Can the Self-Represented Collect For Time When Required by Opposing Attorney — Canada Moves

Posted on December 2, 2013 by richardzorza

Julie Macfarlane has a fascinating blog on the emerging jurisprudence in Canada dealing with the award of costs when time is required by an opposing attorney’s wrongful activities.  As I understand it, this is analogous to the US Rule 11 sanctions.  As described in the blog, the steps to the most recent decision, Bergen v. Sharpe, which ended up with a $200 an hour charge against the wrongful side, were as follows:

1. In family proceedings in Ontario, costs generally follow the award (Rule 24 Family Law Rules). Ergo, successful SRLs may receive costs. In addition, the courts increasingly use costs to penalize parties who delay, prolong proceedings, make unreasonable claims and refuse to consider settlement (more below).

2. Bad behaviour that would lead to an award of costs in favour of a represented party will similarly lead to an award of costs to a SRL (among others, Fong v. Chan). To do otherwise would undermine an increasingly important aspect of the costs regime – to encourage settlement – and would allow a represented party facing a SRL to prolong the matter with impunity.

3. The determination of who bears legal costs should not deter anyone from access to the courts (1465778 Ontario Inc. v. 1122077 Ontario Ltd, awarded costs to pro bono counsel to facilitate access to justice). A presumption against ever awarding costs to SRLs would amount to a bar on access to the justice system.

4. The assessment of the value of the time that SRLs put into their case should reflect an assessment of how much time it is reasonable for them to have spent working on their case – the same standard that is applied to lawyers – and an appropriate hourly rate.

We are not there in the States, I suspect, but it is something to think about as a tool for judges to wield as a disincentive to attorney obstruction in SRL cases.

Posted in Attorney-Client, Court Fees and Costs, Judicial Ethics | 5 Comments

Why State-Based Advocacy Orgazations are Important — Two Lessons from Massachuetts

Posted on December 1, 2013 by richardzorza

Those of us who try to focus attention on the “access” side of access to justice are often criticized for not planning enough for impact advocacy side.  Two recent developments highlight the importance and potential results of having institutions that focus on legal change and also raise the question why we can not have such institutions in every state.

The Massachusetts Law Reform Institute (MLRI), where I worked during law school and briefly afterwards, is with very good reason regarded as one of the best so-called “state back-up centers” funded, till the Gingrich era, by LSC.

A few weeks ago Ernest (Tony) Winsor, the Deputy Director at MLRI for 30 years, died.  An article (not an obituary) in the Boston Globe highlights his career and contributions.  Tony was one of my supervisors as a law student, and I learned so much from him.  As the Globe put it:

One of his best-known efforts was training volunteers to be court watchers and sit through court proceedings, document abuses of procedure and rules, and draft reports. Their work was a necessary first step to help the institute determine what was happening in the courts.

Court watchers “come into a community like Chelsea and they can’t be scared off, whereas the local lawyers dependent on the good will of the court, might be,” Mr. Winsor told The Boston Globe in 1972. Based on the court watchers’ observations, he added, “judges tend to modify their behavior for the better.”

Also in the 1970s, Mr. Winsor drafted first-of-its-kind legislation that provided for an affidavit of indigency. When income criteria were met, the state would be required to cover the costs of low-income litigants, according to Rodgers. The legislation was adopted in 1974.

“I think it’s fair to say it’s still the best statute of its kind in this country,” Rodgers said. “We monitor that. To give you an idea of the significance of this law, the last time I checked . . . I estimated the total benefit annually to poor people from this legislation was $30 million.”

Another of Mr. Winsor’s accomplishments was helping change the Criminal Offender Record Information law, or CORI. The original law was meant to limit access to criminal record information to law enforcement and courts, but over time CORI reports became widely available to others, including employers and residential housing owners.

Working with organizations such as the Union of Minority Neighborhoods and the Boston Workers Alliance, Mr. Winsor and the Massachusetts Law Reform Institute helped secure adoption of legislation that brought comprehensive changes, according to Rodgers.

Mr. Winsor also helped form the Babel Coalition, which succeeded in getting interpreters placed in the courts and state medical facilities.

Those of us who remember Tony — and anyone who met him ever for five minutes will remember his energy, passion, commitment, and quirkiness — will see it as typical that Tony’s imagination and creativity led him to eschew names as boring as “language access coalition,” and rather coin a term like “Babel Coalition” which, once heard, would never be forgotten.  I know Tony well enough to know that this was not calculation — it was just that life should be enjoyed, so why not think up a dramatic name. Info on the fund to support MLRI established in his honor is here.

The  equally long-time Director of MLRI, Allan Rogers, (also one of my supervisors) has also given us cause to appreciate the importance of institutions such as the one he created.  Recently published, and now online is Allan’s new book, RAP-UPS OF A RETIRED REFORMER: STORIES ABOUT HOW LEGAL SERVICES ADVOCATES TRANSFORMED THE LAWS FOR POOR PEOPLE IN MASSACHUSETTS.

