United States of America

Region North America

Alan W. Houseman & Earl Johnson

with the assistance of Michael Lewis, Cait Clarke and NLADA Defender Division

National Report

Summary of Contents

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.[1] 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) [2]

Year Billion US Dollars
2018 20,492.1
2017 19,485.4
2016 18,702.2
2015 18,219.3
2014 17,521.9
2013 16,691.5
2012 16,155.3
2011 15,517.9
2010 14,964.4
2009 14,418.7

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,[3] 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
at Birth		 Expected Years
of Schooling		 Mean Years of Schooling Gross National Income per Capita
0.924 79.5 16.5 13.3 $62,606

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.[1]

In 1974, the Second Circuit Court of Appeal[2] 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.[3]

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.[1] 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.”[2] It is estimated that in the state courts at least one party is self-represented in approximately three quarters of civil cases.[3] 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.[4]Without legal assistance, these litigants are at risk of suffering dire consequences for their families, their homes, and their livelihoods.[5]

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.[6]

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.[7]

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.[8]  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. [9]

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.[10] 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.[11]

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 [12]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.[13]

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).[14]

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. [15] 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.”[16]

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.[17]

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.[18] 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.

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.[1]   However, the m any civil legal aid programs not funded by LSC do bring class actions.[2] 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.[3] 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.”[4] 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.

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.[1]

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:[1]

  • Criminal Justice Indicators, focusing on indigent defense, the intersection of the civil & criminal justice systems, and reentry
  • Civil Justice Indicators, focusing on
    • disability
    • disaster response
    • education
    • employment/labor
    • family law and matrimonial matters
    • finance and consumer protection (including credit card debt and home foreclosure)
    • gender-based violence
    • healthcare
    • housing
    • immigration
    • 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[2] 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[3].  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[4].

The United States continues to report data for a number of indicators that have been agreed upon through the UN process.[5]

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[6] 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[7]. 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[8]. 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.

13. CONCLUSIONS

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.[1]

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.”

BIBLIOGRAPHY

Appendix 1

“Access to Justice,” the Winter 2019 issue of Dædalus

Introduction

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

  1. 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)

 

 

Appendix 2

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.

(2) Notice.

(A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.

(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:

(A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and

(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.

(2) Combining and Amending Orders. An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16.

(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).

[1] Data source: http://worldpopulationreview.com/countries/united-states-population/

[2] Data source: https://en.wikipedia.org/wiki/Economy_of_the_United_States

[3] Data source: https://www.census.gov/quickfacts/fact/table/US/IPE120218

[4] Available at: https://www.americanbar.org/content/dam/aba/images/news/2019/08/ProfileOfProfession-total-hi.pdf

[5] Available at: https://www.americanprogress.org › issues › courts › news › 2016/09/15

[6] The Federal Judicial Center’s website, www.fjc.gov, contains much useful information about the use of ADR in federal courts.

[7] 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.

[8] ADR Programs in the State Appellate Courts, Frank G. Evans, ADR Handbook for Judges, ABA Section of Dispute Resolution, 2004

[9] 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.

[10] 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.

[11] 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

[12] 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).

[13] See LEGAL SERVICES CORP.; supra note 1, at 25.

[14] Norman Lefstein, “Will We Ever Succeed in Fulfilling Gideon’s Promise?”, Indiana Law Review 39 (2018).

[15] 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

[16] Available at: https://www.stout.com/en/insights/commentary/right-to-counsel-eviction-matters-gaining-groundLosAngeles

[17] I thank John Pollock, Coordinator of the National Coalition for a Civil Right to Counsel for providing information for this report.

[18] Available at: https://www.justice.gov/lair/file/828316/download

[19] 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

[20] Available at: https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_atj_commission_report_exec_summ.pdf

[21] Available at: https://www.dcaccesstojustice.org/assets/pdf/Delivering_Justice_2019.pdf

[22] For more information, see: https://www.ncsc.org/jfa

[23]  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).

