From Richard Zorza’s Access to Justice Blog:

Critically Important Speech by NY CJ Lippman on “The Judiciary as the Leader of the Access to Justice Revolution”

On Tuesday, Chief Judge Jonathan Lippman delivered a very important speech. While the whole speech is very valuable, two particular aspects stand out for me.

The first is the very strong language, and examples, reflecting the speech title The Judiciary as the Leader of the Access to Justice Revolution. Since taking on the role, CJ Lippman has guided the New York courts to an unprecedented role as spur and leader in both access innovation and access funding. In this speech he lays out his clear view that this today this is a necessary part of the job description. In so doing, he has paid credit to many other Chiefs who are playing a similar role. This speech will surely help many of his colleagues take on this responsibility in their states. Some of the language:

I want to talk about how the Judiciary, conceptually and in practice, should be and is in fact the leader of the access to justice revolution that is taking place in our state and in our country. It is no secret that our nation faces a crisis in access to justice. The distressing lack of civil legal aid for the poor is one of the most daunting challenges facing the justice system today, but all of the players – – the profession, the providers, the academy, and in particular the Judiciary – – are increasingly and dramatically confronting this crisis and taking action to even the scales of justice, to guarantee the rights and liberties of all, and to preserve the rule of law. . . .

After describing the access crisis, he goes on:

But in the face of such challenges, beacons of hope are emerging, fueled in large measure by state judiciaries who, on access issues, are uniquely suited to be the conveners of the discussion, the deliverers of the message, and the generators of large- scale change and innovation. Given our pivotal role in government, society and the profession, the Judiciary can and should be the agenda builders, pushing the envelope for the entire legal community when it comes to the pursuit of justice – – our historical task and duty since biblical times.

After describing the astonishingly successful — and very well thought through — strategy to support funding for community based legal aid, the Chief went on:

Such funding from the public fisc is and must be a fundamental pillar of any state’s efforts to promote access to justice. It has been a catalyst for us in New York, sparking numerous other new approaches to the problem, many of which I will discuss tonight including: efforts to spur pro bono work by the bar, the use of aspiring lawyers to provide legal assistance to those most in need, harnessing the legal talents of baby boomers and corporate counsel, and exploring new, creative methods of delivering legal services including the use of non-lawyers to provide assistance in and outside of the courtroom. Ours is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility that the Judiciary and its leadership have, and utilizing all of the financial and programmatic resources available to the Judicial branch – – along with the great talents and energy of our partners in the legal profession, academia, and the legal services communities.

The Chief then lists other states in which judicial leadership has played the critical role in access to justice innovation.

Texas, under the leadership of its Chief Justice, negotiated an increase in IOLTA interest rates from banks to rescue that program financing legal service providers in the state. Last year, Connecticut’s Chief Judge brokered an agreement with large corporate sponsors to hire recent law school graduates as fellows to do pro bono work through the LawyerCorps Connecticut program. The State of Washington’s Supreme Court has approved a new category of low-bono legal technicians to help close the justice gap. Chief Justice Rabner in New Jersey boldly addressed the foreclosure crisis in his state that has so impacted consumers and people of limited means, while the Delaware Judiciary has focused heavily on addressing language interpretation issues that have barred access to the courts for so many. Montana is adopting a variation of New York’s 50 hour law student pro bono rule, and California is experimenting with civil Gideon pilots funded with state monies. And in the federal courts, my friend Chief Judge Bob Katzmann has put together a wonderful program to provide legal representation to those most in need in immigration cases, that so affects the lives of human beings and their families. And, on and on – – the examples of judicial leadership addressing the crisis in legal services for the poor abound. We get it – – access to the courts is a central ethical and constitutional responsibility of the Judiciary. If not us, who?

