SRLs and the Bar Part Three

Well, I learned something important yesterday and it changes my mind about a position I have taken in this debate and on this blog. Pasted below is an excerpt from the State Bar’s strategic plan for FY 2012-2013. This made me realize that I was wrong to resist the idea that the Bar should study the pro se issue, and I trust they will carry out that work as encouraged by Chief Justice Jefferson in his letter back to President Bob Black (reported yesterday by the Texas Tribune). On the other hand, I also read the below to severely undercut the position advanced by the Family Law Section/Foundation that the Access to Justice Commission, as an entity with Bar funding, is illegitimate to the extent that their efforts collaterally benefit anyone but the very poor.

In the same vein, I was also very glad to see that yesterday the Chair of the Family Law Section wrote to the membership: “Neither the Family Law Section nor the Texas Family Law Foundation have ever asked anyone to boycott Legal Aid events or withdraw support from Legal Aid organizations.”

STATE BAR MISSION

The mission of the State Bar of Texas is to support the administration of the legal system, assure all citizens equal access to justice, foster high standards of ethical conduct for lawyers, enable its members to better serve their clients and the public, educate the public about the rule of law and promote diversity in the administration of justice and the practice of law.

STATE BAR STRATEGIC GOALS

SERVICE TO THE PUBLIC

Statement of Purpose

The State Bar of Texas serves the public by: 1) educating the public about the Rule of Law and the role of judges, lawyers, and the public in the justice system; 2) helping lawyers provide the highest quality legal and community service; and 3) working for equitable access and participation in all aspects of the justice system by diverse groups within our society.

Goals . . .

C. Assist in efforts to better focus and increase resources by systematically identifying, prioritizing and timely addressing community needs for service, as well as developing appropriate services and programs to address the needs of under-served populations and low-income Texans. . . .

G. Continue to identify and use new methods and technologies by which pro bono services training can be made accessible to more Texas lawyers.

H. Increase access to consumer legal information for the public, using new technology and media where possible to insure consumers are informed when making decisions regarding legal services.

ACCESS TO JUSTICE

Statement of Purpose

The State Bar of Texas works to ensure access to justice for all.

Goals

A. Augment pro bono services

• Explore new and innovative methods to increase the availability of pro bono legal services to low income Texans in the more remote areas of the state.

B. Build and support partnerships to increase legal services delivery –

• Educate and engage non-legal professionals who can provide relevant resources, including mediators, dispute resolution services, and CPAs.

• Interface and develop collaborative models for service delivery with other agencies providing services for the same populations.

C. Increase efforts for specialty populations –


• Work in collaboration with key partners to increase the availability and utilization of effective high quality pro se information, education, and support materials. . . .

E. Increase the visibility of pro bono efforts and access to justice issues –

• Explore and implement new methods to increase awareness and understanding among Texas lawyers and the public about access to justice issues. . . .

 

SRLs and the Bar Part Two

Here is some valuable additional information that was provided to the State Bar Board by the Access to Justice Commission.

State Responses on Standardized Forms

Commission staff has conducted extensive research on the availability of standardized forms in all 50 states and the District of Columbia. This information is a compilation of interviews with representatives from 22 states who were involved in the promulgation of their state’s forms.

1. Is there any evidence that forms have harmed the public?

• No state reported any evidence of harm to the public. Not one person interviewed knew of a litigant who had been hurt by using the standardized forms.

• States reported benefits to self-represented litigants. Many states echoed Kansas, which reported “There already were a wide number of forms being used by the public before we made our forms available. The public was downloading the forms off the internet or purchasing at local stores. Many of these are not Kansas specific and do more harm to the public than the forms we developed.”

2. What has been the impact of state forms on the ability of lawyers to earn a living?

• No state reported any evidence that the forms negatively impacted lawyers’ businesses.

• Many states reported that forms positively impacted attorney businesses.

• Maryland’s observations:

o Attorneys could attract more clients by cutting fees and having clients prepare their initial filings while the attorney focused on the more complex matters involved in the case.

o While forms and self-help centers are good at initiating a case, litigants still have challenges navigating the process, especially in contested trials and complex matters. Lawyers benefit from the state’s efforts with self-represented litigant by referring litigants to the self-help center to complete a portion of the case on their own and then recommend the litigant hire the lawyer to handle other portions.

3. Are the forms restricted to use by the poor?

• No state has restricted the use of state forms to the poor.

• All states report that the majority of litigants accessing various self-represented litigant services are low-income.

• Many states’ access to justice commissions helped develop the state’s forms.

4. What is the impact on judicial efficiency and economy?

• All states report an increase in judicial efficiency and economy.

