mobile Phones May Result in Undercounting in Legal Needs Studies

Posted on July 10, 2014 by richardzorza

The Center for Disease Control has just released some stats on the relationship between poverty and cell phone use.  As they put it:

  • Adults living in poverty (56.2%) were more likely than adults living near poverty (46.1%) and higher income adults (36.6%) to be living in households with only wireless telephones.

Given that it is harder to track and poll cell phones, and given that most legal needs studies rely heavily on phone polling, this means that in future legal needs studies may be under counting the legal needs of the poor.

Moreover, this may not be corrected by poverty weighting of samples.  As the Washington Post summarizes the findings with respect to health:

But undercounting wireless users can skew crucial health survey information, such as how many American adults are diabetics, heavy smokers, or people who have a reliable place to find health care. And, as it turns out, the NHIS has found several statistically significant differences between wireless-only and landline homes.

Adults in wireless-only households are, for example, less likely to have received their flu shots and are more likely to have faced financial barriers to health care. They’re also more likely to smoke and drink heavily. And those correlations stick even when researchers control for factors such as age, income level and home ownership status.

“This suggests to us that there’s something about these people’s personalities that may lead to health risk behaviors,” Blumberg said.

It may well be that there is a similar effect with legal problems, and we should be researching it. (Although I would prefer to think about it as “circumstances” rather than personalities.”)

For example, those without landlines may be “frequent movers” and perhaps not always voluntarily.

We need research on this.  Given that community-based legal aid programs collect phone numbers, one interesting study would be how the percentage of mobile only users compares with that of the poverty population generally — and indeed how that groups legal issues compares with intake generally.

More generally, the next legal needs study should look very carefully at this set of issues.

  •  
Posted in Metrics, Research and Evalation | 3 Comments

Article on Spread of ATJ Commissions Implicitly Raises the Question Whether There is Any Good Argument Left To Justify A State Not Having an ATJ Commission

Posted on July 4, 2014 by richardzorza

An excellent article in the NCSC Publication Court Trends, written by Chief Justice Nathan Hecht of Texas and Illinois Supreme Court Justice Thomas Kilbride of Illinois, includes timelines and listings of the spread of the Commissions movement.  It shows the movement starting in one place, Washington State, and accelerating in its spread to 34 states, with Puerto Rico, Oklahoma and Arizona joining the list in 2014.  Financial support from the Public Welfare and Kresge Foundations for support work has played a big role in this success story.

This wonderful story does however raise two questions:  Are there any good arguments left for not having a Commission, and what can be done within the community to help the “not yet” states become “yes” states?  (Disclosure, I work in various ways with NCSC  and the ABA on supporting expansion of Commissions, but these opinions are totally and completely my own.)

Some of the arguments I have heard against commissions are as follows:

We already work well together and do not need a Commission.

It may well be that the players — court, bar, community based legal aid — are indeed working well together already, but that is not the right question.  The question is whether more might be done with the additional structure of a Commission.  Many states have found that the convening authority of the state supreme court, using the tool of a Commission, has brought in other players such as the private sector, legislators, and administrative agencies.  Such states should look at all the Commission acheivements and ask themselves whether they might be able to do more with a Commission.

We do not want to put ourselves at the political mercy of our Supreme Court.

It is certainly true that some state supreme courts have become more politicized, and that on occasion, there is a correlation between political alignment and views of access to justice, but more frequently successful Commissions have been able effectively to make the case that access issues transcend politics.

Moreover, a well structured Commission has the potential to provide a continuing and institutionalized voice and coordinating force for access regardless of changes in the political environment.

The groups are not on the same page, and there is no point in trying to get them there.

That is less an argument than a restatement of the challenge.  The success and impact of the Commissions, so well documented in the Trends article, shows that it is worth the effort.  Which leads to the next question, what can those in states with Commissions do to fill the gap in the other states.

It seems to me that the following would be useful:

  • Increasing the documentation of Commission successes
  • Using constituency networks to talk to those with decision-making authority about the advantages of Commissions
  • Strengthen the national activities and coordination of the Commissions Network so that the advantages of participation become more obvious
  • Gently asking friends in the “no” states why they are depriving those in the Commission’s Network states of their help and support.

