Judge, Heal Thy Courts For Access To Justice

The NYU Law Review has a barn-burning speech from the chief judge of the state’s appellate bench, who sees the judiciary as the leader of the access to justice revolution (pdf). Judge Lippman is a tireless advocate of legal services for the poor. His work on reforming New York’s justice system is respected throughout the country. Judge Lippman took great care in his speech to highlight innovations in other states — Texas, Connecticut, Washington, New Jersey, Delaware, Montana and California, in particular, as well as the federal courts on immigration cases — to serve the legal needs of the poor. He situated the crisis by noting that 2.3 million New York residents face legal action each year without a lawyer.

These are individuals and their families who are unable to pay for a lawyer or to access free legal assistance—people facing the loss of their homes, suffering persecution by predatory lenders, seeking to keep custody of their children or escape the abuse of a family member, or looking to protect their very subsistence. These vulnerable litigants must have greater access to legal representation if we are to achieve our constitutional mission of fostering equal justice for all, rich and poor alike.

This is a judge who gets it. He noted that New York City’s Legal Aid Society was turning away 8 of every 9 applications for help due to lack of funding. Judge Lippman then outlined several projects and proposals to increase the public’s access to lawyers that should be a model for courts nationwide:

• secure funding for civil legal services as part of the judiciary’s budget by demonstrating the economic value of such services to the legislature ($5 returned to the state for every $1 spent on legal services to the poor);
• require mandatory reporting, as part of the biennial attorney registration process, on the number of pro bono hours and the amount of monetary contributions to legal service providers;
• allow attorneys licensed out of state to offer pro bono services in the state when they are in-house counsel for New York corporations, without having to seek New York registration;
• require 50 hours of pro bono service for admission to the New York state bar (under consideration);
• institute a “Pro Bono Scholars” program that would allow 3rd-year law students to take the bar exam in February, rather than waiting until the summer after graduating, when they dedicate the spring semester to pro bono work with a legal aid agency, law firm or corporation (under consideration);
• allow specially trained non-lawyers called “Navigators” to assist pro se litigants in housing, consumer debt and other cases where court forms are typically used and settlement negotiations are routine (pilots in select New York cities).

Judge Lippman ended the speech on a lofty tone, calling the proposals “a revolution” where:

the judiciary is and should be at its vanguard as we incrementally move closer to a civil Gideon, where we as a society demand that people be represented when the basic necessities of life are at stake. This is what we as judges and attorneys are supposed to be doing: making equal justice a reality for everyone, regardless of his or her status in life.

These words and the policies they represent are a reminder that it is possible to reach the heights of power and still be motivated by progressive ideals. But it is helpful to also remember that access to justice is not the same as access to a lawyer. The judiciary’s authority to regulate the courts goes far beyond the funding of legal services and the discipline of attorneys. It could include changing the adversarial nature of litigation to let finders of fact (judge or jury) engage litigants directly, making litigation a more honest search for truth. It could include investments in public education to ensure regular people know their rights and the basic rules of civil procedure, encouraging self-representation. It could include simplifying procedural and appellate rules so that pro se litigants can more readily apply them. It could enforce the requirement in nearly every state that judges relax those rules for pro se litigants.  True access to justice is access to the ear of the judiciary.

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