Law School Incubators — Excellent Article and Some Thoughts

Posted on September 7, 2011 by richardzorza

Recently, I blogged suggesting an overview of the systemic problems with the entire legal system.  One of the interlinked barriers that I highlighted was “A system of professional rules and business practices that makes this [legal] expertise highly expensive to purchase.”  Now, here comes more attention to a model that at least suggests a way to deal with the “business practices” barrier.  Its the law school incubator.  Law.com has an excellent article on this very needed idea of law school programs that help graduates transition into sustainable practice.

The concept is spreading:

CUNY’s program was the first of its kind when it debuted in 2007, but now law schools around the country have launched solo incubators, and more are on the way. The University of Missouri-Kansas City School of Law unveiled its solo and small-firm incubator last fall, and the University of Maryland School of Law introduced its incubator in January.

The Charlotte School of Law plans to have its Small Practice Center up and running next summer. Faculty and administrators at Thomas Jefferson School of Law, Georgia State University College of Law and the University of Dayton School of Law are among those considering adding similar programs. It’s not just law schools — the Columbus Bar Association in Ohio began a year-long incubator in April with eight young attorneys. That program makes use of office space and money donated by law firms and other legal service providers.

CUNY is playing a major role in the expansion of the concept:

Fred Rooney, the director of CUNY’s solo-focused Community Legal Resource Network and the driving force behind the school’s incubator, has been traveling the country meeting with law school administrators who want to learn more about the program. Numerous law school administrators have been coming to New York to see the incubator first-hand. Rooney has also visited law schools in Europe, Central America and India to share his experience. .  .  .  CUNY has been providing technical support to other law schools in the form of handbooks, contracts and other startup documents. Establishing a successful solo incubator requires a significant investment in staff and resources, Rooney said.

As many know, this project builds on the OSI funded Law School Consortium  starting back at the end of the last century, and it is great to see these ideas live on.

I hope that this concept can spread rapidly, since I think it is one of the few hopes for providing sustainable legal services through the market to low and middle income people.  Not just law schools, but the bar, legal aid, access commissions, funders, foundations and non-profits should be thinking about how to support this concept.  I would love to see access Commissions setting up committees to work with law schools on getting this concept started in their states.  There are so many partnering potentials here.

Please share ideas here.

Update:  Article in NY Law Journal on Pace joining incubator movement.

Posted in Law Schools, Systematic Change | 4 Comments

On the Role of Mediators and Neutrals with the Self-Represented

Posted on September 7, 2011 by richardzorza

A recent conversation made me realize how little attention we have paid to what happens to the self-represented in mediation and other environments that involve a supposed neutral.  After all, it is not at all unusual for states to mandate mediation, regardless of representation status.

In one sense this is a huge danger area for the self-represented:  They are put into largely un-regulated, certainly non-transparent, environments, before neutrals who are largely untrained in the special challenges of dealing with the self-represented.

On the other hand, this is also an area of huge opportunity:  For many of the self-represented, the mediator or other non-judicial neutral is the is the closest that the self-represented will get to an informed person with an obligation to see that fairness, in at least some sense, is provided.

We really need to start a discussion between the mediation and self-represented innovation communities about best practices, training, ethics, etc.  We have, after all, found in our judicial best practices experience that the foundations for access for the self-represented already lie in the ethical principles that govern the judicial role.  There is no reason to believe that the same will not turn out to be the case, particularly when we bring to the discussion the insights from the judicial community.

In particular, surely what we have learned about there being no inconsistency between engagement and neutrality will apply with great force in the mediator environment.  I feel some confidence that many of the techniques for neutral judicial engagement that work well with judges will also apply, perhaps with some modifications, in the mediator environment.

I would love to hear from any who have worked in this area.

Posted in Judicial Ethics, Mediation | 4 Comments

Decision Fatigue — It’s Glucose

Posted on September 6, 2011 by richardzorza

A few months ago, I blogged about a disturbing study of Israeli parole decisions that strongly suggested that judges made much more sympathetic decisions early in the session, and that they appeared to reset their sympathy with some food.  There was also speculation about the causes and solutions.

Recently the New York Times Magazine ran an article that suggests that causation, or at least solution, is simple — glucose.  After first reporting a number of studies on decision fatigue and ego depletion, the article went on:

. . . researchers at [Roy] Baumeister’s lab tried refueling the brain in a series of experiments involving lemonade mixed either with sugar or with a diet sweetener. The sugary lemonade provided a burst of glucose, the effects of which could be observed right away in the lab; the sugarless variety tasted quite similar without providing the same burst of glucose. Again and again, the sugar restored willpower, but the artificial sweetener had no effect. The glucose would at least mitigate the ego depletion and sometimes completely reverse it. The restored willpower improved people’s self-control as well as the quality of their decisions: they resisted irrational bias when making choices, and when asked to make financial decisions, they were more likely to choose the better long-term strategy instead of going for a quick payoff.