Any other arguments against Commissions, and any more ways to move them forward?

 

Posted in Access to Justice Boards | 3 Comments

Guest Post on Potential of Lay Advocates by Allan Rodgers

Posted on June 26, 2014 by richardzorza

Allan Rodgers of the Massachusetts Law Reform Institute was my backup resource when I did unemployment advocacy before law school, back in the mid-70s.  His personal model of probity and vision is one the reasons I became a lawyer, and he has ever since been a highly valued mentor for me.  I am honored that this blog is able to carry his thoughtful and well-reasoned article on the potential of lay advocates.

Lay Advocates: An Untapped Resource for Otherwise Unrepresented Litigants

                             In Court and Agency Adjudicatory Hearings

                                           By Allan Rodgers

At long last, there is an upsurge of interest in some states in establishing programs that authorize trained lay advocates to represent people in adjudicatory hearings in court and at agency administrative hearings. But most of these programs propose to start with lay advocate roles that fall short of authorizing full representation in appropriate cases. I do not understand why the hesitancy. Lay advocate representation has a history of success in agency hearings going back more than forty years. Studies and experience have shown that lay advocates have an impressive record of success. I propose that we should move promptly to authorize these programs, under controlled circumstances initially, in order to start to fill the enormous gap in legal representation of poorer people. The potential numbers of people who would likely volunteer to do this is one of the most promising resources I can think of to narrow the gap.

For many years authorizing lay advocate representation in court has been a kind of third rail among lawyers and the judiciary in Massachusetts. Some of this opposition comes from people who doubt that lay advocates can do an adequate job of providing this representation. Even in the face of compelling evidence of their success for many years in agency hearings, many have reflexively stuck to this belief. Strong opposition has also been driven by the profession-protective prohibition of the unauthorized practice of law. This fear of losing legal business was present when efforts were started in the late 1960’s to fund legal services to the poor. We know that that belief was mistaken; if anything the presence of legal services advocates increased legal business for the private bar because opposing parties needed more legal representation in court when faced with poor people who now had lawyers. Since the present representational gap for poorer people is so severe, I’d predict that having lay advocates provide full representation to people in court will have no adverse impact on paying legal business.

My colleague at Mass. Law Reform, the late Tony Winsor, was an early and persistent champion of lay advocate representation in court. He advised several legal services programs that, with the cooperation of a local judge, operated lay advocate representational experiments in landlord-tenant cases, with demonstrated success. He trained and supervised college students in representing persons taking appeals to the state Department of Public Health from decisions on treatment by methadone maintenance clinics. Although the sample of these cases was comparatively small, these advocates won most of their hearings. Prior to the establishment of this program few persons prevailed. In 2010, Tony and I authored an article on these experiences, entitled Non-Lawyer Representation in Court and Agency hearings of Litigants Who Cannot Obtain Lawyers, published in the June, 2010 issue of the Massachusetts Law Review (Volume 93, Number 1).

For more than 40 years in Massachusetts (and no doubt in many other states), non-lawyer advocates have represented persons in administrative agency adjudicatory hearings in such programs as cash assistance, food stamps, unemployment insurance (UI) and at the Social Security Administration. During this time I have never heard of anyone complain that these advocates have been unlawfully practicing law. Of course this representation has been explicitly authorized in federal or state law or regulation. In UI appeals, non-lawyers also represent employers in many hearings. These hearings are in many respects similar to trials in court. The rules of evidence apply generally (although somewhat relaxed in certain cases), and a hearing involves the presentation of documents and witnesses, cross-examination of witnesses and final arguments. The hearings are transcribed and tapes are available upon request. Appeals go the court (or first to an administrative appeals agency in UI cases) but the limited standard of review of the facts is the same for appeals of both court and agency decisions. In all appeals a transcript of the hearing is prepared and the transcript and the record are forwarded to the reviewing tribunal. So the presentation of the case at trial is crucial in both types of trials. Of course there are some hearings where, because of the complexity of the factual or legal issues or the importance of the case for potential precedential reasons it is important that a lawyer handle the hearing. Legal services programs have been making those kinds of assignment decisions for many years.

