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This may go down as the single most exciting year of my twenty years in practice, the year in which we all decided once and for all to seriously tackle the most glaring problem faced by
our profession, the lack of access to Utah's legal system by the vast majority of low and middle income Utahns. I want to praise Professor Linda Smith and Bar President Debra Moore, as
well as the the S.J. Quinney College of Law and the Utah State Bar for their efforts in this year's Fordham Debates calling for a state plan to achieve access to justice. I would also
like to praise Chief Justice Durham who furthered the concept of a state planning process in her State of the Judiciary speech. And I would like to say a word of thanks to the Utah State
Legislature who put a bur under everyone's saddle with the threat of implementing the amended unauthorized practice of law statute unless we attorneys showed some serious progress towards
fixing the access to justice problem. Now that the notion of a state plan is out in the open, let's go after it with a vengeance. Let's look at all of the possibilities, pick the ones
that seem the most likely to lead to success and get to work implementing them.
There is an old adage, I believe coined by Mark Twain: Success comes from experience and experience
comes from failure. In the past twenty years I was fortunate in being allowed to create and/or supervise a number of projects and legal offices which resulted in the provision of legal
assistance to thousands and tens of thousands of Utahns. I've also served on numerous boards of non-profits and have created, managed and been volunteer staff on various pro bono
projects. These offices and projects ran the gamut from very successful to complete failures, and everywhere in between.
My most recent project is a clinic at the Matheson
Courthouse which assists anyone caught in the Utah court system without an attorney. In 2003 I assisted around 5,000 people. If my early numbers for the current year hold I will assist
5000 to 8000 people in 2004.
For this special edition of the Bar Journal I was asked to comment on both pro bono services and pro se litigants. Here are my thoughts. I start off with some items which I believe are the essentials to setting up a successful pro bono project. I end with some ideas for a user friendly pro se system.
PRO BONO PROJECT ESSENTIALS
1. For those of you interested in setting up pro bono projects, don't reinvent the wheel. There are successful non-profit and pro bono
projects throughout United States, and here in Utah. Visit them, talk to the people running them, talk to the clients who have used them, talk to the commissioners, judges and court
clerks affected by them. Find out what works and what doesn't.
2. Be stubborn in your determination to make your project a success. Very few successful people came by their
success easily. To get where they are they wake up before the rest of us and put in twelve and sixteen hour days, six to seven days a week. It's no different in setting up a successful
pro bono project. When I was Chairman of the Board for the Multicultural Legal Center most of the emails I received from our Director, Sherrie Hayashi, showed mailing times after
midnight. Sherrie was a single mother, with a small child, working full time as an attorney, and managed to successfully fill her role as Director of MLC, raising $150,000 the first year
the project was funded and attending to all of the other duties it takes to be a successful Director. To do this, she had to find time at points in her day when most of the rest of us
were relaxing or sleeping. Because of her efforts, we hired staff, opened an office and provided direct services to clients. It was her determination which made the project a success.
3. Treat your project as a perpetual work in progress. Don't think that you can create a rigid plan at the beginning of a project that will be either the formula for success or
something that you will be able to stick with beyond the first five minutes of implementation. You can't. The plan is not what is important. The success of the project is. The system you
create cannot be blindly adhered to. All successful projects are dynamic and fluid. Your role as project director or staff is to do your best to figure out what is most likely to work,
then try it out, and watch carefully to see what happens. Always be willing to tweak even the best of systems. And don't be afraid to scrap something entirely when it no longer is
necessary or workable.
4. Create a time routine and stick to it at all costs. The quickest way to kill an excellent project is to not be available when you say you will be. If you
want to have everyone know that you are up and running and can provide pro bono services, you've got to be available at set days and times. I've seen successful projects which only
offered services once a month and even once a quarter. But they had a routine time or a system of setting appointments which everyone could count on. My clinic has set hours, Mondays,
Tuesdays and Thursdays. I've missed very few days in the entire five years of the project. Everyone knows the clinic hours. They know that if they come during those hours or make a
referral I will be there.
5. To have a successful pro bono project, you need the assistance and cooperation of others. For example, there are a number of non-profit and pro-bono
projects located in courthouses throughout the state, including my own. These projects depend upon the good will, cooperation and support of court security, clerks, judges, and
administrators. I am very appreciative of everyone in the Administrative Office of the Courts and Matheson Courthouse for contributing to the success of my project.
In addition,
Charles Stewart and the wonderful people at the Bar have been a tremendous help to my projects over the years. Most recently, I have relied on Charles to locate pro bono attorneys to
represent those persons who I identify as not having the ability to negotiate the court system on their own because of low mental capabilities or lack of education.
And if I may
be so bold, the Bar could take some very simple steps to encourage greater pro bono participation and help ongoing projects. All pro bono attorneys could use some kind of a break on the
costs of CLE and Bar dues. I literally had so little income last year ($4,500) that these two fees were extremely difficult to pay. The Bar could also provide free internet research tools
to those of us engaged in pro bono activity.