[24] See the NSF’s announcement: https://nsf.gov/awardsearch/showAward?AWD_ID=1823791&HistoricalAwards=false

[25]Available at: http://www.americanbarfoundation.org/research/Fellowshipopportunities/ABF_JPB_Foundation_Access_to_Justice_Scholars_Program0.html

[26] Available at: https://www.amacad.org/daedalus/access-to-justice

[27] 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.

[28] Susan E. Lawrence. The Poor in Court: The Legal Service Program and Supreme Court Decision, 98 Making (Princeton: Princeton University Press, 1990).

[29] 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[29] 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.

[30] See www.srln.org

[31] Complete indicators, and all data and rankings, are available at www.justiceindex.org.

[32] See ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings. See also http://civilrighttocounsel.org/map.

[33] Available at: http://www.americanbarfoundation.org/uploads/cms/documents/access_across_america_first_report_of_the_civil_justice_infrastructure_mapping_project.pdf

[34] Available at: https://richardzorza.files.wordpress.com/2017/05/introduction-litigant-portal.pdf

[35] A full list of the more than 40 notable individuals joining the Leaders Council is available online at https://lsc40.lsc.gov/leaders-council/.

[36] Available at: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/2018_blueprint.pdf

[37] Available at: http://www.americanbar.org/news/abanews/aba-news-archives/2017/03/statement_of_abapre3.html

[38] Available at: https://+www.americanbar.org/groups/bar_services/resources/resourcepages/legalservicesfunding.html

[39] Available at: http://www.nlada.org/sites/default/files/Corporate%20Counsel%20LSC%20Letter.pdf

[40] Available at: https://voicesforciviljustice.org/press-clips/

[41] 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

[42] Available at: http://www.stthomas.edu/media/schooloflaw/pdf/lawdeanslettertoCongress.pdf

[43] Available at: https://lsc-live.app.box.com/s/fsv8qtmyis1zasrnj9zkt3ohhusosmu2

[44] Available at: https://abarray.org/

[45] Page 42, available at: https://lsc-live.app.box.com/s/l41xqopkwprqmahb4e24ils3rsu6i1vlhttps://lsc-live.app.box.com/s/l41xqopkwprqmahb4e24ils3rsu6i1vl

[46] 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

[47] Available at: https://www.bjs.gov/content/pub/pdf/sgide0812.pdf

[48] 18 U.S.C. § 3006A (g).

[49] 18 U.S.C. § 3006A (g) (2) (A).

[50] 18 U.S.C. § 3006A (a) (2) (B); see also Cardone at 18.

[51] 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.

[52] For example, trial-level public defense in New York City is delivered by multiple non-profit organizations that are funded by the city.

[53] Available at: https://outlook.office365.com/mail/inbox/id/AAQkADA3MzEwNzM5LTE4YTctNDI2MC05MjNhLWMzZDVjYmFmOGM3MgAQANSkS75uGi1Lg%2BwUZhNr4gI%3D/sxs/AAMkADA3MzEwNzM5LTE4YTctNDI2MC05MjNhLWMzZDVjYmFmOGM3MgBGAAAAAAAxwWVEuTLHS5r5eSnQmuyWBwD0%2BkOF%2FMu9TKUyoXnwva7jAAAAAAEMAAD0%2BkOF%2FMu9TKUyoXnwva7jAABGxihTAAABEgAQANZBVDbXqfBCi7YQwrP2Eqs%3D

[54] Available at: http://www.lsc.gov/pdfs/LSCPerformanceCriteriaReferencingABAStandards.pdf

[55] Available at: https://www.americanbar.org/content/dam/aba/images/news/2019/08/ProfileOfProfession-total-hi.pdf

[56] Available at: www.abanet.org/legalservices/sclaid/downloads/civillegalaidstds2006.pdf

[57] Available at: https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_atj_tencivilprinciples.authcheckdam.pdf