Available studies show that those having representation in agency hearings, whether by a lawyer or a lay advocate, fare consistently better than those who do not. New England School of Law Professor Russell Engler collected the results of these studies in a 2010 article, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 Fordham Urb. L. J., 37, at 48-49 (February 2010).

The Massachusetts Access to Justice Commission has been reviewing this matter for several years. In its 2007 report to the Supreme Judicial Court, it “strongly” recommended that the Court redefine the unauthorized practice of law “to permit trained non-lawyers to speak in the courtroom in certain civil matters on behalf of low-income people.” Barriers to Access to Justice in Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court. (available at www. massaccesstojustice.org). More recently, the Access to Justice Commission established a Lay Advocate Study Committee to prepare some recommendations to the Commission on this subject. So even though the negative climate for this program has abated in recent years, the pace of deliberation remains slow in Massachusetts.

I think the evidence and experience with the success of lay advocacy in hearings shows that we really don’t need to study the general issue more at this point. We can adopt experimental programs for full representation now, and use the results to expand and modify them where the experiences show the need to do so. My concern about some of the more limited lay advocate programs discussed recently, nearly all of them proposing roles short of representation, is that these programs will consume large amount of time, resources and energy but are unlikely to get us much closer to taking advantage of this potentially enormous resource in hearings where representation makes a real difference.

So how, you would ask, should we start such a program, especially in court? Here are my suggestions.

1) I would start with the representation of poorer people by volunteers or by employees of legal programs and lawyers. Authorizing independent lay advocates or those who charge persons who can pay for it raises issues that are best left untouched until much further down the road, in my opinion.

2) The lay advocates should be trained and supervised by a lawyer or legal program. I would not recommend setting up a special certification apparatus to do this. The lawyer or legal program should be trusted to certify in writing that the advocate has received the standard training or experience and will be supervised by a lawyer for whom the lawyers’ ethical responsibilities apply.

3) The programs should be started in courts on an experimental basis at first, but with a periodic review process designed to address questions and concerns about how it is working, but with the understanding that it can be expanded by the local judges if it goes well. Statistics on numbers of cases and their results should be kept for future review and analysis.

4) The courts should set up a special group to oversee and make recommendations about lay advocacy in court. Its first task should be to review the kinds of cases in which lay advocates can capably provide representation and set up rules by which local courts can accept or make assignments.

5) Persuade the courts to make clear that lay advocates providing representation in these cases, in courts and at agency hearings, are not engaged in the unauthorized practice of law.

6) Because (at least in Massachusetts, and probably in most states) lay advocate representation in agency adjudicatory hearings is already authorized, and there is no need for a regulatory structure, the biggest task is to find people who will volunteer to do this. I think the best way to do this is to fund a central program whose responsibility it is to develop this resource. The shortage is particularly acute for agency hearings. Even with legal services and other resources, probably less than 10% of the people who face agency hearings have representation. Yet there are many groups from which volunteers might come, such as college and law students, retirees and people who might see this as an opportunity to get work experience.

I think the pieces are already in place to start lay advocacy adjudicatory hearing programs that are workable and will bring large increases in available advocates into our ranks.

What are we waiting for?

Posted in Court Management, Non-Lawyer Practice, Systematic Change | 3 Comments

How Could Interpreter Costs Be Understood So That They are Not In Conflict With ATJ Goals

Posted on June 21, 2014 by richardzorza

A recent excellent New York Times article by Fernanda Santos about how the push to provide interpreters is putting strain on court budgets, and forcing delay or reduction of other expenditures, highlights the long term costs of state inattention to language access and also raises the question of how to avoid conflict between ensuring the protection of language access rights and general access rights.

The first and perhaps most important point is that in an ultimate sense there is no conflict.  If someone who needs an interpreter does not get one, then all the other expenditures are wasted, because no amount of resources spend on other access tools can compensate for the lack of understanding and opportunity to contribute.

