Making the Law Public

Posted on April 19, 2012 by richardzorza

Here is an interesting post about the problem of law that governs the public not being publicly accessible.

Specifically, the problem is that some laws incorporate by reference standards that have been established by non-governmental entities that can only be accessed by paying.

The post describes a plan in which an individual plans to buy access to the information and then make it public (I guess there might be intellectual property issues here).

I am no expert on his area of the law, but I would wonder about the due process issues involved when you are in violation of the law, and the only way you can get full notice of the law is by paying a hefty fee.

Its a very worrying area, at least as presented in the post to which I link.  Its a particular problem for those without resources or counsel.  Its also  a strong argument for law and public libraries to have comprehensive access.

Posted in Uncategorized | Comments Off on Making the Law Public

Progress on Improving Judicial Evaluation Surveys

Posted on April 17, 2012 by richardzorza

I recently posted about some disturbing research strongly suggesting that the results of judicial evaluation surveys reflect cultural biases against women and minorities.

I am glad to be able to report that there is some important work going on to address this problem. Jenny Elek and David Rottman at the National Center for State Courts and Brian L. Cutler at the University of Ontario Institute of Technology have reviewed these surveys against recent research into the use of surveys in work performance evaluation generally, and discovered that the surveys often are inconsistent with recent research into how these surveys can be made more accurate.  For example, they found many instances of double barreled questions such as “Uses common sense and is resourceful in resolving problems that arise during proceedings,” as well as questions that did not refer to direct observations.  Moreover, there were significant problems with sampling and other survey methodologies.  In other words, these are fixable problems.  (The general point is that when a survey is badly designed, people will not be properly focused on the behavior od judges, and will therefore be more likely to rely on their unconscious biases, rather than their knowledge.)

The three will shortly be publishing a paper on their findings, and are also working with a state on constructing and administering surveys that would not suffer from these defects.

This sounds very important, and I hope that states will soon be paying serious attention to this issue.

Posted in Judicial Ethics | Tagged , | 1 Comment

Southern District of NY Pro Se Trial Manual

Posted on April 16, 2012 by richardzorza

The Southern District of New York provides to all self-represented litigants whose cases are scheduled for trial this Trial-Ready Manual, prepared with the assistance of the Committee of the Federal Courts of the New York County Lawyers’ Association.

As the Table of Contents, pasted in at the bottom of this post, shows, this is a remarkably comprehensive document, which would be of great help to any self-represented litigant.  I would urge its use as a model for other jurisdictions.  (It includes, for example a detailed discussion of the risks of cross-examination, and of techniques to avoid these dangers.)  One strength of the Manual is its inclusion of Practice Tips in many areas (although I might delete the word “practice” from the name.)

But, it also shows the complexity of Federal Court practice, and highlights how difficult it must be for the self-represented to do a good job for themselves in this environment.  I remain of the view that the bulk of self-help work in the Federal courts will be through various forms of unbundled assistance until the Federal Courts have made procedures more self-represented litigant friendly.  This will include educational programs for judges on how to exercise discretion to make the process manageable, as well as the creation of more forms and tools.  This manual is an obvious and highly significant step forward.

The Table of Contents of the Manual is below. Continue reading →

Posted in Federal Courts, Self-Help Services, Simplification | Comments Off on Southern District of NY Pro Se Trial Manual

Tennessee Offers to Share Pro Bono Attorney Software That Screens and Links Those with Questions to the Atty

Posted on April 14, 2012 by richardzorza

This from Buck Lewis, Chair of the Tennessee Access to Justice Commission:

After three years of planning and over a year of operation, I am pleased to tell you that Tennessee is operating a successful online pro bono web site at http://www.onlinetnjustice.org. Clients are screened online and post questions online that are answered by approximately 300 volunteer attorneys. We have helped about 1500 clients so far, between 100 and 150 a month.Lawyers who are home bound or taking a hiatus from the regular practice love the site because they can help people and stay involved. LSC entities are delighted to have a place to which they can direct clients who must be turned away due to funding cuts or statutory restrictions. Clients in areas where very few lawyers are located can connect with lawyers anywhere in the state.The site is now being translated into Spanish.

. . . The program code was written by our law firm’s IT programmers. We are happy to license it free of charge to any ATJ organization which will use it to provide pro bono services.

