“They Had Access, But They Didn’t Get Justice”: Why Prevailing Access to Justice Initiatives Fail Rural Americans

Georgetown Journal on Poverty Law and Policy

Volume XXVIII, Number 3, Spring 2021

321

“They Had Access, But They Didn’t Get Justice”:

Why Prevailing Access To Justice Initiatives Fail

Rural Americans

Michele Statz,* Hon. Robert Friday, Jon Bredeson

In the United States, access to justice (A2J) initiatives are developed by

people and institutions in urban areas. Accordingly, A2J supports are often

premised on technological, professional, and infrastructural capacities that

simply do not exist in many rural regions. Until now, no one has empirically

examined the consequences of this metrocentric approach. Drawing on over

three years of mixed-methods research across the Upper Midwest, this Article

offers an urgent response. Not only are A2J “solutions” intrinsically insufficient

in rural areas, but they compound existing stress and are even experienced as

humiliating by many low-income rural residents. By introducing the role of

dignity—and what, or who, best provides it in the rural A2J context—this Article

offers a novel and necessary intervention in access to justice scholarship and

policies.

Uniting empirical data and policy analysis, this Article argues that

prevailing A2J initiatives are flawed at three primary levels: (1) a failure to

meaningfully recognize the limits of rural infrastructural capacity and the

complex barriers low-income rural residents in particular navigate; (2) a

presumption that anyone in a crisis situation, let alone someone facing these

barriers, can effectively be their own attorney; and (3) a professional

understanding of justice that is critically at odds with rural individuals’ own

expectations. Our response is not to offer one more rural A2J “silver bullet”

initiative, though the Article discusses what A2J options may offer more locally

relevant experiences of justice. Instead, this Article highlights broader tensions

that emerge when dominant narratives around “access” are held against the

lived expertise of those who daily experience rural attorney shortages and other

*Michele Statz is Assistant Professor, University of Minnesota Medical School, Duluth and Affiliate

Faculty, University of Minnesota Law School, mstatz@d.umn.edu

The Honorable Robert Friday is a Minnesota District Court Judge in St. Louis County – Virginia.

Jon Bredeson is a Research Assistant and Project Manager for the Northland Project,

www.northlandproject.org. The research on which this article is based was generously funded by the

National Science Foundation (award #1729117). We are grateful for helpful fee dback on this proj ect at the

2020 Rural Legal Scholars Workshop and owe special thanks to Lisa Pruitt for her perceptive and generous

commentary on the paper. We also thank Steve Aggergaard, Kari Beaudry, Mike Carlson, Ann Eisenberg,

Bert Kritzer, Fred Friedman, Hannah Haksgaard, Associate Justice Anne K. McKeig, Lauren Sudeall, and

Kathryne Young for their thoughtful insights and ongoing guidance, and for shaping our thinking in

important ways. We dedicate this article to the rural community members who so generously shared their

time, legal experiences, and lived expertise with us over the course of our research and work.

322 The Georgetown Journal on Poverty Law & Policy [Vol. XXVIII

structural inequities. As the Article demonstrates, this profound mismatch of

expectations is hugely consequential, resulting in forms of “access” that are in

rural areas experienced as barriers to justice.