The second point is that in statistical terms the language access crisis overlaps very heavily with the self-represented challenge.  While we do not yet have the numbers, there can be no argument, given poverty statistics, that LEP folks are far more frequently self-represented than the general population, and it is therefore a huge and still largely unrecognized mistake to see them as different problems, or, as often happens,to have a minor discussion of self-represented litigants in the context of a far larger and broader discussion of interpreters.

In fact, I suspect that the “typical” LEP litigant in civil cases is self-represented, and that is the way the analysis should start, with a separate and less urgent discussion about what to do when the litigant has a lawyer, who can presumably be relied upon to protect the client’s language access rights.

Thirdly, we usually fail to understand that providing broader access services can reduce the total costs of interpreter services.  This can be done by providing up-front multilingual services, by using the triage process to identify language access needs, and by providing case management services that can reduce court time.

I would urge that we really need those statistics.  The NCSC standards for counting self-represented cases should provid at least a start.  If states are also counting language access needs, then a cluster diagram plotting SRL stats versus language access needs, court by court, and state by state would provide compelling statistics.

 

Posted in Court Management, Funding, LEP, SRL Statistics | Comments Off on How Could Interpreter Costs Be Understood So That They are Not In Conflict With ATJ Goals

The Legal Aid Community Should be Ready to Help the Nation’s Response to Crisis

Posted on June 14, 2014 by richardzorza

Recent news events have led me to reflect on how the legal aid community, broadly defined, needs to be ready to help when crisis hits.  While the ultimate outcome of events in Iraq remains uncertain, it is all too possible that we may soon be faced with the moral necessity of absorbing a wave of refugees who have been displaced by events, and who are at high risk because of the roles they played helping the US.

Similarly, the recently uncovered scandals at the Veterans Administration have focused the country on the need for resources to make that system work.

In both cases the legal aid community, broadly defined, has a major role to play.  Put simply, refugees and veterans need advocates and helpers, that’s what the different community and court components of legal aid can provide.

We need to be ahead of this game, with a planning infrastructure.  In the end, it is not about money, but it is not a good symptom that the legal aid role in the VA crisis has been largely absent from the public dialog, and that there is no legal aid component in the emergency VA funding that now has bi-partisan support.  Have any state commissions moved to be involved?  Are they structured to respond quickly?  Have we broadened and institutionalized our response to weather disasters to other kinds?

All too often the failure to legal aid to be involved is blamed on lack of resources.  It is my belief, however, that generally people give you money because of what you do, or are ready to do, not because you refuse to act without funding.

Another argument for better coordination at all levels.

Posted in Funding, Planning, Systematic Change | 1 Comment

NYT Report on California “Court-Aided Divorce” is a Milestone in Several Ways

Posted on June 7, 2014 by richardzorza

Today’s Times report’s on one day court-aided divorce is a breakthrough in several ways.

First it is a breakthrough that the concept, while perhaps obvious once articuleatd, is actually now deployed, if only in a few places.  The core paras from the Times story are:

Under the San Diego program, you answer a series of questions online to see whether you qualify to use the program; a family law expert, acting as the program’s coordinator, advises you ahead of time what forms and documentation you must bring to court.

Couples arrive at [the San Diego] court in the morning having generally agreed on the division of property and debts and a plan for the care of any children. The coordinator makes sure the paperwork is in order and helps wrap up any remaining details. (The coordinator isn’t representing either side and doesn’t offer legal advice or strategy, said Judge Hallahan.) Then, you go before a judge in the afternoon and leave with a divorce judgment. Since the program made its debut in March, the court has handled four to five such divorces a week, said Judge Hallahan.

Second, it is a breakthrough that a solution to the access to justice problem is getting national media coverage, rather than just endless restatements of the high number of the self-represented.

Thirdly and fourthly, the actual language used is important  The actual headline, in full, is as follows:  California Pioneers the Court-Aided One-Day Divorce.  The phrase “Court-Aided,” catches the huge shift in the courts, in which they are starting to take responsibility for providing whatever “aid” litigants need to get justice.