Our colleagues in [two states] have indicated that they want to use our program to launch sites in their states. We would be very glad to offer it to your states as well. We can give you a temporary lawyer’s password and walk you through it if you want to check it out. We think we have dealt with most of the technical and ethical issues that might arise with an online pro bono web site, and we are eager to share what we have done and learned with other states. Please let me know if you are interested.

Warmest regards.

Buck Lewis
Chair,Tennessee Supreme Court Access To Justice Commission
Baker,Donelson,et. al.
2000 First Tennessee Bldg.
165 Madison Ave.
Memphis,TN 38103
Blewis(at)bakerdonelson.com

Great idea and great spirit.

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A Perspective on Human Decency

Posted on April 13, 2012 by richardzorza

This is only about justice in the broadest sense.

I am just back from the Ukraine, with my aunt showing us, including our almost eleven year old grandson, how she survived the Holocaust.

There we are, walking down the street along which people were marched to be loaded onto the cattle trucks to the gas chambers (she escaped by literally being dropped by my grandparents through a hole in the cattle truck).  My aunt is old, and asks someone if there is a bus.  Immediately a man steps into the middle of the street, waves a bus to stop, and tells the driver that we are visitors and to take us free to the train station for free — which he does, surrounded by obvious welcoming warmth throughout the bus.

It turned a place of horror into a memory of the generosity of the human spirit.

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Nevada Study Suggests that Evaluation of Judges Still Subject to Bias

Posted on April 12, 2012 by richardzorza

This is sad, disappointing, and perhaps predictable.

A careful study of attorney evaluation of judges in Nevada finds statistically significant indications that attorney evaluators are reflecting social bias.  Here is the abstract:

Judicial performance evaluations (JPEs) are an important part of the judicial selection process in the states, particularly those using a version of the merit plan. All states that use JPEs follow the ABA’s Guidelines (1985), which claim to minimize the potential for unconscious bias through the use of behavior-based evaluation. But these measures have yet to be subjected to rigorous analysis. This analysis of the “Judging the Judges” survey of Nevada attorneys provides such an analysis. After controlling for objective measures of judicial performance, gender and race still contribute significantly to the scores on all of the behavior-based measures implemented in the Nevada poll. I find evidence of significant unconscious bias, as social cognition theory would predict. The analysis also cast serious doubt on the overall validity of these measures of judicial quality. This result raises serious questions about the validity and fairness of JPEs around the country.

The basic methodology, as I understand it, was to show that that the differences in survey evaluations of minority and female judges were not consistent with the prestige of the judges’ law schools, or their reversal rate, or their experience.  The key para is here:

. . . The set of independent variables explains about a third of the variance in the dependent variables. But, across the board, the coefficients on the race and gender variables are statistically significant and of high magnitude. Women score almost two tenths of a point lower than men, even after controlling for the various alternative measures of judicial performance. Minority judges fare even worse, losing more than a quarter of a point, regardless their scores on the objective measures. On a three point scale, this is of magnitude large enough to cause some alarm.

Obviously this has implications way beyond judicial retention issues.  It suggests that women and minority judges are still given a “hard time” in one way or another.  It makes you want to cry, 60 years after the cases opening legal education to minorities.

Posted in Judicial Ethics, Research and Evalation | Tagged | 3 Comments

NPR Story on Alaska Pro Bono SRL Unbundled Dispute Resolution

Posted on April 5, 2012 by richardzorza

NPR (US National Public Radio) has done a great story on Alaska’s program that uses unbundled pro bono assistance to speed the resolution of cases that are “almost there.”

As I understand the process, the court Self-Help program reviews the cases and identifies those that appear amendable to early resolution in that the parties appear not to be too far apart, and appear to have the capacity to move to agreement.

Those cases are put on a special calendar, and given unbundled pro bono assistance.  Most cases are resolved that day.

What is unique about the program, now being replicated in Alaska and maybe beyond, is the use of court staff to screen for those cases in which such intervention will make the most difference — and early example of the diagnostic approach we need.

Stacey Marz runs the program.

