Pro Se, But Not Alone: Promoting Access to Justice with Court / Public Interest / Private Practice Pro Bono Partnerships

Transcription

1 ABA Section of Litigation, 2012 ABA Annual Meeting, August 2-7, 2012: Pro Se, But Not Alone: Promoting Access to Justice with Court / Public Interest / Private Practice Pro Bono Partnerships Pro Se, But Not Alone: Promoting Access to Justice with Court / Public Interest / Private Practice Pro Bono Partnerships Moderator: Gregory M. Boyle Jenner & Block LLP Chicago, Illinois Panelists: Judge Marvin E. Aspen United States District Court for the Northern District of Illinois Chicago, Illinois Karina Ayala-Bermejo Metropolitan Family Services Chicago, Illinois Judge Thomas More Donnelly Circuit Court of Cook County Chicago, Illinois Bob Glaves The Chicago Bar Foundation Chicago, Illinois

2 THE RISE IN PRO SE LITIGATION AND COURT-BASED PRO BONO PROGRAMS 1. The challenge unrepresented litigants present for the courts efficient administration of justice, and the public s access to justice. a. Overview of responses to the rise in people coming to court without lawyers. b. Additional information contained in the program materials, Unrepresented Litigants: Overview, A Roadmap Toward Justice, and Websites for Additional Information. 2. What are court-based pro bono programs and why are court-based pro bono programs so important? a. General description of innovative court-based pro bono programs to assist unrepresented litigants. i. Additional information contained in the program materials, Courtbased Pro Bono Programs in Chicago, Cook County Municipal Court Pro Bono Program, and From the Bench: Why Pro Bono? b. Benefits of court-based pro bono programs that partner with private practice attorneys. i. Making access to justice a shared responsibility. ii. Thinking systemically about improving the efficient administration of and access to justice and building on existing infrastructure to do so iii. Raising the level of practice in the court. iv. Improving professional development opportunities in the time of the vanishing trial. DEVELOPING A COURT-BASED PRO BONO PROGRAM 3. The importance of initial planning and up-front investment. a. A successful launch requires a focus on the absolute necessities for a successful, sustainable program. i. Additional information contained in the program materials, Step-by- Step Checklist for Starting and Sustaining a Pro Bono Program. ii. Need and potential for pro bono assistance (interested volunteers, area which is amendable to training etc.)

3 iii. Appropriate screening and referral process for cases. iv. Strong, independent training and continuing support of volunteers. 1. Additional information contained in the program materials, Training and Resources Provided to Volunteers for Courtbased Pro Bono Programs. v. Monitoring. vi. Maintaining relationships with and buy-in from all stakeholders. vii. Communication, evaluation, and feedback. viii. Other considerations financial and practical needs. 4. What is the role of the court in a court-based pro bono program to assist unrepresented litigants? What can and should judges do? a. Identifying areas of need. b. Proper referral of cases c. Enlisting support of fellow judges, court administrators and other courthouse staff. d. Encouraging attorneys to volunteer. e. Volunteer recognition f. Legitimate concerns and misperceptions about the proper role of the court in a program to assist unrepresented litigants. i. Court as advocate? 5. Who are the other key partners? a. Legal aid partners. b. Private attorneys/law firms. c. Bar associations. d. Law schools. e. Others? RUNNING A COURT-BASED PRO BONO PROGRAM

4 6. Success stories from court-based pro bono programs to assist unrepresented litigants. a. Increasing the legal community s sense of shared responsibility for meaningful access to justice. b. Improvements to the administration of and access to justice. c. Volunteers raising the level of practice in the court. d. Leveraging opportunities for trial and courtroom experience. 7. Lessons Learned i. Not just for lawyers opportunities for legal staff. a. Pilot programs. b. Flexibility to adjust to the needs of stakeholders. c. Before beginning any program, understand the existing infrastructure and system and so that you are building on that and working collaboratively. d. Communication between stakeholders is essential. e. Other people in the court, including clerks and sheriffs, can be incredibly helpful to the program and often want to be included.