It is a wonderful book, which details issue by issue, over a 40 year span, how a combination of legislative advocacy, litigation, coalition building, and community organizing, improved the law and the lives of the poor.  From welfare to housing, from administrative agency process to criminal record privacy, from energy pricing to family law, working through coalitions, the book shows how MLRI has always been there.  The book is free online in various formats here.

It is typical of Allan’s directness, clarity and compassion that he starts Chapter One as follows:

Some people like to glorify the “good old days,” when, they say, life was simpler and less divisive. Of course, these apologists did not experience what poor people did then or do now. Massachusetts’ family cash assistance programs were, until the late 1960s, administered by cities and towns, with few rules and standards for those who received assistance and those who did not, a recipe for arbitrary decision-making.

It is also typical that throughout he credits so many many people with achievements that they would with no doubt at all credit mainly to him.  (Disclosure: I am noted, and proud to be.)  Indeed, part of MLRI’s success came and comes from its deep commitment to work with, not in competition with, local legal aid advocates.

I remember once asking Alan how he came by his clarity and commitments, and his reply was so simple, and sadly so rare.  It was, he told me, from going to law school and learning about the Constitution.  Whoever taught Allan Con Law is owed a deep debt by the people of Massachusetts and beyond –whatever the professor’s ideology.

Allan ends the book thus:

Public institutions and powerful interests continue to be largely unsympathetic to the needs of the poor. Advocates have to spend ever-increasing amounts of time combating ignorant and even malevolent attacks on the poor, passivity on the part of many public officials who should know better, and backsliding by the public and private institutions that are supposed to serve the poor. Much of this has been caused by relentless and well-funded campaigns to hamstring and defund programs that are designed to help. Ultimately, I think the best way to fight these efforts is to open them up to public awareness. As U.S. Supreme Court Justice Louis Brandeis wrote in one of his First Amendment opinions: “Sunlight is the best disinfectant.”

But things were much worse when MLRI and other legal services programs were started in the late 1960s. In the 1970s, after MLRI and our allies succeeded in changing many laws and agency practices that adversely affected the poor, public and foundation grants were awarded to those very agencies to help them implement the changes. We, too, asked for funds but were turned down. At one point I said that maybe we should change our name to Massachusetts Law Enforcement Institute so that we could get more credit for what we had done.

This is much the position we are in now. Thanks to our effective work over the years, many laws and programs are in place to protect and support the poor. So we should see ourselves as law enforcers and as uninvited guests at the garden parties. Doing this kind of systemic work is what so many legal services advocates have excelled at these many years. Many of the rights and laws exist to do this effectively. If because of the political climate we find little room for achieving affirmative improvements, we can see to it that people get the rights and benefits that we have helped put into place. Many legal services advocates have made it their careers to do just that. This is a legacy of which we can truly be proud.

Dona nobis pacem

Whatever area of change you are in, you could do a lot worse than download the book and find the section relevant to you work.

And, for those in states without a group like MLRI, think, please, about how one might be founded and funded.

Posted in Systematic Change | 2 Comments

SRLN/NCSC Triage Protocols Report Published

Posted on November 27, 2013 by richardzorza

As noted in the SJI E-News, the SRLN/NCSC Triage Protocols Report is now available.

It was co-authored by Tom Clarke (NCSC) and Katherine Alteneder and myself (SRLN).

The proposition in this paper is that it is possible to collect information in a way to establish generally standardized and coordinated triage protocols that link litigant services, courts and legal services. From this process each stakeholder will realize significant gains in efficiency, cost savings and user satisfaction. This paper proposes protocols for evictions, divorces, foreclosures, and credit card debt[.]

It is important to note that the protocol design involved a broad group of stakeholders from courts to legal aid.  The Report outlines three different sets of protocols, for litigants, for courts, and for non-profit legal aid programs.  I should add that for me the most important lesson was the number of situations in which the logical service component was expert and trained non-lawyers.  They can play a particularly important role in the triage process, since they can be familiar with the details that make a difference.

The Report can also be downloaded directly from here.

Posted in Triage | 1 Comment

Very Important Communications Research Released

Posted on November 21, 2013 by richardzorza

This is one of the most important posts I have ever written.  I am honored to be authorized to post the communications research conducted by Lake Research Partners and the Torrance Group on civil legal aid and access to justice for the new Communications Hub funded by the Public Welfare Foundation and the Kresge Foundation. (Disclosures: The Self-Represented Network is on the Advisory Board of the Project and the Public Welfare Foundation is a funder of Network activities.)

I want to do three things.  First highlight what is for me the key finding; second to quote the whole Executive Summary, which everyone should internalize, and; third, make a few comments highlighting things that caught my eye, and may reflect particularly the things that I most care about.

