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Thank You, President Nixon

Posted in Access on Friday July 25 2014 @ 11:47am

What's older than the Federal Rules of Evidence, Wheel of Fortune, and the Betamax? The Legal Services Corporation, which turns 40 today.

Nearly 21% of the U.S. population qualifies for legal aid -- almost double the number from 1974, when only 12% met the requirements.

According to Senator Mary Landrieu, over 25% of Louisiana qualifies. These are difficult economic times, and people who never before found themselves struggling now rely on legal services to maintain fair housing, child support, and other basic needs.

Others who benefit from legal services include:

* Victims of the Oso mudslide in Washington state
* Law students who pursue public interest careers
* Innovators in the technology field, such as LawHelp Interactive
* Veterans facing foreclosure

Still, legal services is struggling mightily, as it has for decades. Rural providers are closing their doors, and urban providers are stretched to their limit. Meanwhile, LSC funding is only slightly above the all-time low. Who knew we would be pining for Nixon?

A 40th Anniversary Kick-Off will be held September 14-16 at the Omni Shoreham in Washington, DC. Who knows, maybe Richard Nixon's head will be among the guests.

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What's Left?

Posted in Access on Wednesday June 26 2013 @ 9:23am

We don't talk about the SCOTUS much here. Our focus is, and will always be, state courts and court administration issues.

But this week is different! Ding-dong, DOMA is dead! This was something that never should have been decided in the first place (since when have the Feds ever decided basic family law?), and we are happy that it is gone. For a good reading, see Details on United States v. Windsor: In Plain English Amy Howe, SCOTUSblog (June 26, 2013).

However, we are feeling so much loss at the evisceration of the VRA that not much seems to matter today. When you can't vote, what's left?

How importing is voting? Marriage will continue to be decided by the states -- by votes.

Is it fair or even feasible to compare rights with rights, plights with plights? It is never a good idea, but given the juxtaposition of these opinions, we will say it: voting is more important than marriage. (No offense, lovely court-o-rama spouses!) Voting means hope and change. Voting means that if the status quo is not OK, we can make it better. Voting means that if we want to support the human right to form families, we can. The end of the VRA will have repercussions for generations to come, and undo any good that it did over its too-short life.

John Schwartz at the NYT has a nice primer on the VRA case: Between The Lines of The Voting Rights Act Opinion (June 25, 2013).

Rep. John Lewis has released a powerful statement. Like everything else Lewis says, it stops us in our tracks.

So, excuse us while we weep in the wedding cake.

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Unmet

Posted in Access on Sunday June 23 2013 @ 6:27am

Legal services marketing (if that is the word) is usually twofold. One part focuses on telling the heartbreaking success stories -- the elderly woman who was able to stay in her home, the abused family members who were able to get assistance and went on to win Nobel Prizes.

The second part is how much work they leave undone -- but could, perhaps, do if there were enough resources. This second part was evident in the recent forum given by the Cincinnati Women's City Club and Cincinnati Bar Association.

These unmet needs are characterized by a few factors: funding and funding sources, staffing, eligibility, and need. Prioritizing also fits into the mix.

For example, every legal aid region bases its eligibility on a percentage of the poverty level. Here in Cincinnati, a prospective client must be living at 125% of the poverty level. They receive 30,000 calls for help annually, which are divided up among 6 intake staff (some legal aid offices in other areas use volunteers to help with intake -- not sure if this one does). Of these, 286,000 are eligible for help. Priority is given to Gideonesque cases such as housing, family (especially where domestic violence is a factor), or benefits hearings. Trained volunteer lawyers take about 1400 of the legal aid's 5000 cases. So, you can see, there is a huge portion of unmet needs.

Funding sources for legal aid are whatever one can gather from the rubble of the 1990s Contract with America earthquake. During that time, the Legal Services Corporation budget was drastically slashed in the hopes that it would just go away. You've heard of Death by a thousand cuts? This was just one big cut. Well, it didn't go away after all -- people need lawyers. Typical funding sources include IOLTA money (but its value shoots up or down depending on the economy), bar association donations and help, LSC, Equal Justice Works, law student clinics and volunteer programs, and others.

