LSC Releases RFP for Portal Project

Posted on November 23, 2016 by richardzorza

This may be a historic month for 100% access to justice.

LSC has now released the RFP, with proposals due Jan 19, for the portal project.  After some extracts, I offer below some thoughts that may be helpful.

I think this is the key language from the RFP.

When a single, statewide, unified legal access portal is implemented:

Information will be available anywhere, any time to every person seeking assistance.
Assistance from a person – lawyer or otherwise – will be available anywhere, if resources are available.
The portal will use methods such as branching logic questions and gamification to assess the capabilities and circumstances of an inquirer, which will be part of the referral logic.
The portal will generate information on the legal needs of persons using it and on the results achieved from the referrals provided. The portal will aggregate this information and provide it regularly to all participating entities.
The portal will be an integrated system of resources, rules, and recommendations through which users can be matched with available services and applicable resources. The site will analyze users’ responses to questions and direct them to the most appropriate resource, considering factors such as case or situations complexity, the user’s capacity to use technology, strength and representation of the opponent, the importance of the user’s stake in the outcome, and the availability of resources, updated in real time.

All access to justice entities in a participating jurisdiction (including legal aid entities, courts, court administrators, the organized bar, interested law firms and lawyers, law schools, libraries, pro bono support entities, and other interested community entities) will have a presence on the portal and will receive appropriate referrals from it. If a referral proves inappropriate, the entity to which the referral was made may make a different referral. The system will preserve the confidentiality of information an inquirer provides.

Service options will include:

A link to a specific section of a website for substantive and procedural information and access to document assembly tools for completing forms.
Connection to a legal services, court, or library staff person for information and navigation assistance (including a personal assessment of the capability of the service requester).
Connection to a self-help center or legal services attorney.
Connection to a pro bono lawyer.
Connection to a lawyer providing unbundled services on a pro bono or compensated basis (if the client is able to pay for some services).
Connection to the organized bar or other solutions that provide legal assistance.
If the inquirer is connected to a person, that person will have the capability to change the referral. Responses from a person will take the initial form of an email, text message, or live chat. Escalation can take the form of a phone call or video conference.

An essential function of the portal will be the accumulation of data on how cases progress and, based on outcome data, the relative efficacy of various service delivery mechanisms. The goal is to employ technology that is smart enough to refine referrals based on the data collected, but human review will be essential to the evaluation process.

The criteria for scoring of applications is strongly hinted at by the following list of areas to be responded to in the RFP (which is limited to 30 pages and 32 pages of appendices).

  • Vision
  • Capacities in Place
  • Governance
  • Funding Evaluation
  • Staffing
  • Experience with Technology
  • Letters of Commitment
  • Letters of Support

Not a Project, But “The Project.”

Its important to understand the scope and ambition of this RFP.  A state that successfully implements this vision with have a radically transformed access to justice system in which all players work and manage projects together, in which those needing help have a much more seamless process, and in which resources are far more efficiently used.  Because technology projects carry (or should carry) their own replicability tools built into them,  state that deploys successfully is going to have a massive impact, just as the early ATJ Board and Commissions did.

Do Not Be Discouraged by the Ambition and Expectations

States that are serious about this vision should not, in my opinion, be deterred from applying just because the amount of work required to get from here to there is so massive.  It is much less about prior delivery system elements that it is about innovation capacity, strength of committement and partnering, and willingess to embrace the vision.  We all know that in competitive processes the winners are not always or only the states with the biggest prior achievements.  Most importnt of all, however, we have seen time and again that the states that do not get grants (I refuse to call them “losers” anymore, for obvious reasons) can make sure strides in partnership building during the applicaton process for such grants that the impact in non-awarded states can often be as great as in awarded states.

Making Sure the Portal Is Replicable

While not emphasized in the RFP, but certainly embedded in the DNA of the organizations such as Pro Bono Net that will implement it, is the idea that what comes out of this must be as easy to use as possible throughout the country.  There will be myriad problems which the replication, but unless the system is build to make it as easy as possible, it will be impossible.