Posted in Pro Bono, Self-Help Services, Unbundling | Tagged | 2 Comments

Interesting Post on South Africa Proposed Law on Traditional Courts

Posted on April 1, 2012 by richardzorza

There is obviously substantial dispute about the concept of traditional courts, with advocates promoting their use of non-adversarial values, and opponents fearful that such an approach removes the key power of courts to protect the weak and vulnerable against the patriarchal power of traditional structures.  A recent post in the international access to justice blog, provides an interesting analysis of how this tension works out in the debate over the South African proposed law.

On the one hand:

When deciding upon disagreements traditional courts should apply customary law and customs. Through bringing justice to the communities the Bill aims to:

  • Affirm the values of traditional justice which is based on restorative justice and reconciliation. In the language of the Bill, restorative justice and reconciliation are true African justice values;
  • Affirm the role of the institution of traditional leadership;
  • Enhance the effectiveness, efficiency and integrity of the traditional justice system;
  • Enhancement of the quality of life of the traditional communities through mediation;
  • Promote access to justice for all persons in South Africa.

As foreseen in the Bill, traditional courts should prevent conflict, maintain harmony and resolve disputes where they have occurred. For instance, the sanctions imposed by the Traditional courts cannot be inhumane, banish one of the parties from the community or be humiliating (corporal punishment is explicitly outlawed)

On the other:

Some challenge the wisdom of centralization of local powers in the hands of non-elected and unaccountable traditional leaders. Moreover, the structure of the traditional courts centralizes significant powers to a single individual. It is not difficult to see traditional leaders disposing justice despite of conflicts of interests.
Others challenge the patriarchical fundaments of the institute of traditional leadership in South Africa and warn that such institutions can further harm the interests of women and other vulnerable groups such as foreigners who make sizeable proportion of the population of many rural areas. An example of the attitude that some traditional leaders might have towards women is a story from Prudhoe village, where an eight-month pregnant woman tried to claim damages from the man who made her pregnant and then abandoned her. The tribal court decided that she was just speculating with the good name of the man. Also the court said that the man’s father is rich and important and it is not desirable for the community to “pull their family name in the mud”. At the end, instead of being given relief, the pregnant woman was sentenced to corporal punishment.

Posted in Access to Justice Generally, Mediation | Tagged | Comments Off on Interesting Post on South Africa Proposed Law on Traditional Courts

DOJ Announces Approval of Colorado Language Access Plan

Posted on March 30, 2012 by richardzorza

From DOJ:

The Justice Department approved a language access plan released by the Colorado Supreme Court just last week. Adoption of the plan was required by an agreement signed on June 28, 2011, by the Department and the Colorado courts to settle a civil rights investigation. The investigation arose after a complaint was filed under Title VI of the Civil Rights Act of 1964 and the nondiscrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968 alleging that the courts were engaged in national origin discrimination by failing to provide comprehensive language access to all proceedings and court operations.

The “Strategic Plan for Implementing Enhanced Language Access in Colorado State Courts” sets forth a series of guideposts over the next two years for the court system to implement the directive when the agreement was signed. While any good language access plan has to set appropriate priorities in light of existing conditions, the structure and scope of the Colorado plan will be instructive for other entities adopting or revising plans.

Here is the plan itself.  It is comprehensive, and includes policy, areas of management responsibility, and a complaint procedure.

Read it.

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LSC Intake Rules– LSC Asks for Comment on Proposed Program Letter

Posted on March 27, 2012 by richardzorza

LSC has posted for requested comment a proposed Program Letter on “Financial Eligibility Screening Guidelines.”  The whole draft is here.  Comments are due April 25.

Here is the body of the proposed Program Letter (footnotes omitted): Continue reading →

Posted in Access to Justice Generally, Legal Aid, LSC, Technology, Triage | 2 Comments

Some Procedural Fairness Lessons for Assessing the Supreme Courts Oral Arguments in the Affordable Care Act Cases

Posted on March 27, 2012 by richardzorza

Justice Steven Leben (Kansas Court of Appeals) and Judge Kevin Burke (Minnesota trial Court) have a fascinating article in the MinnPost about how the lessons of procedural fairness can help guide how the Supreme Court judges conduct oral arguments on the affordable care act, and on how we and the public can assess their conduct.  The article should help us cement our own understanding of appropriate judicial conduct.  Some gems from the article:

“Voice is simple to understand: Will the justices be patient and convey that they are interested in what the lawyers have to say? On this score, Justice Clarence Thomas, who has his own set of critics, arguably is exemplary. He never asks questions and sits attentively. On the other hand, silence is not typically considered golden at an oral argument; questioning is the natural and expected way a judge explores a party’s position.”

