Summary of Contents
1. GENERAL INFORMATION
The United States is a representative democratic republic, which operates as a federal system. There is a federal court system, but it does not control the state court systems. There are 50 states, the District of Columbia (DC), Puerto Rico and several territories each with their own legal systems. Each state, DC, Puerto Rico and the territories have their own court systems. State court systems include many levels of courts that vary by state, counties within each state and cities within each county. Civil legal aid and indigent public defense are separate systems. There is no national legal aid budget. At the Federal level, the legal Services Corporation (LSC) funds part of the state based civil legal aid system. The federal Criminal Justice Act funds the federal defender system for federal criminal cases. Local public defender offices and private attorneys receiving court appointments or under contract provide defense in state criminal cases. These are state and locally funded. The US does not have a national defender system for state criminal cases, which are the vast majority of criminal cases in the US. Access to justice activities are primary state activities.
The total population is 329,780,832. It is 60.4% white; 13.4% Black, 18.3% Hispanic, Asian 5.9%, Native American 1.3%. English is the official language. The predominant religion is protestant Christian.
Chart 01. U.S. GDP for the last ten years (2009-2018) 
|Year||Billion US Dollars|
Gross national income at purchasing power parity per capita GNI (PPP) $62,606. Of the total population, as of 2018, 11.8 lived in poverty or 41,852,315 people in poverty. There were 55,643,386 people below 125% of poverty, the number eligible for civil legal aid.
The life expectancy at birth is 79.5 years; the expected years of schooling is 16.5 years; and the mean years of schooling is 13.4 years. The Human development index (HDI) is 0.924.
Chart 02. Human Development Indicators
|Human Development Index||Life Expectancy
|Mean Years of Schooling||Gross National Income per Capita|
2. LEGAL SYSTEM
The US is a common law system with both state and federal statutes providing civil and criminal law. The US has a federal court system with 94 federal district courts, 13 courts of appeal and a Supreme Court. The federal system works differently in many ways than state courts. The primary difference for civil cases (as opposed to criminal cases) is the types of cases that can be heard in the federal system. Federal courts are courts of limited jurisdiction, meaning they can only hear cases authorized by the United States Constitution or federal statutes. The federal district court is the starting point for any case arising under federal statutes, the Constitution, or treaties. This type of jurisdiction is called “original jurisdiction.” Sometimes, the jurisdiction of state courts will overlap with that of federal courts, meaning that some cases can be brought in both courts. The plaintiff has the initial choice of bringing the case in state or federal court. However, if the plaintiff chooses state court, the defendant may sometimes choose to “remove” to federal court.
Cases that are entirely based on state law may be brought in federal court under the court’s “diversity jurisdiction.” Diversity jurisdiction allows a plaintiff of one state to file a lawsuit in federal court when the defendant is located in a different state. The defendant can also seek to “remove” from state court for the same reason. To bring a state law claim in federal court, all of the plaintiffs must be located in different states than all of the defendants, and the “amount in controversy” must be more than $75,000.
Each state, the District of Columbia, Puerto Rico and the Territories each has its own court system. Generally, state courts are common law courts, and apply their respective state laws and procedures to decide cases. State court systems have both trial and appellate courts. Trial courts are the courts where a case is first filed and an initial decision is made. Appellate courts review the decisions of those trial courts. Appellate courts include courts of last resort and intermediate appellate courts. Every state has a court of last resort, usually called a supreme court. Many states also have an intermediate appellate courts. Oklahoma and Texas each have two courts of last resort—one for criminal cases and one for civil cases. All but 10 states have an intermediate appellate court, often called the court of appeals. States like Alabama and Tennessee each have two intermediate appellate courts—one for criminal cases and one for civil cases. General jurisdiction trial courts hear a wide range of civil and criminal cases. They are often called circuit, district, or superior courts. Many states have limited jurisdiction trial courts as well, to hear cases involving a specific area of law—e.g., probate, family, or juvenile law. States may also have municipal courts, county courts, or justices of the peace that hear civil cases involving a small amount of money and less serious criminal cases.
2.1. Civil Cases
In the United States, a state court has jurisdiction over disputes with some connection to a state. The vast majority of non-criminal cases in the United States are handled in state courts, rather than federal courts. For example, in Colorado, roughly 97% of all civil cases were filed in state courts and 89% of the civil cases filed in federal court were bankruptcies in 2002, a typical year. Just 0.3% of the non-bankruptcy civil cases in the state were filed in federal court.
Large shares of all civil cases filed in state courts are debt collection cases. For example, in Colorado in 2002, about 87% of all civil cases filed in the courts of inferior jurisdiction were debt collection and eviction cases, while in the court of general jurisdiction, about 60% of all civil cases (other than domestic relations and probate cases) were debt collection, foreclosure, and tax collection cases. A large share of the balance of civil cases in courts of limited jurisdiction involve temporary restraining orders, typically in non-marital domestic relations contexts, and name change petitions (generally for marriage, divorce or child custody reasons). A large share of the balance of civil cases in courts of general jurisdiction involve divorces, child custody disputes, child abuse cases, uncontested probate administrations, and personal injury cases that do not involve workplace injuries (which are usually handled through a non-judicial workers compensation process).
Many state court civil cases produce quick default judgments or pretrial settlements, but even considering only cases that actually go to trial, state courts are the dominant forum for civil cases. In Colorado, in 2002, there were 79 civil trials in federal court (41 jury and 38 non-jury), and 5950 civil trials in state court (300 jury and 5650 non-jury). Essentially all probate and divorce cases are also brought in state court, even if the parties involved live in different states. In practice, almost all real property evictions and foreclosures are handled in state court.
State courts systems always contain some courts of “general jurisdiction”. All disputes, which are capable of being brought in courts, arising under either state or federal law, may be brought in one of the state courts, except in a few narrow cases where federal law specifically limits jurisdiction exclusively to the federal courts. Some of the most notable cases exclusively in federal jurisdiction are suits between state governments, suits involving ambassadors, certain intellectual property cases, federal criminal cases, bankruptcy cases, large interstate class action cases, and most securities fraud class actions. There are also a handful of federal laws under which lawsuits can be pursued only in state court, such as those arising under the federal “junk fax” law. There have been times in U.S. history where almost all small claims, even if they arose under federal law, were required to be brought in state courts.
State court systems usually have expedited procedures for civil disputes involving small dollar amounts (typically under $5,000 to $25,000 depending upon the state court in question), most of which involve collection of small contractual debts (such as unpaid credit cards) and landlord-tenant matters. Many states have small claims divisions where all parties proceed in civil cases without lawyers, often before a magistrate or justice of the peace. Federal courts do not have parallel small claims procedures and apply the same civil rules to all civil cases, which makes federal court an expensive venue for a private party to pursue a claim for a small dollar amount.
There is no federal constitutional right to a trial by jury in a state civil case under the Seventh Amendment to the United States Constitution, and not all states preserve a right to a civil jury in either their state constitution or state statutes. In practice, however, civil jury trials are available, generally on a similar basis to their availability in federal court, in every state except Louisiana. In these states, there is a general right to a jury trial in cases that would arise at law in colonial England, which generally includes most cases seeking simple money damages and no other relief. In practice, about three-quarters of all civil jury trials involved personal injury cases, and most of the rest involve breaches of contracts. In states where a state constitution provides for a right to a jury trial, or a right to open courts, this has sometimes been interpreted to confer not only a procedural right to a certain type of trial, but also a substantive right to have redress through the courts for the kinds of injuries that were compensable at common law.
Prior to trial, most proceedings in non-criminal courts are conducted via papers filed in the court, often through lawyers. In limited jurisdiction courts, it is not uncommon for an initial appearance to be made in person at which a settlement is often reached. In general, jurisdiction state courts, it is not uncommon for all pre-trial matters to be conducted outside the court, with attorneys negotiating scheduling matters, pre-trial examinations of witnesses taking place in lawyer’s office through depositions, and a settlement conference conducted by a private mediator at the mediator’s office.
2.2. Criminal cases
About 91% of people in prison at any given time in the United States were convicted in state court for violating state criminal laws, rather than in federal court for violating federal criminal laws, including 99% of defendants sentenced to death.
The proportion of criminal cases brought in state court rather than federal court is higher than 91% because misdemeanor and petty offense prosecutions are disproportionately brought in state courts and most criminal prosecutions involve misdemeanors and petty offenses. The number of trials conducted in each system is another way to illustrate the relative size of the two criminal justice systems. In Colorado, in 2002, there were approximately 40 criminal trials in federal court, and there were 1,898 criminal trials (excluding hundreds of quasi-criminal trials in juvenile cases, municipal cases and infraction cases) in state courts, so only about 2% of criminal trials took place in federal court. Most jury trials in the United States (roughly five out of six jury trials conducted in any U.S. Court) take place in criminal cases in state courts.
State courts do not have jurisdiction over criminal cases arising on Indian reservations even if those reservations are located in their state. Less serious crimes on Indian reservations are prosecuted in tribal courts. A large share of violent crimes that are prosecuted in federal court arise on Indian reservations or federal property, where state courts lack jurisdiction, since tribal court jurisdiction is usually limited to less serious offenses. Federal crimes on federal property in a state are often defined with reference to state criminal law.
Federal courts disproportionately handle white-collar crimes, immigration-related crimes and drug offenses (these crimes make up about 70% of the federal docket, but just 19% of the state court criminal docket).[Federal courts have the power to bring death penalty charges under federal law, even if they arise in states where there is no death penalty under state law, but the federal government rarely utilizes this right.
Many rights of criminal defendants in state courts arise under federal law, but federal courts only examine if the state courts applied those federal rights correctly on a direct appeal from the conviction to the U.S. Supreme Court, after state court direct appeals have been exhausted, or in a collateral attack on a conviction in a habeas corpus proceeding after all state court remedies (usually including a state court habeas corpus proceeding) have been exhausted. Some rights of criminal defendants that apply in federal court do not exist in state court. For example, in many states there is no constitutional right to be indicted by a grand jury before facing a criminal prosecution for a felony or infamous misdemeanor. Two states (Louisiana and Oregon) do not require unanimous juries in non-capital criminal cases.
Unlike non-criminal cases, criminal proceedings in state courts are primarily conducted orally, in person, in open court.
2.3. The structure of the legal profession
There is no breakdown among lawyers such as barristers and solicitors. All lawyers who pass the bar exam in their respective states can practice in all courts to which they are admitted. There is no national bar exam. Each state and jurisdiction has its own bar exam. owever,However, the Multistate Essay Examination (MEE) is a collection of essay questions largely concerning the common law administered as a part of the bar examination in 33 jurisdictions of the United States. The Uniform Bar Exam (UBE) is an exam promulgated by the National Conference of Bar Examiners. More and more states are adopting this “uniform” test, which, rather than testing any specific states law, tests the “majority” law. As of 2019, 36 states have adopted the Uniform Bar Exam.
Only the District of Columbia allows non-lawyers to become owners or managers of law offices.
2.3.1. Licensed practicing lawyers
According to a recent study by the American Bar Association, as of January 1, 2019, there are 1,352,027 practicing lawyers in the US. There is no statistical breakdown of these into practice areas.
2.3.2. Affordability of Legal Fees
There is no data on affordability of fees but many people in the general population cannot afford an attorney. However, legal needs studies find that over 80% of the legal needs of low and moderate-income people are not met.
2.3.3. Legal representation in Court
Lawyers are not required in Federal and state courts. Self-representation is a right in most courts.
2.3.4. Representation by paralegals
In many administrative proceedings such as Social Security and welfare hearings, paralegals are permitted to advocate for their clients. However, with a few exceptions, paralegals cannot practice in most state and federal courts.
2.3.5. Judicial Careers
Courts are independent branches of government both at the federal and state levels.
Federal judges are appointed by the President of the US, but have to be confirmed by the Senate. Federal judges at all levels are lifetime appointments. There are currently 870 authorized Article III judgeships: nine on the Supreme Court, 179 on the courts of appeals, 673 for the district courts and nine on the Court of International Trade. The federal court system has three main levels: district courts (the trial court), circuit courts, which are the first level of appeal, and the Supreme Court of the United States, the final level of appeal in the federal system. There are 94 district courts, 13 circuit courts, and 1 Supreme Court.
In addition to Article III judges, there are Bankruptcy judges who are judicial officers of the district court and who preside exclusively over bankruptcy proceedings and cases. Bankruptcy judges receive the same annual salary, no matter where they serve or how many years of service. They are appointed to renewable 14-year terms by a majority of the judges of the U.S. Court of Appeals for their circuit with assistance from the circuit council.
There are also magistrate judges. By a majority vote of the U.S. district judges of the court, magistrate judges are appointed for a renewable term of eight years. In addition, there are a small number of part-time magistrate judges who serve four-year terms.
There are approximately 30,000 state judges, compared to only 1,700 federal judges. States vary in how judges are appointed and recruited. States use one of five methods to choose their judges—commission-based appointment by the governor (or merit selection), appointment by the governor, partisan election, nonpartisan election, and legislative election. In several states, there are different methods for selecting judges for different levels of courts. Often, trial court judges are elected, while appellate court judges are appointed in some way. In a few states, the method for selecting trial court judges varies from county to county. The governor may choose trial court judges in some counties through commission-based appointment, while trial court judges in other counties are elected. Each state determines the qualifications its judges must have, and qualifications may vary for different levels of courts. In every state, judges of the court of last resort, intermediate appellate court, and major trial court are required to have a law degree, either explicitly or implicitly. States may also require that judges be a minimum age, have a certain number of years of legal experience, reside within the jurisdiction of the court on which they serve, and/or be a U.S. citizen. Judges of minor trial courts are often not required to have a law degree. Thirty-two states and D.C. have a mandatory retirement age for judges, ranging from 65 to 75. Judges may be required to leave the bench at the end of the calendar year in which they reach retirement age, or they may be allowed to complete their current term.
A. Diversity of judges
State courts: A recent report on racial and gender diversity from the American Constitution Society found that white men comprise 58 percent of state court judges, even though they make up less than one-third of the population. Less than one-third of state judges are women, and only 20 percent are people of color.
Federal Courts: Among 1700 federal judges, 220 are African American; 3 are Native American; 46 are Asian American; 130 are Hispanic American; 3 are pacific islanders; and 446 are women.
Transfers of judges: Judges generally are not transferred to different districts in either state of federal courts. In the federal court system, visiting judges who may sit by designation and assignment in any other federal court having a need for their service. They provide temporary assistance not only when a court’s own judges must disqualify themselves, but also to help meet the caseload needs arising from vacancies, lack of sufficient judgeships, specific emergencies, and other workload imbalances.
Judges sitting with another court within their circuit are on an intracircuit assignment, which is approved by the circuit chief judge. Judges sitting with a court outside of their home circuit are on an intercircuit assignment. For Article III judges, the Chief Justice of the U.S. Supreme Court must approve intercircuit assignments. Chief Judges of the courts and circuits coordinate temporary assignments for bankruptcy and magistrate judges.
2.3.6. Public prosecutors
In the United States, there are federal prosecutors and state/local prosecutors. Federal prosecutors are US Attorneys in every federal district. The US Attorneys are appointed by the President of the US and confirmed by the Senate. They work in the US Department of justice ultimately under the authority of the Attorney General. There are 93 US Attorneys. They serve at the pleasure of the President. When there is a new president, new US Attorneys are appointed.
State and local prosecutors, often call District Attorneys serve in every county of the United States. A district attorney is the chief prosecutor for a local government area, typically a county. The exact name of the office varies by state. According to the National District Attorneys Association there are approximately 2400 district attorneys in the US in 3140 counties, in addition, there are 54 Attorney Generals for the states, DC, Puerto Rico and the Territories. These numbers do not include all of the lawyers who are prosecutors, but just the chief prosecutor. There are 5100 members of the National District Attorneys Association. With few exceptions, district attorneys and attorney generals are elected usually in partisan elections and serve until the next election. There are few term limits.
2.3.7. Shortage of lawyers in the United States
No study that explicitly examines whether there is a shortage of legal services in the United States. The US has many lawyers but they are not allocated sufficiently to help low and moderate-income people achieve access to justice. There have been many studies about access to justice and civil legal services. See Section 4.
3. PROCESS AND PROCEEDINGS: OVERVIEW
3.1. Criminal Procedure
3.1.1. Overview of criminal procedure
As is true in civil cases, the United States uses an adversarial system. Judges have no role in prosecuting or actively investigating crimes. Rather they are expected to be neutral—deciding or in the case of jury trials referring the contest between prosecution and defense. The players on the law enforcement side are employees of the executive branch of government while the judges are members of the judicial branch—and never the twain shall meet, except in the courtroom.
Several levels of jurisdiction—cities, counties, states, and the federal government have law enforcement arms. The frontline officers that patrol the streets in cities are generally called police, while those that patrol outside the cities or in smaller communities are county deputy sheriffs. They are the ones who observe crimes in progress or are called to the scene of crimes that have recently occurred. In those instances, the criminal process typically begins when, after a usually brief preliminary investigation, the officer identifies a probable perpetrator and places him or her or them under arrest. During that preliminary investigation, the officer must give any suspect a Miranda warning before questioning him or her. (A Miranda warning advises the person being questioned that anything the suspect that he or she doesn’t have to answer a question, but if they do that answer can be used against them at trial and furthermore informs the suspect of their right to counsel and to free counsel if they cannot afford one.)
While the majority of criminal cases begin with an arrest by police at the scene of the crime, many times the arrest comes only after an often lengthy investigation. This is especially true when the crime is fraud, tax evasion, financial cheating, and other so-called “white collar” crimes. But it is also common with crimes like murder, conspiracy, and others which are often committed in secret or otherwise require considerable investigation to identify the alleged perpetrator(s). Typically, these extensive investigations are not conducted by the frontline police or deputy sheriffs, but officers who specialize in this work and are usually called detectives, or investigators, or agents, by the government that employs them.
Whether the result of an immediate apprehension at the scene of the crime or of a five year investigation, the law enforcement action will result in the arrest of the alleged perpetrator(s). The arrestee(s) typically will be taken to a nearby station house or other place of confinement where they will be photographed, fingerprinted, etc. before being placed in a jail cell or other place of confinement. These suspects can only be confined for a brief period, typically 48 hours, without the opportunity for a hearing before a judge. The judge will advise the defendant of his or her basic rights, including the right to free counsel, if he doesn’t have a lawyer and can’t afford to employ one. Sometimes, a public defender or private counsel will be available for an immediate appointment to represent the defendant and after consultation together, the defendant’s new lawyer will be in a position to engage in plea negotiations with the prosecutor. Occasionally, that results in an immediate guilty plea with an agreed upon sentence recommendation. The judge is free to accept or reject that negotiated sentence, although more often than not that since is approved and pronounced. In any event, the judge will ask the defendant, represented or not, whether he or she desires to plead guilty or not guilty. When that plea is not guilty, the judge will either hold an immediate bail hearing or set a time for such a hearing in the very near future.
At the bail hearing the judge will consider several factors, including the seriousness of the charge, the defendant’s financial means, his or her prior criminal record, etc. After weighing those factors, in appropriate circumstances the defendant may be released from custody on his own recognizance (essentially a promise to return for required hearings without a financial penalty for failure to appear). Or, the defendant will be required to post bail which will be forfeit if he or she fails to appear for all required hearings including the trial itself. Bail amounts can range from a few dollars to thousands or even millions of dollars, depending on the crime and the defendant. In most locations, private bail bondsmen are available that will offer to post a defendant’s bond in return for a non-refundable payment to the bail bondsman, typically 10 per cent of the amount the judge set. If the defendant fails to appear, the entire bond the bondsman posted will be forfeit, so the bondsman has an incentive to locate the missing defendant and restore him or her to custody.
The next step in the criminal process is the lodging of formal charges, either through an indictment by a Grand Jury or after a preliminary hearing before a judge. In most jurisdictions there are time limits before which one or the other of these must occur or the defendant must be released from custody. A Grand Jury has a different function and composition than the Petit Juries that hear the trials of defendants. Grand juries are far larger, typically more than 20, and sit for as long as a year or 18 months. Their primary although not sole function is to hear evidence tendered by the prosecution and determine whether there is probable cause to believe the named defendant or defendants committed the crime or crimes charged. If a majority of them agree the evidence is sufficient to meet that probable cause standard, they issue what is called a “true bill” and the prosecutor can proceed with his case against the defendant. The proceedings before the Grand Jury are secret. Even the jurors are prohibited from revealing anything they heard during the proceedings. Moreover, the defendants and their lawyers are not allowed in the jury room. Thus, the grand jury only hears one side of the story. Furthermore, hearsay is admissible. In fact, in many cases, the jurors only hear from a law enforcement officer who was involved in the investigation who summarizes the evidence he and the other investigators collected. But sometimes grand juries perform an additional and often crucial function for the prosecution. Grand Juries are empowered to issue subpoenas to compel the attendance of witnesses unwilling to be interviewed by government investigators. Grand juries can also subpoena documents and other physical evidence from people or institutions unwilling to release such evidence to investigators. Thus, a Grand Jury can perform an important investigative function for the prosecution. In any event, when the Grand Jury ultimately returns a “true bill” in a given case, the charging document produced through a grand Jury hearing is called an Indictment
An alternative route to bring formal charges in many jurisdictions is through a preliminary hearing before a judge. Once again, the standard is “probable cause” to believe a crime has been committed and the defendant or defendants committed that crime. Unlike a Grand Jury proceeding, the preliminary hearing is held in open court. Except in extraordinary circumstances, defense counsel seldom cross-examined prosecution witnesses or put their own witnesses on the stand. The “probable cause” standard is so low those defense tactics offer little to no hope of success—better to hold fire until the trial itself. But at least defense counsel gain some sort of preview of the prosecution’s case. Assuming the judge finds probable cause, the charging document is called an Information as opposed to a grand jury Indictment.
After an indictment or information or whatever a jurisdiction calls its charging document has been filed, the proceeding enters a discovery and motions phase. In the Federal courts and many state courts, the prosecution is required to turn over copies of its evidence to the defense. There is a special obligation to turn over evidence in the prosecution’s possession that is favorable to the defendant’s innocence. Failure to do so is reversible error on appeal and, if the that evidence is sufficiently significant, can require a retrial with that evidence admitted and heard by the jury or judge deciding the case. The defense can also file motions to suppress evidence law enforcement obtained illegally, for instance, through an unlawful search or through unauthorized surveillance of communications. If such a motion is granted, even if the suppressed evidence strongly supports the defendant’s guilt, it may not be admitted at the trial and hence is not heard by the jury or judge deciding the defendant’s fate.
If the defendant has requested a jury trial rather than trial by a judge, the first stage is jury selection. In the federal courts and most state courts, felonies are tried by twelve-member juries, while in many misdemeanors are often tried by six-member juries. Ordinarily a large number of prospective jurors, typically two or three times as many as will be selected to hear the cases will be ushered into the courtroom. Typically the judge will pose general questions to all the prospective jurors, in large part to elicit information that might disqualify or make it impossible for some jurors to serve in this particular case. Then the judge will randomly seat twelve of the prospective jurors in the jury box and question them one by one, eliciting background information about them as well as information that might bear on their ability to be neutral in weighing the defendant’s guilt or innocence. In. Many jurisdictions, the judge then allows the prosecutor and defense counsel to pose questions of those prospective jurors, while some require the lawyers to submit their proposed questions to the judge who will review them and ask those the judge considers appropriate. When the questioning is over, the lawyers exercise their challenges, of which there are two types—challenges for cause and peremptory challenges. There is no limit to the number of challenges for cause each attorney is allowed, but the judge determines whether the cause is sufficient to disqualify the juror from sitting. Peremptory challenges require no cause, but are limited in number. Depending on the jurisdiction and the level of crime involved, prosecutors and defense counsel have anywhere from three to ten peremptory challenges available to strike jurors they seek to eliminate from the hearing the case. Ordinarily, the jury process will end with the selection of two alternate jurors who can replace any of the regular jurors who becomes ill or otherwise must leave before the trial is complete. Small wonder that it is not uncommon for jury selection to take more time than the trial itself.
The trial itself ordinarily commences with an opening statement by the prosecutor, summarizing the evidence he or she intends to present to the jury or judge hearing the case to support a verdict of guilty. In most jurisdictions, the defense counsel has the option of delivering an opening statement immediately thereafter, summarizing the contentions and evidence he or she expects to support a not guilty verdict. But defense counsel is also allowed — and often chooses to delay that statement until the prosecution has rested and before he or she begins introducing evidence on behalf of the defendant.
In either event, the next step in the trial is the prosecutor presenting the case for conviction—calling and examining witnesses, submitting documents and physical evidence, etc. Defense counsel is free to object to a question or answer or document, etc. as introducing evidence that is inadmissible for some reason. If the judge agrees the objection is sound, he or she will exclude the evidence and, if it has already been heard by the jury, further instruct the jury to disregard that evidence and prohibit them from considering it when deliberating the defendant’s guilt. After each prosecution witness finishes answering the prosecutor’s questions, the defense counsel has the opportunity to cross-examine, while the prosecutor can object to the content or tenor of questions in order to protect the witness. When the. Defense counsel ceases his or her cross-examination, the prosecutor has the option of examine the witness again in order to restore or reinforce that witness’s credibility. This scenario is repeated for the remainder of the prosecution’s witnesses and other evidence. When the prosecution has completed presenting all its evidence, the prosecutor announces that the “the Prosecution rests.”
The defense then usually makes a motion to dismiss the case against his or her defendant(s) on grounds the prosecution’s evidence fails to establish the defendant’s guilt beyond a reasonable doubt—a motion that is seldom granted. As a result, the defense then introduces the evidence supporting the defendant’s innocence, preceded by an opening statement if defense counsel reserved the option to do so. The scenario is the same as when the prosecutor was putting on his or her case, only the roles are reversed with the defense counsel introducing evidence and the prosecutor objecting. When the defense counsel concludes making his or her case for acquittal the prosecution is given the opportunity to introduces rebuttal evidence.
After that, the judge ordinarily instructs the jury as to the law relevant to the crimes charged in the specific case as well as general principles such as the defendant’s presumption of innocence, although in some jurisdictions all or some of those instructions will have been delivered earlier in the proceedings and in some will not be delivered until after the attorney’s have given their closing arguments. (In a many jurisdictions, the jury also will be supplied a written copy of the judges’ instructions on the law to use during their deliberations.)
The prosecutor then delivers his or her closing argument seeking to demonstrate the evidence supports all elements of the charged offense or offenses beyond a reasonable doubt. The defense counsel follows with his or her closing argument striving to show how the evidence fails to prove one or more elements of the charged crime(s). Finally, the prosecution gets the last word, a chance to deliver a rebuttal argument responding to the defense argument.
The judge then instructs the jury to repair to the jury room with a few instructions about their deliberations, starting with asking them to choose a foreman. They are required to return a unanimous verdict of either “guilty” or “not guilty.” If, after considerable time deliberating, they are unable to reach a unanimous verdict, they will typically send a note to the judge informing him or her that they are unable to do so. Typically, the judge will instruct them to continue deliberating. If further deliberations are unproductive, the jury will inform the judge of that fact, and he or she will declare it is a “hung jury” and excuse the jurors. When a jury hangs, the prosecution is free to re-try the defendant before a new jury on a future date. Whether it chooses to do so tends to depend on the seriousness of the alleged crime, what the vote was when the jury hung, whether stronger evidence of guilt is now available, and similar considerations.
If the trial results in a guilty verdict, the defense frequently will file a motion for new trial in the trail court, citing to errors in the trial record that tainted the finding of guilt. Such motions are routinely denied and rarely granted.
If the jury verdict is not guilty, the prosecution is not allowed to appeal even if the judge committed error in excluding evidence favorable to the prosecution or admitting evidence favorable to the defense, or on any other grounds. To allow such an appeal and, if the appellate court ruled in the prosecution’s favor, any retrial would require placing the defendant in double jeopardy which is not allowed in the United States. A retrial after a hung jury, on the other hand, is not considered double jeopardy and therefore is not only permitted but is quite common. Unlike the prosecution, defendants can always appeal a guilty verdict, essentially on any grounds. But to be grounds for reversal, in most jurisdictions any error or errors the appellate court detects in the trial is subject to the “harmless error” rule. That is, the error or errors must be significant enough that a reasonable juror could have been influenced to vote the defendant guilty. Also, should the defendant prevail on the appeal and the conviction therefore be reversed, the prosecution can retry the defendant. Only in the rare case the appellate court finds the defendant factually innocent of the charge or that the evidence the prosecution produced at the trial so inadequate that no reasonable jury could have found the defendant guilty is the prosecution barred from retrying the defendant.
In the federal court system and most states of any size there are two levels of appellate courts. So a defendant’s first appeal is filed with ten intermediate court of appeal. That appeal is a matter of right in that the court must consider the appeal and decide on the merits every case filed in that court. Defendants who lose in the intermediate court, and the vast majority do, can petition the jurisdiction’s Supreme Court to review their case. Many such petitions are filed, but few granted, especially in the larger states. Only cases raising important unresolved legal issues are likely to attract review by the Supreme Court. Cases where the defendant received a death penalty, however, typically are an exception. In California, for instance, such cases bypass the intermediate court and are heard by the Supreme Court, which must decide such appeals as a matter of right. These appeals can continue for years or even decades before they are finally resolved.
Ordinary as well as death penalty defendants have one more gasp if denied relief by their state’s Supreme Court. That is to file a habeas corpus petition with the federal courts. Those petitions are filed initially in a Federal district court, which is, of course a trial court. Many of those courts use their Magistrates instead of their judges to conduct the initial review of the state court conviction. (Federal magistrates are chosen by the District’s judges and try lesser cases and hear preliminary motions, etc in other cases.) In a habeas proceeding they issue a report which usually includes a recommended result either to grant or deny the habeas petition. The federal judge than examines the magistrate’s report, conducts a more expanded reviewe if needed, and writes and files an opinion supporting the grant or denial of the writ. Either way, the District Court’s opinion will usually be apppealed to the Circuit Bourt of Appeal and that court will issue its own ruling, which often will be the subject of a petition to the U.S. Supreme Court. Few of those petitions are granted—although in death penalty cases they frequently result in stays of execution to allow the high court sufficient time to review the case.
A final but seldom used governmental form of relief is the executive pardon or commutation of sentence. A U.S. President is empowered to pardon or commute the sentence of a person who has been convicted of a federal crime—but not a state crime. A pardon is usually but not necessarily granted after a defendant completes serving his or her prison sentence. (It can even be granted before the sentence commences with the defendant thus evading any time in prison.) Whenever granted it erases es the conviction as well as releasing the defendant from any remaining prison sentence and any collateral consequences, such as the inability to vote or run for elective office, that often accompany a conviction. A commutation of the sentence ordinarily only releases the defendant from prison. His or her criminal conviction stands, along with any collateral consequences of that conviction. In many states, governors have a similar power to pardon or commute sentences imposed for state crimes—but not federal ones. The President’s power is converted by specific language in the U.S. Constitution and there are essentially no limits on who or why he or she can deploy that power. Perceived innocence or errors in the court process leading to the conviction almost never motivate the grant of relief. Political considerations and subjective beliefs about the nature of certain crimes or a defendant’s overall morale character are often the reasons behind a given pardon. They are seldom granted, but often controversial and thus more frequently issued near the end of a President or governor’s final term in office.
In recent years, an unofficial, non-governmental but limited layer of review has been added to examination of some past convictions. What are usually called “innocence projects” have sprung up in many parts of the country. Often affiliated with law schools and staffed largely by students, they search out prisoners whose convictions appear questionable for some reason. Supporters of prisoners often solicit the help of these projects and if a preliminary analysis shows significant reasons to doubt the validity of the conviction, the project will open an investigation. These included convictions based largely on confessions elicited from youthful or otherwise vulnerable suspects and/or during prolonged or onerous conditions. It also included those based largely on the testimony of jailhouse informers, who claimed the defendant confessed his or her guilt to that inmate. Others could be disproved because of the advent of more sophisticated forensic evidence, such as DNA. Since they are not official government bodies, these “innocence” projects must build powerful cases to persuade courts to hear their pleas for post-conviction relief, often involving prisoners who have been incarcerated for years and have exhausted all the many layers of official review. Yet they have been successful enough in unearthing faulty convictions, many of those victories attracting national public attention, that the numb er of such projects grows every year. Their success has actually persuaded a few prosecutors and even a few olive departments to establish “conviction integrity” units to re-examine past convictions that are suspect for some reason or other. These units, too, have had some success in identifying and overturning some such convictions.
3.1.2. Evaluation of U.S. Criminal Justice System’s adherence to Due Process
The United States ranks somewhat higher in the overall performance of its criminal justice system than its civil system, according to the World Justice Project’s Rule of Law Index. While it ranked 27th among the 36 wealthy nations as to civil justice, its criminal justice system was 22nd compared to that same group of countries. The U.S. criminal justice process also has not been subjected to international sanctions or formal condemnation—except in some quarters for the many states and federal courts continuing to impose the death penalty.
