PUBLISHED:April 28, 2015

Can we close the justice gap?

Illustration of a court house on ground that has risen above ground level
Millions of Americans can’t access the civil justice system. In this special issue, we examine the problem and salute members of the Duke Law community who are working to close the gap.

 

It’s a sobering statistic: About 80 percent of the serious civil legal needs of low-income Americans go unmet. Millions of people with claims to assert, claims to defend, or both, simply never connect with lawyers or obtain the legal help they need. Perhaps it is because they don’t know their rights, because they don’t know how, or because they can’t afford to pay an attorney and can’t find one to work for free. Whatever the reasons, the results can be dire for people in or on the edge of poverty — eviction, job loss, untreated illness, deportation, and more.

By this measure, the two sisters whose housing claims Joline Doedens ’15 is handling in her Duke Law Civil Justice Clinic caseload are among the lucky ones.

With Doedens’ help, the women, longtime tenants of a dangerously run-down Henderson, N.C., duplex, are suing their landlord. “The house had no stove, it had cracked Plexiglass windows, doors that were falling off, a broken sewage pipe in the backyard, and it developed toxic mold that turned the walls black,” Doedens says. The duplex was sold twice while her clients lived there and each successive landlord failed to make the necessary repairs. Eventually, the property was condemned. The tenants, who had faithfully paid their rent, were evicted.

They turned to Legal Aid of North Carolina (LANC) for help in recovering rent payments. Doedens took on their case last fall, after the agency partnered with Duke Law to establish the Civil Justice Clinic, in which law students handle cases with appropriate supervision. In many ways, they are typical of the 26,000 people LANC serves each year; matters relating to housing and benefits are common in the agency’s caseload.

Doedens was certain they were entitled to far more in damages than their modest monthly rent. Supervised by Clinic Director Charles Holton ’73 and lawyers in LANC’s Durham office, she drafted pleadings against the landlord claiming breach of warranty of habitability, negligent and intentional infliction of emotional distress, unfair and deceptive trade practices, and unfair debt collection. “If we prevail in court, the first claim would get our clients their rent payments back, because they were essentially paying to live in a condemned property, one that should never have been offered for rent,” says Doedens, who worked on domestic violence actions at LANC during her 2L summer. “With the unfair and deceptive trade practice claim, we can treble the amount of rent they can possibly recover.” The remaining claims pave the way for further compensation, including punitive damages, she says.

In many cases, a few thousand dollars can make the difference between having a home and being homeless.

— Karlee Blank ’15, a member of the inaugural Civil Justice Clinic class

In addition to teaching her how to structure her clients’ claims, the case underscores the importance of having a lawyer to do so, says Doedens, who notes that the parties are currently trying to settle the case out of court. “In these cases the landlord generally has far more power than the tenant does in terms of knowledge and access to lawyers, and so might be able to run over the tenants,” she says. “A lawyer can frame the complaint or a counterclaim in the right language in order to make an argument work.”

And making an argument work can be invaluable to a client of limited means, adds Doedens’ classmate Karlee Blank ’15: “In many cases, a few thousand dollars can make the difference between having a home and being homeless.”

Access to justice: “one of the biggest issues of our time”

At Duke Law, the Civil Justice Clinic satisfies a longstanding goal of helping students build practical litigation skills that are transferable to the wide variety of cases they may face when they enter the profession. But it is also delivering an essential service to the community at a time when the need has never been greater. “Providing access to legal services to the large group of citizens who cannot afford private counsel represents one of the biggest issues of our time,” says Dean David F. Levi.

Indeed, a longstanding civil justice “gap” has in recent years widened into a chasm. The recession froze or drastically reduced government support for public legal services and the contraction in the legal economy and low interest rates caused another key source of funding, interest on lawyers’ trust accounts, to plummet. In 2013, the Legal Services Corporation reported that based on their income, 65.5 million Americans qualified for the legal assistance the group funds nationwide, an all-time high, but about 80 percent of their legal needs would not receive the professional help they demand.