A 2010 rule of law index ranks the U.S. low low low compared to other countries in terms of funding legal services. We spend 1/5 as much as New Zealand, and only 1/2 as much as the UK. While the vast differences in legal systems make international comparisons very difficult, it is clear that something is amiss. We need only compare the U.S. to the U.S. LSC funding was cut to the bone in the 90s and is still being cut.

Too, in the wake of Gideon, everyone did anticipate that a Civil Gideon would follow soon after. And it has, in piecemeal form -- jurisdictions require counsel for involuntary commitment, for juveniles (see in re: Gault), for parents in termination of parental rights cases, and in other case types. See The Existing Civil Right to Counsel Infrastructure, Judge Lora J. Livingston and Laura Abel, Brennan Center for Justice (December 4, 2008).

What can be done? When the mandatory pro bono idea is batted about, we hear protests such as Waaaah! You can't make lawyers do things! (never mind the CLE, dues, educational, financial, ethics, character and fitness, bar exam, and squillion other requirements), Waaah! Billable hours make it too hard (well, firms, you need to fix that), and even -- we swear, we heard someone say this in a law school ethics course, and it is the ugly truth -- Most lawyers are not interested in the types of cases legal aid hears. A good summary is (again, thanks to Greg Hurley at NCSC) available: State-by-State Pro Bono Service Rules. It includes a nifty History of ABA Model Rule 6.1 Where is your state on this list? Are there ideas you've never considered?

Another approach is to use more people than just lawyers. Most legal aid organizations utilize a slew of volunteer lawyers and law students. A lucky few are near legal clinics housed in law schools. Most use paralegals, many of whom focus on a particular issue such as benefits or elder law issues. Where are the mediators here? The ADR/legal services connection is made at times, but not often enough. Can you write grants? Raise money? You're in, whether you are a legal professional or not.

Another option is to give people less. Unbundling is a term that means You get a lawyer, but only for so much. See the NCSC's Unbundled Legal Services Guide. And then there is always the pro se option -- but we will save the few pros and many cons of that for another day.

For a comprehensive listing of legal aid programs, see NCSC's Legal Aid/Pro Bono State Links. Lawyers looking for opportunities to give back, please see probono.net's National Opportunities Guide.

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Fun (and Not-So-Fun) Civil Gideon Facts

Posted in Access on Thursday June 20 2013 @ 8:13am

We were lucky enough to attend the Women's City Club of Greater Cincinnati's forum on Civil Gideon the other day. It was a topic that we love, and a pretty good crowd for a beautiful weekday afternoon.

"Civil Gideon" rights refer to the right to counsel in civil cases (remember, Gideon v. Waignwright only applied to criminal cases). While this right has been applied sporadically in the states -- usually to parents in termination of parental rights cases -- it has not gained universal approval by any means.

Our notes seem to be peppered with Fun Facts, and a few that are less fun but worth knowing anyway. Some came from panelists, others just popped into our pointy head as we listened:

  • A survey in California found that 2/3 of the population thought that people did have a right to counsel in civil cases.

  • Anthony Lewis, who wrote Gideon's Trumpet, is the late husband of retired Massachusetts Chief Justice Marshall. CJ Marshall has called for better representation, too. See Chief Justice Marshall Issues Call for More Resources to Represent the Most Vulnerable, Greater Boston Legal Services.

  • Gideon's crime was stealing money from a honky tonk jukebox.

  • The LSC changed much of its focus and resources from funding legal services to funding projects to help unrepresented litigants in the late 90s or so. It was a popularity contest -- homely legal aid vs. glam pro se -- and guess who won? Mary Asbury of the Legal Aid Society of Greater Cincinnati calls the transfer of resources to pro se cases A bogus approach that has been promoted too much! Amen!!!!!!