The article concludes with some thoughts that should be useful to judges — and to innovators:

“Good decision making is not a trait of the person, in the sense that it’s always there,” Baumeister says. “It’s a state that fluctuates.” His studies show that people with the best self-control are the ones who structure their lives so as to conserve willpower. They don’t schedule endless back-to-back meetings. They avoid temptations like all-you-can-eat buffets, and they establish habits that eliminate the mental effort of making choices. Instead of deciding every morning whether or not to force themselves to exercise, they set up regular appointments to work out with a friend. Instead of counting on willpower to remain robust all day, they conserve it so that it’s available for emergencies and important decisions.

“Even the wisest people won’t make good choices when they’re not rested and their glucose is low,” Baumeister points out. That’s why the truly wise don’t restructure the company at 4 p.m. They don’t make major commitments during the cocktail hour. And if a decision must be made late in the day, they know not to do it on an empty stomach. “The best decision makers,” Baumeister says, “are the ones who know when not to trust themselves.”

I am going to repeat that last line:

“The best decision makers,” Baumeister says, “are the ones who know when not to trust themselves.”

Update from Sept 7:  Judge David Ortley from Montana points out the value of this data for assistaing juries in keeping attention and focus.  He reports that he will make sure that jurors get water and snacks “to ensure they don’t suffer ego depletion.”

Posted in Judicial Ethics, Research and Evalation | 1 Comment

After Turner: A Proposed “Attorney Diagnosis” Approach to Triage for Access to Justice

Posted on September 6, 2011 by richardzorza

After Turner, emphasizing due process requirements for cases involving the self-represented, there is an urgent need to think of better ways to decide who needs what services in order to get access to justice, and not just in the civil contempt area.

Here is a new idea for how  courts could deal with their responsibilities under Turner to make sure that people get what they need for access.  Its not just legal aid that now has to be involved in making smart and cost effective decisions about who should receive a free lawyer and who should receive other forms of assistance that can help to make our courts more accessible. (Special thanks to David Udell, of the National Center for Access to Justice at Cardozo Law School, who has helped me improve and refine this whole idea.)

The general idea is that following a preliminary review for financial eligibility and to determine if the matter is contested, a screening attorney would make a recommendation for or against appointment of counsel, taking into account the nature of the case, the merits and the stakes for the litigant.  An appropriate decision maker such as a retired judge would make a final decision.  In cases in which counsel is not provided, the attorney would provide unbundled services, or refer the person elsewhere for unbundled services or self help, thus ensuring that lower-cost forms of assistance would be provided.

Here are the four proposed steps in more detail.

I. Screener (Court Clerk or Person at Self-Help Center or Other Setting) Determines if Case is Contested, if Person is Financially Eligible, and Whether to Charge for Screening.  When an unrepresented person takes an initial action in a case, a screener would determine if the case were contested and would evaluate the person’s financial eligibility status.  If the case were contested, the initial screener would offer to refer the person to a diagnosing attorney, and, for those non-indigent, would also set a price for that service based on financial criteria established by the jurisdiction.  If the person were found ineligible to meet with the diagnosing attorney, or declined the interview at the price offered, if any, the person would be provided access to the self-help resources available.

II. Attorney Diagnoses the Person’s Needs and May Recommend that Counsel be Appointed, Provide Unbundled Services, or Refer the Person for Self-Help or Brief Unbundled Service.  The diagnosing attorney:

  • Screens for categorical eligibility – The screening attorney would first screen for certain forms of pre-determined categorical eligibility to receive a lawyer, such as child-custody with domestic violence cases, tenants over 65 (other categories to be determined).
  • Screens for individualized eligibility – For persons not categorically eligible, the attorney would make an individualized determination as to whether the person needed counsel to obtain access to justice.  The attorney would apply a set of standards and would consider i) the facts of the case, ii) the complexity of the governing procedural and substantive law, and, iii) the parties’ particular capacities (including literacy, linguistic capacity, and amenability to negotiation, case complexity, and, arguably particularly important, whether opposing party has counsel).
  • Screens for merit and stakes – For all persons diagnosed as potentially eligible for appointment of counsel, the screening attorney would determine, also applying appropriate standards whether the case were non-frivolous and, whether there were sufficient significance of the matter at issue for the person. 
  • Recommends to decision-maker (retired judge, sitting judge, or other as selected by jurisdiction), provides direct unbundled assistance, or refers elsewhere.  If the attorney diagnosed that an attorney were needed, the attorney would complete a Recommendation Form for review by the selected decision maker). If the attorney recommended against appointment of an attorney, then the attorney would give unbundled assistance, and could also refer the person elsewhere for self-help, legal and non-legal assistance, discrete services, and other appropriate assistance.

III. Decision-maker (Retired Judge, Sitting judge, or Other as Selected by Jurisdiction) Decides to Appoint or Deny Counsel – The decision maker would review the attorney’s recommendation and make the final decision ex parte, on the papers, as to whether counsel would be appointed. The decisional materials would confidential and not open to discovery.  A second decision maker would reassess denials.  Ideally, retired judges would serve in this role pro bono.  (Having retired judges perform this role preserves the decisionmakers’ independence, while maintaining a judicial perspective.)

IV. Decisions to Appoint Counsel are Implemented – Once appointment of counsel is approved, counsel would be provided in one of the following ways:  i) by an attorney in a non-profit program under contract, ii) by an attorney on a list of counsel who met certain criteria, and would be paid, or iii) by a pro bono attorney.  The assigning authority, which would not be the judge, would confirm that contact is made between the lawyer and the client.