First:

While there is much of importance in the results, the key finding that I hope will revolutionize our attitude so that we are not only proud of our work, but publicly proud.  That finding is that when people in the middle are exposed to the best arguments both for and against additional funding for civil legal aid (broadly defined), their support goes up and not down.  As the Summary Analysis of the Report (link here) puts it:

Voters are open to increasing funding for Civil Legal Aid, which is no small feat in a spending and tax sensitive environment and given the program’s relatively low profile today. A plurality (45%) of voters initially support increasing funding for Civil Legal Aid while one-quarter (24%) is undecided and another nearly one-in-three (29%) oppose the program.

Support for increased funding crosses the 50% threshold in the context of a simulated debate – with opponents characterizing Civil Legal Aid as costly, ineffective,  and ripe for abuse, and advocates defining the program—and the debate—around the value of assuring fairness for all in the justice system. Crossing the 50% threshold is typically considered a necessary benchmark for elected officials to feel safe throwing their support behind a cause.

In other words, we have nothing to fear from a broad public debate.  Frankly this is in profound opposition to the generally fearful culture of legal aid.

Second:

Here is the full text of the Executive Summary:

The debate over increased funding for Civil Legal Aid is informed by two mounting trends in public opinion, which give rise to a set of complex and at times contradictory attitudes. On one hand is the public’s diminished faith in government to manage public affairs wisely or efficiently. On the other hand, is a profound sense of economic insecurity, and a growing belief that the rules of the game have fundamentally changed in ways that work against the interests of most Americans. Civil Legal Aid advocates have a tremendous opportunity to frame the debate over increased public support for the program in the context of these two trends and without being overtaken by either.

While previous research assessed support for existing levels of public funding for Civil Legal Aid programs, this effort explored the public’s appetite for increasing funding for the program — a higher threshold in the current economic environment. Even so, the results of this central question are quite promising, uncovering several important opportunities and caveats:

  • Civil Legal Aid advocates are in a strong position. Voters start out in favor of increased funding for Civil Legal Aid, and in an engaged debate—where voters are exposed to arguments in favor of, and against, Civil Legal Aid—support exceeds fifty percent. This is a debate we can win.
  • While the public believes it is important—in fact, critical—to have access to legal expertise in order to navigate the complexities of the civil justice system, they are largely unfamiliar with that system and have many fewer associations with it than with the criminal justice system.
  • In addition, the debate over support for Civil Legal Aid remains far from the public consciousness today; in this regard, the debate has not matured substantially over the past decade. More than one-third of voters have never heard, or have no opinion of, Civil Legal Aid. While the survey data shows that those who have an impression feel positively toward the term, the focus groups highlighted just how shallow those impressions are.
  • Despite the public’s lack of familiarity with Civil Legal Aid, over eight-in-ten voters support the basic principle behind Civil Legal Aid: that all Americans should have access to legal representation or help in civil matters, regardless of how much money you have.
  • The term Civil Legal Aid elicits the most positive reactions out of several terms tested and is the most recognized; advocates should feel comfortable referring to the program as such. While the term alone is not a substitute for a message, it provides a solid foundation on which to build.
  • The reality of our cluttered communications environment today is such that the “thirty- second sound-bite” has been whittled down to roughly nine seconds. While this reality does not obviate the need for more detailed arguments, advocates must be able to convey in a single sentence a values-oriented message about the need, and broad- based benefits, of Civil Legal Aid.
  • Making Civil Legal Aid more relevant by tapping into broadly-held values, specifically the public’s desire for fairness for all in the justice system, is vital. Fairness is the value most associated with Civil Legal Aid—whether through access to representation or leveling the playing field. Self-empowerment and protection from harm are secondary dimensions that communications can evoke. In the briefest of contexts, the most effective way to characterize Civil Legal Aid is:“Civil Legal Aid assures fairness for all in the justice system, regardless of how much money you have.”
  • In contrast to previous recommendations, this study finds that, with more time to convey an argument in favor of Civil Legal Aid, and after articulating the program’s core value (see above), it is more important to outline some of the specific services provided rather than detailing the populations typically served by Civil Legal Aid.
  • The services voters most prioritize focus on making access to quality and accurate information easier (such as easy-to-understand forms, legal assistance, and legal representation), and self-help centers so that people can know their rights. Streamlining the court system and reducing court costs also have appeal.
  • A more detailed characterization of Civil Legal Aid might employ the following language:

“Civil Legal Aid assures fairness for all in the justice system, regardless of how much money you have. It provides access to legal help for people to protect their livelihoods, their health, and their families. Civil Legal Aid makes it easier to access information—whether through easy-to-understand forms, including online forms; legal assistance or representation; and legal self-help centers—so people can know their rights. Civil Legal Aid also helps streamline the court system and cuts down on court costs. When we say the Pledge of Allegiance we close with “justice for all.” We need programs like Civil Legal Aid to ensure that the very principle our founding fathers envisioned remains alive: justice for all, not the few who can afford it.”

