Professor in Nederlands On Strategies for Access Change

Posted on June 17, 2013 by richardzorza

I am just back from the International Legal Aid Group meeting in the Nederlands.  While I plan to share several ideas from the meeting, I want to start with some overall strategic thoughts from Prof. Maurits Barendrecht of HiiL/Tilburg University.

His presentation on 5 Observations about the future of legal aid  is so to the point that I can not resist including all of it (with permission):

Observation 1: Right now, traditional services eat up most of the budgets:

•Lower courts with sometimes inefficient procedures

•Legal aid by lawyers

•Supreme courts and appellate courts

•Agencies and committees

Observation 2: Is this maximizing effectiveness?

•These services provide good jobs, have a magnificent past and thus form a powerful constituency that has little interest in real change
•At the same time, these services are challenged, because they are not as effective for access to justice anymore
•So budget cut after budget cut takes place
•Present positions are defended, presenting research that shows how indispensable these services are and by mobilizing the professions

 

Observation 3: A rapidly expanding variety of newly developed services

•Legal information websites, platforms for dialogue and dispute resolution on line, rules in the form of guidelines for fair solutions; protocols and standards for solving recurring problems; with helpdesk type of services as back up.

•Assistance by fixed fee paralegal and lawyer/mediator  hybrids with a problem solving approach. This is offered through many different models (insurance, fixed fee lawyers, government subsidies)

•Third party dispute resolution mechanisms and courts that are specialized for specific justiciable problems (employment, consumer, disability, social security etc.)

Observation 4: New opportunities require different strategies

•Information and websites are public goods (private providers can hardly make money from them) but there is very little investment by governments yet. Quality is still an issue.

•Personalized assistance is mostly a private good. Most people can pay themselves or fund these services through insurance mechanisms; subsidies can be focused on specific disadvantaged groups.

•Third party adjudication is mostly a private good. Many plaintiffs and/or defendants can pay for the resolution if procedures are simple. Subsidies can be focused on specific disadvantaged groups and cases with important external effects.

Observation 5: Becoming part of the future is difficult for strategic decision makers

Some reasons:

•This requires a shifting of resources

•There is a danger of alienating the coalition of lawyers, judges and politicians that guaranteed jobs, budgets and power until now.

•Many of the new developments take place in the private sector or deep in the court organisations. The role of government is much less clear.

Possible ways out of this dilemma to explore may include:

•Radically reshuffling of subsidies to more promising innovative services

•Defending the present services much more rigorously with research and lobbying

•Becoming more like a market supervisor: leveling the playing field for new and old approaches, providing research about interventions that work, helping to certify services so as to the increase transparency and to guarantee minimum of quality

•Building platforms that connect new and old services

These observations — intended to describe the situation worldwide — seem remarkably apposite for the US.  I am only glad that so many good things are happening in the US now, that we can treat this as a helpful map, rather than a lament. I very much hope that, as we advance international communication on these issues, we will be able to learn from strategic approaches taken by other countries, and also will be able to point to specific programmatic successes.

It is probably worth pointing out in this regard that while in the US we have tended to be isolated from international legal aid developments, one area in which we are now reaping huge benefits is in the international demonstration of the value of research — a demonstration that has surely played a part in the new and critical emphasis on this in the US.  If we can see similar impact in other areas, this international networking will be of huge value.

Posted in Access to Justice Generally, Funding, Legal Aid, Simplification, Systematic Change | 2 Comments

Mass ATJ Commission Proposes Adding Access Issues to Bar Exam

Posted on June 13, 2013 by richardzorza

This is a great idea, and also an illustration of how Commissions can push the envelope.

The Massachusetts Commission has proposed to the state Board of Bar Examiners that access to justice issues be added to the bar exam.  Memo can be found here.