The approach should appeal to a variety of funding, bar, court and service delivery constituencies since it offers the following benefits:

  • Financial Efficiency and Incentives –The approach promotes cost effectiveness by appointing counsel for those who need it most.  It also creates incentives for communities to establish funding for its functions, primarily by making conspicuous the need for counsel and the consequences for justice. It also builds in long-term incentives for developing the most cost-effective alternatives.
  • Financial Viability – Because communities can adjust the financial and substantive screening standards, this approach thus does not commit communities to an uncontrollable entitlement system
  • Broad Legitimacy – As the approach becomes increasingly grounded in research-based knowledge of the effectiveness of attorney and non-attorney forms of assistance, and since decisions are made by lawyers and confirmed by judges, it will be perceived as broadly legitimate and as supporting the efficiency of court operations.
  • Middle-income Options – The approach anticipates that some communities might determine to offer services to a middle-income population on a partially subsidized basis, while charging others nothing, and still others full cost.  It also allows communities to determine to fund diagnostic screening for all through a flexibly waived enhanced filing fee (with a simple formula to determine financial eligibility).
  • Flexibility – The approach is flexible, allowing for state-by-state variations and for changes in categorical eligibility, in the standards governing the screening process, in the ways that existing non-profit providers can participate in the provision of services, in how court processes can be made more effective, and in the relationship to other players in the system.

In a subsequent post, I will explore in Q. and A. format more details about how a system like this would work.

If you like this idea, do please spread it around.

Posted in Access to Counsel, Legal Aid, Triage, Unbundling | Tagged , | 4 Comments

Brilliant Idea — Sonoma County Court Strategic Plan Highlights Litigant Assistance Network and Triage

Posted on August 31, 2011 by richardzorza

With funding from SJI, Sonoma Court, California has completed an excellent Strategic Planning Document.

While it includes many valuable ideas, and is focused at least initially somewhat on the huge challenges of providing culturally competent services, I particularly want to highlight three ideas;  it introduces the (new and useful) concept of a “Litigant Assistance Network”, is explicit about the importance of triage into this Network; and, discuses the need for governance of this Network.

The elements of the Action Plan to Implement A Uniform Litigant Assistance Triage Process are as follows:

1.Establish effective triage tools and processes that can be used by judges and court personnel to determine assistance needs and link litigants to appropriate services.
2.Clarify to all court personnel preferred services and the appropriate uses of particular types of litigant assistance services.
3.Establish evaluation processes for monitoring the affects of litigant assistance on case outcomes and court operations, and making program improvements.
4.Clarify to litigant assistance service providers how the triage process will be used and the implications for their work.

I also find highly suggestive the concept of Litigant Assistance Network Governance — in other words the idea that the currently fragmented components of assistance need to be thought of as one system that is, at least in some way, actually governed and managed.  Again, the plan components for this:

1. Specify the roles of court litigant assistance personnel, other court staff, and judges in identifying needs, providing assistance, and linking litigant to other assistance providers.
2.    Clarify among the court, justice partners, and services providers preferred services and the appropriate uses of particular types of litigant assistance services.
3. Establish evaluation processes for monitoring the affects of litigant assistance on case outcomes and court operations.

It sounds to me that regardless of whether the focus is only on culturally-focused services or all services,  this is like a local Access to Justice Commission — but one with some actual management bite — what an idea!

I’d also like to highlight this planning process as an excellent use of the SJI Technical Assistance grant stream.

Posted in Access to Justice Boards, Funding, Legal Aid, LEP, Self-Help Services, Systematic Change, Triage | Tagged , , | 3 Comments

Deregulation Versus De-monopolizing — A Complex Debate Just Begining

Posted on August 30, 2011 by richardzorza

There has been substantially more attention in the blogsphere to the deregulation of the legal profession.  See, e.g. the Wall St. Journal, law librarian blog, elawyering blog.

All are worth reading.  But I would urge attention to the difference between deregulating versus reducing the monopoly of the profession.

The issues having to do with removing regulations, such as by allowing non-lawyer ownership in law firms, dealing with interstate practice, allowing automated practice, or even eliminating all regulation of how legal service are provided, are very different from the question as to whether certain services now currently under the control of a professional monopoly should remain under that monopoly.

Its particularly interesting that a recent UK blog, by Stephen Mayson, points out that rhetoric notwithstanding, even in the UK, the profession is not being de-regulated in the normal sense of the word.

Time and again I hear (or read) that the Legal Services Act is deregulating the legal services market.  It is not.  Everything that is currently regulated remains so.

It is true that people who are not authorised persons (shorthand = legally qualified) are able to offer legal services that are not reserved activities.  This was true before the Act, which makes no difference to this situation.  So no deregulation there.

It is true that the Act now gives the power for the reserved activities to be changed.  It would therefore be possible for something that is currently regulated through reservation to authorised persons to become deregulated if the activity ceases to be reserved.  But I have heard not a whisper that this is likely to happen.  So no deregulation there, either.

Now, an activity that is presently not reserved could become so (the Legal Services Board is just starting to look at will writing and estate administration).  But that would bring what is presently unregulated – if not done by authorised persons – within the regulatory framework.  So still no deregulation.