If private law firms throughout the state would also help with similar things it would be dearly welcomed support to any pro bono
project. For example, a law firm could adopt a project and pay the bar dues of the pro bono attorney, cover the project's malpractice insurance, or cover the costs of CLE. The law firm
might add just one additional Utah Code to those they purchase each year and donate it to the project, or perhaps allow a pro bono attorney access to the firm's on line research resources
from the attorney's office or home. I was fortunate this last year in having a student of mine talk the law firm she was working at into donating their year old Utah Codes rather than
disposing of them. And when my Domestic Relations Manual came up missing, Utah Legal Services was gracious enough to provide me with two new ones. Utah Legal Services also maintains my
project on their malpractice insurance. In my experience, these things help far more than anyone in a law firm doing a pro bono divorce.
In addition, every project needs some kind
of financing. In the future, this funding will probably come from The And Justice For All Campaign. This campaign is unique throughout the United States and has received much deserved
praise both inside and outside of Utah. The campaign still has a few glitches to work out though. Up to this point AJFA has not created a method to provide smaller non-profits with
adequate funding. These smaller agencies fill critical gaps left by the three largest non-profits and in some instances do case work which the larger non-profits are prohibited from
doing. In 2003 the AJFA building campaign successfully reached out to funding sources which have traditionally been the financial support for Utah's smaller programs. Most of these
smaller programs are now desperately short of resources. If they are to return to the level of services provided before the 2003 building campaign, and if we are to expand services with
other new energetic projects, there will of necessity have to be a way to adequately fund these programs and projects.
6. One of the things I remember from my undergraduate
psychology courses is that what motivates any one person is not necessarily what motivates the next. There is nothing that is universally rewarding to all of us. There are two things in
our society which come close though, money and success. Since by definition, pro bono means helping people and not receiving any money, that leaves success as the most likely universal
motivator for the volunteers involved in your project. If you are going to retain your volunteer attorney staff, they absolutely must see that what they are doing counts, that it achieves
results. Interestingly enough, if you are to have clients use your project, you must also do the same thing for them.
Most practicing attorneys are working long days and long
weeks. Asking them to commit time to a pro bono project will either take them away from their duties as an attorney, or more likely, will impact upon the very scarce time they have to
spend with their families (not to mention the time which they absolutely must have to relax and engage in recreational, sport and other escape activity critical to maintaining their
sanity). When we ask them to do pro bono work, we ask them to give up a lot. For this reason you will find that attorneys are not willing to do something that they see as a waste of their
time. On the other hand, I have found that most attorneys will take the proverbial case "all the way to the US Supreme Court" if the cause is compelling enough.
Without
a doubt, the most successful pro bono projects produce noticeable results. Clearly at the top of the heap in Utah is our small claims system. It's easily accessible for the parties. The
volunteer attorney can leave having seen concrete tangible things happen and feeling that he or she contributed in a small way to the furtherance of justice. The parties get to tell their
stories to a judge which many times is far more important to them than winning or losing. And the parties will always leave with an order in hand.
My clinic has also been
rewarding for many of the same reasons. Time and time again the people I assist complete the court process and move on with their lives, better off than before they came into the clinic.
There is even a silver lining for everyone when a person is a pro se litigant (although I'm sure that given the hassle created by pro se litigants for attorneys, clerks and judges,
anything positive coming out of someone representing themselves would be hard to see.) That silver lining is this: The self represented litigant must of necessity take full and personal
responsibility for solving his or her own problems. Other than what help I'm able to provide, they don't have an attorney to resolve their problems for them. This process results in
visible growth. I see over and over significant and positive changes in many of the clients. They start out angry and afraid. They finish a whole lot wiser, and interestingly, more self
assured.
7. Successful pro bono projects of the future will need to go outside of traditional concepts, not only of service delivery systems, but of what is legitimate pro bono
work. In 2001 I was sent as Utah's representative to attend a special conference set up by the federal Legal Services Corporation to begin looking into different ways of providing
services that actually resolve the problems faced by low income persons. With ample evidence that traditional litigation models are too expensive and not effective, the Corporation hand
picked attorneys, directors, clients and experts from across the United States, including those who were strong supporters of the litigation model, to meet for a week and discuss methods
that would actually result in problems faced by the poor being resolved.
To say the least, the experience was the most eye opening of my Legal Services' career. When placed on the
same footing as those of us with advanced degrees and management experience, the clients were remarkable. Their input was clear, concise and to the point. They were not being given
responsibility for the resolution of their own problems. They didn't need us to resolve the problems for them, something that we were very ineffective at doing anyway. They needed us to
provide guidance and help them with the parts which they lacked the skills to do, so that by and large, they would be the ones resolving their own problems.
8. When it comes to
achieving long lasting results that actually make a difference in the life of the client and society as a whole, the best projects may not be legally related at all. In my years of
working with low income populations it is clear that the unsolvable legal problems these folks find themselves in are not their real problems. If we want to reduce the number of court
litigants and other people facing hardships because of poverty and crime we should be out at the prisons and jails teaching people how to read and write or creating programs which insure
that every child in Utah has at least one adult in their life who cares about them and is an excellent role model. A pro bono attorney could accomplish a lot more in the Big Brother or
Big Sister program than litigating yet another domestic law case.