As the Memo puts it, after detailing the access crisis and the fact that more lawyers will, for labor market reasons, be involved in low and middle income practice:

As the Commission’s Mission Statement reflects, the Commission’s goal is to achieve equal justice for all persons in the Commonwealth, and it strives to accomplish this goal by providing and improving access to justice for those unable to afford full representation by counsel.  An Access to Justice topic on the Bar Examination therefore would include substantive areas of law in which there exists a high incidence of unmet legal needs, such as landlord-tenant (evictions and foreclosures), domestic relations, debt collection and consumer protection, bankruptcy and public benefits.  The topic would also include ethical issues that arise where not all litigants are fully represented by counsel, such as under Massachusetts Rules of Professional Conduct 1.2, 1.5, 1.14, 4.3, 6.1, and 6.5, and with Limited Assistance Representation (LAR).  Finally, the topic would include due process doctrines related to fair hearings, the constitutional and statutory underpinnings of, and limits to, the civil right to counsel in Massachusetts, and the law relating to attorneys’ fees and fee-shifting statutes.

The Memo even suggests bar exam topics (law students do not read!)

— in a real estate transaction the contract calls for delivery of the property free of tenants, but a tenant reports that there are conditions in need of repair in her apartment and she has a rent subsidy to assist her with the rent; or

— in a debt collection case, the client consults a lawyer after judgment has entered against the client, who appeared without counsel, after an unmonitored hallway negotiation in which the opposing lawyer insisted that the debtor owed the money and would be ordered to pay (raising ethical issues under 4.3) despite the fact that the client’s source of income is public benefits (so she may be judgment proof); or

— a lawyer interviews a potential client in a divorce case that includes issues relating to custody, child support and the division of marital assets.  The client, a victim of domestic violence, says her spouse controlled all the assets, so while she believes there is real property, she is not sure.  The potential client earns just enough money to put her over the legal services guidelines for eligibility, but has only limited money to pay a lawyer, and wants to know if she can hire the lawyer simply to prepare court papers and write a brief.

I hope this idea stimulates not just the adoption of changes like this, but also questions about the curriculum of law schools in general.  It is surely true that many law schools have to “teach to the test.”  Moreover, all law schools may find this approach opens more ways to linking the teaching of professional responsibility with poverty law.

Please feel free to suggest variations of this idea — and ways of approaching the examination design process.

Posted in Law Schools, Legal Ethics | Tagged , | 1 Comment

My Simplification Paper Now Out

Posted on June 12, 2013 by richardzorza

Just posted — my Drake Law Review paper on simplification: Some First Thoughts on Court Simplification: The Key to Civil Access and Justice Transformation.

Here is the abstract:

Given the discrepancy between access to justice needs and the resources that are realistically made available, current incremental approaches are almost bound to fail. The only realistic path to providing 100% of litigants with meaningful access to justice is through a simplification approach that both increases the accessibility of the legal system and reduces its costs. Indeed, we may now be in a rare moment of opportunity in which the interests of courts, bar, and legal aid align in favor of such an approach. This Article discusses the causes of excess complexity, the beginnings of simplification in current innovations, and recommends a number of short- and long-term approaches to fundamental simplification, including reconsideration of issues of burden of pleading and production. Among the suggestions is a possible reworking of the Federal Rules (and particularly their state derivatives). Those Rules are now almost one hundred years old and date back to a time when almost everyone in court had lawyers and no one, not even the government, had the luxury of technology—not even photocopiers.

I very much hope that this paper helps spark an ongoing discussion in court bar and legal aid communities about this approach — and particularly about how to get moving on the topic.  What research, what pilots, what incentives, and what partners?

By the way, the whole issue of the Drake Law Review is on Access, and has some great work in it.

 

 

Posted in Simplification, Systematic Change | 9 Comments

World Bank Meeting on Legal Aid/Access to Justice in Mediterranean Rim Countries

Posted on June 5, 2013 by richardzorza

I was privileged to be at a meeting organized by the World Bank and the Center for Mediterranean Integration on legal aid and access to justice in Mediterranean Rim countries in Marseilles.  (I know, a tough job.)  It is, sadly, no compliment to the US that I was there to share some of  our low cost access innovations, on the ground that our access systems are so badly funded that middle income countries such as those attending might have something to learn from us.  More generally, the World Bank has become involved because of the growing understanding that trust in a functioning legal system is critical for broader economic development.

There were people there from Egypt, Jordan, Lebanon, Morocco, Palestinian Territories, as well as from Moldova, Lithuania and Ukraine.  These last countries have been moving forward with the creation of legal aid systems, and have much to share with the Middle Eastern countries.

Some of the highlights:

That when programs from different countries realized that there were significant differences in cost per case, the response from the more expensive one was, “we have to go back to the drawing board.”  Sadly, all too often in the US the immediate response is to attempt to undermine the methodology or the data.  We can learn from these folks — and I told them so.

