Law stretched thin: access to justice in rural America.

Author:Pruitt, Lisa R.
Position:III. Access to Justice: A Problem Only a Community Can Solve B. Legal Services Corporation: Limited Funding for a Great Need, through VI. Concluding Thoughts, with footnotes, p. 503-528 - Project Rural Practice Symposium
 
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  1. LEGAL SERVICES CORPORATION: LIMITED FUNDING FOR A GREAT NEED

    The legal needs of low-income populations are most often met by organizations that receive federal Legal Services Corporation ("LSC") funding. (169) This leaves many needs unmet, however, as LSC appropriations, adjusted in 2012 dollars, are at an all-time low and have dropped more than twenty percent just since 2010. (170) Further, LSC-funded organizations are not permitted to engage in political activities or to handle criminal cases, habeas corpus actions, or represent prisoners. Nor, for example, can they represent parties in class actions or abortion-related litigation. (171)

    To be eligible for LSC services, an individual or family's gross income must be below 125 percent of the federal poverty line, (172) a very restrictive threshold that nevertheless leaves one in five Americans eligible. (173) To qualify, an individual living in the contiguous forty-eight states or the District of Columbia must earn less than $14,363; for a family of four the income cap is $29,438. (174) For context, this income threshold is well below a "living wage" as illustrated by MIT's Living Wage Calculator. The calculator determines a "living wage" based on local costs for food, housing, and childcare, and that wage is often much higher than the federal poverty line. (175) A living wage in California, for example, is $23,295 for an individual and $46,063 for a family of two adults and two children. (176) In South Dakota, an individual would need to gross $15,476 to earn a living wage, only slightly more than 125 percent of the federal poverty line, while a family of two adults and two children would need to earn $34,837. (177) None of these individuals earning a "living wage," whether in California or South Dakota, would qualify to be served by an LSC-funded program, yet all would struggle to afford legal services on the private market.

    LSC's funding limits highlight a harsh reality: severely limited resources will not meet the breadth and depth of the legal need. How, then, should resources be focused? (178) To provide some limiting principle in light of inadequate funding, the California Commission on Access to Justice recommends the goal of guaranteeing legal representation for low-income folks in situations where a person with the financial means to do so would employ counsel. (179) Even limiting our expectations in this way, lawyers in the rural United States--facing constraints of time, money, and conflicts of interest--will be hard pressed to achieve comprehensive access to justice. Indeed, rural lawyers, like their urban counterparts, cannot and should not be expected to shoulder the entire burden alone. As we expand on in Part V, rural lawyers will benefit greatly from community partners who can help serve the full range of client needs, which often also reflect community-wide needs. In the next Section, we consider some additional types of resources that may ameliorate the rural access to justice need.

  2. THINKING OUTSIDE THE (LEGAL) BOX: USING EXISTING AND INNOVATIVE RESOURCES TO MEET RURAL LEGAL NEEDS

    1. Using Technology and Transportation to Bridge Distance

      Technology can bridge spatial divides quickly and efficiently, (180) and it is thus increasingly used to enhance rural access to justice. Fax, Internet, and case-management software have become, with some exceptions, fairly commonplace. (181) Electronic forms and filing can ease access to the judicial system for individuals without a lawyer. Online dispute resolution systems provide means to resolve conflicts without the need for travel. (183)

      Skype and other video call conferencing technologies have gained some traction in providing legal services in hard-to-reach places. (184) Montana courts, for example, use audio-visual conferencing to connect attorneys to courts, (185) and Montana Legal Services pioneered the use of video-conferencing to hold workshops on how to file for bankruptcy. (186) Technology also makes it easier for lawyers to find and connect with each other across distances, which facilitates mentoring and networking. (187) This can also alleviate some of the pressure on a rural practitioner to be a generalist.