  • There are many case types where even if civil Gideon existed on a wide scale, parties would still not get representation.

More on this soon. Stay tuned!

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Handwritten

Posted in Access on Monday March 04 2013 @ 7:00am

Not long ago, Nina Totenberg noted that the Supreme Court of the United States was about to hear arguments in a case in which the defendant had filed a handwritten brief. She compared it to a long-ago case, Gideon v. Wainwright, that is celebrating its fiftieth anniversary, See Prisoner's Handwritten Petition Prompts Justices to Weigh Government Immunity, Nina Totenberg, Morning Edition, NPR (February 19, 2013).

This got us thinking (uh-oh!). Artist and Funk Queen Lynda Barry asks What is it about handwriting? What, indeed? Handwriting is a way to judge someone -- neat people have a neatly-drawn font. People who dot their i's with hearts are cutesy (full disclosure: I only do this on Valentine's Day anymore). People who make a happy face out of two exclamation points are silly. (Full disclosure: this cannot be replicated in type, trust us.) When sitting for the bar, a friend of ours was told by the guy sitting next to her, Don't write like a girl, the theory being that They can tell gender by handwriting, and will grade accordingly, or at least have this in the backs of Their minds when grading. Beautifully handwritten addresses on wedding invitations are classy. A handwritten note sent via snail mail is quaint. A handwritten pleading in court means pro se, crazy, criminal, or uneducated.

Courts have rules about these things. Here are a few:

  • Nebraska's Rule 9-4 allows pro se litigants to submit handwritten pleadings that follow the prescribed form. They must be in ink and somewhat neat.

  • Washington's LCR No. 7 allows handwritten pleadings, but any written in cursive must include a typed or hand printed copy.

  • The Pennsylvania Code's section 1005.1 just says no.

Well, you get the idea.

Handwritten pleadings illustrate the lines between access and utility. Yes, even in these days of texting, e-signatures, paperless offices, and Google goggles, we want everyone to be able to sit down and draft their own pleadings with whatever they happen to have available. On the other hand, what good are handwritten pleadings if the court can't read them? Or, what if the court is inundated with handwritten pleadings, leaving it no time to process important cases? There is some bad information going around jails in the U.S. that makes inmates think that they have legal rights to their own signature. Hence, handwritten pleadings may include a copyright symbol or other identifying marks. See The Anti-Government Movement Today Ericksen and Skove, Future Trends in State Courts 2006, 25-26.

Then again, what if any given handwritten document is the next Gideon, or even an Emily Dickinson?

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Media Cheat Sheet

Posted in Access on Tuesday June 05 2012 @ 8:32am

For over a decade at NCSC, I worked in an office where we responded to hundreds of media queries about the court world each year. Here are a few helpful hints for the media (even for that obnoxious guy at that one place -- I was horribly happy when your magazine went under!):

  • Court is not sensational. It is full of procedure (what you incorrectly call technicalities). It is quite unlike courts on TV or movies -- if you don't believe me, believe Sonia Buck. It can be slow. You may have to do this boring thing called waiting. While you do it, look around -- there are interesting things everywhere in a courthouse. There are wedding parties in hallways, families clustered together in grief or joy, business people crossing their t's and dotting their i's, art and architecture, lawyers who love nothing more than hanging out talking to people, and court employees who make it all run smoothly. The excitement comes from the fact that, most of the time, our boring little common law system works pretty well. Enjoy the pace.

  • Be kind to jurors. If I learned one thing in my years finding content for the Jur-E Bulletin, it is that jurors are stressed out, and you are no help. Let them tell their story if they wish. If they don't wish, please go away. They have spent hours if not days, weeks, or months poring over evidence, listening to difficult testimony, and learning about their important role -- one they may be doing for the first and last time in their lives.