The Governance Issue Should Get Far More Attention Than In Prior Projects

While LSC and others have made serious efforts to incentivize collaboration in the past, it is going to be a big and critical leap to build a system of shared trust and legitimacy with all the stakeholders.  A system that one silo or one program manages, and everyone else supports with kind words is simply never going to achieve the access innovations and integration in this vision.

The Conceptual Relationship With The Justice For All Project, and Other Innovation Agendas is Critical.

I would strongly urge that those bringing together a planning process for this RFP take as their bible this document that compares the proposed elements in the recent Justice For All Guidance, designed to implement the Chiefs 100% Access Resolution, with the NCSC Civil Justice Project and the ABA Commission on the Future of the Legal Profession. The link in the prior sentence references links to all those materials.  As explained in the link, the parallels provide persuasive arguments on why the groups have to work in a deeply integrated way.

The User Voice

I keep being struck by the difference in the experience of the ATJ world and the medical world in their efforts to bring the voice of users into their systems.  Given that many of our stakeholders are meant to be “advocates, I would like to see more progress in getting the user voice into governance vision and design.  As anyone who observed the focus groups conducted by Voices for Civil Justice can attest, the public has remarkable insight into the needed vision, even if their concrete knowledge of the system is very weak.  So, for example, the establishment as part of governance not the addition of a few individuals, but an intentional effort to create an insider/outsider voice, would be very helpful.  Not just website usability input but system goals, operation, and vision. I suspect that willingness of stakeholders to make such a commitment is likely to be a strong predictor of ultimate governance and thus project success.

Evaluation As Always is Key

In particular, the JFA Guidance and materials will be helpful in designing the evaluation process.  It is appropriate for a project such as this to evaluate not just individual achievements but its contribution to achieving 100% access, doing so with the kind of measurable outcomes urged by the Chief’s Resolution (which should not be forgotten in the crafting of the overall portal and system.

Posted in 100% Access Strategy and Campaign, Access to Justice Boards, Access to Justice Generally, Bar Associations, Funding, Litigant Voice, Medical System Comparision, Metrics, Planning, Remote Services, Research and Evalation, Technology, Triage | 3 Comments

Fact Checking Software and The Justice System

Posted on November 18, 2016 by richardzorza

This story about Google investing in online fact checking software did not get much attention in the US.  But, as reported in the Independent, it could be a big deal:

UK fact checking organisation, FullFact, has announced it has been awarded €50,000  (£43,000) by the tech giant’s Digital News Initiative to build the first  “fully automated end-to-end fact checking system”.

Continue reading →

Posted in Access to Justice Generally, Evidence | Comments Off on Fact Checking Software and The Justice System

More on ATJ Mapping

Posted on November 18, 2016 by richardzorza

Things continue to move on the use of GIS and mapping to promote access to justice.

It may be particularly important right now, because GIS helps us understand the context of the challenges faced by different populations in times of quick cultural and economic change, and so may help us avoid being seduced by quick and easy conclusions about underlying dynamics.

Remember that we all already collect huge amounts of data, it just lies unused, dormant, and unanalyzed.  These tools let us use them and move them forward.

The video of the recent SLN mapping day is here.

If you are interested in retaining SRLN to help with a mapping project, please contact alison@srln.org.

Posted in Mapping/GIS | Comments Off on More on ATJ Mapping

Next Wed Celebrate GIS Day with an SRLN Map Webinar

Posted on November 11, 2016 by richardzorza

As announced by SRLN, on Wed at 1 PM, Eastern:

In coordination with GIS Day and National Geographic’s Geography Awareness Week, the Self-Represented Litigation Network (srln.org)  is hosting a webinar on some of the ways geographic information systems (GIS) technology is being used to engage and empower the justice community. We will briefly describe how GIS works and then we will explore what is possible when you activate the hidden geographic information in your data . Lastly, we will showcase a recent SRLN story map initiative – America’s Civil Courts: Whom Do We Serve? 

It is no accident that access to justice pioneers have always been the leaders in GIS within our community.  It is because we believe in context, in data, in transparency, and in efficient and effective use of resources guided by data.