Existing regulators – or even new ones looking for approval – can apply to regulate more reserved activities, but that will bring their members within (or more firmly within) regulation.  Still no deregulation.

And finally, people who are not authorised persons can apply to become members of legal disciplinary practices (until the ABS licensing framework comes into play), or members of ABSs, or to be approved as Heads of Finance & Administration (or the SRA-equivalent of Compliance Officers for Finance & Administration), and ABSs as entities will need licences.  In other words, more people who are not currently regulated will have to become regulated in order to operate.  No deregulation.

For the life of me, I can’t find any deregulation.  Perhaps what the ‘deregulators’ are really griping about is the increase in regulated competition.  But that’s a gripe about competition, not deregulation.

If we in the US were also to allow non-lawyers to do the some of the same things as lawyers do, but put in place a serious regulatory structure, we would in some ways be following the UK path.

Richard Moorhead comments:

The key issues that are raised by the Legal Services Act [US nomenclature alert. This is about the regulatory system, is not about administration of legal aid] are whether current regulatory tools adequately cope with current and growing levels of competition. They are surfacing the irrationalities which lay behind the old scheme and which have only half been tackled by the Clementi-inspired reforms. It is the quality of regulation that counts; market liberalisation and the separation of professional representation and regulation is beginning to test that quality. We can expect a much fuller and somewhat better informed debate about what works than was the case under the old structures and within the not too distant future further, probably radical, reform. The success of the Clementi reforms will be in exposing the flaws in our system, rather than solving them. [Bold added]

This suggests just now complicated these issues are, and how many parts have to move around.  It seems that the debate is only just starting in the US.  Nor can the ABA Ethics 20/20 process is somewhat engaging this (see, e.g. this paper on alternative business structures, which summarizes such structures in other countries).

From an access to justice point of view, I think the most important step is to open up things that you do not need three years of law school to do to people who have less training, but are well regulated from the consumer protection point of view.

Posted in Access to Justice Generally, Systematic Change | Tagged , , | Comments Off on Deregulation Versus De-monopolizing — A Complex Debate Just Begining

Making Sure Investments In Courts Are Counter-Cyclical

Posted on August 29, 2011 by richardzorza

As a general matter, its an article of faith among mainstream economists that government spending is counter-cyclical, that is to say by investing more in government (actually anything) during downturns you cause the money to be re-spent, and re-spent again, thus helping the economy recover.

Moreover, there are at least three particular arguments for court investments:

  1. People who make investments/loans rely on the courts to get their returns on those investments back, so an efficient recovery system encourages investment.
  2. Reduction of uncertainty in business and personal outcomes make risking taking and therefore expenditure by all easier and more likely.
  3. The equalizing force of mechanisms such as child-support puts money in the hands of those with least resources who are most likely to spend it immediately.

But that all assumes a system that is accessible in at least two senses.  First, the system must hear all those kinds of claims.  Secondly, the substantive law governing must not act to do the reverse — pull money away from those who would spend it immediately.

This is all totally speculative — but maybe it will stimulate thought on how to make sure that court investments are as helpful to the economy as possible.

Posted in Access to Justice Generally, Budget Issues, Poverty | Comments Off on Making Sure Investments In Courts Are Counter-Cyclical

Self-Represented Litigants: Litterature Review Conducted in UK

Posted on August 25, 2011 by richardzorza

The UK Ministry of Justice has completed a literature review about self-represented litigants (whom they call “Litigants in person.”) The review included international sources, at least as to formal research.

The overall conclusions:

    While some good quality evidence existed, this was limited. Together the studies in this review provide useful indicators of the types of motivations, problems encountered and outcomes for litigants without legal representation (litigants in person). However, there are still a number of gaps in our understanding of this issue.
    The term litigant in person covers a range of scenarios. Individuals may have received varying degrees of legal advice; may have chosen to litigate or had claims brought against them; and may or may not have themselves participated in proceedings. One UK study suggested unrepresented litigants in family and civil cases were common.  Most unrepresented litigants were inactive, particularly in civil cases.
    It appeared litigants in person tend to be younger, and have lower income and educational levels, than those who obtain representation. Suggested reasons for lack of representation included funding difficulties and the belief that cases were simple enough to be heard without a lawyer.
    Litigants in person could face problems in court, such as understanding evidential requirements, identifying legally relevant facts and dealing with forms. It was suggested that the oral and procedural demands of the courtroom could be overwhelming.
    Research with other court participants, such as court staff, the judiciary and other parties’ representatives, suggested they felt compensating for these difficulties created extra work and possibly presented ethical challenges.
    The evidence on the impact of litigants in person on case duration was mixed. This appeared to be influenced by how active the litigant in person was and by case type. The evidence suggested cases took longer when the unrepresented litigant was active and could take less time when the litigant was inactive. Some studies found that family cases without representatives were less likely to settle, increasing case duration.
    The weight of the evidence indicated that lack of representation negatively affected case outcomes, although few of the studies reviewed controlled fully for case complexity. This was across a wide range of case types. There were indications that in some cases specialist lay representatives were as effective as legally qualified representatives.
    A number of studies investigated assistance for litigants in person, presenting positive findings on litigant and court staff satisfaction where such assistance was received. There was little research examining the impact of the various methods of assistance on case outcomes.