  • There are not statistics about every part of everything that ever happened. Yes, NCSC's Court Statistics Project does a great job collecting and communicating court-related statistics. It is flattering of you to think they have the information you seek. However, many unknown unknowns remain. Courts tend to compile statistics annually, not hourly, so please be patient. Courts do not all do the same things or count those things the same way. Thus, a national number for any given question is often difficult to find. A good alternative is to research locally -- find a jurisdiction (city, county, state, region) that has a history of doing the kind of thing you're examining. Drug courts, for example, might be set up differently in different jurisdictions. Focus on a state or a few select counties where drug courts are similar, and where the programs keep the information you seek.

  • Never say first. Say among the first, if you must. No matter how unheard-of, whatever neat new thing you're writing about has probably been at least considered elsewhere. The second you say first, a retired judge from Nebraska will call you and chew you out for not recognizing his efforts on the very topic back in 1946. A good example: DUI App Believed to Be First in Nation, Janice Morse, Cincinnati Enquirer (June 2, 2012).

  • Listen and learn! One of the best reporters I ever talked to was one who listened to me blah blah blah on for about an hour about a then-recent Supreme Court case. He didn't have impossible yes-or-no, true/false questions already prepared for me. He wanted to learn about the case, and how the opinion would affect cases in his state. He hadn't already written it, he called to learn about it first. For the fine result, see Justice Reconsidered. Vince Darcangelo, Boulder Weekly (yes, I much prefer weeklies, with their sane deadlines!) (January 27, 2005).

  • Learn the rules. The media represents the public; they have no more access or rights than anyone else. Judges aren't going to chatter on about a case like a blogger with too much time on her hands. What happens in grand juries, mediations, etc., is confidential. In Canada, petit juries are not permitted to speak to the media at all. Due to logistics and the public interest in keeping courts sane, fair, and orderly, there are rules about cameras in the courts. The rules were not created to make you, personally, miserable.

  • PIOs are here to help you. They are cool people who know a lot.

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No Longer Under A Rock

Posted in Access on Sunday November 13 2011 @ 8:50pm

So-called sunshine laws are meant to promote openness and public trust and confidence. More sunshine, fewer bad deeds in the shadows, is how the thinking goes.

Privacy interests, though, are always a factor (sorry, RCFP). Courts have long struggled to maintain openness, yet be flexible enough to protect certain key players in the legal system -- witnesses, jurors, families. How much openness is enough? How much is harmful? Access to technology, new technologies, and the focus on public trust were (and still are) at odds.

One trend is the move of juvenile dependency hearings from closed to open hearings. When openness was being retooled, courts identified a set of hearing types that required more confidentiality than others -- say, family or mental health cases, with sensitive topics and vulnerable participants.

Dependency cases seem like they would fit right into this category, but further study determined that this was not necessarily the case. Accountability was a factor -- after too many botched cases, it became apparent that the public needed to know what the agencies were doing. The harm/privacy balance is still in force -- only now it is clear that the harm comes from the privacy.

A 2001 report on an Minnesota's practices found that open dependency hearings:

  • slightly raised attendance at such hearings

  • resulted in infrequent closure of hearings

  • resulted in no direct harm

  • were more interesting to the media during the early stages of the policy's implementation

  • caused public defenders to have the most privacy concerns

  • filings increased in 8 of the 12 counties studied

  • may have caused some increase in accountability of public officials
  • An Arizona study of 15 jurisdictions participating in an open hearing pilot project found minimal impact; indeed, children attended only six percent of the hearings.

    These studies have at least one vocal critic. See When the Empirical Base Crumbles: The Myth That Open Dependency Proceedings Do Not PSychologically Damage Abused Children, William Wesley Patton, Law & Psych. Review (2009). However, child witnesses need not participate fully in every aspect of a hearing. The goal is to air agency activities. The self-proclaimed Better Courts for Kids, otoh, thinks closed courts cause harm.

    Now, an L.A. judge is opening dependency hearings to the public.

    See Los Angeles Juvenile Court Plans to Open Proceedings to Public, Garrett Therolf, L.A. Times (November 8, 2011).