That there was so much interest in our range of innovations, such as court staff and judicial education, forms, and online legal information.

The interest in sustainability and building coherent systems.  Some of the attendees, such as Ukraine, have recently build national mixed model systems.  Others are putting in pilots, and trying to do so in ways that are both efficient and sustainable.  It reminds me a bit of the early days in the US.

The concepts widely used in these countries of “primary” and “secondary” legal aid, with “primary” assistance being in some ways close to our “information” and “brief service and advice.” Eligibility and entitlement rules are different, and different delivery systems are often used for the two.  This makes for efficiency and flexibility and is something we should focus on more.

The critical importance, understood by all, of access to justice for women, and the extent of the barriers that women face.  I heard of one country (not listed above) in which rape victims are put in prison — for their (truly needed) own protection.   Similarly, there has now been a change in the Sharia Courts in one country making it easier for women to file for divorce over their husband’s objection without showing cause, but they still have to waive alimony and dowries to obtain such a “without cause” divorce, obviously making it practical only for the rich.

Above all, it was deeply moving to see such a varied group of judges, court people, lawyers and others committed to access to justice, and with an understanding of the close relationship between access to justice, public trust and confidence, economic development — a message we often have difficulty communicating here in the US.  Lets hope that we can improve these initial communication systems and all learn from each other — we do not have an idea to waste.

Posted in International Cooperation, International Models | 1 Comment

Comment on English Legal Aid Cut Proposals Highlights Value of Client Choice

Posted on June 3, 2013 by richardzorza

As most know, the England/Wales legal aid system is going through a major set of cuts, with the government “consultation” proposing a variety of major policy changes to reduce the overall cost of the system.  Richard Moorhead, a highly reflective observer, has posted his comments, and all are worth a look.  Here, however, I want to highlight his focus on client choice — a value that has rarely been articulated in our system, in which the lack of entitlement means that the only choice a litigant has is to keep looking for a provider until he or she finds one that will take them.  Richard comments:

The proposed model suggests client choice must be removed to make the proposals work.  There are a number of problems with such proposals.  Let me emphasise the ones on which I, as a researcher, have a particular perspective:

The Scottish Public Defender pilot attempted to direct clients by birth date.  This failed for a variety of reasons, including the practical importance and operation of the exceptions.  Any system must have exceptions and there is a risk to the stated aim of the proposals that such exceptions will simply build in too much instability for direction to work as a tool for managing contract sizes.

A secondary impact of direction was significant reductions in client satisfaction with the service.  Having been forced to go to a ‘state’ provider, the legitimacy of the service declined significantly.  This may have a range of knock on effects, not least a reduction in the willingness of clients to accept advice on plea, venue, conduct during interviews and the like. This impacts on quality and cost to the court and police budgets.

Client choice also provides important long stop protection of quality.  It is true that clients are not sophisticated consumers of advice.  Nevertheless they can assess service quality and the extent to which the lawyer remembers relevant facts about their case.  Client views are also related to the impact of outcomes on their judgments about lawyers.  Thus client satisfaction, and client choice, are proxies for quality which it is important to maintain within the system if at all possible.

As we move into a triage based system, we will have an opportunity to add more of client choice, even without an entitlement system.  Between application and service there will be an assessment of need, and following a finding of need for a particular service level, there is the possibility of providing choice between providers who offer service at that level of need.

It would surely, at a minimum, be worth testing such a client driven system, and its impact upon the aspects that Richard discusses above.

How might such a system be build?  How might it be tested?

Posted in Access to Justice Boards, International Models | 1 Comment

Interesting Article on Ideas to Change Ethics Rules to Facilitate Pro Bono

Posted on June 1, 2013 by richardzorza

Esther Lardent of the Pro Bono Institute has an interesting article in the National Law Journal on how current ethics rules inhibit pro bono.  Lots of good ideas for change here.

  • Limits in multi-jurisdictional practice get in the way of multi-jurisdictional pro bono
  • Student practice rules are too complex
  • Judicial ethics rules can deter advocacy and recruitment for pro bono
  • Lawyers and judges are still uncertain about appropriate roles in unbundling
  • Conflict of interest rules — particularly those dealing with imputed conflicts — need clarification

Of course this is a subset of a broader issue relating to access to justice in general.  Ideas on how all these issues might be addressed would be welcomed in the comments.