But while the U.S.’s abysmal score on the “access to justice” element of the civil justice scale was the main drag on the nation’s civil justice ranking, for criminal justice the lowest score was for “no discrimination” within the system. That discrimination is wholly or almost wholly racial discrimination (and ethnic discrimination considering Hispanics an ethnicity rather than a race.)
Statistical evidence of this discrimination can be found in the comparative rates of imprisonment. According to the U.S. Bureau of Justice Statistics, Blacks represent 12 percent of the nation’s adult population, but are 33 percent of prison population (counting federal and all state prisons), while 16 percent of the adult population are Hispanic but represent 23 percent of the nation’s prisoners. Meanwhile, 63 percent of the total population are White, but only 30 percent of the prison population.
Another set of statistics reinforces the conclusion the criminal justice system discriminates against Blacks and to a lesser degree Hispanics. In 2018, there were 2,272 Black prison inmates per 100,000 black men in the total population, 1,018 Hispanic inmates per 100,000 Hispanics, and only 392 whites per 100,000 Whites. To express the latter statistics in percentages, nearly 2.3 percent of all Black men were imprisoned, 1 percent of Hispanics and a little less than 4 tenths of a percent of White males were incarcerated. In other words, a Black male is nearly 6 times more likely to be imprisoned than a White male, while a Hispanic is 2 and a half more times likely than a White to be incarcerated.
As stark as these racial/ethnic differences in incarceration rates may appear, it should be noted that there has been a significant decrease in the imprisonment of Blacks and a lesser decrease for Whites—resulting in a somewhat shrunken but still disturbing gap. From 2006 to 2018, the incarceration rate for Blacks declined by 31 percent, 25 percent for Hispanics, and 14 percent among Whites.
All of these statistics reflecting sharp differences in incarceration rates among Black, Hispanic, and White populations appear against the background of another salient fact—the United States has the highest overall incarceration rate among all the nations in the world, although a few nations aren’t that far behind. According to the Pew Research Center, we incarcerate 656 per 100,000 Americans—in other words, between 6 tenths and 7 tenths of a percent of our population. Only El Salvador incarcerates over 6 percent but still less than the U.S.—that is, 614 per 100,000. Others over a half percent include Cuba (510 per 100,000), Turkestan (583 per 100,000) and, surprisingly, the Maldives (514 per 100,000).
But evidence of possible discrimination in the criminal justice system is not limited to the end result—incarceration in a prison. It starts at the beginning—how frequently police shoot and kill suspects. According to a comprehensive five-year investigation by the Washington Post, police kill 32 Blacks for every million Blacks in the total population, while they killed 13 Whites and 24 Hispanics per million of those groups in the population. So if you are Black you are over twice as likely to be shot by the police and if Hispanic at almost twice the risk as Whites. In part, this may be explained by a fact included in the Sentencing Sentencing Project’s Report to the United Nations on Racial Disparities in the United States Criminal Justice System—27 percent of arrestees are black male adults and 35 percent of juvenile arrestees are black. According to the same report, Blacks also are 3-and-a-half times more likely than Whites to be confined in local jails where most inmates are in pre-trial detention, often because they could not afford cash bail. The report to the UN attributes much of the differences in arrest, pretrial detention, and police shooting statistics to societal discrimination which condemns a disproportionate number of Blacks and Hispanics to live in poverty, many in urban poverty not only does extreme poverty and unemployment make criminal conduct more tempting, but its concentration in certain neighborhoods tends to encourage law enforcement to focus its resources in those same communities. This tendency is only encouraged by police tactics such as “stop and frisk,” and “broken windows” deployed more frequently in Black and Hispanic neighborhoods than White ones.
Once arrestees reach the trial stage, 68 percent of those charged with felonies are convicted—59 percent of at least one felony, and the rest of misdemeanors. This includes 74 percent charged with car theft, 73 percent of driving offenses, 70 percent of murder, and 67 percent of drug trafficking, but only 45 percent of those charged with assault. Exoneration statistics indicate more Blacks than Whites are proved to have been wrongfully convicted. The National Registry of Exonerations reported that as of 2016, fully 762 prisoners incarcerated for the crime of murder had been released after being found to have been wrongfully convicted of that crime. Fifty percent of that number were Blacks and 36 percent were White. Blacks were more likely to be wrongfully convicted of killing Whites than Blacks—only 15 percent of the murder victims were White but they represented 31 percent of the wrongfully convictions. Meantime, 289 imprisoned for sexual assault were wrongfully convicted, 59 percent of them Black and 34 percent White. And for the 100 robbery cases, 62 percent of the wrongfully convicted were Black and 20 percent White.
Official misconduct was a common cause of wrongful convictions in murder cases, somewhat more frequently in convictions of Blacks than Whites—76 percent compared to 63 percent. Prosecutorial misconduct, often concealment of exculpatory evidence, was nearly as common in cases involving Blacks as Whites, but police misconduct, often witness tampering, was more common when the defendant is Black rather than White —39 percent versus 21 percent. For sexual assault cases, the most common cause of wrongful convictions is misidentification of the perpetrator who is stranger, 88 percent, and especially when the defendant is a Black male and the victim a White female—half of those misidentification exonerations. The net result—Black men convicted of raping White women are about 8 times more likely to be innocent than White males convicted of raping women of their race.
This study of exonerations represents all the wrongful convictions that were proven investigated and proved in the United States over a period of many years. How many other innocent defendants were wrongfully convicted over that span is unknown. But there is reason to suspect that the racial disparities would remain if we somehow uncovered all the wrongfully convicted. So there is considerable evidence the United States criminal justice system deserves it rather low ranking on the “no discrimination” category of its performance.
3.2. Civil Procedure
3.2.1. Civil Proceedings
At the outset, it is important to observe that in the United States, there are no “first instance” and “second instance” stages as is common in civil law jurisdictions. In the ordinary civil case there is only a single trial, which may be followed by an appeal, but an appeal confined to legal issues, not a retrial of the facts found by the judge or jury in the trial. If the appellate court finds there was legal error sufficient to potentially affect the verdict, it will remand the case for possible retrial in the trial court by a judge or by a brand new jury, not the jurors who heard the case the first time. The appellate court does not retry the case in the sense of resolving issues of fact differently than the trial judge or jury did. But in most jurisdictions, once the appellate judges decide the judge or jury heard legally inadmissible evidence or were erroneously denied the opportunity to hear some legally admissible evidence, it does evaluate the remaining evidence as to whether it is sufficient to sustain the verdict. If the answer is yes, the court will find the error “harmless” and uphold the verdict. If not, the case will be reversed and remanded for a potential new trial, should the plaintiff elect to pursue the action further.
3.2.2. Overview of Trial Court Procedure
The United States has a federal court system and fifty state court systems. The following overview seeks to capture the essence of the vast majority of those systems in their treatment of typical cases seeking financial damages and/or injunctive relief.
The case is initiated when the plaintiff files a complaint alleging all the elements of a cause of action which could be based on statutory or common law. The plaintiff must serve that complaint on the defendant as well as filing it with the court. The defendant must file a timely answer to the complaint which can deny the existence of one or more of the required elements of the cause of action and/or assert one or more affirmative defenses to the claim. If the defendant fails to file an answer within the allotted time, the plaintiff can apply to the court for a default judgment including evidence of the financial damage award to which he/she/it is entitled. The defendant can file a motion to vacate the default on grounds the complaint was not lawfully or timely served or for some other reason should be vacated in the interest of justice. Either the grant of a motion to dismiss or denial of a motion to vacate can be appealed to the court of appeal and therefore is subject to possible reversal.
If the plaintiff seeks injunctive relief instead of or in addition to financial damages, the complaint may be accompanied by a request for a preliminary injunction and even a request for an immediate temporary stay of the defendant’s offending conduct while the judge is considering whether to grant the preliminary injunction. In deciding whether to grant the immediate stay, the judge will consider the probability the plaintiff will prevail and the balance of harm—that is, whether the harm that will be prevented by granting the temporary stay or preliminary injunction substantially outweighs the harm the defendant will suffer if that temporary stay or preliminary injunction is granted. If the judge deems there is a strong probability the plaintiff will prevail ultimately AND the balance of harm also favors the plaintiff, the stay or later the preliminary injunction will be granted. Obviously, the judge will have far less evidence available as to both those issues when considering a request for an immediate temporary stay than when the parties appear and argue whether the judge should issue a preliminary injunction that may continue until the conclusion of the trial and the issuance or denial of a permanent injunction.
Some jurisdictions require that cases seeking damages below a certain dollar level must be submitted to mediation or “med-arb” (mediation followed by arbitration, if mediation is unsuccessful). Only if that phase is completed and fails to produce a result both sides are willing to accept, can the case proceed to trial in the courts. The arbitrators are usually private lawyers, sometimes paid and sometimes pro bono, who hear abbreviated presentations of the plaintiff and defense cases and try to mediate a resolution acceptable to both parties. If that proves impossible, and if arbitration is permitted, the same lawyer will issue a recommended result, usually in the form of a specific damage award or an outright dismissal. If the plaintiff considers that damage award inadequate, the case goes to trial. But if the plaintiff fails to win a verdict which exceeds the arbitrator’s award by a certain percentage, often 10 percent, the plaintiff will have to pay the defendant’s legal fees and costs for the court trial, payments not required in most cases because of the prevailing “American rule” mentioned above.
Returning to the process in the trial court, in many if not most cases the defendant will test the sufficiency of the complaint by filing a motion to dismiss (called a demurrer in some jurisdictions). This motion can be granted only if the facts alleged in the complaint are accepted as true, but are shown to be insufficient as a matter of law to make out a valid cause of action. If the court agrees with the defendant, it can dismiss the complaint outright or grant the dismissal with leave to amend, that is, allowing the plaintiff to file an amended complaint that cures the deficiencies in the initial version.
Once the complaint survives the dismissal motion, both sides enter the investigation phase—if they haven’t already. This includes free range searches for friendly fact witnesses, scientific and expert witnesses and the like. But in most if not all U.S. jurisdictions there also is the possibility of formal investigation of the opposing party’s witnesses, largely by conducting depositions of those witnesses where they can be examined—essentially cross-examined—about their knowledge of the facts of the case or, if expert witnesses, their opinions. These depositions, in turn, can be used at trial during the cross-examination of those same witnesses. They also can be useful in evaluating the strength or weakness of the examiner’s own case during pre-trial negotiations or settlement conferences with the opposing party.
During the investigation phase, there may be informal negotiations between the parties and many courts convene voluntary settlement conferences. Moreover, some systems empower courts to hold mandatory settlement conferences. But the next court hearing occurs when the defendant files a summary judgment motion. At this stage, both sides submit all their evidence in written form—affidavits from witnesses, scientific evidence, etc. The test here is whether, without making credibility judgments about the testimony in the affidavits, and construing the evidence most favorably to the plaintiff, the defendant has demonstrated the claim alleged in the complaint is not proven. Sometimes, the court decision is characterized as whether there remains a “triable issue.” If there is, summary judgment is denied, but if a review of the papers indicates no “triable issue” remains, the court grants summary judgment. Once again, the grant of a summary judgment is appealable. Whether the summary judgment is granted or denied, it often leads to further settlement negotiations between the parties—in part, because summary judgments are frequently reversed at the appellate level.
The trial stage itself is affected dramatically by whether one side or the other demands a jury trial. This requires a timely request and the tender of the jury fees. But in most U.S. jurisdictions is a constitutional or statutory right for the trial of most categories of cases. Jury service is a mandatory duty for all adult citizens, at least until a certain age, often 70, although individuals can be excused for designated reasons of temporary hardship and the like. If it is to be a jury trial, several steps are added to the trial process. The members of the jury must be selected from the pool of prospective jurors called for that trial. Typically the final jury will have twelve members, although a few states allow fewer in civil cases. Jury selection itself entails what can be a lengthy process as jurors are randomly placed in the box and then subjected to questioning by the judge and the lawyers for both sides—seeking to detect any bias each prospective juror might harbor. Each side can challenge a juror for cause, but the judge must agree the cause is justified and excuse the juror. In addition, however, each side also can exercise a defined number of peremptory challenges, which allows them to get rid of a juror without even revealing why. The jurors remaining in the box hear and decide the case. A rather strict set of rules determines what kinds of evidence they are allowed to hear and use in reaching their decision. Once both sides have presented all their admissible evidence, the lawyers deliver closing arguments. The judge must instruct them as to the relevant law, usually after conferring with the lawyers in what can be heated and lengthy meetings, since a lawyer who disagrees with a given instruction can include an erroneous instruction as a grounds for reversal in an ultimate appeal to the appellate court.
The jury then deliberates and decides, producing a verdict including the amount of financial damages, if any, they are assessing. In addition, to compensatory damages aimed at making up for the emotional and economic costs the plaintiff personally endured, in appropriate cases the jury can also award “punitive damages.” These damage awards are imposed as punishment for egregious conduct, often conduct that endangered the general public not merely the plaintiff who brought the action. Punitive damage awards are often many times larger than the compensatory damages the jury found sufficient to make the plaintiff whole, as much as fifty times or more the compensatory award. Appellate courts frequently reduce what they perceive as excessive punitive damage awards on the basis of the prohibition against cruel and unusual punishment found in the U.S. Constitution and the constitutions of many states as well.
3.2.3. Contingent Fees and Class Actions
Two features of the American legal system—not common elsewhere in the world—are relevant to this worldwide survey because sometimes low income litigants can receive representation from private practitioners on a compensated not pro bono basis and without government funding. That is, these fee systems incentivize private practitioners to handle cases on behalf of low income people for their own profit and without expecting any fee from those clients or the government.
The contingent fee system is as the name suggests, a fee contingent on winning the case. With the rarest of exceptions, contingent fee lawyers represent plaintiffs not defendants, with the vast majority in personal injury cases such as auto accidents, medical malpractice, product liability cases, and the like. If the lawyer loses the case, he/she receives no fee. If the lawyer wins, the fee is a percentage of the damages recovered from the defendant and is paid out of that recovery. In most U.S. jurisdictions the fee is 25 to 30 percent of the recovery should it be the product of a settlement and 40 up to 50 percent if it is won through a full blown trial. Under the general “American Rule” for the allocation of trial costs, the loser does NOT pay the winner’s legal fees, so should the contingent fee lawyer lose the case, neither the client nor the lawyer is responsible for reimbursing the winning defendant.
Although many thousands of low income Americans receive representation through contingent fee lawyers in categories of cases where substantial financial damage awards are available, cases where legal aid would have to provide that representation, if any were to be provided, in many other countries, it also is true many are turned away because the potential net recovery is too low to attract contingent fee lawyers to take the case. In part, that is because of the what is compensable when someone suffers a personal injury. The cost of treatment is one element of a damage award which is or should be the same for a poor victim as for a rich one—and ranges from something like a short-term cast on the arm to a lifetime in a wheelchair with a full-time attendant. Another, however, is dependent on a person’s income level, that is, the loss of income which again can range from a week off work to the inability to pursue one’s work or profession for years or even the rest of one’s life. The third major element of damages is the physical and emotional pain one suffers because of the injury. That should be the same for the poor as for the wealthy and can range from a pinprick to a lifetime of agony. The insurance industry has attempted through legislation, and with some success, to set a rather low cap on damages for pain and suffering, For people on welfare or social security or on a pension, as non-earners they have no loss of income. Some states have even imposed caps on the percentage the lawyers are allowed to receive. Moreover, some conduct which produces personal injury—medical malpractice, for instance—is expensive to research and prove. All of these factors can combine to make it economically impossible for a contingent fee lawyer to litigate. Nonetheless, contingent fee lawyers obviously remain a viable option for low and moderate income individuals who suffer significant personal injuries because those lawyers spend enormous sums on advertising—television ads in particular. As evidenced by the victims they feature, the prime target of these ads are the working class and the poor, not the executives and professionals whose lost earnings might yield multi-million dollar verdicts.
In recent decades, the federal government has enacted legislation allowing contingent fees paid out of the clients’ recoveries in social security disability cases where the agency’s denial of benefits is challenged before an appeals board or, if that fails, in an appeal to the federal courts. The statutory limit is set at 25 percent of the past benefits the social security appeals panel or the federal court deem to have been illegally withheld or $6,000, whichever is less. The lawyer can apply for more than $6,000 and, in unusual cases receive a 25 percent of recovery payment beyond that level. The social security administration pays that 25 percent directly (or $6,000) directly to the attorney, However, the attorney receives none of the future benefits the client becomes entitled to receive as a result of the decision. Several states have similar provisions allowing contingent fees out of the recipient’s recovery in certain of their government benefit programs. These provisions add to the legal representation available to clients beyond government-funded legal aid or lawyers willing to provide pro bono services—at least in these limited categories of cases.
Class action litigation can provide another source of representation for low income people, if but only if they are part of the class suffering injury through the conduct the action challenges. Occasionally, a class action will be filed on behalf of a group of people who are all or nearly all of low income—as when a low income community suffers from a toxic source polluting their area of a city. If successful, a class action could produce a large damage award to be distributed to class members compensating them for their past and present illnesses, and also to the removal of the source of the problem which would benefit them in the future. More typically, the class involved will be composed of a cross-section of a community or group of victims—with middle class people in the majority and lower income people just a part of the class. Still low income people can receive relief as part of the class, often for injuries they could not have challenged otherwise in the courts—and again without legal aid. Very often, the financial compensation they receive will be minimal, so their main benefit is the change in behavior the class action forces the defendant company or industry or government agency to undertake.
Class action lawyers generally are not compensated through receiving a percentage of the damages—indeed in many instances the relief comes entirely in the form of injunctive relief compelling a change in the defendant’s offending behavior. No, instead they apply to the court for a separate award of legal fees which, after a hearing, usually is granted in whole or in part and is paid by the losing defendant. But, except when the judge finds the plaintiffs’ case was frivolous, the defendant is not entitled to reimbursement of its legal fees which, if required, typically would be exacted from the plaintiffs’ counsel and not the class members.
3.3. Alternative Dispute Resolution
3.3.1. The compulsory diversion of disputes.
A. Federal Courts
In the United States there is widespread compulsory diversion of disputes to ADR mechanisms outside the formal judicial machinery. The first major impetus for using various forms of ADR in the federal court system came with the passage in 1990 of the Civil Justice Reform Act. That act required each of the 94 federal district (trial) courts to create plans to reduce cost and delay in civil litigation. The Act specifically identified ADR processes as valuable case management tools and placed the burden on each of the district courts to develop a program consistent with its culture. The programs take different forms in different courts, as each District court has created local rules that govern the manner in which their ADR program operates. The variety of processes adopted by the courts include:
- court-annexed mediation, where a neutral facilitates discussions between or among the parties to resolve the case;
- early neutral evaluation (ENE), where a subject matter expert evaluates the case for the parties in an effort to bring them to a resolution;
- court-annexed arbitration, where a neutral hears the parties’ arguments and issues a non-binding decision;
- summary jury or summary bench trial, where the parties learns make summary arguments to a jury or judge, and the decision-maker issues an advisory decision;
- settlement week, where a court establishes a week — setting aside courtroom space for parties who are ready for trial to use the space to mediate disputes with the aid of experienced mediators;
- special masters, where a judge, pursuant to Federal Rule of Civil Procedure 53 appoints a respected lawyer, former judge, academic, or magistrate judge to mediate.
Congress followed the Civil Justice Reform Act by passing the Alternative Dispute Resolution Act of 1998. The ADRA requires every federal district court to create an ADR program that offers at least one form of ADR to parties in civil cases. The ADRA permits courts to require litigants to participate in ADR but limits that authority to mediation and ENE. In addition to process choices, the ADRA permits courts to decide such issues as the qualifications and compensation of ADR neutrals. Many district courts have established panels of mediators (generally lawyers) who mediate cases in their courts. Often those neutrals must meet certain experience and training requirements. Some programs provide training for volunteer mediators. Others do not but require the volunteers to obtain training elsewhere. Some courts require parties to compensate the neutrals. Other courts provide that ADR services are to be provided gratis.
Some courts use existing judicial resources, in the guise of Magistrate-Judges, to mediate cases in their courts. A very few have a small administrative staff that recruits, trains, and supervises panels of (primarily) volunteer mediators to whom cases are referred by the court. There is generally no government subsidy of these programs, except to the extent that a program has dedicated staff — a minority of the existing programs. Most programs provide mediation free of cost to the litigants regardless of their economic station. A few programs in the federal system permit mediations to charge a low hourly fee.
In these programs, an agreement reached through mediation generally is reduced to writing and treated legally as a contract. Thus, if one of the parties decides that it is dissatisfied with the agreement, post-signing, a court generally would not go behind the agreement to permit the parties to re-litigate the matter, but would instead, review the agreement as it would any other contract.
In 1974, the Second Circuit Court of Appeal was the only federal appellate court with a Settlement Conference program. By 2005, with the adoption of a mediation program in the Federal Circuit, all thirteen federal circuit courts of appeal had adopted mediation or settlement conference programs. The operative authority for the programs is Appellate Rule 33. It was amended in 1994, with the most salient changes being:
- permitting courts to require clients to attend mediation sessions with their attorneys;
- requiring attorneys to consult with clients to obtain settlement authority;
- authorizing settlement as a topic during Rule 33 conferences;
- permitting telephone conferences; and
- authorizing non-judges to preside over conferences.
The thirteen programs differ in major respects. Most circuits employ attorneys who mediate the cases. In some circuits, senior federal judges or retired state judges serve as mediators for some of the program caseload. The only two circuits that use volunteer attorney mediators for some of their caseload are the District of Columbia and Federal Circuits. None of the programs mediate criminal cases.
B. State Court Use of ADR
It is beyond the scope of this paper to describe completely the use of ADR in the 50 state court systems (plus state courts in the District of Columbia and Virgin Islands). The use of ADR in state court systems is widespread. There are many state court systems (Florida, Texas and California are examples) in which a combination of state legislation and court rules has created statewide ADR systems. There are other states, such as Arkansas, Alabama and the Virgin Islands, in which ADR has made very few, if any, inroads. The great expansion of the use of ADR in state court systems began in the early to mid-1980s. Texas and Florida both had extensive state-wide systems by 1990. Since then, there has been both retrenchment and expansion, but the general trend appears to be expansion.
As with the federal courts, state courts have shown a strong preference for mediation as the process of choice. Also, as with the federal courts, the providers in court systems tend to be mediators external to the court system — private mediators who volunteer in some systems, and who are on panels that are paid for their mediating in other systems.
State court appellate mediation programs also have seen substantial expansion in the past thirty years. The programs have been established through both legislation and court rule. Common characteristics are:
- the parties’ participation is mandatory
- either the Court or the parties can initiate an ADR provers
- almost all of the programs have had a positive impact on the court
- the programs have produced significant numbers of settlements.
C. The voluntary or consensual diversion of disputes.
There are a number of vehicles through which parties can gain access to practitioners of ADR for the resolution of their disputes. This paper will list a few important examples. Some federal administrative agencies, such as the Equal Employment Opportunity Commission (EEOC) offer mediation to some of those who file discrimination complaints. The EEOC has staff who offer conciliation, and rosters of volunteer mediators in some field locations.
FERC, the Federal Energy Regulatory Commission, has mediators on staff who regularly mediate among stakeholders in energy-related matters. Two major electricity markets, PJM Interconnection and MISO, which, taken together manage the market for electricity in 28 states, the District of Columbia and Manitoba, Canada, each employ mediation and arbitration to resolve disputes between and among members of their respective organizations.
In implementing the Individuals with Disabilities Education Act (IDEA), many states created mediation fora in which advocates and school personnel could resolve issues related to the appropriateness of education plans for students with disabilities. The Act contained two principles that made the use of mediation particularly useful: that parents (and their advocates) had a right to participate in the development of an education plan for their child, and the principle that every child deserved an individual education plan tailored to address her or his particular set of disabilities.
Many states in which agriculture is a major portion of the economy have created farmer-lender mediation programs to help resolve disputes over farm credit.
Many states have a network of community mediation centers (CMC) that offer low or no-cost mediation to individuals in their locales. There may be as many as 300 CMCs spread across the US. Some states, such as New York, provide funding to centers through the diversion of court filing fees. Other CMCs are forced to rely heavily on contributions from users and the general public. A typical CMC would have a relatively small staff, and a larger roster of volunteer mediators. The disputes brought to the CMCs are largely interpersonal but might involve anything from neighbors disputing a boundary line to divorce.
Non-profit organizations such as the American Arbitration Association (AAA) and The International Institute for Conflict Prevention and Resolution (CPR) maintain rosters of neutrals available for use by the public. CPR, an organization that brings together corporate general counsel and the law firms providing legal services to them, created two policy statements for its members in 1982. One policy statement was designed to be adopted by corporations, and the second by law firms. The Corporate Policy Statement read in part:
In the event of a business dispute between our company and another company, which has made or will then make a similar statement, we are prepared to explore with that other party resolution of the dispute through negotiation or ADR techniques before pursuing full-scale litigation.
The policy statement for law firms contained similar thoughts, but also obligated the firm adopting the pledge to provide sufficient training in ADR for firm lawyers so that they could advise their clients on its use in a dispute. CPR now maintains a roster of neutrals, who, for a fee will conduct mediations or arbitrations.
Perhaps the largest for-profit provider of neutrals in the United States is JAMS, Inc. JAMS has offices in 28 locations, primarily in the US, but also in Canada and the United Kingdom. There are approximately 300 full-time, professional neutrals on the JAMS panel. They offer a range of dispute resolution services, focused primarily on mediation and arbitration.
D. Policy drivers behind the development of ADR
There are many reasons why ADR may make sense. Among the most oft-cited reasons are:
- speed and efficiency in resolving a case
- preserving relationships among the disputants
- preserving scarce court resources by moving to ADR those cases that can be resolved without judicial intervention, thus helping to eliminate court backlogs
- providing a forum for those of limited economic means with a way to resolve their disputes without having to rely on (expensive and scarce) lawyers and judges.
Much of the impetus for the development of ADR programs in US courts came from a speech given by then Harvard Law School Professor Frank Sander at the 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. That speech spurred US Attorney General Griffin Bell to establish an office in the US Department of Justice Office for Improvements in the Administration of Justice, and prompted the funding of the first Neighborhood Justice Centers in the US. There was much focus at the 1976 Pound Conference on issues of cost, delay and the general inaccessibility of adjudication. There was at the same time, however, a focus on whether adjudication was the best way of resolving all disputes for all parties. The tension between efficiency and the quality of outcomes for the parties involved remains a live topic.
3.4. Simplification of law and by-passing legal processes
The term “simplification of the law” has two possible connotations—simplifying the language in which the law is expressed or removing one or more of the elements of the law which the parties must dispute in order to decide the dispute. It is the latter which this section addresses. Sometimes the removal of an element in dispute is accompanied by the creation of a new forum outside the courts to decide the remaining issues, while sometimes the stripped down cases remain within the court system. We begin with an example of the first—workers’ compensation cases which now are decided outside the regular court system by workers compensation boards or agencies.
A. Workers compensation system and tribunals
Before the creation of workers’ compensation systems in most if not all U.S. jurisdictions, cases involving injuries in the workplace were treated as regular tort cases with the usual causes of action and defenses in place. Fault and liability issues were complex and often difficult to prove, especially when one employee’s negligence caused another employee’s injury. In jurisdiction after jurisdiction, the tort system approach was abandoned, along with the element of fault, and compensation for injuries in the workplace was placed on a no-fault insurance basis. Employers paid into an insurance fund and disputes over the remaining issues of whether and how much compensation should be awarded assigned to newly created workers’ compensation tribunals. Initially, procedures were so simple it was assumed the employees would not need lawyers. Over time, however, in most if not all jurisdictions both sides have found a need to have legal representation, at least, in the more serious cases which can involve years or even a lifetime of financial support for the injured employee. Indeed in some states, the volume of workers comp cases is so large that an “applicants’ bar” has developed, lawyers and even whole law firms that specialize in representing employees applying for payments from the workers’ compensation tribunal. Elsewhere it tends to be a part of the practice for plaintiffs personal injury lawyers, who spend the bulk of their time in the regular courts. But either way, the lawyers usually work on a contingent fee basis, capturing a percentage of the payments they recover for their clients, but receiving nothing if they lose.
B. No fault divorces still in the courts
Before “no fault” divorce laws were enacted, one of the divorcing couple had to prove the other had committed one or more of a list of wrongs—adultery, physical abuse, abandonment, or the like. This was true even if both sides wanted a divorce and no one had actually committed one of those acts. Proof of many of these grounds for divorce was often technical and complicated and, moreover, sometimes had consequences for the offender. When it came time to decide issues such as the amount of spousal support and child custody, the spouse found guilty of adultery or abuse or abandonment, etc. would often suffer when the judge issued the judgment. Couples who simply had a mutual desire to divorce and get on with their lives were often forced to choose a grounds that wouldn’t adversely affect the judgment for either of them, and then create phony facts to “prove” those grounds existed. In many if not most American states, this pattern ended with the passage of “no fault” divorce statutes. Under these laws, not only was it possible for one or both parties to secure a divorce without accusing the either spouse of any wrong-doing, but any fault that might have existed was irrelevant to decisions about support, child custody, etc. No fault required and no consequences if there was fault.
What was left were the decisions about child custody, financial support for children and for the spouse who lacked any or significant earned income, and related issues. Divorce court became family law court. In many states, one side or both are unrepresented in 80 to 90 percent of cases. With lower income couples, except for the rare case where a legal aid lawyer has time to represent one of the parties, usually a mother, neither side is represented by counsel. For these and other reasons, many family courts have made adjustments to the usual adversary model that relies so heavily on lawyers. Over the past few years, many jurisdictions have opened “self-help assistance centers.” These centers are usually located in the courthouse and staffed by trained paralegals who help prepare pleadings and often offer video tutorials that provide rudimentary portrayals of what to expect in the courtroom. But this was seldom enough unless the help for unrepresented part is was coupled with an activist judge, one who took primary responsibility for asking questions and ferreting out the relevant facts, resembling a the inquisitorial role of judges in civil rather than common law courts.
This model appears to work better — and certainly with less criticism—when both sides are unrepresented by lawyers than when one side is and the other isn’t. In the latter cases. Judges often find them in a quandary when, for instance, a lawyer objects to the admission of some piece of evidence which could become admissible if the other side built a foundation for its admission, usually by asking a few questions or making an argument. If the judge intervenes and provides the needed foundation or simply admits the evidence without foundation because he/she knows it would be if the unrepresented party knew what to do, the lawyer likely feels offended. Especially if that or a comparable scenario is repeated often or even fairly often, the judge’s reputation within the bar can suffer greatly—along with his chances of promotion and even reelection in the many states where judges must face re-election every few years.
Some state judicial systems have made deliberate efforts to change the culture at least in family law courts. Through court rules and educational sessions, they have attempted to alter the judges’ perception of their role from that of a referee between two adversaries to that of a decision maker committed to surfacing all the relevant facts that might contribute to a sound decision. This includes asking pertinent questions and seeking the production of evidence that one side or the other failed to offer—either through lack of legal knowledge or deliberate concealment. How much these efforts to modify the way judges conduct proceedings in family court have succeeded has not yet been verified. Especially given the huge volume of cases most family courts are required to decide, the pressures to process them quickly acts as a counterweight to any procedural changes that tend to lengthen those trials—even changes which lead to more accurate and just outcomes.
4. ACCESS TO JUSTICE, EQUAL ACCESS TO COURT AND FAIR TRIAL
There have been many studies about access to justice and civil legal services. For example, in 2017, a study by the Legal Services Corporation (LSC) found that 86% of the civil legal problems reported by low-income Americans in a given year receive inadequate or no legal help. According to the American Bar Association, “[m]ost people living in poverty, and the majority of moderate-income individuals, do not receive the legal help they need.” It is estimated that in the state courts at least one party is self-represented in approximately three quarters of civil cases. Another estimate indicates that more than 30 million people per year appear without legal representation in America’s state courts, handling matters on their own that result in court orders determining such things as where they can live and when they can see their children.Without legal assistance, these litigants are at risk of suffering dire consequences for their families, their homes, and their livelihoods.
In 1974, the Legal Services Corporation was created by Congress to provide civil legal; assistance to low-income people. In 2018, LSC provided some legal assistance to one, 8 million people in households but, as the study above shows, this is far short of those with legal needs who are eligible for services.
While there is a right to counsel in felonies (Gideon v. Wainwright 372 U.S. 335 (1963)), delinquency cases involving juveniles (In re Gault, 387 U.S. 1 (1967)) and misdemeanor prosecution of adults (Argersinger v. Hamlin, (1972)) the promise of Gideon has not been achieved. Accused persons who are unable to afford counsel do not receive the same somewhat competent, well-supported, conscientious lawyer every person of financial means seeks to retain when charged with criminal conduct and faced with a loss of liberty.
