Wisconsin Latest Front for Advancing Legal Literacy?

The State Bar of Wisconsin's Public Education Committee is starting to present panel discussion events to educate the public about their rights. The first event will be in a couple weeks, Monday, April 11. According to the Press release I read, the State Bar has a history of doing events for students, and this is its first serious foray into adult education. They have even created a Adult Education Task Force. This writer is very excited to read and write about legal literacy advancement in his own country, and hopes to continue to report on additional state bar associations taking on public legal education.

A Presidential Commission?

Rick Shenkman (professor of history at George Mason University) and Alexander Heffner (director of Scoop Seminar, a civics and journalism education program) wrote in the St. Petersburg Times this week that the Obama administration should appoint a high level commission to confront the lack of knowledge about politics and government among many of Americans. The article points out that studies that show that only 20% of Americans know that the Senate has 100 members, and only 14% of young people Americans can find Iraq on a map.

This lack of knowledge among the average American either leads to absurdly low levels of civic engagement among the uninformed populations -- and then when there is civic engagement, it is not necessarily based on thought-out understanding of national policy priorities. I'll add that this was evident in the 2009-2010 debate over national health care, where many Americans truly believed that the President's legislation actually created "death panels" and thus protested the legislation on this basis.

Additionally troubling were the number of Americans preaching about the constitutionality of national health care without viable theories as to what constitutional principles were implicated in the legislation. The article takes the position that a Presidential Civics Commission would galvanize civic leaders and focus the public to the problem, thus improving civic engagement.

I agree that citizen engagement is a national issue worthy of Presidential attention. However, I worry that a Commission would do nothing more than study the problem and articulate what has already been articulated. I think a Commission could have value if it were tasked with advancing curriculum and policies in the school and community settings that engage kids and citizens in the democratic process. Perhaps the Commission could study what kinds of legislation and policies would make it easier for the average citizen to engage in the democratic process.

Innovative Idea:New Lawyers Represent At Least One Indigent Client

The Chief Justice of Ghana, Georgina Theodora Wood, said in a speech to a recent regional Commonwealth Human Rights Initiative conference on access to justice for indigent arrested persons, that all new attorneys should be required to assist at least one arrestee secure a fair trial at the start of their law practice. According to Justice Wood, many poor people in Ghana don't know their right to be silent, how to learn the cause of arrest, and other rights that the non-poor know how to enforce, mostly through quickly obtaining counsel. She further advocated that the Ghana Bar Assocation do more educational programs for the public at large concerning their rights. The notion that new lawyers should start their career by taking one pro-bono case is a powerful one. It establishes the notion that being a lawyer is as much a responsibility towardsd addressing social needs as it is in engaging in busines. In my opinion, it is an idea worthy of consideration in this country as well. Justice Wood's suggestion is designed to assure that lawyers identify the start of their career with pro bono experience, in hopes that it will infuse them with a lifetime commitment to periodic or regular pro bono work. It further promotes the notion that being a laywer is not just a job, but a profession with a role in society to secure justice for both those who can afford our services, and those who cannot. I look forward to hearing how this concept develops.

Courts Funding is An Essential Aspect of Democracy

In the November 2010 issue of the ABA Journal, Stephen N. Zack, President of the American Bar Association wrote that "while dockets nationwide experience unprecedented caseloads, funds available to state judiciaries have decreased significantly." According to Zack, there have been budget reductions, layoffs, pay cuts, hiring freezes, and furloughs. Zack notes that there has been " enormous upswing in the number of federal filings [yet] Congress declined a request from the Judicial Conference of the United States to create 69 new federal judgeships." Zack points to the fact that there have been great increases in bankruptcy filings, and other problems that stem from economic problems, including divorces. Zack also points to the problem of increased pro se litigation due to the inability of individuals to afford lawyers. Zach cites to a study in which 78% of judges say that lack of representation has a negative impact on the "way court operates," which I interpret to mean impact on efficiency and fairness. Zack points to the American Bar Association Task Force on the Preservation of the Justice System to " highlight the debilitating impact of underfunding on the American justice system" by holding hearing and meeting with legislators. Although I can not speak to the specific work of the Task Force, I applaud the efforts, and fear that the goals of the task force could even be less ambitious than necessary. I have read several articles from leading public interest attorneys about the effects on the justice system of the decreasing funding that the system is getting. However, I fear that the arguments made imply that the system was satisfactory prior to the funding cuts, when in fact they were not. Court funding needs to be increased to pre-decrease levels, and increased beyond that. Courts should be funded sufficiently so that cases move along at a pace reasonably appropriate for the litigation involved. Often judges have so many cases on their plate that it can take months to rule on motions, and to schedule trial. I once worked on a case that was ready for trial at one point, but was repeatedly delayed so that the case was ultimately heard seven years after the lawsuit was filed in court. Consequently, many of the witnesses forgot the facts and each party had to pay their attorneys additional monies to remind themselves of the facts before trial.

