SUMMARY REPORT (Complete Report Available Upon Request) OF THE ACCESS TO JUSTICE FOR ALL GOAL GROUP OF THE STATE BAR OF MICHIGAN LONG RANGE PLANNING COMMITTEE April 21, 1997
Presented by: Richard A. Soble, Goal Group Chair Lambro Niforos Jonathan D. Rowe Linda K. Rexer Alfred M. Butzbaugh, Jr.
REPORT OF THE ACCESS TO JUSTICE FOR ALL GOAL GROUP OF THE STATE BAR OF MICHIGAN LONG RANGE PLANNING COMMITTEE April 21, 1997 Table of Contents

I.     STATEMENT OF GOAL                                                                     1

II.    BACKGROUND AND ANALYSIS                                                       1

III.   OBJECTIVES                                                                                      5

IV. RATIONALE 5

V. STRATEGIES 6

Access to Justice for All GOAL GROUP OF THE STATE BAR OF MICHIGAN LONG RANGE PLANNING COMMITTEE REPORT April 21, 1997
I. STATEMENT OF GOAL

Goal Group V. Access to Justice for All, Statement of Goal:

The State Bar of Michigan shall support and improve access to justice for all. II. BACKGROUND AND ANALYSIS
This Report describes the Goal Group's conclusions, rationale, process and research.

        This is the report of the Access to Justice for All Goal Group. It presents seven objectives and fifty-seven strategies which the Goal Group took care to express as succinctly as possible, while incorporating the key concepts. See Sections III and V.

        By contrast, the goal of the remainder of this report is comprehensiveness. It compiles and assesses information used to develop and refine the objectives and strategies. The report contains this introductory narrative highlighting the Goal Group's process and conclusions, the list and (where applicable) rankings of the objectives and strategies, summaries of rationale for the goal. Other working documents that are not included with this report are: a list of all the meetings held by the Goal Group, a bibliography of major resources used, copies of written comments received from those invited to review draft strategies and objectives, a list of persons asked to provide input and an analysis of data received from the pro bono survey undertaken.

The concept of Access to Justice For All weaves through the legal and broader communities.

        At its initial meeting in January, 1997, the Goal Group noted that "Access to Justice for All" was such a broad concept that this inquiry would not be able to incorporate all of its social, legal and other implications. Therefore, the Goal Group did not primarily approach this topic in philosophical terms, but rather worked to identify how "Access to Justice" could best be addressed by the State Bar of Michigan within the range of its activities and resources. This would include the extent to which the State Bar may be able to provide direct resources as well as how it could work within itself and with others to accomplish the objectives and strategies in the legal and broader communities. Nevertheless, the Goal Group was mindful of the degree to which access to justice issues are relevant throughout all aspects of the State Bar's work. For that reason, the Goal Group has placed the following objective as the first in importance:

OBJECTIVE A:

Objectives Cannot Be Simultaneously Ranked and Also Effectively Integrated.

Beyond prioritizing the objective listed above as first in importance, the Goal Group has declined to rank the other six objectives (although the strategies under each objective have been ranked). The Goal Group is mindful of the fact that the work guide asks that the objectives be ranked, and the Goal Group discussed doing so. By the end of the Goal Group's work, it became apparent that prioritizing the other six objectives was fundamentally inconsistent with the content of Objective A.

It is not possible to say on the one hand that the effectiveness of access to justice efforts comes from assuring an integrated, comprehensive approach and also to list the components which should be integrated in order of descending importance. The Goal Group realized that the prioritization of objectives was designed to respect limited resources so that higher priority items could be implemented if resources had to be rationed. However, this "non-prioritization" respects finite resources even more effectively because addressing all of the objectives will leverage each of them. Also, the objectives supplement and magnify each other. For example, maximizing pro bono services (Objective C) compliments subsidized legal services (Objective B) and both of those efforts are facilitated by good self-help and referral systems (Objectives F and G). With this in mind, the Goal Group was careful in its selection of objectives so that the essential aspects of access to justice were covered and the objectives selected would work together toward the overall goal.

Strategies Are Prioritized But Often Among Equals.

        The Goal Group did list the strategies under each objective in relative order of importance. However, we wish to note that even among strategies, prioritizing one above another is an artificial exercise. This is because some may be equally important or because efforts on one may facilitate success with others. For example, the strategies related to the objective of assuring subsidized civil legal services to those in need lists a number of strategies first which focus immediate attention on the need for resources, improved delivery methods and economies of scale. There is no question that these items are important. Nonetheless, the last strategy listed may be equally important, because expanding efforts beyond the poor to the near poor and less affluent moderate income may very well also help the poor. In view of this, the Goal Group has the following implementation suggestion: plan for all strategies simultaneously, but implement them as possible over time. Simultaneous planning will ensure that those strategies which are implemented later are integrated into considerations for those which are implemented earlier. Even though the Goal Group did attempt to prioritize the strategies, the perception that those listed last are unimportant would not be correct. Much effort was given to include all strategies essential to a given objective. It would not be consistent with the Goal Group's approach if strategies with lower rankings were deleted in future prioritization.