Unlike criminal cases, in the United States, there is no general right to state-funded counsel in civil proceedings. See Lassiter v. Department of Social Services, 452 U.S. 18 (1981) and Turner v. Rogers, 564 US 431 (2011)
However, state courts and state statutes or court rules, as well as some federal statutes, have provided the right to counsel in several categories of cases including termination of parental rights, adoption, and other areas.
Recently, several cities have adopted a right to counsel in eviction proceedings including New York City, San Francisco, Cleveland, Los Angeles and Philadelphia. Newark adopted a right to counsel law but has not yet funded it. DC has an extensive and well-funded program to represent low-income tenants.
Neither the federal government nor state governments have definitive responsibility for access to justice policy. 
A. Federal Access to Justice Activity
Launched in 2010 and closed in April 2018, the U.S. Department of Justice’s Office for Access to Justice (ATJ) served as the primary office in the Executive Branch focused on legal services for low-income and vulnerable individuals. Under Attorney General Sessions, the U.S. Department of Justice’s Office of Legal Policy (OLP) assumed the principal policy and legislative responsibilities of ATJ, including staffing the Legal Aid Interagency Roundtable (LAIR).
LAIR, which includes 22 federal members, works to raise awareness about the profound impact legal aid programs can have in advancing federal efforts to promote access to health and housing, education and employment, family stability and community well-being. The goal is to maximize federal program effectiveness by integrating legal aid providers as partners, grantees or sub-grantees in federal safety-net programs when doing so can improve outcomes. Since 2012, LAIR has worked to inspire collaborations that increase access to justice and improve outcomes for vulnerable and underserved people. NLADA’s Civil Legal Aid Initiative, with support from the Public Welfare Foundation and the Kresge Foundation, has undertaken work to complement the federal activity coming out of LAIR.
On September 24, 2015, President Obama issued a Presidential Memorandum formally establishing the White House Legal Aid Interagency Roundtable and explicitly expanding its mission to “advance relevant evidence-based research, data collection, and analysis of civil legal aid and indigent defense, and promulgate best practices.” Ambassador to the United Nations Samantha Power announced the Presidential Memorandum on the eve of the adoption of the United Nations’ historic 2030 Agenda for Sustainable Development. The Memorandum expands the number of participating agencies, urges these agencies to accelerate and deepen their commitment to legal aid, and directs them to assist the United States in the implementation of Goal 16 of the 2030 Agenda. In November 2016, The Department of Justice issued to President Obama the first annual report of the White House Legal Aid Interagency Roundtable (WH-LAIR), Expanding Access to Justice, Strengthening Federal Programs.
On May 20 – 21, 2015, the ATJ and National Institute of Justice, in collaboration with the National Science Foundation, hosted a Civil Legal Aid Research Workshop. The workshop—a first of its kind—was designed to help create a civil legal aid research agenda and identify federal priorities on civil legal aid for the conveners and the WH-LAIR.
In addition to LAIR and the development of a civil research agenda, ATJ led an effort to expand and raise the visibility of Access to Justice Commissions around the country. ATJ collaborated with the Office of Child Support at the Department of Health and Human Services (HHS) to disseminate and support best practices with respect to access to legal services and self-help assistance for low-income individuals in child support proceedings. ATJ promoted research on the Delivery of Civil Legal Aid by collaborating with the Stanford Center on the Legal Profession, the Harvard Program on the Legal Profession, and the American Bar Foundation—in an effort to develop a broad research agenda and plan for a sustainable infrastructure to support the research. ATJ organized a White House “Champions of Change” event in 2011 to honor and recognize the work of 16 leaders who dedicated their professional lives to closing the justice gap in America. In addition, working with the White House and the Office of the Vice President, ATJ helped launch the Access to Justice for Victims of Domestic Violence Project, an effort to create a pool of lawyers with expertise in providing comprehensive legal representation to domestic violence victims.
B. Legal Services Corporation (LSC)
In 1974, Congress passed and the President signed the Legal Services Corporation Act, the comprehensive legislation to make permanent the legal services program started under the Economic Opportunity Act. The LSC Act was reauthorized in 1977, but has not been reauthorized since.
LSC is neither a federal agency nor a government-controlled corporation, but a nonprofit corporation established with the powers of a District of Columbia corporation and those provided by the LSC Act. The President of the United States appoints a bipartisan eleven-member board that must be confirmed by the Senate. Board members serve in a volunteer capacity, are not Executive branch employees and, under the LSC Act, cannot be fired by the President. Board members serve for three-year terms but hold over at the conclusion of their terms until new board members are qualified, i.e. confirmed by the Senate. The Chair of the board is chosen by the board, not by the President. The LSC board also appoints a president for LSC as well as certain key officers of the Corporation who serve at the pleasure of the board. The LSC president appoints the remaining members of the LSC staff. The LSC president and staff are not federal employees.
Unlike many federal agencies or government corporations, the LSC president administers the Corporation, making all grants and contracts. The LSC board does provide general oversight of LSC, makes broad policies, and promulgates the rules, regulations and guidelines governing LSC and the legal services grantees it funds. The board also submits its budget mark directly to Congress. The board generally meets at least four times a year for two days, with additional conference call meetings in between.
LSC funds 132 grantees that operate local, regional or statewide civil legal assistance programs with 855 offices throughout the country. Generally, one field program provides legal services in a designated geographic area. In addition, LSC, with Congressional approval, has earmarked funds for migrant and Native American grants for specialized programs that deliver services to these populations. All legal services programs are private, nonprofit entities, independent of LSC. All LSC grantees are governed by boards, which consist of 60% attorneys and one-third eligible clients. By LSC regulation, all programs must expend 12.5% of their basic LSC grant on the involvement of private attorneys in the delivery of legal services.
For more detailed information about LSC, including comprehensive annual reports, budget requests to Congress, detailed fact books, regulations, laws and other critical information see www.lsc.gov.
C. State Access to Justice Activity
There is an evolving effort to create in every state a comprehensive, integrated statewide delivery system, often called a state justice community. These delivery systems include LSC and non-LSC providers, pro bono programs and initiatives, other service providers including human service providers, pro se initiatives, law school clinics, and key elements of the private bar and the state judicial system. In theory, these state justice communities seek to ensure easy points of entry for all low-income clients, ensure coordination among all institutional and individual providers and partners, allocate resources among providers to ensure that representation can occur in all forums for all low-income persons, and provide access to a range of services for all eligible clients no matter where they live, the language they speak, or the ethnic or cultural group of which they are a member.
One of the most effective ways to develop, expand, and institutionalize comprehensive, integrated state systems for the delivery of civil legal aid is through the establishment of state Access to Justice Commissions. Today, there are 41 active commissions. They are conceived as having a continuing existence, in contrast to a blue-ribbon body created to issue a report and then sunset. They have a broad charge to engage in ongoing assessment of the civil legal needs of people in the state and to develop, coordinate, and oversee initiatives to respond to those needs. In a few states, Access to Justice Commissions have existed for a decade or more, including the Washington State Access to Justice Board, the California Access to Justice Commission, and Maine’s Justice Action Group.
Access to Justice Commissions carry out a number of activities:
- Funding for civil legal aid: Increasing state legislative funding (appropriations and legislatively enacted filing fees add-ons), funding from changes in court rules/statutes (e.g., pro hac vice fees and cy pres distributions) and private funding from foundations, the bar and the general public. Many states run public relations and public outreach campaigns as part of fund raising initiatives.
- Developmental Activities: Undertaking state legal needs and economic impact studies, convening public forums across a state, developing strategic plans for access to justice and holding access to justice seminars and conferences on general and specific topics (e.g. law schools, technology).
- Self-represented litigation: simplification of court processes and forms; developing court-based self-help centers; producing educational programs, handbooks and materials; changes in the Code of Judicial Conduct; increasing language access; and cultivating partnerships with public libraries as points of access to legal assistance.
- Best practices for administrative agencies, strategic plans and recommendations have also been developed to guide future endeavors.
- Pro bono initiatives: implementation of Supreme Court recognition programs, mentorship and training programs, retiring and retired lawyer programs, specialized pro bono programs, regional committees, and rule and policy changes to support pro bono work.
- Limited scope representation: formulating or amending rules of professional conduct or rules of procedure, and developing and providing educational resources.
- Legal aid delivery initiatives: expanded uses of information technology, remote video conferencing, triage approaches, portal projects, legal incubator programs, disability access initiatives, addressing racial disparities, mediation and ADR initiatives, legal answers websites, court based vacillators/navigators and limited licenses for non-lawyers and legal technicians.
- Law school and legal profession efforts: new law school initiatives, pro bono admission requirements for graduation, implicit bias training, poverty simulations, and proposals to add questions about access and poverty law to bar exams.
The ABA Resource Center for Access to Justice Initiatives produced a new report released in August of 2018, entitled Access to Justice Commissions: Increasing Effectiveness Through Adequate Staffing and Funding by Mary Flynn which is a comprehensive review of the 40 Access to Justice Commission, their funding, creation, structure, activities and staffing. The report finds that: broad, active stakeholder involvement increasers the impact of access to justice commissions; professional staff plays a key role with effective commissions; the Conferences of Chief Justices and individual justices have played a key role in expanding access to justice commissions; the support of the legal aid community is extremely valuable for successful commissions; and private philanthropy has strategically nurtured the expansion of commissions. It also includes best practices recommendations including: seeking out a diverse set of funding sources and have a minimum staffing level.
An example is the DC Access to justice Commission. In 2019, the Commission released Delivering Justice: Addressing Civil Legal Needs in the District of Columbia. The report documented the evolution of civil legal needs and services in the District over the 10 years since the publication of the Commission’s 2008 report, Justice for All? An Examination of the Civil Legal Needs of the District of Columbia’s Low-Income Community, and included strategies for increasing access to justice in the future.
D. Justice for All Project
In November 2016, the National Conference of State Courts and the Public Welfare Foundation announced that grants were awarded to seven states under the Justice for All project, which is supported by the Public Welfare Foundation and housed at the National Center for State Courts. The grants will support each state grantee in forming partnerships with all relevant stakeholders in the civil justice community and beyond to develop state assessments and strategic action plans in order to implement Resolution on 100% access to justice. Mary McClymont, president of the Foundation, stated: “The goal is to build a coordinated and integrated continuum of services with the user in mind —people with essential civil legal needs, especially those who cannot afford lawyers. The grants will help states bring together all civil justice stakeholders to determine the most effective ways to deliver those services.” The seven grants are to Alaska, Colorado, Georgia, Hawaii, Massachusetts, Minnesota, and New York. The Justice of All Strategic Planning Guidance, issued in August of 2016, identifies the basic services, which need to be available to all if 100% access is to be provided
Since 2017, the seven Justice for All awardee states worked with a variety of traditional and non-traditional civil justice stakeholders to develop a strategic action plan for state civil justice systems where everyone can get the legal information and help they need, when they need it, and in a form they can use to protect their families, homes and livelihood. Each state inventory assessment and strategic action plan identified targeted areas of action with the potential to significantly improve the accessibility and fairness of state justice systems.
These efforts will embrace new partners with a stake in ci justice reforms and will explore a continuum of meaningful and appropriate services to help people obtain effective assistance. They include: • Creating a housing pilot in a gateway city to achieve housing stability for households facing eviction before eviction complaints are filed in court (Massachusetts); • Integrating libraries as legal resource centers (New York and Georgia); • Developing robust web portal content, design, and supports (Minnesota); • Instituting targeted litigant supports (plain language forms, simplified procedures, etc.) in debt collection cases (Alaska); • Creating a consumer debt pilot in a large city to help consumers avert financial crisis or navigate successfully through such a crisis before or after debt collection cases are brought (Massachusetts); • Convening and training non-traditional civil justice stakeholders to expand and strengthen justice related capacity and partnerships (Alaska and Hawaii); • Creating an inter-agency roundtable to better identify, align, and leverage existing resources (Hawaii); • Using business process and user design concepts to strengthen referrals and triage, resource integration/alignment, and improved community outreach (Colorado). Awardee states will pursue their implementation pilots throughout 2018 and evaluate how their efforts significantly improved the fairness and accessibility of state civil justice systems
The Conference of Chief Justices passed Resolution 3, Expanding Meaningful Justice for All, at their 2018 mid-year meeting. The Resolution explicitly supports the Justice for All project and encourages all states to undertake a strategic planning process to close their access to justice gaps.
The National Center for State Courts also prepared Lessons from the Field document that contains a link to the state plans and summarizes main themes from the plans.
Recently, seven additional states were added: four more in 2018(New Mexico, Montana, Florida and Kentucky) and three in 2019 (Illinois, Michigan and Louisiana).
E. Scholarly Debate
The US now recognizes that its system should have 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.  NLADA received funding for and has developed a resource library of prior and ongoing delivery research. See www.legalaidresearch.org.
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 closed. It is not yet clear that the US will be able to find government funding for such an entity.
LSC raised private funding for and has recently established an Office of Data Governance and Analysis, which now has six analysts. During its first year, the Office e worked on a range of projects, which focused on cleaning up and posting LSC administrative data. They also set up a data users group made up of program staff from different legal services across the country to help build capacity in the field. They were involved in the release of a new Justice Gap report and are preparing to release a catalogue of maps related to civil legal issues. They are in the process of building a new data access page on the website, so that researchers have easy access to GAR data, Justice Gap data and other resources.
President Obama’s budget requests in 2015, 2016 and 2017 included $2.7 million for civil legal research to be managed by the National Institute of Justice in cooperation with Department of Justice’s Access to Justice Office. That would have been the first time that the federal government invested in delivery research on civil legal aid since the demise in 1981 of the Research Institute at LSC. Congress did not fund these requests.
On July 23, 2018, the National Science Foundation (NSF) announced a new award to promote AtJ scholarship, naming Rebecca Sandefur principal investigator, and Alyx Mark & David Udell co-principal investigators. According to NSF, “this project will consist of a census-style survey of academic disciplines engaged in access to justice scholarship and an intensive workshop. It is designed to build a research field and an evidence base by identifying emerging access to justice researchers, coordinating collaboration across academic disciplines, and producing a research agenda and original scholarship to give access to justice research the vigor and definition of a field.”
Rebecca Sandefur from The American Bar Foundation has recently secured funding from The JPB Foundation to launch an Access to Justice Scholars Program. It offers mentorship and support to five junior faculty and one postdoc as they conduct research and grow the field. The program also has an opportunity for senior faculty to mentor the junior faculty.
F. The Justice Lab
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. The Centers and Institutes at Georgetown University Law Center generate ideas through research and scholarship, engage students with real-world learning opportunities, and build bridges to the city, nation and world. The Justice Lab works to:
- Provide strategic planning and other technical assistance to access to justice commissions, courts, and other entities committed to addressing the civil justice gap;
- Promote the growing role of digital and other technologies to support legal aid agencies and provide self-help legal resources to unrepresented people;
- Undertake empirical research to produce actionable data on unmet legal needs and approaches to address them;
- Design and test new approaches for expanding access to justice services; and
- Serve as resource for legal aid agencies and courts seeking to build access to justice technologies.
The Lab has undertaken pioneering work on, among other things, the creation of an affordable law firm model; the development of technology apps; and research on the use of lay/nonlawyers navigators in the state courts to provide legal help to unrepresented litigants. All are innovations to address the civil justice crisis. The Justice Lab is co-directed by Tanina Rostain, Professor, and Sheldon Krantz, Adjunct Professor. Mary McClymont is Senior Fellow and Adjunct Professor.
G. Access to Justice Lab
The Access to Justice Lab at Harvard Law School was founded in July 2016 thanks to the generous support of the Laura and John Arnold Foundation. The Arnold Foundation’s core objective “is to address our nation’s most pressing and persistent challenges using evidence-based, multi-disciplinary approaches.” The Lab is housed within the Center on the Legal Profession (CLP) at Harvard Law School, which seeks to make a substantial contribution to the modern practice of law by increasing understanding of the structures, norms and dynamics of the global legal profession.
The Access to Justice (A2J) Lab’s vision is that lawyers, judges, and legal policymakers have access to and use credible data to make the justice system better serve individuals and families who cannot afford to hire lawyers. By demonstrating to legal professionals the value of using rigorous data about how the justice system works, the lab can transform law into an evidence-based field to improve outcomes for everyone.
A research center at Harvard Law School, the A2J Lab designs and implements randomized control trials (RCTs) to create gold-standard research to provide answers to critical questions in access to justice. This approach generates the data that legal professionals and policymakers require to evaluate proposed solutions and shows them the value of utilizing empirical research. The A2J Lab:
- Builds coalitions to ask hard questions, identifies barriers to access, and proposes solutions. The A2J Lab creates diverse research coalitions with a particular emphasis on including judges and lawyers. With a national focus, the team is currently exploring, developing, and implementing studies in over twenty states.
- Designs and fields randomized experiments to learn which interventions succeed. Every one of the A2J Lab’s studies includes a field RCT as its backbone. Using a ten-step process, the A2J Lab’s staff collaborate with field partners to design and implement RCTs in the justice system from conception to launch.
- Shares data transparently and creates actionable lessons about how to make the justice system work better for everyone. The A2J Lab generalizes data into actionable lessons and best practices to allow field partners and their peers to make adjustments on the ground. By training legal professionals in quantitative research methods and partnering with law schools to integrate field research into legal education, the A2J Lab equips scholars and the next generation of practitioners to transform law into an evidence-based profession.
A major new publication “Access to Justice,” (the Winter 2019 issue of Dædalus, the Journal of the American Academy of Arts and Sciences), is a multidisciplinary examination of this crisis, from the challenges of providing quality legal assistance to more people, to the social and economic costs of an often unresponsive legal system, to the opportunities for improvement offered by new technologies, professional innovations, and fresh ways of thinking about the crisis. Guest editors were Lincoln Caplan (journalist and author; Yale Law School), Lance Liebman (Columbia Law School; Academy Member), and Rebecca L. Sandefur (University of Illinois at Urbana-Champaign; American Bar Foundation; 2018 MacArthur Fellow).
This issue of Dædalus is part of a larger, ongoing effort of the American Academy to gather information about the national need for improved legal access, study innovations piloted around the country to fill this need, and advance a set of clear, national recommendations for closing the justice gap — between supply and demand for services provided by lawyers and other problem-solvers. Access to Justice features the essays discussed in Appendix 1.
5. LEGAL AID SYSTEM
5.1. History of Legal Aid
Prior to sustained, institutionalized efforts to provide legal aid to the poor, organizations and individual lawyers provided legal assistance to those who could not afford an attorney. The Freedman’s Bureau (1865-1872) provided legal assistance in civil cases, such as debt collection, domestic violence, divorces, and labor contracts. Nineteenth-century women’s clubs and settlement houses developed a holistic approach to legal assistance for working women. For example, in Chicago, the Protective Agency for Women and Children (PAWC) pioneered an especially expansive model of legal aid. Like its counterparts in other cities, PAWC handled wage claims, but it also helped women with a range of other issues: domestic violence, sexual assault, household debt, spousal abandonment, and even, although only in extreme circumstances, divorce.
Sustained efforts to provide civil legal assistance for poor people in the United States began in New York City in 1876 with the founding of the German Immigrants’ Society, the predecessor to the Legal Aid Society of New York. In 1889 the Society’s outreach was extended to all low-income New York residents, and its role expanded from serving individual clients to engaging in legislative advocacy. Its once-narrow focus grew into a new mission: to promote measures for the protection of all individual poor people.
Over the years, the legal aid movement caught on and expanded into many urban areas. Between 1920 and 1930, 30 new legal aid organizations were created. Annual caseloads increased from 171,000 in 1920 to 307,000 in 1932. By 1965, virtually every major city in the United States had some kind of legal aid program, and the 236 legal aid organizations employed more than 400 full-time lawyers with an aggregate budget of over $5 million.
In 1919, Reginald Heber Smith, a young Harvard Law School graduate who had become Director of the Boston Legal Aid Society, received a grant from the Carnegie Foundation to research the current legal system and its effect on the poor. Smith wrote Justice and the Poor, a book that challenged the legal profession to ensure that access to justice was available to all, without regard to ability to pay. “Without equal access to the law,” he wrote, “the system not only robs the poor of their only protection, but it places in the hands of their oppressors the most powerful and ruthless weapon ever invented.” The American Bar Association (ABA) responded to Smith’s call in 1920 by devoting a section of its 43rd annual meeting to legal aid and by creating the Standing Committee on Legal Aid, later changed to the Standing Committee on Legal Aid and Indigent Defendants (SCLAID), to ensure continued ABA involvement in the delivery of legal assistance to the poor. Many state and local bars responded by sponsoring new legal aid programs.
A. Civil Legal Aid
In the United States, there is no general right to state-funded counsel in civil proceedings. The United States Constitution does not provide an explicit right to state-funded counsel in civil proceedings, although the Fourteenth Amendment does prohibit a State from depriving “any person of life, liberty, or property, without due process of law” or denying “to any person within its jurisdiction the equal protection of the laws.” Unlike Gideon v. Wainwright, 372 U.S. 335 (1963), in which the United States Supreme Court held that there must be counsel in criminal cases in which the defendant faces imprisonment or loss of physical liberty, the Court refused to find a constitutional right to counsel in civil cases when first faced with the issue in 1981. In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the Supreme Court held in a 5-4 ruling that the due process clause of the federal constitution did not provide for the guaranteed appointment of counsel for indigent parents facing the termination of parental rights. Rather, “the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings is to be answered in the first instance by the trial court, subject, of course, to appellate review.”
This basic framework was continued in 2011 when the Supreme Court decided Turner v, Rogers, 131 S.Ct.2507 (2011), which held that a parent jailed for civil contempt due to failure to pay child support is not categorically entitled to counsel when (1) the state provides other procedural safeguards; (2) the contemnor’s opponent is neither the state nor represented by counsel; and (3) the matter is not “unusually complex.” The court also determined that there is not a presumption in favor of counsel when physical liberty is at stake. However, the Court did hold that the state must provide four safeguards to ensure due process. These were: (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.
No state constitution explicitly sets out a state-funded right to counsel in civil cases. Virtually all state constitutions have due process and equal protection clauses whose wording may differ from the federal constitution but whose scopes have often been interpreted to be similar to or even broader than the federal constitution’s provisions.
Thus, in the vast majority of civil cases, there is no constitutional or statutory right to state-funded counsel.
However, as noted in Section 4, State courts and state statutes or court rules, as well as some federal statutes, have provided the right to counsel in several categories of cases including termination of parental rights, adoption, and other areas.
In the early 1960s, a new model for civil legal assistance for the poor began to emerge. This model was influenced by the “law reform” efforts of organizations such as the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund and the American Civil Liberties Union (ACLU), which had successfully used litigation to produce changes in existing law. In addition, private charitable foundations, particularly the Ford Foundation, began to fund legal services demonstration projects as part of multi-service agencies, based on a philosophy that legal services should be a component of an overall anti-poverty effort. This new model also called for the programs’ offices to be located in the urban neighborhoods where the majority of the poor resided, rather than in downtown areas where many of the legal aid societies of the time were located, far removed from their client populations. Mobilization for Youth in New York, Action for Boston Community Development, the Legal Assistance Association in New Haven, Connecticut, and the United Planning Organization in Washington, D.C., were among the earliest legal services programs of this type.
These delivery models lacked a cohesive conceptual framework until legal services advocates Edgar and Jean Cahn wrote a seminal article in the 1964 Yale Law Journal entitled “The War on Poverty: A Civilian Perspective.” They argued that neighborhood law offices and neighborhood lawyers were necessary for an effective anti-poverty program because they provided a vehicle for poor residents in local communities to influence anti-poverty policies and the agencies responsible for distributing benefits.
In 1964, Congress passed the Economic Opportunity Act, the beginning of President Johnson’s War on Poverty (Economic Opportunity Act of 1964, Pub. L. No. 88-452, 78 Stat. 508). The Act established the Office of Economic Opportunity (OEO), which administered the Administration’s anti-poverty programs. For the first time, Congress made federal money available for legal services for the poor.
In order to establish a federal financing niche as part of the War on Poverty, several critical sources of support needed to emerge and coalesce: a commitment from the OEO leadership to include legal services in the services OEO would fund; support for legal services from the organized bar at the national level; encouragement for legal services programs at the local level; and implicit Presidential and Congressional support.
In late 1964 and early 1965, those elements of crucial support began to converge. Jean and Edgar Cahn convinced Sargent Shriver, the first director of OEO, to include legal services in the package of activities that could be funded by the agency, since legal services was not mentioned in the original Act. In 1966, civil legal services was added to the Economic Opportunity Act Amendments of 1966 and was made a special emphasis program in the Economic Opportunity Act Amendments of 1967.
Support from the ABA was critical to the success of the federal legal services program, and it was achieved with much less difficulty than most thought was possible. Under the progressive leadership of ABA President (and later Supreme Court Associate Justice) Lewis Powell, ABA House of Delegates in 1965 passed a resolution endorsing the OEO legal services program. Although the resolution was adopted without a dissenting vote, the ABA conditioned its support on the organized bar having a policy role in formulating and overseeing the legal services program and the understanding that traditional legal ethics were to be considered as an integral part of the program’s operations.
Having secured the endorsement of the ABA, OEO faced the critical and much more difficult task of generating the local programs that would actually deliver the services to low-income clients. The overall design for the program was fleshed out by E. Clinton Bamberger, the first director of OEO Legal Services and his deputy (and later the second director) Earl Johnson. Bamberger came to OEO from private practice with the strong endorsement of the ABA leadership but with little experience in legal aid for the poor. Johnson had been the deputy director of the Washington, D.C. foundation-funded legal services program but had never worked in a traditional legal aid office.
Unlike the legal aid systems that existed in other countries, which generally used private attorneys who were paid on a fee-for-service basis, OEO’s plan for the legal services program in the United States utilized staff attorneys working for private, nonprofit entities. OEO’s grantees were to be full-service legal assistance providers, each serving a specific geographic area, with the obligation to ensure access to the legal system for all clients and client groups. The only specific national earmarking of funds was for services to Native Americans and migrant farmworkers. The presumption was that legal services providers would be refunded each year unless they substantially failed to provide acceptable service or to abide by the requirements of the OEO Act.
One common response that arose out of local opposition to legal services programs was an effort to seek OEO funding for Judicare—a delivery system in which attorneys in private practice are paid on a fee-for-service basis for handling cases for eligible clients, similar to the way doctors are paid for handling Medicare patients. However, OEO refused to fund Judicare programs as the primary model for legal services delivery, agreeing to fund only a few programs, primarily in rural areas. Bamberger felt that a nationwide Judicare system would be prohibitively expensive and would not provide the aggressive advocacy required to adequately represent the low-income community. This fundamental policy decision has shaped the civil legal aid program to this day.
In addition, local political figures (such as Mayor Daley of Chicago) often attempted to interfere with legal services proposals. In spite of the initial external controversy, bureaucratic in-fighting, and general skepticism by the establishment, within nine months of taking office, Clint Bamberger and his staff had completed the Herculean task of funding 130 OEO legal services programs. Many local lawyers, progressive bar leaders, community activists, and traditional legal aid societies sought and received federal funds to establish legal services programs. In the end, despite their initial misgivings, the OEO legal services program obtained the support of many local and state bar associations, and local politicians. By the end of 1966, federal funding grew to $25 million for these local programs and national infrastructure programs established to provide litigation support, training, and technical assistance.
By 1968, 260 OEO programs were operating in every state except North Dakota, where the governor had vetoed the grants. The legal services budget grew slowly but steadily from the initial $25 million in 1966 to $71.5 million in 1972.
In 1967, OEO legal services’ second director, Earl Johnson, made a second fundamental policy decision that would also have long-term implications for the civil legal assistance program. The local OEO-funded legal services programs were facing impossible demands from clients for services with inadequate resources to meet the need. In response to this growing problem, Johnson decided to require that programs set local priorities for the allocation of resources but established “law reform” for the poor as the chief goal of OEO legal services. He made clear that OEO would give priority in funding to proposals that focused on law reform.
In addition, Johnson wanted to create a cadre of legal services leaders who would then use peer pressure to encourage programs to provide high-quality legal services. In order to achieve this goal, OEO funded the Reginald Heber Smith Fellowship program to attract “the best and the brightest” young law graduates and young lawyers into OEO legal services. This program provided a summer of intensive training in various law reform issues, and then placed the “Reggies” in legal services programs throughout the country for one- or two-year tours of duty. Many of the Reggies became leaders in their local legal services communities, as well as on the national level. Others went on to become respected lawyers in private practice and academia, as well as important political leaders and well-known public figures.
A large investment was also made in “back-up centers”—national legal advocacy centers, initially housed in law schools, that were organized around specific substantive areas (e.g., welfare or housing) or a particular group within the eligible client population (e.g., Native Americans or elderly). These centers co-counseled with, and provided substantive support for, local programs that were engaged in key test case litigation and representation before legislative and administrative bodies on behalf of eligible clients and groups, as well as engaging directly in advocacy in significant cases with national impact. The back-up centers also provided research, analysis, and training to local legal services programs that were working on cases within the centers’ areas of expertise. These centers engaged in specialized representation and developed knowledge and expertise that were essential to the emergence of new areas of poverty law. They also provided leadership on key substantive issues and worked closely with the national poor people’s movements that had evolved during the early years of the legal services program (e.g., the National Welfare Rights Movement and the National Tenants Organization).
As its designers had intended, the legal services program soon had a significant impact on the laws that affected the rights of low-income Americans. Legal services attorneys won major cases in state and federal appellate courts and in the U.S. Supreme Court that recognized the constitutional rights of the poor and also interpreted and enforced statutes in ways that protected their interests. Legal services attorneys won landmark decisions, such as Shapiro v. Thompson, 394 U.S. 638 (1969), which ensured that welfare recipients were not arbitrarily denied benefits, and Goldberg v. Kelley, 397 U.S. 254 (1970), which led to a transformation in the use of the concept of due process. These seminal cases were hardly the only cases brought to the Supreme Court by legal services attorneys. A study by Professor Susan Lawrence reviewed the 119 Supreme Court cases between 1966 and 1974 that were brought by legal services attorneys. Legal services attorneys secured victory in 62% of those cases, second only to the record of the Solicitor General of the United States.
Programs engaged in advocacy before legislative bodies that gave the poor a voice in forums where no one had previously spoken on their behalf, let alone listened to their side of the issues. Legal services advocates appeared before administrative agencies to ensure effective implementation of state and federal laws and to stimulate development and adoption of regulations and policies that had a favorable impact on the poor. Equally important, programs represented individual poor clients before lower courts and administrative bodies and helped them enforce their legal rights and take advantage of opportunities to improve their employment status, public benefits and other income supports, education, housing, health, and general living conditions.
In spite of, or because of, the success of its grantees, the OEO Legal Services Program had its share of detractors and was enmeshed in many controversies. One of OEO Legal Services’ most sustained and dangerous battles was with then Governor of California Ronald Reagan who was, throughout his days in public office, an avowed opponent of federally funded legal services to the poor.
In 1967, at the request of Governor Reagan, Senator George Murphy, a Republican from California, attempted to amend the Economic Opportunity Act to prohibit legal services lawyers from bringing actions against federal, state, or local government agencies. The amendment failed in the Senate by a vote of 36 to 52. In 1969, again at Governor Reagan’s request, Senator Murphy tried a new strategy. He proposed an amendment that would give governors an absolute veto over funding for OEO programs in their respective states. At the time, Senator Murphy proposed his amendment, governors had the power to veto programs in their states, but the OEO director could override those vetoes. The second Murphy amendment was passed by the Senate, but it did not make it through the House.
In December 1970, Governor Reagan announced his decision to veto the $1.8 million grant to California Rural legal Assistance (CRLA). When Governor Reagan announced his veto, he cited “gross and deliberate violations” of OEO regulations. In January 1971, the director of the California Office of Economic Opportunity, Lewis K. Uhler, released a 283-page report, which was to serve as a justification for Reagan’s earlier veto of the annual grant to CRLA. The Uhler report itemized some 150 charges of alleged misconduct by CRLA, including disruption of prisons, disruption of schools, organizing labor unions, criminal representation, and representation of ineligible, over-income clients. In response to this report, OEO appointed a blue ribbon commission composed of three retired State Supreme Court justices from states other than California to examine and determine the validity of the charges in the Uhler report.
The commission’s work culminated in a 400-page report that found the Uhler report’s charges to be totally unfounded and concluded that “CRLA has been discharging its duty to provide legal assistance to the poor (…) in a highly competent, efficient and exemplary manner.” The commission recommended that CRLA be refunded. After the report was issued, OEO Director Frank Carlucci and Governor Reagan engaged in intense negotiations, and Reagan ultimately agreed to withdraw the veto. In exchange, OEO agreed to award the state $2.5 million to start a demonstration Judicare program and to place some restrictions on CRLA, even though the commission’s report had cleared CRLA of all charges. In the end, however, the Judicare program was never implemented.
