by 10:30 Welcoming Remarks by Dean Minow
10:33 Alex Smith- symposium coordinator thanking everyone who put work into today.
10:35- room is almost full, so great to see so many people showing support!
10:37- Smith says a great tragedy in access to justice is how few people are aware/talking about this crisis.
10:38- Minow – salute those who do legal services and change lives every day
10:39 – Minow- Not just that it feels good to help those in need — restores and renews all of our faith in justice. 1/5 americans qualify for free counsel . Increase of 10 million since 2007.
10:40- the law does not enforce itself.
10:41 – last week HLS opened new veterans clinic.
10:42- unprecedent home foreclosures, low employment numbers at the same time that funding for civil legal assitance is dropping. Federal by support before sequester reduced at federal level by 17%.
10:45- private philanthropy strained, law school budgets are strapped. Legal services corporation meetings are very painful, because of difficult federal budget. Nixon was the great advocate for legal services.
10:47 Changes in legal services could help. For example changes in CEL credit, technological support, laws about whether corporate counsel can represent w/0 bar entrance. Maybe TFA for young lawyers.
10:47 Cracks in civil justice system may not be visible, but we know they exist. Our responsibility to make them visible.
10:49 2011 world justice project index rates US 22 in world to access to legal assitance. Less than 20% of legal problems of the poor get assitance.
10:50 Develop self-help programs, clinics, law reform, mediation, develop technological legal tools, have uniform forms within a state and get them online. Try and address some of the bar rules. Have allied legal professionals like the medical profession has done. Courts overwhelmed by unrepresented litigants
10:51- Good progress — several states enact legislation that earmark returns from filing fees to legal services. Jonathan Litman- requires pro bono service prior to the bar makes life difficult for students but is a good policy ; California takes lead on Civil Gideon.
10:53- 3 good arguments for expanding civil gideon: 1) we will all save money if other people get counsel 2) protecting rule of law is good for business and consumers 3) strengthen our own best selves.
10:54- Justice is JUST – US
10:55- Panel 1: Russell Engler, Rebecca Sandefur, Mark Ladov, and James Greiner.
10:56- Russell Engler: The story of Turner. We could talk about a doctrinal story across cases. We could talk about Supreme Court decisions and how it sounds as though there’s a right to counsel but judges have consistently acted as though there is not, with some possible exceptions. But the story is not mostly at the Supreme Court.
11:00- Huge incidence of unmet legal needs. Legal services decimated with budget cuts. Typical case in housing courts is tenant unrepresented and landlord represented. Counsel having an impact in housing, custody, and other areas. Studies have problems, but the general trend seems clear.
11:02- Many are worried about second-class legal status. Thus, the movement towards a civil Gideon. Critiques: unaffordable, doesn’t take into account current structure.
11:04- First prong is the courts. It is their job to achieve fair outcomes in cases. Second prong: Every form of assistance short of full representation should be experimented with and rigorously evaluated. Third prong: civil right to counsel. Where the first and second prongs fall short, the third prong comes in.
11:05- Maybe not every custody case, but maybe when batterer is represented and battered is not.
11:05- Three final points. First, importance of power and power imbalances. How to organize subcategories in right to counsel, and reason for lack of optimism for results of Turner.
11:06- Second, topic is the crisis of legal services, but the crisis is in the legal system. Keep the legal institutions in focus. The courts and legal systems are failing.
11:07- We owe it to ourselves to not let people eyeroll the concept of civil Gideon. If something important is at stake, and nothing but a full right to counsel can protect that interest, then a full right to counsel should exist.
11:08- Sandefur: What do we know about civil justice’s experience by the public and how we provide it?
11:09- Categories of people affected by civil justice problems: livelihood, finances, family, housing, and health care. This was from a survey that didn’t ask about law; it just asked about people’s problems. In 2008, tens of millions affected, and probably worse now.
11:10- What we see in courts is the tip of the iceberg: about 10% of the problems that exist. 24% of people who have those problems do nothing, 27% get to an attorney or court, 41% try to handle it on their own, 8% consult non-legal third party.
11:11- We often say that people don’t take their problems to courts because they are afraid of expense. But only 6% in survey actually said that. More frequently, they think they’re not legal problems or are problems that they’re just going to have to live with.
11:13- In a focus group, a woman said that she was denied Social Security and public aid when she was pregnant and the father of the child died and she had a job. There were tons of possible straightforward interventions, but she felt that she couldn’t do anything.
11:15- How people describe their own justice problems in a word problem: help, aid, public, denied, and many others, but not law or legal or lawyers.
11:15- If we implement a right, we’re implementing in some existing system. Civil legal assistance exists, but there’s an enormous diversity across the country in programs.
11:16- There is extraordinarily little coordination in the existing system. If you make it into the system, you have no way of moving through it (referrals, etc.).
11:17- What’s available to you as a consumer is not a function of your need but of where you happen to live. If we wanted to have some kind of categorical entitlement, we may need some kind of systemic redesign.