National and state bar associations and regulators, state-level access-to-justice commissions, the private bar, and the courts are trying to address this crisis with an array of initiatives. Some are attempting to improve the quality and delivery of pro bono representation by private lawyers, others to facilitate legal services to remote and isolated areas, and others to enhance assistance to litigants who are representing themselves in ever-increasing numbers.

American Bar Association President William C. Hubbard, who briefed members of the Duke Law faculty during a November lunchtime program, has put improving legal services delivery to Americans of low and moderate means at the top of his agenda. One notable ABA initiative is the creation, last year, of the Commission on the Future of Legal Services, which is charged with identifying promising ideas and innovations around the country, and proposing improvements and pilot programs. Another is expansion of the ABA’s Legal Access Job Corps, through which unemployed or underemployed law graduates serve clients in disadvantaged and underserved communities.

Public service is a critical aspect of a Duke legal education that engages students in a number of ways: through more than 50 student- run programs overseen by the Office of Public Interest and Pro Bono; through externships with local nonprofits, state and federal prosecutors and public defenders, or congressional offices and federal agencies via Duke in D.C.; through summer internships and fellowships; and through the 10 distinct clinics that comprise the Duke Legal Clinics.

“Our goal is to develop lawyers who are capable leaders and committed to public service,” says Levi. “Through the clinics, students strengthen both their lawyering and leadership skills while providing vital services to real clients whose lives and livelihoods are deeply affected by their work. The range of clients and cases students will handle in the Civil Justice Clinic, given the scope of Legal Aid’s caseload, serves our goals particularly well.”

He adds that students have a “superb” mentor and model in Holton, senior counsel at Womble Carlyle Sandridge & Rice in Research Triangle Park, who has offered pro bono representation to LANC clients throughout his career and currently chairs its board of directors. “With his intimate knowledge of LANC’s caseload and goals as well as our teaching mission, Charles can maximize the student experience in the clinic while benefitting Legal Aid and building on our already strong relationship with that organization.”

In the spring semester, seven Civil Justice Clinic students are representing clients directly on matters relating to housing, foreclosure, domestic violence, and unemployment, food-stamp, and veterans’ benefits. Like Doedens, each is acting as primary counsel on at least one case before a court or administrative agency, with oversight from Holton as well as from LANC staff attorneys. They also are joining teams of LANC attorneys on more complex cases. Holton teaches a weekly seminar where students learn basic civil litigation skills and substantive law relevant to their caseloads, and can discuss cases and strategy in a confidential setting.

George Hausen, LANC’s executive director, says he is enthusiastic about having law students and a veteran litigator embedded in the agency’s Durham office. The students’ efforts, coupled with Holton’s expertise in complex litigation, have the potential to help LANC build capacity to serve more clients and handle complex cases statewide, he says. More than two million North Carolinians qualify for legal services, yet state funding for his agency has been significantly reduced.

“What the clinic does, what Charles is doing, and what the dean is supporting, is making sure that our law students and our lawyers at Legal Aid are well trained to litigate,” Hausen says. “Having Charles in our offices makes a difference, not only to the experience that those law students get, but in the caliber and the quality of the advocacy my lawyers are delivering. He is an extraordinarily accomplished litigator.”

In the future, a deeper partnership with Duke Law might encompass empirical scholarly research to examine and facilitate improvements in LANC’s service delivery, he adds: “I’m certain the clinic is a model we can build on and one that is going to build our capacity all over the state. This is an extraordinary opportunity for Legal Aid.”

Helping the self-represented litigant

As the capacity to deliver critical legal services to those who need them lags across the country, a growing number of people are representing themselves before state and federal courts and administrative agencies. Efforts are underway to collect accurate national data on the extent of self-representation, but many state courts report having at least one pro se party in over 50 percent of civil cases.

Many self-represented litigants are simply lost — unfamiliar with court rules and procedures, the substantive law pertaining to their cases, and the evidence required to prevail. And for the courts, they present a distinct challenge.