This is the section on innovations:

What action works in assisting litigants in person?
There were a number of examples in the literature of ways in which litigants in person were assisted. These ranged from studies on court-based advice services, self-help and hotlines (Morris et al., 2006; Plotnikoff and Woolfson, 1998; Henschen, 2002; Goldschmidt et al., 1998; Philliber Research Associates, 2009; Judicial Council of California, 2003 and 2005; Pearson and Davis, 2002; Greacen Associates, 2008). Most of this is evidence from the US.
As both Engler (2010) and Greacen (2003) noted in their reviews, although the evidence on the whole indicated high levels of user satisfaction with services and that court staff appreciate them, there was little evidence of the impact of these efforts on court outcomes. Adler (2008a and b) examined the effectiveness of pre-hearing advice for tribunal cases. He found that, for some types of cases, people who received pre-hearing advice but represented themselves did almost as well as those who were represented. However this was the only study identified that examined this issue.
Additionally, some studies identified ways in which judges assisted litigants in person, and adapted their style to help them through the court process (Goldschmidt et al., 1998; Greacen Associates, 2008; Genn and Genn, 1989; Moorhead and Sefton, 2005; Kelly and Cameron, 2003; Hunter, 1998; Lewis, 2007). Judges sometimes adopted a more interventionist role to compensate for the difficulties of litigants in person, questioning them to elicit evidence. They also sometimes altered the order of proceedings to help those without representation, and provided explanations to litigants. There was, however, little evidence of the effectiveness of these efforts. Some studies indicated that there was some worry among judges about the propriety of adopting a more interventionist style and that they might appear to be unfair (Genn and Genn, 1989; Goldschmidt et al., 1998).

It should not be forgotten that this review was done against the backdrop of very severe cutbacks in legal aid in the UK.

Posted in Judicial Ethics, Research and Evalation, Self-Help Services, SRL Statistics | Tagged | Comments Off on Self-Represented Litigants: Litterature Review Conducted in UK

Plain Language Advocacy and the Michigan State Bar

Posted on August 24, 2011 by richardzorza

This sounds unusual.  The state bar of Michigan not only has a plain language committee, but a regular column in their bar journal on the subject.  Here is a list of the most recent of those columns.

Ambiguous Drafting and the 12-Pound Cat
The Mismatch
Are You a Hyphen-Happy Lawyer?
Meet Scribes—A Society That Promotes Legal-Writing Excellence
The Politics and Power of Plain Language
Please Vote on Two Versions of Our Lawyer’s Oath
The Best Test of a New Lawyer’s Writing
The Texas Pattern Jury Charges—A Plain-Language Project: The Writing Consultant’s View

The last one shows side by side comparisons such as this:

Original:

If you do not obey the instructions I am about to give you, it may become necessary for another jury to re-try this case with all of the attendant waste of your time here and the expense to the litigants and the taxpayers of this county for another trial.

Modified:

If you do not follow these instructions, I may have to order a new trial and start this process over again. That would be a waste of time and money, so please listen carefully to these instructions.

The article also describes how the new version of jury instructions was tested.  They actually did mock trials with both sets, and then had the “jurors” fill in questionaires:

On the general, subjective questions, the revised instructions scored well, especially given that the original was already moder- ately clear and plain. The questionnaires asked 8 questions related to general comprehension for 3 separate sections of the instructions, for a total of 24 questions. The revised instructions scored better than the original on 22 of the 24 questions. Courtroom Sciences [who conducted the study] told us that only 6 of those higher scores were statistically significant. But it is significant that the revision scored better 22 out of 24 times.

Lots of food for thought.

By the way, one group that has done good work with court and legal aid programs, including in languages other than English, on plain language is Transcend.

Posted in Forms, LEP | Tagged | 2 Comments

Lawyers Hiring Capital, or Capital Hiring Lawyers — The Failure of the Profession to Innovate Creates a Gap

Posted on August 23, 2011 by richardzorza

The California Lawyer has an interesting story, Investors at the Gates on the Jacoby and Meyers firm suing in three states to knock out rules preventing non lawyer participation in ownership of law firms — i.e. equity capital.

On May 18 of this year the nationwide firm filed three nearly identical class actions–in New York, New Jersey, and Connecticut federal courts–challenging the constitutionality of state judicial bans on nonlawyer ownership of law practices, based on ABA Model Rule 5.4. The nearly identical lawsuits make claims based on alleged violations of the Commerce Clause, the 14th Amendment, and, most interesting, the First Amendment rights of free speech and association. (Jacoby & Meyers Law Offices LLP v. Presiding Justices, No. 11-CV-3387 (S.D.N.Y.); No. 33-AV-001 (D. N.J.); No. 11-CV-817 (D. Conn.).)

.  .  .

To be fair, the ABA recommended amending MR 5.4 twelve years ago–but its House of Delegates overwhelmingly rejected the proposal. In 2001 the State Bar of California’s Task Force on Multidisciplinary Practice voted down a measure that would ease the ban on sharing fees with nonlawyers, and its rules revision commission recently endorsed a version of MR 5.4. This spring, the ABA Commission on Ethics 20/20 recommended no changes to the rule, although it will hear further comment from members at the Annual Meeting this month.