[58] Available at: http://www.lsc.gov/pdfs/LSCPerformanceCriteriaReferencingABAStandards.pdf

[59] Available at: http://www.nlada.org/defender-standards/performance-guidelines

[60] Available at: http://www.nlada.org/defender-standards/model-contract

[61] Available at: http://www.nlada.org/defender-standards/training

[62] Available at: http://www.nlada.org/defender-standards/assigned-counsel

[63] Available at: http://www.nlada.org/defender-standards/death-penalty

[64] Available at: http://www.nlada.org/defender-standards/guidelines-governmental-contracts

[65] Available at: http://www.nlada.org/defender-standards/appellate

[66] Available at: http://www.nlada.org/defender-standards/guidelines-legal-defense-systems

[67] Available at: http://www.nlada.org/defender-standards/national-advisory-commission

[68] Available at: http://www.nlada.org/defender-standards/model-public-defender-act

[69] Available at: https://www.americanbar.org/groups/legal_aid_indigent_defendants/indigent_defense_systems_improvement/standards-and-policies/

[70] Available at: https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinciplesbooklet.pdf

[71] Available at: https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_ind_10_guidelines_court_fines.pdf

[72] Available at: https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_eight_guidelines_of_public_defense.pdf

[73] Available at: https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/crimjust_standards_defsvcs_toc/

[74] Available at: https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_ethics_opinion_defender_caseloads_06_441.pdf

[75] Available at: https://www.americanbar.org/groups/legal_aid_indigent_defendants/indigent_defense_systems_improvement/standards-and-policies/policies-and-guidelines/

[76] Available at: https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinciplesbooklet.pdf

[77] Available at: https://www.pdsdc.org/

[78] The Cardone Report is publicly available and may be found at https://cjastudy.fd.org/.

[79] 18 U.S.C. § 3006A (a).

[80] As defined by 18 U.S.C. § 5031.  See 18 U.S.C. § 3006A (a) (1) (B).

[81] 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).

[82] Under Chapter 313 of Title 18.  See 18 U.S.C. § 3006A (a) (1) (F).

[83] Under 18 U.S.C. § 4109.  See 18 U.S.C. § 3006A (a) (1) (J).

[84] 18 U.S.C. § 3006A (a) (1).

[85] 18 U.S.C. § 3006A (a) (2).

[86] Cardone at 17.

[87] 18 U.S.C. § 3006A (a).

[88] Id.

[89] Cardone at 20.

[90] Id. at 18.

[91] 18 U.S.C. § 3006A (g).

[92] 18 U.S.C. § 3006A (g) (2) (A).

[93] 18 U.S.C. § 3006A (a) (2) (B); see also Cardone at 18.

[94] Available at: https://www.uscourts.gov/services-forms/defender-services.

[95] Cardone at 18-19.

[96] Available at: https://www.uscourts.gov/services-forms/defender-services.

[97] Cardone at 19-20.

[98] Available at: https://www.nacdl.org/Landing/PublicDefense.

[99] 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

[100] Cardone at XXVII.

[101] Gideon v. Wainwright, 372 U.S. 335 (1963).

[102] Id. at 344.

[103] 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.

[104] Id.

[105] U.S. Const. amend. VI.

[106] Gideon, supra note 78.

[107] Miranda v. Arizona, 384 U.S. 436, 498-99 (1966).

[108] Massiah v. United States, 377 U.S. 201, 206 (1964).

[109] 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.

[110] 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.

[111] Rothgery v. Gillespie County, Tex., 554 U.S. 191, 212 (2008).

[112] Effective Assistance at Critical Stages, Sixth Amend. Ctr., available at: https://sixthamendment.org/the-right-to-counsel/effective-assistance-at-critical-stages.

[113] Evitts v. Lucey, 469 U.S. 387 (1985).

[114] Pennsylvania v. Finley, 471 U.S. 551 (1987).

[115] Thompson, op. cit., at 742-46.

[116] 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.

[117] 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.

[118] 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.