Third:

I am personally particularly struck by the extent to which it undercuts the legal aid message when the program is perceived as a poor person’s program which does not help ordinary voters.  Indeed, as the Executive Summary puts it:

Middle-class voters are especially sensitive about increasing funding for public programs from which they are excluded . That is especially acute here since people can imagine needing these services themselves and think it is “unfair” to be disqualified based on their income. Many participants in the focus groups expressed a desire to be able to enjoy the benefits of Civil Legal Aid. When assuaging this concern that middle-class voters are excluded, we should make distinctions about what specific services they can access such as online forms and information and self-help centers to name a few.

One possible response to this concern would be to make the program available to all on a sliding scale basis. This idea attracts much higher support than a proposal to simply increase funding for Civil Legal Aid. 

It is also important to note that the conception of “Civil Legal Aid” in the messaging is NOT intended to be limited to non-profit government funded programs, but includes court-based programs that provide services and help to litigants.

This is the recommended message response to the attack that civil legal aid does not help most people  (It should be noted that this attack raises doubts for 59% of respondents and serious doubts for 30% — but remember that after attacks are responded to, support for funding goes up):

Civil Legal Aid assures fairness for all in the justice system, regardless of how much money you have.  The program serves Americans of all backgrounds and ages, including families, children, veterans, seniors, ill or disabled people, and women who are victims of domestic violence. Civil Legal Aid provides access to legal help for people to protect their livelihoods, their health, and their families. It provides access to legal aid self-help centers, makes it easier to access information through easy-to-understand forms and online information, and provides legal assistance so people can know their rights.  Civil Legal Aid assures fairness in the justice system that all Americans deserve.

Similarly, the recommended messaging highlights types of actual services rather than specific target populations.  Note how those are a broad melange of access services rather than the traditional full service model.  These “new” services are very much the ones that are available to all.

–Provide easy-to-understand forms, including online forms, that people can use in civil legal proceedings;

–Provide legal assistance, including legal self-help centers, so people can know their rights;  and

–Provide legal representation to those who cannot afford it—because justice should not depend on how much money you have.

This also links in to the continued recommendation of the use the phrase “Civil Legal Aid”, for the following reason.

‘Aid’ resonates more strongly than other terms, such as ‘assistance’ and ‘services’, because it evokes the value of help without pigeon-holing those receiving the help or priming negative connotations of exorbitant costs borne, but not enjoyed, by middle-class taxpayers (‘Aid’ receives 25% support compared to 19% for ‘assistance’ and 17% for ‘services’).

A conclusion.  This is all terribly important, and will, I believe, ultimately have major policy as well as communication implications.  The Public Welfare Foundation and the Kresge Foundation have earned all our praise for this work, and for creating and supporting the now launched Communications Hub.

Posted in Access to Counsel, Access to Justice Generally, Forms, Funding, Legal Aid, LSC, Self-Help Services, Simplification, Systematic Change | Tagged | 15 Comments

Long-Term Impact of Fillubuster Dsipute and Rule Change on the Judicary

Posted on November 21, 2013 by richardzorza

Without in any way using this space to venture an opinion on the merits of today’s filibuster rules change, it might be worth noting that the long term effect of recent filibuster practce and the changed rule is that we are likely to see even greater divergence in the views of judges confirmed in Republican and Democratic eras. Now it takes only a president and 51 senators.

This may accelerate the process of de-legitimation of judicial neutrality.

Lets hope some countervailing force comes into play — like the public holding parties responsible for the more extreme decisions of the nominees they have supported.

Posted in Judicial Ethics | 1 Comment

Two Annoucements — TIG and a Forms Webinar

Posted on November 18, 2013 by richardzorza

Here is information for the two events taken from their announcements:

Forms Webinar:

The Self-Represented Litigation Network is presenting a webinar on forms on Dec 5.

Reserve your Webinar seat now at: https://www4.gotomeeting.com/register/426879791
This webinar features a look at forms efforts in California, New York, Washington, and Utah plus a sneak peak at new features for A2J Author. These will be done in a rapid fire, ignite format to deliver a lot of information in a short time. Join us and learn about form design, the importance of plain language, and the latest in document automation.

Thursday, December 5, 2013, 3:00 PM – 4:30 PM EST

The TIG Conference Announcement.

LSC’s 2014 Technology Initiative Grants (TIG) Conference
January 15-17, 2014, Jacksonville, FL

LSC’s TIG Conference is the only national event focused exclusively on the use of technology in the legal aid community. The conference provides a unique opportunity to learn about effective uses of technology in legal aid, network with a national community of colleagues and cultivate project ideas that could lead to successful TIG applications.

What’s Covered: Session topics will cover a range of issues such as how the use of technology can enhance internal legal services operations, improve client services, address access and triage issues and effectively provide legal information to low-income people. Sessions will also cover management of TIG projects, including reporting and evaluation requirements.

There will also be an opportunity to exchange information in more informal ‘Affinity Group’ networking sessions that attendees helped determine at registration, and an ‘Ignite’ style plenary session called ‘RAPID FIRE TECH’ to provide some fast-paced presentations highlighting technology project successes, new ideas and lessons learned.

for More Information and to Register http://regonline.com/2014TIG .