After an extensive discussion of the pro bono innovations, including the reporting, the easing of rules for corporate counsel, the Pro Bono Fellows, etc., the chief then came to the second area that I think will have the biggest impact — the exploration of non-lawyer practice. (Disclosure: I am a member of the Committee on Nonlawyers and the Justice Gap, established by the Chief last year — but views expressed here are obviously my own.) In this area, this one speech has moved the dialog forward both in New York and nationally. The speech stands for itself:

[N]ot every new idea receives a universally, warm welcome – – especially if we think more creatively about ways to solve the justice gap. And that’s exactly what we are doing when we venture into areas that seemed off limits in the past. One such area for the New York Judiciary is the work of non-lawyer advocates in our courtrooms to support unrepresented litigants. We know that there are many functions that only a lawyer is qualified to perform. Only lawyers have the education, training, examination standards, and ethical mandates that go hand in hand with full legal representation. But there are people without a law degree who nonetheless are more than capable of assisting unrepresented litigants. At a time when millions of litigants can neither afford to pay a lawyer nor are fortunate enough to have the services of a legal services provider, we need to look to others to step in. This is already done in the medical profession. There is no substitute for a medical degree, but that community has recognized for many years that people with health care needs can be served in some measure by practitioners with lesser qualifications – like midwives or home health care aides — providing specified services at lower rates.

While the concept of non-lawyer assistance is not yet widespread in the U.S., there is extensive precedent for it in the common law world. Non-lawyer advisers have an important role in England and Wales. They can accompany litigants to court, provide moral support, help to organize papers, take notes, and quietly give advice on any aspect of the conduct of the case which is being heard. Outside of court, Citizens Advice Bureaus in the UK staffed largely with volunteers provide free, independent, confidential and impartial advice and information on housing, immigration, debt problems, issues with benefits and tax credits, and employment problems – problems that we typically identify as legal ones.

Here at home, non-lawyers who work daily in a particular area often develop expertise and knowledge that equip them to help unrepresented litigants very effectively. Housing Counselors are a perfect example of how people with strong knowledge and skill in a narrow subject area can provide real help. Housing Counselors are funded and regulated by the United States Department of Housing and Urban Development. They provide tools for making informed choices about housing to current and prospective homeowners and renters – – including those involved in foreclosure proceedings or in Housing Court. They have been invaluable to litigants in New York. It is time to capitalize on that kind of knowledge and expand the valuable support that non-lawyer professionals can provide to safeguard due process and access to justice, a dynamic that has been recognized by the United States Supreme Court in the 2011 case of Turner v. Rogers.

Beginning this year, specially trained and supervised non-lawyers, called Navigators, will begin providing ancillary, pro bono assistance to pro se litigants in Housing Court cases in Brooklyn and consumer debt cases in the Bronx. They will provide one-on-one assistance and give information, help litigants access and complete court do-it-yourself forms and assemble documents, and assist in settlement negotiations outside the courtroom. The Navigators will accompany pro se litigants into the courtroom and provide moral support and information. They can respond to factual questions directed to them from the judge, though they may not volunteer information. For unrepresented litigants overwhelmed and intimidated by the process, the help of Navigators will come as a great relief – – especially in the context of today’s reality – – 98% of these people are unrepresented. This is shameful!

I’m proud to sponsor these incubator projects, that will help to demonstrate how much non-lawyers can accomplish without crossing the line into practicing law. They can serve a population who cannot hope to pay even modest legal fees. They are in dire need of help, and helping them in no way takes business away from lawyers. And provide that help we must – – even at the sacrifice of our professional mantra that only licensed lawyers can facilitate the legal process. That thinking is outdated and must be changed.

Building on the use of non-lawyers who do not, in a real sense, practice law, we must look at our legal regulatory framework, first, to see if our unauthorized practice of law rules should be modified in view of the crisis in civil legal services and the changing nature of legal assistance needs in society; and, second, to identify if, short of full admission to the bar, there are additional skill sets, separate in concept from our incubator projects, that can be licensed to provide low-bono or less costly services to help those in need of legal assistance. The high cost of legal services is a real barrier to a growing part of our population gaining access to justice. If lay persons with training in discrete subject areas can dispense legal information or assistance expertly and more cheaply, we should be exploring how best to accomplish that, without diminishing the great legal profession in our state. Fern Schair and Roger Maldonado, the heads of our Committee on Non-lawyers and the Justice Gap, will next take a look at the legal regulatory framework in our state to see if adjustments need to be made to enhance our access to justice efforts.