I am no fan of judicial silence, partly because it may in fact mask pre-judgement.

Former Rep. Morris Udall asked for “the wisdom to utter words that are gentle and tender, for tomorrow we may have to eat them.” Wise judges know this too; we are not always right, and sometimes in the course of a career on the bench we must admit this. Practiced respect for the views of others, combined with the humility that comes with the knowledge that we sometimes may be wrong, fits well with the public’s expectation of a respectful judge.

Admitting the possibility of error should only increase respect.  Provided of course it does not convey a lack of confidence.

But even with ample time, the attitudes demonstrated by the justices will frame perceptions of their fairness. Sen. John McCain attended the oral argument on the McCain-Feingold campaign-finance bill that he had sponsored. When the Court ultimately ruled in Citizens United v. FEC (2010) that the government could not ban political spending by corporations in candidate elections, Sen. McCain spoke in an interview about the attitudes he had observed during oral argument:

“I was not surprised at the Supreme Court decision. I went over there to observe the oral arguments. It was clear that Justice Roberts, Alito, and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [the law.].” (CBS, Face the Nation, Jan. 24, 2010.)

Sen. McCain has certainly been around the block and heard harsh attacks. Yet he remembered several months after oral argument that there had been “very skeptical and even sarcastic comments” made by several justices.

Hostile — or pre-judged — questioning is the antithesis of neutrality.  Learning how to reassure that questioning is neutral, even when pursuing a particular path, is an important skill for the engaged and neutral judge.

I refer to some of my articles on engaged judging.

A NEW DAY FOR JUDGES AND THE SELF-REPRESENTED: The Implications of Turner v. Rogers

A NEW DAY FOR JUDGES AND THE SELF-REPRESENTED
Toward Best Practices in Complex Self-Represented Cases

Posted in Judicial Ethics, Supreme Court | Comments Off on Some Procedural Fairness Lessons for Assessing the Supreme Courts Oral Arguments in the Affordable Care Act Cases

National Employment Law Project Offers Webinar on Tools for LEP Applicants for Unemployment Benefits

Posted on March 26, 2012 by richardzorza

Here is the description:

Since the Clinton Administration, there has been an Executive Order in place requiring entities that receive federal funding to assess needs in their communities and have a plan for access to their services for the limited English proficient.  Nevertheless, throughout the great recession, LEP workers have faced obstacles to getting the unemployment insurance benefits to which they are entitled.  In September 2011, at the urging of advocates, ETA issued a new Unemployment Insurance Program Letter to further outline state responsibilities.  Hear about the development of the UIPL, its text, and a model for state level advocacy to insure that LEP workers can get the UI benefits they deserve.

Moderator:  Rebecca Smith, NELP
Presenters:  Anita Myerson, Legal Aid Society of Cleveland
                      Brian Flynn, Greater Boston Legal Services

Registration Link here.

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New Free Sue Talia Unbundling Webinar

Posted on March 24, 2012 by richardzorza

Wed. April 18, 9:00 AM, Pacific, Sue Talia will be doing an online webinar (registration link).  It is free.

Anyone can sign up to participate live. It will also be posted for free on the PLI website for a year. The substantive focus will be family law, but the third hour will be an overview of developments nationally and a discussion of various states’ approaches.

Here is the program description:

EXPANDING YOUR PRACTICE USING LIMITED SCOPE REPRESENTATION 2012

April 18, 2012

9:00 a.m. – 12:30 p.m. (Pacific Time)

Why You Should Attend

This program will provide an introduction to the rapidly changing practice of limited scope representation (often called “unbundling”) in a family law context, including all of the fee agreements, forms and other materials you will need to practice limited scope representation competently, safely and profitably.

