7 Access to Justice
Brian R. Huffman
This chapter will discuss the key players in the A2J movement, given that partnerships and curated resources are paramount in any A2J endeavor. Next, the chapter will cover various models of delivery we provide public-facing A2J efforts. A case-in-point for a concept in action collection development will be discussed in greater depth. The chapter will conclude with a discussion of issues that have been on the horizon for the A2J movement.
- Access to Justice is a universal concept that touches all types of Law Libraries.
- Law librarians must understand the partners who help provide meaningful Access to Justice.
- There are various service models used to facilitate Access to Justice.
The American Access to Justice (A2J) movement started sometime at the turn of the last century. Roscoe Pound spoke about A2J in his address to the American Bar Association (ABA) in 1906.ii “Our administration of justice,” he said, “is not decadent. It is simply behind the times.”ii This movement has greatly impacted the American legal system. It has brought an awareness that the average public has a deep-seated need for justice, and barriers prevent meaningful access to justice. These barriers include lack of education, lack of financial resources, lack of legal information and assistance, lack of access in the normal meaning of the word (no lawyers or Law Libraries nearby), and in some instances, lack of ability (physical/mental challenges).
As Steven P. Anderson stated, “The primary goal of the “Access to Justice” movement is to improve the quality of participation in the justice system by all. It also envisions an even “playing field” for the disadvantaged by removing barriers to access, such as income, literacy, mobility, and language, for those individuals with civil legal needs.”iii
The concepts in this chapter have been frustrated since March 2020 by the advent of the coronavirus pandemic. Offhand, there are at least two recent concerns due to COVID-19: The disappearance of public technology; and the diminishing value of print collections. These are not new concerns, but the safety and health concerns make it more difficult to provide complete access for those disadvantaged by the “digital divide.” The digital divide occurs when the underrepresented and disadvantaged lack similar access (to books, eBooks, databases, etc.) due to poverty, lack of education, or disability.
Access to Justice involves self-represented litigants (SRLs), the law, and the justice system (courts, agencies, and possibly the legislature). There is the process and the law. SRLs are generally not familiar with any of it. That is why we have lawyers. But many people lack access to legal representation because they do not know where to find it and cannot afford it.
In addition to the parties to a lawsuit, lawyers, judges, and legal service providers play a key role. Legal service providers can be non-profits like Legal Aid or larger organizations like the Legal Services Corporation. Some providers specialize in an area of law, such as family law, domestic abuse, landlord-tenant. Many have income requirements and will not take fee-generating cases like personal injury or wrongful death.
Additionally, there are state and local bar associations which may have lawyers who specialize in areas of the law and who are available to take cases for free (pro bono) or at a lower fee. Some Law Schools also provide clinics in which members of the public can receive legal assistance in certain areas of the law (family law, criminal expungement, and landlord-tenant as examples).
Let us also not forget that public libraries are a vital resource. A person may often start their research efforts at a public library, which may have a limited legal collection. Only recently have public librarians been asked to come to the table and learn how to provide meaningful referrals for patrons with legal concerns.
It would be an error to exclude the important work the ABA and various state bar associations have done setting up and conducting the work done by Access to Justice Commissions. Beginning with the first A2J Commission in 1994, in Washington State, these commissions bring together judges, lawyers, civic leaders, and other stakeholders with the goal of removing barriers to civil justice.iv
Law librarians are gatekeepers and triage specialists of a sort. They must ascertain how best to help patrons when they appear at the library with their legal issues. A Law Librarian needs to know when best to lead a patron to resources for legal research versus getting them more immediate assistance with a lawyer. You see how a reference interview can become complicated quickly. And why Law librarians need to know something of the law to best mediate the potential avenues of assistance. They also need to know who the key players are and if they will take referrals.
Some essential organizations help create resources, foster partnerships and networking opportunities to build meaningful A2J initiatives. Four prominent organizations are Self-Represented Litigation Network (SRLN), Pro Bono Net, Legal Services Corporation, and the American Association of Law Libraries (AALL).
Most A2J organizations focus on civil matters. Civil matters are anything other than a criminal matter (i.e., a case where a fine, fee, or imprisonment could be the outcome). Civil matters are the focus primarily because criminal cases are afforded the right to counsel (attorney representation). Later in this chapter, there is a discussion on Civil Gideon and the movement to afford counsel as a right in civil matters.
