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| Laurie Zelon |
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| Bridget Mary McCormack |
For too many, though, it is a promise unkept. Millions of Americans go through civil courts each year without adequate legal help or the information they need to make their case in court.
In state courts, which handle the vast majority of the nation's litigation, 30 million people each year lack representation.[1]
Most civil and family law cases involve at least one self-represented party. And the number of people struggling with unresolved civil legal problems — about 100 million a year — is much larger than the number coming to court.[2]
Not surprisingly, vulnerable communities face disproportionately greater risks to their families, their homes and their livelihoods from civil court proceedings like evictions, child custody disputes, suits for protection from domestic violence, and debt collection.
It doesn't have to be this way, but change will require disruption.
The first disruption is recognizing that not all civil legal problems and not all litigants require a lawyer, and that a range of services can help meet a broad spectrum of needs.
For the last five years, states across the country have joined the Justice for All Initiative, which we co-chair, to reimagine how they can deliver services to meet people's civil legal needs.
Court leaders, access to justice commissions, the organized bar, community leaders, and members of the social services and faith communities have collaborated to develop a continuum-of-services framework to provide appropriate and timely service, in a usable manner, to people with civil legal needs.
The aim is to provide a framework incorporating high-quality screening to identify an individual's needs, then align them with appropriate resources to identify a legal problem, get the information necessary to address the problem and help them get access to appropriate assistance.
As people move through the justice system, that assistance takes many forms — from self-help options to technology solutions — to help them to properly prepare for court hearings.
Even as this continuum of services expands, courts themselves must take action to address some of the glaring barriers to accessing justice.
They can radically simplify court forms and processes, and offer enhanced opportunities for mediation and other settlement options.
For those who cannot resolve their problems without representation, well-resourced civil legal aid providers, pro bono assistance and discrete task representation must be available, alongside affordable market-based options.
A review of the work already done demonstrates how this framework can create resilient, responsive systems.
For example, in Georgia we found strong partnerships in public and law libraries to serve traditionally underserved communities in rural and suburban communities. The state launched the Southwest Georgia Legal Self-Help Center, which has served more than 28,000 individuals over the past three years.
Massachusetts, along with successful upstream interventions with tax preparers and housing providers, made a simple change: It expanded hours in three individual courthouses and, using the feedback and data, found that expanded hours can lead to easier access for many people, especially those who work during conventional court hours.
Minnesota developed a specialized online portal to provide information and access to legal and community resources on a number of critical topics, including family, consumer, housing and public benefits law. The portal, Law Help Minnesota, had more than 1.2 million visitors in just its first two years.
In Hawaii, the courts addressed the digital divide challenges facing many of its state's residents due to lack of internet access, especially on neighboring islands. When court operations went online in response to the pandemic, the state took steps to develop vital resources that were shared widely, including throughout public library networks, such as tips on how to access the internet and a map of free Wi-Fi locations across the state.
In New Mexico, court closures and the fast move to online court and legal services presented the risk of shutting people out from the court process because of the digital divide. Working with legal services providers and courts, the state supported telephone legal clinics to advance the number of community members who could provide telephone or in-person — but socially distanced — legal information to those who could not find it online.
It also launched a project to identify and publicize Wi-Fi hotspots to enable court users without internet access or adequate data to benefit from the court and community resources that are easier to find and use online.
These are disruptive changes to the traditional civil legal system.
There should be no wrong door when looking for help and no single way to navigate the courts. With meaningful triage to match resources with need, preventative and diagnostic legal information and referrals within communities, and remote access, we can build our civil justice resources.
Research shows that people rely heavily on trusted intermediaries — faith leaders, medical providers, social workers and public agencies — to seek help. These community leaders are our front-line partners in identifying and triaging legal problems and solutions.
These disruptions also create the opportunity for new partnerships, enhanced services and vital conversations about racial equity in the justice system.
How can lawyers participate? Here are just a few ideas.
Individuals can work with their state Justice For All initiative or a similar project — or if none yet exists, with their state high court and access to justice commission — to create resources that help individuals navigate the legal system.
They can also increase their pro bono efforts, and where self-help services are available, they can set up volunteer referral capacity for individuals who need representation.
Finally, lawyers can advocate for, and assist in drafting, rule changes and proposed legislation to simplify the legal process.
The pandemic has disrupted the way courts work and accelerated change. And it has made the civil justice needs of so many of our neighbors even more urgent.
The time is right: Disruption is in the air. Let's make the promise of equal justice for all a reality.
Laurie Zelon is a retired associate justice of the California Court of Appeal, Second Appellate District, and co-chair of the Justice for All Initiative, which is administered by the National Center for State Courts and the Self-Represented Litigation Network.
Bridget Mary McCormack is the chief justice of the Michigan Supreme Court and co-chair of the Justice for All Initiative.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.ncsc.org/__data/assets/pdf_file/0024/53691/Justice-Lab-Navigator-Report-6.11.19.pdf.
[2] https://www.law360.com/articles/1113941/stripping-the-false-premises-from-civil-justice-problems.