In January 1973, President Nixon proposed dismantling OEO and appointed Howard Phillips as the acting director of OEO to head the effort. Even though the Administration was about to propose the legal Services Corporation Act, Phillips, a vocal critic of the War on Poverty in general and legal services in particular, was determined to destroy the legal services program Phillips put legal services programs on month-to-month funding, eliminated law reform as a program goal, and moved to defund the migrant legal services programs and back-up centers. The federal courts eventually stepped in and ruled that because the Senate had not confirmed him, Phillips lacked the authority to take such action as acting director.
B. Legal Services Corporation
Within the organized bar, the Nixon Administration, the Congress, and the legal services community, the idea of an independent legal services entity began to take root. In 1971, an ABA study committee headed by Jerry Shestack and the President’s Advisory Council on Executive Reorganization (known as the Ash Council) both recommended the creation of a private, nonprofit corporation, separate from the federal government, to receive funds appropriated by Congress and distribute them to local legal services programs. A bipartisan group in Congress led by Senator Mondale (D-MN) and Representative Steiger (R-WI) introduced authorizing legislation in February 1971. In May of that year, President Nixon introduced his own version of the legislation, which proposed creation of the Legal Services Corporation (LSC), calling it a new direction to make legal services “immune to political pressures…and a permanent part of our system of justice.” At the same time, Nixon’s bill proposed a number of restrictions on legal services advocates that were not in the Economic Opportunity Act, including prohibitions on lobbying, organizing, and political activities by staff attorneys.
In December 1971, President Nixon vetoed legislation that Congress had passed establishing LSC. He vetoed the bill because the legal services provisions sharply circumscribed the President’s power to appoint the LSC board and did not include all of the restrictions on legal services advocacy that Nixon had sought.
In May 1973, President Nixon again proposed a bill to create the LSC. President Nixon signed the bill into law on July 25, 1974. (See Legal Services Corporation Act of 1974, Pub. L. No. 93-355, 88 Stat. 378, 42 U.S.C. §2996 ). The Legal Services Corporation Act of 1974 was one of the last bills that President Nixon signed into law before he resigned from office in August 1974.
The LSC Act created a private, nonprofit corporation that was controlled by an independent, bipartisan Board, appointed by the President and confirmed by the Senate. No more than six of the Board’s 11 members could come from the same political party. The initial selection of Board members was delayed by President Nixon’s resignation. It took almost a year for President Gerald Ford to appoint and the Senate to confirm the first LSC Board of Directors.
The new Board’s decisions on major policy issues reflected a desire to ensure that the poor received effective legal representation and an appreciation of the merits of the existing delivery system. The delivery and support structure put in place by OEO was carried over fundamentally unchanged by LSC when it began to function in 1975.
The Board selected Thomas Ehrlich, the former Dean of Stanford Law School to serve as the first LSC President. Former OEO Office of Legal Services Director Clint Bamberger, who had also served as Dean of the Columbus School of Law at Catholic University, was selected to serve as Executive Vice President. President Jimmy Carter appointed a new LSC Board to replace those members who had been appointed by President Ford. Hillary Rodham, the wife of the young Governor of Arkansas, Bill Clinton, chaired the new Board.
Most of the initial efforts of the new Corporation went into obtaining increased funds for the program from Congress. The Corporation developed a “minimum access” plan, with the goal of providing a level of federal funding for LSC programs in every area of the country, including those where no programs had been established, that would support two lawyers for every 10,000 poor persons, based on the U.S. Census Bureau’s definition of poverty.
This funding and expansion strategy proved highly successful. LSC was able to transform the federal legal services program from one that had only served the predominantly urban areas of the nation to a program that provided legal assistance to poor people in virtually every county in the United States and in most of the U.S. territories. In 1975, LSC inherited a program that was funded at $71.5 million annually. By 1981, the LSC budget had grown to $321.3 million. Most of this increase went into expanding to previously unserved areas, creating new legal services programs and greatly increasing the capacity of existing ones. Based on the 1970 census figures, out of 29 million poor people in 1975, 11.7 million had no access to a legal services program, and 8.1 million had access only to programs that were severely under-funded. In contrast, by 1981, LSC was funding 325 programs that operated in 1,450 neighborhood and rural offices throughout all 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Micronesia, and Guam. Although legal services program resources were still extremely limited, by 1981, LSC had achieved, albeit briefly, the initial goal of reaching “minimum access.” Each legal services program received LSC funding at a level sufficient to theoretically support two lawyers for every 10,000 poor people in its service area.
Although the LSC-funded legal services program has always been a primarily staff attorney system, beginning in the early 1980s, a significant effort was made by the ABA and LSC to involve private attorneys in the delivery of civil legal services. Congress included in the original LSC Act a provision that required LSC to conduct a study of alternatives to the staff attorney system to determine whether private attorneys could provide high quality, economical, and effective legal services to eligible low-income clients. The Delivery System Study, which LSC conducted between 1976 and 1980, found that none of the alternative delivery models tested performed better than the staff attorney model. The study also found that independent Judicare programs that included staffed components, contracts with law firms, and organized pro bono programs met all of the feasibility and performance criteria to be judged viable for the delivery of publicly funded legal assistance to the poor. LSC initially responded to the study by proposing a policy to encourage, but not require, private attorney involvement (PAI), particularly through pro bono programs. However, the ABA, which was then leading an unprecedented effort to prevent the Reagan Administration from eliminating LSC and funding legal services through social services block grants, adopted a resolution at its 1980 annual meeting urging Congress to amend the LSC Act “to mandate the opportunity for substantial involvement of private lawyers in providing legal services to the poor.”
Before Congress could act, the LSC staff and Board responded with a 1981 instruction directing its grantees to use a substantial amount of their funds to provide opportunities for the involvement of private attorneys in the delivery of legal assistance to eligible clients. LSC later clarified this instruction to mandate programs to use an amount equivalent to 10 percent of their LSC funds for PAI activities. In 1984, LSC adopted a formal regulation that raised the required PAI allocation to an amount equal to 12.5 percent of a program’s LSC grant. Most PAI activities went to increase pro bono efforts, although many programs used Judicare, contracts, or other compensated arrangements as components of their PAI efforts. Private attorneys began co-counseling with legal services attorneys on large cases and accepting individual client referrals from legal services programs. Today, approximately 150,000 private attorneys participate in pro bono programs across the United States.
The second half of the 1970s marked the heyday of growth for the legal services program:
- Local legal services programs were established to provide service to poor people in every county in the country.
- A network of migrant and Native American programs or units of local programs were created, covering most areas where those special client populations lived or worked.
- A system of state support began to emerge.
- Several new national support centers were established.
- LSC began a national training program for lawyers.
- The number of legal services program staff around the country increased significantly.
- LSC funding rose dramatically, going from $92.3 million in 1976 to $321.3 million in 1981.
- In 1977, Congress reauthorized the LSC Act for an additional three years.
C. The Reagan Era
The election of President Ronald Reagan in 1980 was a critical turning point in the history of federally funded legal services, ending the years of expansion and growth of political independence for LSC and its grantees. The Reagan Administration was openly hostile to the legal services program. Reagan initially sought LSC’s complete elimination and proposed to replace it with law student clinical programs and a Judicare system funded through block grants. In response to pressure from the White House, Congress reduced funding for the Corporation by 25 percent, slashing the appropriation from $321 million in FY 1981 to $241 million in FY 1982. The cut represented an enormous blow to legal services providers nationwide, which were required to go through a painful period of retrenchment planning to decide how to allocate the 25 percent funding cut. Programs were forced to close offices, lay off staff, and reduce the level of services dramatically.
At the end of 1981, President Reagan replaced a majority of the LSC Board, originally appointed by President Carter, with new recess appointees (appointments made when Congress is in recess and thus not available to confirm them). The balance of the Carter Board members was replaced in January 1982. The Senate refused to confirm these individuals when the Reagan Administration formally nominated them, and for much of the Reagan presidency, LSC was governed by a series of Boards consisting of recess appointees and holdover members.
Throughout the 1980s there was constant hostility and friction between the LSC Board and staff and supporters of legal services, including legal services providers, the organized bar, national organizations concerned about and supportive of civil legal aid, including NLADA and PAG, and key members of Congress from both parties. As a result of this dynamic, efforts by the LSC Board to make major policy changes, to pass restrictive new regulations, and to eliminate key components of the national program, such as national and state support centers and training entities, were repeatedly thwarted by Congress or, in some instances, by the courts.
Led by Senator Warren Rudman, a conservative Republican from New Hampshire, Congress frequently interceded to block actions by the Corporation.
Another positive development in the 1980s was the growth of non-LSC funding for legal services. Legal services programs began aggressive efforts to obtain funding from other sources, including United Way agencies, foundations, bar associations, private donations, state and local government grants and contracts, as well as non-LSC federal funds, such as the Older Americans Act, Community Development Block Grants, and Revenue Sharing.
Also during the early 1980s, a completely new source of funding for civil legal assistance was created. Interest on Lawyer Trust Account (IOLTA) programs were first conceived in Florida, after changes were made in the federal banking laws permitting interest to be paid on certain kinds of bank accounts. IOLTA programs were instituted by state bars, courts, and legislatures, in cooperation with the banking industry, to capture pooled interest on small amounts or short-term deposits of client trust funds used for court fees, settlement proceeds, or similar client needs that had previously been held only in non-interest-bearing accounts. Since these deposits were permitted to be pooled, interest could be earned in the aggregate, even though individually these nominal or short-term deposits would not earn interest for the client. Throughout the 1980s and 1990s, more and more states adopted IOLTA programs, and by 2000, every state, plus the District of Columbia and Puerto Rico, had an IOLTA program. While resources created by IOLTA are used to fund a variety of public service legal and law-related activities, most IOLTA funding has gone to civil legal services programs, and IOLTA quickly became the second largest source of funding for LSC grantees.
The 1990s began with a small but significant improvement in the situation of the legal services community. The first Bush Administration abandoned the overt hostility to legal services and the efforts to reduce or eliminate funding and to restrict legal services advocacy. The Bush Administration instead consistently recommended that Congress continue to appropriate money for the Corporation, albeit at level funding.
With the election of President Bill Clinton, the legal services community anticipated an end to the long period of insecurity and inadequate funding. Congress increased the LSC appropriation to $400 million for the 1994 fiscal year, the largest increase since the early years of the Corporation. With the 1994 congressional elections, the Corporation suffered a dramatic reversal of political fortune. Conservatives included the elimination of LSC in the infamous “Contract for America.” In much the same way as the Reagan Administration in the early 1980s, the leadership of the new Congress, under House Speaker Newt Gingrich (R-GA), committed itself to the elimination of LSC and ending federal funding for legal services. The House leadership sought to replace LSC with a system of limited block grants to the states that would severely restrict the kind of services for which the funds could be used. The House of Representatives adopted a budget plan that assumed that LSC’s funding would be cut by one-third for FY 1996, another third in FY 1997, and eliminated thereafter. Opponents of legal services dubbed this funding plan “the glide path to elimination.” It seemed possible that the federal commitment to equal justice might be abandoned altogether.
Despite the efforts of the House leadership, a bipartisan majority in the Congress, led by Senator Pete Domenici (R-NM), remained committed to maintaining a federally funded legal services program. Nevertheless, key congressional decision makers, led by Congressmen Bill McCollum (R-FL) and Charles Stenholm (D-TX), determined that major “reforms” in the delivery system would be required if the program was to survive. Grants were to be awarded through a system of competition, rather than through presumptive refunding of current recipients. Funding was to be distributed on a strict, census-based formula, eliminating any LSC discretion over funding amounts. A timekeeping system was imposed on all attorneys and paralegals working in programs. Programs were subject to a host of new organizational and administrative requirements. LSC funds could no longer be used to pay dues to nonprofit organizations, including the ABA and NLADA, or to sue LSC. The LSC Office of Inspector General was given new powers over local program audits, and LSC was given expanded access to recipient and client records.
More fundamentally, the Congressional majority was determined to redefine the role of federally funded legal services by refocusing legal services advocacy away from law reform, lobbying, policy advocacy, and impact litigation and toward basic representation of individual clients. Congress set out to accomplish this goal by restricting the broad range of activities that programs had engaged in since the early days of OEO, many of which had been mandated in the past. These restrictions applied to all activities that a recipient undertook, regardless of the source of the funding that was used to support the activity. Thus, with certain limited exceptions, LSC-funded programs were prohibited from using the public funds that they received from federal, state or local governments, or the private funds they received from bar associations, charitable foundations, private donations, and any other non-LSC sources for the LSC-restricted activities.
Along with the new restrictions came a major reduction in funding. The LSC appropriation was cut by 30 percent, from $400 million for FY 1995 to $278 million for FY 1996. Final 1996 statistics revealed the staggering cost of the funding cuts: the number of cases that were closed fell from 1.7 million in 1995 to 1.4 million in 1996; during the same period, the number of attorneys working in LSC-funded programs nationwide fell by 900, and 300 local program offices closed.
With the election in 2008 of Barack Obama, the legal services community looked forward to a period of relative calm and expanded federal support. For FY 2009, LSC funding had reached $390 million, an increase of more than 11 percent over the 2008 funding level of $350.5 million. The President appointed a new Board of Directors in 2009. While the new board included several very conservative members, all wee supporters of the legal services program. The President’s budget proposal for FY2010 included a substantial increase in funding for LSC and proposed elimination of many of the restrictions. Things really began to look up when Congress passed the 2010 LSC appropriation that included $420 million in funding for LSC, although the only restriction that was eliminated was the prohibition on seeking attorneys’ fees. Nevertheless, with the continuing fiscal crisis and mounting calls in Congress for reduction of the federal deficit, LSC faced a potential funding crisis of significant proportions. The 2010 election cycle resulted in a highly partisan Republican majority in the House of Representatives and a slim Democratic majority in the Senate. A proposal by a freshman Republican House member to eliminate funding for LSC entirely was soundly defeated on a bi-partisan vote, but despite the President’s request for a $30 million increase to $450 million, Congress cut FY 2011 funding for LSC field programs by $16 million to $404 million. President Obama also sought $450 million for LSC for FY 2012, but Congress, under the guise of its continuing efforts to hold the budget in check, cut overall LSC funding by $56 million to $348 million, a reduction of 13.9 percent.
Since 1996, the legal services landscape has undergone a dramatic transformation. Legal services has seen a reduction in the total number of LSC grantees from more than 325 programs in 1995 to 132 in 2018, and the geographic areas served by many of the remaining programs have increased dramatically. These changes were the result of the Congressional elimination of funding for state and national support entities and the mergers and reconfigurations promoted or sometimes imposed by LSC. The network of state and federal support entities formerly funded by LSC has been substantially curtailed, and some of its components have been completely dismantled.
At the same time, new legal services delivery systems have begun emerging in many states that include both LSC-funded programs, operating within the constraints of congressionally imposed restrictions, as well as separate non-LSC-funded legal services providers that operate unencumbered by the LSC restrictions. The non-LSC-funded providers engage in class actions, welfare reform advocacy, or representation before legislature and administrative bodies. They assist to aliens and prisoners, as long as their public and private funders permit their resources to be used for those activities.
This new statewide system is emerging. Beginning in 1995, in anticipation of funding cuts and the imposition of new restrictions, LSC initiated a strategic program that required all of its grantees to engage with non-LSC-funded providers, bar associations and state access to justice commissions, law schools, and other important stakeholders in each state in a state planning process. The state planning initiative has fundamentally changed how civil legal assistance is organized in this country. Previously, there was a diverse group of separate, locally controlled, and fully independent LSC-funded programs. Each state sought to develop a unified state justice system that includes LSC and non-LSC providers, law schools, pro bono programs, other human services providers, and key elements of the private bar and the state judicial system. These worked in close collaboration to provide a full range of legal services throughout the state.
Thus, the manner in which the civil legal services system develops in the future will no longer be determined solely by LSC and its grantees. Instead, the future of civil legal assistance increasingly will be in the hands of a much broader partnership of stakeholders who operate within the justice system in each state.
Funding for this new state justice system has not remained static. From 1996 through 2019 total funding from all sources for legal services in the United States grew from an estimated $700 million to over $1.772 billion. Despite the 1996 reductions, appropriations for LSC recovered slowly from $278 million in FY 1996 to $440 million in FY 2020, and funding from other sources grew significantly during much of that same period.
LSC-funded legal services programs were also successful in securing substantial increases in funding from private sources These included foundations and corporate gifts, donations from individual philanthropists, United Way campaigns, special events, grants from religious institutions, fee-for-service projects, private bar fundraising campaigns, grants from bar associations, voluntary bar dues check-offs or add-ons, cy pres awards, and awards from attorneys’ fees pursuant to fee-shifting statutes once they were permitted under the LSC restrictions.
D. History of Public Defense
Centuries in the making, the right to appointed counsel in the U.S. has its seeds in colonial times. Several charters of the American colonies (precursors to states) declared a right to hire lawyers, and 12 of the 13 former colonies specified such a right. In 1791, the Sixth Amendment to the new U.S. Constitution made a right to counsel the law of the land. However, it took many decades more for indigent defendants to realize the right to appointed, paid counsel.
The U.S. state of Nevada, as early as 1875 to 1879, was the first state to authorize appointment of attorneys in all criminal matters, including misdemeanors, and require the payment of attorneys for the services rendered.
Expanded and improved public defense (and legal aid generally) was in part a reform response to major social changes in the US in the late 19th and early 20th centuries. Reginald Heber Smith described them as “Complex and somewhat obscure social forces of revolutionary proportions – immigration, urbanization, industrialization, the rise of the wage-earning class, unemployment, the loneliness and poverty that were the concomitants of booming cities…” Other factors included the movement for women’s suffrage (the right to vote) and the Great Migration of African-Americans from the American South to northern cities. Fear of radical political movements was often cited by elites to promote public defenders (and legal aid generally). This “Red Scare” was prompted by events such as the assassination of U.S. President William McKinley by an American anarchist in 1901, and the Bolshevik revolution in Russia in 1917. Elites wanted to show that working class Americans could get a fair trial.
In the late 19th century and early 20th centuries, early legal aid bureaus in New York, Chicago and other major cities had little money or staff. Therefore, they focused on civil legal aid and provided little or no aid to criminal defendants. Meanwhile, in big cities, the primary method of providing counsel in criminal cases was the use of counsel assigned on a case-by-case basis. The assigned counsel were the worst of the profession, and often abandoned indigent defendants or otherwise failed in their duties. Reformers offered two visions. The Progressive movement of the 1890s-1920s sought to eliminate rampant, urban corruption through efficient and administered public institutions. Progressives advocated for government-funded public defenders who were technocratic public servants serving a modern system. In contrast, feminist Clara Shortridge Foltz began with a rights-based presumption of innocence and advocated for the public defender as an individual adversarial advocate who would obtain the best possible result for each accused. The ultimate result in the 20th century was a blend of both approaches, especially in major cities.
Local legal aid societies had their first national meetings in 1911 and 1912 and passionately debated proposals for public defenders which had been introduced in 32 of the 46 states. In 1921, the American Bar Association unanimously voted to establish a Standing Committee on Legal Aid Work (SCLAW), which later in the 20th century was renamed the Standing Committee on Legal Aid and Indigent Defense (SCLAID) to explicitly include reference defense, which the Bar generally believed its members should handle. In 1922, the local societies formed a solid national organization whose agenda included public defender services.
In 1932, the U.S. Supreme Court’s Powell v. Alabama 287 U.S. 45 (1932), decision held that the right to retain and be represented by a lawyer was fundamental to a fair trial though the impact was limited primarily to capital cases. In fact, for years thereafter, the vast majority of criminal defendants went unrepresented, and the counsel that was appointed received no or extremely low pay.
In 1938, in Johnson v. Zerbst 304 U.S. 458 (1938), the Supreme Court made appointed counsel a right in all federal criminal cases. However, the ruling provided no funding. Lawyers appointed by federal judges were not paid for time or expenses.
In 1963, the Supreme Court issued the landmark Gideon v. Wainwright 372 U.S. 335 (1963) decision. It established the right of an indigent felony defendant to be provided a trial attorney. The impact of the Gideon decision was profound. Later Supreme Court cases expanded the right to counsel delinquency cases involving juveniles (In re Gault, 387 U.S. 1 (1967)) and misdemeanor prosecution of adults (Argersinger v. Hamlin, (1972)). Funding public defense has remained a continuing challenge.
In 1966, the Supreme Court ruled in Miranda v. Arizona 384 U.S. 436 (1966) that prosecutors could not use as evidence a person’s statements made in response to interrogation in police custody unless the person understood and voluntarily waived their right to consult with an attorney before and during questioning, and their right against self-incrimination. International television viewers are familiar with this “Miranda warning” from American detective shows.
After its creation in the early 20th century, the 1963 Gideon v. Wainwright decision by the U.S. Supreme Court prompted the haphazard and inadequate public defender system’s biggest reform. Thousands of inmates convicted without attorneys were immediately released from prison. Gideon caused the largest single increase in defender systems in the history of the U.S. State and local governments scrambled to put defender systems immediately in place and modeled themselves after the myriad of delivery systems in use around the country.
In 1964, Congress passed the Criminal Justice Act, 18 U.S.C. § 3006A. which for the first time assured professional legal counsel in federal courts by paying an hourly fee for court appointed lawyers. Six years later, Congress established a full-time federal defender service within the judicial branch. Together, the two measures created the modern federal defenders system.
The public defender system emerged or grew stronger through at least three US movements for democracy: the struggle for women’s suffrage (right to vote), the Progressive movement against corrupt political machines, and the Civil Rights movement for racial equality. First, as American women sought the right to vote, American female lawyers were leading advocates of the concept of the public defender. This was best personified by attorney Clara Shortridge Foltz (1849-1934), who primarily identified as a woman’s rights advocate. Excluded as a female lawyer from lucrative areas of law practice, she became a skilled defense lawyer and eloquent advocate for giving indigent criminal defendants competent counsel. At an 1890 women’s conference in Washington, DC, Foltz led the first-ever debate at a national meeting on the proposed concept of the public defender. Creation of the first public defender office in Los Angeles, and adoption of the public defender option in the state of California, was tied directly to the victory of women’s suffrage in California.
Second, the Progressive movement (1890s-1920s) produced a climate of widespread social activism and political reform that challenged corrupt political machines and greedy business monopolies. Progressives used scientific management and professionalization to promote efficiency and modernization. Progressive leaders in the legal field included reformist establishment figures as U.S. Supreme Court Chief Justice Charles Evan Hughes; Dean John Henry Wigmore; U.S. President and Chief Justice William Howard Taft; Reginald Heber Smith, author of Justice and the Poor; and Elihu Root, president of the Carnegie Endowment for International Peace. Progressives successfully advocated for public defender offices to eliminate the ineffective and corrupt assigned counsel system in the urban criminal courts.
Third, the 1960s Civil Rights movement for racial equality created the social change that enabled major advances in public defense. In 1962, the Ford Foundation launched its National Defender Project that over six years organized and funded 78 public defender systems in the U.S. Significantly, the Project also funded program evaluation, training, management, standards, as well as research that helped win expanded funding for public defense. In 1963, the U.S. Supreme Court responded to the times with the landmark Gideon vs. Wainwright decision and other important decisions (see more above). Perhaps most significantly, the Civil Rights movement inspired a generation of talented, idealistic individuals to start legal careers as public defenders. This cohort of attorneys became the leaders, judges, and politicians that expanded and improved public defense for decades, often with an emphasis on defendants from racial minorities.
E. History of Access to Justice Movement
Although he first clause of the US Constitution calls for the establishment of justice, as the two histories above show there is no historical correlation between the US democratic development process and the emergence/strengthening of the legal aid system.
Prior to the new movement for access to justice beginning around 2000, civil legal aid was the key institution, along with the American Bar Association , in delivering access to justice, equal access to court and fair trial rights and goals described in section 4. Since the access to justice movement has gained momentum, a number of additional stakeholders now see access to justice as within their roles. These include state supreme courts, the National Center for State Courts, most state bar associations, state access to justice commissions, state IOLTA and other funders, law schools, civil legal aid programs, bar associations, self-help centers, technology initiatives, and researchers on delivery of legal services.
This movement seeks 100 percent access to effective assistance to address civil legal needs. A comprehensive “access-to-justice system” includes a coordinated and integrated civil legal aid system: right to counsel in essential civil cases and pro bono initiatives. Technology advances in the practice of law and the delivery of justice are essential and expanding.
States are developing 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.
States are educating lawyers about, and specifically encouraging lawyers to undertake, unbundled discrete task representation.
States are pursuing comprehensive and coordinated self-help assistance to unrepresented litigants through court-based self-help centers. The Self-Represented Litigation (SRL) Network brings together courts, bars, legal aid programs, 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.
States are reforming how courts operate to ensure efficient and effective access by 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; and new forums to efficiently and effectively resolve routine matters
In addition to clinical programs that serve indigent clients, states and law schools are expanding the use and education of law students through pro bono requirements, internships with providers, inclusion of access to justice developments in the curricula, and other means.
States are experimenting with and using lay advocates (non-lawyers) in certain administrative proceedings, simple court cases, and as facilitators in courts and community settings.
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.
States are developing legal incubators that 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 attorneys in establishing successful and sustainable practices.
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.
In addition to these court and delivery focused strategies, states are pursuing other strategies to expand access to justice. These 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, as well as working with state and federal administrative agencies to incorporate best practices to ensure administrative justice.
F. Justice Index
In 2014, the National Center for Access to Justice at Cardozo Law School (NCAJ), https://ncforaj.org, launched the Justice Index, justiceindex.org. NCAJ relocated to Fordham Law School in 2016 where its executive director co-chairs a school-wide A2J Initiative with Dean Matthew Diller and former NYS Chief Judge Jonathan Lippman).
The Justice Index is a website that uses data, indicators and indexing to rank the 50 states, Puerto Rico, and Washington, D.C., on their adoption of selected best policies and practices for access to justice. Its driving idea is that a transparent and responsible comparison of the access to justice policies established in the states will promote a dialogue about those policies within and between the states, which, in turn, will promote reforms that expand access to justice. By making selected policy models highly visible, the Justice Index makes it easy to understand what is important in state justice systems, easy to see which states are doing the best at it, and easy for everyone to replicate the best policies. Because the policies improve lives, the Justice Index is an important resource for low income and of color individuals and communities, and for activists, advocates, officials and all who work to reform the civil justice system.
The Justice Index ranks states in four sub-indexes comprised of multiple indicators, each weighted 1, 5 or 10 points, as follows:
- Attorney Access Index – ratio of civil legal aid attorneys per 10,000 poor
- Self-Represented Index – policies to assist self-represented litigants (including civil rights to counsel)
- Language Access Index – policies to assist people with limited English proficiency
- Disability Access Index – policies to assist people with disabilities
The Justice Index also ranks each state in a Composite Index by according each state’s score in each sub-index a weight of 25% of the state’s composite score, and then comparing those composite scores.
The Justice Index contains 28 issue areas, 112 indicators, and 5,000 data points organized in four sub-index categories.
5.2. Legislative framework for legal aid
5.2.1. Criminal Legal Aid
There is a right to counsel in felonies (Gideon v. Wainwright 372 U.S. 335 (1963)), delinquency cases involving juveniles (In re Gault, 387 U.S. 1 (1967)) and misdemeanor prosecution of adults (Argersinger v. Hamlin, (1972)). The right is enforced at the state and local level.
The Criminal Justice Act 18 U.S, C, ₴3006A provides for the right to counsel at the federal level and established the Federal Defender Service. Counsel appointed under the CJA are from either a panel of private attorneys designated by the court, or a federal defender organization (FDO). There are two types of FDOs: (1) federal public defender organizations, which consist of federal employees who are part of the judiciary, and (2) community defender organizations, which are private, state-chartered, non-profit corporations funded by annual federal grants from the judiciary. An FDO may be established in any district (or combination of adjacent districts) in which at least 200 appointments are made annually. There are currently 81 FDOs with more than 3,500 employees serving 91 of the 94 judicial districts. For FY 2017, the judiciary projects that federal defenders will be appointed in approximately 120,700 representations.
The CJA also provides for the appointment of private trial lawyers who serve on a panel maintained by each district or appellate court, and who are assigned by the court to represent financially eligible defendants. In situations where federal defenders are unavailable due to FDO conflicts or workload demands, and in the districts not served by an FDO, panel attorneys are appointed to represent eligible individuals. Nationally, almost 90 percent of the more than 10,000 panel attorneys accepting CJA appointments work in small law firms (six or fewer lawyers), and approximately 60 percent are solo practitioners. The CJA provides that these attorneys shall be reimbursed for their expenses and compensated at statutorily authorized hourly rates for their services. For FY 2017, the judiciary projects that panel attorneys will be appointed in approximately 83,900 representations.
5.2.2. Civil Legal Aid
As noted in Section 4 and above, in the United States, there is no general right to state-funded counsel in civil proceedings. See Lassiter v. Department of Social Services, 452 U.S. 18 (1981) and Turner v. Rogers, 564 US 431 (2011). However, state courts and state statutes or court rules, as well as some federal statutes, have provided the right to counsel in several categories of cases including termination of parental rights, adoption, and other areas.
5.2.3. Legal Services Corporation (LSC)
As described in Section 4 and 5, in 1974, Congress passed and the President signed the Legal Services Corporation Act (42 U.S.C. 2996), the comprehensive legislation to make permanent the legal services program started under the Economic Opportunity Act. The LSC Act was reauthorized in 1977, but has not been reauthorized since.
5.3. Institutional framework for legal aid
At the federal level on the civil side is the Legal Services Corporation. See above.
At the federal level on the criminal side is the Defender Services Office (DSO), located within the Administrative Office of the U.S. Courts, whose mission is to uphold the right to counsel guaranteed by the Sixth Amendment, the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, and other congressional mandates.
The four primary goals of the Federal Defender Services program are to:
- provide timely assigned counsel services to all eligible persons;
- provide appointed counsel services that are consistent with the best practices of the legal profession;
- provide cost-effective services; and
- protect the independence of the defense function performed by assigned counsel so that the rights of individual defendants are safeguarded and enforced.
At the state level. On the civil side, there are few state government institutions with responsibility for civil legal aid. As noted in Section 4, most states have Access to justice Commissions but these are not generally government agencies. Most states have, usually through the state bar association, entities that distribute IOLTA, filing fee funds and other state appropriated funds.
Similarly, on the defender side, few government agencies oversee and find criminal defense services. Twenty-two states have statewide defender programs (e.g. Wisconsin, Colorado. New Mexico, Vermont) that provide support, training, research and in actual representation. In many jurisdictions, there are only local defender programs, contract attorneys and court appointed attorney panels to provide representation in criminal cases.
5.3.1. Delivery of Civil legal aid
Civil legal aid in the United States is provided by a large number of separate and independent staff-based service providers funded by a variety of sources. NLADA estimated that 1147 staff-based programs, employing 6783 FTE attorneys, are involved in some form of civil legal assistance to the poor. The current overall funding is approximately $2,2121 billion. The largest element of the civil legal aid system is comprised of the 132 programs that are funded and monitored by LSC. LSC is also the largest single funder, but overall, far more funds come from states and IOLTA programs than LSC. In addition, there are a variety of other sources, including local governments, other federal government sources, the private bar, United Way, and private foundations.
The US system has a diverse set of programs providing civil legal assistance, a range of initiatives to serve clients, a wide range of funding sources, considerable fragmentation of the civil legal aid system, lack of state coordination and inequality in funding both across states and within states. Rebecca Sandefur and her colleague Aaron Smyth issued a report, Access Across America: First Report of the Civil Justice Infrastructure Mapping Project (American Bar Foundation) October 7, 2011. The Report describes these trends and provides a national overview and state-by-state information on who is eligible for civil legal assistance, how services are produced and delivered, how eligible people may connect with services, how civil legal assistance is funded and coordinated and how both free and fee generating limited-scope civil legal services are provided.
Unlike civil legal aid plans in most developed countries, neither LSC nor most state funders impose a formal “merit” test on applicants for service and representation. Nor is there a “significance test” required by LSC or state funders. Programs may impose their own criteria for service, such as only providing advice and brief service in certain kinds of cases or providing assistance only in particular categories of cases or with regard to specific issues. However, the decision to limit service is a program-by-program decision and not a decision made by LSC or most other major institutional funders, such as state IOLTA programs. Some other funders limit the use of their resources to certain clients or types of cases, such as domestic violence victims.
Civil legal aid programs generally do not impose co-payments or client contributions from the clients served, and neither LSC nor state funders require co-payments or client contributions. In fact, LSC prohibits its programs from using co-payments for clients eligible for LSC funded services. In addition, since the U.S. legal system is not generally a “loser pays” system, civil legal aid clients and programs are not usually required to reimburse an opponent’s legal fees and costs if they lose.
In addition to the LSC-funded providers, many other legal services providers do not receive LSC funds but are supported by funds from these other sources. Most are small entities that provide limited services in specific locales or for particular client groups, but many are full-service providers that operate alongside the LSC providers in the jurisdictions they both serve. For example, in the District of Columbia, the largest single general service provider is the Legal Aid Society of DC, a non-LSC funded provider.