• Susan Ledray, Senior Pro Se Services Manager, Hennepin County Courts, Minnesota, stated:

o “Forms result in the judge getting the information she needs, instead of struggling to make sense of free-form documents filed by self-represented litigants.

o Staff and judges get used to the forms and where to find the information, and this makes it faster and easier to review forms before and during hearings.

o Form blanks that are not filled in draw attention to the fact that information is missing – while with a customized pleading, the court might not realize at the most opportune time that something is lacking.

o Court staff save a lot of time when able to refer people to written forms and instructions, instead of trying to explain, write notes, or get into an unpleasant conversation with a person who is angry that ‘you won’t do your job and answer my questions.’”

• Every state indicated that pro se litigation is not increased by the promulgation of uniform forms; the forms only make the process more efficient for the courts. Nancy Strauss, Director of Judicial Council of Kansas stated, “They are going to be representing themselves anyway so we might as well give them some tools so it’s not a nightmare for all of us.”

5. How have state bars been involved in their state’s efforts to assist pro se litigants?

• A variety of state bars have been actively involved in efforts to address the problem of pro se litigants. State bars are involved in all levels of pro se programs.

• In Michigan, the self-help website is administered by the state bar.

• In the District of Columbia and Minnesota, the state bar actively promulgates and distributes uniform forms.

• Uniform forms were promulgated by the State Bar of Alabama. In 2005, the state bar appointed a task force to determine if there was a problem with self-represented litigants in the court system. The Task Force studied the issue and arrived at the conclusion that Alabama indeed did have a problem with pro se litigants. The Task Force recommended two courses of action that could be completed without a large expenditure: 1) creating standardized forms and 2) implementing a rule and other tools to further limited scope representation. The Bar approved the Task Force to proceed on creating standardized forms.

• In Oregon, it was the Family Law Section of the state bar that initially recommended that uniform forms be created. The forms were created as a joint effort between the Family Law Council, the State Court Administrator, and the State Court Advisory Committee. There are now over 300 family law forms in existence in that state.

• In addition, the American Bar Association has a pro se resource center located on their website to assist state bar associations with programs aimed at the pro se population.

6. Has the private bar opposed the promulgation of uniform forms in any organized fashion in other states?

• States like Nebraska and South Carolina, which have experienced significant opposition, involved their opponents in the process and in the end came up with better forms. Robin Wheeler, Director of the South Carolina Access to Justice Commission stated that the opponents’ “feedback was incorporated into the forms and ultimately made them better.”

• While some states indicated that there were grumblings here and there by individual attorneys or judges, the Commission’s research did not yield any other states that face organized opposition to uniform forms by the private bar.

School Discipline

With the roll-out last summer of the "Breaking Schools' Rules" study by the Council of State Governments Justice Center, Chief Justice Jefferson signaled his interest in a topic that has been catching on nationwide, and even "across the pond."  (You can view the roll-out event from July 19, 2011, on the Supreme Court's archived webcasts, hosted by St. Mary's University School of law, here.)

Next Thursday February 2nd at 2:00 in the Supreme Court courtroom, the Texas Judicial Council's new Juvenile Justice Committee will take up the issue, with a charge to "Assess the impact of school discipline and school-based policing on referrals to the municipal, justice, and juvenile courts and identify judicial policies or initiatives that: work to reduce referrals without having a negative impact on school safety; limit recidivism; and preserve judicial resources for students who are in need of this type of intervention."

And on February 20th from 1:00-5:00, the Barbara Jordan Freedom Foundation is hosting a symposium entitled "School Discipline: A Pathway to the Juvenile Justice System or an Opportunity for Effective Intervention?"  The program features Chief Justice Jefferson, Senator Whitmire,  and other luminaries.
An agenda with a complete list of speakers is forthcoming and will be available at: http://www.utexas.edu/lbj/events/2012/barbara-jordan-freedom-foundation-symposium.

Self-Represented Litigants and the Bar

I was disappointed but not surprised by the State Bar Board's action last Friday in response to intense lobbying by the Family Law Section/Foundation, as reported in today's Texas Tribune. I spoke at the hearing and provided some new data collected by my office that shows that 21.6% of family law matters in district and county courts in Texas are initiated by a "pro se" or self-represented petitioner. (My previous post asserted that 45% of divorce cases, a subset of all family law, are self-represented, and I stand by that estimate, which was also validated by the Travis County District Clerk's office.)
I also told the Bar Board that my national group published a paper on this topic all the way back in 2000, and that the Future Trends in State Courts publication has featured the topic of SRLs in the last five editions, so it isn't like the Access to Justice Commission just came up with this problem out of the blue.  I wanted to point out, but my three minutes did not allow for it as I recall, that in fact the people who are currently using forms are mostly poor; data from TexasLawHelp shows that 62% of those who access the forms on that website earn less than $26,000 per year. (The gravamen of the Family Bar's complaint seems to be that some people who aren't poor enough to be deserving of the ATJ Commission's concern and effort will benefit from forms.)