 

 

Posted in Legal Ethics, Pro Bono | Comments Off on Interesting Article on Ideas to Change Ethics Rules to Facilitate Pro Bono

The Access to Justice Vision Was Articulated Almost 50 Years Ago By Attorneys General Kennedy and Katzenbach.

Posted on May 28, 2013 by richardzorza

As we celebrate that we have an Access to Justice Initiative at DOJ, we should remember that almost 50 years ago the access vision was articulated by two US Attorneys General – and that it was a comprehensive vision remarkably similar to the one we are pursing today.

On May 1, 1964, Law Day, then Attorney General Robert Kennedy, speaking at the University of Chicago Law School, urged a broader responsibility upon lawyers.

As a profession we have conveniently – perhaps lazily – abdicated responsibility for dealing with major social problems to other professions – sociologists, educators, community organizers, social workers, psychologists.

Rarely if ever do the best lawyers and the best law firms work with the problems that beset the most deprived segments of our society.  With some outstanding exceptions, that work is done – if it is done at all – by the members of the bar who have least prestige, who are likely to be poorly trained, and who are likely themselves to be engaged in a struggle for economic survival. .  .  .

But we as a profession have backed away from that larger [poor peoples’] helplessness.  We have secured the acquittal of an indigent person – but only to abandon him to eviction notices, wage attachments, repossessions of goods and termination of welfare benefits.

To the poor man, “legal” has become a synonym for technicalities and obstruction, not for what is to be respected.  .  .   .

First we have to make law less complex and more workable.  .  .  .  Second we have to begin asserting rights which the poor have always had in theory.  .   .   .  Third, we need to practice preventive law on behalf of the poor.  .   .   .  Fourth, we need to develop new kinds of legal rights in situations that are not now perceived as involving legal issues.

And, on November 12, 1964 (just after the landslide election), Nickolas Katzenbach, by then Acting Attorney General, spoke at the Conference on Extension of Legal services, as follows, after describing typical legal problems of the poor that we would recognize today:

There must be new techniques, new services and new forms of inter-professional cooperation to match our new interest.  .  .  .  There are signs too that a new breed for lawyers is emerging, dedicated to using law as an instrument of orderly and constructive social change.  .  .  .  Experimental internship programs like those run by Georgetown Law School are beginning to infuse academic training with experience drawn from the reality of life, rather than from the disembodied “facts” of appellate decisions.  .   .  .

One of the threshold problems in this new era is simply to make rights known.  .  .  .  Second, even if rights are known, they can protect and provide little if they are entangled in a maze of technicality, detail, and subsections.  Faced with such complexity, even the informed poor, are given the choice of walking through life with a lawyer at their side, or surrendering to the “can’t fight city call” philosophy.  Third, the protection of the rights of the poor depends upon advocacy .  .  .  .  And fourth, we must generate an understanding that law alone is no answer.  If we thought that courts were the place to resolve every dispute, we should be devoting our attention not to providing legal services to the poor, but to immediately finding thousands of judges for our courts.  .  .  .

It does not take a lawyer to right every wrong.  .  .  .  As an example, let me recall the example of a woman on the West Coast with seven children, supported by welfare.  A fire destroyed the roof of their house.  The woman was too poor to move or repair the damage.  The response of the welfare agency was to cut off her welfare payments. She was living, they said, in unsuitable housing.   It does not take a lawyer to respond to this situation, and it did not.  A young woman who heard about this case took it upon herself to become an advocate – to go to the welfare authorities and indignantly ask what was the legal authority for the suspension of welfare.  The check was issued immediately.  .  .  .  We need more people like the woman we just described.  We need what is in effect a new profession – a profession for advocates for the poor, made up of people from all professions, committed to helping those who are in trouble.  That job is too big — and I would add too important – to be left only to lawyers.  

It is all there – simplification, roles for non-lawyers, law for social change, pro bono.

Without the leadership expressed in those speeches the legal services movement might never have gotten going.  And it is wonderful that the same commitment is expressed by the Attorney General and indeed the Vice President.