The endorsement of the incubator pilots is obviously important in signaling the commitment of the New York Judiciary; the discussion of practices in other countries is a powerful potential rebuttal to any anxieties that might develop in the profession; and, finally, the charge to the Committee to “take a look at the legal regulatory framework in our state to see if adjustments need to be made to enhance our access to justice efforts,” creates an opportunity for thoughtful analysis and changes that will serve access.

Perhaps most of all, I like the following language:, which I repeat for emphasis

Ours is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility that the Judiciary and its leadership have, and utilizing all of the financial and programmatic resources available to the Judicial branch – – along with the great talents and energy of our partners in the legal profession, academia, and the legal services communities.

I think we are only just beginning to realize the true potential of this the multifaceted approach. It is not just that the overall approach has many components, it is that done properly each component relies on and enhances progress with the others, and so should be deployed in a way that maximizes the leverage. Thus, for example, unbundling needs good forms, and judicial engagement is far better when there is a self-help center to which the most complex situations can be referred.

Please spread this speech around.

The Washington Post reports that a federal judge may well have been having one of those days:

A federal judge on Tuesday signaled that he is growing increasingly frustrated with the voluminous and at times rancorous filings by defense attorneys representing former Virginia governor Robert F. McDonnell (D) and his wife in a corruption case, dismissing one of their recent requests as “dancing through fantasy land” and asking them and prosecutors to limit their written disputes “for the sanctity of the trees.”

U.S. District Judge James Spencer’s offhand comments during the less than 30-minute hearing were, in many ways, more interesting than his ruling on the legal issue at hand. The defense — arguing it was unfair that a related civil case had been put on hold at the request of prosecutors — had asked the judge to force the government to withdraw that request. The judge ruled he would not intervene.

The SCOTUSblog, http://www.scotusblog.com/, is among the most widely read and admired legal blogs in the nation. And it deserves all of the accolades. But, it has yet to report this story — perhaps because the suit has not even been served yet

Louisiana is suing national left-leaning policy group MoveOn.org in federal court, saying it violated trademark rules when it put up a billboard and commissioned television ads critical of Gov. Bobby Jindal that use the state’s tourism logo and motto.

Republican Lt. Gov. Jay Dardenne has been locked in a pitched battle with the group for weeks, unsuccessfully calling for it to take down the billboard that is currently up on the I-10 coming into Baton Rouge from Port Allen.

READ DARDENNE’S COMPLAINT HERE

“We have invested millions of dollars in identifying the Louisiana: Pick Your Passion brand with all that is good about Louisiana. No group should be allowed to use the brand for its own purposes, especially if it is for partisan political posturing,” Dardenne said in a statement announcing the suit.

If no one “gives,” this case is sure to end up before the United States Supreme Court.  For all of the First Amendment aficionados, this is a case worth following.

The Legal Times reports:

A coalition of media and public interest groups on Sunday urged Chief Justice John Roberts Jr. to allow the video recording and broadcast of U.S. Supreme Court proceedings.

“We believe the Supreme Court should embrace contemporary expectations of transparency by public officials,” the Coalition for Court Transparency wrote in a letter to Roberts. “Though the Supreme Court is in a unique position as the nation’s highest court, that status provides more reason to open its educational opportunities to a wider public, instead of making access more difficult.”

The letter went to the court on the 50th anniversary of the 1964 ruling New York Times v. Sullivan, which the group said “helped media outlets cover controversial topics of national import without fear of frivolous lawsuits.” The high court, it said, should now “enact policies that will help the public better understand its important work.”

The coalition reminded the court that other precedents, including the 1980 Richmond Newspapers case, presume that court proceedings “should be open to the public.” Those precedents focus on the right of the public to attend court proceedings, but “the rationales hold true for live broadcasts of oral arguments,” the letter asserts.

“Video would provide an important civic benefit, as it would be an incredible platform for legal education and future students of history, rhetoric and political science,” the letter states. If the court is still reluctant to allow video, the coalition said the court should release the audio of arguments on a same-day basis as a next step.