Judge Virginia Norton, a trial judge in Jacksonville, Fla., and a student in Duke’s Master of Judicial Studies program, says that presiding over matters involving untrained pro se litigants requires extra effort on the part of courts to ensure equal access to justice.

“I am sometimes concerned that people are not getting their day in court when I have a pro se with a cause of action who is trying to articulate a very complex issue,” says Norton, a member of Florida’s Fourth Judicial Circuit. She does what she can, she says, to make the process “more open” to them: “I always remind them exactly what we’re there for on that day. I acknowledge that the case is more complex, say, than this motion to dismiss, but that’s what is before the court.”

Norton counsels new judges to be mindful of the fear and confusion self-representing litigants experience, and of their emotional connections to their legal disputes. “But, obviously, we can’t be their advocate.”

It’s very tough on the judiciary to put the judge in the position of being the lawyer for one side or the other. But that’s in effect what we’re asking when a pro se with a meritorious case is before a judge.

— Dean David F. Levi, the former chief judge of the U.S. District Court for the Eastern District of California

The view from the federal bench isn’t much different, reports Magistrate Judge Andrew J. Peck ’77 of the U.S. District Court for the Southern District of New York. Peck says about 25 percent of his court’s caseload is pro se. Claims relating to discrimination and “Section 1983” cases that allege violations of constitutional rights in the course of arrest, search, or imprisonment are common in the federal docket and challenging for all parties involved, including judges.

“These claims are very hard to prove,” he says, noting that his district makes a manual on self-representation available to litigants. An instance of alleged employment discrimination, for example, may be quite subtle, and need to be proved by contrasting the way the plaintiff in the protected class was treated with the way an employee in an unprotected class was treated. “That is extraordinarily difficult for a pro se to do — it’s hard for lawyers to do,” he says. Incidents of false arrest, false imprisonment, or malicious prosecution are similarly hard to prove.

When dealing with self-represented litigants, Peck and his fellow judges can “try to walk them through” the discovery process by guiding them to the relevant rules of civil procedure and outline the evidence they can request from and must provide to the opposing party. But the cost of transcribing depositions is generally prohibitive and limits what they can do.

Guaranteed public funding for professionals to handle these cases would help, but Peck says he has little hope of that happening. His large judicial district benefits from an active pro se office through which the court can “beg” lawyers and firms, and in some cases law schools, to take trial-ready cases. “It’s a good way for associates and, frankly, young partners in major firms to get trial experience,” he says.

Helping pro se litigants help themselves is viewed nationally as a key access-to-justice priority. Court jurisdictions, administrative bodies, and legal services agencies across the country have taken a range of steps to assist individuals with official filings and understanding of courtroom procedure through information kiosks, advice lines, online resource guides, and guidance from courthouse staff. Some have even implemented training programs for self-representation.

“It’s very tough on the judiciary to put the judge in the position of being the lawyer for one side or the other,” says Levi, who served as chief judge of the U.S. District Court for the Eastern District of California prior to becoming dean in 2007. “But that’s in effect what we’re asking when a pro se with a meritorious case is before a judge. It’s a very difficult situation.”

Triage: essential for efficiency

Absent a constitutional right to representation in civil cases (and corresponding full funding for legal services), self-represented litigants will continue to crowd American courtrooms. But the assistance they receive with filing and procedure doesn’t guarantee them access to justice, just access to the courthouse door, says LANC head Hausen.

“In many cases, in giving people pro se help you are raising expectations and consigning them to failure,” he says. “Ultimately — and the rule of law requires this — you have to have a lawyer in the courtroom. Because if you have good law and you have good facts but the other side is represented and you’re not, you are going to lose. It’s just that simple.

“At the end of the day, if you’re not triaging cases and providing a lawyer when one is needed, you’re not serving justice.”

Triage, a concept borrowed from emergency rooms where priority is assigned to critical cases, is gaining traction in access-to-justice circles, says Reena Glazer ’94, assistant director of the Law Firm Pro Bono Project at the Pro Bono Institute (PBI), a Washington, D.C.-based nonprofit dedicated to promoting, facilitating, and researching improvements to the delivery of pro bono legal services. “The realistic construct is no longer one lawyer for every client. That’s never going to happen,” says Glazer. People requesting assistance with claims that have little or no chance of success need to be turned down for service, she says, while others need to be assessed to see if something less than full representation can help.