Posted in Forms, LSC, Meetings, Mobile Technology, Technology, Triage | Comments Off on Two Annoucements — TIG and a Forms Webinar

Richard Posner’s New Book Addresses Sources of Complexity in the Law

Posted on November 10, 2013 by richardzorza

I have to admit that I am responding to the New York Times review of Posner’s new book, not the book itself.

But I was fascinated by this distinction from the review.

At the outset, Posner distinguishes between two kinds of complexity: external and internal. Law regulates external complexity but does not create it — think of sexting (in a First Amendment case), the science of the human genome (in a patent case) or the nature of the Nazarite vow (in a religious liberties case). In contrast, law creates internal complexity — think of intricate rules of interpretation, bloated conventions of citation or vague and poorly written opinions. While the judiciary cannot do much about the former kind of complexity, it can — and in Posner’s view, must — address the latter.

Both forms of complexity, of course, have always existed. Yet Posner believes the rise of external complexity has triggered the rise of internal complexity. Judges, he fears, “escape from complexity into complexity.” Posner lambastes this move. Significantly, he takes aim at formalism — the view that legal rules stand above and apart from politics — particularly as embodied in “Reading Law,” a recent book by Justice Antonin Scalia and the legal lexicographer Bryan Garner. At face value, one might think formalism would clarify rather than complicate, given that it relies on rules that must be applied without regard to the judge’s personal views. Yet after noting that Scalia and Garner offer 57 varieties of interpretation, many of which conflict, Posner attacks their formalism as byzantine obfuscation.

The point for those of us pushing for simplification is that we need to be able to distinguish when legal complexity may be unavoidable because of the underlying field about which decisions are being made, and when it is being superimposed by the legal system for its own reasons.  My own view (link to recent paper) is that much of the complexity of law comes from its inherently political nature, not just that the law is making, in a sense political, and particularly distributive, decisions, but because the back and forth between political interests leads to complexity, regardless of whether it is in a substantive statute, a procedural rule, or judicial interpretations that often seek to change results by creating exceptions or divisions within prior rules.

In any event, discussion of the sources of complexity can only serve to clarify whether it is, in a particular situation necessary, or the kind that we need,  and thus help move towards appropriate simplification.

Posted in Simplification | 2 Comments

Julie MacFarlane on Barriers to Unbundling

Posted on November 9, 2013 by richardzorza

Dr. Julie McFarlane has recently blogged on the failure of the Canadian bar to provide unbundling.  Much of the blog is a discussion of the purported reasons for not availability, and a rebuttal.  The post is well worth reading for this.  In addition, she highlights how in her recent research, so many litigants wanted, but were unable to find, unbundled services.

Interviews with 253 SRL’s in my recent study (http://www.representing-yourself.com/PDF/reportM15.pdf) expose the reality that despite a decade of provincial Law Societies drafting new rules of professional conduct on limited scope retainers (LSR’s) or unbundled legal services – when lawyers provide services on an hourly basis for specific contracted tasks – lawyers who regularly offer their clients LSR’s are still about as rare as a shooting star on a cloudy night.

The 53% of SRLs in my study who started with counsel but ran out of money to pay the bills – as well as those who could never afford a retainer in the first place – were totally baffled by this. In interview after interview, SRLs described going systematically through the Yellow Pages and calling a dozen or more law offices asking: “Will you assist me with my case by (eg) reviewing my documents/ appearing with me at a hearing/ other task, and bill me only for the hours we agree that you spend on this assignment?” To their amazement, almost no lawyer said “yes”.

A total of just 13 SRLs reported receiving unbundled services. Virtually all sought and /or desired this.

This would suggest that supply is more of a problem that demand.  This is in interesting juxtaposition to the ABA survey that appeared to show that most people had not heard of unbunding, and that it is therefore a demand issue.

We need better research on this.

Posted in Unbundling | 3 Comments

More on the “Until Gideon” Symposium at Fordham

Posted on November 8, 2013 by richardzorza

At the Symposium, Earl Johnston presented on the concept of Civil Gideon, and I was one of the two responders.  As part of this presentation (and by e-mail before the meeting) he had presented some questions that he suggested would be helpful in analyzing the options presented at the meeting.  He also, made clear that he did not necessarily support providing lawyers in all cases or situations.

I thought it might be useful to pose some of his questions, and my thoughts on the ways of thinking about them — although I did not in fact get time to go into the questions, rather spending my time on triage and simplification, which I argued were the keys to any continuum of services system and thus to 100% access to justice.

Except in subject areas where the law is straight forward and self-contained can the judges accurately determine the applicable legal principles without the assistance of lawyers presenting competing versions of what those principles are?

Its a good and fair question.  And complex legal principles are surely something that lawyers are trained to figure out and argue.  But the practical reality in that only a small percentage of cases involve disputes about what legal principles apply.  In the vase majority it is only about how to apply the facts to those principles.