As the material at the link above shows, and as described earlier here by me, these mapping tools are going to be critically helpful in the next stage of state by state accesss planning envisioned by the COSCA/CCJ Resolution, as leadership groups make strategic decisions, either with the help of Justice for All Grants, or with the help of the resource materials developed by that project.

Posted in 100% Access Strategy and Campaign, Census Bureau, Mapping/GIS, Metrics, SRL Statistics, SRLN | Comments Off on Next Wed Celebrate GIS Day with an SRLN Map Webinar

Justice for All Grants Show Bipartisan Momentum on Access to Justice and Listening to the Voice of the People

Posted on November 10, 2016 by richardzorza

Today sees the announcement of the awards in the Justice for All project.

As the announcement issued by NCSC and the Public Welfare Foundation put it:

“Given the large number of people who are struggling economically, the increase of self-represented people in our state courts, and severe funding deficiencies, the Public Welfare Foundation thought it was very important to put resources behind the clarion call of the chief justices and the state court administrators,” said Mary McClymont, president of the Foundation. “We wanted to help catalyze new ways of thinking and working among civil justice actors in each state. The goal is to build a coordinated and integrated continuum of services with the user in mind —people with essential civil legal needs, especially those who cannot afford lawyers. The grants will help states bring together all civil justice stakeholders to determine the most effective ways to deliver those services.”

The seven grants are to Alaska, Colorado, Georgia, Hawaii, Massachusetts, Minnesota, and New York.  It is critical for the future to note that these states represent a wide variety in terms of size, population, demographics, political orientation, and prior investments.

Perhaps the biggest news is that twenty five states applied, and have all now put substantial effort into stakeholder recruitment and collaboration building and envisioning.  It has been many of our experience in the past that often groups that are not successful in such a grant process are ultimately able to achieve as much or more than those who do because of the initial energy brought together by the process.

As the announcement also stated:

Chief Justice Ralph Gants of the Massachusetts Supreme Judicial Court and co-chair of the Advisory Committee. “We hope that all of these states, even those that we were unable to award grants, will find ways to build on the momentum they have made to identify, coordinate, and utilize the available resources to help those unable to afford counsel address their legal problems.”

Indeed:

With continuing Public Welfare Foundation support, the project will offer any interested states that submitted applications ongoing help with their strategic planning — including the newly developed guidance materials that describe key components of a fully integrated system, targeted technical assistance with national consultants, instructional webinars, and shared learning opportunities. A full list of ways states can receive assistance will be made available soon. Information about resources will be accessible through the JFA website: www.ncsc.org/jfap.

And, Judge Zelon is quoted:

“We all will be able to learn lessons based on the different experiences of the seven states and we hope that all the participating states can learn what makes sense for them individually as well as learn collectively from each other.”

For me, it is particularly useful to note that this project is all about ensuring that the voices of all are heard in the justice system, including those who might be viewed as having voted the way they did because of a belief that their voices are not currently being heard.  That two of the states are viewed as “red” underlines that the understanding of the scope of the problem crosses the traditional fractures in our society.  Indeed, the project is designed to help implement the 100% access joint resolution of COSCA and CCJ that passed unanimously.

 

Posted in 100% Access Strategy and Campaign, Access to Justice Boards, Access to Justice Generally, Funding | 2 Comments

A Collection of Prior Posts on My Politics Blog Relevant to Now

Posted on November 9, 2016 by richardzorza

On my politics blog, I have a category that has focused on the possible implication of a Trump victory.

Here is the link to the category, for those who might care to take a look at it.

https://zorzapolitics.net/category/the-day-after/

I would also encourage those who are interested to take a look at this prior post on this blog on the true meaning of neutrality in existential times.

You can subscribe to the politics blog on its right hand side.

Posted in This Blog, Vocation | Comments Off on A Collection of Prior Posts on My Politics Blog Relevant to Now

Thoughts For Those At Personal and Family Risk

Posted on November 8, 2016 by richardzorza

There will be time and time enough to understand how this has happened.

But first, let us find the ways to be supportive at the personal and group level of people who are now to be put at risk through the dismantling of immigrant family protections, healthcare protections, and God knows what else.

I do not know how it is to be done, but that is the number one priority.