The letter is the latest effort by the newly formed coalition to increase public pressure on the court, which has long been reluctant to allow live or even delayed video broadcast of its proceedings. A coalition-sponsored advertisement has been running on cable news outlets in recent weeks also urging cameras in the high court.

In an aside, the letter stated that “neither the coalition … nor its member groups were responsible for the video of Supreme Court proceedings that appeared online last month. We do not endorse or encourage such behavior at the high court or in any courtroom.” A protester interrupted an oral argument on Feb. 26, and someone nearby with a hidden camera recorded the event, later posting it on YouTube.

Among the groups in the coalition are the National Association of Broadcasters, the Society of Professional Journalists, Radio Television Digital News Association, the Americans Society of News Editors, the Alliance for Justice, Constitutional Accountability Center, the Liberty Coalition and Citizens for Responsibility and Ethics in Washington.

For people in the United States, we have never seen such an event:  a person is appointed to the Supreme Court and the Supreme Court itself is called upon to rule whether or not the nominee is eligible. But, the same is true for Canadians.  The ruling that is expected this Friday is simply unprecedented.

After sitting in limbo for months, Prime Minister Stephen Harper’s latest appointee to the Supreme Court of Canada, Justice Marc Nadon, will learn on Friday whether his prospective new colleagues deem him legally qualified for the job.

Justice Nadon, the first supernumerary (semi-retired) judge chosen for the Supreme Court, was tabbed in late September to fill one of the three Quebec seats, and sworn in a few days later.  But, he never heard a single case, because his appointment was quickly challenged in Federal Court by Toronto lawyer Rocco Galati, and then unanimously criticized by a Quebec National Assembly.  Justice Nadon immediately stepped aside, and the federal government asked the Supreme Court whether the appointment was legal.

For more on the story see this link to the Globe & Mail.  The story says, in part:

The ruling will have national-unity implications, at a time when Quebec is in the middle of a fraught election campaign. If the court rules that Federal Court judges are not legally qualified, it must also decide whether the federal government can rewrite the law without seeking provincial consent.

As a result, the case will be seen in Quebec “as a test of Harper’s brand of centralized federalism,” said Hugo Cyr, who teaches law at the University of Quebec at Montreal.

Carissima Mathen, a University of Ottawa law professor, said the case will be “tremendously exciting because the case has morphed beyond the initial question about statutory interpretation, to Quebec’s place in our legal system and to questions about constitutional amendments. It has the potential to be one of the most important decisions from the Supreme Court this year, and in the last several years.

Thanks to Judge Wayne Gorman for sending a case that is of interest to Canadian judges, but is equally important for United States judges.

It is never easy for a judge to determine who is telling the truth. We would like to think we have training and experience that gives us unique insight into who is telling the truth but studies have shown that judges are not any better than anyone else in ferreting out the truth.

In R. v. Fleig, 2014 ABCA 97, March 10, 2014, the accused was convicted of the offence of second degree murder in a trial before a judge sitting alone.  The accused appealed from conviction, arguing in part that the trial judge erred in his application of the W.(D.) test in determining if the accused’s evidence raised a reasonable doubt.

The Alberta Court of Appeal indicated, at paragraph 24, that the “primary concern of the framework in W(D) is that a trier of fact should not line up the Crown and defence evidence and select one over the other. W(D) proposes an approach intended to avoid dilution of the presumption of innocence and any shifting of burden of proof from the Crown to the accused. As noted in Vuradin, the “central consideration” is the principle of reasonable doubt.”  The Court held that though W.(D.) “is not to be applied in some mindlessly formulaic manner…a recital of the analysis in W(D) does not necessarily convert flawed reasoning into unassailable reasoning.”

In this case, the Court of Appeal allowed the appeal and ordered a new trial.  It held that the judge’s reasons did “not give assurance that a correct application of the burden of proof occurred.”  The Court of Appeal found error in the trial judge’s reasoning, including his reliance on the accused having a motive to lie because he “had a personal interest in the outcome of the case” (at paragraph 27):

The reasons of the trial judge demonstrate reviewable error in his crucial finding that Fleig’s version was unworthy of belief because Fleig had a motive to lie to extricate himself from guilt. The manner in which the trial judge dealt with Fleig’s motive for untruth was a form of circular reasoning which, at least in this case, cannot withstand scrutiny. He gave pride of place in his reasons to the following finding answering his rhetorical question “do I believe Mr. Fleig when he denies he had anything to do with Mr. Prevey’s murder”:

The answer to this question is no. There are many reasons for Mr. Fleig to be dishonest, not the least of which is that he has a personal interest in the outcome of this case.