11:18- Ladov: research at the Brennan Center has not turned up results that were expected. Looking at foreclosures. Complex area, nowhere near enough access to legal services.
11:19- But now coming to the fact that access to legal services is necessary but not sufficient for access to justice. Role of the courts is absolutely critical. These are all public policy issues. A lawyer in court may not have the public policy tools to solve this problem.
11:20- Consistent predatory lending, house of cards recording system. As a practical matter, very little of that gets discussed in courts. Most folks are trying to figure out, “How do I save my home?” Sit down with lender and get a loan modification.
11:21- How do we create a system such that everyone who could afford a loan modification gets one? This is usually the question. Complex process for homeowners: financial documentation that makes no sense, banks aren’t implementing this properly and are violating rules, and there’s a demand for legal assistance.
11:22- But we can’t just focus on legal services as a solution. 82% of homeowners were not provided full representation in study in Queens, but a lot of homeowners get some kind of partial representation. Percentages can be opaque. But there were a lot of pro se homeowners.
11:23- 75% of folks in settlement conference have a lawyer to assist them in homeowner stuff in Brooklyn and Queens.
11:24- There is legal aid available, but people in legal services bang their heads against the wall because they’re still seeing the same problems. The courts need to be better involved. Courts need to provide better sanctions, a written record, be an active player.
11:25- In Philadelphia, a judge has managed to bring lender’s bar and legal services bar together. There is an ecosystem that is functioning better than might’ve been expected. City has invested in housing counselors, partnering with legal services.
11:27- Legal services says that this is a pretty good system for them, because they can keep their fingers on issues but don’t have to jump in unless there are crazy legal issues.
11:27- Also, Connecticut. Low representation rate, but $5 million per year into mediation services. 83% settlement rate, and 63% rate of homeowners keeping their homes coming out of conferences. A lot of this is personality-driven. People who see their role as not only to be impartial but also to see that banks follow the rules.
11:28- Fairly effective job on a different model of where to put the resources.
11:29- Greiner: We’ve been inspired, informed, and now I’m going to annoy you. (Laughter follows as a student nods vigorously.)
11:30- I’m going to emphasize what we don’t know and what we need to know. We could project this onto just about any access to justice area.
11:31- What happens to people who have legal problems. There is demand, but many people who have a legal problem never interact with the legal system (nascent demand). Expressed demand is when they actually come to the legal system.
11:32- There is a big difference between nascent and expressed demand. Expressed demand comes into some kind of intake process. There is some sort of triage decision, because we don’t presently want to provide full representation to every person who has a legal problem.
11:33- Then there is some sort of service provision, either referral to pro bono or on-the-spot assistance. On-the-spot is often brief advice/counseling and on the telephone. Sometimes there are other forms, such as clinics, but most on the telephone. Then folks are provided with forms.
11:34- The form has a mythic quality to it. The Supreme Court seems to assume that if there had just been a form, then everything would’ve been fine. Many people, such as Justice Ginsburg, cite the importance of the criminal right to counsel form.
11:35- But overwhelmingly, if you allege in that form that you’re indigent, you win. You get counsel. But we might smell a rat. Would this form have been effective in the civil context?
11:36- On nascent versus expressed demand, how could we turn one into the other? How can we get people to contact us? The biggest problem in credit card debt collection is that debtors don’t show up. Large entities file commoditized lawsuits without proper forms or evidence that they own the debt or the amount of the debt. But they know that people don’t show up to court.
11:37- We don’t know how to turn nascent demand into expressed demand. If you append a notice to a summons and complaint that says if you have a legal problem and think you need help, then call this number. This would be a really easy randomized trial to do, but we haven’t ever studied it.
11:38- On intake, what information do we need to support the next decision (triage)? Does education make a difference? Language? We think they should, but we don’t know. Socioeconomic factors? We don’t know.
11:39- Triage decisions, perhaps the most critical part of the entire structure. Right now, the decision is made by a human being. Are we good at that? Evidence from other fields suggests that we are positively lousy at making that decision, especially if we don’t write down a lot of criteria ahead of time. Do we have the right criteria? We don’t know.
11:40- On service provision, in pro bono work, what if the lawyers are not trained? Outside their areas of expertise? Young? Old? Not fully educated in the U.S. legal system? We don’t know.
11:41- Think about what you’re doing when you give telephone advice. You’re teaching. This is a teaching/educational intervention. How many of us would expect a telephone conversation to be an effective way to teach? It might work. It might not. As compared to what? There’s reason to worry.
11:41- The forms. The mythical qualities attached to the formers in Turner v. Rogers. The form is really powerful if all you have to do is complete the form.
11:42- But you probably don’t always win when you fill the form out in this context.
11:43- We go to a lot of effort to create these forms. But we haven’t studied whether people actually use these forms. We could study court records. We also don’t know how to write a good form.
11:44- There are no tests on which kinds of forms get more recognition and understanding. This can be done. We could look at cases in the court system. Which forms are being used? Which forms are not being used? We don’t know.
