The context for legal services – a critical system is staggering under the load

The Internet says that the population of the United States is a bit more than 229 million people.

The Justice Lab at Georgetown Law Center estimates that 30 million people every year lack legal representation in state courts cases.

In seventy-five percent of civil cases in state courts, at least one party is unrepresented. Eighty-six percent of the civil legal problems of low-income people get little or no legal help.

This is not a lawyer problem. It is a system problem.

The United States has created an exceedingly complex society. Rich or poor, everyone gets entangled with the legal system at every turn: housing, healthcare, education, domestic relations, domestic violence, jobs, consumer finance, retirement, disaster recovery, insurance, veterans, taxes, citizenship, death.

The system is clogged. Poor people trying to resolve legal issues in a clogged system without lawyers.  Exacerbatious.

The problem goes to the foundations of the rule of law. It is bigger than something lawyers alone can fix.

 

 

Justice innovations — chucking 20th Century models out the window

In the clamor about innovation in the legal profession, a singular idea is striking a chord.

Real innovation, some are saying, will not consist of new ways to perform the chores of 20th Century lawyering. Instead, real innovation will focus on new ways to solve people’s problems. Maybe not every legal problem requires a lawyer. Maybe not every question implicates the Magna Carta.

Outside the justice business, the great new companies of the 21st Century — Amazon, Apple, Uber — are chucking 20th Century models out the window. They are reinventing what they do and getting things done cheaper and faster than ever before.

For law, it’s different.

Society has gotten way more complex. Demands for law-based outcomes have exploded —especially in low-dollar personal contexts like healthcare, housing, domestic affairs, veterans rights, social security, disaster recovery, and consumer financial issues. But legal outcomes continue to be delivered for the most part in the same old ways.

All this weighs most heavily on people without a lot of money. They are the ones with all the domestic and housing and veterans issues. 80% of the people who need to use the justice system can’t afford it. They can’t afford the lawyers. And the ones who can afford lawyers aren’t happy about that. Too often, they get expensive, slow, lawyer-centered solutions. “There is far too much law for those who can afford it and far too little for those who cannot.”

Innovations are coming, but before now they have focussed mostly on how lawyers work, and not so much on customer experiences.

In North Carolina though, some intimations of change are appearing. George Hausen says that Legal Aid of North Carolina (LANC) is North Carolina’s “laboratory of innovation” for the justice system and he claims some victories. He points to

• LANC-fostered medical-legal partnerships,
• LANC’s eviction diversion program,
• LANC’S call center, self-help clinics, and videos,
• LANC’S foreclosure prevention programs, and
• partnerships between LANC and North Carolina’s members of Congress to ensure delivery of veterans benefits.

LANC catches problems aborning and finds solutions that bypass the legal system. They take lawyers out of the picture.

LANC receives high volumes of requests for services in low-dollar kerfuffles. It has developed expertise in subject matters that not many private lawyers can match such as personal housing issues, foreclosure prevention, consumer issues, veterans benefits, healthcare, domestic violence, natural disasters. LANC’s perspectives on the system (high-volume, low-dollar) are unique. Its solutions are innovative.

Government support and private philanthropy (institutional and personal) for LANC is a good investment in justice system innovation. LANC needs a lot more support than it gets.

Richard Posner leaves bench to invest time in promoting access to justice

Thirty-five years ago, Ronald Reagan appointed Richard Posner to the Seventh Circuit United States Court of Appeals. At the time, Posner was a well-known conservative legal scholar, particularly identified with the “economic analysis of law.” He had written a book with that name.

Recently, he announced that he is leaving the bench. The New York Times says

The immediate reason [was that] he had become concerned with the plight of litigants who represented themselves in civil cases …. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters.

“These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.”

Posner’s goal now is “to bring attention and aid to people too poor to afford lawyers.”

Posner’s concerns about access-to-justice place him in line with Antonin Scalia and Neil Gorsuch.

Antonin Scalia advocated for support of legal aid, fundamental to justice

United States Supreme Court Justice Antonin Scalia believed that the Legal Services Corporation (and, by extension, its client, Legal Aid of North Carolina) pursue equal justice, which is

the most fundamental of American ideals and they pursue equal justice in those areas of life most important to the lives of our citizens. The bulk of [their] cases, if you look at their annual report, involve domestic violence, real estate foreclosures and evictions, child custody, and denial of veterans’ benefits, unemployment compensation, and other governmental benefits. More than a third of the cases closed by [Legal Services] grantees in 2013 involved family law and more than a quarter of them housing.

Scalia asked, “Can there be justice if it is not equal, can there be a just society when some do not have justice?”

And he answered,

Equality, equal treatment is perhaps the most fundamental element of justice. . . . And in today’s law-ridden society, denial of access to professional legal assistance is denial of equal justice.”

It’s fair (more than fair, it’s necessary ) to explore alternative means of delivering equal justice: technology, delivery of services by others than licensed lawyers, new sources of funding. Indeed, it’s reasonable to hope that those who develop new alternatives will be able to do it on a for-profit basis and make lots of money. (The scale is surely there.)

But it’s not right to cut funds before alternatives are available.

Justice Scalia said:

Equality … is perhaps the most fundamental element of justice.

NC legal system — invest or divest?

In the past year the North Carolina legislature enacted cuts or reductions (or proposed to) in the following, which might be characterized as the infrastructure of North Carolina’s legal system.

The number of trial court judges (emergency judges)

               The number of appellate judges

The budget (therefore staff) of the Department of Justice

Funds (therefore staff) for Legal Aid of North Carolina (formerly taken from filing fees)

Funds for the UNC Law School

Dues (paid by lawyers) that fund the North Carolina State Bar.