And its surely now therefore overdue for us to get more such leadership day-to-day – let’s please have DOJ get a new head for the Access Initiative.

Posted in Access to Justice Generally, Dept. of Justice | 6 Comments

California Courts Reaffirm Committement to Self-Help

Posted on May 27, 2013 by richardzorza

After a period of general uncertainty in the California courts, driven by budget pressures, it is great to see that the Judicial Council has reaffirmed the importance of self-help, as viewed throughout the system.  On May 17, the Council issued REINVESTING IN OUR JUSTICE SYSTEM, Judicial Branch Accountability & Outcomes for Fiscal Year 2013–2014.

This document includes the following:

Trial Court Funding Priorities

At the request of the Chief Justice, trial court presiding judges and court executive officers have identified the top priorities for which they would anticipate expending new appropriations of funds to improve access to justice. The top priority of the trial courts is to reduce structural deficits in order to restore support staff sufficient to provide improved access to justice in the following areas:

 Restore and expand self-help services.
 Restore standard business hours.
 Reduce delays in adjudicating cases.
 Reopen closed facilities or suspend anticipated closures.
 Increase services through automation and efficient business practices.

The system remains one with very broad local discretion, and so it is particularly reassuring to see that this reflects broad information gathering from leaders at the local level.  I hope that similar exercises in other states yield similar results.  At a minimum this shows that sustained investment reaps the kind of benefits that build long term support for these services.

Posted in Funding, Self-Help Services | Tagged | Comments Off on California Courts Reaffirm Committement to Self-Help

Canadian SRL Project Sponsors Dialog Event — A Model for Us all

Posted on May 22, 2013 by richardzorza

What a great idea.

As Julie MacFarlane blogs about the follow up to her Canadian SRL Report:

60 people gathered in Windsor to discuss the research report – 15 of them SRL’s from the study. The other 45 guests included judges from each participating province (including a Supreme Court of Canada justice), leaders of regulatory bodies (the Law Societies) in each province, directors of legal aid, court services managers, policymakers from the justice ministries and directors of pro bono service organizations. The goal? To present the normalcy, reasonableness and courage of SRL’s – and to give the 45 justice system folks a ring-side view on the experiences of individual SRL’s, in their own words.

Here is my favorite para:

First thing Saturday morning one of the SRL’s rose to his feet to say this: “In court, I felt like an outsider going into a bull fight. I was given the impression by the court that I was a troublemaker. Yesterday, through the discussions I felt that the burden of that label, that was imposed on me and I had accepted, was lifted.” Next a judge who had dined with a group of SRL’s the night before, stood up and said: “After years on the Bench, it is amazing to me that I need to come to Windsor, to get the first feedback I have ever had from a litigant who has appeared before my court. What other institution or service does not get direct feedback by some means from its client/customer/recipient population?” A SRL made the next, crucial, observation: “What I understood yesterday is that everyone is afraid, not just the SRL’s. Judges and lawyers don’t want to get involved with self-reps because they fear that then they will not be impartial. The court staff don’t feel that they can help because they are afraid of the consequences of giving legal advice. So the self-reps are always interacting with people who are fearful.”

Please read the whole thing, and think about how you might create a similar event in your jurisdiction.  What might we learn?  How might this stimulate change projects?

 

Posted in International Models, Research and Evalation, Self-Help Services | Tagged | 1 Comment

Important New Canadian Report Highlights Challenges Facing the Self-Represented and Innovation and Research Lessons for the US

Posted on May 21, 2013 by richardzorza

An important new report, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, by Dr. Julie MacFarlane, supported by grants from the Law Foundation of Ontario, the Law Foundation of Alberta, and the Law Foundation of British Columbia/ Legal Services Society of British Columbia, is part of a major access initiative in Canada.

This is the most challenging finding, based on interviews with almost 300 self-represented litigants:

Some SRL’s began with a reasonable sense of confidence; others began with trepidation. However within a short time almost all the SRL respondents became disillusioned, frustrated, and in some cases overwhelmed by the complexity of their case and the amount of time it was consuming.

And:

53% of the sample had been represented by counsel earlier in their action. Three quarters of these had retained a private lawyer, and the remainder had been legally aided, but this was now discontinued. These respondents had exhausted their available resources and were often resentful that despite significant expenditures on private legal services, they were still not at the end of their action. Past experience with legal counsel in an earlier case or legal transaction was not dispositive in their decision to self-represent.