These delays also give an unfair advantage to parties with more money, more stability, and other resources, e.g. corporate parties. Individuals are at a disadvantage when there are great delays because witnesses forget, move away, and lose touch. Corporation with more institutional experience interacting in the justice system can institute safeguards. Additionally, defendants can find ways to hide their assets if they the case is likely to take years before a possible judgment. A factual assessment of the effects of these delays would be reflected in the phrase "justice delayed is justice denied."

Also, judges with dockets that are too large have an incentive to dismiss as many cases as possible, to try to work towards a more manageable docket. I certainly don't mean to allege that any judge would intentionally dismiss a meritorious case just to feel less overwhelmed. I do mean, however, that judges simply don't have enough time to concentrate on each case as thoroughly as they like, thus causing the possibility of having to rush and thus making a mistake. (Along these lines, I would love to commission a study to review trends in appellate litigation. I believe a study of appellate litigation would show more claim and showing that judges simply did not adequately review their filings or think through the legal problems presented. Again, I don't mean to disparage judges, as they are not given adequate resources.

These delays have an effect on current litigants, but also on the society as a whole. When members of society don't have confidence that the justice system will address grievances, people with true grievances might not raise them, or worse, might take matters into their own hands, or in the hands of more criminal elements.

These delays did not start with the current round of court de-funding. We in the legal community had learned to accept that delays in the justice system were an inherent part of our justice system, thus ignoring an already-serious problem. As stated in other blog entries, when court funding is not adequate to provide for enough clerks to assist pro se litigants with the procedural mechanisms of filings, it is more likely that less knowledgeable pro se litigants will find their filings struck due to procedural problems that could have been avoided with adequate clerk attention. There are two resulting problems caused by this. First, when it becomes next to impossible for pro se litigants to proceed and succeed, the court system becomes accessible only to those who can afford counsel. Second, when this happens, people resort to less honorable means other than court systems to resolve their problems--which effectively harms and could destroy any peace and security in society.

References:

http://www.abajournal.com/magazine/article/more_than_a_budget_line_item/ http://www.americanbar.org/groups/justice_center/task_force_on_the_preservation_of_the_justice_system.html