USER FRIENDLY PRO SE SYSTEMS
1. The current law holds pro se litigants in the District Courts to
the same standard as attorneys. Worse yet from the pro se litigant's view point, no matter how much a District Court judge might want to help, judges are prohibited from giving either
advice or asking questions critical to the resolution of the case because doing so violates the judge's neutrality. This stems from the constitutional role of the courts as the third
branch of our checks and balances system of government. As such, the cases which are brought before the courts are political and adversarial. This system of governance is nothing short of
genius. It, along with other constitutionally guaranteed rights, such as a strong and free press, will go a long way towards protecting the freedoms we hold sacred. We must in return
protect the system at all costs.
However, not all cases in the court are political. And pro se litigants are not capable of living up to the standard set for attorneys. Nor is
that standard necessary to the fair resolution of their case. We have other models of problem resolution systems that are far more user friendly, much less expensive to implement,
recognize the abilities of both attorneys and non-attorneys alike, are fair, and leave the door to the courthouse open where it is necessary.
As a Legal Services attorney I
practiced extensively in both state and federal administrative law forums. In 1996 Utah Legal Services had its budget cut by a third. In trying to figure out which services to
discontinue, we looked for those systems which our clients had the most likelihood of negotiating on their own and that were perceived as fair by both our staff and our clients.
One of the areas we decided to cut was unemployment compensation hearings. Like arbitration proceedings, unemployment compensation judges are experts in the law which they apply. The
hearings are full blown evidentiary hearings, with direct, cross and closing. The process is designed for the parties to appear either with or without a representative. When represented
by counsel, the judge allows the attorney to proceed as normal with one important exception, if the attorney fails to cover a critical area the judge does it by asking questions. When a
party is not represented, the judge asks all of the necessary questions to be able to understand the facts and appropriately resolve the issue.
Creating similar systems is far
more affordable than continuing to expand the judicial system using Article III judges. These systems could still be housed in the courts and administered by the Administrative Office of
the Courts so that no new agencies or layers of bureaucracy would need to be created. And like traditional agency hearings, the door to the District Courthouse could still be left open.
In fact, Small Claims works this way right now and does so very successfully, with the significant exception that the judges are not necessarily experts in the area of law they are
judging. We have the models to create much more user friendly systems. It's time we moved in that direction.
2. There are legal issues which are better resolved outside of the
courts. The legislature and courts recognize this in the creation of mandatory mediation. The domestic law practitioners have recognized this through their endorsement and participation
in both mediation and collaborative law. And the people forced into the court system as their only means of meeting legal requirements for divorce or other legal problems recognize this
each and every day they have to try to draft documents, file papers, obtain hearing dates, and otherwise negotiate a system set up for lawyers with confusing and difficult rules and
procedures. There are much more efficient, economical and less harmful ways than forcing them through an adversarial system and into the courts. And we do not have to start from zero and
completely reinvent the wheel. There are systems already in use elsewhere that should be studied.
For example, at one time Japan had the highest divorce rate in the industrialized
world. They presently have a divorce rate half that of the United States (and Utah) using a three tier system which is almost completely outside of the court process. In the first tier,
if a divorcing couple can work out the settlement on their own they are allowed to simply register their divorce at their local Ward office (the equivalent of a county office here) and
walk out divorced. For those couples who have issues which they need assistance in resolving, they are required to go through a unique mediation process where the first thing which is
done is an attempt to save the marriage. If the marriage can't be saved, then the mediator assists in resolving the issues. Only as a last resort after the failure of marriage counseling
and mediation, will a couple be allowed to file in court. Only a miniscule number of divorces are ever filed in court in Japan.
In developing a similar system here we could use
interactive computer programs to educate the parties as to all of the issues they need to address and to produce the agreement for them to sign. The agreement could be filed in the local
courthouse or online so that no new storage and retrieval systems would need to be created in other government offices.
We are not far from such a process under the current system
as it is now. Any couple who can agree as to all of their issues can use the State's Online Court Assistance Program and obtain a divorce without ever seeing a judge. And mediation is
mandatory in those jurisdictions with the largest populations. The difference is that presently Utahns must navigate through our court system with all of the costs in time, money and
emotion that this entails.
3. I have had people come into my clinic after 40 years of being separated who in all that time were unable to obtain the legal help they needed for a
divorce. This lack of access to our legal systems can be far reaching and devastating. Utahns can be denied Social Security Retirement Benefits, encounter problems with estates when their
subsequent "spouse" dies, be denied medical insurance coverage at critical times, and on and on. We have an opportunity to put systems in place which are user friendly, allow
access with or without attorneys, do not have the drawbacks of our current adversarial system, and as a result are much more fair and just. Let's solve the problems faced by Utahns in
accessing our legal system. Let's not let this opportunity pass.
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