Moreover, the use of he the phrase “court-aided” is fully consistent with the communication research driven strategy of using the phrase “legal aid” to include a broad range of services, including those provided by courts themselves.

Note that the article includes the usual cautions from family law practitioners, and also a discussion of the Dutch “DivorceHotel” concept, not yet launched in the US, in which couples check into a hotel and get the services they need to get to settlement. (Presumably the service provides separate bedrooms!)

Much more information about the San Diego program is at this link.  Information about the Sacramento program, in which the litigants are means tested, is here.

 

Posted in Communications Strategy, Self-Help Services, Systematic Change | 1 Comment

Thoughts in Response to Esther Lardent’s Question About Unbundling and Pro Bono

Posted on May 31, 2014 by richardzorza

The ever-thoughtful Esther Lardent recently asked whether we are “shrinking pro bono?”  As I understand it, the core of her worry about the impact of unbundling innovation is expressed in this para.

In the right context, limited-scope pro bono service can be a powerful and positive tool. But all too often of late, we seem to equate or conflate pro bono with limited service. This is a most troubling development. The reality is that the need for more extensive pro bono assistance is greater today than ever before. For the vast majority of pro bono clients – low-income individuals and families – limited service is often insufficient to resolve their legal needs and problems. These clients are often less-educated, less able to advocate on their own behalf, and have little or no experience with the justice system. They need an advocate to achieve the best results. Many other matters, such as class action suits and policy advocacy efforts, require pro bono commitments that are substantial in terms of time, skills, and duration.

I think her worry is that it is just too easy for pro bono programs to focus on limited scape and essentially drop out of the more demanding, but still urgently needed full representation.

I have been, and will continue to be a big advocate of limited scope pro bono.  I think that the programs, which are often run by courts (this making them probably less work for pro bono coordinators) can offer very attractive pro bono roles, including to many who have not found appropriate pro bono roles in the past, as well as help large numbers of individuals.

But if limited scope is really cutting back on the rest of pro bono, I would suggest that pro bono folks need to talk this as a challenge and look inward and think what they need to do in both the long and short term to rethink and rebuild pro bono so that there is buzz in fields beyond limited scope.

Indeed, Esther suggests several such paths in her posting, including rethinking what lawyers want to do, offering more demanding opportunities, increased innovation in pro bono models, and ceasing what she rightly calls “unthinking recognition.”

More generally, it would be nice to see lots more concrete fruits from the investments in rethinking conducted by the ABA and LSC.  The LSC Pro Bono innovation grant program is a wonderful start.

At the most theoretical level, I think we need more research on what works and what does not in pro bono administration.  There are huge differences in what is done, as suggested by Esther, and so much to learn and share in alternative approaches.  After all, 12.5% of the LSC grant budget is a lot of money, and its worth trying to see that it is well spent.

I made some suggestions for LSC grant applications that might move this process forward, including some that would expand the use of unbundling, here.  And, how about the following:

  • Looking to many more kinds of partners to bring in focused kinds of cases — like medical legal — that would appeal to a new constituency
  • Getting large firms to become experts on particular substantive areas of low and middle income practice, and thus appealing to craft pride
  • More training on pro bono class action approaches — its a real skill that bit firms may not have on the plaintiff side
  • Focus groups of attorneys on how they could best engage and support pro bono
  • Making sure that every state has a real pro bono resource and recruitment website

So, go to it.

 

 

 

Posted in LSC, Pro Bono, Unbundling | 2 Comments

“New Roles for Non-Lawyers to Increase Access to Justice” by David Udell and Richard Zorza Published

Posted on May 25, 2014 by richardzorza

Here is the paper on nonlawyer roles, written by jointly David Udell and me (as this blog post is), just published in the Fordham Urban Law Journal.

We hope that it will serve as the foundation and spur for continued discussion of a very important and freshly emerging topic.  As regular readers of this blog will know, this is becoming a very hot topic, with progress in several states.  Moreover initial presentations and discussions are occurring in others.

The paper attempts to offer a broad overview, discussing the state of play, possibilities for the future and ways to consider moving forward with nonlawyers in four separate settings:  i) nonprofit organizations supervised by lawyers, ii) nonprofit organizations not supervised lawyers, iii) for-profit groups supervised by lawyers, and, iv) for-profit companies not supervised by lawyers.