Only that way will we regain the equilibrium to deal with the more fundamental questions, such as the protection of the constitutional balance and the legal system.

Posted in Access to Justice Generally, Discrimination, Immigration, White House | 1 Comment

NYT Article on “Why Isn’t There a Landlord Blacklist?” Raises a More General Question

Posted on November 5, 2016 by richardzorza

That question is asked in a September piece by Ronda Kaysen in the Times Real Estate Section.

The author points out the data about tenant available to landlords, including from databases of eviction cases culled from court records.

Renting an apartment in New York City is an exercise in financial exhibitionism. By the time you are offered a lease, your future landlord knows your salary, savings and credit history, down to that unpaid Verizon bill from four years ago. If a past rental dispute ended up in housing court, good luck getting the new apartment, because he probably knows about that, too.

The article includes the sad story of how an attempt by rentlogic.com to partner with a rental brokerage floundered.

In comes Rentlogic, a company that started about six months ago on the premise that tenants deserve to know how well landlords maintain their properties — before they sign a lease. Rentlogic compiles data from complaints and violations filed with city agencies for 1.1 million residential buildings. About 300,000 of those are rentals with some amount of turnover; the company also tracks condominiums and co-ops.

.  .  .

On Sept. 2, the Real Deal reported that Citi Habitats, one of the largest rental brokerages in the city, would begin displaying its listings on Rentlogic, which works like a typical listings website, with one big difference. The listings include a letter grade and a summary of problems like bed bugs, mold and safety violations. If you click on a listing with a poor rating, Rentlogic suggests similar apartments with better scores.

A deal with Citi Habitats, which has around 18,500 available listings in its database, meant that Rentlogic could vastly expand its reach, even though Citi Habitats planned to provide only listings that received an A or B grade. Rentlogic already had about 3,000 listings a day, drawn from other brokerages and open listings sites.

.  .  .

But by Sept. 10, Citi Habitats had pulled its listings from the site, after fielding calls from angry landlords. “The landlords are upset and saying, ‘We don’t want you guys participating in this,’ ” Daniel Charles, a spokesman for Citi Habitats told me after the deal fell apart.

Enough said.

More generally, tehe question is how can consumer advocacy use the same kind of big data tools that landlords do to provide this kind of information to the public in many many product areas.

Some of the potential Sources of data:

  • Integration of state consumer protection data
  • Integration of federal agency complaints
  • Integration of state and federal court data against companies, including for discrimination
  • Additions to consumer comment sites like Yelp.

Remember, that the problem with many of the comment sites is that a few possibly not genuine comments can skew the whole result.  Aggregation would minimize this risk.

It would probably also be helpful to integrate sites that provide other information about providers, such as glassdoor.com, which provides reviews and scores by current and former employees, and which I have found very consistent with my own experience.

As a general principle, data about the company from many sources is likely to give you a sense of its ethics and priorities, which will impact any experience of dealing with it.

What’s the business model?  maybe it could be offered by newspapers as part of their online subscription package?

Maybe it could be funded by Cy Pres and consumer protection awards and settlements.

 

Posted in Access to Justice Generally, Consumer Rights, Evictions, Federal Agencies, Federal Courts, Housing, Media | 1 Comment

DOJ and FTC Weigh In on Exempting Websites from the Practice of Law

Posted on November 4, 2016 by richardzorza

On June 16 of this year, North Carolina passed a law creating a limited carve-out from the definition of the practice of law for websites that met certain requirements.  The bill is here.  There has been robust critique of the requirements.

However, the purpose of this post is to draw attention to the staff  letter submitted by the US Department of Justice and the Federal Trade Commission, addressing some of the general issues raised by this topic.  Their comments should be cited regularly by those advocating flexibility in the system.  Specifically (underlining added in italicized and quoted text below is by me ):

Definition of Practice of Law. 

The Division and FTC staff believe that “the practice of law” should mean activities for which specialized legal knowledge and training is demonstrably necessary to protect consumers and an attorney-client relationship is present. Overbroad scope-of-practice and unauthorized-practice-of-law policies can restrict competition between licensed attorneys and non-attorney providers of legal services, increasing the prices consumers must pay for legal services, and reducing consumers’ choices.