So as reported, the Bar voted to gather data regarding the pro se issue [despite my suggestion that we have plenty of data], identify any problems presented by pro se litigants as to how courts and others are currently handling pro se litigation [despite several years of work by my office and others as noted in another prior post], and work with all stakeholders to provide potential solutions to the Supreme Court.  The vote had no deadline for this work but State Bar President Bob Black - whom I like and admire although we disagree on this issue - indicated a six to nine month process. Yes, this work needs to involve all stakeholders, but I continue to believe that the problem is well documented, that several strategies to address it are well established, and that it isn't really the Bar's job, from their arguably self-interested perspective, to study the self-represented and how the court system should respond.

Yesterday an email blast went out to Texas Family Lawyers over the signature of the Chair of the Family Law Section, encouraging the members to thank the Bar Board for their vote and including the following language:

The Forms Task Force is just one component in a seven-point Access to Justice Commission plan that will assist pro se litigants by re-engineering the justice system and the role of lawyers in it—using the central authority of the Supreme Court to issue a top-down order to implement the changes statewide. Our position has been and continues to be that ATJ’s seven-point plan is beyond its charter and that any such overhaul of the system should properly be led by the State Bar, its Sections, and its members.

Just to get it all out there, that dire assertion appears to be based upon their reading of a document dated July 1, 2011, reproduced in full below:

Texas Access to Justice Commission

Self-Represented Litigants Committee

The Self-Represented Litigants Committee (herein “SRL Committee”) was formed in the wake of “The Texas Forum of Self-Represented Litigants and the Courts” held in April 2010. The Forum was hosted by the ATJ Special Projects Committee and co-sponsored by the Office of Court Administration, the Texas Access to Justice Foundation, the Legal Services Corporation, and the Texas Legal Services Center. Additional support was provided by the Texas Bar Foundation and the Dallas Bar Foundation.

The SRL Committee is charged with addressing the challenges presented by the increasing number of self-represented litigants interacting with Texas courts by providing tools to help pro se litigants navigate the court system.

The SRL Committee has formed six subcommittees to improve services to pro se litigants. The subcommittees are: Uniform Rules and Guidelines, Education, Self-Help Centers, Assisted Pro Se, Limited Scope Representation and Communication & Information Dissemination.

Uniform Rules and Guidelines Subcommittee: The Uniform Rules and Guidelines Subcommittee will be recommending model court rules, legislation, and other policies to assist self-represented litigants or to clarify how various stakeholders in the court system properly interact with self-represented litigants. The Subcommittee is currently investigating which states have rules requiring their local courts to accept pleadings and orders approved by their Supreme Court. It is also researching which states have adopted a standardized policy and form on how to evaluate an Affidavit of Inability to Pay Costs filed by a self-represented litigant.

Education Subcommittee: The Education Subcommittee will inform and educate the judiciary, private bar, and the public about self-represented litigant issues, and how to more effectively serve self-represented litigants. The Subcommittee is currently devising a workshop for members of the judiciary and court personnel. This training will eventually be conducted in all nine administrative judicial regions. Clerks and court staff will be trained on how to provide legal information while remaining impartial, maintaining confidential information, and avoiding ex parte communications. Further, participants will be taught the critical difference between legal advice and legal information. The Subcommittee is also working on a series of workshops to be given to new local bar leaders at the annual Local Bar Leaders Conference held by the State Bar of Texas in Houston this July.

Self-Help Center Subcommittee: The Self-Help Center and Services Subcommittee is working towards expanding the quantity and quality of self-help centers across the state. The Subcommittee is currently assembling a comprehensive list of self-help centers and assessing what kind of technical assistance these centers need to more effectively serve litigants attempting to represent themselves.

Assisted Pro Se Subcommittee: The Assisted Pro Se Subcommittee is working towards expanding the availability of legal services for pro se litigants. Specifically, how legal service or pro bono attorneys can help pro se litigants represent themselves in court, including preparing pleadings and other court forms, advising which course of action to take, and preparing for hearings.

Limited Scope Representation: In conjunction with the Rules Subcommittee, the Limited Scope Representation Subcommittee will draft rules to allow attorneys to more easily assist people on a limited scope basis. The subcommittee will work with the private bar to help attorneys understand what limited scope representation is and how to go about developing it as a new business model of practice.