Indeed, the question should be “how do we identify the cases in which there are principles that need to be identified, changed or resolved, and how do we get resources to those cases.”  Its called triage, and we certainly don’t do that now.

Without lawyers to recognize errors — procedural and substantive–which a judge makes — and appeals same, how  will we know judges are making legally correct decisions and following lawful procedures?  In other words, how do we ensure we have a system of laws and not men (or women)?

The fact is that our current system is, with respect to this issue,grossly over- and under inclusive.  Our standards of review — which are tailored to a fully attorney-staffed system — protect many errors from review, even in fully attorney loaded cases.

Rather we should be asking what changes might reduce errors, not just by adding attorneys.  This would involve developing other systems of review beyond the search for technical “errors of law,” and more of a focus on preventing errors rather than correcting some of them, or rather one type of error.  This might involve more use of protocols to guide decisions, routine review of decisions regardless of expensive appeal, having several judges, or judges and laypeople, sit on cases, and statistical monitoring of results to identify outlier judges.

Can a judge deliver both the reality and appearance of justice in cases where one side is represented by counsel and the other side isn’t?

Another fair and key question (and one that presents a double challenge to civil Gideon because of the question of what happens when the state provides counsel to one side but not the other.)

What we do know is that the answer depends on the procedural rules, and the way the judge handles the courtroom.  While judges are made more nervous about these cases that the two self-represented cases, as a general matter, it is certainly possible for the judge to ensure that both sides are properly heard.  There are extensive writing and curricula on the issue.  The key is “neutral engagement” with a lot of transparency.

The simpler the process, the easier for it to work.

If the trial judge finds it impossible in a particular case, then Turner should be read to entitle him to order counsel.  And, don’t forget the possibility of McKenzie friends to assist.

Can judges operating as inquisitorial judges effectively find the facts in cases where much of the relevant evidence must be found outside the courtroom and before the hearing as opposed to just questioning the litigants before the judge?

The answer depends on the tools the litigant is given — such as protocols to assist in understanding the rules of relevance and in the gathering and presentation of evidence.  It also depends on the substantive rules — which can add enormously to the complexity of relevant evidence.  It depends on the rules of admissibility.   And on the attitude and skill of the judge.  And, finally on how much help may be given through self-help programs, non-lawyer assistance and the like.

Does it take longer for a judge to ask all the questions needed to fully develop the facts than to hear lawyers do so?  If so, can they afford the extra time and will the legislature give the courts more funding so they can? In a related question will more or fewer cases settle without court proceedings if lawyers are taken out of the equation — and what are the cost implications for the judiciary and the judicial system?

While the data are in conflict on this,once again it really depends on the factors discussed above.  We certainly need research on cost-effectiveness,  and this data must include a full cost calculation including number and cost of returns to court.

As to settlement, numbers will again be impacted by the number and type of services that are provided.  We certainly need more neutrals being trained in providing access to the self-represented.

I hope you will agree that this analysis  shows how critical simplification and triage are to a full solution.  I look forward to getting comments, including from Symposium participants.

Update:

The video and summaries from the Symposium are here.  The first one has Earl’s keynote, and my response starts at the 41.10 minute point.

Posted in Access to Counsel, Judicial Ethics, Self-Help Services, Simplification, Triage | Tagged | 2 Comments

Some Thoughts on Non-Lawyer Practice Issues After the Fordham Sypmosium

Posted on November 2, 2013 by richardzorza

Yesterday, I was at much of the excellent Symposium Until Civil Gideon at Fordham Law School.  The panel on non-lawyer practice was particularly suggestive.  After listening to the panel, I have some thoughts.

Leadership is all.  Chief Judge Lippman, by spurring discussion of the topic, and appointing a Task Force (on which I serve) has made a “far out” idea part of the mainstream.  I believe that as a result of this leadership, we will see real progress in New York soon, and that that progress will have a major impact nationally.

That the formal decisions about the scope of the unauthorized practice prohibition are determined in criminal and enforcement civil actions often means that we have bad facts making bad law.  Things are made worse by the fact that the governing statutory interpretations are often decades, sometimes many, decades old.  We need to find a way to pull back and make regulatory progress in an era of a much more flexible educational system, technology, innovation, and obvious inability of lawyers to meet access to justice needs.

In particular, the use of technology based information, forms programs, diagnostic tools, flow charts, etc., can make it possible for people with less formal legal education to provide high quality assistance, particularly when they have been trained in the substantive area in which they practice.  As Chief Judge Lippman said at the While House this spring, “Sometimes an expert nonlawyer is better than a lawyer non-expert.”

As a general matter, we have not paid enough attention, as pointed out by Prof. Gillian Hadfield at the Symposium, to the success that paralegals have had at assisting hearing officers understand and get the facts and law out in administrative proceedings.  That should provide reassurance to those who fear that those without three years of law school can not handle a hearing, at least when the judge has been trained in the techniques of bringing out needed information.