      Technology also becomes more important in the face of courthouse closures. Video streaming can replace a fully staffed, local court, (188) though service interruption and poor video quality are associated pitfalls. Technology also has limitations when it comes to controlling a remote witness or attorney. (189) Further, not all individuals have access to the Internet. For example about 70 percent of Montana (190) and South Dakota households have Internet access, (191) compared to 83.5 percent in Alaska. (192) Even in tech-savvy California, a quarter of homes have no Internet access. (193)

      Technology aside, various programs bring lawyers into underserved communities to engage clients in person. Some programs are LSC-funded, while others are court based. One Justice's "Justice Bus Project," for example, transports lawyers and law students to rural communities where they function as free legal clinics--albeit temporary ones--providing a wide array of services. (194) This program is consistent with a recommendation of the California Commission on Access to Justice, which advocates partnerships that capitalize on law students' desire for clinical and research experience. (195)

      Some legal aid services are partnering with pre-existing social service agencies to provide legal assistance while cutting overhead costs. (196) Medical-legal partnerships have been especially successful in terms of connecting clients experiencing myriad needs with legal resources. (197) In Fresno, California, judges, lawyers, community organizers, business professionals, and medical professionals came together in 1999 to share ideas and raise awareness about access to justice issues, and they are still doing so. (198) The purpose of the Fresno meetings was not to design particular programming, but to raise awareness of access to justice issues among key stakeholders. (199) The long-term impact of the initiative has not been documented.

    2. The Pro Se Solution: Enabling Individuals to Help Themselves

      Ethan Bronner's New York Times story about Project Rural Practice suggested both a role for technology and the fact that lawyers are not always necessary to meet a law-related need. Bronner wrote of a drug-rehabilitation counselor in rural Martin, South Dakota, who was sometimes consulted by residents "seeking a divorce" or dealing with other legal matters "since she knew how to do research on the Internet and download forms." (200) The idea that lay persons or para-professionals can help to meet legal needs--and, in fact, are sometimes best suited to doing so--is summed up by a quote analogizing to the medical context: "[F]or many routine [matters], retaining counsel may be tantamount to 'hir[ing] a surgeon to pierce an ear.'" (201)

      Pro se litigation (i.e., unrepresented parties) can be one practical, cost-effective solution to the shortage of rural lawyers, so long as the litigants are prepared. (202) Professor Deborah Rhode outlines five strategies for simplifying the process for such litigants:

    3. simplified legal requirements, documents, and procedures;

    4. user-friendly technologies, including Web-based resources;

    5. personal pro se assistance in courthouses and other, more accessible community locations;

    6. targeted services to particularly vulnerable populations, including non-English-speaking and rural populations; and

    7. advice hotlines and programs offering limited lawyer assistance.

      In an extensive 2002 study of twenty-five rural pro se assistance programs, Professor Beth M. Henschen identified many programs of the types Rhode touts. Local courts administered a majority of these programs. (204) Henschen observed that simply allowing pro se litigants to speak in court gives them a feeling of being heard and a sense that the judicial process is fair, an oft overlooked access to justice concern. (205) Henschen also found that pro se litigants benefit from human interaction, so the most effective programs will facilitate such interaction rather than relying on simple access to computers. Pro se assistance programs are thus best located within a courthouse, where they foster relationships with court staff and judges. (207)

      While spatial obstacles can impede rural pro se assistance programs, Henschen noted that smaller communities contend with less bureaucracy as fewer people are (or need to be) involved in decision-making. (208) To address the distance problem, some rural pro se assistance programs set up forms and basic instructions at places other than the program center (often a courthouse in a county seat) by placing them in local community centers and stores. (209) Staff with some pro se assistance programs sometimes travel to less resourced, farther flung service areas or provide services over the phone. (210)

      Similar to our argument that an array of community resources should be engaged to increase access to justice, Henschen noted the value of partnerships, both within the legal community and among the available array of community resources. (211) Although the most common partnerships were with bar associations, legal services, and local lawyer groups, Henschen observed that government agencies and nonprofits such as women's advocacy groups and domestic violence organizations also joined and made referrals to some pro se assistance programs. (212) As noted above, medical-legal partnerships can also play this facilitating and connecting role. (213)

    8. Local Tribunals for When Courts Are Fewer and Farther Away

      Some state courts have taken notice of the distance problem facing rural Americans. (214) In her 2013 State of the Judiciary address, the Chief Justice of the Alaska Supreme Court remarked, "[J]ustice cannot be something delivered in a far-off court by strangers, but something in which local...

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