These staff-based providers are supplemented by approximately 900 pro bono programs, which exist in every state and virtually every locale. These pro bono programs are either components of bar associations, component units of legal aid staff programs, or independent nonprofit entities with staff that refers cases to lawyers on the pro bono panels. Law school clinical programs and self-help programs also supplement the staff delivery system.
There remain a very few “Judicare” programs directly funded by either LSC or other funders; indeed, LSC funds only one small Judicare program, which now has staff attorneys and paralegals who deliver legal assistance in some cases. It is very rare that a funder will directly fund, by contract or otherwise, individual lawyers or law firms. However, some staff attorney programs have created Judicare components or contracted with individual lawyers and law firms, who are paid by the staff program to provide legal assistance to certain groups of clients.
The United States system also includes approximately thirty-eight state advocacy and support organizations that advocate before state legislative and administrative bodies on policy issues affecting low-income persons. Some of these also provide training and technical support to local legal aid advocates on key substantive issues. Moreover, more than 30 entities are engaged in advocacy on behalf of low-income persons at the federal level. Fifteen of these were formerly funded by LSC and were part of the national support network; others never were funded by LSC.
In addition, there has been a rapid expansion of efforts by courts, legal aid providers, and bar associations to help people who are attempting to represent themselves in courts. A significant development in civil legal aid in the United States is the rapid expansion of efforts to help people who are attempting to represent themselves in courts. These are described as “pro se”, “self-help” or “self-represented” litigants. Historically, parties in high-volume courts such as traffic, housing, and small claims courts consisted primarily of pro se litigants. However, more recently, pro se litigants have also begun to dominate family law dockets across the country. There are also significant increases in pro se representation in probate and other civil matters as well.
A critical part of expanding access has focused on a range of limited legal assistance initiatives to provide less than extended representation to clients who either do not need such extended representation in order to solve their legal problems or live in areas without direct access to lawyers or entities available to provide extended representation. Many legal aid programs now operate legal hotlines, which enable low-income persons who believe they have a legal problem to speak by telephone to a skilled attorney or paralegal and receive advice and brief service. Legal hotlines may provide answers to clients’ legal questions, analysis of clients’ legal problems, and advice on solving those problems so that the client can resolve the problem with the information from phone consultation. Hotlines may also perform brief services when those are likely to solve the problem and make referrals if further legal assistance is necessary. Hotlines now operate in over 92 programs in forty-five states, Puerto Rico, and the District of Columbia. Some hotlines focus on particular client groups, such as the elderly. Others serve the low-income population in general. Finally, more and more states have a central phone number (or several regional phone numbers) that clients can call to be referred to the appropriate program or to obtain brief advice about their legal problems.
5.3.2. Legal Services Corporation
As noted previously, LSC funds 132 grantees that operate local, regional or statewide civil legal assistance programs with 813 offices throughout the country. Generally, one field program provides legal services in a designated geographic area. In addition, LSC, with Congressional approval, has earmarked funds for migrant and Native American grants for specialized programs that deliver services to these populations. All legal services programs are private, nonprofit entities, independent of LSC. All LSC grantees are governed by boards, which consist of 60% attorneys and one-third eligible clients. By LSC regulation, all programs must expend 12.5% of their basic LSC grant on the involvement of private attorneys in the delivery of legal services.
5.4. Eligibility and Restrictions
The latest data from the American Community Survey indicate that 55.6 million Americans are eligible for civil legal assistance from LSC funded programs. Legal aid programs funded by LSC have limitations on the clients that they can serve. The primary limitations relate to financial eligibility and status as an alien. LSC programs may use funds from sources other than LSC to serve individuals or groups who do not meet the LSC financial guidelines, but they may not serve aliens who do not meet the alien eligibility guidelines.
Legal aid programs that do not receive funding for LSC often restrict service to clients who meet financial eligibility guidelines. These guidelines often mirror the LSC guidelines but may be more generous or more restrictive than those guidelines, depending on the program’s priorities or on restrictions that may be imposed by other funders.
LSC-funded programs may only use LSC funds to provide legal assistance to clients who meet specific financial eligibility guidelines. The basic rule is that LSC programs serve clients at or under 125% of the Poverty Guidelines, or $32,750 for a family of four in 2020. However, there are exceptions that permit representation up to 200% of poverty or $52,400 for a family of four.
LSC programs set their own asset ceilings for individual clients. These asset ceilings may be waived under certain circumstances. LSC programs may serve individuals who meet the asset ceilings and whose income is below 125% of the current official Federal Poverty Guidelines (poverty guidelines), which are revised annually by the U.S. government. In addition, under certain circumstances LSC programs may serve individuals who meet the asset guidelines and whose income exceeds 125% of the poverty guidelines. LSC programs may serve, without regard to income, those individuals who are seeking to maintain benefits provided by governmental programs for low-income individuals or families or whose income is primarily devoted to medical or nursing home expenses. LSC programs may also serve individuals whose income does not exceed 200% of the poverty guidelines if they are seeking to maintain or obtain certain governmental benefits or if the program has determined that they should be financially eligible based on certain other specified factors.
LSC-funded programs are also permitted to provide legal assistance to organizations of low-income persons, such as welfare rights or tenant organizations. To qualify for LSC funded assistance, the client organization must lack the means to retain private counsel, and the majority of its members must be financially eligible under the LSC regulations; or the organization must have as its principal activity the delivery of services to financially eligible members of the community.
LSC-funded programs are permitted to serve financially eligible individuals who are U.S. citizens or who are members of specified categories of aliens. LSC programs cannot assist undocumented aliens; aliens seeking asylum, refugee status, or conditional entrant status; or other categories of aliens who are legally in the U.S., including students and tourists.
Furthermore, LSC programs are not permitted to provide certain services to prisoners. Specifically, LSC programs cannot participate in civil litigation on behalf of a person incarcerated in a federal, state or local prison or participate in administrative proceedings challenging the conditions of incarceration. In addition, LSC programs are not permitted to represent persons convicted of or charged with drug crimes in public housing evictions when the evictions are based on threats to the health or safety of public housing residents or employees.
Much of the funding for civil legal aid programs is provided to the programs without earmarks on who can be served and what can be done. With these funds, the programs themselves make the key decisions about who will be served, the scope of service provided, the types of substantive areas in which legal assistance will be provided, the mix of attorneys and paralegals who will provide services, and the type of services provided (such as advice, brief services, extended representation, and law reform). While Congress has imposed restrictions on what LSC can fund and what its programs can do, and a few other states have similar restrictions, in the U.S. system, LSC, IOLTA, and many other funders do not decide what kinds of cases programs will handle and which clients they will serve. It is the program itself that undertakes planning and priority setting and decides who will deliver the services (staff attorney or private attorney). As a corollary to this responsibility, it is the program that oversees how these services are delivered and evaluates the quality of work that is provided by its staff attorneys and the pro bono and paid private attorneys with whom the program works.
However, some government and private funding sources limit their funding to specific types of clients (e.g., aliens) or specific types of cases (e.g., domestic violence). Civil legal aid programs can decide whether or not to seek this funding, and many do. It is the program itself that decides internally whether to seek such funding.
The U.S. Congress has imposed some restrictions on what types of cases civil legal aid programs funded by LSC can bring and what types of advocacy they can pursue even with non-LSC funds. LSC funded providers are precluded from most advocacy and representation before legislative bodies and in administrative rulemaking proceedings, except in a few circumstances. In addition, LSC programs cannot initiate, participate, or engage in any class actions. LSC programs are prohibited from representation in redistricting cases and from participating in any litigation with regard to abortion. Although prior to 1996 there had been some restrictions on what LSC-funded legal services programs could do, particularly with LSC funds, the 1996 restrictions prohibited LSC grantees from using funds available from most non-LSC sources to undertake those activities that are restricted with the use of LSC funds.
In other words, all of a LSC grantee’s funds, from whatever source, are restricted. Nevertheless, the restrictions do not cover most of the work that LSC programs can do on behalf of the low-income community, and LSC-funded programs can continue to provide representation in over 95% of the cases they were able to undertake prior to the imposition of the 1996 restrictions.
5.5. Major Development Strategy of LSC
In June 2012 and January 2013 LSC convened a two-part Summit on the Use of Technology to Expand Access to Justice. The Summit brought together selected technology experts, academics, private practitioners, and representatives of legal services programs, courts, and governmental and business entities to explore the potential of technology to move the United States toward providing some form of effective assistance to 100 percent of persons with essential civil legal needs and unable to afford an attorney. Summit participants agreed on the following focus areas for the next five years: (1) Document Assembly: improving automated form creation for self-represented individuals; (2) Expert Systems: developing intelligent tools that guide clients and advocates through the steps needed for complex legal procedures; (3) Remote Services Delivery: using technology to overcome physical barriers (e.g. distance in rural states or disability) to seeking representation; (4) Mobile Technology: delivery of assistance and services using smart phones and tablets; and (5) Triage: further automating the complex processes of matching clients to resources.
Since 2000, LSC has funded more than 720 projects totaling nearly $65 million in Technology Initiative Grants (TIG).
5.5.1. Portal Project
On April 25, 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. The goal is to develop a single, statewide, unified legal access portal which provides information anywhere, any time to every person seeking assistance and to provide assistance from a person – lawyer or otherwise – anywhere, if resources are available. The portal will use methods such as branching logic questions and gamification to assess the capabilities and circumstances of an inquirer, which will be part of the referral logic. The portal will generate information on the legal needs of persons using it and on the results achieved from the referrals provided. The portal will aggregate this information and provide it regularly to all participating entities. The portal will be an integrated system of resources, rules, and recommendations through which users can be matched with available services and applicable resources. The site will analyze users’ responses to questions and direct them to the most appropriate resource, considering factors such as case or situations complexity, the user’s capacity to use technology, strength and representation of the opponent, the importance of the user’s stake in the outcome, and the availability of resources, updated in real time. All access to justice entities in a participating jurisdiction (including legal aid entities, courts, court administrators, the organized bar, interested law firms and lawyers, law schools, libraries, pro bono support entities, and other interested community entities) will have a presence on the portal and will receive appropriate referrals from it. If a referral proves inappropriate, the entity to which the referral was made may make a different referral. The system will preserve the confidentiality of information an inquirer provides. 
Recently Microsoft announced the development of what it called Legal Navigator. Legal Navigator cannot offer advice, but it will be able to walk a user step-by-step through the red tape of executing, say, a divorce. The tool was originally conceived with more of a hard-coded linear approach in mind. In other words, Question A would automatically trigger a response containing Answer B. However, advances such as natural language processing convinced Microsoft that an AI-based approach was the way to go. Users will have the option of browsing the system by clicking on topics like “Family Law” or engaging with a chatbot-inspired interface. The Legal Navigator team worked with lawyers, law students, and court systems to evaluate real legal aid questions and link them to the appropriate responses. For example, if a user says, “I’m afraid that my boyfriend is going to hurt me and my children,” the machine would ideally generate instructions for obtaining a protective order without the phrase “protective order” ever having to be uttered (or typed). “The idea is [the users] don’t even have to know that they have a legal problem,” said Glenn Rawdon, program counsel for technology at the Legal Services Corporation. Early versions of the Navigator will focus exclusively on family law, housing and consumer issues. According to Rawdon, those three areas comprise about 90 percent of what brings people through the doors of a legal aid center. Hawaii and Alaska will serve as the pilot states for the tool’s launch. An official launch date has not been determined. “The idea is for us to run this for a couple of years until we can get Hawaii and Alaska going, maybe onboard a few more states and then figure out where the permanent home of Legal Navigator would be,” Rawdon said.
5.6. Client Community participation
LSC is required to have client representatives on the Board. Currently, out of 11 board members, two are client representatives.
Each LSC funded program board must have at least one-third eligible clients on is board. Local programs through priority setting processes set local program priorities for which types of cases are taken and which activities are pursued. See 454 CFR ₴1620.
5.7. Public perception of LSC
There is no hard statistical data indicating public perception of LSC. However, two advisory bodies that show broad support for LSC:
A. Leaders Council
In May of 2016, LSC formed a new Leaders Council to raise public awareness of the current crisis in legal aid. The Leaders Council consists of high profile and influential leaders from various industries. They include public figures such as former Major League Baseball player Henry “Hank” Aaron; author John Grisham, University of Michigan head football coach Jim Harbaugh, former Attorney General Eric Holder, Viacom Vice Chair Shari Redstone, and Microsoft Corporation President and Chief Legal Officer Brad Smith. Earl Johnson is a member. Kenneth C. Frazier, CEO of pharmaceutical company Merck & Co., and Harriet Miers, a partner at Locke Lord and former White House Counsel to President George W. Bush, serve as co-chairs of the Leaders Council.
B. Emerging Leaders Council
The Legal Services Corporation’s Emerging Leaders Council was formed in 2018 and will bring together some of the country’s rising leaders to help increase public awareness of the crisis in civil legal aid and the importance of providing equal access to justice to all low-income Americans. Members will lend their voices and expertise to enhancing LSC’s message by participating in congressional briefings, speaking publicly about civil legal aid’s value, penning op-eds, and undertaking outreach activities. The group’s efforts will complement the work of LSC’s existing Leaders Council, formed in 2016. Kristen Sonday, founder of Paladin PBC, and Brad Robertson, partner at Bradley Arant Boult Cummings LLP, will serve as co-chairs of the Emerging Leaders Council. Council members were drawn from business, law, government, academia, and other fields.
In addition, there is broad bi-partisan support for LSC. An example of bi-partisan support is the new Congressional Access to Civil Legal Services Caucus launched by Congressman Joseph Kennedy of Massachusetts in December 2015 with Congresswoman Susan Brooks (R-IN5).
In 2017, when the Trump Administration called for the elimination of LSC and no further funding, opposition to the proposal included the American Bar Association and numerous state and local bar associations, Corporation General Counsels of over 185 corporations, most leading newspaper editorial boards, major national law firms, over 150 law school deans and the Presidents of the Conference of Chief Justices and the Conference of State Court Administrators.
A similar response occurred in 2018:
- 251 General Counsels from some of the largest American businesses, including American Express, Google, Walmart, Facebook, and Walt Disney;
- 180 law firms from all 50 states and the District of Columbia;
- The Conference of Chief Justices and the Conference of State Court Administrators;
- 39 bipartisan state Attorneys General;
- 168 Deans of law schools;
- 181 Signatories to the bipartisan House funding letter for LSC;
- 44 Signatories to the bipartisan Senate funding letter for LSC;
In 2019 as of May 1, 2019:
- 209 Signatories to the bipartisan House funding letter for LSC;
- 46 Signatories to the bipartisan Senate funding letter for LSC;
- The Conference of Chief Justices and the Conference of State Court Administrators (CCJCOSCA Letter);
- 262 General Counsels from some of the largest American businesses, including American Express, Google, Walmart, Facebook, and Walt Disney (General Counsel LSC Letter);
- 180 law firms from all 50 States and the District of Columbia (Law Firm Leaders Letter);
- 42 bipartisan state Attorneys General (State Attorneys General Letter);
- 167 Deans of law schools (Law School Deans Letter).
5.7. Legal aid budget
The US does not have a legal aid budget. LSC has a budget for the 132 programs it funds. There is a budget for Federal Defense. Each state and many counties have their own budgets and local defender programs have their own budgets.
5.7.1. Civil legal Aid
There are several sources of civil legal aid funding including LSC, state general revenue, state filing fees, IOLTA, non-LSC federal funding sources, cy press awards, private bar campaigns and other sources. In 2019, the last year that data is available, the total funding picture for the 50 states was:
|State General Revenue||$201,945,758|
|State Filing Fees||$153,607,247|
|Other Public Funds||$661,133,398|
|Legal Services Corporation||$369,111,589|
However, these 50 state numbers do not include the District of Columbia, Puerto Rico and the US territories where there is a civil legal aid program. If we include the latest available funding for the District of Columbia of $29,022,438 and Puerto Rico and the territories of $24,170,342, we have a total of $2,212,129,134.
LSC is the only central federal funding sources, although legal aid programs receive funding from other federal agencies for specific projects. This funding does not go through LSC. Each year LSC proposes a budget to Congress. This is independent of what the Administration proposes. For example, for the last three years, the Trump administration has proposed no funding for LSC. LSC submitted its own budget directly to Congress and asked for $527.8 million for FY 2018, $564.8 million for FY 2019 and $593 million for FY 2020. The current funding level is $440 million. In February 2020, the President proposed that funding for LSC be eliminated. LSC has proposed $652.6 million.
LSC funding approved by the Congress over the last 10 years have gone up and down depending on the make-up of Congress:
LSC does not fund by case type. It grants to 132 local programs that set their own priorities for case selection. LSC does collect overall case type data. For example, in 2018, of the total number of closed cases of 743,643 case data were:
|Type||Percentage of total cases|
Data on limited representation LR (counsel and advice and limited action) and extended representation ER for 10 years:
|2009||LR 78.9%||ER 21.1%|
|2010||LR 78.2%||ER 21.8%|
|2011||LR 77.5%||ER 22.5%|
|2012||LR 77.2%||ER 22.8%|
|2013||LR 76.5%||ER 23.5%|
|2014||LR 76.5%||ER 23.5%|
|2015||LR 76.4%||ER 23.6%|
|2016||LR 76.0%||ER 24.0%|
|2017||LR 76.2%||ER 23.8%|
|2018||LR 75.6%||ER 24.4%|
5.7.2. Public Defense
We have incomplete data on how much is spent on public defense in the US. The Federal Defender program has a budget of over $1.1 billion. According to a 2015 Special Report from the Office of Justice Programs of the US Department of Justice, state government expenditures in 2012 were $2.3 billion annually. This figure does not include county and jurisdictional appropriations for indigent defense and many large states (e.g., California, Florida, New York, Texas, Michigan, and Illinois) have only county and jurisdictional appropriations for indigent defense.
5.8. Legal aid providers
Federal Criminal Defense providers consist of private lawyers as well as employees of institutional defender offices as determined by each district, both of which are funded by the federal judiciary under a separate appropriation from Congress.
There are two types of institutional defender offices available for districts that require at least 200 CJA appointments annually: Federal Public Defender Organizations (FPDOs) and Community Defender Organizations (CDOs). FPDOs are headed by a federal public defender appointed by the federal circuit in which the office is located for four-year terms. All FPDO staff are federal employees and each circuit court determines the number of assistant federal defenders an office may hire. In contrast, CDOs are non-profit corporations funded through grants administered by the Defender Services program. CDOs are managed by a board of directors and employ an executive director who functions as the district’s federal defender.
State and local providers consist of: (1) assigned counsel systems in which private attorneys are appointed by local courts; (2) contract systems in which private attorneys contractually agree to take on a specified number of indigent defense cases; and (3) public defenders. The United States’ public defender system is largely fragmented because of the separation of powers between the federal and state governments. Outside of the federal criminal justice system, the organization of criminal legal aid varies widely across the United States. These publicly funded attorneys, known as public defenders, can include state-organized indigent defense systems, locally organized indigent defense systems (at the county, city, or judicial district level), and also, systems that contract with the private legal sector. There is no single national budget for public defense. Almost all states and territories of the United States fund some sort of public defender office. Typically, these public defenders are organized in either state-based or county-based systems. State-based public defender offices function entirely under the direction of a central office that hires, funds, and administers all public defenders across the state. County-based systems require local counties, either independently or in conjunction with the state, to administer and fund public defender offices. In some jurisdictions, public defense is provided by a non-profit, non-governmental organization that is either funded by the city, county, or state where it operates, or by donations and grants from the private sector.
According to a Special Report of the Bureau of justice Statistics of the Department of Justice: “49 states and the District of Columbia had public defender offices to provide legal representation for some or all indigent defendants. Twenty-two states had a state public defender program that oversaw the operations, policies, and practices of the 427 public defender offices located in these states. State-based public defender offices functioned entirely under the direction of a central office that funded and administered all public defender offices in the state. In the remaining 27 states, public defender offices were county-based, administered at a local level, and fun4ded principally by the county or through a combination of county and state funds. The public defender office in the District of Columbia operated like a county-based office and was classified as county-based.’
Civil legal aid in the United States is provided by a large number of separate and independent non-profit corporation staff-based service providers funded by a variety of sources. NLADA estimated that 1147 staff-based programs, employing 6783 FTE attorneys, are involved in some form of civil legal assistance to the poor. The current overall funding is approximately $1.8248 billion. The largest element of the civil legal aid system is comprised of the 132 programs that are funded and monitored by LSC. LSC is also the largest single funder, but overall, far more funds come from states and IOLTA programs than LSC. In addition, there are a variety of other sources, including local governments, other federal government sources, the private bar, United Way, and private foundations.
In addition to the LSC-funded providers, many other legal services providers do not receive LSC funds but are supported by funds from these other sources. Most are small entities that provide limited services in specific locales or for particular client groups, but many are full-service providers that operate alongside the LSC providers in the jurisdictions they both serve. For example, in the District of Columbia, the largest single general service provider is the Legal Aid Society of DC, a non-LSC funded provider.
Civil Legal aid providers generally do not have to meet any specific qualifications. Civil legal aid providers in the US are non-profit corporations and not individual lawyers or law firms. However, many lawyers and law firms do pro bono cases. There are approximately 900 pro bono programs that set whatever minimal requirements exist for lawyers and firms that participate pro bono. Also LSC funded providers must expend 12.5% of LSC funding level on private attorney involvement. These LSC programs must provide oversight of the cases they give to pro bono lawyers. See 45 CFR 1614.
Civil legal aid providers are independent of government control. Generally, each provider sets its own priorities for whom it will serve. The 132 LSC funded providers are subject to restrictions on whom can be served (e.g. undocumented aliens), prohibition on class actions and limitations on affirmative lobbying and regulatory policy advocacy. Most other civil legal aid providers have no such restrictions. All civil legal aid providers can sue local. State and the federal government.
LSC programs must meet LSC Performance Criteria when they are being considered for refunding. LSC Performance Criteria, which were originally developed in 1992, are also a tool to evaluate LSC programs through a peer review system.
The LSC Performance Criteria are divided into four performance areas:
- Effectiveness in identifying the most pressing civil legal need of low-income people in the service area and targeting resources to address those needs;
- Effectiveness in engaging and serving the low-income population throughout the service area;
- Effectiveness of legal representation and other program activities intended to benefit the low-income population in the service area;
- Effectiveness of governance, leadership, and administration.
In 2018, LSC revised the fourth Performance Criteria to take into account the most recent guidance on governance of non-profit boards.
Legal aid providers hire their own staff. There are no specific procedures for hiring.
The 132 LSC funded providers must comply with a regulation 45 CFR 1616, which requires that, the program “shall establish qualifications for individual positions for attorneys providing legal assistance under the Act that may include, among other relevant factors:
(a) Academic training and performance;
(b) The nature and extent of prior legal experience;
(c) Knowledge and understanding of the legal problems and needs of the poor;
(d) Prior working experience in the client community, or in other programs to aid the poor;
(e) Ability to communicate with persons in the client community, including, in areas where significant numbers of eligible clients speak a language other than English as their principal language, ability to speak that language; and
(f) Cultural similarity with the client community.
Before filling an attorney position, an LSC program shall notify the organized Bar in the community of the existence of a vacancy, and of the qualifications established for it, and seek recommendations for attorneys who meet the qualifications established for the position. A program shall similarly notify and seek recommendations from other organizations, deemed appropriate by the program, that have knowledge of the legal needs of persons in the community unable to afford legal assistance.
When equally qualified applicants are under consideration for an attorney position, an LSC program shall give preference to an applicant residing in the community to be served.
Each LSC program shall adopt employment qualifications, procedures, and policies that meet the requirements of applicable laws prohibiting discrimination in employment, and shall take affirmative action to insure equal employment opportunity.
In areas where a significant number of clients speak a language other than English as their principal language, an LSC program shall adopt employment policies that insure that legal assistance will be provided in the language spoken by such clients.
Each year civil legal aid providers hire hundreds of new staff, many of whom are recent law school graduates. There is no data on how many staff attorneys are recent graduates. Some new hires have worked in private practice of government service, but there is no data to show how many. Legal aid attorneys are attracted to civil legal aid programs because of their commitment to social justice for the poor. Some are just seeking a first job out of law school.
Legal aid lawyers generally receive a lower salary that lawyers in private practice or the government. A recent American Bar Association study confirmed this finding. See 2019 ABA Pro0file of the Legal Profession. According to th3e study (p.19):
“Wages for lawyers in public service jobs – local prosecutors, public defenders, legal aid attorneys and lawyers for nonprofit groups –are far less than lawyers in other settings. For example, the median salary for a first year lawyer working at a private law firm with 50 or fewer attorneys is about $90,000. The median salary for a first-year public service lawyer is $48,000 to $58,300. The gap is even wider between first-year public service lawyers and first-year lawyers at large law firms in big cities. Starting salaries for new associates at large law firms can be $180,000 to $190,000 – double what even the most experienced public service lawyers earn. Of all the categories of public service lawyers, those who work in civil legal aid offices, on average, are the lowest paid – both at the entry level and at the most-experienced level. For example, entry-level legal aid lawyers are paid, on average, $48,000, but entry-level local prosecutors earn $56,200 and entry-level public defenders earn $58,300. The same holds true at the more-experienced levels. Legal aid lawyers with 11 to 15 years’ experience are paid, on average, $69,400. Local prosecutors with similar experience earn $84,400 and public defenders with similar experience earn $96,400.”
Finally, legal aid providers do not have any kind of functional or procedural special prerogative/privilege to facilitate/enhance their professional performance.
5.9. Quality assurance
5.9.1. Civil legal aid
In the United States, efforts are made to ensure the quality of civil legal services, through the use of case management systems, the establishment of standards and performance criteria, and the use of peer review onsite examination of the overall effectiveness of programs—based on the standards and performance criteria. Until recently, outcome measures were not been used extensively, although five state IOLTA/state funding programs require their grantees to report on outcome measures. LSC has now required every LSC funded program to use outcome measures.
In 2006, the ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID) revised the ABA Standards for Provision of Civil Legal Aid. These revised Standards were presented to and adopted by the ABA House of Delegates at its August 2006 meeting. The revised Standards, for the first time, provide guidance on limited representation, legal advice, brief service, support for pro se activities, and the provision of legal information. The revised Standards also include new standards for diversity, cultural competence, and language competency. The ABA also produced Principals for a State System of Civil Legal Aid, which set out 10 principals for statewide systems of civil legal aid. 
As noted previously. LSC uses LSC Performance Criteria, which were originally developed in 1992 as a tool to evaluate LSC programs through a peer review system. These criteria have been the framework for much of the program evaluation that has gone on in civil legal aid, both by LSC and by peer reviews conducted by others for the program. Some IOLTA and state funders also use staff and peers from programs to monitor and evaluate their grantees, based on the Standards and Criteria. All LSC-funded providers are required to utilize case management systems, and many non-LSC providers utilize similar systems.
LSC conducts two types of on-site LSC program visits to ensure compliance with the law and regulations and to ensure quality of services. In 2018, LSC’s Office of Compliance and Enforcement conducted 24 oversight visits and completed 28 compliance visits in 2019. In 2018, LSC’s Office of Program Performance conducted 35 onsite assessment visits and completed 50 onsite visits in 2019. Some state IOLTA and civil legal assistance funders also conduct evaluations of program often using the LSC performance measures. There is no national data on these non-LSC efforts.
There is no requirement that civil legal aid providers engage in continuing legal education or skills training. Lawyers working in legal aid programs may have continuing legal education requirements from their state bar associations, but these CLE requirements apply to all attorneys in a state.
Each civil legal aid program funded by LSC must have a client grievance procedure consistent with 45 CFR 1621. There is no appeal to LSC, however. Clients could also report concerns to the relevant state bar or sue.
The LSC regulation requires that the governing body of each program establish a grievance committee or committees, composed of lawyer and client members of the governing body, in approximately the same proportion in which they are on the governing body. Each program must establish a simple procedure for review of complaints by applicants about decisions to deny legal assistance to the applicant. In addition, each program must establish procedures for the review of complaints by clients about the manner or quality of legal assistance that has been rendered by the recipient to the client. The procedure must provide for prompt consideration of each complaint by the Executive Director or the Executive Director’s designee and an opportunity for the complainant, if the Executive Director or the Executive Director’s designee is unable to resolve the matter, to submit an oral or written statement to a grievance committee established by the governing body. A file containing every complaint and a statement of its disposition shall be preserved for examination by LSC. The file shall include any written statement submitted by the complainant or transcribed by the recipient from a complainant’s oral statement.
5.9.2. Public Defense
Standards have been developed for public defense, principally by NLADA and the ABA. NLADA standards include:
- Performance Guidelines for Criminal Defense Representation (2006);
- Model Contract for Public Defense Services (2000);
- Defender Training and Development Standards (1997);
- Standards for the Administration of Assigned Counsel Systems (1989);
- Standards for the Appointment and Appointment of Counsel in Death Penalty Cases (1988);
- Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services (1984);
- Standards and Evaluation Design for Appellate Defender Offices (1980);
- Guidelines for Legal Defense Systems in the United States (1976);
- National Advisory Commission on Criminal Justice Standards and Goals: The Defense (1973);
- Uniform Law Commissioners’ Model Public Defender Act (1970);
- ABA directory of indigent defense standards;
- Ten Principles of a Public Defense Delivery System (2002);
- Ten Guidelines on Court Fines and Fees;
- Eight Guidelines of Public Defense Related to Excessive Workloads;
- ABA Standards for Criminal Justice: Providing Defense Services;
- ABA Formal Opinion 06-441: Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere with Competent and Diligent Representation;
- ABA policies and guidelines related to indigent defense;
Defenders use these standards to improve their own representation; policymakers use them to determine how to allocate criminal justice resources; and researchers use them to measure the quality and impact of defenders’ work. The ABA Ten principals of a Public Defense Delivery System were created as a practical guide for governmental officials, policymakers, and other parties who are charged with creating and funding new, or improving existing, public defense delivery systems. The Principles constitute the fundamental criteria necessary to design a system that provides effective, efficient, high quality, ethical, conflict-free legal representation for criminal defendants who are unable to afford an attorney. The more extensive ABA policy statement dealing with indigent defense services is contained within the ABA Standards for Criminal Justice, Providing Defense Services (3d ed. 1992).
Unlike civil legal aid, no federal entity or other entity monitors and enforces these standards. Some public defender programs (e.g., Public Defender Services of DC) incorporate the standards into their practice guidelines, evaluation systems and training protocols. NLADA and the ABA use these standards when evaluating specific programs or systems, but such evaluations are at the request of the program or system.
5.10. Criminal legal aid
5.10.1. The Federal Criminal Defense Program and the Criminal Justice Act
This portion summarizes access to justice for defendants in federal criminal proceedings in the United States, and it relies heavily upon the 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act (the Cardone Report).
The touchstone for understanding the provision of criminal defense services for those who cannot afford the assistance of counsel in federal proceedings as required by the U.S. Constitution is the Criminal Justice Act (CJA) of 1964, 18 U.S.C. § 3006A. Representation under the CJA includes not just counsel but also investigative, expert, and other services necessary for a full and fair defense. Any financially eligible person who is charged with a felony or a Class A misdemeanor; is a juvenile alleged to have committed an act of juvenile delinquency; is charged with a violation of probation; is under arrest, when such representation is required by law; is charged with a violation of supervised release; is subject to a mental condition hearing; is in custody as a material witness; is entitled to the appointment of counsel under the sixth amendment to the Constitution; faces loss of liberty in a case, and federal law requires the appointment of counsel; or is entitled to counsel for verification of consent in international prisoner transfers will be provided representation under the CJA.
Furthermore, whenever a United States magistrate judge or federal court determines that the interests of justice so require, representation may also be provided under the CJA for any financially eligible person who is charged with a Class B or C misdemeanor, or any infraction for which a sentence to confinement is authorized, or when the person is seeking relief under section 2241, 2254, or 2255 of Title 28 of the United States Code (writs of habeas corpus). Thus, the CJA’s scope is broad and covers defendants throughout the entire federal criminal justice process, from pretrial matters through trial and direct appeal, as well as habeas corpus proceedings—fully 93 percent of individuals haled into federal criminal court require counsel appointed under the CJA.
One of the unique aspects of the Act is that each of the 94 United States district courts, with the approval of the judicial council of the federal circuit in which each court is located, is required to publish a plan for furnishing representation under the CJA. Prior to approving a district’s plan, the circuit judicial council must add a supplement with provisions for representation on appeal. These plans give local district and circuit courts significant authority in administering the program, and this local control creates considerable variation across districts in the provision of defense services.