In many cases, in giving people pro se help you are raising expectations and consigning them to failure.

— George Hausen, executive director, Legal Aid of North Carolina

“It’s where idealism and pragmatism meet up,” she says. “Could this person benefit from a little advice and then be capable of handling their own matter? If we got their documents in order, could we do a less complex representation? Full service is great, but we need to be thinking about what else makes a difference.”

A number of states are also allowing lawyers to offer clients “unbundled” services of limited scope — legal assistance on, say, document preparation or assistance with only some aspects of a case — without taking responsibility for full carriage of the matter.

Early assessments indicate that this kind of “limited lawyering” has a positive effect, Glazer says, citing results in New York state. “People seem to be satisfied by the outcomes,” of brief advice and counsel, she says. “They feel like they got a fair shake: ‘I didn’t feel coerced into a bad settlement, even if I settled. Someone listened to me and gave me advice and the process was fair.’ That makes a difference in terms of how people perceive the legal system.”

The difference a lawyer makes

Still, when a claim demands a clear resolution through adjudication by a court or administrative tribunal, few would disagree with the assertion that low-income claimants require the expertise of a lawyer. And the view from the front lines indicates that in many cases, more lawyering is needed, not less.

Like Hausen, Joanna Darcus ’12 takes an “all-hands-on-deck” approach to helping her clients at Community Legal Services (CLS ) in Philadelphia, engaging in direct client representation as well as training members of the private bar to represent consumers on a pro bono basis and providing technical assistance to students at local law schools who handle consumer matters.

As a staff attorney in the Homeownership and Consumer Law Unit, Darcus frequently sees the need for lawyers to intervene long before cases go before a judge. Her clients include borrowers who have struggled to pay student loans and consumers facing lawsuits filed by debt collectors who have a distant connection to the alleged debt at best or, perhaps, none at all.

“Debt collection lawsuits for credit cards and personal loans are often filed in small claims courts,” she explains. “Historically, these courts were places where individuals could file and defend small-dollar lawsuits at relatively low costs and even without lawyers, and many relaxed rules of evidence and procedure so non-lawyers could participate.

“Now, small claims courts are overflowing with lawsuits filed in bulk by corporations against individuals who are almost always on their own,” she says. “Consumers lose because they don’t know their rights or defenses. From mistaken identity to expiration of the statute of limitations, there are strong defenses to collection actions.”

When people begin to engage in pro bono it becomes an important part of their practice.

— David Esquivel ’97, chair of the Pro Bono Committee, Tennessee Access to Justice Commission

She adds that some of the most troubling practices seen in mortgage foreclosures happened at an even more alarming level in the world of unsecured debt, including “robo-signing,” documents being carelessly lost, and loans being assigned without documentation. “That also gives rise to defenses,” says Darcus, who started working on economic justice matters at CLS as an Independence Fellow immediately after her Duke Law graduation.

“We are hopeful,” she says, “that through an ongoing collaborative effort of consumer and creditors’ attorneys, pro bono programs, and judges, our small claims court will become a place where consumer defendants can seek limited representation on the spot from pro bono attorneys, apply for full representation by legal services, and access resources that will equip them to participate in the court process. This way, consumers will not have to fend for themselves when they meet with creditors’ attorneys to discuss settlement and whether to go to trial.”

Clients need to be represented in conciliation and other alternative dispute resolution proceedings as much as they do at trial, she says. “Since there is no shortage of these cases, this is a resource-intensive undertaking for everyone involved.”

Engaging the private bar

To help them meet the ever-growing demand for services, Darcus and her peers in the understaffed and underfunded public legal services sector rely on members of the private bar. Across the nation, pro bono service is viewed as a pillar of professionalism, but with demand for legal aid exceeding supply, access-to-justice commissions, bar associations, and bar regulators are seeking ways to boost volunteerism. Some states — notably New York and California — mandate 50 hours of pro bono service as a condition of bar admission.