5 UNREPRESENTED LITIGANTS: OVERVIEW In recent years, courts across the country have experienced a dramatic increase in the number of people coming to court without lawyers. This population of unrepresented litigants represents a cross-section of our community: a mother trying to collect child support, tenants trying to resolve a disagreement with a landlord, neighbors disputing a property line, a contractor with an unpaid bill, couples tangled in divorce, a family settling the estate of a loved one. They come into court, on their own, with a conflict or change in their lives, and they expect a resolution, which is their constitutional right. Access to justice is an abiding principle of our system of justice and the doors of our courthouses must be open to everyone, whether represented by a lawyer or not. It follows that the obligation of the court system is to see to it that justice is as fair and efficient as it can be for both those with legal representation and those who arrive on their own. The growth in unrepresented litigants has grave implications for access to and the delivery of justice, case management and public confidence in the court. Cases involving unrepresented litigants often require significantly more time from judges and court/clerk personnel. They put those professionals in the difficult and sometimes stressful position of trying to deal fairly with unrepresented parties without compromising neutrality; and they create ethical and practical challenges for counsel in cases where one side is represented and the other is not. The inability of some unrepresented litigants to understand and comply with court rules and procedures may also make it impossible for their cases, however worthy, to be decided on the merits. On a personal level, it can also be intimidating, frustrating and stressful for unrepresented litigants to be in court without legal representation. Meeting the challenge of the growth in people coming to court without lawyers requires integrated, system-wide policies and innovations. A coordinated approach using court, legal aid and pro bono resources is needed to facilitate the efficient processing of cases involving unrepresented litigants, increase access to the courts and improve the delivery of justice to the public.

6 WEBSITES FOR ADDITIONAL INFORMATION Self-Represented Litigation Network: [note that registration is required] Richard Zorza s Access to Justice Blog: National Center on State Courts: American Bar Association: ess_to_justice/litigant_resources.html

7 COURT-BASED PRO BONO PROGRAMS IN CHICAGO Throughout the country, courts, the private bar, legal aid and pro bono organizations, and bar associations, among others, have partnered to develop innovative pro bono programs to assist unrepresented litigants. Below are brief descriptions of some of these programs in Chicago. U.S. District Court, Northern District of Illinois Trial Bar Pro Bono Program. The U.S. District Court for the Northern District Court established this pro bono program to improve the administration of justice and provide much-needed legal assistance to low-income litigants in federal court. Under the General Rules of the United States District Court for the Northern District, every member of the trial bar shall be available for appointment by the court to represent or assist in the representation of those who cannot afford to hire a member of the trial bar. U.S. Dist. Ct. N.D. Ill. Local R (g). Through this program, members of the trial bar are appointed to provide pro bono representation to low-income litigants in cases including employment discrimination, prisoner civil rights cases and social security appeals. Case eligibility and the appointment process is governed by Local Rule Information about the program and examples of the resources available to assist volunteer are available at on and in From the Bench, included in the presentation materials. Cook County Municipal Court Pro Bono Program. The Municipal Court Pro Bono Program ( Program ) is a partnership between The Circuit Court of Cook County, The Chicago Bar Association, two legal aid organizations (CARPLS and the Chicago Legal Clinic) and eight area law firms. The goal of the program is to provide much-needed representation to low-income people who are facing the prospect of a jury trial without a lawyer while allowing associates to gain litigation experience, including arbitrations, jury trials and all associated work. More information about the program is available at: municourtpanel.illinoisprobono.org and in the presentation materials. U.S. District Court, Northern District of Illinois Settlement Assistance Program. In 2006, this program was instituted to provide pro se litigants with the benefit of an attorney at settlement conferences. In this voluntary program administered by Chicago Lawyers Committee for Civil Rights Under Law, volunteer attorneys provide pro bono representation to low income individuals with certain meritorious claims in federal court settlement conferences. Assistance under the Program is limited to settlement and does extend to any other part of the litigation process. More information about the program is available at Adult Guardian Ad Litem Program. This program provides much needed assistance to the court in cases involving low-income elderly or disabled individuals in the Probate Division of the Circuit Court of Cook County. In cases where it's not clear that a proposed guardianship is necessary, a judge can appoint Chicago Volunteer Legal Services as pro bono guardian ad litem to represent the allegedly disabled person. Volunteer attorneys investigate the circumstances of the guardianship petition and report back to the court. Basic information about the program is available from Chicago Volunteer Legal Services ( Circuit Court of Cook County Domestic Violence Division s Order of Protection Pro Bono Representation Program. In 2011, the Court established this program through which volunteer attorneys aid clients in obtaining both emergency and plenary orders of protection.

