They Let Me Talk to People, Sometimes

I had immense pleasure to speak to a class of design students this afternoon about the legal system and access to justice. They are working on a courthouse design project and I was there to explain some backgound to help inform their designs.

Me when someone seems to think I know what I’m doing professionally:

Below are my rough rough rough notes for my meandering talk. Posting it here because I told the students I would so they could refer back but also to feed the content monster a bit. Even prior to covid I had stepped back from public speaking so I haven’t done many talks recently. So sort of surprised to discover that I can still apparently talk for 2.5 hours on all the problems in the legal system. I missed it! I’m very awkward in person but put me in front of an audience and it’s sparkle Neely sparkle time.

If you are an educator or someone who thinks their group would benefit from listening to a fat hillbilly woman yell about how messed up the system is for any length of time, I’m happy to zoom in.

Intro to who I am and why I think the way I do

Life story – growing up in country, anthropology major, law school, dealing with pro se as librarian, open law and embracing technology, moving to CALI and A2J Author, Now ABA

I DO NOT SPEAK FOR MY EMPLOYER AND NOTHING I SAY SHOULD BE CONSTRUED AS OFFICIAL POLICY.

Status Quo is unsustainable. Life finds a way. 

When I try to talk to people in power about making a change either personally in their work or institutionally, I don’t say “be pro- using X tool or service or process change” although a lot of them are great.  Because they will pick that problem apart.  I frame it as “are you in favor of the status quo or not?  Because if not, you gotta do something because inaction is consent.”

Also, this will probably be super depressing because there’s so many problems. Like when go to clean off desk then find out your closet is a wreck and then move to realizing bedroom is bad and pretty soon realize you live in a hovel pigsty. But you’re here and you’re doing the work and while systemic changes are best, we don’t always have the power to do those changes so do what you can in meantime.

If people cannot be served by existing institutions, they will seek other options.  We’re seeing that with LegalZoom type services and lawyers.  We will absolutely see it with formal structures like courts. With all the various disasters and societal traumas that have happened recently we’re seeing mutual aid networks or other charitable endeavors fill in the gaps that governments did or should.    eBay had modria to do 1000s of dispute resolutions.  People will absolutely seek out non-government arbitrators.  And the whole reason we have a legal system is because in the 900s or even earlier, Dukes and Kings or whatever wanted people to stop killing each other over petty things so they formalized the process of dispute resolution and that literally underpins our government and what does it mean if we don’t need it anymore?  

overview of the civil justice gap

1.   Access to justice should not equal access to courts or lawyers but it kinda does at present moment and since this is a court project will stick to that?

1.1.              Justice in my view is “whatever you need to make you whole” and there’s a lot of “access to entitlements” in there.  But for example, your landlord lets some repairs slide, your apartment has mold, you get sick.  Lots of solutions – let you break your lease, fix problem, pay for your medical care, pay other money like emotional damages.  The “right” solution is what makes inured party happy.  How to measure? Who decides what the win is?

1.2.              DATA – so hard to tell “what’s a win” and what are our problems and what are our solutions.

2.   no right to an attorney like in criminal law

2.1.              Legal Aid - must be low income and can only do certain subjects / middle class very much left out

2.2.              there was very recent study that shows that evicted tenants that have attorneys success rate is 90+% and without an attorney is inverse

2.3.              the system is set up for attorneys by attorneys.  absolutely doesn't have to be that way. many things that shouldn't have to require an attorney

2.4.              pro bono never going to be enough - Bars recommend 50 hours a year          1.3 million lawyers is 65 million pro bono hours. 200 million adults in united states, pew survey said 47% had civil justice need a year, so that’s 94 million with justice issue that’s…7/10 of an hour to each person?

3.   Why don't people get attorneys?

3.1.              expensive (which goes into law school debt issue)

3.2.              intimidated by idea of dealing with 'professional' or what may happen (think about not going to doctor)

3.3.              don't realize that have a legal issue that can be addressed by legal system

the problems challenges we are facing today

1.   No one size fits all solution

1.1.              Daley Center vs Brown County courthouse.  And even in concentrated project like Massachusetts Courts still wild difference between Boston and Western Mass

2.   People

2.1.              It’s working for people at the table – if you’re not at table you’re on the menu

2.1.1. Fear loss of income if their work is taken on by tech companies

2.1.2. Fear loss of status if their work can be done by non-attorneys

2.1.3. Change adverse in general – but also maybe more so for people in legal system.  Loris – Professional responsibility rules at issue?

2.2.              Litigants who aren’t attorneys may have technology, education or cultural issues that inhibit them from participating in system

2.2.1.  Mobile access to internet

2.2.2.  Jobs that don’t allow for many in-person visits to physical courts

2.2.3.  Intimidated by “government” and try to avoid any sort of contact if possible

2.2.4.  Increasingly multicultural country and there are language issues

3.   Process

3.1.              Takes forever – already back log and going to get worse after covid because so many things require in person

3.2.              Paper work – volume and confusion.  Badly designed forms, or confusing instructions

3.3.              Formality – bluebook

4.   Technology

4.1.              Technology is not neutral.  Nothing is truly neutral.  Need to make sure not replicating biases.  An automated bad process just makes that bad process work more efficiently.

4.2.              Monopoly of bad civic tech

4.2.1. Purchasing process- RFPs, existing contracts – See work of Waldo Jaquith and Robin Carnahan at Georgetown

4.2.2. Lack of knowledge from people who make tech purchasing decisions.

4.3.              Lock down of data – see PACER

4.4.              Budgets and ODR example

Opportunities

1.   Covid forced everyone to reconsider their abilities to do virtual/tech work

2.   Justice gap absolutely impossible to ignore.  Also, facing middle class so people are noticing

3.   Technology is more accessible so people are more open to using it and deploying it

4.   We’re really seeing that a lot of things can be solved without attorney intervention if people are given the proper tools, guidance and information.   Absolutely use medical field as comparison.  Some things you need surgeon for and some things a first aid person with several pieces in between. Right now law is really like board certified surgeons needed to slap on a bandaid.

Good groundwork law review article I just found

Katherine S. Wallat, Reconceptualizing Access to Justice, 103 Marq. L. Rev. (2019). Available at: https://scholarship.law.marquette.edu/mulr/vol103/iss2/10