The Court of Appeal concluded that though the “motive of any witness to give evidence is always a relevant consideration. It is not error to consider it. But motive to lie is, like demeanour of a witness, a factor that itself should be considered in light of other factors, and in light of the way the case unfolds in evidence and argument. Context is everything: R v Laboucan, 2010 SCC 12 at paras 18 to 22, [2010] 1 SCR 397. Taken entirely by itself, the motive of a person on trial for murder to give false evidence to extricate himself from his legal predicament could be matched with a similar motive to give true evidence if doing so would extricate him from his legal predicament. By itself it is usually a neutral consideration, although that may not always be the case.”

The Florida Supreme Court rejected the centerpiece of the 2003 medical malpractice overhaul law. The opinion accused the Legislature of creating an “alleged medical malpractice crisis” and held that the cap on wrongful death non-economic damages violates the state constitution’s equal protection clause.

The caps limited payments for pain and suffering to $500,000 or $1 million, depending on the circumstances and the number of people involved. The Supreme Court concluded the law unconstitutionally discriminates against “those who are most grievously injured, those who sustain the greatest damage and loss, and multiple claimants.’’

The decision will effectively remove the cap on so-called “non-economic” damages when someone dies because of medical malpractice. Victims whose cases were resolved between the time the law took effect in late 2003 and today, however, will have no recourse. The Florida Justice Association estimates there are more than 700 medical malpractice cases pending statewide.

You can access the ruling at this link.

For several years, Val Gunderson was the Director of Communication for the Minnesota Judiciary.  She now is a freelance writer and the founder of Gunderdog Communications, LLC, a Twin Cities-based public relations and public affairs firm that serves clients around the country.

With her permission:

The Mouthing of Turkeys: Good Reasons to Communicate Clearly

 

March 8, 2014

I am fortunate to live in the woods where wildlife wanders by. It’s one reason I am well-acquainted with the sounds of turkeys. The other is that I spent part of my career in government.

This is not the slam you were expecting; without fail, I worked with smart, dedicated public servants. But each day, we all had to wade through a squalid swamp of acronyms, legalese and jargon. If you care about good, clear communication, spending a day deciphering or listening to this kind of drivel is like getting poked in the brain with a plastic fork. Repeatedly.

This unpleasant experience is not confined to the public sector. Bureaucratese is the official language of many corporate offices as well. Some might argue “bureaucratese” is a kind of jargon too, so let’s use a term everyone understands: gobbledygook. This helpful phrase was:

“…coined by Texas Congressman Maury Maverick ‘thinking of the old bearded turkey gobbler back in Texas, who was always gobbledy-gobbling and strutting with ludicrous pomposity. At the end of this gobble there was a sort of gook.’ In other words, gobbledygook is the mouthing of a turkey.” (Forbidden Words, by Keith Allen and Kate Burridge, 2006, Cambridge Press, p. 65.)

To his credit, Minnesota Governor Mark Dayton has decided to de-gobbledy the gook of his executive branch. He signed a Plain Language Executive Order, directing all state agencies “to use commonly used language, write in clear and concise sentences, and reduce the use of jargon and acronyms that make state government nearly impossible to understand.” The plain language standard is one all communicators should strive for: the audience must be able to understand it the first time they read or hear it. Amen! The order even comes with a handy addendum of examples.

The Plain Language Standard: The audience must be able to understand it the first time they read or hear it.

Minnesota’s efforts appear to be modeled after a national movement to promote plain language and a 2010 executive order signed by President Obama suggesting federal agencies do likewise. Unfortunately, this is the kind of verbiage one finds immediately after the federal order’s plain language requirement:

“…This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866 of September 30, 1993. As stated in that Executive Order and to the extent permitted by law, each agency must, among other things…”

Gobble, gobble.