.  . .

The Agencies believe the definition of the practice of law should be limited to activities where: (1) specialized legal skills are required, such that there is an implicit representation of authority or competence to practice law, and (2) a client relationship of trust or reliance exists.11 The Agencies have recognized District of Columbia Court of Appeals Rule 49 Commentary as instructive.  (Link added)

 

Value of Software.

Interactive software programs for generating legal documents appear to be responsive to consumer demands for more cost-effective and efficient ways to address their legal issues. These software products may expand consumer access to legal services, facilitate the unbundling of legal services, promote a more efficient allocation of resources (e.g., among licensed attorneys, non-attorney providers, and self-help efforts), reduce transaction costs, increase convenience, and help some consumers more effectively to address their legal situations. For example, a consumer who may be unable to afford to retain a licensed attorney both to draft and review a legal document may be able to use interactive software to generate a draft document, and pay an attorney only to review the document, if desired. At the same time, such programs may raise consumer protection issues regarding consumers’ understanding both of the generated forms, and whether or when it may be desirable for a consumer to seek the services of an attorney.

 

Value of Competition Between Lawyers and Non-Lawyers.

The Agencies believe that consumers generally benefit from competition between lawyers and non-lawyers in the provision of legal-related services. Consumer demand should determine the range of choices in the marketplace, unless it is clear that specialized legal training is required to perform a legal-related service. Overbroad scope-of- practice and unauthorized-practice-of-law policies can increase prices, impede innovation, and otherwise harm competition and consumers.

Harm Comparison — Here for Software.

Th[e] analysis should also examine whether any harm from these products is materially greater than comparable harms posed by traditional attorney-client relationships or government provision of legal services or information, such as legal forms or other information available at the website of a government court or agency. As a matter of sound competition policy, a regulatory framework should not in purpose or effect favor one type of similarly situated competitor over others in addressing any identical or similar harms from these products.

Consumer Protection.

Regulation of interactive software for generating legal documents should
therefore focus primarily on deterring unfair or deceptive advertising and
marketing practices relating to the content of forms, their validity, liability, other
terms of use, and any related filing fees, and addressing any other consumer protection issues.
The letter contains extremely helpful footnotes detailing the history of the Agencies views and actions with respect to these issues, which may well be of even greater help in particular contexts.  Yet another example of the value of ATJ attention in these agencies.
Sorry for the delay in giving this the attention it deserves.
Posted in Alternative Business Structures, Anti-Trust, Bar Associations, De-Regulation, Dept. of Justice, Document Assembly, Federal Agencies, Forms, Non-Lawyer Practice, Plain Language, Rules Reform, Technology | Comments Off on DOJ and FTC Weigh In on Exempting Websites from the Practice of Law

Important Research on Benefits of Plain Language Court Orders And Translation

Posted on November 4, 2016 by richardzorza

This research, funded under the LSC TIG program through a grant to TRLA, conducted in Austin, Texas, by NPC Research on the impact of plain language and translated court documents could be very helpful indeed. (Disclosure: I have been involved in several ways with this project, which included multiple local partners).  To quote the Summary of the Report, Introduction of Plain Language Forms with a Spanish Translation in a Family Court Setting Results in Dramatic Reduction in Reported Violations of Orders of Protection:

There has long been strong political support for making sure that governmental information, forms, and websites are written in plain understandable language, and translated into the primary languages of those who use them. But making the needed changes has often been delayed by fears of the costs. Now comes dramatic evidence of the impact on institutions, in this case the courts, of making these changes. Moreover, the new research described here also strongly suggests that cost savings are high enough to more than justify the investments needed.

Specifically, one court was able to reduce the number of returns to court by over 70% by putting such a system in place in domestic violence cases involving people who spoke either English or Spanish. With funding from the Legal Services Corporation, the Travis County Court in Austin, Texas, deployed computer software that generated orders as directed by the judge, and the software automatically used only standardized easy-to-understand English to create the full court orders. Where needed, the software then used approved similarly easy-to-understand Spanish translations of the standardized language to create a translation of the order. (Occasionally the judges requested individualized language. That text was then translated by a qualified interpreter.)