8 Volunteer law firms sign up to cover half-day shifts, helping clients with advice that day and then representing clients through the plenary order of protection. A partner legal aid organization, the Domestic Violence Legal Clinic, assists with training and volunteer support. Expungement Help Desk. Cabrini Green Legal Aid (CGLA) operates an Expungement Help Desk at the Daley Center where volunteers meet daily with individuals seeking to clear their criminal records. The desk is staffed primarily by volunteer attorneys from a variety of backgrounds, including in-house counsel and transactional attorneys, as well as law students. Volunteers meet with clients, determine their eligibility for expungement, sealing, or clemency, and help them file the necessary paperwork. More information is available at Illinois JusticeCorps. JusticeCorps is an innovative new program to enhance access to justice for low-income and vulnerable litigants by empowering and training student volunteers to help people without lawyers navigate the court system. The program is a partnership between the Circuit Court of Cook County, a number of legal aid organizations, local colleges and law schools and the Chicago Bar Foundation. More information is available on justicecorps.illinoisprobono.org.

9 MUNICIPAL COURT PRO BONO PILOT PROGRAM OVERVIEW The Municipal Court Pro Bono Program Pilot Program ( Program ) is a partnership between The Circuit Court of Cook County ( Court ), The Chicago Bar Association (CBA), CARPLS, the Chicago Legal Clinic (CLC) and area law firms ( Firms ). The goal of the program is to provide much-needed representation to pro se litigants in need of trial counsel. The program will assist individual litigants, improve the administration of justice and provide opportunities for attorneys to gain trial and other litigation skills through pro bono service. The basic outline of the program is as follows: Program Purpose. The purpose of the Program is to provide pro bono representation to low-income litigants in Municipal Court, particularly in those cases where a jury demand has been filed. Case Types. The Program involves Cook County Municipal Court cases (claims involving $30,000 or less), and primarily cases in which a jury demand has been filed and one party is proceeding pro se. Case types will vary, but examples include: representing a defendant in a consumer debt claim, representing plaintiff in a claim for damages against the City for damaging plaintiff s car while impounded, and representing a thirdparty defendant in a claim for damages arising out a multi-car accident. In more limited circumstances, the Program will involve cases where no jury demand has been filed, but CLC has determined that trial counsel is likely needed for an upcoming bench trial. Referral Points. Cases will be referred at various points in the litigation. Judges in trial courtrooms may refer cases that are ready for trial. Additionally, cases may be referred at the beginning of the litigation, which will involve longer periods of representation but provide pro bono attorneys with the opportunity to participate in mandatory arbitration. Screening. CARPLS currently runs the Municipal Court Advice Desk on the 6 th floor of the Daley Center. Primarily through the Advice Desk, CARPLS will provide initial case screening for the Program. In cases where a jury demand has been filed and a litigant is pro se, CARPLS will screen initially for basic income eligibility, meritorious claims or defenses, and need for litigation counsel. Additional criteria are under consideration. CARPLS will refer appropriate cases to the CBA Liaison. For non-jury cases in need of trial counsel, CLC will work up the cases, and refer client to the Program for representation when it determines that trial counsel likely is needed.

10 Referral and Oversight. The CBA Liaison will refer cases, on a rotating basis, to the designated contact person at each Firm. The CBA will also generally track case progress and outcomes. Referrals. When a Firm receives a referral, it should check for conflicts and conduct additional screening within 10 business days and notify the CBA and the potential client of its decision. If a Firm is unable or unwilling to take the case due to conflicts or capacity, the CBA Liaison will refer the case to the next Firm on the list, if appropriate. Representation. For cases referred at the initial stages of a case, pro bono attorneys will review existing pleadings, conduct necessary interviews (client, potential witnesses etc.) and develop case strategy. In some cases, attorneys may conduct written and/or oral discovery, and may engage in limited motion practice. If a jury demand has been filed, attorneys will participate in mandatory arbitration (3 person panel; relaxed rules of evidence). If an arbitration award is rejected or if the case is referred to the Program after it has been assigned to a trial courtroom, attorneys will represent client leading into and at a jury trial. Attorneys may engage in settlement discussions at any point, as appropriate. Training. The training will cover the practical aspect of working in municipal court, as well as the referral procedures and other information about the Program. Below is a more detailed explanation of the Program and how we expect the pilot phase to proceed. PROGRAM OBJECTIVES The purpose of the Program is to provide pro bono representation to litigants in Municipal Court who would otherwise proceed without counsel due to income limitations. Pro bono attorneys will provide much-needed assistance to low-income individuals in litigation. Pro bono programs are strongest when they meet the needs of all stakeholders. The Municipal Court Pro Bono Program will further the administration of justice by increasing the efficiency of some cases and by evening the playing field when one side is represented by counsel, but the other side is unable to afford an attorney. Volunteer attorneys will provide meaningful pro bono assistance to individuals facing the prospect of litigation without counsel and will help improve the administration of justice. At the same time, volunteer attorneys will gain valuable litigation and trial experience.