If you have ever wondered why we feel compelled to mimic the gibberish of large, wattled birds, researchers Allen and Burridge offer possible motivations:

“…The matters with which bureaucrats deal are mostly mundane and can be fully described and discussed in sixth-grade English. In order to augment their self-image, therefore, bureaucrats create synonyms for existing vocabulary using a Graeco-Latinate lexicon, seeking to obfuscate the commonplace and endow it with gravity… While jargons facilitate communication among in-groupers on the one hand, on the other, they erect communication barriers that keep out-groupers out.”

Sadly, we may unconsciously encourage the use of unclear and exclusionary communication. One study found that people were more likely to seek counseling from a professional who was introduced with abstract psychological jargon than one who was introduced with plain language.

When people rattle off things we don’t yet understand, we assume they know something we don’t. A little part of our brain says, “Oooo! They’re smart!” and a little part of the speaker’s brain recognizes this, causing the fluffing of tail feathers and a bit of strutting around.

Dayton’s and Obama’s plain language orders do not apply to the judicial or legislative branches, but I wish the rest of government would follow suit. Lawyers, in particular, tend to squawk in indignation at this suggestion. We need to write and talk this way! It’s based on hundreds of years of tradition and we went to law school to learn it!

Turkey teeth, says none other than the editor of Black’s Law and author of Legal Writing in Plain English, Bryan Garner:

“…The world is complex and so is the law. You might think that good legal writing is necessarily complex. You might even be tempted to make your writing more complex than necessary just to impress. But… if you want to write well, you’ll have to resist sounding like a machine.”

 The key to avoiding “oceans of linguistic dreck,” Garner says, is clear thinking.

Garner hits on the heart of the matter. Opaque, incomprehensible language—in the private and public sector — is often the result of thoughtful people trying hard to appease multiple interests. It is much more difficult to bushwhack through layers of dense, tangled interests in pursuit of a clear thought than it is to cobble something together that might make sense to a few people in the know.

Since I am not without sin, I have no sharp stones at the ready. I have authored my share of brain-poking blather. I use acronyms in meetings since, well, they take a lot less time to say. I learn the jargon of my clients’ industries. Yet if the editor of Black’s Law believes clearer thinking and communicating is possible in one the world’s most complicated institutions, we can all probably take it up a notch, can’t we?

“When Prosecutors Admit to Cheating:  Federal attorneys in San Diego knew they had gotten an unfair conviction.  And to their immense credit, they asked an appeals court to make things right.”

Andrew Cohen has this essay online at The Atlantic.  It says, in part, “Last fall, during oral argument (the video of which you can watch here), members of the federal appeals court bluntly urged Duffy over and over again to admit that the closing argument in the Maloney case was unprofessional, and perhaps unethical, and in any event a mistake of law.”

But, if you think everyone agrees with Mr. Cohen’s essay, think again.  Will Baude at The Volokh Conspiracy has a post critical of what he describes as the Ninth Circuit’s berating of an assistant US Attorney at oral argument into confessing error.  He notes that the court, contrary to his expectations, did write an opinion detailing the alleged wrongdoing, but notes that the court never actually says that the conduct was wrongful, and that the opinion will have no precedential effect.

Christopher Slobogin (Vanderbilt University – Law School) has posted Cause to Believe What?: The Importance of Defining a Search’s Object — Or, How the ABA Would Analyze the NSA Metadata Surveillance Program (Oklahoma Law Review, Forthcoming) on SSRN.

Here is the abstract:

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the “mere evidence rule” in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the “object” of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search “might lead to evidence of wrongdoing” triggers a very different inquiry than probable cause to believe that a search “will produce evidence of criminal activity.” The failure to address the constraints that should be imposed on the object of a search has particularly acute implications in the context of records searches. This article explores the ramifications of this gap in Fourth Amendment jurisprudence both generally and in connection with the NSA’s metadata program, with particular attention to how the American Bar Association’s Standards on Government Access to Third Party Records, the topic of the symposium for which this article was written, resolve the relevant issues.