The researchers then studied the rate of return to court for alleged violations for the 6-week period following the order and found the over 70% reduction overall.

They were then able to estimate the total savings from this reduction as over $100,000 over a 3-month period.

In this initial research, no distinction was made between the effect of using plain language and the effect of the Spanish translation.

It is clear that deployment of plain language bilingual documents can have a major impact on both the efficacy and the efficiency of organizations, including courts. The study also showed the value of technological innovation, as championed by the Legal Services Corporation with a special Congressional appropriation, in improving access to justice and the legal system.

As the Full Report states:

For cases proceeding before Spanish translation of the orders was implemented, 12 out of 127 or 10% of protective orders were violated within 6 weeks. After Spanish translation of the orders, 4 out of 146 or 3% of protective orders were violated within 6 weeks. A chi square test was performed and a relationship was found between translation of orders and rate of violation (X2 (2, N = 273) = 7.036, p = .03).

The pre-implementation group had a rate of violation over 3 times that of the group receiving [post-implementation] printed orders. The lead county attorney felt that although the orders were explained to the parties on the day of the hearing, “…it’s really hard for people to remember everything that happens in court once they walk out the door. Stress, nerves, anxiety, etc. contribute to the memory loss…[h]aving a document to refer to, one that they can understand, probably does make a big difference.”

The key table is below:

Was the Order Violated?
No Yes Missing Total
Control 112 (90%) 12 (10%) 3 127
Program 141 (97%) 4 (3%) 1 146
Total 253 16 4 273

As the Summary concludes:

The project confirms that use of plain language and translated court forms has a very highly significant impact upon the rate of violation of domestic violence protective orders. It also strongly suggests that this impact extends to the expenditures of the courts, and indeed other agencies and the parties, for such procedures, as well upon the underlying burdens imposed by violations themselves.

The policy implications are obvious. Broad deployment and additional research, are critical and urgent. Such investments would result in a very speedy return on investment.

(It should be cautioned that a parallel but different experiment in a different court did not show such results.  As explained in the full Report, there were numerous other changes taking place in that court, which, it is hypothesized, are likely to have made the before/after comparison invalid.)

I hope that this study will be a springboard to additional research and implementation.

(Note, this post has been updated to link to the newest versions of the Summary and of the Full Report.)

Posted in Access to Justice Generally, Forms, LEP, LSC, Outcome Measures, Plain Language, Self-Help Services, Technology | 2 Comments

Launching of National Center For Access To Justice Highlights Criminal/Civil Overlap and Opportunities

Posted on November 3, 2016 by richardzorza

The recent launch of the National Center for Access to Justice at Fordham Law School is a good illustration of the progress we are making in getting beyond the traditional and incomprehensible “wall,” between civil and criminal ATJ issues.  Those barriers have always been more institutional than rational, driven y the desire to protect funding, pension and the like.  They have done great harm to the people our institutions are meant to serve.  But with the “fines and fees” issues, and our increased understanding of the role the legal system plays in pushing people into poverty, and keeping them there, the schism is indefensible.

As the Center’s launching post, which includes a full video of the launching gathering, featuring retired Chief Justice Lippman and many legal system luminaries, puts it:

The panelists expanded on this theme, discussing:  i) how innovative models in the civil access to justice movement can be applied to challenges in the criminal justice system and at the intersection of the civil and criminal justice systems (for example, extending coverage of access to justice commissions to the criminal justice system, increasing pro bono participation in in criminal justice reform and in providing criminal defense services, promoting transparency of courts through unified forms, technology, and new roles for judges and clerks); ii) how collateral consequences of adverse civil judgments draw people into the criminal justice system; iii) how the access to justice framework and vision can advance the reform agenda for court fees, fines and drivers license suspensions that are used to extract money from the poor for minor “civil code violations”; iv) how redefining crimes as civil violations has millions of people facing financial penalties in municipal courts but without the right to counsel previously available in criminal prosecutions; and v) how the judiciary can take steps to provide leadership that responds to the calls for racial justice and greater fairness in our justice institutions.

