Envisioning 100% Access to Justice in Colorado, 0117 COBJ, Vol. 46 No. 1 Pg. 47
| Author | Daniel M. Taubman, Melissa Hart, J. |
Access to Justice Series
Daniel M. Taubman, Melissa Hart, J.
In 2015, the national Conference of Chief Justices and Conference of State Court Administrators adopted Resolution 5, urging all states to work toward “the goal of 100 percent access [to justice] through a continuum of meaningful and appropriate services.”1 This article considers what a system that had achieved 100% access to justice might look like in Colorado. As Resolution 5 recognizes, 100% access is almost certainly not going to mean that every person with a legal problem will have a lawyer to assist in resolution of that problem Instead, effective assistance for those with civil legal needs will require a range of services that includes full representation by an attorney and also an array of tools short of full legal representation. These tools will include “expanded self-help services to litigants, new or modified court rules and processes that facilitate access, discrete task representation by counsel, increased pro bono assistance, effective use of technology, increased availability of legal aid services, enhanced language access services, and triage models to match specific needs to the appropriate level of services.”2
The Colorado legal community has been actively focused on addressing the justice gap since at least the establishment of the state’s Access to Justice Commission (ATJC) in 2003. The Colorado ATJC-one of the first in the country-was established to develop, coordinate, and implement policy initiatives to “expand access to and enhance the quality of justice in civil legal matters.”3 Today, it is one of several Colorado entities comprising lawyers and judges actively working to address the justice gap. The combined efforts of these entities, the courts, individual lawyers, and Colorado Legal Services (CLS) have led to significant progress in closing the justice gap, but there is still much work to be done.
This article discusses what Colorado has done to close the justice gap and explores what would need to happen to move from the current system to a fully integrated system that offers 100% access for those with civil justice needs. The discussion has been divided into three categories: (1) efforts to provide assistance to self-represented litigants; (2) efforts to expand opportunities for partial representation by an attorney; and (3) efforts to ensure that full representation is available to those who need it.
Assistance for Self-Represented Litigants
Some individuals navigating the court system do not need or want assistance from an attorney; others simply cannot afford one. Indeed, the number of self-represented litigants in the Colorado courts has been steadily increasing over the past several years.4 Both the courts and members of the bar have focused considerable attention on providing high-quality tools to make self-representation effective. Colorado has already made significant strides in improving the tools available for self-represented litigants, and several projects in their early stages will take the state system even further.
Where Are We Now?
Beginning in 2013, the Colorado Supreme Court has allocated annual funding for self-represented litigant coordinators— known as SRLCs or sherlocks—who are based in courthouses around the state and provide support and guidance to self-represented litigants. In Chief Justice Directive 13-01, then-Chief Justice Michael Bender set out the types of services that sherlocks could provide, distinguishing the legal advice that a lawyer provides a client from the kinds of legal and other information that the sherlocks may offer self-represented litigants.5 Today, sherlocks assist litigants in each of Colorado’s 22 judicial districts. In 2015, sherlocks provided information to more than 125,000 people who came into courthouses around the state.6 In addition to sherlocks, other court personnel, such as family court facilitators who assist parties in domestic cases, are available to answer questions and provide information (but not legal advice) to self-represented litigants.
Efforts are also under way to assist those who do not have easy access to a courthouse. For example, Elbert County attorney Ric Morgan has developed Virtual Pro Se Clinics, which use videoconferencing and screen-sharing to allow lawyers to connect with self-represented litigants in libraries around the state, primarily in rural areas.7 Clinic volunteers provide information to assist self-represented litigants while making clear that they are not entering into an attorney–client relationship with them.
Another resource that is expected to go live in early 2017 is the Equal Access Center (EAC), an interactive website that will connect unrepresented litigants in Colorado to legal resources.8 The website will provide users a step-by-step process for determining whether they can address their legal concern without a lawyer or whether they need partial or full representation. For those who represent themselves, either entirely or in part, the EAC will provide links to fillable forms for all types of civil matters. These forms, which the judicial branch has been developing for the past several years, are relatively easy to understand and are available in both English and Spanish. The EAC will also link users to helpful information and resources from CLS, the CBA, and other Colorado organizations.
Most of the programs available to self-represented litigants in Colorado offer assistance outside the courtroom. When a self-represented litigant comes into the courtroom, however, some of the most confusing hurdles present themselves. Self-represented litigants may not know the legal rules (e.g., the rules of evidence) or the cultural norms (e.g., how to address the court) that can give represented parties an advantage in front of a judge. In 2016, the judicial branch launched two pilot projects—one urban, one rural—through which specially trained non-lawyers can assist self-represented litigants in court. These “court navigators” provide litigants general information about what to expect in the courtroom, one-on-one assistance, and moral support. Significantly, they can also speak in court on behalf of self-represented litigants when requested to do so by a judge. These navigator pilot projects were modeled on the successful navigator programs that have been active in certain courts in New York since 2014.
Where Do We Go from Here?
The bench and bar have made significant strides in bolstering assistance for self-represented litigants in recent years. To move to a system of 100% access, there must be continued support to expand projects that have already been started. The EAC and navigator programs are important additions to the work already in progress, and both the judicial branch and other stakeholders should be attentive to their continued development.
In addition, judges need to continue to attend trainings focused on how they can assist self-represented litigants in the courtroom without breaching their obligation of neutrality between the two parties before them. Such a training, discussing comment 2 to Rule 2.6 of the Colorado Rules of Judicial Conduct, was held at this year’s judicial conference. As services for self-represented litigants expand, ongoing judicial training will be a necessary component of ensuring the efficacy of the services.
At the same time, we must remain aware that many litigants are unrepresented in instances where they truly need representation. No system can claim to meet the goal of 100% access if it leaves those people without the support of a needed legal expert.
Partial Representation
For many years, lawyers have provided partial representation to clients in the form of consultation, drafting contracts, and business planning.9 Similarly, legal services lawyers, confronted with limited resources, have often provided brief advice and service to clients to maximize the number of clients receiving legal assistance. During the last two decades, however, increasing numbers of clients have sought partial representation in litigation matters. This is due to a number of forces, including the need of middle-income...
To continue reading
Request your trial