Let’s keep talking about this critical area of innovation.

Posted in Non-Lawyer Practice | 3 Comments

English/Welsh Judges Issue SRL Handbook From Which the US Might Learn

Posted on October 25, 2013 by richardzorza

A Committee of English and Welsh Judges have put together a handbook for what they call Litigants In Person, and we call the self-represented.  While the document has received some criticism, there are some elements that might be useful for us to emulate, or at least think about.  These include the use of headlines in such manuals, explanation of the McKenzie Friend concept, simpler ways of starting cases, and the concept of proportionality in decision-making about procedures.

For example, one nice feature that we might want to copy in the US is that each chapter begins with “headlines.”  Here is an example:

Headlines

(1)  To bring a claim, the Claimant must have a ‘cause of action’ recognised in law.

(2)  If a Defendant wishes to challenge the Claimant’s claim, he must raise either issues of fact or issues of law or both. Most cases involve only issues of fact.

(3)  It is essential for you as a litigant to identify the issues of fact in your case so that you can concentrate on what is really important in your case.

(4)  The court will sometimes direct parties to prepare a list of issues. You should welcome such a direction, because you will then see what your opponent considers to be the issues, and, possibly, the judge may make helpful observations about what appear to be or appear not to be issues in the case.

Those of us who find it useful to use the example of McKenzie Friends, may find this useful:

Legal ‘consultants’ and professional McKenzie Friends

There are lay people who offer advice and representation services to litigants in person in return for a fee. Some are reliable, many are not. Remember only a barrister or a solicitor can speak on your behalf in court. Sometimes an individual judge may permit a particular lay representative to address the court in appropriate circumstances, but this is a matter entirely for the judge in his or her discretion.

The McKenzie Friend. The original idea of the McKenzie Friend was that someone known to the litigant (hence ‘friend’) would provide help and support to the litigant during the hearing. The McKenzie Friend would be able, for example, to assist with documents or remind the litigant quietly of questions to put to witnesses or points to make to the judge in the closing address. It is now possible for a litigant to find a McKenzie Friend on the internet. The authors would not encourage you to use the services of someone you did not know before the litigation started to act in the capacity of friend, but we acknowledge that some advisers can provide useful help and assistance. Remember that there is no regulation of such ‘friends’.

Those interested in a simpler way of starting cases, incluidng those who think the current state court service of process system is needlessly complicated might find this UK process, in which the initial form is delivered to the defendants by the court, intriguing.

When completed you should submit the form to the court, with enough copies for each defendant, either by attending at the court office or by post, together with the court fee, where applicable. The fee can be paid in cash, by cheque payable to ‘HM Courts & Tribunal Service’, or by debit card.

A claim on line is started at http://www.moneyclaim.gov.uk. The court fee is calculated automatically and can be paid by credit or debit card. The online guidance explains the process but there is also a help desk that can be contacted in case of problems. The number is listed on the website.7.14  After the proceedings have been started the court will inform the Claimant that the claim has been issued by sending a ‘Notice of Issue’. The court will also send each defendant a copy of the claim together with the notes of guidance. Defendants have the option of admitting the claim in whole or in part or defending it. (bold added)

Those interested in ensuring that “justice” is not lost in procedure, and those interested in not wasting resources may be interested in this explanation of the Civil Rules:

The Overriding Objective

CPR Part 1.1 provides that “These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost”. ‘Dealing with a case justly’ has always been the aim of the English civil court, but from 1 April 2013 this ‘overriding objective’ is given a new definition. By virtue of CPR Part 1.2 “Dealing with a case justly and at proportionate costs includes, so far as is practicable –

(a)  ensuring that the parties are on an equal footing;

(b)  saving expense;

(c)  dealing with the case in ways which are proportionate –

(i)  to the amount of money involved;

(ii)  to the importance of the case;

(iii)  to the complexity of the issues; and

(iv)  to the financial position of each party;

(d)  ensuring that it is dealt with expeditiously and fairly; and

(e)  allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

(f)  enforcing compliance with rules, practice directions and orders.”

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Important Webinar on “Strengthening Court Systems: Understanding State and Federal Resources”

Posted on October 22, 2013 by richardzorza

The National Criminal Justice Association is presenting an important webinar on November 21 (not 20th as stated in prior version of this post), on Strengthening Court Systems.

The full description is as follows:

With state budgets tight, it is increasingly important for court systems to look outside of traditional legislative appropriations for funding and resources.  Without adequate funding, the administration of civil and criminal justice suffers, producing not only diminished outcomes for court involved individuals but increasing system costs for related justice partners.  This webinar, Strengthening Court Systems: Understanding State and Federal Resources, will highlight multiple grant opportunities available through State Administering Agencies (SAAs) and various federal partners.  In addition to discussing how court administrators can engage with and stay appraised of funding opportunities; this webinar will highlight some of the federally funded training and technical assistance opportunities offered to court systems. Attendees will also hear from court administrators about the process of applying for grant funds and showcase strategies for integrating court functions into criminal justice resource planning. (Bold added)

I understand that the webinar will cover both criminal and civil issues, although there will likeley be more on criminal.