The SRLN is a proclaimed leader in the 100% access to civil justice movement. They view equal protection and due process as guiding principles. They were formed in 2005 under the leadership of Richard Zorza. Mr. Zorza was the founder and Coordinator Emeritus of the Self Represented Litigation Network and a graduate of Harvard Law School. He was a former public defender, legal services attorney, and justice technology designer. What makes the SRLN stand out is its direct involvement in and participation by librarians. The author got his first taste in the A2J movement by representing Minnesota at the Public Libraries and Access to Justice conference in 2010, which was funded by the Bill and Melinda Gates Foundation. Richard Zorza chaired this conference.v
Pro Bono Net (PBN) was started in 1999 by two pro bono leaders at large law firms in New York City. The internet was envisioned as a technology to help facilitate pro bono assistance to those in need. They focus on assisting disaster survivors, older Americans, and immigrants. PBN assumed management of LawHelp Interactive, a service that hosts critically helpful websites that contain online legal forms throughout 40 states.
Established in 1974, Legal Services Corporation (LSC) is the largest non-profit funder of civil legal aid in the nation. LSC provides grants to legal service providers. Training and technical assistance are also part of their service model. LSC is headed by a bipartisan board of directors whose 11 members are appointed by the President and confirmed by the Senate. The legal issues they assist most in are family law, housing and foreclosure, consumer issues, employment, income maintenance, helping military families, and disaster relief. LSC helped 1.8 million people in 2013.vi This number could be as inaccurate as 50%, though, as many who seek help are turned away.
AALL also plays a significant role in the A2J movement. Special interest sections (SIS) like Legal Information Services to the Public (LISP) and Government Law Libraries (GLL) are comprised of active members who work at libraries where pro se litigants are assisted. These SIS’es also maintain helpful websites and toolkits that contain helpful guides or online pathfinders with state and federal legal research links.vii
A2J Service Models
There is no one model fits all approach when it comes to helping pro se litigants in the library. Choosing the ideal model is an exercise in knowing your audience and their needs, in addition to knowing what services and resources you have available that can assist patrons with their legal needs. This section outlines six possible A2J service models a library could utilize. The list is not mutually exclusive; a library may employ any number of these models based on needs and resources.
Partnerships with Service Providers
The most used and obvious model of providing A2J initiatives in the library is to partner with local legal service providers in your area. Get to know who the providers are, what legal help they provide, and their income or asset threshold guidelines. At the very least, you can build a network for referrals. You will learn where to send a child custody case versus a domestic abuse case. This kind of networking also helps libraries with their collection development plan, informing what resources may be needed and what may no longer be relevant.
Additionally, many libraries offer a space where legal service providers can hold clinics to provide information to the public (like workshops) or one-on-one interview opportunities. The library often has available space, parking, wireless internet, and the ability to print legal forms. It is almost like having a remote office for the lawyer who helps with these legal clinics.
Court/Law Library Self-Help Centers
Some libraries may be in or close to a courthouse. Many courts have implemented self-help centers where the public can obtain court forms and perhaps access to lawyers who can provide limited advice on their cases.
The Law Libraries and Access to Justice report by AALL mentions three levels of service: basic, intermediate, and advanced.viii The basic level involves providing space and books. The intermediate level would be a librarian or the equivalent, a list of referrals, core collection, curated websites, a system to note what is being requested, and basic equipment. The advanced level would have both the basic and intermediate components and access to an attorney on staff directing the operation of a self-help center. In this advanced level of service, the law librarians and the attorney will:
- Create tools such as research guides, videos, forms, and court practice tips for the most frequent issues
- Create workshops to address specific legal needs
- Address the patron’s issue at their point of need
- Provide a neutral environment for discussing their needs
- Provide referrals to appropriate legal services agencies and other services as needed
- Partner with the court to design methods to assist the patron move through the court process more smoothly
- Partner with other legal services to provide effective referrals.ix
Sadly, many under-funded, small, rural courthouse libraries can barely meet the basic level. Sufficient resources and space would be needed to fulfill the advanced level. True dedication on the part of court administrators, judges, bar associations, and legislators would be needed to accomplish this high level of assistance.
“Lawyer in the Library” Programs
A more innovative approach involves hiring and placing a lawyer in the library to assist pro se litigants. This approach is attractive to some who may lack adequate legal service providers in their community. There are potential drawbacks involved; namely, no one lawyer can be experienced in all the areas of law that patrons could possibly need assistance in. Also, the cost of a lawyer and the requisite malpractice insurance could be prohibitive for many budgets, especially if the library still maintains a space, computers, a collection, and access to research databases. If the library is able to recruit lawyers from law firms to do pro bono work by running clinics in the library from time to time, this might save library budgets, but it might not provide a stable, ongoing service the public could depend on.