The individuals who deliver criminal defense services consist of private lawyers as well as employees of institutional defender offices as determined by each district, both of which are funded by the federal judiciary under a separate appropriation from Congress. As the Cardone Report put it:
Since the CJA’s amendment in 1970, the federal defender program has functioned as a hybrid system comprised of public defender offices and appointed private attorneys. This system allows for flexibility, since panel attorneys can step in to handle a sharp increase in prosecutions. It also addresses conflicts that may arise in multi-defendant cases, with the defender office often taking the lead defendant while panel attorneys act as counsel for the other defendants. The current system offers the consistency of having an institutional defender office, which not only sets the bar for defense best practices locally but, with ready access to resources, can often provide training opportunities and assistance to panel attorneys in that district.
There are two types of institutional defender offices available for districts that require at least 200 CJA appointments annually: Federal Public Defender Organizations (FPDOs) and Community Defender Organizations (CDOs). FPDOs are headed by a federal public defender appointed by the federal circuit in which the office is located for four-year terms. All FPDO staff are federal employees and each circuit court determines the number of assistant federal defenders an office may hire. In contrast, CDOs are non-profit corporations funded through grants administered by the Defender Services program. CDOs are managed by a board of directors and employ an executive director who functions as the district’s federal defender.
From the perspective of a defendant and the public, FPDOs and CDOs look very similar from the outside and operate nearly identically, and they are referred to collectively as “federal defender organizations,” or FDOs. Today, there are a total of 81 FDOs with approximately 3,850 employees throughout the United States and its territories, 64 of which are FPDOs while the remaining 17 are CDOs. Although districts are not mandated to establish FDOs, they cover 91 of 94 federal districts (some offices cover more than one district) and they represent approximately 60 percent of clients appointed under the CJA.
Private attorneys, depending on the district, either apply to be included on the local “CJA panel” or are placed on the panel through some other process. Panel attorneys are often solo practitioners or from small firms and also take paying clients in addition to their appointed cases. Each district has a CJA panel attorney district representative to communicate with the national program and disseminate information among panel attorneys. Nationwide, there are approximately 12,000 private panel attorneys and together they handle about 40 percent of representations under the CJA at an hourly rate of $148 in non-capital cases and $190 in capital cases.
The Cardone Report succinctly described the governance structure of the federal defender program:
The Criminal Justice Act places the national administration of the program under the authority of the Judicial Conference of the United States (JCUS or Judicial Conference) and the Administrative Office of the United States Courts (AO or Administrative Office). JCUS is authorized to create rules and regulations for the program, while the director of the AO is tasked with supervising the expenditures of funds appropriated for indigent defense. The statute also charges JCUS with determining the hourly rate for panel attorneys as well as the maximum amount to be paid to a panel attorney on any one case without additional justification and oversight.
The Judicial Conference is the judiciary’s governing body. It consists of the Chief Justice of the Supreme Court, who presides; the chief judges of each circuit; and one district judge from each circuit. The Conference administers judiciary funds and makes policy for the administration of the courts. JCUS has committees to advise the larger Conference on a variety of matters, such as the Committee on Criminal Law, the Committee on Court Administration and Case Management, and the Committee on Information Technology. The Executive Committee is the chief decision-making body within the Conference, determining the jurisdiction of the other committees and setting the calendar and agenda for JCUS.
The Defender Services Committee (DSC), comprised entirely of judges, is the JCUS Committee charged with overseeing the CJA program. DSC provides policy guidance, reviews budget and staffing requests for defender offices, monitors legislation affecting the appointment and compensation of counsel, assists to ensure adequate and appropriate training for defense attorneys, and helps determine long-range goals for the program. As part of the DSC’s process, it receives feedback from the defender community through established working and advisory groups. Although DSC is directly responsible for overseeing the defender program, under the current JCUS structure, this Committee does not have final decision-making authority on any aspect of the CJA program.
The AO performs administrative functions for the federal judiciary and oversees the expenditure of appropriated funds. Its mission is to serve and support the federal judiciary pursuant to the policies, guidance, and direction of the Judicial Conference. The AO provides the working staff for all JCUS committees and so plays an important role in JCUS policymaking. It assists in creating the judiciary’s budget, maintains a legislative office that has contacts with Congressional staffers to track and offer comment on legislation affecting the judiciary, and provides auditing services and financial accountability for court entities, among other tasks.
Within the AO, the office responsible for staffing DSC and assisting in the national administration of the CJA is the Defender Services Office (DSO). DSO’s mission is divided between supporting defenders and panel attorneys and, as part of the AO, supporting judiciary interests. DSO provides training to CJA practitioners, advises on legal and policy issues affecting the provision of counsel and other services under the CJA, assists individual defender offices in formulating budgets, serves as staff to AO working and advisory groups, and collects [caseload-related] data on the defender program. 
The size of the federal defender services program, while much smaller than the Department of Justice that investigates and prosecutes cases on behalf of the United States, is nonetheless large and considered the “gold standard” of the criminal defense bar by many across the country. The program today has a budget of over $1.1 billion and is responsible for more than 250,000 representations under the CJA. FDO staffing is determined by a work measurement formula that helps ensure caseloads do not reach the levels of some beleaguered state public defender offices, and the combination of FDOs working together with panel attorneys helps maintain a standard level of proficiency for the complex cases they handle in federal court.
5.10.2. Sub-Federal Systems of Criminal Legal Aid
A. Introduction: Organization of Criminal Legal Aid
Two notable attributes distinguish criminal legal aid in the United States from that in most other countries. Frist, criminal legal aid, known in America as public defense, is typically separate from civil legal aid, which provides legal services for non-criminal legal needs for low-income people. Second, the United States does not have a unified system for the provision of public defense services. The federal court system does not control the state court systems. In fact, state court systems include many levels of courts that vary by state, counties within each state and cities within each county. These sub-federal public defense systems are numerous and widely varied across the country.
B. Separation of Civil and Criminal Legal Aid
Generally speaking, public defense in the United States has separate providers, budgets, and funding mechanisms. Notably, whereas many state and local civil legal aid providers receive substantial funds originating from the federal government, Legal Services Corporation, state and local public defense providers receive virtually no federal funding; federal money for public defense is almost entirely restricted to the federal public defense system (i.e., attorneys for people accused of federal crimes in federal court). Sub-federal public defense programs are generally funded by state and local governments.
Although public defense and civil legal aid is generally separate, many public defense providers look to address their clients’ civil legal needs that may stem from or intersect with their criminal cases—including needs related to immigration, employment, housing, and government benefits—via the holistic defense model of service delivery. Adoption of this model is currently limited but growing. Poverty in the United States drives people into both criminal and civil courts and the underlying needs of people experiencing poverty are important to address in both systems.
C. Landscape of public defense
The landscape of modern American public defense systems was largely shaped by the landmark case Gideon v. Wainwright. In Gideon, the Supreme Court unanimously declared that defendants facing serious criminal charges are owed the right to counsel, at a state’s expense, if they cannot afford an attorney. The court acknowledged that “even the intelligent and educated layman has small and sometimes no skill in the science of law.” While Gideon imposed the right to indigent defense on states, the case did not impose specific obligations or standards on states for funding or the extent of services to be provided for indigent defendants. Historically, funding for public defenders and prosecutors has been largely disproportionate. Funding for defenders is significantly lower and resource needs are an ongoing challenge, with high caseloads and low numbers of attorneys and other necessary staff support to provide effective representation, despite being constitutionally obligated to represent.
5.10.2. Scope of Criminal Legal Aid
The Sixth Amendment to the United States Constitution guarantees, inter alia: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” This right was guaranteed in state-level prosecutions by the Supreme Court’s 1963 decision in Gideon v. Wainwright. This constitutional mandate underpins the right to counsel and access to criminal legal aid throughout the United States.
The presence of legal aid during the criminal investigation phase is not universal across the country. The Supreme Court has required law enforcement to respect a criminal defendant’s right to counsel during custodial interrogation in Miranda v. Arizona. Additionally, the right to counsel extends to ongoing police investigations once someone has invoked their right. In practice, however, the presence of effective legal counsel during the investigation phase may be limited due to a lack of funding for public defender offices. Even when legal aid is available during the investigation phase, lack of funding means that public defenders are often juggling many cases at once and do not have the capacity to conduct the extensive investigation necessary to provide effective defense.
The Supreme Court has established a right to counsel during trial, sentencing, and other critical stages. These critical stages have included custodial interrogations, arraignments, pre-trial periods, initial appeals, and probation/parole revocation proceedings. The right to counsel does not extend to every stage of the criminal procedure, such as pre-indictment plea negotiations or additional appeals after the first appeal in all states. States are also required to provide legal counsel during post-conviction proceedings that affect “fundamental rights.” It should be noted that the extent of legal representation that criminal defendants receive from indigent legal services varies across the country because of funding. While legal representation must be made available at “critical stages,” the quality of indigent legal services is at risk from low funding.
While states are required to provide legal counsel at “critical stages” of the criminal procedure, victims and witnesses are not provided the same right to counsel under the Sixth Amendment. There are various organizations and funds across the country that seek to provide legal counsel for victims and witnesses of crime. For example, the Legal Assistance for Victims Grant Program seeks to provide funding to organizations across the country to provide comprehensive, free, or low-cost civil legal and advocacy services for victims of domestic violence, sexual assault, and stalking.
5.10.3. Eligibility Criteria for Criminal Legal Aid
There is no uniform method for determining eligibility for indigent legal services in the United States. Typically, eligibility is determined by an individual’s financial capacity to hire an attorney. This is usually determined through financial records. Approximately eighty percent of felony defendants in large state courts were represented by public defenders or assigned counsel pursuant to a federal government study conducted in 2013 and updated in 2016. Many state, county and municipal jurisdictions rely on federal poverty guidelines issued by the Health and Human Services Department, while some systems promulgate their own eligibility criteria. By way of example, the federal poverty guideline for a person living alone in 2020 is $12,260.00 U.S. dollars. The gross amount of income is adjusted upward for each additional member of a family. For example, a family size of four in 2020 with an income at or below $26,200.00 is eligible for the appointment of counsel.
Most states also have various fees that courts charge indigent defendants when they request indigent legal services. When a defendant requests the assistance of counsel, judges are authorized to compel criminal defendants to pay a fee for those services. Failure to pay fees, however, does not permit counsel to be denied and nearly all states allow trial judges to waive these fees when a defendant is unable to pay. Additionally, most states authorize some form of recoupment that is at the discretion of a trial judge after trial. Some recoupment statutes apply only to convicted defendants; however, others impose recoupment on defendants even if they are acquitted.
5.10.4. Process for Obtaining Criminal Legal Aid
The process for obtaining criminal legal aid is initiated when a person charged with a crime invokes their right to counsel, when being taken into custody or at any time after charges are brought. In 1966 the U.S. Supreme Court ruled that when a suspect is being taken into custody certain rights and warnings must be given to them. The essential rights and warnings include the right to remain silent, the right to talk to an attorney before you answer any questions and if you cannot afford a lawyer, the right to have one appointed for you. Additionally, suspects must be advised that anything they say can be used against them in court. This decision was handed down in the case of Miranda v. Arizona and is referred to as Miranda rights.
Generally, a judge will determine whether a person facing charge is eligible to receive indigent legal services and those legal services will either come from a state-sponsored public defender organization or private attorneys that are acquired through contract. A defendant usually can request a court-appointed attorney during arraignment. Each state, and sometimes each county, has its own procedure and rules to determine whether a criminal defendant qualifies for indigent legal services. Many jurisdictions rely on the federal government’s poverty guidelines as illustrated above.
The method for providing criminal legal aid attorneys varies by state. Some states provide indigent legal services through statewide, countywide, or citywide public defender offices. Other states don’t have public defender offices, but instead, a contract system, where various private attorneys and law firms bid for contracts to represent a certain amount of cases at a set price. Generally, a court will contact one of these offices to assign the case to an attorney. A criminal defendant will not be able to pick their appointed counsel; however, the Sixth Amendment includes the right to “effective” counsel and, in limited circumstances, a criminal defendant may request a replacement for their appointed attorney. Lastly, a defendant has the constitutional right to refuse counsel and represent themselves in state criminal proceedings so long as the judge determines that the defendant is competent to understand and participate in court proceedings. In a study conducted in 2013, the federal Bureau of Justice Statistics found that there were 2,696,710 cases closed that involved the aid of state-administered indigent legal services in twenty-eight states, and the District of Columbia. States that did not participate include: Alabama, Arizona, California, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Michigan, Mississippi, Nebraska, Nevada, New York, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, and Washington.
However, as noted in the Cardone Report, structural problems continue to exist within the program more than 50 years after the CJA’s enactment. The fundamental issue of maintaining a constitutionally guaranteed function centered on advocating for individuals’ rights independent from the judges who hear criminal cases led to the Committee’s unanimous recommendation: that Congress create an independent defender commission within the judicial branch, but outside the jurisdiction of the Judicial Conference and AO. This recommendation is still being considered and studied even as most of the Committee’s interim recommendations have already been adopted, either as written or in modified form. While much has been done, more is needed before the full promise of the sixth amendment can be fulfilled at the federal level within the United States.
5.11. Civil legal aid
5.11.1. Scope of civil legal aid
As noted previously, in the United States, there is no general right to state-funded counsel in civil proceedings. See Lassiter v. Department of Social Services, 452 U.S. 18 (1981) and Turner v. Rogers, 564 US 431 (2011)However, state courts and state statutes or court rules, as well as some federal statutes, have provided the right to counsel in several categories of cases including termination of parental rights, adoption, and other areas.
In the US system, as a general matter, funding is not targeted for specific cases or types of advocacy. Instead, each civil legal aid program determines the scope of services and the clients they are going to serve. Most civil legal aid programs provide legal advice and full representation before courts and administrative tribunals. However, there are small entities not funded by LSC that provide limited services in specific locales or for particular client groups,
Legal aid programs can provide assistance to both court ADR programs and non-court ADR programs.
There is no national data on civil case types. LSC data is likely similar to data across the civil legal aid spectrum. See section 5.
Legal aid programs funded by LSC have limitations on the clients that they can serve.
LSC-funded programs are permitted to serve financially eligible individuals who are U.S. citizens or who are members of specified categories of aliens. LSC programs cannot assist undocumented aliens; aliens seeking asylum, refugee status, or onditional entrant status; or other categories of aliens who are legally in the U.S., including students and tourists.
Furthermore, LSC programs are not permitted to provide certain services to prisoners. Specifically, LSC programs cannot participate in civil litigation on behalf of a person incarcerated in a federal, state or local prison or participate in administrative proceedings challenging the conditions of incarceration. In addition, LSC programs are not permitted to represent persons convicted of or charged with drug crimes in public housing evictions when the evictions are based on threats to the health or safety of public housing residents or employees.
Unlike civil legal aid plans in most developed countries, neither LSC nor most state funders impose a formal “merit” test on applicants for service and representation. Nor is there a “significance test” required by LSC or state funders. Civil legal aid programs generally do not impose co-payments or client contributions from the clients served, and neither LSC nor state funders require co-payments or client contributions. In fact, LSC prohibits its programs from using co-payments for clients eligible for LSC funded services. In addition, since the U.S. legal system is not generally a “loser pays” system, civil legal aid clients and programs are not usually required to reimburse an opponent’s legal fees and costs if they lose.
5.11.2. Restrictions of civil legal aid
Much of the funding for civil legal aid programs is provided to the programs without earmarks on who can be served and what can be done. With these funds, the programs themselves make the key decisions about who will be served, the scope of service provided, the types of substantive areas in which legal assistance will be provided, the mix of attorneys and paralegals who will provide services, and the type of services provided (such as advice, brief services, extended representation, and law reform). However, as noted previously in the civil legal aid history, Congress has imposed restrictions on what LSC can fund and what its recipients can do, and a few other states have similar restrictions, in the U.S. system, LSC, IOLTA, and many other funders do not decide what kinds of cases programs will handle and which clients they will serve.
However, some government and private funding sources limit their funding to specific types of clients (e.g., aliens) or specific types of cases (e.g., domestic violence). Civil legal aid programs can decide whether to seek this funding, and many do. It is the program itself that decides internally whether to seek such funding.
5.11.3. Process for obtaining civil legal aid
Funding entities, including LSC, do not have any formal role in deciding whether legal aid is provided. Clients contact legal aid offices directly or by phone contact.
Many legal aid programs now operate legal hotlines, which enable low-income persons who believe they have a legal problem to speak by telephone to a skilled attorney or paralegal and receive advice and brief service. Legal hotlines may provide answers to clients’ legal questions, analysis of clients’ legal problems, and advice on solving those problems so that the client can resolve the problem with the formation from phone consultation. Hotlines may also perform brief services when those are likely to solve the problem and make referrals if further legal assistance is necessary. Hotlines now operate in over 92 programs in forty-five states, Puerto Rico, and the District of Columbia. Some hotlines focus on particular client groups, such as the elderly. Others serve the low-income population in general. Finally, more and more states have a central phone number (or several regional phone numbers) that clients can call to be referred to the appropriate program or to obtain brief advice about their legal problems.
Over the last twenty years, the civil legal aid system has begun in earnest to utilize innovations in technology to improve and expand access to the civil justice system. As a result, low-income persons have access to information about legal rights and responsibilities and about the options and services available to solve their legal problems, protect their legal rights, and promote their legal interests. Technological innovation in virtually all states has led to the creation of Web sites that offer community legal education information, pro se legal assistance, and other information about the courts and social services. Most legal aid programs now have Web sites with over 300 sites. All states have a statewide website, most of which also contain information useful to both advocates and clients. Most of these statewide web sites were made possible by the Technology Initiative Grants program of LSC. Projects in many states use kiosks with touch-screen computers that allow clients to produce court-ready pleadings and access to other services, such as help with filing for the Earned Income Tax Credit. Video conferencing is being used in Montana and other states to connect clients in remote locations with local courthouses and legal services attorneys.
Finally, increasing numbers of legal aid programs across the country, in partnership with the courts and legal community, are using document assembly applications, most notably HotDocs and A2j Author to expand and make more efficient the provision of legal services to clients.
In addition, there has been a rapid expansion of efforts by courts, legal aid providers, and bar associations to help people who are attempting to represent themselves in courts. Civil legal aid programs are devoting substantial time and resources to address the issue of assistance to pro se litigants. Many legal aid programs throughout the country operate self-help programs independently or in conjunction with courts.
As noted previously, each civil legal aid program funded by LSC must have a client grievance procedure consistent with 45 CFR 1621. There is no appeal to LSC, however. Clients could also report concerns to the rele4vant state bar or sue.
There is no national data available on the total number of applicants served. However, in June of 2017, LSC released its new Justice Gape report:
This report also presents analysis of data from LSC’s 2017 Intake Census. LSC asked its 132 grantee programs to participate in an “intake census” during a six-week period panning March and April 2017. As part of this census, grantees tracked the number of individuals approaching them for help with a civil legal problem that they were unable to serve, able to serve to some extent (but not fully), and able to serve fully. Grantees recorded the type of assistance individuals received and categorized the reasons individuals were not fully served where applicable.
In 2017, low-income Americans approached LSC-funded legal aid organizations for help with an estimated 1.7 million civil legal problems. They will receive legal help of some kind for 59% of these problems, but are expected to receive enough help to fully address their legal needs for only 28% to 38% of them. More than half (53% to 70%) of the problems that low-income Americans bring to LSC grantees will receive limited legal help or no legal help at all because of a lack of resources to serve them.
Other LSC data shows that in 2018, LSC programs closed 743,000 cases, provided 1.5 million people with legal information at court help desks, and referred 590,000 to other providers and services.
5.11.4. Eligibility criteria for civil legal aid
As noted previously, LSC-funded programs may only use LSC funds to provide legal assistance to clients who meet specific financial eligibility guidelines. The basic rule is that LSC programs serve clients at or under 125% of the Poverty Guidelines, or $32,750 for a family of four in 2020.
Legal aid programs that do not receive funding for LSC often restrict service to clients who meet financial eligibility guidelines. These guidelines often mirror the LSC guidelines but may be more generous or more restrictive than those guidelines, depending on the program’s priorities or on restrictions that may be imposed by other funders.
LSC programs set their own asset ceilings for individual clients. LSC-funded programs are also permitted to provide legal assistance to organizations of low-income persons, such as welfare rights or tenant organizations.
5.12. Holistic legal services
Many civil legal aid programs incorporate holistic services in their program’s structure. For example, some include social work as part of their program
One recent example: At Mary C. Snow West Side Elementary School in Charleston, WV, Legal Aid of West Virginia (LAWV) launched its Lawyer in the School Project. Through school-based clinics, lawyers provide legal services to children and amilies, often impacted by the opioid crisis and other forms of substance abuse. In an effort to reduce childhood trauma and promote the conditions essential for educational success and general well-being, the Lawyer in School Project provides school families with assistance on eviction, disrupted income, and especially legal custody for kinship caregivers, particularly grandparents.
The most prevalent form of holistic services in US civil legal Aid is Medical-legal Partnerships (MLP).
MLPs integrate lawyers into the health care setting to help patients navigate the complex legal systems that often hold solutions to many social determinants of health. MLPs are active in 333 hospitals and clinics in 46 states. Over half of LSC-funded civil legal aid programs have a medical-legal partnership. There are 146 legal aid agencies and 53 law schools. MLPs assist low-income and other vulnerable patients with receipt of public benefits, food security concerns, disability issues, housing problems, special education advocacy, employment instability, immigration issues, family law issues and other problems that affect individual and community health and require legal remedies. MLPs also train clinicians and other healthcare team members in the social determinants of health and work to identify both health-harming civil legal needs and their related policy solutions.
MLPs did not evolve because of LSC promotion or any LSC earmarked funding. MLPs developed through efforts of the National Center for Medical Legal Partnerships (now at George Washington University). In 2008, the ABA established a national support center to assist medical-legal partnerships in securing pro bono participation, promoting best practices related to MLP-pro bono practice, and ensuring quality service delivery.
Several years ago, the Health Resources and Services Administration of the Department of Health and Human Services awarded the National Center a cooperative agreement to provide training and technical assistance to community health centers to support integration of civil legal aid services into health care delivery at the health centers. Over 98 health care centers now have MLPs.
5.13. Alternative sources of legal assistance
A. Pro Bono
Legal aid non-profit providers are supplemented by approximately 900 pro bono programs, which exist in every state and virtually every locale. These pro bono programs are either components of bar associations, component units of legal aid staff programs, or independent nonprofit entities with staff that refers cases to lawyers on the pro bono panels.
The ABA Standing Committee on Pro Bono and Public Service conducted a new survey in 2017 of lawyer pro bono service in 24 states. The participating states represented a spectrum of states in terms of urban/rural distribution, political leaning, pro bono policies, and attorney demographics. The results, which included insights from over 47,000 attorneys, revealed that private lawyers in those states contributed an average of 36.9 hours of pro bono service to individual clients in 2016. By combining the results of this study with the annual reports of private attorney involvement submitted by grantees to LSC, it is estimated that LSC-funded organizations stimulate well over one million hours annually of pro bono service by private lawyers.
LSC has been a leader in encouraging pro bono. Since 1981, LSC-funded programs have had to provide a portion of their funding for private attorney involvement. Currently, each LSC-funded provider must expend 12.5% of its LSC funding for private attorney involvement. Of the 743,000 cases closed by LSC program in 2018, the most recent figures available, 80,592 were done by private attorneys. Of these cases, 68,013 were done by pro bono attorneys and 12,579 by contract or Judicare attorneys.
B. Pro Bono Innovation Fund
At the first LSC 40th Anniversary celebration in 2014, LSC President Jim Sandman presented the first Pro Bono Innovation Fund grants to 11 LSC grantee executive directors. In 2018, LSC awarded 15 grants to expand pro bono legal services for low-income clients in 12 states. Many of the projects focus on building new partnerships between legal aid programs and law schools, law firms, and other local service providers. The projects will engage more pro bono lawyers and other volunteers to leverage LSC’s federal funding and increase the legal resources available to meet civil legal needs of low-income Americans. The projects offer effective, replicable solutions to persistent challenges in current pro bono delivery systems.
Currently, 18 states have some form of mandatory or voluntary reporting of pro bono hours each year.
C. Law school clinical programs
Virtually every ABA-accredited law school operates a clinical law-teaching program. Some operate a number of clinics that actually service individual or group clients. In some areas, such as the District of Columbia, the law school clinics are an integral part of the civil legal aid system. In other areas, law school may work closely with legal aid programs and send law students to the programs for part of their clinical training. In some areas, law school clinics are small programs that operate totally independent of civil legal aid programs. Overall, law school clinical programs are a very small component of the delivery system, accounting for less than 2% of the clients served.
D. Self-Help programs
A significant development in civil legal aid in the United States is the rapid expansion of efforts to help people who are attempting to represent themselves in courts. These are described as “pro se”, “self-help” or “self-represented” litigants. Historically, parties in high-volume courts such as traffic, housing, and small claims courts consisted primarily of pro se litigants. However, more recently, pro se litigants have also begun to dominate family law dockets across the country. There are also significant increases in pro se representation in probate and other civil matters as well.
A 2016 report of a study of the civil court system found a relatively large proportion of cases (76%) in which at least one party was self-represented, usually the defendant. Tort cases were the only ones in which a majority (64%) of cases had both parties represented by attorneys. Small claims dockets had an unexpectedly high proportion (76%) of plaintiffs who were represented by attorneys, which suggests that small claims courts, which were originally developed as a forum for self-represented litigants to obtain access to courts through simplified procedures, have become the forum of choice for attorney-represented plaintiffs in lower-value debt collection cases.
As noted previously, California has the most extensive network of self-help centers with 80.
New York also has a vibrant program of 27 self-help centers around the state and assisted nearly 215,000 unrepresented litigants.
The rise of the self-represented litigant (SRL) has created an unprecedented disruption in the practice of law and the management of courts. Beginning in 2005, the SRLN, a leading voice in the national movement for 100% access to civil justice, supports justice system professionals focused on the question of how best to reform ALL aspects of the legal system (courts, legal aid, the bar and non-legal partners) so that SRLs experience the courts (and indeed the legal system) as a consumer oriented environment guided by the principles of equal protection and due process. SRLN is a resource center that provides toolkits, evaluation, implementation guidance and thought leadership; we are a network that connects and supports reform minded leaders throughout the country; and offer a geospatial data and analysis hub for the civil justice space.
There remain a very few “Judicare” programs directly funded by either LSC or other funders; indeed, LSC funds only one small Judicare program, which now has staff attorneys and paralegals who deliver legal assistance in some cases. It is very rare that a funder will directly fund, by contract or otherwise, individual lawyers or law firms. However, some staff attorney programs have created Judicare components or contracted with individual lawyers and law firms, who are paid by the staff program to provide legal assistance to certain groups of clients.
F. Private lawyers
In addition, private lawyers provide representation for a fee, often taken from client recoveries in personal injury cases, Supplemental Security Income and Social Security cases.
Legal aid programs normally do not provide representation in fee-generating cases except in narrow circumstances. For example, LSC Regulation §1609, states that LSC programs cannot use LSC funds for fee-generating cases. 45 C.F.R. §1609. This provision also apples to private funds, but not to non-LSC public funds. The purpose of §1609 is to ensure recipients assist eligible clients in obtaining appropriate legal services while limiting the use of sparse legal services resources when private attorneys are able and willing to provide adequate representation. Nevertheless, LSC has recognized that, for a number of reasons, there are certain cases for which no private attorney is agreeable to take. For this reason, §1609 provides multiple exemptions and exceptions to the general prohibition against fee-generating cases, as well as guidance for when a case does not fall into an exemption or exception category.
Non-lawyers work in civil legal aid programs. While we do not have data from all civil legal aid programs, those funded by LSC employed 1,544 non-lawyers out of 6908 advocacy staff in 2018. In addition to LSC funded program staff who are non-lawyers, there are new initiatives that use non-lawyers in the US. The most well-known is the Limited License Legal Technician (LLLT) certification program in Washington State. In June 2020, the Washington Supreme Court ended the program for future LLLt’s .
LLT allows certified persons to provide a range of legal services with areas defined by a 13 member Limited License Legal Technical Board. These technicians set up legal practices, establish fees, operate independently and provide individualized information regarding court procedures, reviewing documents and completing forms, performing legal research, drafting letters and pleadings, advising clients as to necessary documents and explaining how such documents or pleading may affect the client’s case. However, the technicians could not represent a client in legal negotiations, in court, in formal administrative proceedings or in other formal dispute resolution process unless specifically permitted.  Technicians must complete an associate level college degree, 45 credit hours in an ABA approved program and training in a practice area. They must also pass a core education exam, professional responsibility exam and a practice area exam. Finally, they must obtain 3,000 hours of substantive law-related experience, supervised by a lawyer and within 3 years before or after passing the examination.
The only practice area now available is family law including child support modification, dissolution and separation, domestic violence, parenting and support actions, paternity and relocation. Washington may expand in the future to Health care and Estate in 2019. There are now 39 LLLTs licensed to practice in Washington State but only 35 are active. Of these, 8 work in law firms; 26 own independent firms (out of the 26, one also works for a legal service provider and as a courthouse facilitator); and 1 jointly owns a law firm with an attorney. In addition, 44 are now eligible to take the LLLT exam and 16 have completed the core curriculum and now in then practicum program. Over 200 are taking then core curriculum in various community colleges.
Utah is currently designing its Paralegal Practitioner program along the lines of the Washington State program. A Task Force appointed by the Utah Supreme Court recommended in November of 2015 that the Supreme Court should exercise its constitutional authority to govern the practice of law to create a subset of discrete legal services that can be provided by a licensed paralegal practitioner (LLP) in three practice areas: temporary separation, divorce, paternity, cohabitant abuse and civil stalking, custody and support, and name change; eviction; and debt collection. The Court promulgated rules to govern LLPs and the program went into effect on November 1, 2018. The program is modeled after the Washington program. Licensing of the first LLPs is scheduled to occur in 2019.
The Institute for the Advancement of the American Legal System at the University of Denver Law School recently announced that its new “Unlocking Legal Regulation” project will work with Utah officials to test what could be groundbreaking regulations on allowing nonlawyers to provide legal services .A recent report from the Utah Work Group on Regulatory Reform suggested changes intended to improve access to justice for residents unable to afford private attorneys in civil and family court cases. Panels in California and Arizona have made similar recommendations, using similar rationale. The Utah report urged an increased role for nonlawyers in legal services, including tech companies, and mandated creation of a regulatory agency to determine how they could help.
A recent study examines a host of non-lawyer programs that have developed in addition to the LLLT program in Washington State.
According to the study:
This survey of the current national landscape identified and analyzed 23 programs in 15 states and the District of Columbia. The report describes program features and offers practical considerations for creating and implementing such programs. The programs use nonlawyer navigators who are not court staff, operate physically within a court, and provide direct “person to person” assistance to SRLs. Navigators in the study are defined as individuals who do not have full, formal legal credentials and training (i.e., a law degree), who assist SRLs with basic civil legal problems. They do not act or operate under an attorney/client relationship and they are part of a formal program and institutional auspices that provides specialized training.
Navigators work on a range of case types such as family, housing, debt collection, domestic violence, conservatorship, and elder abuse.
Programs demonstrate that well-trained and appropriately supervised navigators can perform a wide array of tasks. For example, they help SRLs find their way around the court; get practical information and referrals to other sources of assistance; or complete their court paperwork. Navigators also accompany SRLs to court to provide emotional back up, help answer the judge’s factual questions, or resolve a matter with opposing counsel.
Program managers are mindful of admonitions against nonlawyers providing legal advice and take the need for quality assurance measures seriously. Navigators come from a range of backgrounds, including paid staff, AmeriCorps members, and volunteers, among them college and graduate students, recent graduates, and retirees. The diversity of backgrounds and skill sets show the potential for using many more of these individuals, as well as for recruiting new types of community actors as navigators.
5.14. Peculiarities of legal aid in the United States
A. Language Access
Effective access to justice requires that courts design, implement, and enforce a comprehensive system of language access services that is suited to the needs of the communities they serve. Many individuals come into contact with the court system to gather information about their legal rights and responsibilities, to protect important rights, to participate in court-mandated or court-offered programs, to benefit from mediation and other dispute resolution court-based programs, and to seek out assistance from pro bono or self-help centers operated by the court. Meaningful access at each of these points of contact is critical to achieving justice. The full spectrum of language services available to provide meaningful access to the programs and services for LEP persons, includes, but is not limited to, in-person interpreter services, telephonic and video remote interpreter services, translation of written materials, and bilingual staff services.
The American Bar Association (ABA), the Department of Justice (DOJ) and the National Center for State Courts (NSCS) and State Justice Institute (SJI) have developed comprehensive guidance on what courts and court systems need to do.
The ABA developed 10 Standards for Language Access in Courts. The first Standard on Fundamental Principles provides: As a fundamental principle of law, fairness, and access to justice, and to promote the integrity and accuracy of judicial proceedings, courts should develop and implement an enforceable system of language access services, so that persons needing to access the court are able to do so in a language they understand, and are able to be understood by the court.