Apparently, part of the claim is that the prohibition on non-lawyer equity participation inhibits the abilty of firms to compete internationally.

.  .  .  Australia and the United Kingdom have permitted nonlawyer equity ownership of law firms. Australia’s Slater & Gordon held a public stock offering in 2007, and the UK’s Legal Services Act–which gives law firms access to equity capital–takes effect in October.

The fear, of course, is that legal practice will be debased, and that ethical control will be lost if legal services are controlled by non-lawyer capital.  The real fear, I suspect is that the organization of the delivery system will be commoditized (see my post last month on the setting up of access centers in bookstore-stationers in the UK).

The real point is that so far the profession has failed to find ways to delivery legal services to the vast middle market in ways that are accessible and cost effective.  I really do not believe that it is fundemantally an access to capital problem, although, I do agree that those with access to capital and the incentives of equity ownership are well positioned and motivated to build access friendly and lower cost systems, once the current barriers to incentives are removed.

It is such a pity that the profession has not been able to rise to this challenge on its own, using technology, understanding of client needs, coperative relationships between lawyers supporting platforms, etc., to build delivery systems that reach the millions in legal need.  Now may be too late, although I would urge the organized bar to take the leadership in supporting the building of new legal delivery systems that bring the advantages of efficiency, without the dehumanization of total commoditization.

p.s. Comment from Richard Granat:

I think that there has to be a balance between new ways of delivery legal services and adherence to core professional values and professional ethics. Without, that there is no legal “profession” It’s just another service business.

The VC community will see the delivery of legal services as just another service business, the fact is, practicing law is not just another service and there are societal contributions by lawyers that are essential in our democracy.   So I think the goal should be balance, on the one hand, legal services that are affordable, transparent, reliable, and effective, and on the other,  retaining the integrity of a true “legal service” which means to me adherence to core professional values and ethical rules.

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

An Overview of Systemic Barriers to Access to Justice

Posted on August 22, 2011 by richardzorza

Maybe its time to take a 22,000 mile overview of the access to justice problem.  One way to do so it look at at the interacting parts of the system and how together they produce an inaccessible system.

1.     A system of procedural and substantive legal rules governing access to justice, so complicated that often only an expert can navigate them.

2.     A system of access institutions (courts, etc.), the practical operation of which is itself still so complicated that they can often only be accessed with the assistance of an expert.

3.     A system of professional rules that limits the exercise of that expertise to those who have undergone an expensive system of education and certification with significant barriers to entry.

4.     A system of professional rules and business practices that makes this expertise highly expensive to purchase.

5.     A system of state-subsidized provision of this expertise that is limited to the very poor, includes no entitlement except in limited areas, is limited to a subset of substantive areas of actual need, is very inefficiency provided, exists at the whim of political currents, and the funding of which is highly subject to cyclic economic pressures.

There is a strong argument that this system, taken as a whole, is unconstitutional.  In particular it violates the due process requirements of Boddie v Connecticut, 401 U.S. 271 (1971) since it requires people to use a legal system to obtain certain results, makes them pay for access to that system, and fails to provide alternative paths within the financial reach of those who need such access and do not have the resources to pay for it.  (For reference to Prof. Tribe’s partial suggestion of this view, see here).  It also arguably violates the due process requirements of Turner v. Rogers, 564 U. S. ___ (June 20, 2011), because it fails to provide fairness and accuracy in such cases.

Note however, that the system could be made constitutional in a number of ways, not necessarily only by a civil Gideon approach.  Indeed as a practical matter all need to be done.

1.     Substantive and procedural rules as well as day-to-day operation of access institutions (courts etc.) could be made simple enough to access without expertise (much is being done by courts in this area).

2.     The system could be changed so that access expertise could be provided in part by regulated non-lawyers at much lower cost.

3.     Professional rules and business practices could be changed to make lawyer-provided access services much more cost effective and therefore cheaper.

4.     Subsidized legal aid access services could be broadened in scope, efficiency and availability.

A long long way to go, but important to remember the interrelatedness of the vision.

If you like this view, please comment/share.

Posted in Access to Counsel, Access to Justice Generally, Supreme Court, Systematic Change | 4 Comments

Immigration and the Detained

Posted on August 19, 2011 by richardzorza

There’s new attention to immigation issues, including a remarkable change in policy on deportation priorities.  See NYT.

The Obama administration announced Thursday that it would suspend deportation proceedings against many illegal immigrants who pose no threat to national security or public safety.  .  .  .  Those who qualify for relief can apply for permission to work in the United States and will probably receive it, officials said.

While the scope of this discretionary suspension of deportation remains unclear, it appears that it is to include for consideration those eligible under the not-yet-passed Dream Act, and “White House officials said the new policy could help illegal immigrants with family members in the United States. The White House is interpreting ‘family’ to include partners of lesbian, gay and bisexual people.”