Law School Clinical Work
The ABA established standards mandating that schools “require each student to satisfactorily complete at least . . . one or more experiential course(s) totaling at least six credit hours.”x Many Law Schools provide an experiential learning opportunity in which law students may conduct intake, research, and limited scope representation of real-life parties. Law Schools have clinics for family law, housing, elder law, medical-legal partnership, criminal defense, environmental, immigration, and innocence projects (post-conviction criminal matters). The work these clinics perform greatly assists the community and can provide full representation for eligible clients.
In addition, Standard 302(b)(2) mandates that “[a] law school shall offer substantial opportunities for. . . student participation in pro bono activities.” Pro bono activities allow law students to conduct public service for no monetary remuneration. Students provide pro bono legal services under the supervision of an attorney, law school faculty, or another supervisor. Law students are encouraged to provide a portion of their pro bono service to persons of limited means or to organizations that serve such persons.
Clinics require trained lawyers and access to legal research materials. Academic Law Libraries can support the research needs of clinical work. Pro bono work done by law students also requires support from Law librarians and library collections. Law librarians also conduct legal research courses, advise journals, and perform instructional sessions in the library and for law courses. Their work assists A2J in the real sense that they are the suppliers and mediators of access to legal information. Libraries can be directly involved by providing space for in-person clinical consultations and workshops.
Training Public Librarians
Public libraries are essential partners in the A2J movement. Libraries are the cornerstone of a thriving democracy. They could well be the last public commons where anyone can come to learn and better themselves at minimal to no expense. Public library services are heavily utilized at times of economic and social crises. During the Great Recession, when the US suffered a housing crisis, public libraries were at the forefront, helping the public with answers to questions about unemployment, tenant-landlord, and foreclosure.xi
Public libraries generally have little to no legal resources, and their staff knows little about the law. An opportunity was created that enabled Law librarians to train public librarians and provide online and recommended print resources to direct patrons for their legal needs. Law librarians have assisted in creating centralized websites collecting helpful online legal materials for patrons. Law librarians may be called upon to provide refresher workshops since legal reference can be infrequent at some public libraries. In some instances, public libraries provided space where legal clinics could be held. Or programs such as “Law Librarian in the Library” were hosted. The partnership and training are of great benefit to the public.
Law Firm Pro Bono Support from Libraries
Many state bar associations have made it an aspiration of the profession to provide pro bono service to the community. To encourage this, some bar associations grant CLE (continuing legal education) credit for doing pro bono assistance. It is recommended that Librarians in Law Firms visit the ABA Standing Committee on Pro Bono & Public Service and Center for Pro Bono Directory of Pro Bono Programs to locate pro bono organizations in their local area.
Law librarians can curate meaningful centralized websites with current links, online forms, and host listservs for networking and discussion. Law Firm Librarians also have been known to provide invaluable organizational skills with their firm’s knowledge management applications. This expertise could result in a searchable intranet solution that can house forms, pleadings, memos, and other work product for pro bono assistance. And of course, Law librarians can assist by conducting legal research on behalf of volunteer attorneys of the Law Firm.
In addition to service models, librarians must consider the materials they collect. Do they meet the needs of their patrons? If not, do they have the support and ability to find meaningful/helpful materials for all patrons?
There are guiding principles every library needs when considering A2J collection development. Still, you are reminded that local decisions are paramount and should be based on available funding, partnerships, community needs, and your infrastructure. Be aware that maintaining a core collection of legal materials for many libraries may depend on sharing agreements with other libraries (consortia), along with effective referrals to local Law Libraries open to the public. Limited budgets necessitate reliance upon electronic government resources, particularly those that are official, authenticated, and provide permanent public access.
Another good practice is to collect materials for legal secretaries, paralegals, court clerks, and even sourcebooks for peace officers. These materials are good for explaining laws and specific procedures in plain language and may be more accessible for members of the public.
CONCEPT IN ACTION: DEVELOPING A2J COLLECTIONS
Gabriela is a librarian at a branch library in a large city in the state of Idaho. Patrons have been asking about evictions and divorce lately. She investigated the catalog, and all she found was a Nolo book from 2008: Essential Guide to Divorce. She is wondering how best to assist her patrons. It is clear, Gabriela needs materials on housing and family law. Legal research requires access to primary law and secondary sources. To help the public with A2J issues, Gabriela researched other organizations in case she needs to make referrals.
Gabriela is fortunate that AALL LISP-SIS has created a 50-state toolkit to assist.xii Idaho has many online resources which will provide access to primary law since Gabriela’s library has public computer terminals. Gabriela made use of a helpful online research guide authored by the University of Idaho College of Law.xiii She added the link to her library website.