What some may see as the highlights of the paper include:

  • A summary of state and national developments,
  • A comparison of the constraints upon innovation with respect to nonlawyers with those in other areas such as judges or court staff that have been overcome with reflection and experimentation — often without the need for any changes in the formal regulatory structure,
  • A discussion of ways in which what have traditionally been viewed as bars to innovation might be overcome,
  • An analysis of how the caselaw may in fact offer less restrictions that is generally perceived, with a particular focus on the law of New York,
  • A proposal on how changes in the understanding of what services are permitted to be provided by court staff might be used as the basis for a similar process for nonlawyers,
  • A discussion of how relaxing limitations on nonlawyer practice might impact the market, and why lawyers might not be hurt by such changes,
  • A collection of recent leadership quotes from reports and the judiciary on the potential for reform.

We anticipate that there will be broad public discussion of these topics.  We also hope that the suggestions in the paper will help alleviate anxiety in the profession and embolden those who look to a vibrant ethical and productive nonlawyer sector

In closing, we include this visionary March 11, 2014 quote from Chief Judge Lippman of New York, also quoted in the paper.

Building on the use of non-lawyers who do not, in a real sense, practice law, we must look at our legal regulatory framework, first, to see if our unauthorized practice of law rules should be modified in view of the crisis in civil legal services and the changing nature of legal assistance needs in society; and, second, to identify if, short of full admission to the bar, there are additional skill sets, separate in concept from our incubator projects, that can be licensed to provide low-bono or less costly services to help those in need of legal assistance.

Discolsure:  David and I are both on the Task Force on Nonlawyers and the Justice Gap established by Judge Lippman.

Posted in Access to Justice Generally | 2 Comments

Courts are Dysfunctinal for Different Kinds of Litigants in Profoundly Different Ways

Posted on May 25, 2014 by richardzorza

It seems to me that the discussions about how to make courts work again have suffered from a problem of fragmentation.

While basically all courts operate under the same rules, based on the 1930’s Federal Rule project, there are now at least four separate discussions going on, dealing with the very different problems that this now very old system triggers for different groups.

Maybe if we at least recognize that fact, perhaps we can develop more focused as well as ultimately more comprehensive solutions. Perhaps the one thing the four areas of discussion have in common is that in none does the system work for the litigants — for whom it is supposedly designed.  Moreover, even to the extent that the system is meant to serve broader goals of legitimization and conflict resolution, if it does not work for the litigants, it will not work for these broader goals, ultimately threatening the social contract.

The Self-Represented Litigant Issue

As a result of the legal profession pricing itself out of the market, there is a discussion triggered by the obvious crisis of millions of people forced to go to court in a system that assumes that everyone has a lawyer, without one.  We have made lot of progress in innovations designed to address this problem, but we are still a long way from 100% access for this group.  In order for the system to work, such litigants not only need tools, information, assistance and in certain instances a lawyer, but they also need a court management system that identifies when they need help, and gets it to them at that point, otherwise the system clogs up.  The  key point is that the litigants are not in charge, but at the mercy of the court to make the system work.

The Represented Case Delay Problem

For the once “typical,” but now in many courts now atypical, cases in which the parties have counsel, the discussion is about how to mange and control those cases to closure.  There is wide debate about whether the caseflow management reforms of the last few decades need tweaking or replacing, but many agree that the attempt of courts to control their caseloads has failed.  The problem, at least from a court management point of view comes from attorneys not being willing to move cases — particularly in the ever more complex, multiple player systems being build.  The incentives on lawyers are not to speed cases, rather the reverse.  Most importantly, again the clients are not in charge of the process.