This might be a good moment to draw attention to a recent article by Mark Noferi in the New York Law Journal, pointing out the relevance of Turner v. Rogers on detained immigrants.  Brooklyn Law School website summary below:

In an op-ed for The New York Law Journal, Professor Mark Noferi discusses how the recent Supreme Court decision for Turner v. Rogers may affect detained immigrants. Turner determined that imprisoned “deadbeat dads” were not entitled to court-appointed counsel in child support cases due to a potential “asymmetry of representation.” Profesor Noferi states that the reasoning behind the decision could be flipped to require providing detained immigrants counsel, which is currently not the policy.

 

Posted in Access to Counsel | Tagged | Comments Off on Immigration and the Detained

ABA Boies-Olsen Report On Court Budgets is Out — Goes Beyond Budget Issues

Posted on August 18, 2011 by richardzorza

The David Boies – Theodore Olsen Report is out.  This you will recall, is the ABA project on the need to protect the court system during the funding crisis, and is another initiative bringing together these once (and maybe future) ideological adversaries.  The Report is getting attention — New York Times editorial here.

What may get less attention than the usual and necessary collection of disaster stories, is the Report’s focus on the need for fundamental changes in the way courts operate.  From the point of access advocates, here are some key points (at page 13):

Establish principles for “reengineering” the judicial process.
By principles we mean goals, such as reducing the cost and complexity of the judicial process, maintaining and improving access to justice, and improving case predictability. Some example states include Vermont (restructuring the administrative bifurcation between state and counties; eliminated redundant jurisdictions between types of judges), New Hampshire (consolidating courts), Minnesota (centralizing functions formerly done at a local level, such as accounts payable), Oregon (simplifying civil rules for less complex cases) and Utah (reorganizing the Human Resource system to make it more professional and expand services for case management and pro se litigants)

The Report also supports enhanced use of technology (at 12-13):

Enhanced use of technology to improve the efficiency of the judicial system.
The use of technology within the judicial system has the double benefit of reducing costs while increasing efficiencies. A simple example, implemented in Iowa, is online payment of speeding tickets. However, many more advanced options are available. Forexample web-based case management systems, such as MassCourts44 in Massachusetts and E-Filing in Florida, enable fast data collection and information sharing to track case progress and timeliness. The Boston Bar Association credits the web-based MassCourts with increasing the timely disposition of cases from 74.1 percent in 2006 to 89.8 percent in 2008.    Also, some courts in Utah have replaced court reporters taking a stenographic record with digital audio recording.    Courts have found increased efficiency with electronic filing, electronic document management systems, electronic payments of courts fees and costs, digital records for both transcripts and files, use of interactive television technology and fully integrated case management systems.

Among other recommendations are:

  • Use business process management principles to evaluate efficiency
  • Use alternative, more efficient and less expensive means of resolving conflicts and delivering justice, including specialty courts, ADR, and community resources.
  • Provide for flexible management of funding within the judicial branch.
  • In furtherance of predictable and supportable funding budget processes must show measureable outcomes, prove fiscal accountability and deal with long term goals of the court system.

It should also be noted that the Report collects data on the impact of cuts on public safety (at 2-3), on the economy (at 5), on those in need of protection (at 6), and on “Our Very System of Government,”( at 7).

I am impressed that the Report takes such a broad view, and makes clear that the solution is not just for the legislature to “give us money and go away.”  As such the Report lays the groundwork for a much more responsible approach to funding issues in the courts, and indeed for a transformation of the justice system.  The ABA (which has clearly been in close cooperation with NCSC in this process) is to be congratulated.)

Thanks also to the Times,  for seeing the big picture of public confidence in the institution:

Even this sober report barely begins to convey to national and state policy makers how much cuts to the judiciary have harmed individuals and democracy. As budget-starved courts become more dysfunctional, they lose the confidence of the public, which counts on them for relief, adding to the institutional crisis.

These courts may continue to process cases, but they will be less and less able to deliver justice.

Posted in Budget Issues, Funding, Systematic Change, Technology, Transparency | Tagged , , , | 1 Comment

Language Services — Medical Model — Example and General Approach

Posted on August 16, 2011 by richardzorza

While the legal system seems to be having difficulty moving forward with language access, here is a nice Oakland Tribune article that talks about creative use of video technology to ensure translation in a hospital.

The medical center uses video conference machines, dual handset phones and speaker and conference phones to get vital medical information to patients, hospital officials said. They started basic translation services using telephones about 30 years ago with the first influx of southeast Asians into Alameda County. But five years ago they acquired 41 video monitoring machines and now serve about 88,000 patients annually, said Sambo Ly, the manager of interpreter services. Medical center officials called Ly the “godmother of the service” because of her work with non-English speakers in refugee camps and community health centers.

The video conference machines were paid for with a $900,000 grant from the California Endowment. Before they arrived, the medical center provided translation services for about 35,000 patients annually, medical center officials said.

The article ends:

Under State Department of Public Health mandate, general acute care hospitals must have a policy and procedures for providing round-the-clock assistance to patients with language or communication barriers, limited or non-English speakers and deaf people.

This might also be a good place to draw attention to the huge progress in language access in health care — progress that has been acheived through a consensus approach.  Here is the LANGUAGE ACCESS IN HEALTH CARE STATEMENT OF PRINCIPLES, adopted by a massive list of organizations.