The specifics listed above are only a beginning, but a great one.  It is my great  hope that the next, shall we say four, years, will include the creation of a specific agenda for making sure that services needed to protect rights in the civil and criminal systems are not only fully available, but are delivered in an integrated way.

President Clinton — Tear down that wall!

 

Posted in Chasm with Communities, Criminal Law, Defender Programs, Dept. of Justice, Legal Aid, LSC | 1 Comment

True Neutrality in a Time of Existential Crisis

Posted on October 30, 2016 by richardzorza

What is rapidly becoming not a national existential crisis, but a world existential crisis forces us to examine not the limits of neutrality, but the obligations of neutrality.

The United States is enriched by enormous numbers of organizations that are committed in one way or another to various forms of political neutrality or non-partisanship.

As such, they refuse to endorse candidates, and are extremely careful about taking policy stands, particularly about legislation.  This is all to the good in a normal time.  The problem is not that this should be ditched, but that in a time that is not normal we need to think about whether a formalistic and excessive application of this approach is counter-productive.

To be specific, but at a general level, I do not believe that for organizations to choose this time to formally and publicly reassert the non-partisan values they support is in any way non-neutral, even if so doing my have a political effect because one party or the other presents such a threat to those values.  In such a situation, it is the aberrant party that is creating the political effect, not the neutral organization restating its neutral principles.

Thus, for courts to reassert judicial independence — surely a neutral act if ever there was one — can not be turned into a partisan act by one candidates attack on judicial independence.  Similarly actions of organizations supporting the equality now implicit and explicit in our constitution are not turned into a political acts by a party appearing to attack that principle.

At this moment of crisis, I wish we were seeing more of this clarity, and less retreat into passivity, justified as neutrality.

The distinction between neutrality and passivity should be particularly easy for the legal system to understand, since we now have gotten to the place that we realize that engagement by judges is not the same as non-neutrality, and that passivity is therefore no virtue when true neutrality requires otherwise.

 

 

 

Posted in Access to Justice Generally, Constitution, Federal Courts, Judicial Ethics | 2 Comments

Tim Kaine Calls for New Approach to Poverty — Legal Aid Implications

Posted on October 30, 2016 by richardzorza

Remember his wife is a former legal aid lawyer and a former judge.  According to the Detroit Free Press, in speech on Oct 16, Kaine:

.  .  .  outlined the campaign’s three-pillar attack on poverty, including:

Raising incomes for families, which entails raising the minimum wage to $15 an hour, investing in poverty-stricken communities with things like infrastructure improvement projects and increasing tax credits for child care.

Making sure communities and homes are safe by fighting things like housing discrimination and predatory lending, ensuring the water and air in places like Flint are safe to consume and enacting common sense gun control measures like universal background checks.

And improving education by expanding early childhood development and Head Start programs.

The bold/underline is added.  It is hard to imagine an effective strategy for the second of these paragraphs without an enhanced legal aid component.  Something for the transition planners to be thinking about.

Posted in 100% Access Strategy and Campaign, Discrimination, Evictions, Foreclosure, Funding, Housing, Legal Aid, LSC, White House | Comments Off on Tim Kaine Calls for New Approach to Poverty — Legal Aid Implications

Thinking About Access to Justice and The Coming Transition

Posted on October 23, 2016 by richardzorza

Given that Karl Rove has effectively conceded the election, its surely time to start thinking about opportunities for access to justice in the transition.

Obviously, this is going to be very different from the last transition eight years ago.  It will not be a change of party.  We will not be in a huge financial crisis.  There will not be a huge stimulus plan in the process of being put together.

There will already be in place an access to justice office within DOJ, and an access to justice caucus in the House of Representatives.  There will also be a President who was once the President of the LSC Board, and a Vice-President whose wife has been both a legal aid attorney and a judge with administrative responsibilities.  We’ll have lots of research in place, lots of pilot projects that show promise, significant funding from the foundation sector, including for the Justice For All Program implementing the Chief’s Resolution, and a truly pro-access LSC Board.  We’ll have the White House Legal Aid Inter-agency Roundtable driving engagement of a multitude of Federal agencies in access to justice.  We will have a very different balance in Congress.