The Corporate Conflict Problem

There has been lots of attention to the fact that rich, mainly corporate, litigants are buying out of the system in favor of private judging.  They do so in part because the rigidity, delay and cost of the system.  But they also do so because the clients really are in charge and the law firms have to give them what they want.  The response of the courts has been to offer “Business Courts” creating the risk of perceived special treatment, perhaps undercutting, rather than strengthening the system as a whole.  Here the clients are taking charge by bailing out of the system

The Corporation Versus the Self-Represented Group

In this group, the courts should exist to act as a countervailing force to the power control and information possessed by the corporation.  The history of the foreclosure and credit debt crises shows how rarely they have played this role.  Attempts to require plaintiffs to attest to the underlying information have helped reassert the right balance, but the process has only just begun, and much remains to be done.  Here the system puts one class in near complete charge.

I hope to blog more about the implications of these distinctions, hopefully with a focus on an integrated approach.  I will say this now:  I am even more convinced than before that it is time to rethink the whole approach of the current rules.  Too much has changed.

Posted in Federal Courts, Foreclosure, Rules Reform, Simplification, Systematic Change | Comments Off on Courts are Dysfunctinal for Different Kinds of Litigants in Profoundly Different Ways

A Cautionary Tale — Cartoon Points Out the Downsides of Automated Courts

Posted on May 18, 2014 by richardzorza

The LA Times has a great cartoon on court automation that might give folks a kick.

Accompanying a (presumably humorous) piece on the potential of court automation, the cartoon has four panels.  In one a person tries to fill in a form.  In the second a “truth algorithm” is applied.  In the third the person is told that gay marriage is OK, and the litigant says that he had applied to subdivide a plot of land, and in the fourth, the litigant is told that there is no appeal.

It is well worth clicking through and seeing the whole thing.

Seriously, the points are valid, and need to be internalized as we move forward with technology — regardless of how minor compared to what is ironically suggested in the cartoon:

  • Must be easy to use for all
  • Any algorithms must be transparent and legitimate — validated and known to be validated
  • There have to be systems to correct errors
  • For a long time — perhaps for ever — there have to human checks available
  • Circularity must be avoided — a pattern of results that are algorithm driven can not alone justify an algorithm

These topics are discussed in more detail including ideas for moving forward, as well as risk minimization, in a thought exercise paper I wrote for the LSC Tech Summit.

Thanks to Bonnie Hough, who caught this and who is always on point in warning of the dangers as well as highlighting the potential benefits of technology.

 

 

Posted in Systematic Change, Technology, Transparency | 2 Comments

California Shows Potential of Commissions with Assist to Incubators

Posted on May 15, 2014 by richardzorza

This is really a double headline story — Commissions and incubators.  The California Access to Justice Commission has taken the lead in moving forward incubators throughout the state.  They have obtained funding for three conferences, held throughout the state, to explain the concept, and to provide seed money for the development of incubators.  The RFP for the seed money will come out after all three conferences have been held.  Each of the three is targeted to a region, with one having been held in San Francisco, one to be held June 10 in Los Angles, and one to be scheduled in Fresno.

Invitations have now gone out for the Los Angeles meeting, targeted at the following counties: San Luis Obispo, Kern, San Bernardino, Santa Barbara, Ventura, Los Angeles, Orange, Riverside, San Diego, Imperial.  For information, contact Rodney Low in the California Bar Office of Legal Services, 415-538-2219.

This is great in so many ways:

  • Incubators move forward
  • Commissions are getting involved in broader initiatives
  • Commissions are raising money (this money includes Ford and Public Welfare Foundations as well as the state Bar Foundation)
  • Active collaborations are being encouraged
  • The focus is on “modest means,” which is critical for incubators
  • Law schools are being engaged

Onward.   I hope this process of conferences and seed money is seen as a model not just for incubators, but for expanding leadership and innovation in access.

 

 

 

 

Posted in Access to Justice Boards, Funding, Incubators | Comments Off on California Shows Potential of Commissions with Assist to Incubators

Communications Research Underlines Need for Coordinated Marketing and Enhancement of Online Tools for All

Posted on May 9, 2014 by richardzorza

One of the clearest messages from the communications research is that the best — perhaps the only — way to get public support for increased resources for court and community based legal aid above the needed 50% threshold is to emphasize the non-means tested services that are available to all.

Perhaps preeminent among those are the online information and forms that are now available respectively in all or most states with help from court and community based legal aid in those states.

