Ensuring Meaningful Access to Justice
Each year, millions of Americans find themselves in court trying to resolve civil disputes. The issue could be a disagreement with a landlord, an imminent bank foreclosure, or a domestic battle over child custody or child support. These are essential matters affecting personal safety, economic security, and family integrity that can threaten basic survival.
But, while national and state studies show that more than 60 million people are eligible for legal aid, funding to provide it is so inadequate that civil legal aid organizations are forced to turn away two out of three people who come to them for help. And, recent research by the National Center for State Courts (NCSC) found that in more than 75 percent of civil cases, one or both parties does not have legal representation in court, despite the very high stakes that are often involved.
This civil legal aid crisis has existed for many years and threatens the ideal of meaningful access to justice for all Americans. Given the shortage of lawyers who can help low and modest income people, those lawyers who are available should handle the most complicated and consequential cases, using their skills to practice at the “top of their license.” To satisfy the needs of the client-consumer and ensure effective legal assistance for all, a range of services beyond lawyers is required.
The dearth of lawyers and financial resources has led to various service innovations and different ways of providing help. These include new partnerships and collaborations through Access to Justice Commissions that now operate in 38 states; new technology tools, such as online forms; court navigators – non-lawyers who help self-represented litigants get through court proceedings; or the 450 self-help centers across the country.
An organization that has taken the lead in helping the legal professionals who are transforming the justice system to better support the millions of people going it alone in courts is the Self-Represented Litigation Network (SRLN). The organization was started in 2001 and is comprised of judges, lawyers, and others such as librarians, community leaders, and technologists.
As Katherine Alteneder, coordinator of the SRLN network, noted, “Everybody uses the courts, even in death.” In addition to divorce, child custody or landlord-tenant disputes, she said, “The chances that you have a traffic matter at some point in your life are very high…If you have a business, more than likely you are going to go to court because that is how you resolve business disputes…And you may have to seek guardianship or some other form of protection for a family member who is elderly or disabled.”
Generally, SRLN estimates that 70 percent of divorce cases involve at least one person without an attorney at the beginning of a case, and 80 percent by the end of a case; 90 percent of domestic violence cases involve no attorneys; in eviction cases, 90 percent of tenants and 30 percent of landlords do not have attorneys.
SRLN has become an effective resource, guiding courts as they help litigants understand the civil proceedings in which they are participating. Broadly, it connects legal professionals within and among states that are creating innovative and evidence-based solutions to give self-represented litigants meaningful access to the courts.
In addition, SRLN has successfully nurtured and championed a number of other innovations, including standardized forms, case management reform, simplified procedures, multi-lingual resources and services as well as plain language instructions, strategic uses of technology that help empower consumers, coordinated delivery systems among providers, and judicial education to improve the courtroom environment for self-represented litigants.
A key goal is to help create a court system that is transparent, offers accessible information and offers it when people need it, which means making it available – mostly on the web – round-the clock.
As Alteneder put it, “Our thesis is, if you are unrepresented and you don’t have access to information so that you can figure out what to bring to court, the judge is never going to be able to issue a decision on the merits.” As a litigant, “when you go into the courtroom, because the system is more transparent, you can learn how to tell the judge your story and know what’s being expected of you. At the same time, the judge is getting the relevant information to make decisions.”
Similarly, self-help centers aim to put the litigant-consumer at the center of the process and to make it easier for those who must tackle court cases on their own. Currently, nearly a dozen states have sophisticated services for self-represented litigants available in all counties. California is one of the earliest states to have a self-help center, by statute, in every court.
Generally, California’s centers are located in the local courthouse – as close to the clerk’s office as possible to facilitate the filing of forms – and are open during the same hours as the court. A supervising attorney, paid by the court, oversees the center and provides services along with other lawyers, paralegals, clerks, and volunteers, depending on the size of the center.
The centers provide one-on-one assistance, as well as workshops on a variety of topics to allow people to complete court documents successfully, receive guidance on the court process, and develop a basic understanding of the law in their case. This assistance increases the ability of litigants to present their issues clearly and to have more reasonable expectations about their case. It reduces stress and frustration with the process, benefitting both the public and the courts.
Bonnie Hough, who has overseen the growth of self-help centers in California and who currently serves as managing attorney for the Center on Families, Children and the Courts for the Judicial Council for California, said that the centers have already been “transformative” – in helping people understand the courts, in helping litigants and judges communicate more effectively, and “in recognizing the reality that a majority of people are coming to court without an attorney.”
The SRLN and self-help centers recognize that self-help alone is not enough and are working actively to develop screening and sorting mechanisms, often called triage, which match people with the level and type of legal help they need.
As Jim Sandman, President of the Legal Services Corporation, the country’s largest funder of civil legal aid programs, observed, “Self-help centers, online do-it-yourself tools for creating legal forms, and other similar services are important and useful for many people who would otherwise be completely on their own. There is still a need for lawyers in matters where the stakes, the complexity of the matter, the capacity of the party, or the presence of counsel on the other side make self-help an ineffective option. Good triage identifies the right level of service for the particular person and matter, including a lawyer in circumstances where individual representation is essential. The goal is to make sure that everyone gets some form of help.”
One overarching result of the growth of the self-represented and self-help movement is that, as Hough noted, court experts are asking each other, “How do we design things in ways that make more sense?”
That’s also a question that the Public Welfare Foundation is helping to answer by supporting those in the civil legal aid sector who are advocating for many of the new innovations and tools. All these new resources are especially useful in light of a resolution passed in 2015 by the Conference of Chief Justices (CCJ) and the Conference of Court Administrators (COSCA) that reaffirmed their “commitment to meaningful access to justice for all.”
The resolution also urged legal professionals, Access to Justice Commissions, and the courts in each state to provide leadership in achieving that goal by working together to provide an integrated “continuum of meaningful and appropriate services.”
The Public Welfare Foundation is advancing the cause by supporting a project, housed at the National Center for State Courts, to help courts, civil legal aid leaders, and others in targeted states form partnerships, and then coordinate, collaborate, and use the resolution as a “jumping off point to help accelerate efforts to secure justice for all, including those who cannot afford lawyers,” said Foundation President Mary McClymont.
The resolution – and the ongoing efforts to make it a reality – signals a renewed commitment by the entire civil legal aid community to give all litigants the access to justice they surely deserve.
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The Public Welfare Foundation supports efforts to advance justice and opportunity for people in need. These efforts honor the Foundation’s core values of racial equity, economic well-being, and fundamental fairness for all. The Foundation looks for strategic points where its funds can make a significant difference and improve lives through policy and system reform that results in transformative change. For more information, visit www.publicwelfare.org. Follow the Foundation on Twitter or on Facebook.