So, what do we need from the transition, other than the obvious (money)?  Here are some thoughts.

Continued expansion of Multi-Agency engagement with ATJ.  This means making sure that all Federal agencies assess the ATJ impact of the changes they make (ATJ impact statement requirement), pay focused attention to the accessibility of adjudicatory processes within and paid for by their agencies, and continue to make sure that funding streams contain elements that fund accessibility help for those impacted.

Access to Justice Leadership Coordination.  Again and again we have seen that the ATJ community has missed ATJ agenda opportunities because of a failure of leadership coordination.  We still have no fast response mechanism when a disaster hits, when a new issue suddenly gets public attention, or when an especially sympathetic person has something bad happen to them.  This is just a symptom of the broader failure to have an integrated agenda (although at least different agendas now have elements in common), or even a leadership mechanism to create such an agenda.  While the DOJ ATJ Initiative has long served as a leader in convening, and has been particularly successful in encourage research and in getting Federal agencies to think about moving forward in common, this should be ramped up in terms of status and priority.  Maybe a job for the “Second Spouse?”

Civil and Criminal Distinction. Any intellectual justification for the distinction is long gone, and the Feds should be making the regulatory and statutory changes that remove the possibilities for integration of services, research, funding, etc.

Integrated View of ATJ.  Finally, every initiative with ATJ potential should be scrutinized to insure that all approaches are considered and integrated — including roles beyond lawyers, bar change incentives, and simplification and system redesign.  Triage (and that covers many different approaches) should be recognized to be the core of the system that it already is.

Supreme Court Nominee.  It is critical that the new nominee (assuming that the highly satisfactory Garland has not in fact been confirmed by the inauguration) have an ATJ perspective, not just in terms of the Federal Rules, and issues like class actions and mandatory arbitration, but also with an understanding of the critical administrative and leadership role that the Supreme Court potentially could have for access to justicecritical administrative and leadership role that the Supreme Court potentially could have for access to justice.  Follow Canada.

It should be the time of an exciting step forward.  Lets hope that the process gets the right people involved, with the broadest perspective possible.

Posted in 100% Access Strategy and Campaign, Access to Justice Generally, Administative Proecdure, Defender Programs, Dept. of Justice, Federal Agencies, Funding, LAIR, Legal Aid, LSC, Mixed Model, Non-Lawyer Practice | Comments Off on Thinking About Access to Justice and The Coming Transition

Immigration Judges Learn to Recognze and Protect Against Implicit Bias

Posted on October 4, 2016 by richardzorza

The NYT has an important piece today on judges and implicit bias.

Now, as the country struggles with how these instinctive judgments shape our lives, the Justice Department is trying to minimize the role of bias in law enforcement and the courts. More than 250 federal immigration judges attended a mandatory anti-bias training session in August, and this summer the Justice Department announced that 28,000 more employees would go through a similar exercise.

And:

When the brain has to process large volumes of information quickly, there is a tendency to rely on past experiences rather than on unique details in the present. In judging people, for instance, this can mean falling back on generalizations about race, age, country of origin, religion or gender.

And:

In August, at the judges’ training session, Ms. [Kelly] Tait went over strategies to counteract bias, like focusing on something as innocuous as the color of an immigrant’s shirt to prevent cases from bleeding together.

She explained that people who know they are biased against a particular group can try to picture an exemplar of that group whom they hold in high esteem. One of the judges she taught said that when he had felt himself tensing up next to a large African-American man on the witness stand, he pictured President Obama. Another judge said that under similar circumstances he had thought of Nelson Mandela.

The simplest and most effective way to combat bias, however, is to avoid rushing and take breaks, Ms. Tait said. But with more than 500,000 cases pending, immigration judges say that slowing down is not an option.

Now Kelly Tait is a long time friend of access to justice and a powerful speaker and trainer, so the immigration judges were very lucky.  See her piece at page 45 of this SRL package.

So, lets hope these ideas spread through the whole system — and not just for judges.

 

Posted in Access to Justice Generally, Communications Strategy, Immigration, Judicial Ethics, SRLN | Comments Off on Immigration Judges Learn to Recognze and Protect Against Implicit Bias