We Need Now Law Corps and/or Law For America

This recession has had a drastic affect on the legal community. For a few years now, there have been more graduates from law schools than available jobs at law firms. In addition, the recession of the past three years has compounded the problem, causing the world to become extremely competitive, with numerous lawyers having to locate employment outside of their chosen field, and in many cases, outside of the professional arena. Meanwhile, countless studies show that 90% of the legal needs of the poor go unmet and a sizable portion of those of the lower-middle class and middle class do as well. In a prior blog post, I commented that one method of making it possible for aggrieved parties to secure justice with counsel would be to expand the number of cases for which shifting attorney fees are available as a possible plaintiff award. Shifting attorney fees means that a plaintiff upon victory can recover his or her legal fees in addition to the existing recovery. I believe shifting fees should also be available to defendants upon a showing that the plaintiff was not acting in good faith when filing suit. It is my understanding that these resources are available to defendants, whereas plaintiff-favored shifting fees are only available in a limited number of cases. Shifting fees are logical for certain forms of litigation, but not others. And, they provide no help to those non-wealthy looking for legal help for transactions or consumer matters that need not rise to the level of litigation. In addition, shifting fees are only logical if individuals know they have a legal problem. Thus, there is an additional solution to consider, namely the creation of a Law Corps (a la Peace Corps/National Service Corps) or a Law For America (a la Teach for America). Like Peace Corps or the National Service Corps, a Law Corps could be a cadre of young lawyers providing legal help for members of low to moderate income communities. This could range from addressing individual legal needs, such as divorce law and business law to community issues such as land use law and managing police relations. A Law For America program could be one where young lawyers go into communities and teach to the communities about the legal issues that affect them, and their rights and opportunities to take advantage of the court system for resolution of problems. In this blog I have included several articles about efforts in the Asian subcontinent, specifically India, to go into poor neighborhoods and teach community members about the law that affects them and how to address legal issues. I would also envision discussion based programs that allow community members to learn to read legal texts, like cases, and to familiarize themselves with locating the rules and laws that they desire to learn. In later posts, I hope to follow up with these ideas and think through how these types of programs can proceed without huge budgets.

What Legal Understanding is Essential to Citizenship? Part 1--Fundamental Aspects of Our Legal System

Religions and clubs, especially those looking to gain members, are generally successful at organizing short discrete courses of study that allow potential and new members to begin substantial participation. I am specifically familiar with the introduction to religion courses taught at churches, synagogues, and mosques that give course attendees familiarity with the institution's core beliefs and customs. One fascinating aspect of many of these courses is that they are able to present new members to their institutions with an understanding of the institution's analytical process, sufficient for new members to investigate sources on their own. I would like to see everyday courses in American civics and law take a similar approach, namely one that introduces participants to their rights and responsibilities with an eye towards engagement, involvement, and personal investigations. We often speak about the rights of citizens to exercise their first amendment rights, and rights to engage in commerce, but we don't always consider whether we are giving them the proper tools in order to do so. A study done several years ago in the former Soviet republics (the details of that survey are presented on this blog in one of the earliest entries) shows that students of democracy are most likely to become participants in the democratic system when they are provided tools in which to take action. Thus, there are two discussions to hold. The first discussion to hold: what educational activities lead students to consider themselves both interested and knowledgeable about civics and the law. This is a pedagogical question. The next question is: what legal knowledge is essential to active citizenship, and thus must be covered in any "intro to being an active citizen" course. To start this discussion, below is a model outline of subject matters that should be covered in an introduction to democratic involvement course. (As I continue studying these matters, I trust this outline will go through dramatic updating and transformations.) 1. Fundamentals about the Structure of our Judicial System: A. How to locate particular laws; B. How to locate the applciable procedures to vindicate rights through court; C. General information about the federal court and state court structure, and the relationship, similarities, and differences between the two. 2. Fundamentals about the Structure of the Executive Branch: A. How to determine if rights must be exhausted through administrative procedures before pursuing litigation, such as EEOC and certain local zoning boards; B. How to determine when executive agencies have departments tasked with addressing certain problems in manners more expedient than court--such as certain state consumer affairs divisions and wage and hour boards. 3. The Art of Reading Case Law 4. Fundamentals of Constitutional Rights and the Supreme Court's role in interpreting I maintain that the above 4 topics can give anyone a general overview necessary for anyone to determine if they have a problem for which the law might provide a remedy, and to determine which structure is available to adequately address it. As lawyers have extensive training in these topics, I don't envision that all citizens would attend 4 sessions and become lawyers. It goes without saying that any citizen training course would need to be extremely clear that what level of education is being provided. This warning is similar to any program designed to give a lay person an overview of an extensive field where expertise is prime. I'd draw a further analogy to a health class. Certain knowledge about the human body, food, vitamins, and medicine is required for people to address their day-to-day medical needs. Medical professionals are needed to give periodic check ups and advise, test to assure that further medical needs are identified and addressed, and more sophisticated medical problems are handled by appropriate professionals. Thus, I'd argue that a basic course in legal literacy is needed to assure that all citizens have a basic knowledge of their rights and responsibilities.