Communications and Information Dissemination Subcommittee: The Communications and Information Dissemination Subcommittee is developing a plan of how to effectively communicate with the judiciary, private bar, and the public about the self-represented litigant issues. The subcommittee will also create a clearinghouse of information regarding SRL initiatives and resources.

Supreme Court Uniform Forms Task Force: The Task Force is charged with developing proposed pleading and order forms, to be evaluated and approved by the Court, with the express purpose of enabling the courts to help pro se litigants navigate the legal system and improve court efficiencies. The Task Force meets on a monthly basis and is working on basic family law forms for a divorce without children. The Task Force is set to complete these pleadings and forms by September 2011.

That's it; six subcommittees plus a task force apparently equals a seven point ["re-engineering"] plan. If the Bar study effort forms any subcommittees, I guess the number of them will dictate the points in their plan. The dreaded "top-down order" must be a reference to the Uniform Rules and Guidelines Subcommittee, which has not come up with anything they would recommend in the way of uniform rules or legislation.  Of course, there is the presenting problem, we would like the Court to adopt safe-harbor uncontested divorce forms like they already have with the Protective Order Kit. I did not hear any testimony at the Bar Board in opposition to that kit, and I would hope that it will not be attacked, but everything the family lawyers said in the hearing would apply conceptually to that prior effort.

Here's hoping that there is middle ground somewhere in this mess!

Shared Solutions Summit

In the first “Shared Solutions Summit” this week in Austin, judges, clerks, prosecutors, attorneys and others involved in the courts across Texas shared best practices and procedures for handling criminal, child protection, juvenile and civil cases.
The conference and other that follow, led by Chief Justice Wallace B. Jefferson, promotes the exercise of judicial leadership at the local level, the use of data-driven strategies, and a collaborative approach to ensure that cases are disposed efficiently and with improved outcomes.
For example, Bell County courts, serving a Fort Hood population, see a high volume of divorce matters and high percentage of self-represented litigants. They already have some good procedures but at the Summit identified the idea, from Lubbock, of developing a video to orient litigants. The Fannin County team worked on enhancing their mental health diversion court, with new ideas for grant funding, and an offer to learn more from Judge Susan Hawk’s Dallas County mental health court. Conference evaluations praised the ability to interact within teams, with other teams, and with people who have “done it” and were willing to share their experience.
“This whole conference is about courts, and courts are devised for helping people with their sometimes critical problems,” Chief Justice Jefferson said. “These all-too-real human problems present major cost and management problems for all of us in the courts – and for the people of Texas. And while justice is a tiny fraction of the state budget, it is a major component of local budgets.”
As leaders working to assure justice in the state’s communities, he said, the participants in this summit show their determination to make courts work better by attending.
The Shared Solutions Summit was started by Chief Justice Jefferson and the Texas Judicial Council, a policymaking body which he chairs. The Texas Conference of Urban Counties provided primary financing, with financial or substantive support from the Court of Criminal Appeals, the Supreme Court Children’s Commission, the Texas Indigent Defense Commission, the Judicial Committee on Information Technology, the Texas Municipal Courts Education Center, the Texas Center for the Judiciary, the Texas Association of Counties, the Texas Access to Justice Commission, the National Center for State Courts, the National Council of Juvenile and Family Court Judges and the State Justice Institute. Jefferson hopes to offer the program to a new group of local teams at least every other year.

State Jail Diligent Participation

In 2007, when I was using the name CourTex for a quarterly newsletter, I wrote a special issue on state sentencing, and said this (p. 4) about the state jail innovation:

[A] correctional agency has an inherent interest in maintaining some otherwised unpopular features in state sentencing laws - good conduct time and parole - that provide "back end discretion" and therefore some behavioral incentive during incarceration.  This is the enduring lesson of the state jail scheme, which does not provide any such incentive, and has proved challenging to implement as a result.

Now that issue has been addressed by the legislature, and in turn by TDCJ.  In order to provide an incentive for state jail felons to participate in rehabilitation in accordance with HB 2649 from the 82nd Legislature, the Texas Department of Criminal Justice will provide a progress report to the sentencing judge, which will include information such as name, date of birth, offense, sentence begin date, current discharge date, and diligent participation days. The sentencing judge may credit up to 20% of the offender's sentence for days served as long as the offender was diligently participating in a program and not subject to disciplinary action.


TDCJ's website has the following page with discussion and a link to further instructions, http://tdcj.state.tx.us/divisions/cid/cid_support_ops_class_HB2649.html, and this page can also be reached by clicking on the Online Services Tab on the TDCJ home page, http://tdcj.state.tx.us/ then choosing State Jail Diligent Participation towards the bottom of that page.