I. INTRODUCTION ............................................................................................... 322

II. EMPIRICAL RESEARCH ON RURAL ACCESS TO JUSTICE ................................ 328

A. The Northland Context .............................................................................. 328

B. Research Methods and Analysis ................................................................ 332

C. A Rural Intervention in A2J Policy and Scholarship ................................ 335

III. ACCESS TO JUSTICE INITIATIVES AND RURALITY ........................................ 336

A. A2J Technologies ...................................................................................... 339

B. Direct Representation and Law School Involvement ................................ 349

C. Non-Lawyers and Unauthorized Practice ................................................ 356

D. Unbundled Legal Services ........................................................................ 359

E. Legal Spaces and Access ........................................................................... 362

IV. ON DIGNITY, OR WHEN ACCESS ECLIPSES JUSTICE .................................... 370

A. Resignation................................................................................................ 370

B. Responsibility ............................................................................................ 372

V. CONCLUSION ................................................................................................. 376

I. INTRODUCTION

[E]ach woman and each man craves what it cannot have, mot universal love

but to be loved alone.1

Procedurally, probably still not acceptable, but pragmatically, the procedure

should not stand in the way of a just result, and I am confident we have

vindicated and protected the rights of those we should be concerned.2

In rural Minnesota, a custody case came before the district court where both

parties were unrepresented. The father was successful in navigating the court’s

online forms, even to the point that he perfected an ex parte motion and another

1. W.H. Auden, September 1, 1939, POETS, https://poets.org/poem/september-1-1939 (last visited

May 5, 2021).During a panel discussion of self-help options available to pro se litigants at the 2019

Minnesota Legal Services C oalition Statewide Conference, a legal aid attorney from Minnesota’s Iron

Range noted, “It makes me think of the Auden line: No one wants universal love, but ‘to be loved alone.’”

Ultimately, this is the premise from wh ich we have written this article: Amid so many well-intentioned,

“universal,” and often hopelessly intricate self-help options for low-income rural litigants, there is simply

no substitute for the intimate presence of direct representation. The authors thank Bill Maxwell for so

beautifully making this critical point.

2. E-mail, from Judge Robert Friday, to Court Administration (Sept. 30, 2020) (on file with author).

N

o. 3] “They Had Access, But They Didn’t Get Justice” 323

subsequent motion. The mother answered via the available forms, and both parties

appeared at multiple hearings. The case was complicated and included young

children, domestic abuse as to both parties, chemical dependency as to both parties,

and mental health issues as to both parties. Even with the encouragement of the

court, the parties could not reach a resolution, and the matter was set for trial.

Recognizing that neither party was represented by an attorney, the court

provided both parties a copy of the Minnesota Statute that lists the twelve factors

the court must consider, and must make findings upon, in determining an award of

custody. The matter came on for trial, and after advising the father of how he was

to testify by narrative since there was no attorney present to conduct the

questioning, this exchange followed:

The Court: All right then, [name], when you are ready, you can

proceed to tell the Court what it is that you wish the Court to know.

Father: It is truly in my best interests solely for the boys that they

remain under my care and my custody. I feel like I provide a very

safe, healthy environment for them. All their needs are met. They

are very loved. The boys have been thriving. Since “mom” has

moved out of our home, I have felt a sense of calmness and peace

in our house. That’s it, your Honor.3

This was all of the testimony he would offer. When the mother testified, she

did not give much more than this. Both parties utilized court self-help forms to get

the matter before the court. The court even took the additional step to provide both

parties with exactly what the court must consider in deciding their case: a full and

fair hearing with an unbiased application of the law to the facts presented. In this

situation, and as provided by the Minnesota Rules of Evidence,4 the Judge asked

the necessary questions to elicit testimony regarding the factors. The parties were

heard.

However, the court did not know the parties, their personal histories, the

impacts of chemical dependency on their lives, the nature of the incidents of

domestic violence, their children, or their mental health struggles. The court was

without any documentary evidence, medical reports, or discharge summaries. If

one party had an attorney, the court would have received significantly more

information. However, as is the case in an adversarial proceeding, it would have

been one-sided. The unrepresented party would not be able to navigate the

labyrinth of procedural rules to offer evidence or, more than likely, properly

examine a witness either on direct or cross-examination. Having only one party

represented would also limit the ability of the court in its inquiry. If both parties

were represented, the court would receive significant information from both

parties, and, while still imperfect, the court could render a fair and impartial

decision based on the application of the law to the facts presented. As is required,

a decision was issued in this case. Based on the limited information received by

the court, the decision, if incorrect, will significantly and negatively impact the

lives of a 4-year-old and a 2-year-old.

3. Jacobson v. Laulunen, No. 69VI-FA-13-205 (D. Minn., Feb. 27, 2020).

4. MINN. R. EVID. 614(b) (1977), MINN. CT. RULES, https://www.revisor.mn.gov/court_rules/ev/

id/614/ (“The court may interrogate witnesses, whether called by itself or by a party.”).