Until Civil Gideon: Expanding Access to Justice

In honor of the fiftieth anniversary of the Gideon v. Wainright ruling, Fordham Law School’s Urban Law Center,Urban Law Journal, and Feerick Center for Social Justice sponsored an all-day conference entitled Until Civil Gideon: Expanding Access to Justice.  The conference convened leading scholars as well as national and local leaders in the access to justice movement, including distinguished speakers:

  • Hon. Earl Johnson, Jr. opened the day with a reflection on the civil Gideon movement and its current efforts; Professor Benjamin H. Barton and Richard Zorza responded.
  • New York State Chief Judge Jonathan Lippman delivered the keynote speech during the conference’s luncheon session.
  • Professor Russell EnglerJustice Fern A. Fisher (Director of the New York State Access to Justice Program), and Professor Deborah L. Rhode concluded by discussing the outlook for the access to justice movement and the role of various stakeholder communities, such as the organized bar, law schools, courts, and legal services providers.

Below is the full video of the event in four parts.  The descriptions below each video part describe the panels included in that part.  For a full program of the event, including the names and titles of all the presenters, please click here.

 Part I

Until Civil Gideon: Expanding Access to Justice – Part One from Fordham Law School on Vimeo.

Welcome and Opening Remarks

The Until Civil Gideon Conference began with brief welcomes and opening remarks from Dean Michael Martin, Professor Nestor Davidson, and Professor John Feerick.  The opening remarks addressed the problems created by a justice gap between those with and without legal representation, and emphasized the conference’s goal: bringing people together to foster a dialogue on ways to reach a Civil Gideon and how to address the justice gap in the meantime.

Introductory Presentation: Civil Gideon?

Justice Earl Johnson, Jr., then made a presentation on the history of a right to equal justice in European nations and the United States.  Justice Johnson argued a civil Gideon implied a right for legal representation in civil cases which would be the same as the right to legal representation in criminal cases.  He argued the right in question was not a right to a lawyer in every civil case, but rather the right to equal justice.

His presentation was then followed by a panel of responses.  The first responder, Richard Zorza, emphasized Justice Johnson’s statement that the right in question was a right to equal justice not a right to counsel.  Zorza suggested change in terms of simplification and triage.  Professor Benjamin Barton responded next, arguing a focus on a civil Gideon is a focus in the wrong direction.  He argued instead for a focus on a fundamental shift in the legal proceedings expectations away from the fundamental expectation that the parties be represented by a lawyer towards an expectation the parties will represent themselves.

Part II

Until Civil Gideon: Expanding Access to Justice – Part Two from Fordham Law School on Vimeo.

Panel 1:  The Role of Non-Lawyers

Non-lawyers have long been excluded from the practice of law due to concerns with fraud and competency.  Yet, David Udell states that a current gap in our justice system forces us to have a conversation on how to best implement non-attorneys in the resolution of legal disputes.  This panel presents differing ideas and models that might instruct future experiments concerning the role of non-attorneys.  As John Flood argues, the conversation is not about lawyers, but rather about consumers and clients.  Mr. Flood, like his fellow panelists, then presents exciting new developments that he thinks will change the future of legal services – including a better understanding of what other service professionals might provide in addressing the justice gap.

Panel 2:  Unbundled Legal Services

One approach to providing access to justice until a civil Gideon is to “unbundle” the many different roles or services provided by a traditional lawyer into discrete, limited legal services.  This approach can allow services from many different sources to combine together to better ensure justice is served.

In this panel, Sidney Cherubin from the Volunteer Lawyers Project and Rochelle Klempner from the New York State Courts Access to Justice Program discuss how each of their organizations provides unbundled legal services to otherwise unrepresented parties.  Ms. Cherubin describes the initial ethical and practical challenges faced by the Volunteer Lawyers Project, and how it has dealt with those issues to become an important source of limited representation for New Yorkers.  Ms. Klempner then discussed the three main limited representation roles provided by her organization (namely document preparation, advice, and limited courtroom representaion), and how well they serve different parts of the Civil Courts.

Finally, Professor Justin Hansford presented an alternative view on the feasibility or efficacy of unbundled legal services as a way of promoting access to justice.  Citing to a recent study of unbundled legal services in Boston published in the Harvard Law Review, Professor Hansford questioned whether unrepresented parties would be better served by striving to get as much full represention as they could, rather than the “half measures” offered by unbundled legal services.

Part III

Until Civil Gideon: Expanding Access to Justice – Part Three from Fordham Law School on Vimeo.