Note particularly how they deal with the compliance issue — they talk of accountability rather than enforcement:

Language services in health care settings must be available as a matter of course, and all stakeholders – including government agencies that fund, administer or oversee health care programs – must be accountable for providing or facilitating the provision of those services.

Maybe food for thought on how to build a consensus approach.

The Statement of Principles has an Explanatory Guide.

It expands on the accountability principle as follows:

All stakeholders in the health care community fulfill important roles in, and share responsibility for, eliminating language access barriers to quality health care, as evidenced by the preceding principles. They reflect a vision of developing and funding shared resources available to public, private, and nonprofit sectors of health care to enhance access to quality services for addressing language barriers. With responsibility and resources, however, comes accountability for providing or facilitating the provision of those services.

This principle originally arose out of concerns about enforcement. In the view of many of the advocacy organizations, LEP individuals often do not receive language services because implementation and enforcement of existing laws have been inadequate. In the context of other principles these groups wanted to ensure that any new funding (see Principles 3 and 4) was coupled with enforcement. They see such a requirement as entirely consistent with the concept of personal responsibility that formed part of the foundation for Principle 7, which recognizes the value of learning English if there are sufficient resources available to do so. Yet for many of the provider associations, a focus on enforcement detracted from the positive steps of many of their members to provide language services. Others were concerned that noncompliance might, in some cases, arise from lack of knowledge rather than lack of concern. They felt that an emphasis on enforcement in those cases could be counter-productive, and that affirmative measures, such as education about the need to provide language services, could achieve the same result in a more positive manner and more quickly. In addition, framing the issue as “enforcement” put the onus primarily on providers without recognizing that other entities, such as government agencies that ought to assist with the provision of financial and technical resources, also had to be part of the solution.

This debate was resolved when one of the provider organizations suggested focusing on accountability rather than enforcement. All quickly agreed that it is results, and accountability for achieving those results, that matter. Enforcement is merely one tool available to ensure that the money being spent accomplishes its intended purpose. Accountability, though, is a broader concept, one that includes among other things an affirmative responsibility to meet the needs of LEP individuals and clinical staff, both of whom often need assistance in determining how best to overcome language barriers.

The group highlighted that language services must be available as a “matter of course” to reemphasize the concept embodied in Principle 1 that accurate communication is a sine qua non of quality health care, and accurate communication is not possible for LEP individuals without competent language assistance. The Principle envisions a health care system in which an LEP patient with a heart murmur would no more be treated without necessary language services than he or she would be without a stethoscope.

Kudos to the National Health Law Program for pulling this Coalition together.

Posted in Access to Justice Generally, LEP, Medical System Comparision | Comments Off on Language Services — Medical Model — Example and General Approach

Dashboards and Transparency in Justice

Posted on August 15, 2011 by richardzorza

The IBM Center for Business in Government has issued a report on report on Dashboards in government:

In its summary:

One approach the Obama administration has latched onto to make sense out of the deluge of data is the use of on-line “dashboards” of performance data that track the key performance metrics of various federal agencies and programs.  The administration has touted the benefits of dashboards as a way of organizing and filtering performance data so it makes sense to decision makers so they can understand and act on it.

One example has been the Federal Information Technology Dashboard, showing the status of dozens of technology investments across the federal government. The Obama administration claims that the dashboard, along with regular review meetings using the dashboard data, has led to decisions saving $3 billion in technology spending and cutting in half the delivery time of technology projects.

Agencies across government are now exploring how they can develop dashboards for their operations, as well.  Agencies profiled in this report include the Food and Drug Administration and the U.S. Patent and Trademark Office.

Four important lessons, according to the site:

  • Data quality is key to the credibility of dashboard performance measures.  Quality is being built into data, Ganapati says, by using “standardized data definitions and training of key agency personnel.”  He says adopting a standard schema such as the Extensible Business Reporting Language (XBRL) for financial dashboards “would enhance data quality and reporting efficiency.”
  • Resources for best practices are necessary in the design and use of dashboards.  A website, such as usability.gov, for standardizing dashboards or being a repository for best practices would be a useful resource for agencies.
  • Performance measures should reflect organization goals.  Measures should be aligned with agency goals and evolve “in response to different audience needs.”
  • Dashboards are only tools: effectiveness depends on their use.  Dashboards can be highly effective in helping agency leaders visualize and interpret performance data from multiple sources, but there has to be a clear effort to ensure they are used by internal decision makers.  When used for external accountability purposes, such as recovery.gov, “both the dashboard performance measures and the underlying data need to be publicly accessible” to ensure organizational credibility.

David Udell, at the National Center for Access to Justice, is heading in the same direction with his Justice Index.

By setting benchmarks, identifying best practices, and publishing policies and data, the Justice Index can help to empower judges, court administrators, other government officials, journalists, academics and activists in their respective efforts to improve our justice system. Of course the Justice Index is only part of the solution and cannot guarantee results in and of itself. But, by making clear the hidden functions of our justice system, the Justice Index is a reform project that will make a difference.

It has great potential for transparency and innovation.

Moreover, the changes in LSC data collection could help lay the groundwork for such transparency and reporting.

Posted in Research and Evalation, Technology, Transparency | 2 Comments