11:44- Arguments against rigorous testing: first, we don’t randomize parachutes. This is too obvious. But this may not be where we are in this area. Second, the stakes are too high. We don’t test domestic violence cases because the stakes are too high. But this assumes that we’re right. Doesn’t the nature of the stakes suggest that we have to do this sort of thing? We do it in cancer. In heart treatments.
11:45- Third, we will leave some people without help or with lower levels of assistance. But we’re doing that already. There are legal services clinics that shut down intake after two days; we could leave open intake all month and randomize who gets taken in.
11:47- We’re going to leave some people without help. That’s just what happens now.
11:47- Fourth, if we test and assess, they will kill us. The bad guys will come after us. But they’re going to come after us anyway. Evidence is not going to their minds (or our minds). This is about persuading the people who can be persuaded with evidence.
11:48- Closing remark: are you annoyed?
11:48- Moderator: Why are we having this conversation in such a limited form. There is little political response. There is little interest on the part of our legal education system. What have we failed to do to make this issue compelling?
11:49- Greiner: A remarkable number of incoming law students (and most Americans) think that there is a civil right to counsel already.
11:50- Sandefur: This is a time of remarkable austerity. Government programs survive when large percentages of the population receive benefits. Focusing on poor people is not a strategically good plan.
11:51- Engler: Lack of political power and vested interest on the other side. There’s business on the other side of a lot of the debt collections. If there’s a defective case, the court should just dismiss them, but people need to show up in the current system. People are not necessarily persuaded that there will be an overall savings of money. Preserving the rule of law also is a strong argument, but that may not automatically take. And I’m not sure that the first dollar that we have should go to getting a lawyer as opposed to education or health care.
11:53- Ladov: There’s a huge amount of pushback. There are restrictions on the kinds of advocacy that legal services lawyers can do (class actions, representing the undocumented). Folks are worried about the kinds of suits that you could be doing.
11:54- Moderator: We are a very long distance from realizing what is on paper a well established right to counsel in criminal cases. What makes us think that a court just articulating a right would make a difference? What’s the most cost-effective use of resources? Is it necessarily a lawyer? Should we be trying to come up with ways to survive without full-blown lawyers? We can use non-lawyers and technology. If there’s anything less popular than a poor person or a poor person with a lawyer, it’s a researcher studying poor people with lawyers.
11:56- Engler: I have no confidence that any right on the civil side will work better, but that doesn’t mean that we should not argue for the right. We shouldn’t repeal Gideon on the criminal side because it’s not working right. We must study things. We know less than we know. But I’m not prepared to hold off any recognition of any right until we know enough to be sure. We can identify the cores. It’s about allocating scarce resources and not waiting until we know everything.
11:58- There’s a burden of proof issue. Assume the process is unfair and make the courts prove that something less can occur.
11:59- Greiner: Amen. Research is a recipe for paralysis. You can’t wait until you’re certain. You intervene and you test. Also, the short-of-a-J.D. is coming. The question is how we’re going to deal with it. Are we going to regulate? How many different types are we going to have? There’s an alphabet soup in the medical community. Oversight?
12:00- Engler: Hopefully with testing.
12:00- Greiner: Hopefully with testing. People are most inclined to do testing when things are perceived as new.
12:01- Ladov: The legal aid lawyers have an effect even when they’re not directly representing people. Pro bono lawyers and housing counselors get propped up by legal aid lawyers. How do we study this?
12:02- Greiner: This requires complex tools. We have to do some trials and some others. We should understand that a case here matters for cases later; that’s precedent.
12:04- Engler: There’s Jim’s voice in my head whenever I say that I know anything asking me how I know.
12:04- Audience question: I’m from statewide legal support center in Massachusetts. The main interaction that people have is the state agencies. Without legal services advocacy, there would be minimal to no due process in these agency hearings. This is significant to actual lives of clients.
12:05- Engler: I agree. If you’re looking at a spectrum of services, one of the questions is, given the scarcity of resources, what is the best way to allocate them? Have to consider what the balance among the work that the legal community should be striving for.
12:07- Sandefur: Practically achieving this requires independent and autonomous practitioners to give up some of their control of their own work. That’s what coordination means.
12:08- Engler: It would help if there were a central brain.
12:08- Audience question: I’m an attorney at neighborhood legal services here. Wondering about the privatization of the access to justice: mandatory mediation and others. There’s been a move away from government running programs and we’ve got a lot of private or quasi-private entities running programs.
12:09- Ladov: In foreclosure, the banks and private homeowners have a contract and government says that it has a limited role. A combination of a lack of government oversight and a lack of a private right of action has made it difficult to enforce. Obligation to negotiate in good faith is one way forward. Private right of action for procedural requirements is another way.
12:11- Engler: It’s really easy to get depressed in this because everything seems hopeless, but we have to take it as a challenge. There has to be dramatically different agenda in how we educate lawyers. It can’t be that only a small band of public interest lawyers are going to solve the problem.