Access to justice: on dialogues with the judiciary.

• Author: Barry, Margaret Martin
• Position: Role of law schools

The Access to Justice Conference, sponsored by the New York State Unified Court System, represented a commitment by the Unified Court System to making access to the courts a priority throughout the state.

The New York courts and courts throughout the country are struggling to address what Wilhelm Joseph described in the opening plenary as a "serious crisis in justice." (1) Mr. Joseph discussed creating a sense of urgency that action needs to be taken to achieve our constitutional mandate to establish justice. (2) At a time when our country is experiencing a renewed sense of patriotism and is speaking with conviction about precepts that distinguish the Nation, his reference to this essential mandate is all the more poignant. Central to our democracy is a belief that our legal system is just. This faith has been sorely tested by the experiences of many who seek judicial relief. People enter a system dependent on lawyers whom they often do not trust and more often cannot afford. The legal system has not been structured to accommodate those without professional help. After years of managing unrepresented litigants who do not get justice, there is a growing concern that the movement of cases has subsumed the central mission of the courts. Many of those involved are becoming increasingly disillusioned.

What can law schools do to improve this state of affairs? Law schools are, for the most part, removed from litigation. (3) Clinical faculty are the exception, and they have produced most of the scholarship on the state of "poor people's courts" (4) and issues of access to justice. Their scholarship has focused on lawyer-client relationships, ethical issues relevant to court access projects, and the personal experiences of pro se litigants. (5) Clinical faculty have also worked with courts by contributing to judicial training, developing forms, and providing instruction to litigants on relevant legal requirements and remedies. (6)

This Article will consider how nurturing student interest in public service intersects with the goals of developing lawyering expertise. The Article will then examine what insight clinical programs can offer to the judiciary on making the courts more accessible to the public. My hope is to encourage more dialogue between the judiciary and law school faculty involved with the courts.

1. DIALOGUES FROM WITHIN: THE RESPONSE OF LAW SCHOOL CLINICAL PROGRAMS TO ISSUES OF ACCESS TO JUSTICE

   Law school clinical programs assume much of the task of fostering a sense of public service in students. Serving the needs of the poor has been a fundamental aspect of the clinical movement since the 1970s. (7)

   Since law school curricula bypass many of the skills required for professional practice, clinical programs seek to fill a broad gap. (8) Law school clinics usually give students their first opportunity to use the law professionally. The experience is intense and considerable resources are expended. (9) As a result, students have limited chances to take clinical courses and there is pressure to optimize the experience. (10)

   While in-house clinical programs have focused on full-service representation of low-income clients, the number of clients taken is usually modest, (11) Clinical faculty generally hope, if not assume, that upon graduation, their students will be more committed to providing service to the poor and that the cumulative impact of this service will help to solve the access problem. However, if students leave clinics with a sense of the crisis in access to justice, they may question the traditional "thousand points of light" (12) approach to representation. We must consider whether traditional representation sufficiently engages students in responding to the need for legal assistance. Will they take the catharsis of representing a few poor clients and store it away as a precious experience to be treasured? Will they disengage due to frustration over the limited impact their services have when measured against the huge need? Will they regularly engage in pro bono service with the knowledge that they are having a significant impact on the few lives they touch and accept this as the best that can be done? A committed few will become public interest attorneys, but the financial realities of law school make this option difficult for many, thus leaving the access question lingering. (13) The questions suggest that part of nurturing student interest in and commitment to access to justice lies in involving them in trying to solve the access dilemma. Clinical programs need to openly consider the extent that different approaches to providing legal assistance may expand access to justice. Then they must evaluate whether pursuing alternatives to traditional representation is the best distribution of limited clinical resources.

   1. What Types of Representation Could Expand Services?

      Various methods of expanding pro bono legal services pursued by law school clinicians include impact litigation, (14) community organizing, (15) legislation, mediation, (16) limited or "unbundled" services (17) and community education. This section of the Article considers these methods with an eye to the combined goals of service and developing lawyering expertise. How does each approach respond to the skills students need to develop and the services clients require?

      Impact litigation requires students to work directly with a client or group of clients with the knowledge that success can affect a broad group of people. (18) It is akin to legislation and rule making in that it has the potential to affect many lives by establishing standards that benefit the target community. (19) It is traditional, full-service representation, drawing on a range of litigation skills while self-consciously contemplating a broader reach than the needs of an individual client. (20) Depending on the issue, the litigation can be quite complex, often spanning years. Thus, in an ordinary law school clinic, students may only get to work on small pieces of the case. Of necessity, faculty supervisors provide the continuity and much of the direction. This can limit the students' sense of ownership and inhibit the attorney-client relationship. Despite these shortcomings, the issues are often compelling and thus worth working on. (21) I know of no clinic dedicated to pursuing impact litigation per se, but many have seized the opportunity to change harmful laws, procedures, and practices through litigation consistent with a client's goals. (22)

      Legislative advocacy clinics seek to develop lawyering skills that are significantly different from those used in traditional litigation. (23) Legislative advocacy requires students to identify the issues, reduce them to a legislative remedy, and learn the drafting and lobbying process. (24) Issues synthesized for consumption by legislators are several degrees removed from the people affected. The legislative process and the power of legislation to respond to societal problems is something that students should understand and be able to employ. (25)

      Similarly, community organizing involves a specialized set of skills that is often painstaking and lengthy. Connected to legislation, and sometimes to impact litigation, it is the consensus-building process that lays the foundation for legislative activity and litigation on behalf of groups. (26)

      Limited or unbundled services seek to respond to the paucity of pro bono representation by helping larger numbers of people with discreet aspects of their cases. (27) Service is limited to advice, help with pleadings, and referral. Such services are particularly useful at court where they can supplement the more limited input of clerks and reach people at the optimum point in their process. (28) Depending upon the approach, interviewing, counseling and some research, writing, and problem-solving skills can be developed. The increased volume of clients allows students a greater opportunity to build these skills, but the service offered lacks the depth implicit in full representation.

      Community education (29) spreads legal services even further. Like unbundled services, it has the potential to empower clients to pursue their legal rights despite a lack of representation. (30) While education workshops often include assistance with forms, the advice given is very general. For the students, the opportunity to analyze and convey laws and procedures to people seeking to use them develops important skills, such as public speaking, legal analysis, and limited client counseling.

      Mediation has the potential to expedite matters and to provide a more accessible forum. (31) Courts are increasingly using mediation to address issues presented by poor and unrepresented litigants. It can serve as a less intimidating, less humiliating, more accessible, and more responsive experience than trial for certain types of cases. (32) However, mediation also can act as a barrier to the judicial process since litigants are shunted into it, sometimes repeatedly, even if they feel that mediation is not working for them. (33) For students, mediation develops lawyering skills such as interviewing, identifying the interests of parties, and problem solving. It also can alert students to the dynamics of power in conflict resolution and to points at which there should be no middle ground. (34)

      Each approach has the potential to serve the under-represented while developing important lawyering skills. The law schools must determine what works best for their clinical objectives. The clinical program can be more expansive if a school is committed to providing students with several clinic opportunities in law school. At present, however, most schools will continue to offer students only one clinic opportunity if any at all. (35)

   2. What Is the Best Distribution of Limited Clinical Resources?

      If students only have one opportunity to take a clinic, then individual, full-service client representation should be the...