Last Blast on Turner

Posted on June 28, 2011 by richardzorza

I am sorry if I have seemed to be suffering from Turner-obsession this last ten days.  But it really is an important decision, and has taken a lot of my time because I believe it has the potential to transform the debate about access to justice, and particularly the general role of the courts in ensuring access.  Here is the key content of the concluding post from the Symposium, drafted by David Udell and myself.  Full post here.

Continue reading →

Posted in Access to Counsel, Forms, Judicial Ethics, Legal Aid | 1 Comment

Defender Services for Arrested Defendants — US and UK Comparison

Posted on June 27, 2011 by richardzorza

As part of the UK governing coalition’s attempt to cut the UK legal aid budget by 350 million pounds (about US$500 million), the possibility is being raised of introducing means testing of the provision of the currently universally available solicitors at the police station.   Here is the coverage in the Guardian.

The confirmation [of the possibility] drew a sharp response from Macdonald [Lord Ken Macdonald QC, a former director of public prosecutions]. “This is a critical part of the apparatus of protection that we have,” he said. “The presence of a lawyer doesn’t just protect the defendant from police, it protects the police from a defendant making up allegations about what happened, for instance during the course of an interrogation. I think the government should be very cautious about interfering in any way with the absolute right to representation in police stations. It’s there for a very good reason. When we didn’t have it ,we saw the consequences.”

For us in the US, of course, its a salutary reminder of just how limited our system generally is, even so long after Gideon.

What is less well known is that there are exceptions to the US general rule that people do not get a lawyer till their arrangement, unless they pay for him or her. Continue reading →

Posted in Access to Counsel, Criminal Law, International Models | Comments Off on Defender Services for Arrested Defendants — US and UK Comparison

Turner and the Self-Represented — A Summary of Its Very Broad Implications and The Begining of a New Jurisprudence

Posted on June 25, 2011 by richardzorza

Below find the full text of my post on ConcurringOpinions titlted Turner’s Trombone Blows for Every Self-Represented Litigant.  It is, of course, part of the Synposium on the case that David Udell and I are co-hosting.

Turner v. Rogers, 564 U. S. ___ (2011), (Slip Opinion here) should be considered a landmark decision for the self-represented.  In its first ever trip to the civil self-represented courtroom (beyond right to counsel issues), the Court establishes that:

  • There is a due process right to court procedural safeguards” that ensure the protection of the right to be heard in casers involving potential deprivation of a constitutionally protected interest.
  • The extent of those “procedural safeguards” depends on:  “(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safe- guards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].” Slip Opinion at 6, quoting Mathews v. Eldridge, 424 U. S. 319, 325 (1976).  (Interestingly, while the court does not explicitly limit the use of the costs of procedures as a “countervailing interest,” it does not mention cost in the application of the due process balancing test to these facts.)
  • Ultimately overall “fundamental fairness” and accuracy are the touchstones as to what procedures are constitutionally required. Slip Opinion at 13-15.
  • In this case of threatened civil contempt incarceration, the constitutionally required procedures include: (i) notice of the specific key determinative element (here ability to pay the overage); (ii) a form to gather information on the key elements; (iii) questioning on this key element from the bench (at least when needed to clarify the situation), and; (iv) an explicit (not implied) determination of the key element. Slip Opinion at 14
  • The right to “fundamental fairness” and accuracy of one seeking government’s assistance in depriving someone of a constitutionally protected interest (i.e. plaintiffs) is very much part of the constitutional calculus, not only that of those facing the deprivation (i.e. defendants). (Here the risk of unfairness or inaccuracy caused by providing counsel to one side when the other did not have counsel was a major consideration for the Court.  Of course, the Court had not been asked to, and did not consider providing counsel to both.) Slip Opinion at 13-14.
  • The specific “alternative procedures” are required even though the government is not on the other side, and the opposing party is also self-represented.  Were these different, greater protections, including possibly the right to counsel at state expense, might be required. Slip Opinion at 15-16.

I believe that this case therefore means that:

Continue reading →

Posted in Access to Counsel, Document Assembly, Forms, Judicial Ethics, Supreme Court | 23 Comments

The UK Legal Aid Cuts

Posted on June 24, 2011 by richardzorza

Richard Moorhead is a wise and reflective observer of the access to justice world, focusing on the UK.

His latest blog post (well worth reading in full) brings both informtion and perspective on the very depressing news out of the UK (among other things, near abolition of legal aid for non-domestic violence family cases.)

Here are some key paras:

The legal aid reforms announced this week are widely (and rightly) proclaimed as a low water mark in legal aid history. Whilst the abolition of much of the social welfare law element of the scheme marches us back 20 years, the cuts to family legal aid return the scheme further still, to a time pre-Beveridge. Family legal aid was one of the mainstays of post-War legal aid: soon most of it will be gone. There is little to be said that has not already been said but I was struck at the recent International Legal Aid conference how many jurisdictions supported, through modest legal assistance and self-help schemes, the redirection of clients away from litigation. Our government is taking an altogether more brutal approach: withdrawing large elements of legal aid altogether.