11 Throughout the program, but particularly during the pilot phase, the CBA/CBF will monitor the case referrals and progress to ensure that the program objectives are being met. CASES REFERRED TO THE PROGRAM The Program will focus primarily on cases where a jury demand has been filed for maximum impact involving pro bono counsel in these cases will alleviate the burden on pro se litigant to conduct a jury trial without counsel. Additionally, pro bono attorneys in these cases will gain valuable litigation and potentially trial experience. Cases in which a jury demand has been filed are subject to mandatory arbitration; therefore attorneys involved in earlier stages of litigation will have the opportunity to conduct an arbitration in nearly every case. In more limited circumstances, the Program will involve cases where no jury demand has been filed, but the Chicago Legal Clinic (CLC) has determined that trial counsel is likely needed. The ability to refer trial-ready cases to the program will provide much-needed leverage and back-up to the one CLC attorney that currently handles Municipal Court cases referred from the CARPLS advice desk. The CLC attorney can litigate cases knowing that trial counsel is available if a case does not settle. Pro bono attorneys in these cases will have the opportunity to conduct a bench trial. In both jury and non-jury cases, the new involvement of pro bono attorneys will likely incentivize settlement in some cases. We will monitor the case progress and outcomes and adjust the referral process as needed to appropriately balance the desire of pro bono attorneys to gain litigation experience with the program objectives. Jury demands are filed in a variety of cases by one party or another. Here are some examples of cases that may be referred to the program: Pro se defendant asserting identity theft as a defense against a consumer debt claim Pro se plaintiff filed a lawsuit against the City of Chicago, alleging that plaintiff s car was damaged while impounded by the City Uninsured pro se defendant, in case involving multiple car accident, defending against allegation of contributory negligence At this stage, we are planning to accept referrals without restrictions on specific subject matter. As we gain a better sense of case volume, conflicts and the types of cases that are working well, we will prioritize case subject matter and adjust the referral criteria. Additionally, if individual firms have conflicts with particular parties that reoccur (such as the City of Chicago or certain banks), we will track those conflicts and adjust the referral list accordingly. CASE LENGTH

12 Jury-demand cases will be referred at various points in the litigation, but primarily at two points: (1) at or near the initial intake; and (2) when the case has been assigned to trial courtroom. Cases in the Municipal Division are assigned discovery closure dates based on the amount of the claim at issue. Therefore, below we estimate the timelines for cases worth different amounts, and also provide a visual for an average case. As with all litigation, the length of litigation will vary depending on a variety of factors. As the Program begins, we will track the case length and disposition so that we can provide more accurate estimates. REFERRAL AT INITIAL STATUS HEARING Cases referred at this point will come from Judge Dunford in Room Referring cases at this stage provides the most benefit to the client, as he or she has representation at all stages of litigation. As discussed above, the pro bono attorney will have the opportunity to conduct an arbitration (which is mandatory) before a three-person panel. Finally, pro bono attorneys will gain experience developing case strategy and discovery. We recognize that the longer time until trial has drawbacks for participating Firms, but hope the longer time frame is balanced by the experience gained through participating in mandatory arbitration, conducting discovery and developing the case, as well as the needs of the client and the Court. The estimated timelines are as follow: o Small Claims ($10,000 and under) No Discovery Mandatory Arbitration : 2 Months from Referral Trial: 5-8 Months from Referral Small claims (10K and under): Same day (no discovery) 10K-25K: approximately 11 weeks Over 25K: approximately 16 weeks o Claims between $10,000 & $25,000 Discovery Closes: 3 Months Mandatory Arbitration: 5 Months Trial: 8-13 Months from Referral o Claims Over $25,000 Discovery Closed: 4 Months Mandatory Arbitration: 7 Months Trial: Months from Referral