What You Will Learn

  • The ethical rules governing limited scope representation
  • How to limit risk, including malpractice and insurance coverage issues
  • How to identify the cases which lend themselves to limited scope representation
  • How to reach a currently untapped pool of paying clients
  • How to market your limited scope practice
  • How to use limited scope to expand pro bono recruitment, lawyer for a day programs, and stretch legal services budgets farther

Note:  Although the program is broken into one-hour segments for convenience, it is strongly recommended that you take each segment in sequence and not skip ahead, as they build on each other.

Who Should Attend

Solo and small firm family lawyers who serve middle class and moderate income clients, any family lawyer who wants to expand their client and referral base, and pro bono recruiters and legal services providers who want to learn how to help more clients with limited funding would benefit from attending this program. 

 Sue is, of course, a real leader in this area, and this is a great opportunity.  I will update when the online version is posted.

 

Posted in Middle Income, Unbundling | Comments Off on New Free Sue Talia Unbundling Webinar

Online State Codes Project Passes Milestone — First State, Virginia, Now In Public Beta

Posted on March 23, 2012 by richardzorza

This is a nice idea.

Here is the idea, from their website:

State codes are wretched. Seriously, look at a few: California’s, New York’s, Illinois’, and Texas’ are all good examples of how stunningly difficult that it is to understand state laws. They don’t have APIs. Virtually none have bulk downloads. You’re stuck with their crude offerings.

The State Decoded is a platform that displays state codes, court decisions, and information from legislative tracking services to make it all more understandable to normal humans. With beautiful typography, embedded definitions of legal terms, and a robust API, this project aims to make our laws a centerpiece of media coverage.

In development since June 2010, The State Decoded is in closed beta testing [now open] now. Thanks to a generous grant from the Knight Foundation, development has started to accellerate substantially.

And, here is the announcement of the Virginia Public Beta.  And the VA link.

Congratulations — and thanks to the Knight Foundation.

Posted in Technology | Tagged | Comments Off on Online State Codes Project Passes Milestone — First State, Virginia, Now In Public Beta

How Others See Us in the US

Posted on March 22, 2012 by richardzorza

Roger Smith, of the UK organization Justice, has a guest blog on Richard Moorhead’s Lawyer Blog, on “The internet and the provision of legal advice.”

It takes a somewhat pessimistic view of what has been achieved.

Here are his observations on the US:

One would have expected the United States, home of silicon valley and the cradle of the internet, to provide good examples of what can be done through web-based materials, particularly because of the relative dearth of civil legal aid funding as compared with the UKor The Netherlands. It would be helpful to be pointed to more USwebsites. To an outsider on a quick look, it seems very much as if the driver for use of the net comes, to a large degree, from the courts. Judges feel swamped with unrepresented litigants and they have every interest in supporting them up to – and perhaps sometimes a little beyond – the line between providing legal information/advice and legal advice/representation. Thus there are a number of self-help court based programmes with a supporting network of their own (http://www.SelfHelpSupport.org ). The law schools are also key players in this field with the Center for Access to Justice and Technology atChicago-KentLawSchool in the fore. The Center has developed an interesting internet package, A2J, which uses a cartoon-type format to progress someone through answers to a series of questions towards an appropriate document assembly. This is how it describes itself:

The simple act of filling out forms raises unique challenges that the many self-represented litigants have trouble overcoming. Without a very simple front end, a user unfamiliar with web conventions would be unable to use online form systems. To be effective, guided interviews for self-represented litigants must be very simple.

The A2J Author® tool … translated several of the conceptual models for a redesigned court system into a Web-based interface that gently leads unsophisticated users through a guided interview for determining eligibility and collects all the information needed to prepare the required court forms. Elegant, simple and powerfully effective, the A2J AuthorTM Web-based interface is the “front end” needed to make court document assembly more widely accessible to self-represented litigants.[11]

The drawn figure of a woman takes you through a series of questions, represented along a road to a courthouse through which your answers fill in a form which you can then print at the end of the process. Examples of its use include applications for fee-waiver and name change applications. This is the same sort of interactive process as lies behind the road traffic accident programme discussed above. The A2J format seems potentially useful but a little wooden – particularly to anyone familiar with the possibilities that are usually displayed on an iphone or ipad app. There may well be other examples that need to be considered in any more comprehensive review.

I get a clear sense of the different regulatory environments having a major impact on the analysis.

Posted in Document Assembly, Legal Ethics | Tagged | 1 Comment