The Trial Advocacy Incubator, 0117 SCBJ, SC Lawyer, January 2017, #22

AuthorWilliam C. Dillard Jr. and Matthew T. Richardson, J.

The Trial Advocacy Incubator

Vol. 28 Issue 4 Pg. 22

South Carolina BAR Journal

January, 2017

Innovative Legal Assistance Delivery in South Carolina

William C. Dillard Jr. and Matthew T. Richardson, J.

South Carolina, like many states, has long faced a significant "access to justice gap"—the difference between the need of civil legal assistance for families with low incomes or modest means and the availability of such assistance. Studies and commentators frequently estimate that 80% of those needs for basic legal services go unmet.1 Strikingly, in the 2016 Justice Index "Attorney Access" state rankings (based on the number of civil legal aid lawyers per 10,000 people under 200% of the federal poverty line), South Carolina ranks dead last.2

Many members of the Bar have provided countless hours of high-quality pro bono legal assistance, yet the access gap persists and may be increasing, even in fundamental basic needs like housing and domestic relations. Indeed, legal aid intake data indicates that, even in these basic areas, thousands of South Carolinians go with- out much-needed legal assistance each year.3 There is no question the need is great and largely unmet. The persistence of the problem— despite the hard work of legal aid attorneys and heartfelt efforts based on traditional volunteer attorney recruitment models—can be attributed to a variety of factors. These include not only the extent of the need but also reluctance on the part of busy lawyers to commit to potentially extended pro bono representation in unfamiliar practice areas.

In response to this challenge to establishing justice for all, the S.C. Access to Justice Commission has developed and implemented the pilot phase of an innovative legal assistance delivery program: the South Carolina Trial Advocacy Incubator. By matching younger attorneys in need of trial experience with supervising mentor attorneys, primarily from the state chapter of the American College of Trial Lawyers (ACTL), the Incubator maximizes the incentives for attorneys to engage in pro bono legal work that is both meaningful and manageable.

What is an incubator?

In recent years, the establishment of "incubator" programs for younger attorneys has been an emerging trend across the count r y.4 Under the standard incubator model, law students and newly admitted attorneys, who are sometimes paid a reduced hourly rate fee stipend, represent indigent clients under the structured guidance of more experienced attorneys, promoting professional skills development and increasing delivery of low-income legal assistance.[5] Incubator programs have been established in at least half of the states around the country,6including the Charlotte School of Law Small Practice Center7 and the Elon Law Legal Incubator8 in North Carolina, and the Atlanta-based Lawyers for Equal Justice incubator created by the State Bar of Georgia.9

South Carolina has not previously had any type of incubator program, but with approximately four thousand members in the S.C. Bar Young Lawyers Division, our state is well-suited for one. Undoubtedly, there is a great need to connect this state's younger attorneys with South Carolinians in need of civil legal assistance. S.C. Legal Services, the front-line law firm for civil legal representation of people with low income, receives on average more than five thousand requests for assistance each month. Even after turning away numerous applicants based on financial eligibility, priority guidelines for specific legal issues and conflicts of interest, SCLS was further forced by resource limitations to reject an average of almost twenty-five hundred eligible clients per year during the past three calendar years.10If even a fraction of the younger attorneys in the state would commit to at least one indigent representation matter per year, it would significantly narrow the access to justice gap—and through SCLS, many of the clients with basic legal needs are already known.

In addition, not all newly admitted members of the Bar are able to secure full-time legal employment and the professional development opportunities that come with it. The problem of lack of opportunities for trial experience is particularly acute for young lawyers in these circumstances. The Incubator program offers these young attorneys the benefit of hands-on mentoring and supervision from some of the best trial lawyers in the state, providing not only an opportunity to make productive use of their law school education but also guidance in the highest standards of trial practice. Furthermore, even young attorneys employed in full-time civil litigation practice are often eager for additional opportunities for trial and other courtroom experience. There is no shortage of demand for the professional development and trial advocacy opportunities offered by the Incubator program.

A team-based approach to pro bono

The traditional approach to recruiting attorneys for pro bono matters is, in essence, one-on-one: a single volunteer attorney is...

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