The only pleasure that practitioners and others have been able to derive from the announcement is the expected demise of the Legal Services Commission. I understand but deprecate this. I also declare an interest, having worked with many of its employees on research projects for over 20 years since the formation of the shadow Legal Aid Board. The LSC has had its fair share of faults but also had significant successes. In World terms it was seen as a leader for its innovation not for the size of its budget. Moreover, it is likely to be short-sighted to celebrate a further diminution in independence in the administration of legal aid. The LSC failed because it overreached but also because the MoJ wanted more control over policy (perfectly properly on the whole, it just wasn’t very good at it (CLSPs anyone?)). The LSC resisted and paid the price. The basic administrative failings of the LSC (payment processing and the like) are not likely to be positively affected by abolition one iota.

There is warning here in the importance of supporting the national administrative structure even when it pushes for change faster than some would wish.  Someone else might be happy to throw out the baby.

Posted in Funding, International Models | Tagged | Comments Off on The UK Legal Aid Cuts

Turner Symposium — Link to Review and Refocusing Questions

Posted on June 23, 2011 by richardzorza

Here is the first couple of paras of the review and refocusing post on the Turner Symposium on the ConcurringOpinions blog:

As of day three, post Turner, some trends have begun to emerge in the commentary, on this blog at least.  So, this is an attempt by the two co-hosts of this Symposium, David Udell and Richard Zorza  to sum up what we see here, and to use it as a springboard for a new set of perhaps more general questions.

Posters commented at length with respect to the two core issues raised by Turner: i) the extent of trial court judges’ obligations to assure “fundamental fairness” through a variety of procedures, in civil contempt/incarceration or other types of cases and ii) the impact on whether and when a civil right to counsel is required by federal constitutional law.

Read the full post here.

Catch up to date with the full Symposium here.

 

Posted in Access to Justice Generally, Forms, Judicial Ethics, Self-Help Services, Supreme Court | Comments Off on Turner Symposium — Link to Review and Refocusing Questions

Updadates from the Turner Blog

Posted on June 22, 2011 by richardzorza

Some useful ideas from the Turner v. Rogers blog. Continue reading →

Posted in Access to Counsel, Judicial Ethics, Supreme Court | Comments Off on Updadates from the Turner Blog

Turner v. Rogers is Released — Due Process Requires Reversal Despite Lack of Categorical Right to Counsel — Symposium Launched on ComcurringOpinions

Posted on June 20, 2011 by richardzorza

The Supreme Court has decided Turner v. Rogers. Opinion by Justice Breyer (5-4), with Justice Kennedy joining the majority. http://www.supremecourt.gov/opinions/10pdf/10-10.pdf.

AP Story, via NYT

David Udell and I have launched our Symposium on ConcurrngOpinions.

The post below is a copy of the launching post. Continue reading →

Posted in Access to Counsel, Dept. of Justice, Document Assembly, Forms, Judicial Ethics, Legal Aid, Self-Help Services, Supreme Court, Triage | Comments Off on Turner v. Rogers is Released — Due Process Requires Reversal Despite Lack of Categorical Right to Counsel — Symposium Launched on ComcurringOpinions

Foreclosure Slowdown Reported in NYT

Posted on June 19, 2011 by richardzorza

Today’s New York Times has an important article on the slowdown in foreclosures.

Some of the main points:

  • At current rates it would take 62 years for complete repossession of homes in serious default/foreclosure in NY state.  Data from LPS Applied Analytics, described as a “prominent real estate data firm.”
  • Non-judicial foreclosure states are less backlogged (more like two to three years), but also very moving very significantly more slowly than before.
  • The robo-signing scandal has played a major part in this slowdown.
  • Judges are being much more careful in approving foreclosures
  • Banks deny that they are deliberately slowing things down
  • Mandated settlement conferences and, requirements that attorneys affirm accuracy of facts, are slowing things down.

Read the whole article.

Posted in Foreclosure | Tagged | Comments Off on Foreclosure Slowdown Reported in NYT

Get That CLE Before the End of the Month In Something You Care About — Accredited Program Will be Posted Online Mid-July

Posted on June 17, 2011 by richardzorza

I am pleased to spread the word that Monica Fennel, Executive Director of the Indiana Pro Bono Commission, David Udell, Executive Director of the National Center for Access to Justice and Visiting Professor from Practice at Cardozo Law School, and myself have presented an accredited CLE program under the American Judicature Society and West Legal Edcenter banners.  The program is an overview of developments in access to justice, and will be made available online in mid-July.  I will post when it is online.

Here is the description:

This program highlights the dramatic transformation of the American legal system from one that focuses on formal decision-making to one that is committed to equal access. The new vision contemplates that all – rich and poor, well-connected and less-connected, with lawyers and without – can have their cases heard and their grievances resolved.

The changes go well beyond traditional efforts to increase funding for lawyers to assist the poor, and include expanded pro bono roles for private attorneys, new services for self-represented litigants, and new structures for self-assessment by courts.  The changes are creating many new and interesting opportunities for lawyers to make a difference.