I am not sure if we have exactly equivalent stats for the US, but we do know that there is a high level of change in representation status during cases.

The tone of the report is NOT that it is impossible for the court to open itself up to the self-represented, merely that it has not done so.  Of course, it would be nice to think that we do not have this problem in the US because of our investment in self-represented accessibility, but it would be the height of arrogance to come to that conclusion without data, and in any event such a conclusion would have to be state specific.

Here are just some of the other Canadian findings from this very comprehensive report:

  • The vast majority of the self-represented made the choice for financial reasons, and indeed had tried but failed to find lawyers they could afford (an interesting question we should survey more.)
  • Those litigants who saw the same judge each time they were in court were much more satisfied (this is a major lesson that we need to take to heart, and and a reform issue to which we have not yet paid enough attention.)
  • the self-represented lost money and even jobs as a result of the time and complexity of handling their cases.
  • Many litigants do take advantage of their right, available in most non-US common law countries, to being “friends” to court to provide moral and perhaps practical assistance, but there is confusion about the scope of this right. (Again something we should be .)
  • Litigants want and need coaching services (e.g. through unbundling.)
  • Online resources focus too much on legal technicalities and not enough on practicalities like presentation of evidence, negotiation etc. (Is this ever true in the US too!)

Everyone should take a look at this, not only because of the suggestive findings, but because of the methodological approach, which included a highly practical review of online resources.  We need to be doing the same kind of study.  The recommendations would be very familiar to us in the US, and are highly practical.

 

Posted in International Models, Research and Evalation, Self-Help Services | Tagged | 6 Comments

David Udell Blogs on New Jerseys Consideration of Bar Admission Pro Bono Requirment

Posted on May 17, 2013 by richardzorza

David Udell, director of the National Center for Access to Justice has an excellent summary on his blog, here, of the NJ proposal for a bar admission pro bono requirement.

Among the differences from NY are limitation to programs and projects serving low income people, inclusion of “law school community education projects,” and allowing the work to be done prior to the date of admission, rather than prior to application for the bar.

This idea is spreading very quickly.  It will be interesting to see if it impacts long term pro bono participation.  Indeed, the NJ proposal includes an evaluation to be done in two years.

 

 

Posted in Law Schools, Pro Bono | Tagged | 1 Comment

Guest Blogger Magistrate Simon Mole on How Colorado’s Early Experiments with Proactive Case Processing are Fascinating from an ATJ Perspective

Posted on May 14, 2013 by richardzorza

John Greacen and Pamela Gagel have reported here on using court-convened initial status conferences for managing domestic relations cases. The status conferences enabled triage and the shepherding of pro se litigants via differential case management.  Greacen and Gagel give subtle insights at a time when the ATJ community looks to simplify civil procedure for self-represented litigants.

The experiment began over a decade ago.   Five “pilot study” judges committed to proactive case management in a randomized comparison with five “control courts.” These exercised the “laissez faire” docket management in vogue when the study commenced.  The pilot study judges moved their cases faster, with fewer motions and fewer temporary orders hearings. However, intense case management increased court appearances, and perversely reduced out of court settlement, because settlement occurred after early court intervention.  To the investigators’ surprise, discovery issues featured in fewer than 10% of domestic cases.

With ten years’ hindsight, the study provides no support for the idea that better pre-decree case management would yield reduced post-decree activity.  Approximately 75% of cases never came back to court in the ensuing decade, even when they involved young children. Families did not bring justiciable post-decree problems back to court, even though their children’s support and parenting needs likely changed over the decade.  One wonders, were litigants so satisfied, or so traumatized that they did not return in either pilot or control cases?

Finally, active case management seems to have helped with represented, rather than pro se litigants.  Settlement rates increased among represented parties, although cases with counsel tended to remain the most litigated, even post-decree.  This deserves more than academic interest, because this case management style became the rule in Colorado (C.R.C.P Rule 16.2).  There is a wealth of valuable detail in the full report here.

Simon Mole,  Magistrate in the 17th Judicial District, State of Colorado simon.mole@judicial.state.co.us

Posted in Access to Justice Generally, Court Management, Guest Bloggers | 1 Comment

National Center for State Courts Strategic Campaign Prioritizes Access to Justice and Sets Rules Simplification as Objective

Posted on May 12, 2013 by richardzorza

This is great news.