For David Esquivel ’97, who leads the Pro Bono Committee of the Tennessee Access to Justice Commission, it’s just the right thing to do. “When people begin to engage in pro bono it becomes an important part of their practice,” he says, “It’s meaningful to them in addition to being much needed in society.”

Esquivel, a partner and financial services litigator at Bass, Berry & Sims in Nashville, first became a “pro bono junkie” while clocking more than 1,800 hours in a successful federal lawsuit on behalf of five plaintiffs whose families were tortured and murdered under military rule in El Salvador in the late 1970s and early ’80s. The emphasis has to be on quality pro bono representation, he says.

 … [O]ne of the ways we have funded the legal services system is through the sacrifices that those who work within it are willing to make by taking the salaries they do. To me, they are really the biggest funders of access to justice.

— Senior Lecturing Fellow Carol Spruill, a former member of the North Carolina Equal Access to Justice Commission

That’s why encouraging law firms to develop areas of pro bono specialization has been a key initiative for his committee. The Pillar Law Firm program is one approach implemented at law firms across Nashville, including his own 200-lawyer firm, one of the city’s largest. “It doesn’t do clients much good if the lawyer handling their landlord-tenant case doesn’t know anything about that area of the law,” he says.

Through the program, individual firms choose a specific area on which to focus their pro bono practice and receive training from legal aid specialists, who then direct a significant number of those types of cases to them. “We had someone from legal aid do a two-hour training over lunch and then split up into teams of three that work across all departments,” says Esquivel. “Each team has a partner, a transactional associate, and a litigation associate. Now, when we get a referral from legal aid, we go down the list and assign it to a team.”

Teams are composed of three people so that there’s always likely to be someone on the team to take on the pro bono matter, he adds. His firm has handled more than 50 landlord-tenant cases over two years, whereas they hadn’t handled any previously. That success has been replicated in other Nashville firms, he says, and with the Access to Justice Commission’s support the program is expanding to Knoxville, Chattanooga, and Memphis.

At PBI, Glazer works with law firms to “start, reboot, improve, or revitalize” their pro bono programs, and is always on the lookout for best practices, like those of the Pillar Law Firm program, to disseminate in the interests of boosting efficiency. She has some good news to report: Even as the recent contraction in the legal economy continues to make profitability a key concern, the law firms with more than 50 attorneys she engages with “are holding their own” on pro bono. In-house legal departments also have become actively engaged with pro bono in recent years, she says.

And Glazer, who got significant experience with appellate litigation early in her career by handling a groundbreaking asylum case in the Ninth Circuit pro bono, says it’s a terrific way to train young lawyers, both litigators and non-litigators alike. If professional development teams within individual firms work closely with pro bono teams to align training and career goals with available cases, they can improve the outcome for both the pro bono client and the firm. Law firms are also increasing efficiency by working across departments, offices, and sometimes collaborating with other firms and stakeholders to take on large impact projects, she says.

Training, mentoring, supervision, and support are essential to encouraging lawyers to take on pro bono cases. “You have to make it as supportive and nurturing as possible,” Glazer says. “Lawyers don’t want to fail, they don’t want to embarrass themselves, and they don’t want to be in uncomfortable situations. You want as high a comfort level as possible.” And while she considers the trend towards specialization through firm-wide adoption of projects or areas of poverty law a best practice, she notes that that most firms have a “big tent” philosophy to their pro bono practices, as a wide menu of opportunities honors the varied interests and passions of their lawyers.

For some firms, pro bono is “in their culture and DNA,” she says. “What it means to be a lawyer at those firms is to do pro bono. It’s a very self-perpetuating theme. Law students, young associates, and even laterals that are attracted to firms like that are convinced of its importance.”

At others, that culture can be advanced when partners promote success stories and make it clear that pro bono engagement enhances associates’ visibility in and value to the firm. That management cares needs to be “a consistent, visible, and vocal message from the top down and the bottom up,” says Glazer.