Surely getting those services far better known would not only result in more people getting access to justice, but also make court and community based legal aid much more widely apprecaited, and thus impact the ability of the providers to get the resources they need.  I can promise you that if a governmental liaison person goes into a legislative office and starts talking about legal aid, and the rep or staffer says “isn’t that the thing that is advertized on the sides of the buses and in the subways?” it is going to be a wholly different — and much more successful — conversation.  The ad, hopefully free, on the side of the bus includes a box saying something like: “These free resources are made available by your local court and community based legal aid programs.”

The original vision for the websites, developed well over ten years ago was of an integrated system that could be linked and marketed to multiple constituencies.  That potential of integration has not been fully realized, making such leveraging much less sucessful than it might be, particularly on the public marketing side.  Moreover, the whole system would be much more helpful if there were better content development and updating processes in place.

Coordinated activity by most of the major stakeholder is needed to empower a broad marketing and PR campaign for these tools .  Steps that might be taken to turn this into a system that would position legal aid (broadly defined) as a much more valued resource for all might include:

  • National, state and local community legal aid funders using their leverage and resources to ensure that content and tools are as usable, up to date, and appealing as possible.  This means you, IOLTA and LSC.
  • Court based legal aid funders ensuing the development of appropriate content.  This means you, courts, NCSC, and SJI.
  • Access to Justice Commissions and others working to ensure that the content from all their stakeholders is accessible through integrated portals, and preventing duplication whenever possible. (I hope all Commissions have a group working on this coordination, and reporting regularly to the larger bodies)
  • At the national level, national programs working to partner with a wide variety of stakeholders such as the Federal Legal Aid Interagency Roundtable, AARP, faith based-organizations, United Way/211, unions, etc., to ensure that the public knows that these resources are available and reliable.  This again involves both court and community based legal aid.
  • At the local level, the Commissions working with equivalent local stakeholders, including state agencies, to spread such knowledge.
  • At all levels, stakeholders coordinating the development of public media campaigns using free resources to spread the word.

You will notice that the key word is “coordination.”  This is not something for one stakeholder to take on, with the rest cheering them on.  Rather this only works if almost all stakeholders agree on a common agenda and elements, perhaps with each taking the leadership on some of those elements, and all getting actual concrete support from the rest in its design and implementation.

All of which raises a broader point.  More and more we have to create the ways for stakeholders to cooperate in such coordinated activities.  We can not get to 100% access without such true multi-element cooperation.  Maybe a program to massively expand the quality and use of the online tools for all can be a pilot for such coordination.

Disclosures:  I am on the Advisory Board of the Voices for Civil Justice, that sponsored the Communications Research, I helped draft the plan for integrated portals, and I have been a consultant and adviser to Pro Bono Net, which operates a significant part of the info and tools system now in place.

 

 

Posted in Funding, IOLTA, LSC, Technology | 1 Comment

Massachusetts Adds Access to Justice to Bar Exam — Ideas on Implications

Posted on May 5, 2014 by richardzorza

Massachusetts has now added access to justice to the bar exam, starting in 2016.

As previously reported in this blog when comment was sought, the now-accepted proposal includes a wide range of topics from landlord tenant to predatory lending, and from right to counsel (really!) to unbundling to due process hearing rights.

These last quasi-procedural areas may have the most promise, since they will help steer law schools towards paying attention to these issues.  In particular, the inclusion of unbundling means that everyone who passes the Mass bar will have been taught about unbundling.  It will be fascinating to see how law school classes and bar review classes change.  Maybe it will help speed the spread of access to justice courses.

More generally, however, I would like to think that the real world focus of access to justice will help steer the exam towards rewarding not so much the creative spotting of expensive and impractical legal issues but rather the common sense ones to which a lawyer on the meter for a low or middle income client should pay attention.

Maybe access to justice can help restore sanity to the profession.

 

 

 

 

 

 

 

 

 

 

Posted in Law Schools, Legal Ethics, Unbundling | Comments Off on Massachusetts Adds Access to Justice to Bar Exam — Ideas on Implications