13 ROUGH TIMETABLE FOR EXAMPLE CASE REFERRED AT INTAKE (ASSUMING SOME DISCOVERY AND NO UNUSUAL DELAYS) REFERRAL FROM TRIAL COURT Cases referred at this point will come from judges who are assigned to trial courtrooms. At this stage, discovery will typically be closed, and the case will be set for trial within 1-6 months. Counsel may move to reopen discovery if necessary, and the court may grant the motion based on its discretion. TRAINING AND SUPERVISION The CBA and the Court will provide training, including a training manual, specific to practicing in Cook County Municipal Court. Additionally, the initial training will provide a detailed explanation of the logistics and procedures for the Program, including the referral forms. Firms will provide all other general training and supervision necessary for attorneys to handle cases. Training materials available at:

14 STEP-BY-STEP CHECKLIST FOR STARTING AND SUSTAINING A PRO BONO PROGRAM [ENTER PROJECT NAME] 1) Preliminary Evaluation Define Project What are you trying to accomplish with pro bono volunteers. Obtain Internal Approval to Explore Program Determine whether the proposed program fits with your organizational mission and strategic plan. Determine Demand Conduct a preliminary analysis to determine the level of existing or emerging need and potential for volunteer involvement. and Supply Conduct a preliminary analysis of potential volunteer pool to determine whether volunteers are likely to be interested in your program. Determine which organizations are operating in similar space locally. Evaluate how your proposed program complements, improves upon or interferes with their work. Also, consider whether there is potential or collaboration. Research existing models for similar pro bono programs Local and national Determine Program Complexity and Staff Capacity Needed On the continuum, how complex is the program and, based on that, do you have the staff capacity to screen cases, make referrals, and provide the appropriate levels of training and support? Determine Program Costs and Create a Budget Identify all expenses necessary to implement and sustain a well-run program and create a budget to determine the need for additional funding Conduct Cost-Benefit Analysis Evaluate all the available information regarding cost (hard and soft) and benefits (direct and indirect). If needed, research and identify Sources of New Funding Explore options for additional or new funding after determining the existence of a need, and the benefit the program will provide.

15 Balancing all information, decide whether to proceed with program 2) Getting Started Establish the Delivery Model That will effectively and efficiently meet client need. Take into account the needs and desires of potential interested volunteer pools when determining the model. Identify primary staff person, who should have substantive legal knowledge, strong interpersonal skills and strong customer service skills. Draft job description (even if internal staff) and define roles and responsibilities of all other relevant individuals and groups. Conduct Additional Outreach to All Relevant Stakeholders To ensure effective collaboration Secure Malpractice Insurance for Volunteers Identify Pilot Phase, if needed 3) Develop Plan to Recruit, Train and Support Volunteers Determine Your Primary Volunteer Pool and Establish Contact Prepare Initial Training Program and Training Materials Which should include the substantive and procedural manual(s) regarding the program area(s) of practice, sample pleadings and form templates. Develop Method to Distribute of Pro Bono Opportunities 4) Program Implementation (ongoing) Establish Intake Procedure and Case Acceptance Criteria Establish Program Policies Including regarding fees, expenses, conflicts of interests and the impact of a volunteer s desire to withdraw from, or return, a case. Develop Standard Forms Which may include engagement and referral letters and intake and case information forms. Establish Ongoing Tracking and Other Quality Assurance Measures Determine how you will monitor and communicate plan to volunteers. Develop Plan to Close Cases

16 Including standardized case closure document(s) requesting information you want from volunteers at the end of a case. This information should be given to the volunteer beginning of the case so that they know what you are going to ask for. 5) Sustaining Your Program (ongoing) Coordinate with your Development Efforts Periodically Update and Involve Board Members An engaged board can often be a source of volunteers, whether volunteering directly or assisting in the recruitment of volunteers. Recognize Your Volunteers A happy volunteer is often a long-term volunteer. Consider: volunteer newsletters, awards ceremonies; soliciting volunteer awards outside the program; news or press releases Provide Ongoing Training and Support for Your Staff and Volunteers Promote Your Program Periodically Evaluate Your Program