Gabriela also discovered LISP has also created a useful resource to assist with collection development of print and online materials.xiv These collection development suggestions are broken down by federal, state, and general. Since many statutes and state case reporters are available online (do not forget Google Scholar for state case law), there will be little need to purchase expensive print collections. Gabriela’s library focused on the general collection and acquired a law dictionary, updated books by Nolo (or some other plain language legal materials), and guides on the general principles of legal research. Nolo offers some of their collection online, which her library funds were able to afford.
Gabriela decided to go the extra mile by researching and locating a wide assortment of self-help materials and packets created by other Law Libraries and legal aid organizations or court self-help centers.
Access Beyond Books
This chapter concludes by addressing three topics on the edge of A2J. These topics expand the horizon and push the envelope since the typical A2J subset concerns low-income individuals with “normal” legal problems. These topics discussed below add a wrinkle and provide a space to grow and expand the A2J movement in hopes of 100% equal access to justice. Librarianship is a service-oriented career. This section aims to provide future and present librarians with possible access to justice issues that may reshape our future and have been on the horizon for some time.
The American legal system has afforded criminal defendants the right to counsel when charged with a crime. These rights were enshrined in the landmark case Gideon v. Wainwright. No such right to counsel exists in civil cases (any case other than criminal). There are a few growing exceptions where counsel can be court-ordered in cases involving minors, incapacitated parties, elders, and the termination of parental rights.xv
There has been a movement to expand the right to counsel for civil matters known as Civil Gideon.xvii Proponents of this right prefer it to be known as the “civil right to counsel” movement instead. The growing “justice gap” created by the high cost of litigation certainly justifies a deeper delve into this topic to expand A2J so all members of society can have a true and equal opportunity to afford themselves the justice the law grants them. The ongoing failure to address this concern makes it appear less likely to occur anytime soon. But one could well imagine the utility and advantage of a legal system where every litigant was adequately represented in court in all legal matters. It would streamline and narrow this chapter to issues of legal research and competent representation.
At present, all librarians can do is to have meaningful resources to address civil legal matters and excellent referrals to partners who can help when needed. Librarians need to make connections to court self-help centers, legal aid, and other legal service providers so library patrons can get the legal assistance they need.
Assisting Those with Learning & Physical Disabilities
Alongside the growing need to provide services and resources for SRLs, there has become a realization that access also means comprehension. No two SRLs are the same. Each may come from a different socioeconomic background. Librarians need to be cognizant of a patron’s potential learning or physical disability. It is recommended self-help materials and law forms be re-drafted in plain language and at a lower reading level. Additionally, one may need to consider the native language of the patron if English is not their first language (or if they can speak/read English at all). These issues can require additional materials in different formats and may even require adaptive technology to assist those with physical disabilities.xvii Are our library spaces and technologies well-suited for only able-bodied individuals? Libraries should conduct space and technology assessments with all patrons in mind and not preclude those with learning or physical disabilities.
Patrons on the Edge: Homeless, Chemical Dependency, Mental Illness, & Potential Deportation
Libraries are accustomed to helping anyone who crosses their threshold. Librarians, especially in large urban areas (but not exclusively), have become acquainted with what this section refers to as “patrons on the edge.” These individuals may have more than just a legal problem: they may live on the street, have a chemical dependency problem, or may have a mental illness. Perhaps they have two or three of these obstacles in life. Law librarians need to be aware of possible resources and the unique challenges faced by these individuals. Many public libraries have retained the service of a social worker to help disadvantaged patrons.xviii
One possible avenue is the various special courts some jurisdictions have set up to assist these individuals: drug court, homeless court, mental health court, and veterans’ court. These courts often involve local service agencies who are the gateway for participants to enter court voluntarily. Prospective participants work with a caseworker to design a plan to move towards self-sufficiency. Research your community and discover if these resources exist or if there are those who may advocate for the creation of such programs.
Deportation is a grave situation facing many living in America. Immigrants’ Rights clinics have several projects to expand access to justice for immigrant communities. Clinic students can develop key policy reports, advocate for lawyers in removal proceedings, and write pro se guides and public education materials to enable immigrants to know more about the laws so that they can represent themselves in the absence of meaningful access to counsel. Law librarians can find print and online resources to assist with these clinics.
This chapter has provided background and introductory material on the Access to Justice movement in America and the role librarians play when providing service to their community. We have a long way to traverse, but we know the goal and have some tools to help us achieve justice for all. There are many possibilities on how to achieve justice. With tenacity, fortitude, and good spirit, we can make this goal come to fruition. If we strive to perfect and improve our legal system by affording everyone equal access, we can look forward to a day when all people will have access to justice.