[119] Id. at 2053-54.

[120] 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.

[121] Miranda v. Arizona, 384 U.S. 426 (1966).

[122] Thompson, op. cit., at 720.

[123] Id.

[124] United States v. Gonzales-Lopez, 548 U.S. 140, 151 (2006).

[125] Faretta v. California, 422 U.S. 806, 835 (1975).

[126] Strong, op. cit., at 3.

[127] Cardone at 243.

[128] 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

[129] 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.

[130] Available at: https://legalaidwv.org

[131] See: https://medical-legalpartnership.org/

[132] 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

[133] See https://www.americanbar.org/content/dam/aba/administrative/probono_public_service/ls_pb_supporting_justice_iv_final.authcheckdam.pdf

[134] The requirement is imposed by LSC through its regulatory authority. See 45 CFR 1614.

[135] Available at: https://lsc-live.app.box.com/s/5lbcn4ncgqu5bbm31wh9v5xl80kxz0xf

[136] Civil Justice initiative, The Landscape of Civil Litigation in State Courts,. Available at: http://www.ncsc.org/~/media/Files/PDF/Research/CivilJusticeReport-2015.ashx

[137] See page 12: http://www.nycourts.gov/ip/nya2j/pdfs/NYA2J_2016report.pdf

[138] Available at: https://www.srln.org/node/377/srln-brief-envisioning-100-access-srln-2015

[139] See: www.srln.org

[140] Available at: https://www.lsc.gov/media center/publications/2018-numbers

[141] Available at: https://www.abajournal.com/news/article/washington-supreme-court-decides-to-sunset-pioneering-limited-license-program

[142] See Brooks Holland, “The Washington State Limited License Legal Technician Practice Rule: A National First in Access to Justice,” 82 SUPRA 75 (2013).

[143] 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

[144] Available at: http://www.utcourts.gov/committees/limited_legal/Supreme%20Court%20Task%20Force%20to%20Examine%20Limited%20Legal%20Licensing.pdf

[145] 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

[146] See Luz E. Herrera, Law Firm Incubator Programs, MIE Journal, Volume XXXI, Fall 2017

[147] See 45 CFR 1617.

[148] See Community legal Services of Philadelphia successes. Available at: https://clsphila.org/successes/

[149] 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

[150] Available at: https://www.lsc.gov/media-center/publications/lsc-performance-criteria

[151] Available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/

[152] Available at: http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1967&context=ulj

[153] See https://www.courts.ca.gov/documents/futures-commission-final-report.pdf

[154] Available at: https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf

[155] Available at: http://washingtonlawyer.dcbar.org/november2016/

[156] Available at: https://today.law.harvard.edu/harvard-magazine-justice-gap

[157] Available at: https://worldjusticeproject.org/our-work/research-and-data/global-insights-access-justice-2019

[158] 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/.

[159] Available at: https://allriseforciviljustice.org

[160] Available at: https://ncforaj.org/wp-content/uploads/2016/12/Written-Submissions-Rev.-12.1.16-final-correct.pd

[161] Available at: https://obamawhitehouse.archives.gov/the-press-office/2015/09/24/presidential-memorandum-establishment-white-house-legal-aid-interagency

[162] Available at: https://www.justice.gov/atj/page/file/913981/download

[163] Available at: https://www.justice.gov/archives/opa/blog/legal-aid-interagency-roundtable-lair-meets-elder-justice

[164] The data for Goal 16 can be found at: https://sdg.data.gov/peace-and-justice-strong-institutions/

[165] Available at: https://www.nlada.org/sites/default/files/NLADA%20Policy%20Brief%20-%20Access%20to%20Justice%20is%20Good%20for%20Business%20(July%202019).pdf

[166] Available at: https://www.nlada.org/sites/default/files/Goal%2016%20Program.pdf

[167] 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

[168] Norman Lefstein, “Will We Ever Succeed in Fulfilling Gideon’s Promise?”51 Indiana Law Review 39 (2018).