Toward a healthier legal services system

Whi le pro bono is essen tial to attempts to narrow the civil justice gap, Glazer cautions that volunteer efforts cannot replace those of a robust professional legal services sector. “Pro bono is complementary to primary legal services,” she says. Because legal services professionals handle intake, vet cases, and then mentor and train pro bono attorneys, reducing their funding — and their ranks — has the downstream effect of depressing pro bono, she adds.

For Senior Lecturing Fellow Carol Spruill, who examines the justice gap extensively in her Poverty Law course at Duke Law, increasing support for the underfunded legal services system is the most efficient way of addressing the problem.

“Pro bono and other approaches can help around the margins, but we have to make a serious commitment to funding the programs that are designed for it,” says Spruill, a co-author of the 2008 North Carolina Access to Justice Report and former member of the North Carolina Equal Access to Justice Commission. “In fact, one of the ways we have funded the legal services system is through the sacrifices that those who work within it are willing to make by taking the salaries they do. To me, they are really some of the biggest funders of access to justice.”

Spruill commends the idealistic law graduates who continue to apply for legal aid positions and enter the public interest sector in large numbers. But she is concerned by evidence of relatively high turnover as they struggle to pay back student debt and get ahead financially. In this respect, she says, student debt relief programs like Duke Law’s Loan Repayment Assistance Program (LRAP) are an effective way of subsidizing public interest salaries and indirectly helping a few more people to gain access to the civil justice system.

In fact, law schools are crucial to helping the profession provide services to the millions of people who have serious legal needs and no way to access the legal system, says Esquivel of the Tennessee Access to Justice Commission.

“Part of the training to become a lawyer should be the rewards, the responsibilities, and the many different ways that pro bono ought to be a part of your practice, if you’re not a full-time public interest lawyer,” he says. “Another is encouraging students to become full-time public interest lawyers who can spend their careers effecting change.”

As a member of the Law Alumni Association, he’s been cheered by Duke’s initiatives in both areas, noting, among others, the support and oversight the Office of Public Interest and Pro Bono offers to student-led activities; the establishment, in 2013, of the Office of Public Interest Advising within the Career Center to support post-graduate entry into the government and public sector; graduates’ receipt of prestigious public interest fellowships like the Skadden Fellowship; and the robust development of the clinical program. Indeed, there is a wealth of anecdotal evidence that exposing lawyers to pro bono service as early as possible in law school or practice results in a lifelong commitment.

Joline Doedens, who is now enrolled in the Civil Justice Clinic for a second semester as an advanced student, will launch her career as a “low-bono” defense attorney in the Washington, D.C., area, to further her goal of working in public interest law and making legal services accessible to clients of modest means. Working directly with LANC clients under the guidance of Holton and staff attorneys is her “favorite part of law school,” she says.

“Every time I go to the Legal Aid office I learn something new and develop a skill. I learn how to write interrogatories. I learn to draft a complaint. I learn how many facts to include in a complaint. You can learn all of these things in the abstract, but it’s really been helpful to get the input of experienced lawyers.”

According to Levi, the clinical collaboration with LANC benefits the Law School beyond allowing students to tackle realworld problems and build solid skills transferable to a range of practice areas; he hopes it will also give rise to empirical research and scholarship on access to justice and how to meet the civil legal needs of millions of underserved Americans.

“We’re a profession and we care deeply about access, and we are a school committed to our mission of knowledge in the service of society,” he says. “So this is a service mission as well.

“If you can pull all those things together, it’s highly motivating, and a wonderful opportunity.”

At LANC, where the mantra, Hausen says, is “we don’t underserve our clients,” the agency’s deepening partnership with Duke Law School represents even more. “This is real access to justice,” he says.

by Frances Presma

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Illustration of a court house on ground that has risen above ground level

Cover of Duke Law Magazine, Spring 2015 Duke Law Magazine

Spring 2015
Vol 34  Number 1

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