Keynote Speech: Chief Judge Jonathan Lippman, New York Court of Appeals

In his speech delivered during the conference’s luncheon session, Chief Judge Jonathan Lippman discussed the steps taken by the judiciary to address the “dire and desperate need” to provide civil legal services for the poor.  In New York State, the judiciary has taken a systemic approach to this problem, and Judge Lippman described the process by which the New York courts assess needs and allocate funds specifically for civil legal services.  He also highlighted a range of reforms which facilitate and promote pro bono efforts and volunteerism by members of the bar.  These efforts included the Attorney Emeritus Program, adjusting the rules to allow in-house counsel legal departments to provide pro bono service, developing programs to allow non-lawyers to assist pro se litigants, and allowing the judiciary itself to make reasonable efforts to facilitate the ability of pro se litigants to have their matters fairly heard.  This multifaceted approach, as described by Chief Judge Lippman, only begins to fill the gap.  As he noted, for the well-being of society and the legitimacy of the judicial system, when the “basic essentials of human life are at stake, we must make good on the promise of Gideon.”

A full transcript of his remarks is available here.

Panel 3:  Technology and Self-Help

The technology and self-help panel focused on innovation and model sharing.  The panel began with Professor Conrad Johnson, who spoke of how to use technology to help individuals, advocates, and tribunals.  Professor Johnson discussed using technology to translate lawyers’ expertise to others, while giving examples of how technology helped address problems after Hurricane Sandy and with overcrowded job centers in New York.  Next, Mark O’Brien gave a non-lawyers perspective on how to approach technological issues.  Using “The Wisdom of the Crowd” as an overarching theme, O’Brien asked how to best empower people to solve their problems.  Professor Ronald Staudt’s presentation then focused on the development of web programs.  These web programs grew from simple information sites into interactive and easy to understand tools that anybody can utilize to navigate even tricky legal issues.  Finally, Professor Mary Marsh Zulack questioned how some groups would receive technology.  Professor Zulack also shared some of the problems that her students combatted when dealing with pro se litigants, including challenging judges that strayed from their limitations, and how technology could help solve some of those problems.

Part IV

Until Civil Gideon: Expanding Access to Justice – Part Four from Fordham Law School on Vimeo.

Panel 4:  Court Innovations

The fourth panel of the day focused on how the courts could improve unrepresented litigants’ access to justice.  Emily Gold stressed how important procedural justice is to the court and, even more importantly, to its clients.  She also presented simple ways for courts to provide broader and easier access, such as clearer, more universally understood signage.  Justice Marcy Friedman then spoke about the most difficult test a judge can face: represented versus unrepresented parties.  She sympathized with many judges concerns about remaining impartial, but stressed that there are legitimate and meaningful steps within judges’ power to help address the disparities in these cases.  After Justice Friedman concluded, Laura Abel addressed the fundamental problems caused by many courts’ failure to provide civil litigants with interpreters.  She detailed how this failure was being addressed, but added that there was still much to be done.  Finally, Professor Paris Baldacci spoke more broadly about the judicial branch and the role of the judge, and how this area offered the best chance to address the Conference’s headline issues.  Still, the inability of courts to conduct constitutionally mandated eloqutions properly disturbed Professor Balducci, and he emphasized the need for the court system to adopt the NYCLA best practices for motions and trials.

Concluding Plenary

The last panel of the day began with an optimistic opening statement from moderator Andrew Scherer.  Mr. Scherer stressed that the most basic problem was an advocacy gap between the wealthiest Americans and the rest of the country.  This was the basic issue at the core other panels’ discussions and needed to be addressed most of all.  Professor Russell Engler then spoke about how we must accept the limited resources available, and laid out a three pronged approach for improving access: (1) reforming the courts and administration; (2) increasing our understanding of what innovations impact case outcomes the most; and (3) an expanded civil right to counsel.  Speaking third was Professor Deborah Rhode, who discussed legal services as a civil right; a right not just for the poor, but for people of all socio-economic levels.  She also pointed out that many of the practices proposed at this conference, such as unbundled legal services, have been practiced by legal aid attorneys for years.  Professor Rhode could not understand knee jerk reaction in opposition to the continuation of these reforms.  Finally, Justice Fern Fisher took the podium to express a few summary thoughts.  She pointed out that the current system is paradoxically overlawyered and underrepresented, often as a result of the organized bar and the courts themselves.  In order to progress, she stressed that we need more help from qualified non-lawyers, better matching of clients with the appropriate level and type of legal services, research on different methods of assistance, and more education of the public regarding the access to justice problem.

Closing Remarks

Professor Dora Galacatos delivered some brief closing remarks to conclude the Conference.