Agenda for access to justice

Coordinated and integrated civil legal aid system: Access to Justice cannot be achieved without a coordinated and integrated system of robust civil legal aid and pro bono programs that provide a full range of services and are accessible by all low-income persons in a state. The outline of such a system was set out in the American Bar Association (ABA) Principles of a State System for the Delivery of Civil Legal Aid. The goal is, within a state, to be sufficient civil legal aid programs to serve all persons including undocumented persons and prisoners who need a lawyer to resolve civil legal problems. The programs must be able to provide the full range of legal services without restrictions on the type of assistance provided.

Specifically, the system must ensure the availability for aggregate remedies for common claims and issues affecting neighborhoods and particular groups of clients through the use of class actions, and policy advocacy before legislative bodies and administrative agencies The system must also ensure systemic advocacy in courts, agencies, and communities to ensure that the rights and interests of low-income people are protected and advanced, that poverty is alleviated and that racial inclusion and justice are pursued. Legal aid programs, pro bono providers, human services agencies, and other providers serving the poor should collaborate to ensure a seamless system of legal services to the low-income citizens in the state. There should be a state capacity for support, training, and coordinated state level advocacy.

Right to counsel in civil cases: A critical corollary to this system of providers is a right to counsel in cases where lawyers are needed for justice to be equal and real. In 2006, the ABA adopted a resolution urging federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction. The National Coalition for a Civil Right to Counsel (NCCRC) actively seeks to establish such a right and catalogues and coordinates efforts to achieve such a right.

Increased pro bono initiatives: State and local bar associations, access to justice commissions and related entities, and legal aid providers are increasing pro bono efforts among all lawyers including in-house counsel and law faculty not admitted in a state, government lawyers, retired lawyers and law students residing in a state through traditional means, mentorship, and support as well as through means such as:

  • Mandatory reporting of pro bono hours and financial contributions for civil legal aid providers
  • Technology assistance to civil legal aid providers
  • Unbundled volunteer lawyer programs
  • Technology innovations to enable and expand pro bono

Full utilization of technology: The access to justice systems are seeking to utilize fully technology advances in the practice of law and the delivery of justice. Included among such advances are:

  • Websites that provide legal information, including how to access civil legal aid and pro bono programs
  • Document assembly systems for use by lawyers and litigants that permit a lay person to generate and file accurate court documents
  • Hotlines and other means of providing advice and brief service
  • Systems, including mobile apps providing universal access to civil legal aid programs, self-help centers and other providers
  • Online dispute resolution forums that permit parties to resolve legal problems themselves with oversight and review by courts
  • Use of social media for information, training and other justice related activities.

Triage systems: The state systems are developing accurate triage systems (not just one) for matching a client’s problem with the appropriate level of legal advice and representation. The goal should be to create a system that provides the level of assistance that a client actually needs not just to accept the current system’s limitations of assistance. There are theoretical constructs often in the form of a pyramid of what appropriate assistance would be for various types of clients and legal problems, but little actual evidence of what level of assistance would be necessary to resolving different types of issues affecting individuals with differing social, racial, ethnic, gender, geographical and economic circumstances. In 2017, LSC, Microsoft Corporation, and Pro Bono Net named Alaska and Hawaii as state partners in a pilot program to develop online, statewide legal portals to direct individuals with civil legal needs to the most appropriate forms of assistance.

Referral systems: States are creating effective referral systems including enhanced collaboration with human services and other relevant entities to ensure that clients with legal problems are referred to the appropriate civil legal assistance providers.

Unbundled representation: states are educating lawyers about, and specifically encouraging lawyers to undertake, unbundled discrete task representation.

Self-help assistance: Many states are developing comprehensive and coordinated self-help assistance to unrepresented litigants through court-based self-help centers. One example is the system of self-help centers used in California courts, which are court-based, staffed self-help centers supervised by an attorney. The Self-Represented Litigation (SRL) Network brings together courts, bar and access to justice organizations in support of innovations in services for the self-represented and has undertaken a number of activities to ensure the justice system works for all including those forced to go to court on their own. See www.srln.org

Court reform: States are reforming how courts operate to ensure efficient and effective access, implementing:

  • E-filing for all including those who cannot afford fees
  • Changes in judicial codes and practices so that judges make reasonable accommodations for unrepresented litigants to have their matters heard fairly
  • Court-based programs to assist those with special needs including disabilities, limited English proficiency, the elderly, and others.
  • Simplification of court procedures and rules to enable unrepresented litigants and lay advocates to better present and advocate before the judge
  • Creation of new forums to efficiently and effectively resolve routine matters

Law student assistance: States are expanding the use and education of law students through pro bono requirements, clinical programs that serve indigent clients, internships with providers, inclusion of access to justice developments in the curricula and other means.

Non-lawyers: States are experimenting with and pursue using lay advocates (non-lawyers) in certain administrative proceedings, simple court cases, and as facilitators in courts and community settings.

Language access: States are developing comprehensive and enforceable language access services suitable to the communities served to enable all clients to effectively communicate to the court or other adjudicatory personnel and to understand their rights, responsibilities and adjudicatory processes.

Legal incubators: states are pursuing legal incubators. Incubators provide support to young lawyers interested in launching their own practice to serve low-income communities that lack access to legal representations. Incubators foster the lawyers working with them to understand and cultivate the services they wish to provide. They perform market research to determine how to best reach the underserved population. They assist the community in identifying legal needs, and create legal packages that are affordable, understandable, and accessible. The end goal is to assist attorney is establishing successful and sustainable practices.

Alternative Dispute Resolution: States are continuing to facilitate alternative dispute resolution where appropriate.

Libraries:, states are ensuring education and outreach to law libraries and all public libraries to enable their staff to suggest legal resources, information, and referrals to individuals seeking assistance.

Delivery research: Our system is developing an ongoing and institutionalized capacity to conduct research on how to improve the delivery of civil legal aid and conduct and evaluate demonstration projects testing new ideas and innovations for possible replication across the system. The United States had such a component, the Research Institute, during the first era of the Legal Services Corporation from 1976 – 1981. During the funding and political crisis of 1981, the Research Institute was closed. Several recent developments are promising. Harvard Law School opened an Access to Justice Lab is dedicated to transforming adjudicatory administration and engagement with the courts into evidence-based fields. LSC has raised private funding for and has recently established an Office of Data Governance and Analysis which now has six analysts. The Justice Lab is a new center created at Georgetown University Law Center to address in a variety of ways the access crisis in our civil justice system. Rebecca Sandefur, a professor at the University of Illinois and a researcher at the American Bar Foundation, has actively perused a delivery research agenda.

In addition to these court and delivery focused strategies, state access to justice efforts should pursue other strategies to expand access to justice. Possible initiatives include:

  • Working with legislative bodies and administrative agencies to write statutes and regulations in clear language that can be easily understood by non-lawyers and the public
  • Working with state and federal administrative agencies to incorporate best practices to ensure administrative justice