Among the speakers will be:

  • Brooke Marshall: Executive Director, Montana Board of Crime Control
  • Bradley D. Fowler: Planning and Organizational Development Officer, North Carolina Administrative Office of the Courts
  • Michael Coelho: Undersecretary for Policy and Planning, Massachusetts Executive Office of Public Safety and Security
  • Hon. Dina E. Fein: First Justice, Western Division of the Massachusetts Housing Court
  • Jonathan Faley: Associate Deputy Director, Bureau of Justice Assistance, US Department of Justice
  • Karen Lash: Senior Counsel, Access to Justice Initiative, US Department of Justice

Sounds like a “must-attend” for any court administrator or senior staff — except for those who do not want any more Federal help!

Registration link is here.

Folks may also find the prior webinar on Expanding Stakeholder Involvement:  Promoting Inclusive System Planning useful.  Link here.  Slides here.

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New York Self-Help Follows Up on Open Souce Access to Law Reviews

Posted on October 21, 2013 by richardzorza

I rarely post based on an online comment, but this one more than deserves it.

Rochelle Klempner, Counsel to NY Deputy Chief Administrative Judge Fern Fisher , just responded to my most recent post on the new public access system to many law reviews as follows:

Thanks Richard! The source is wonderful, I tested it out this morning instead of using westlaw and easily found some great articles. We are adding the link to all our NY court website menus as an option for legal research and we are adding it to our public access terminals in our Help Centers.

What a great idea.  Not only because it means that more practitioners will learn about the site, but more importantly because it will help this resource become available to litigants.  That in its turn might help writers and editors think about broader audiences.  And, that, in its turn, might reverse the trend, highlighted in a snotty article in today’s Times, about the supposed irrelevance of law reviews.

While I think the article does make some fair points about the lack of attention paid to law reviews, it misses one point, important to the access community.  Because there is still so little pubic attention to access issues, much of the discussion and debate about access innovation really does go on in law reviews, particularly in law review symposia, such as the forthcoming Fordham Urban Law Journal one, and the recent Drake Law Review one.

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Law Review Commons Has Free Online Access to Many Law Reviews

Posted on October 20, 2013 by richardzorza

Many of us are inhibited in our research in, and citation to, law reviews because we do not have access to the commercial databases.

Now comes a major step.  Law Review Commons, http://lawreviewcommons.com.  It is a free open access system with — law reviews immediately available.  It is part of Digital Commons Network.

While the biggest names tend to be missing (Harvard Law Review, Yale Law Journal), there are still many highly regarded publications included, and some of them go as far back as 1904.  Th site claims almost 150 journals (see blog description here, and listing by topic here.)

Of course the site has a search tool.

For example, here are some that are available.

  • American University Law Review
  • Boston College Law Review
  • Fordham Urban Law Journal
  • California Law Review
  • Duke Law Journal
  • Yale Journal of Law and the Humanities

I suspect that will be my first source when I am looking for an article or a citation.  It would be cool to to think that open access is going to reward these law reviews with extra citations — in fact it will happen naturally.  Indeed, the Digital Commons blog reports that “Our analysis found that citation growth rates of open access journals were 3.8 times higher than for comparable non open access journals in 2012.”

 

Posted in Technology | 1 Comment

The Downside of Invidualized Assessement of Litigant Capacity in Triage

Posted on October 14, 2013 by richardzorza

I have long argued for the importance of triage in the access solution, the need for litigant capacity to be part of the triage process, and for that to be done on an individualized basis.

However, a recent post by Dr. Julie MacFarlane, who did the Canadian self-represented litigant study, highlights, among other things, the downside of such individualized assessment of capacity.

In discussing a Canadian case in which a judge has used the litigants apparently high capacity to justify a denial of compensation for counsel, she points out:

But now a new burden appears – apparently to qualify for state aid [the litigant] has to also show that she is not able to effectively represent herself. At the same time as she is trying to frame and present her arguments as effectively and credibly as possible to the court. Placing Rhonda between the proverbial rock and a hard place.

One might argue that this shows that the whole triage approach is wrong, or at least that the individualized triage approach is.  In other words that assessing an individual’s capacity to handle self-representation adds such burdens into the system, and upon litigants, that the idea should be rejected.

One solution would be to allow for individualized assessment of other factors such as complexity, stake, relationship between the parties, but either ignore capacity as a factor in determining what assistance a litigant is to receive or to rely only on objective factors such as educational level.

The downside to such approaches is that they would result in limited resources being allocated to cases in which they are not “needed.”  But, of course, every system is going to result in some imperfect allocations.

As we move forward with various triage systems, it will be important to asses the costs and benefits of different decision-making approaches, and different kinds of protocols.

Such research may be a fertile area for international cooperation.

Posted in Access to Counsel, Triage | 1 Comment