NCSC and SJI issued “A National Call to Action: Access to Justice for Limited English Proficient Litigants, Creating Solutions to Language Barriers in State Courts” which reports on a 2012 National Summit on Language Access in the Courts, a survey and assessment on language access and a 9 step roadmap for a successful language access program.
California provides an example of how a state has responded. More than 200 languages and dialects are spoken in California, with nearly 7 million Californians (19%) reporting that they speak English “less than very well.” As reported in my 2017 national report, on January 22, 2015, the Judicial Council adopted the Strategic Plan for Language Access in the California Courts, which provides a consistent statewide approach to ensure language access for all limited English proficient (LEP) court users in all 58 superior courts. In March 2015, the Chief Justice formed the Language Access Plan Implementation Task Force—chaired by Supreme Court Justice Mariano-Florentino-Cuéllar—to advise the council on implementing the recommendations contained in the Strategic Plan. These recommendations address the needs of LEP court users both in court (access to interpreters) and out of court (multilingual signage, translated resources and in-language assistance), with the goal of full language access to the courts and to the legal system for all Californians.
B. Legal Incubators
A relatively new development in access to justice is the legal incubator. The first legal incubator began in 2007, the Community Legal Resource Network at the City University of New York School of Law. Its mission is to provide support to their graduates interested in launching their own practice to serve low-income communities that lack access to legal representations. Since then, more than 60 legal incubators are up and running, with 75% of them having been formed since 2014. American Bar Association, ABA Standing Commission on the Delivery of Legal Services, 2016 Comprehensive Survey of Lawyer Incubators, 2016. Though their missions vary, most incubators embrace the importance of innovation and technology in the legal field and focus on the delivery of legal services to the UN- and under-represented.
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.
Incubators are an excellent trial ground for legal technology. Incubator attorneys explore innovative means to deliver legal services in a controlled environment. The implementation of technological tools is essential to create the successful small firms of the future. Automating intakes, implementing e-discovery, utilizing special software, building online legal resource centers, and other processes are in the pipeline to improve the delivery of legal services. With the majority of programs still in their infancy, few of these firms operate independently, but this is likely to change with new classes graduating from more than 60 programs across the nation annually.
Most incubators embrace the idea of community lawyering. An important aspect of community lawyering is assisting non-lawyers in the identification of legal issues. Many incubators are hosting community meetings and presenting to groups on hot topics, creating online content and other innovative educational resources to assist potential clients in learning more about their rights or an issue they or a family member/ friend may have. Using thoughtful language, posting through social media and creating digestible content are some of the many ways incubator participants are collaborating with their colleagues to create shared message for the non-lawyer.
6. COSTS OF RESOLVING DISPUTES WITHIN THE FORMAL JUDICIAL MACHINERY
6.1 Overview of Costs
In large part because the U.S. courts employ and adversarial system, most of the costs of litigation are not those paid to the government but those incurred by the parties in preparing and presenting their cases. All or nearly all jurisdictions do charge plaintiffs a fee for filing their complaint in court—typically in the low hundreds of dollars, and many charge defendants a fee, usually in a lesser amount, to file an answer to the complaint. Most also charge fees of the party—plaintiff or defendant—who demands a jury trial. Jurisdictions differ over whether the court itself pays for a stenographer to prepare a word-for-word record of what is said during the court proceedings or whether that cost is imposed on the parties. But generally a party desiring a transcript of that record is expected to pay the stenographer for that transcript. Any party desiring to appeal the court’s judgment must pay a filing fee in the appellate court along with a copy of the transcript. Where no transcript exists, most jurisdictions allow the substitution of a “settled statement,”which is is a summary of the relevant portions of the trial, which both parties and usually the trial judge agree is accurate. Judges also often require monetary bonds to protect those against whom they grant temporary relief—as, for instance, a temporary injunction, from sustaining undeserved losses if the relief proves to be unjustified.
6.2 Exemption from fees and costs
Most U.S. jurisdictions have provisions—either by statute or by incorporation of the English common law—allowing for the waiver of fees and costs the courts charge when a party is sufficiently poor. Often referred to under the Latin phrase used in the English courts, in forma pauperis, these procedures usually require the applicant to file an affidavit setting forth the sources and amounts of all his or her income and assets. Although the income-asset limit for eligibility varies considerably across the county, it usually is relatively close to the federal LSC eligibility standard for free legal services—125 percent of the poverty level. Hence most legal aid clients are also entitled to waiver of court fees and costs.
There is a major caveat, however, to the waiver of litigation costs. Few, if any, jurisdictions will waive or pay out of the court budget those costs owed third parties, such as stenographers, for their services related to the court proceedings. Similarly, a party calling an expert witness must pay his or her fees and costs for preparing and attending the trial. As a result, many legal aid organizations maintain a “fighting fund” to defray these non-waivable costs of trying a case for an indigent client. They tend to husband these funds carefully, however, because every dollar spent on such costs is a dollar less available to hire lawyers and other staff to serve other clients.
6.3 Mechanisms to Reduce Costs by Variations to Courts and Procedures
A. Small Claims Court
Most U.S. states have small claims courts that hear all cases where the plaintiff seeks only money damages from the defendant and the amount sought is less than a jurisdictional limit set by statute. Depending on the jurisdiction, that limit may range from $2,500 to $25,000, with most in the $5,000-$10,000 range. These small claims courts generally charge minimal or no filing fees. Most states allow lawyers to represent litigants in small claims courts. But for the most part, the only litigants with lawyers in those courts are employed by entities—banks, credit card companies, retailers, and the like—not individual people. Individuals can’t afford to hire private lawyers because the stakes in each case aren’t enough to yield a significant net after paying the legal fees. On the other hand, Entities typically have numerous cases in small claims court—debt collection and the like. Thus, an entity can afford to retain counsel to litigate what might be as many as five to twenty actions on a single day. Or a single lawyer specializing in collection cases might sign up to do this work for several entities-again producing enough volume to yield a good fee. No surprise small claims courts that allow lawyers frequently are heavily criticized for being collection courts for business entities.
It is against this background and in response to this sort of criticism that a few states, including California, the nation’s largest, reformed their small claims courts. First, they banned lawyers. No litigant was allowed to have a lawyer, paid or even volunteer. The only way a lawyer could appear was if he or she was a party—for instance, attempting to collect his or her fee for other legal work he or she had done for that client. The second reform was aimed directly at the “collection court” criticism. It limits the number of cases a given plaintiff can file each year — a little as two a year and as many as four, depending on the jurisdiction. So even if not represented by lawyers, no bank or other creditor can sue more than two or four of its debtors in small claims court. Unlike most American courtrooms, those handling small claims cases generally expect the judge to act in a proactive manner—asking questions, seeking evidence, and the like when unrepresented parties appear. Indeed, in the few states that ban parties from having lawyers represent them, every case is between unrepresented laymen and the judge has to uncover the underlying facts.
With the absence of lawyers, the judges in these small claims courts are expected to play an active role in developing the facts rather than relying on the litigants to make persuasive presentations. While not officially substituting equity for substantive legal rules as the basis of decision, time often makes it impossible to determine with any degree of precision the correct legal result. There are no lawyers the judge can ask to research the applicable law and submit briefs to the judge. Nor does the judge have to worry about a lawyer appealing because he or she disagrees with the judge.s ruling. In some states, a losing litigant can appeal on a claim the judge committed legal error, but such appeals are rare. In other states, an appeal leads to a “trial de novo”—a full retrial of the case, usually in a regular trial court rather than a small claims court. (This sequence of trials resembles the “First Instance”and “Second Instance”courts found in civil law countries.) But these “trials de novo” are seldom requested or held. So the small claims court decision is usually the final result in these proceedings.
B. Streamlined Processes for Modest Sized Claims
Many U.S. jurisdictions have two separate levels of courts. —a limited jurisdiction court and a court of general jurisdiction. Often the limited jurisdiction court is called a municipal court or a county court while the court of general jurisdiction is called a state court or a superior court. But whatever the name, the limited jurisdiction court only handles cases where the plaintiff seeks less than a defined amount of monetary damages — typically $25,000 or $50,000 – or is of a type that is otherwise considered of lesser importance. The two classes of courts typically have separate cadres of judges, with those appointed to the limited jurisdiction courts confined to presiding over and deciding cases only in that level of court. Of significance for access to justice concerns, the limited jurisdiction courts typically utilize a simpler, less expensive process and charge substantially lower filing fees.
Some jurisdictions, California among them, have a so-called Unified court system. All courts have the same title and there is only a single category of judges. But those courts typically try both limited jurisdiction cases as well as general jurisdiction cases—utilizing the simpler, less expensive process when presiding over limited jurisdiction disputes. That simpler process typically limits discovery which often is the most expensive phase of an American trial. Even though nearly all civil damage cases settle rather than being decided by jury verdict or a judge’s final decision, serious settlement discussions ordinarily can’t happen until both sides have investigated thoroughly enough to appraise the strength their case relative to the opponent’s. And that generally means probing the other side’s position through depositions of their likely witnesses and examination of their documents, all of which are generally time-consuming and expensive.
One should not overestimate the access to justice impact of these less complex court procedures for low and moderate income litigants. They are not simple enough for unrepresented litigants to negotiate, especially when opposed by lawyers. As defendants in cases brought by entities or well-to-do individuals, and their lawyers, they are at best only slightly less disadvantaged than they would be in a courtroom following the rules applicable in a general jurisdiction matter. As plaintiffs, they may have a better chance of finding a contingent fee lawyers willing to take their case, at least to the extent the less expensive process makes it possible to achieve a reasonable net recovery despite the jurisdictional limit imposed in cheese cases. Moreover, to the extent legal aid lawyers are available to handle some of these cases, the less costly process means they need spend less time and resources than if those same cases were being tried under the usual rules required in general jurisdiction courts.
C. Administrative Tribunals
A broad range of disputes, most commonly those involving government agencies on one side and individual citizens on the other, are consigned to be decided by administrative law judges not regular courts. This is the general approach with respect to both federal and state administrative agency decisions. The decision makers whether called hearing officers or administrative law judges or something else are not members of the judiciary in the sense of being part of the third branch of government, that is the Judicial branch. Instead they are part of the Executive branch and indeed often employees of the agency whose decisions are being reviewed. The federal government and some state governments do, however, provide for discretionary appeals to the regular courts from those administrative judges’ decisions. In some jurisdictions, those appeals are to the regular trial courts and in others directly to the appellate courts. But in either case, the appeals are discretionary in that they are petitions or requests for review, which can be summarily dismissed without an opinion or explanation of any sort. So only those instances where the regular court deems the appeal to have considerable merit, does the appealing party receive a full hearing.
Concerns about the independence of hearing officers or administrative law judges that are employees of the very agency whose decisions are being reviewed has led some jurisdictions to place them in a separate office — still within the Executive Branch of government but not employed by any of the many agencies that made the decisions under appeal. This improves the appearance and hopefully the reality that justice will be done in these administrative hearings. At least they are removed by one degree from the pressures that can be exerted by the head of a single agency who has reasons for wanting most appeals beneficiaries file to be denied (or those the agency files to be granted). Recall that many of these agencies are dispensing benefits that cost the government money and can gain kudos by keeping those benefit payments as low as possible. What having the administrative tribunals as an independent agency can not do is insulate them from an Executive branch headed by a President or a Governor who pressures for a preferred pattern of outcomes. This has happened more than once in American history where a President or a Governor has sought to reduce government expenditures by certain benefit programs by pressuring those hearing appeals by beneficiaries to deny those appeals. And, more than once the regular courts have found it necessary to reverse aa fairly high percentage of those denials as being unjustified by the facts and law.
Administrative hearings tend to less formal than trial court proceedings, lacking the trappings of a typical courtroom and robed judges, using simpler procedures with the hearing officer encouraged to ask questions and guide the discussion. The government agency is often, but not always, represented by a lawyer—the individual usually not. Legal aid organizations often employ trained lay advocates to represent their clients in administrative hearings, but there are far more such hearings than legal aid has lay advocates. Incidentally, a study by a highly regarded political scientist found that individuals represented by trained lay advocates fared as well before administrative tribunals as those represented by lawyers, but again few individuals are represented by any professional—lawyer or layman. Since so many will lack representation of any kind, in the words of one “minimum access standards for administrative agencies” document, the hearing officer “should practice engaged neutrality…not judicial passivity…including [to] set the stage and frame the key issues; ask clarifying questions;…ensure that all elements of a claim are addressed; and explain the relevant procedures, requirements, and issues, with additional detail and in plain language.” How often those hearing these administrative law cases abide by these admonitions is unknown and undoubtedly differs greatly from jurisdiction to jurisdiction and hearing officer to hearing officer to hearing officer within a given jurisdiction.
6.4. Bypassing the Government’s Legal System
In addition to the alternative forums—compulsory or optional—the court system often provides to litigants who seek to resolve disputes in the official legal system, disputants sometimes look outside the courts to private facilities, thereby avoiding the judicial system entirely.
A. Commercial arbitration
As the economy industrialized and different functions were performed by different private companies—different components of a product produced by different entities, and that product distributed by another set of entities, and ultimately sold by a network of retailers, every one of these entities was connected to the rest in a network of binding legal contracts. Those contracts, in turn, often provided that any disputes between the contracting parties would be resolved through private arbitrators. The reasons were several—arbitrators were usually experts in the industry involved, could begin working on the dispute immediately rather than waiting for it to make it through a court’s que of other cases, and would be committed to the need for an efficient as well as just decision. Frequently, these proceedings and their results would be confidential as well, so no dirty linen would be aired in the media nor known to other competitors. Sometimes, the arbitration provisions in these contracts would identify the arbitrator or arbitration firm that would be used should a dispute arise while others would leave that choice until after the dispute, if any, occurs.
B. Adhesion contract required arbitration
Commercial arbitration itself has no direct effect on access to justice for low and moderate income people, since they are not parties on either side of the disputes decided by these non-judicial forums. They may be unintended beneficiaries or losers, however, depending on how their employer fares in these arbitration proceedings, as they would should those disputes be resolved in the regular court system. No, the main impact of commercial arbitration on access to justice is the model it provided for the deployment of arbitration in a host of other disputes—those that entities have with individuals. These include customers, employees, debtors, bank account depositors, patients, and the like. In recent years, it has become nearly impossible to find a contract of any type that doesn’t include a pre-dispute commitment to resolve any future dispute between the entity and the individual through an arbitration process described in the contract. Banks do it, employers do it, medical doctors and hospitals do it, retailers do it, computer manufacturers and software companies do it, real estate agents do it, and almost every other entity in the business world does it. Oftentimes, the required process begins with a required mediation phase which moves on to an arbitration only if the parties can’t agree to an acceptable settlement through mediation. This two-phase system is sometimes called “med-arb” and is quite common in these compulsory contracts imposed on consumers, employees, etc. But unlike pure voluntary mediation it is mediation under the gun. Accept the best you can get from the other side or face an unappealable decision from an arbitrator, typically the same person who unsuccessfully attempted to mediate the dispute.
Critics of these compulsory pre-dispute clauses point out this is not a use of arbitration to improve access to justice for low and moderate income individuals. To the contrary, they claim it forces these individuals into a forum where they are usually weaker compared to their opponents than they are in the courts. The procedures are often just as complex as the courts, the entities will almost always have lawyers while the individual disputants usually won’t, and the arbitrators aren’t truly neutral, typically depending on the entities for future business, e.g., assignments to decide future cases those entities choose them to arbitrate. Finally, the arbitrator’s ruling doesn’t even have to comply with the law since in most instances appellate courts can’t overturn an arbitrator’s decision on grounds the arbitrator committed legal error, no matter how significant that error was to the outcome of the case.
As might be expected, these one sided contractual provisions remain highly controversial. The U.S. House of Representatives recently passed a bill that banned enforcement of such pre-dispute commitments to arbitration in most contracts between entities and their consumers, employees, etc. But the Senate refused to even consider this legislation, so the provisions remain legally valid as well as endemic throughout the country. Many state courts and legislatures have sought to at least regulate the arbitrations themselves in ways that would tend to make them fairer to individual disputants. But most of those regulations have been struck down by federal courts as being inconsistent with the federal Arbitration Act that encourages arbitration of disputes related in any way to interstate commerce. While legal aid (or pro bono representation) would have been the only source of representation for poor people involved in many of these cases had they remained in court rather being forced into arbitration, a good percentage of the cases would have attracted contingent fee or class action lawyers in courts because of the potential damage recoveries involved. But most of these arbitration clauses bar class action arbitrations and arbitrators are not viewed to be as generous as juries when an individual faces a business entity, even if the individual wins. There are exceptions, of course, but it is seldom that contingent fee or class action lawyers accept cases for individuals if they are compelled to be decided in arbitration. So poor and even many moderate income people lose these alternative sources of legal representation in thousands of cases—and quite possibly scores of thousands — each year. Legal aid and lawyers can fill only a part of this gap in legal resources available to the poor, but only a relatively small part because of their own limited funding and the multitude of other types of cases for which they are the only option.
7. THE PROTECTION OF DIFFUSE AND COLLECTIVE RIGHTS
7.1. Class Actions
In the United States, individual litigants can bring class action lawsuits to remedy rights, which are shared by people in a common situation, such as welfare recipients who are subject to welfare rules or procedures that are challenged as unconstitutional or violative of statutory provisions. Courts can also consolidate individual cases into one case or class action. Class actions can be brought in both federal and state courts. Most state civil procedure rules have a class action rule similar to Rule 23 of the Federal Rules of Civil Procedure.
Most class actions brought by legal aid programs, public interest firms, and civil rights organizations are conducted under Rule 23(b)(2) and seek an injunction to stop illegal action or policy and do not require the notice requirements of class actions brought to obtain damages or shareho9lder relief.
Many of these class actions are also brought under Section 1983 of Federal Civil Ri9ghts law, 42 USC 1983, and Civil Rights Attorney’s Fees Award Act of 1976. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations. Section 1983 does not provide civil rights; it is a means to enforce civil rights that already exist. To prevail in a claim under section 1983, the plaintiff must prove two critical points: a person subjected the plaintiff to conduct that occurred under color of state law, and this conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution. A successful Section 1983 case also provides for the recovery of attorney’s fees under 42 USC 1988.
Civil legal aid programs funded by LSC are prohibited from bringing or participating in class actions, but can represent individuals who are members of a class in certain limited circumstances to recover benefits from the results of the class action. However, the m any civil legal aid programs not funded by LSC do bring class actions. In addition, public interest law firms and many private attorneys bring class actions and recover attorney’s fees under fee shifting statutes such as 42 USC 1988.
In Appendix 2, we have set out the entire rule since it addresses many of the issues, which arise in class action litigation.
Class actions brought by civil legal aid programs, public interest law firms, civil rights organizations and individual attorney to remedy illegal and discriminatory state action by federal. State or local governments have been very successful at addressing problems faced by similarly situated persons. The controversies about class actions focus primarily on damage actions and shareholder suits. Class actions seeking injunctive relief are generally considered efficient add equitable.
7.2. Group Representation
In addition to class actions, civil legal aid programs provide legal assistance to organizations of low-income persons, such as welfare rights or tenant organizations.
7.3. Other Systemic Advocacy
Finally, civil legal aid programs do considerable systemic advocacy in addition to class actions. Indeed, LSC programs are specifically required by the LSC performance Criteria 3 to engage in advocacy that “maximizes the use of its resources and achieves in its representation and work the greatest possible benefits and systemic solutions for other low-income people who may face similar legal problems, and for the eligible population as a whole.” Such advocacy includes permissible policy advocacy before administrative and legislative bodies, appealing cases to get appellate decisions creating binding law, community economic development, and projects directed to specific group such as domestic violence victims, homeless, Veterans and he like.
8. PROFESSIONAL LEGAL ETHICS
In the United States, lawyers are required to follow ethical rules of professional conduct. Every state, DC, Puerto Rico and the Territories has its own rules of professional conduct, though most are modeled on the Model Rules of Professional Conduct promulgated by the American Bar Association. These rules cover:
- Client-lawyer relationship
- Transaction with persons other than clients
- Law firms and associations
- Public service
- Information about legal services
- Maintaining the integrity of the profession
In most states, lawyers are required to join a mandatory bar association which regulates the profession. This includes enforcing ethical rules and disciplining, suspending or disbarring lawyers who violate the ethical rules. Most states have a bar committee which issues ethical opinions and offers guidance and a bar committee which oversees enforcement and discipline of the ethical rules.
Virtually all law schools teach ethics and most require an ethics class to graduate. Many require law students to do pro bono work to graduate. Under the leadership of Chief Justice Lippman, New York became the first state in the nation to promulgate a rule requiring law students to complete 50 hours of pro bono service before gaining admission to the New York bar. New Jersey, California, and Montana among others are considering similar rules to the one developed in New York.
A few states are beginning innovative law student pro bono programs. For example, New York’s new Pro Bono Scholars Program, introduced in New York in February of 2014 gives law students an incentive to devote their last semester of law school to pro bono work, making a significant contribution to addressing the access to justice gap. New York’s Poverty Justice Solutions is a new program launched in 2015 that is designed to extend the reach of the Pro Bono Scholars program. Each year, Poverty Justice Solutions will take 20 exceptional Pro Bono Scholars and place them after graduation and admission in two-year fellowships with civil legal service providers in New York.
Most bar examinations, have legal ethics questions. Many but not all states require continuing legal education in ethical rules and ethical practice. A few bar admission ceremonies emphasize legal ethics but there is no general statement that lawyers make when admitted that specifically references ethical duties.
In the US, lawyers actively engage in lobbying for changes in the substantive law or regulations to benefit the poor or to resist changes that would harm that part of the public. The American Bar Association and many state and local bar associations do lobby state legislative and administrative agencies and the Congress and federal agencies regarding laws, regulations and policies that effect low-income people. Lawyers and bar associations are very actively engaged in preserving LSC and increasing federal funding for LSC.
In the US, there would be virtually no support for a global (or regional) code governing lawyers’ conduct and/or some kind of legal Hippocratic Oath.
8.1. Professional legal ethics and pro bono activities
Pro bono work is an aspirational ethical goal in the U.S. It is included in Rule 6.1 of the ABA Model Rules of Professional Conduct and has been adopted by most states in their state ethical rules. Rule 6.1 provides:
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
(b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system or the legal profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
Although Rule 6.1 is not mandatory but aspirational, a few states have required that all members of the Bar report annually on their pro bono activity. According to a survey put together by the ABA Standing Committee on Pro Bono and Public Service, only six states have adopted mandatory reporting requirements and eleven have voluntary reporting. Seven permit attorneys who take pro bono cases to earn credit toward mandatory legal education requirements.
8.2. Limited Representation
The American Bar Association has set out the circumstances under which lawyers may limit the scope of their representation in Rule 1.2(c) of the Model Rules of Professional Conduct. This Rule requires lawyers who limit the scope of their representation to do so only in those cases where the limitation is reasonable under the circumstances and the client gives informed consent to the limitation.
At least, forty-one states have now adopted Rule 1.2(c) or a substantially similar rule. Most of those states that have varied from the Model Rule require the client’s consent to be in writing. A few have set out a checklist of tasks to be assumed when the lawyer provides a limited scope of representation.
The American Bar Association issued a new ethics opinion, Formal Opinion 472, on November 39, 2015 that set out recommendations on how lawyers should communicate with persons receiving limited-scope legal services, including the lawyer providing the service and the lawyer representing the other side of the dispute.
The US has strict confidentially rules that affects legal aid and pro bono practice. Rule 1.6 provides:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
In the US, legal aid programs have faced requests from funders to access client names and client information protected by state ethical rules. Many states have issued ethical opinions that have ruled that funders cannot have such access unless the access is required by state or federal law. Until 1996, the LSC Act was interpreted to prevent LSC from accessing such client information. However, in 1996, Congress adopted a law that required LSC recipients to give LSC monitors and auditors access to financial records, time records, retainer agreements, client trust fund and eligibility records, and client names, unless they contain information that is protected by the attorney client privilege.
For a broader examination of how restrictions on LSC programs are affected by ethical rules, see Alan W, houseman, “The Future of Legal Services: Legal and Ethical Implications of the LSC Restrictions” Vol XXV, Fordham Urban Law journal (Nov. 2, 1998).
9. TECHNOLOGICAL INNOVATION AND ACCESS TO JUSTICE
Over the last twenty years, the civil legal aid system has begun in earnest to utilize innovations in technology to improve and expand access to the civil justice system. As a result, low-income persons have access to information about legal rights and responsibilities and about the options and services available to solve their legal problems, protect their legal rights, and promote their legal interests.
LSC has pioneered the use of technology to expand access to civil legal aid and to the courts. Since 2000, LSC has funded more than 755 projects totaling nearly $69 million in Technology Initiative Grants (TIG). After a Technology Summit in 2014, LSC set as its mission statement to provide some form of assistance to 100% of persons otherwise unable to afford an attorney for dealing with essential legal needs. See also portal project described above in 5 C.
For example, in 2018, LSC awarded 26 grants to 24 legal services organizations in 21 states for a total of $3,884,257. The TIG program funds projects that use technology to provide greater access to high-quality legal assistance for low-income Americans. Among the 26 initiatives are projects that enhance online self-help resources, expand services to rural communities, and facilitate clients’ ability to seek legal help via text messaging services and voice assistants like Google’s Siri and Amazon’s Alexa.
Technological innovation in virtually all states has led to the creation of Web sites that offer community legal education information, pro se legal assistance, and other information about the courts and social services. Most legal aid programs now have Web sites with over 300 sites. All states have a statewide website, most of which also contain information useful to both advocates and clients. Most of these statewide web sites were made possible by the Technology Initiative Grants program of LSC. All of these state sites can be accessed through www.lawhelp.org. Half of the sites are hosted on one platform operated by Pro Bono net. Dozens of national sites provide substantive legal information to advocates; other national sites support delivery, management, and technology functions. Many program, statewide, and national websites are using cutting-edge software and offering extensive functionality. Projects in many states use kiosks with touch-screen computers that allow clients to produce court-ready pleadings and access to other services, such as help with filing for the Earned Income Tax Credit. Video conferencing is being used in Montana and other states to connect clients in remote locations with local courthouses and legal services attorneys.
Finally, increasing numbers of legal aid programs across the country, in partnership with the courts and legal community, are using document assembly applications, most notably HotDocs and A2j Author to expand and make more efficient the provision of legal services to clients. These projects generally focus on the use of document assembly for pro se resources used by the public and automated documents used by legal aid staff to more efficiently represent their clients. Many of these projects nationally are coordinated through Law Help Interactive, which is a project of Pro Bono Net.
A2J Author uses HotDocs Online software to assist self-represented litigants in a web-mediated process to assess eligibility, gather pertinent information to prepare a set of simple court forms, and then deliver those forms ready to be signed and filed. A2J Author is equipped with “just in time” help tools, including the ability to speak each word of the interview to the user in English or Spanish. The user can be directed to other websites to obtain explanations of technical terms.
Since 2008, Pro Bono Net was successful in recruiting and training legal nonprofits across the US to learn how to use and create online forms through LawHelp Interactive (LawHelpinteractive.org) to respond to the emerging crisis. In addition, document assembly is a used in civil legal aid nonprofit firms by their staff attorneys, and by Pro Bono Projects, looking to make the creation of complex pleadings and legal forms easier and more efficient for their attorneys and/or volunteers. Document assembly software asks questions and then puts the answers to these questions into the appropriate places on forms. The interview provides guidance and definitions at it goes along. The software also often provides an easy way to integrate definitions and explanations of basic legal terms and concepts. At the end of the interview, the person receives complete documents with printed instructions on what they need to do with the forms. In the past 5 years, output from document assembly platforms can also be integrated into legal aid Case Management Systems (CMS) like Legal Server and Salesforce, court Efilings systems, and other lighter and less complex integrations like fax and file approaches and the like.
The American Bar Association Commission on the Future of Legal Services conducted a comprehensive examination of issues related to the delivery of, and the public’s access to, legal services in the United States. Adopting a cornerstone recommendation from the Commission, the ABA has established a new Center for Innovation to drive innovation in the legal system, serve as a resource for ABA members, maintain an inventory of the ABA’s and others’ innovation efforts, and offer innovative fellowships to work with other professionals to create models to improve the justice system. The ABA Center for Innovation officially launched on September 1, 2016, with a mission to encourage and accelerate innovations that improve the affordability, effectiveness, efficiency, and accessibility of legal services.
Among recent activities, the Center is assisting with a free, online legal checkup tool that is being created by a working group led by the ABA Standing Committee on the Delivery of Legal Services. The checkup will consist of an expert system of branching questions and answers that helps members of the public to identify legal issues in specific subject areas and refers them to appropriate resources. Center members and staff are in the early stages of developing a social entrepreneurship project, in which legal tech and other companies focus on sharing their technology to legal aid organizations at a discounted rate or pro bono. Further, the Center is establishing a comprehensive Innovations Clearinghouse to catalog ongoing legal services innovations around the world so that we can better understand existing efforts, avoid duplicating current projects, and inform the Center’s decisions regarding new initiatives. A prioritized list of areas of focus for the Center will be the basis of a nationwide “Call for Project Proposals” competition. Selected projects will receive technical support, collaborative resources and, in some cases, small monetary grants to assist in the development and implementation of worthwhile endeavors that advance the Center’s mission.
Working with Stanford Law School, Southeast Louisiana Legal Services (SLLS), LSU Law School, and Louisiana Appleseed, the Center created a mobile app to help Louisiana flood victims gather information and documents needed to establish home ownership and complete disaster relief applications. The Center later developed a web-based version of Flood Proof and explored efforts, in cooperation with the ABA Standing Committee on Disaster Response and Preparedness and Louisiana Appleseed, to drive greater awareness and use of these new technology resources. Through a collaborative effort with SLLS, LSU Law School, Southern University Law School, Baton Rouge Bar Association, Louisiana Appleseed, and local and state government, flood victims are being introduced to both the mobile app and web platform to assist in recovery. The overall Flood Proof project, including the mobile app design, was made possible by funding from the W.K. Kellogg Foundation and the Baton Rouge Area Foundation.
The Legal Tech for a Change Project is a partnership between the ABA’s Center for Innovation and the Legal Services Corporation. The project’s objectives are simple: (1) To get cutting-edge technology into the hands of our nation’s legal aid providers so that they can increase their capacity to serve more clients; and (2) To help legal tech companies demonstrate how their products and services can improve the efficiency and effectiveness of legal services. Together, the ABA’s Center for Innovation and the Legal Services Corporation seek to facilitate the donation of legal technology. Interested legal technology companies and LSC grantee legal aid organizations just need to tell us a little bit about themselves using the form provided below. A member of our team will reach out soon to discuss if you are a fit for the program.
Within days of a recent executive order regarding immigration that detained scores of immigrants at airports, the ABA Center for Innovation worked with the American Immigration Lawyers Association (AILA) and the ABA Law Practice Division to launch www.immigrationjustice.us, a site that supports pro bono attorneys seeking to engage in immigration law. The site provides necessary resources for organizing pro bono attorneys nationwide. The Center also prepared a toolkit for quickly developing rapid response websites. This project demonstrated that bar associations can work together with agility and common purpose, particularly when aided by innovation.
An example of what some states are doing is California, where the Chief justice established a Commission on the Future of California’s Court System. A 2017 Report from the Commission describes the extensive process that was used and the recommendations that were made in five areas: civil; criminal/traffic; family/ juvenile; fiscal/court administration; and technology.
10. UNMET LEGAL NEEDS
In June of 2017, LSC released its new Justice Gape report: Legal Services Corporation. 2017. The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans. Prepared by NORC at the University of Chicago for Legal Services Corporation. Washington, DC.
To update two previous Justice Gap reports, LSC contracted with NORC at the University of Chicago to conduct a survey of more than 2,000 adults living in low-income households. For the purposes of the survey, “low-income households” are households at or below 125% of the Federal Poverty Level (FPL), the income eligibility standard for people seeking assistance from an LSC-funded legal aid program. The survey was administered using telephone and web interview modes to gather detailed information about low-income Americans’ civil legal needs at the individual level, household level, and level of specific civil legal problems.
According to the Report, the survey sought to accomplish the following goals:
- Measure the prevalence of civil legal problems in low-income households in the past 12 months;
- Assess the degree to which individuals with civil legal problems sought help for those problems;
- Describe the types and sources of help that low-income individuals sought for their civil legal problems;
- Evaluate low-income Americans’ attitudes and perceptions about the fairness and efficacy of the civil legal system; and
- Permit analysis of how experiences with civil legal issues, help-seeking behavior, and perceptions vary with demographic characteristics.
The study found seven of every 10 low-income households have experienced at least one civil legal problem in the past year. A full 70% of low-income Americans with civil legal problems reported that at least one of their problems affected them very much or severely. They seek legal help, however, for only 20% of their civil legal problems. Many who do not seek legal help report concerns about the cost of such help, not being sure if their issues are legal in nature, and not knowing where to look for help.