Our learning objectives are to update participants on:

• New Opportunities in Pro Bono (including in Discrete Task Representation),
• Innovations for the Self-Represented (including latest court practices),
• Progress Toward Civil Gideon (including new pilot programs),
• Changes in the Legal Services Corporation and IOLTA (including responses to the financial crisis), and
• The Justice Index Project (the initiative to establish benchmarks that illuminate how the justice system is doing).

For AJS members the price is $67.50;  for non-members $75.  (Disclosure: I, [Richard only, as organizer], receive compensation and it is in part dependent on participation numbers.)  The program will be audio and last one hour.  Materials will be down-loadable during the program from the website.

Purchase/register here.

The program will be accessible over the Internet.  If you can not attend live, you can buy 180 day online access starting in mid July.

Post Updating History:

This post was updated on June 29, to reflect the fact that it had been presented, and would be available online in the future.

Please do forward and spread the word.  A great opportunity to learn about developments and get CLE credit.  Check the registration website to see if the program is accredited for your state.

Posted in Access to Justice Generally | Tagged | Comments Off on Get That CLE Before the End of the Month In Something You Care About — Accredited Program Will be Posted Online Mid-July

New Stats on Increasing Federal Non-Prisoner SRL Cases — More Federal Court SRL Program Networking Starting

Posted on June 16, 2011 by richardzorza

The US Courts News Blog has undated statistics on prisoner and non-prisoner self-represented cases.

Key text:

But the number of non-prisoner pro se cases has been climbing as well. In FY 2010, that total was 24,319. It was 22,821 in FY 2009; 20,192 in FY 2008; and 20,545 in FY 2007.

Full chart, including District Court Court-by-court breakdown, and Circuit totals, and including prisoner petitions is here.

The good news is that networking is increasing among the small number of Federal Court programs aimed at assisting those without lawyers.  My personal perspective is that the relative lack of forms (depending on the District Court) and the procedural complexity (standing doctrine, anyone) make assistance to the self-represented much more complicated.  Various kinds of unbundling assistance will, until simplification and forms move forward, be even more critical than in state courts.

I participated in a program at the Equal Justice Conference on this subject.  This included folks from the Central District of California Clinic, the Northern District of California, and the Northern District of Illinois.  In addition we had a good session at the California Self-Represented Litigation Conference, at which we began the process of planning ongoing networking.

Posted in Federal Courts, Self-Help Services, SRL Statistics, Unbundling | Comments Off on New Stats on Increasing Federal Non-Prisoner SRL Cases — More Federal Court SRL Program Networking Starting

Is Reason a Tool for Winning, Rather than for Truth?

Posted on June 14, 2011 by richardzorza

This NYT article should give us all some pause.  The core idea is that reasoning developed as a tool to win arguments, rather than to get at truth.  According to this theory, you can not cure people of bias, because biases are what helps people win arguments.  The Times article builds on an article in Behavioral and Brain Sciences.  Abstract here: Continue reading →

Posted in Research and Evalation, Science | Tagged | 1 Comment

Thoughts on Health Centers as Legal Information Access Points — A Very Fundable and Partnerable Access-Increasing Concept

Posted on June 13, 2011 by richardzorza

We have made lots of progress in the last couple of years on bringing in public libraries as partners and access points for legal information.

Its time to think about other such partners.  Given that money is going to be moving to community based health centers under health care reform, (doubling usage) and given that the new head of the DOJ Access to Justice Initiative has a deep background in this area, it would surely make sense for us to push forward in this area.   Continue reading →

Posted in Dept. of Justice, Libraries, Self-Help Services, Technology | Tagged | 2 Comments

DOJ Targets Immigration Assistance Scams — A Step Needed to Access Innovation

Posted on June 11, 2011 by richardzorza

Its good to hear that DOJ is going after immigration assistance scams.

This is important not only because of the all too many people who are badly hurt — both financially and in terms of their legal situations — by these scams, but because the extent of such things as “notario fraud” is a powerful argument against innovation in access to justice delivery (see my prior post on the relationship between civil Gideon and unauthorized practice of law regulation). Continue reading →

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Law Library Budget Crises: The Moral Is Clear — Serve the General Public

Posted on June 9, 2011 by richardzorza

We are hearing more and more about budget crises impacting court-related law libraries.

For example, West Virginia is closing its regional law libraries.

Similarly, law libraries in Texas, Washington State, and Connecticut are facing urgent funding problems. Continue reading →

Posted in Funding, Libraries | Tagged , , , | 3 Comments

A Way to Move Forward on Language Access — Create a Laboratory Language Access Court

Posted on June 8, 2011 by richardzorza

For many, the language access/participation issue (see here for recent blog on terminology) seems overwhelming.  While agreeing strongly with the goals, folks are anxious over the required levels of expenditures, and nervous of possible diversion of money urgently needed for other critical initiatives.

Here is a thought.  Continue reading →

Posted in Funding, LEP, Research and Evalation, Systematic Change | Tagged | 2 Comments