The National Center for State Courts Board has just approved its Strategic Campaign for 2013-2016, and, under the title Solutions for Enhancing Access to Justice for All, it includes as one of its four key elements access to justice.

The issue is explained as follows:

If state courts are to remain viable they must over-come numerous challenges. None may be more important than providing access to courts for all citizens. Failure to solve this problem may relegate courts to a diminished role in our democracy. There are four aspects to this problem. First, current services for litigants with limited English proficiency are woefully inadequate. Second, courts must find ways to accommodate the growing number of self-represented litigants. Third, it is no longer just the poor who cannot afford lawyers. Most middle-income people find it difficult to hire a lawyer for anything other than a specific task. And fourth, under current court rules and procedures, the legal process for most civil litigants is too complex, lengthy, and expensive.

Moreover, the three identified objectives include rules simplification:

• Use “cloud” technology to provide remote court interpreters across the country and develop a process for state courts to cross-certify court interpreters.

• Help courts simplify and streamline their rules of civil procedure.

• Increase convenience for court users by developing models to allow appropriate transactions to be completed online.

This all represents a huge potential to help move the access agenda forward.  In addition to the specific tools and services that NCSC will develop, it will surely be of use to access advocates at the state level to highlight the national priority being given to this issue.

Posted in Rules Reform, Simplification, Systematic Change | 1 Comment

Time for An Overall Evaluation of the ATJ Commission Network?

Posted on May 9, 2013 by richardzorza

Its now 20 years since Washington State launched the first Access to Justice Commission (actually they called it a Board).

The Commissions Network now covers over half the states, continues to expand, and is recognized as at the core of the overall national access strategy.  The Conference of Chiefs has endorsed the approach.

However, there is a wide variety of forms of appointment, membership models, scope of authority, internal structure, relationship to the state Supreme Court, funding, hosting, relationship to IOLTA program, etc.

Maybe it is time to do an overall evaluation of the benefits and costs of different approaches to these organizational and structural issues.  Maybe we can start to identify best practices.  Yes, the situations in the states are all very different, but that does not make it impossible to analyze what works where, and why.

Perhaps its time to move to the next level of commissions.  This may be the way to start that process.

 

Posted in Access to Justice Boards, Research and Evalation | 3 Comments

Towards a New Accss-Friendly Rules Project

Posted on May 9, 2013 by richardzorza

Here is a potentially transformative idea that I raised at the recent Symposium at Harvard Law School on Civil Gideon.

Maybe it is time to rethink the Federal Rules Project.

Back when the Federal Rules were first being put in place in the 1930’s, everyone assumed that everyone would have a lawyer, and no one had ever heard of computers or even photocopiers.

Yet those Rules, or versions with only relatively minor modifications, govern a huge percentage of the civil cases in the US.

Is it any wonder then that the system is choking on itself?

The Rules, after all were an access project, something we often forget, and we need to re-think what would facilitate accessibility in this new era.

While it is way too early to analyze what 21st century rules would look like, here are a few thoughts:

Burden of pleading, proof and production — these should be radically rethought in a world of massive databases, and corporate data aggregation. As a general matter, those with more information should be required to provide it much earlier — think about the mortgage fiasco and the damage it did the world economy.

Discovery — again, needs rethinking, refocusing, and a structure that puts more emphasis on who has or should have the data.

Compliance — the Rules Project did not nothing on compliance, and we still live with the unanticipated consequences.  As a general matter, and with protection against corporate overreach, we should make the courts more responsible for ensuring compliance, as has happened in the child support area.

Who moves the litigation — the Rules Project did not change the fundamental tradition that lawyers move cases (sometimes) and courts respond (sometimes).  The caseflow management movement can best be seen as a response to the partial recognition that this is not enough.  But, today, we need a much more fundamental re-think of this assumption.  So everything about motion practice (the hardest maybe for the self-represented) has to be rethought.

You will be hearing more from me about this.  I welcome thoughts not only on substance but also on strategy.  Where do we get this conversation going?  In law schools?  In access commissions?  At the Courts?

Posted in Access to Justice Generally, Court Management, Simplification | 1 Comment