    See also one of the three or four copies in existence of: Provision of Information by Courts and Court Administrators: a Comparative Inventory of Eight European Countries and the USA, Dutch Council for the Judiciary, Utrecht/Leiden (2005). Better Courts for Kids has a nice resource guide, too.

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    It Was 20 Years Ago Today

    Posted in Access on Wednesday August 04 2010 @ 4:11am

    Well, 20 years plus a week that Bush I signed the ADA into law. What everyone feared -- an avalanche of litigation, a ruined economy -- never happened (well, at least not the avalanche of litigation, and certainly we can't blame the ADA for today's economic problems).

    What did happen was this: quietly, and without much fanfare, society has become accustomed to ramps, railings, closed captioning, and other innovations that make life easier for people. Some of these innovations, called universal design, are useful to all of us at one time or another, particularly as society (read: Baby Boomers) ages.

    And the major goal -- employment of individuals with disabilities (read: more taxpayers)? The Kessler Foundation and National Organization on Disability report that, according to their survey, only 21% of working-age individuals with disabilities are employed. For working-age people without disabilities, this number is 59%.

    Internet access also continues to be a problem. Only 54% of individuals with disabilities have access to the information superhighway, compared with 85% of adults without disabilities.

    Does the ADA apply to courts? Oddly enough, nobody was sure at first. But we know now that the answer is yes. Some questions remain -- how much access? Must every room in an entire courthouse be accessible? Or is it enough to have some rooms reserved for use by people with disabilities?

    And access by whom? Parties, attorneys, judges, and court staff -- of course. But does a defendant's hearing-impaired brother get use of an interpreter at trial? What about the defendant's great-aunt? What if the great-aunt raised him?

    NPR's Talk of the Nation discusses What's Changed in 20 Years Since ADA Passage, (July 28, 2010).

    See also: the ADA megasite, housed by the DOJ. If you can't find it here, it probably doesn't exist.

    As a p.s., Bush II signed the ADA Amendments Act in 2008. CHADD offers a nice summary.

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    Overlawyered or Overhyped?

    Posted in Access on Wednesday July 14 2010 @ 4:35am

    If you think things are crazy where you work, imagine this -- downtrodden celebrities (society's favorite kind) parading through, day after day, leaving paparazzi in their wake like so much confetti after a parade.

    On top of that, it all takes place in a state where furloughs and other cutbacks have become de rigueur (though Furlough Fridays are, thankfully, over for now).

    See Stars, Cameras and Theatrics Strain Courts, Michael Cieply, NYT (July 9, 2010).

    L.A. court PIO Allan Parachini is the man! We remember back in the day when he would send out informational faxes regarding Winona's shoplifting case. Getting the word out to the people who are going to show up (whether invited or not) is just one of Mr. Parachini's tasks.

    Eriq Gardner at THR, Esq., doesn't get it but tries with Are Celebrities to Blame for an Overburdened Court System? (July 12, 2010). It's not about the celebrity legal problems themselves -- they're not so different from anyone else's. It's the logistics. Traffic, security, cameras in the courts (and their concomitant procedures), long lines, parking...the confetti falls on all of these and more.

    One person's DUI is another person's photo op. As the threshold for fame dips to a new low, gawkers increase and multiply. The result is chaos, which is just one more piece of the court PIO's life.

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    Risky Business

    Posted in Access on Tuesday July 28 2009 @ 8:48pm

    What security risks does your court face? Is anyone actually watching the screens of surveillance cameras? Are people with metal shanks hidden in their shoes waived through? Do security personnel stand with their backs to potential perps?

    Who poses the bigger threat -- angry criminal defendants or religious women?

    The Georgia Judicial Council issued a new policy allowing people in court to wear head coverings for religious or medical reasons. Special search procedures honoring the dignity and privacy of such people are outlined.

    See Muslim Headscarves to Be Allowed in Georgia, Jim Galloway, Atlanta Journal-Constitution (July 24, 2009); and Deputy Alleges Security Violations in Atlanta Courthouse Shooting, Daniel Yee, AP (March 10, 2006).

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