Based on the analysis presented in this report, LSC found three key findings relating to the magnitude of the justice gap in 2017:
- Eighty-six percent of the civil legal problems faced by low-income Americans in a given year receive inadequate or no legal help;
- Of the estimated 1.7 million civil legal problems for which low-income Americans seek LSC-funded legal aid, 1.0 to 1.2 million (62% to 72%) receive inadequate or no legal assistance;
- In 2017, low-income Americans will likely not get their legal needs fully met for between 907,000 and 1.2 million civil legal problems that they bring to LSC-funded legal aid programs, due to limited resources among LSC grantees. This represents the vast majority (85% to 97%) of all of the problems receiving limited or no legal assistance from LSC grantees.
There have been many discussions of the justice gap. See for example, “An Unacceptable Justice Gap: The Legal Services Corporation and Its Fight for Civil Legal Aid” by William Robertsand “The Justice Gap: America’s Unfulfilled Promise of ‘Equal Justice Under Law’” by Lincoln Caplan in the Harvard Magazine. Recently the World Justice Project issued a report based on a legal needs study it conducted: Global Insights on Access to Justice.
11. PUBLIC LEGAL EDUCATION
Every state has a state website that includes information about legal rights of low and moderate-income persons. These also include common legal problems facing low and moderate-income persons and what can be done to enforce and protect their rights.
In addition, a relatively new organization has developed Voices for Civil Justice (Voices). Voices is the national communications and media resource for advocates of civil legal aid and civil justice reform. Voices’ mission is to drive a drumbeat of media coverage that educates policy makers and the engaged public about what civil legal aid is, why it matters, and why it deserves support. Voices garners media coverage that builds awareness and support for reforming the civil justice system so that it works for everyone, not just for the wealthy and powerful.
Its three-person staff taps a 1,500-member, 50-state network of advocates and spokespeople to generate media coverage. Averaging about two media placements per week, Voices has had a hand in more than 500 news stories, opinion pieces, editorials and columns that illuminate how civil legal aid is a lifeline for people who must navigate the civil justice system to protect their families, homes and livelihoods. These pieces have appeared in some 200 media outlets, including prominent legacy outlets like: The New York Times, Washington Post, Wall Street Journal, USA Today, Los Angeles Times, The Atlantic, The New Yorker, Associated Press and Bloomberg News; national broadcast and digital outlets like NPR, CBS Evening News, PBS News Hour, CNN, FoxNews.com, and NBCNews.com; and outlets for specialized audiences like the Chronicle of Philanthropy, Governing, National Law Journal, American Lawyer Magazine, Law360, and even Sports Illustrated.
In early 2019, Voices achieved a long-sought goal: to create a digital stories website and campaign that conveys a common narrative about reforming the civil justice system so it works for everyone, not just those with lawyers. There has long been a need for a unified narrative about the crisis in the civil justice system, and it was Voices’ 2017 opinion research by Lake Research Partners that made this possible. The research confirmed the voting public’s strong support for reforming the civil justice system to make it more accessible, with key findings as follows:
- Overwhelming majorities of voters believe it is important to ensure that everyone has access to the civil justice system.
- Voters believe equal justice under the law is a right, not a privilege.
- Voters want civil justice reform, and they strongly support a wide range of services to enable everyone to get access to the information and assistance they need, when they need it, and in a form they can use.
- Strong majorities of voters support increasing state funding to build a more accessible civil justice system, and surprisingly that support remains robust even when tied to the notion of raising taxes to do so.
The new messaging resource, called “All Rise for Civil Justice”, defines and conveys the urgency of the crisis; explains how it affects people’s ability to protect their families, homes and livelihoods; and spotlights practical solutions available to address the crisis. The website uses easy-to-share mediums like video, photos, animations and mapping to tell the stories of people suffering the consequences of a civil justice system that fails ordinary Americans. It is intended to be a one-stop shop for resources to better tell the stories of affected people, families and communities. It is intended to promote message discipline to advocate more consistently and persuasively for system-wide change.
12. GLOBAL EFFORTS ON ACCESS TO JUSTICE
On September 15, 2016, access to justice experts from the academic and nonprofit communities gathered for a Consultation with U.S. government officials to recommend “access to justice indicators” to guide data collection for tracking and promoting access to justice in the United States.
As part of the Civil Society Consultation, the academic and nonprofit experts provided government officials with recommended indicators in the following categories:
- Criminal Justice Indicators, focusing on indigent defense, the intersection of the civil & criminal justice systems, and reentry
- Civil Justice Indicators, focusing on
- disaster response
- family law and matrimonial matters
- finance and consumer protection (including credit card debt and home foreclosure)
- gender-based violence
- public benefits
- tribes and tribal members
- veterans and service members
Upon the adoption of the UN Sustainable Development Agenda and President Obama’s issuance of a Presidential Memorandum formally establishing the White House Legal Aid Interagency Roundtable (LAIR), and charging it with responsibility for assisting the United States in implementing Goal 16. As discussed in my 2017 national report, on November 30, 2016, the U.S. Government issued the First Annual Report of the White House Legal Aid Interagency Roundtable: Expanding Access to Justice, Strengthening Federal Programs. The Report documents the many steps taken by the LAIR agencies to advance agency goals in collaboration with civil legal aid. LAIR’s efforts to advance development of indicators for Goal 16 are described in this factsheet released in January 2017.
In 2017, LAIR held three successful meetings with attendance from nearly all 22 federal agencies at each meeting. These meetings, held in April, July, and October, focused on priority areas of the current administration: how civil legal aid supports successful reentry and employment, how civil legal aid helps veterans and service members, and how civil legal aid helps victims of crime. Each meeting included presentations from civil legal aid providers. LAIR also convened listening sessions with the civil legal aid community on the topics of homeless veterans and veterans at-risk of homelessness, faith-based civil legal aid, and civil legal aid’s role in responding to the opioid crisis.
In 2018, the Department of Justice closed the Office for Access to Justice, which served as the staff to LAIR. The functions of that office were transferred to the Office of Legal Policy and in April 2019, that office convened its first LAIR meeting to discuss elder abuse, as described in this DOJ posting.
The United States continues to report data for a number of indicators that have been agreed upon through the UN process.
This year, for the first time since the United Nations adopted the 2030 Agenda for Sustainable Development, the global community came together to focus on Goal 16’s call to “ensure equal access to justice for all.” On this occasion, NLADA launched an initiative to further connect the U.S. corporate community interested in advancing access to justice with opportunities to strategically collaborate with NLADA’s members – civil legal aid offices, public defender offices, and clients across the country – to advance the goal of providing 100% justice for all. This effort will create opportunities for the U.S. corporate community to display their efforts to close the “justice gap” on the global stage.
NLADA has been guided by its Corporate Advisory Committee (CAC) in launching this work through a number of occasions including a roundtable with its CAC members and other corporate partners on Access to Justice: U.S. Corporate Leadership on Goal 16 in May 2019 in Louisville, Kentucky during the annual Equal Justice Conference. The roundtable provided a forum for participants to exchange information and promising practices on corporate-led access to justice activities.
On July 17, 2019, NLADA co-sponsored an event on How Legal Empowerment Advances Sustainable Development Goals with the Task Force on Justice, the Bernstein Institute for Human Rights, Namati, and the Open Government Partnership connected to the United Nations High-Level Political Forum on Sustainable Development. At that event, NLADA issued a policy brief entitled Access to Justice is Good for Business written by NLADA Senior Fellow Maha Jweied, who formally led the U.S. Department of Justice’s Office for Access to Justice and served as the U.S. Government’s Goal 16 Subject-Matter Expert. The policy brief identifies the ways in which corporate America advances access to justice and describes three main strategies: (1) Contributing Resources; (2) Advancing Policy and Legal Reform; and (3) Implementing Sound Business Practices. It also includes a call to the business community for increased partnership with NLADA and other public interest organizations to accelerate their efforts to respond to the legal needs of low-income and vulnerable members of our society.
Expanding on this activity, in September 2019, NLADA sponsored a successful United Nations (UN) Sustainable Development Summit side-event: Corporate America Advances Goal 16. Hosted by AT&T in Rockefeller Plaza in New York, NY and co-sponsored by AT&T, Hewlett Packard Enterprises, Pathfinders for Peaceful, Just and Inclusive Societies, Namati, and the Justice for All Campaign, the gathering highlighted the ways in which the corporate community advances access to justice. At the event, NLADA recently launched a new working group of the CAC to advance Goal 16 of the UN Sustainable Development Agenda. The Goal 16 Working Group identifies access to justice policy initiatives that can be advanced through our public-private partnership. The working group was successfully registered as NLADA’s commitment to advancing Goal 16 of the Sustainable Development Goals with the United Nations SDG Partnerships Platform. NLADA held the first meeting of this working group during our Annual Conference in Detroit, Michigan in November with three meetings to follow in 2020.
While there is a right to counsel in felonies (Gideon v. Wainwright 372 U.S. 335 (1963)), delinquency cases involving juveniles (In re Gault, 387 U.S. 1 (1967)) and misdemeanor prosecution of adults (Argersinger v. Hamlin, (1972)) the promise of Gideon at the state and local levels has not been achieved. Accused persons who are unable to afford counsel do not receive the same kind of competent, well-supported, conscientious lawyer every person of financial means seeks to retain when charged with criminal conduct and faced with a loss of liberty.
At the federal level, while much better resourced and staffed than state and local defender programs, structural problems continue to exist within the federal defender program more than 50 years after the CJA’s enactment. The federal defender system has not solved the fundamental issue of maintaining a constitutionally guaranteed defender function centered on advocating for individuals’ rights independent from the judges who hear criminal cases.
An integrated and comprehensive civil legal assistance system should have the capacity to:
(1) educate and inform low-income persons of their legal rights and responsibilities and the options and services available to solve their legal problems; and,
(2) ensure that all low-income persons, including individuals and groups who are politically or socially disfavored, have meaningful access to high-quality legal assistance providers when they require legal advice and representation.
The United States has made considerable progress in meeting the first of these two objectives. Expanding access through technology and self-help representation activities continues and has increased. However, progress has been slow in meeting the second. There have been increases in state funding as well as from other funding sources. The decreases in IOLTA funding have slowed although IOLTA funding remains lower than before the Great Recession. There are more Access to Justice Commissions and increased attention to civil legal aid at the state level. The notion of a right to counsel in civil matters has gained renewed attention in most areas of the United States. There is not enough funding or pro bono assistance available to provide low-income persons who need it with legal advice, brief service, and most particularly extended representation. There are not enough actual staff lawyers, paralegals, lay advocates, law students and private attorneys available to meet the huge needs of low-income persons for advice, brief service and full representation. With the Obama Administration came the possibility that there would be increased efforts to expand the civil legal aid system to address significantly more of the legal needs of low-income persons in the United States through increased federal funding and supportive reauthorization legislation and an effort to rebuild the legal aid infrastructure. This did not happen. As a result, many low-income persons who are eligible for civil legal assistance are unable to obtain it. The basic civil legal aid system has not closed the “justice gap.”
“Access to Justice,” the Winter 2019 issue of Dædalus
John G. Levi (Legal Services Corporation; Sidley Austin; Academy Member) & David M. Rubenstein (The Carlyle Group; Academy Member)
How Rising Income Inequality Threatens Access to the Legal System
Robert H. Frank (Cornell University)
The Invisible Justice Problem
Lincoln Caplan (journalist and author; Yale Law School)
Reclaiming the Role of Lawyers as Community Connectors
David F. Levi (Duke University School of Law; Academy Member), Dana Remus (legal scholar) & Abigail Frisch (Duke Law Journal)
More Markets, More Justice
Gillian K. Hadfield (University of Toronto; University of California, Berkeley; OpenAI)
Access to What?
Rebecca L. Sandefur (University of Illinois at Urbana-Champaign; American Bar Foundation; MacArthur Fellow)
The Right to Civil Counsel
Tonya L. Brito (University of Wisconsin Law School)
The New Legal Empiricism & Its Application to Access-to-Justice Inquiries
- James Greiner (Harvard Law School)
The Public’s Unmet Need for Legal Services & What Law Schools Can Do about It
Andrew M. Perlman (Suffolk University Law School)
Access to Power
Sameer Ashar (UCLA School of Law) & Annie Lai (University of California, Irvine School of Law)
The Center on Children and Families
Shani M. King (University of Florida Levin College of Law)
Techno-Optimism & Access to the Legal System
Tanina Rostain (Georgetown University Law Center)
Marketing Legal Assistance
Elizabeth Chambliss (University of South Carolina School of Law)
Community Law Practice
Luz E. Herrera (Texas A&M University School of Law)
The Role of the Legal Services Corporation in Improving Access to Justice
James J. Sandman (Legal Services Corporation)
Participatory Design for Innovation in Access to Justice
Margaret Hagan (Stanford Law School)
Simplified Courts Can’t Solve Inequality
Colleen F. Shanahan (Columbia Law School) & Anna E. Carpenter (The University of Tulsa College of Law)
Corporate Support for Legal Services
Jo-Ann Wallace (National Legal Aid and Defender Association)
Justice & the Capability to Function in Society
Pascoe Pleasence (University College London) & Nigel J. Balmer (University College London)
Why Big Business Should Support Legal Aid
Kenneth C. Frazier (Merck & Co.; Academy Member)
Executive Branch Support for Civil Legal Aid
Karen A. Lash (American University)
Why Judges Support Civil Legal Aid
Fern A. Fisher (Maurice A. Deanne School of Law at Hofstra University)
Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History
Robert W. Gordon (Stanford Law School; Yale Law School)
The Twilight Zone
Nathan L. Hecht (Supreme Court of Texas)
Rule 23. Class Actions
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.
(1) Certification Order.
(A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).
(C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.
(B) For (b)(3) Classes. For any class certified under Rule 23(b)(3)—or upon ordering notice under Rule 23(e)(1) to a class proposed to be certified for purposes of settlement under Rule 23(b)(3)—the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice may be by one or more of the following: United States mail, electronic means, or other appropriate means. The notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
(3) Judgment. Whether or not favorable to the class, the judgment in a class action must:
(B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.
(4) Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.
(5) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.
(d) Conducting the Action.
(1) In General. In conducting an action under this rule, the court may issue orders that:
(A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;
(B) require—to protect class members and fairly conduct the action—giving appropriate notice to some or all class members of:
(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;
(C) impose conditions on the representative parties or on intervenors;
(D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or
(E) deal with similar procedural matters.
(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1) Notice to the Class.
(A) Information That Parties Must Provide to the Court. The parties must provide the court with information sufficient to enable it to determine whether to give notice of the proposal to the class.
(B) Grounds for a Decision to Give Notice. The court must direct notice in a reasonable manner to all class members who would be bound by the proposal if giving notice is justified by the parties’ showing that the court will likely be able to:
(i) approve the proposal under Rule 23(e)(2); and
(ii) certify the class for purposes of judgment on the proposal.
(2) Approval of the Proposal. If the proposal would bind class members, the court may approve it only after a hearing and only on finding that it is fair, reasonable, and adequate after considering whether:
(A) the class representatives and class counsel have adequately represented the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims;
(iii) the terms of any proposed award of attorney’s fees, including timing of payment; and
(iv) any agreement required to be identified under Rule 23(e)(3); and
(D) the proposal treats class members equitably relative to each other.
(3) Identifying Agreements. The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
(4) New Opportunity to Be Excluded. If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
(5) Class-Member Objections.
(A) In General. Any class member may object to the proposal if it requires court approval under this subdivision (e). The objection must state whether it applies only to the objector, to a specific subset of the class, or to the entire class, and also state with specificity the grounds for the objection.
(B) Court Approval Required for Payment in Connection with an Objection. Unless approved by the court after a hearing, no payment or other consideration may be provided in connection with:
(i) forgoing or withdrawing an objection, or
(ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the proposal.
(C) Procedure for Approval After an Appeal. If approval under Rule 23(e)(5)(B) has not been obtained before an appeal is docketed in the court of appeals, the procedure of Rule 62.1 applies while the appeal remains pending.
(f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule, but not from an order under Rule 23(e)(1). A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered or within 45 days after the order is entered if any party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States’ behalf. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
(g) Class Counsel.
(1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:
(A) must consider:
(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class;
(B) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class;
(C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney’s fees and nontaxable costs;
(D) may include in the appointing order provisions about the award of attorney’s fees or nontaxable costs under Rule 23(h); and
(E) may make further orders in connection with the appointment.
(2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.
(3) Interim Counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.
(4) Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class.
(h) Attorney’s Fees and Nontaxable Costs. In a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement. The following procedures apply:
(1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.
(2) A class member, or a party from whom payment is sought, may object to the motion.
(3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a).
(4) The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d)(2)(D).
 Data source: http://worldpopulationreview.com/countries/united-states-population/
 Data source: https://en.wikipedia.org/wiki/Economy_of_the_United_States
 The information for this section was gathered from, Mediation and Conference Programs in the Federal Courts of Appeal: a sourcebook for judges and lawyers, Robert J. Niemic, Federal Judicial Center, 2006.
 ADR Programs in the State Appellate Courts, Frank G. Evans, ADR Handbook for Judges, ABA Section of Dispute Resolution, 2004
 LEGAL SERVICES CORP., The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans 14 (2017). Available at: https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf.
 ABA COMM’N ON THE FUTURE OF LEGAL SERVICES, Report on the Future of Legal Services in The United States 5 (2016). Available at: https://www.americanbar.org/content/dam/aba/images/abanews/2016FLSReport_FNL_WEB.pdf.
 NATIONAL CENTER FOR STATE COURTS, The Landscape of Civil Litigation in State Courts IV (2015). Available at: https://www.ncsc.org/~/media/Files/PDF/Research/CivilJusticeReport-2015.ashx
 SRLN Brief: How Many SRLs? (SRLN 2019), Self-Represented Litigation Network. Available at: https://www.srln.org/node/548/srln-brief-how-many-srls-srln-2015 (last visited May 21, 2019).
 See LEGAL SERVICES CORP.; supra note 1, at 25.
 Norman Lefstein, “Will We Ever Succeed in Fulfilling Gideon’s Promise?”, Indiana Law Review 39 (2018).
 See ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings and the National Coalition for a Civil Right to Counsel (NCCRC) interactive map, available at: http://civilrighttocounsel.org/map
 Available at: https://www.stout.com/en/insights/commentary/right-to-counsel-eviction-matters-gaining-groundLosAngeles
 I thank John Pollock, Coordinator of the National Coalition for a Civil Right to Counsel for providing information for this report.
 Available at: https://www.justice.gov/lair/file/828316/download
 For more detailed information about the activities of Access to Justice Commissions, see file:///C:/Users/a.houseman/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/W1DSTB8E/ABA%20Commission%20Initiatives%20August%202017.pdf
 Available at: https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_atj_commission_report_exec_summ.pdf
 How an Evidence-Based Delivery System Can Improve Legal Aid for Low- and Moderate-Income Americans by Jeffrey Selbin, Josh Rosenthal, and Jeanne Charn (Center for American Progress) June 2011. Available at: http://www.americanprogress.org/issues/open-government/report/2011/06/22/9707/access-to-evidence/ See also, Laura K. Abel, Evidence Based Access to Justice, University of Pennsylvania Journal of Law and Social Change, Volume 13 No.3, (2009-2010) at p, 295 and Designing Access: Using Institutional Design to Improve Decision Making About the Distribution of Free Civil Legal Aid,7 Harvard Law & Policy Review 61 (2013).
Available at: http://www.americanbarfoundation.org/research/Fellowshipopportunities/ABF_JPB_Foundation_Access_to_Justice_Scholars_Program0.html
 Available at: https://www.amacad.org/daedalus/access-to-justice
 See the ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings: https://ambar.org/civilrighttocounsel. In addition, the National Coalition for a Civil Right to Counsel (NCCRC) interactive map: http://civilrighttocounsel.org/map.
 Susan E. Lawrence. The Poor in Court: The Legal Service Program and Supreme Court Decision, 98 Making (Princeton: Princeton University Press, 1990).
 For more detailed information about the history of civil legal aid see Securing Equal Justice: A Brief History of Civil Legal Assistance in the United States by Alan W. Houseman and Linda Perle, revised in 2018 and To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States.This book is a three-volume history of civil legal aid in the United States. Published in 2013 by Praeger, this history was authored by Earl Johnson.
 Complete indicators, and all data and rankings, are available at www.justiceindex.org.
 Available at: https://richardzorza.files.wordpress.com/2017/05/introduction-litigant-portal.pdf
 Available at: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/2018_blueprint.pdf
 Available at: http://www.americanbar.org/news/abanews/aba-news-archives/2017/03/statement_of_abapre3.html
 Available at: https://+www.americanbar.org/groups/bar_services/resources/resourcepages/legalservicesfunding.html
 Available at: http://www.nlada.org/sites/default/files/Corporate%20Counsel%20LSC%20Letter.pdf
 Available at: https://voicesforciviljustice.org/press-clips/
 On March 9, 2017, 157 of the nation’s largest law firms sent a letter to the Director of the Office of Management and Budget urging the Trump administration to continue funding LSC. See http://www.nationallawjournal.com/image/nlj/LegalServicesLetter.pdf
 Available at: http://www.stthomas.edu/media/schooloflaw/pdf/lawdeanslettertoCongress.pdf
 Available at: https://lsc-live.app.box.com/s/fsv8qtmyis1zasrnj9zkt3ohhusosmu2
 Available at: https://abarray.org/
 The Judiciary Fiscal Year 2019 Congressional Budget Summary at 37. Available at: https://www.uscourts.gov/about-federal-courts/governance-judicial-conference/congressional-budget-request
 Available at: https://www.bjs.gov/content/pub/pdf/sgide0812.pdf
 18 U.S.C. § 3006A (g).
 18 U.S.C. § 3006A (g) (2) (A).
 18 U.S.C. § 3006A (a) (2) (B); see also Cardone at 18.
 Lynn Langton & Donald Farole, Jr., U.S. Dep’t of Just., Off. of Just. Programs, Bureau of Just. Stats, NCJ 228229, State Public Defender Programs, 2007 (2010). Available at: https://www.bjs.gov/content/pub/pdf/spdp07.pdf.
 For example, trial-level public defense in New York City is delivered by multiple non-profit organizations that are funded by the city.
 Available at: https://outlook.office365.com/mail/inbox/id/AAQkADA3MzEwNzM5LTE4YTctNDI2MC05MjNhLWMzZDVjYmFmOGM3MgAQANSkS75uGi1Lg%2BwUZhNr4gI%3D/sxs/AAMkADA3MzEwNzM5LTE4YTctNDI2MC05MjNhLWMzZDVjYmFmOGM3MgBGAAAAAAAxwWVEuTLHS5r5eSnQmuyWBwD0%2BkOF%2FMu9TKUyoXnwva7jAAAAAAEMAAD0%2BkOF%2FMu9TKUyoXnwva7jAABGxihTAAABEgAQANZBVDbXqfBCi7YQwrP2Eqs%3D
 Available at: http://www.lsc.gov/pdfs/LSCPerformanceCriteriaReferencingABAStandards.pdf
 Available at: www.abanet.org/legalservices/sclaid/downloads/civillegalaidstds2006.pdf
 Available at: http://www.lsc.gov/pdfs/LSCPerformanceCriteriaReferencingABAStandards.pdf
 Available at: http://www.nlada.org/defender-standards/performance-guidelines
 Available at: http://www.nlada.org/defender-standards/model-contract
 Available at: http://www.nlada.org/defender-standards/assigned-counsel
 Available at: http://www.nlada.org/defender-standards/death-penalty
 18 U.S.C. § 3006A (a).
 As defined by 18 U.S.C. § 5031. See 18 U.S.C. § 3006A (a) (1) (B).
 Or faces modification, reduction, or enlargement of a condition, or extension or revocation of a term of supervised release. See 18 U.S.C. 18 U.S.C. § 3006A (a) (1) (E).
 Under Chapter 313 of Title 18. See 18 U.S.C. § 3006A (a) (1) (F).
 Under 18 U.S.C. § 4109. See 18 U.S.C. § 3006A (a) (1) (J).
 18 U.S.C. § 3006A (a) (1).
 18 U.S.C. § 3006A (a) (2).
 Cardone at 17.
 18 U.S.C. § 3006A (a).
 Cardone at 20.
 Id. at 18.
 18 U.S.C. § 3006A (g).
 18 U.S.C. § 3006A (g) (2) (A).
 18 U.S.C. § 3006A (a) (2) (B); see also Cardone at 18.
 Available at: https://www.uscourts.gov/services-forms/defender-services.
 Cardone at 18-19.
 Available at: https://www.uscourts.gov/services-forms/defender-services.
 Cardone at 19-20.
 Available at: https://www.nacdl.org/Landing/PublicDefense.
 The Judiciary Fiscal Year 2019 Congressional Budget Summary at 37. Available at: https://www.uscourts.gov/about-federal-courts/governance-judicial-conference/congressional-budget-request
 Cardone at XXVII.
 Gideon v. Wainwright, 372 U.S. 335 (1963).
 Id. at 344.
 Thomas Giovanni & Roopal Patel, Brennan Ctr. for Just. at N.Y. Univ. Sch. of Law, Gideon at 50: Three Reforms to Revive the Right to Counsel (2013), https://www.brennancenter.org/sites/default/files/2019-08/Report_Gideon-at-50.pdf.
 U.S. Const. amend. VI.
 Gideon, supra note 78.
 Miranda v. Arizona, 384 U.S. 436, 498-99 (1966).
 Massiah v. United States, 377 U.S. 201, 206 (1964).
 Donald A. Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88 J. Crim. & Criminology 242, 265 (1997). Available at: https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6946&context=jclc.
 Anthony C. Thompson, The Promise of Gideon: Providing High-Quality Public Defense in America, 31 Quinnipiac L. Rev. 713, 722 (2013). Available at: https://its.law.nyu.edu/faculty/profiles/representiveFiles/Thompson%20-%20The%20Promise%20of%20Gideon_48AFB3B1-ABA5-DA6B-560BAEDC70EDC474.pdf.
 Rothgery v. Gillespie County, Tex., 554 U.S. 191, 212 (2008).
 Effective Assistance at Critical Stages, Sixth Amend. Ctr., available at: https://sixthamendment.org/the-right-to-counsel/effective-assistance-at-critical-stages.
 Evitts v. Lucey, 469 U.S. 387 (1985).
 Pennsylvania v. Finley, 471 U.S. 551 (1987).
 Thompson, op. cit., at 742-46.
 Inst. for Law & Just. & Nat’l Ctr. for Victims of Crime, National Evaluation of the Legal Assistance for Victims Program (2005), https://www.ncjrs.gov/pdffiles1/nij/grants/208612.pdf.
 Suzanne M. Strong, U.S. Dep’t of Just., Off. of Just. Programs, Bureau of Just. Stats., NCJ 250249, State-Administered Indigent Defense Systems, 2013 (2016), https://www.bjs.gov/content/pub/pdf/saids13.pdf.
 Ronald F. Wright & Wayne A. Logan, The Political Economy of Application Fees for Indigent Criminal Defense, 47 Wm. & Mary L. Rev. 2045, 2052-54 (2006), https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1261&context=wmlr.
 Id. at 2053-54.
 Helen A. Anderson, Penalizing Poverty: Making Criminal Defendants Pay for Their Court-Appointed Counsel Through Recoupment and Contribution, 42 U. Mich. J. L. Reform 323, 327-34 (2009), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1252&context=mjlr.
 Miranda v. Arizona, 384 U.S. 426 (1966).
 Thompson, op. cit., at 720.
 United States v. Gonzales-Lopez, 548 U.S. 140, 151 (2006).
 Faretta v. California, 422 U.S. 806, 835 (1975).
 Strong, op. cit., at 3.
 Cardone at 243.
 Legal Services Corporation. 2017. The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans. Prepared by NORC at the University of Chicago for Legal Services Corporation. Washington, DC. Available at: https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf
 See, e.g., Expanding Civil Legal Services to Include Social Work by Anne K Sweeney and Daniella Lachina of Cleveland Legal Aid. Management Information Exchange Journal, Volume XXXIII No.4 Winter 2018.
 Available at: https://legalaidwv.org
 See: https://medical-legalpartnership.org/
 See: Medical–Legal Partnerships: 11 Years’ Experience Of Providing Acute Legal Advice For Critically Ill Patients And Their Families by C. Andrew Eynon, Lucy J. Robinson and Kara M. Smith, March 2019, Journal of the Intensive Care Society. See also: Addressing Social Determinants of Health Through Medical Legal Partnerships, by Marsha Regenstein, Jennifer Trott, Alanna Williamson and Joanna Theiss Health Affairs, Vol. 37, N. 3: March 2918. Available at: https://www.healthaffairs.org/doi/abs/10.1377/hlthaff.2017.1264
 The requirement is imposed by LSC through its regulatory authority. See 45 CFR 1614.
 Available at: https://lsc-live.app.box.com/s/5lbcn4ncgqu5bbm31wh9v5xl80kxz0xf
 Civil Justice initiative, The Landscape of Civil Litigation in State Courts,. Available at: http://www.ncsc.org/~/media/Files/PDF/Research/CivilJusticeReport-2015.ashx
 Available at: https://www.srln.org/node/377/srln-brief-envisioning-100-access-srln-2015
 Available at: https://www.lsc.gov/media center/publications/2018-numbers
 See Brooks Holland, “The Washington State Limited License Legal Technician Practice Rule: A National First in Access to Justice,” 82 SUPRA 75 (2013).
 These data are based on conversations with Steve Crossland, Paula Littlewood and Renata Garcia. For more information, see: Law by Non-Lawyers: The Limit to Limited License Legal Technicians Increasing Access to Justice by Rebecca M. Donalds, 42 Seattle University Law Review 1 (2018).and Washington’s Limited License Legal Technician Rule and Pathway to Expanded Access for Consumers by Stephen R. Crossland and Paula C. Littlewood, Volume 122, Issue 3 Dickinson Law Review 859 (Spring 2018). Available at: https://ideas.dickinsonlaw.psu.edu/cgi/viewcontent.cgi?article=1043&context=dlr
 Available at: http://www.utcourts.gov/committees/limited_legal/Supreme%20Court%20Task%20Force%20to%20Examine%20Limited%20Legal%20Licensing.pdf
 See Nonlawyer Navigators in State Courts: An Emerging Consensus; A survey of the national landscape of nonlawyer navigator programs in state courts assisting self-represented litigants by Mary E. McClymont The Justice Lab at Georgetown Law Center assisted by Katherine R. Alteneder, Tanina Rostain, & Rebecca L. Sandefur. See American Bar Association Standards for Language Access in Courts. Available at: http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_standards_for_language_access_proposal.authcheckdam.pdf
 See Luz E. Herrera, Law Firm Incubator Programs, MIE Journal, Volume XXXI, Fall 2017
 See 45 CFR 1617.
 See Martin H. Redish, “Rethinking The Theory Of The Class Action: The Risks And Rewards Of Capitalistic Socialism In The Litigation Process. Available at: http://law.emory.edu/elj/_documents/volumes/64/2/articles/redish.pdf
 Available at: http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1967&context=ulj
 See https://www.courts.ca.gov/documents/futures-commission-final-report.pdf
 Available at: https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf
 Available at: http://washingtonlawyer.dcbar.org/november2016/
 Available at: https://today.law.harvard.edu/harvard-magazine-justice-gap
 See, for example, Michigan Legal Help at https://michiganlegalhelp.org/ and pine Tree Legal Assistance (Maine) at https://ptla.org/. Pine Tree also operates a national Veterans website at https://www.statesidelegal.org/.
 Available at: https://allriseforciviljustice.org
 Available at: https://ncforaj.org/wp-content/uploads/2016/12/Written-Submissions-Rev.-12.1.16-final-correct.pd
 Available at: https://obamawhitehouse.archives.gov/the-press-office/2015/09/24/presidential-memorandum-establishment-white-house-legal-aid-interagency
 Available at: https://www.justice.gov/atj/page/file/913981/download
 Available at: https://www.justice.gov/archives/opa/blog/legal-aid-interagency-roundtable-lair-meets-elder-justice
 The data for Goal 16 can be found at: https://sdg.data.gov/peace-and-justice-strong-institutions/
 Available at: https://www.nlada.org/sites/default/files/NLADA%20Policy%20Brief%20-%20Access%20to%20Justice%20is%20Good%20for%20Business%20(July%202019).pdf
 Available at: https://www.nlada.org/sites/default/files/Goal%2016%20Program.pdf
 To read more about the event, please see: https://www.law360.com/access-to-justice/articles/1203103/how-corporate-america-can-help-close-the-justice-gap?nl_pk=818ab93f-16c3-41b6-8e70-a806ef095f1f&utm_source=newsletter&utm_medium=email&utm_campaign=access-to-justice
 Norman Lefstein, “Will We Ever Succeed in Fulfilling Gideon’s Promise?”51 Indiana Law Review 39 (2018).