In periods leading to this year, North Carolina’s population has grown and its economy has grown. Commerce has picked up and unemployment has dropped. The State has pursued a policy of promoting trade and business investment in North Carolina by companies outside the state and outside the United States.

Unless North Carolina’s legal system was overfunded in the past, the conclusion might be reached that more, not fewer, resources are needed to maintain what we’ve got.

The American justice system is credited as a core element of the economic and cultural success of the United States. Enforcement of obligations (commercial and other) —predictably, impartially, efficiently and effectively — is a big part of what made America great.

And, actually, we are at a time when improvements are needed.

Closing the loop on legal aid, not in a good way

The budget finally adopted by North Carolina’s General Assembly entirely eliminates funding for the State’s legal aid agencies ($1.7 million).

Until now, that amount had been generated by taking $1.50 from every court fee and distributing it to Legal Aid of North Carolina, Legal Services of Southern Piedmont and Pisgah Legal Services, which provide legal services to poor people in North Carolina.

The point has been made here that as many as a third of North Carolina citizens qualify for legal aid. Sixty percent of Legal Aid of North Carolina’s clients earn less than $15,000 a year.

Those people, like the rest of us, must have access to the legal system, even if they can’t afford it, where

• They are victims of domestic violence
• They don’t get child support
• They need to create guardianships for their grandchildren
• They get ripped off by scammers of the elderly
• They get fouled up applying for legislated benefits, including veterans benefits

and in a great range of other cases.

This is not a partisan issue.

21st Century society is complex. It cannot move without legal process. Everyone must use the system. And everybody needs access to legal services when they do.

Legal aid helps people get a hearing. It does not engage in politics. It does not pursue social change. And it does not target interest groups.

We all need the legal system to work at a minimal level for everybody who’s involved with it. Otherwise, over time bigger problems will develop.

For the General Assembly to stop a small portion of court fees from going to fund legal aid is bad for everyone, not just poor people.

The legislature made a mistake.

 

NC legislature proposes to eliminate access to civil justice funds — troubling

Word has come that the North Carolina House of Representatives’ Appropriations Committee has proposed a provision for the 2017 Budget entitled “Eliminate Access to Civil Justice Funds.” It would eliminate approximately $1.7 million in combined funding for Legal Aid of North Carolina, Legal Services of Southern Piedmont, and Pisgah Legal Services. Eliminating Access to Civil Justice Funds would cause drastic reductions in legal aid agencies’ services to those most in need, undermining equal access to justice for North Carolina citizens.

Take this provision together with the President’s proposed federal budget, which eliminates funding for the Legal Services Corporation, and access to the justice system will be cut off for a large number of North Carolina’s neediest people.

This includes access to legal services in cases of domestic violence, for disabled persons, for veterans, and in so many other cases.

Some issues in everyone’s lives, important issues, can only be resolved with access to the justice system. People who cannot afford legal assistance and seek to represent themselves, clog the courts. When important issues are not resolved, people are diverted from productive pursuits.

We already have a problem because so many cannot afford access to the system.

Reductions from current funding levels will make things worse.

Supreme Court nominee says cost of access to justice broke, needs fixing

Judge Neil Gorsuch, said last year

In the American civil justice system many important legal rights go unvindicated, serious losses remain uncompensated, and those called on to defend their conduct are often forced to spend altogether too much.

“Legal services in the United States are so expensive,” he says, “that the United States ranks near the bottom of developed nations when it comes to access to counsel in civil cases.” 100 Judicature 46 (Autumn 2016).

Judge Gorsuch says we need to fix this. We need to change.

Looking beyond the possibility of increased public financing, which in 2016 he thought might be challenging, he suggested three ways to fix things:

1. Permit delivery of more legal services by persons not licensed as lawyers, to include stock ownership of law firms and other alternative business structures.
2. Change the rules of civil procedure to require early trials and mandate automatic disclosure of evidence.
3. Shorten law school training and liken it more to trade schooling.

A change, the Judge says, would do you good.

A closed system — you have to have a lawyer to get in or out

At one time, many politicians perceived legal aid as a program that subsidized poor people to assert grievances in the courts against businesses and institutions. That is not the case for legal aid, not now. Now, it’s about access to social systems.

American social, economic and government systems have become staggeringly complex. Ordinary people, when they encounter snarls in these systems, can hardly cope. Not without help. Think: mortgages and credit, employment, health care, consumer scams, domestic relations, government benefits, retirement, taxes.

People turn to lawyers when they get into these jams. In many cases only lawyers are permitted to help. Anything else is the unauthorized practice of law.

Where the system is so complex, the case for legal aid is about access to the system –  not subsidizing lawsuits. It’s about the social system; not the justice system.

80% of the civil legal needs of poor people are not met. And that applies to 20% of the people in North Carolina. 34% of the children.

The system ain’t working.

Affordable legal services in a society bound everywhere by rules – problem

At one time many politicians opposed federal funding for civil legal aid because they were concerned that the money was used to fund social justice litigation.

Well, now the focus of legal aid is on domestic violence, consumer scams, seniors, veterans, the disabled, housing, and protecting household income. Some of this work may be about social justice, but mostly it is about providing assistance to people who can’t afford legal services and protecting their rights in a complex, law-bound society.

In a society that is dependent on contracts and rules (private and public), affordable justice is necessary – else the society will not work – but in North Carolina right now, legal services are not readily accessible to 20% of citizens and 80% of their needs are not met.

I see three alternatives for fixing the problem:

• Lawyers can do the work for free,
• Government and private sources can pay lawyers to do the work, or
• Non-lawyers can be allowed to do the work under appropriate conditions.

If I had to give a grade for fairness to a social system that is centered on rights, agreements and responsibilities but where 20% of the people have limited access to legal help, I’d have a hard time getting above a C, or a C-minus. What do you think?