Information Was Obtained from Written Resources, Input from Experts and an Original Survey.

        The Goal Group prepared a bibliography of written material that assisted members of the Goal Group. Of particular value was the Agenda for Access: The American People and Civil Justice, the final 1996 report on the ABA's comprehensive legal needs study. The Michigan Plan: A State-Based Plan for the Delivery of Civil Legal Services to the Poor and several other state's plans were also of great assistance in reviewing issues identified by others who have studied access issues, as well as the work to date of the State Bar of Michigan's Access to Justice for All Task Force.

        Perhaps the resource of most significance and help to the Goal Group, however, were the thoughtful, substantive and often lengthy letters sent by 26 of the 53 experts which the Goal Group invited to comment on its draft strategies and objectives. Persons within the justice system in Michigan were identified for each of the seven objectives and asked to share their experience and knowledge with the Goal Group about those particular objectives or any other objective on which the expert wished to comment. The value of these written replies cannot be overstated. While the Goal Group members' own experience and knowledge covered a broad arena, the input of those invited to comment assured that a greater level of expertise was available for these complex topics. The Goal Group used much of what the commentors submitted to revise and improve the draft objectives and strategies. Occasionally, the Goal Group did not adopt a suggestion offered in one of the letters, but even in those instances, the Goal Group's process was improved through the value of assessing the idea or weighing it against other suggestions.

        The Goal Group determined early on that increased pro bono services would surely appear in the final recommendations but that data on what volunteer services are already being done by Michigan lawyers was insufficient to help the Goal Group develop the idea further. In cooperation with the State Bar's Pro Bono Involvement Committee (PBIC), the Goal Group developed a survey document to be sent to all in-state Michigan lawyers. The Goal Group requested and received funding for this survey from the State Bar. Some 2,500 of the 4,000+ responses to the survey were entered into computer data by the time the Goal Group concluded its efforts. In finalizing the pro bono objectives and strategies, the Goal Group considered the general trends apparent from that partial data. Also, sending this survey and a cover letter from State Bar President Victoria Roberts to all lawyers in Michigan supported the PBIC's goals of emphasizing the State Bar's commitment to pro bono and highlighting the importance of pro bono services. The final data will be turned over to the PBIC to continue to review volunteer services that lawyers provide and how to encourage more.

The Goal Group used the required format for stating objectives and strategies but added examples.

        The Goal Group followed the November 26, 1997 work guide calendar and format for completing its work. Therefore, tactics with which to execute strategies were not developed. However, some ideas which may seem to be tactics were occasionally added as illustrative examples. These examples are not to be read as exclusive because other types of activities not listed could also be designed when the planning process gets to the tactics stage. Nevertheless, the Goal Group prefers that the examples listed not be edited out of the statements because the examples were only added where the Goal Group felt they helped to explain the intent of the strategy.

The Goal Group's work product is relevant to the Access to Justice Task Force.

        The Goal Group discussed several times how its efforts and those of the Access to Justice Task Force were related or possibly duplicative. Although the Goal Group clearly understood that the two groups had different charges, it was also apparent that the content on which they focused was fundamentally the same. The Goal Group's working assumption was that the long range planning process efforts to develop objectives and strategies on access to justice would lead to broad policy statements helping to guide the overall efforts of the State Bar. The Goal Group understood the Task Force to be working to ensure access to justice activities are coordinated and integrated in light of the overall access to justice policies of the State Bar. For these issues, it was most helpful to have Al Butzbaugh, Chair of the Task Force, also serve on the Goal Group. The Goal Group is hopeful that its work will not only assist the overall long range planning process but can also help the Task Force refine the direction of its work.

The Chair expresses appreciation to Goal Group members and others who assisted.

        As Chair of the Goal Group, I would like to thank the Goal Group members--Lambro Niforos, Jonathan Rowe, Linda K. Rexer, and Alfred M. Butzbaugh, Jr.-- for their commitment to this challenging task. I was as impressed by the hard work of these people as I was by the value of their insights and knowledge. At the beginning, it was difficult to imagine how we might sculpt a product that could be helpful to access to justice efforts from raw clay. The list of meetings and materials only hint at the amount of time Goal Group members gave to this process. I am grateful to them for their work on this important issue. I am also grateful for the excellent help from Rick Winder which kept our work moving along and later to MaryAnn Sarosi who joined the State Bar staff as the new Access to Justice Associate Executive Director after our Goal Group began its work. We hope our efforts will help form a foundation for activities she and the State Bar can undertake. I am also grateful to Larkin Chenault and Dan Kim for helping with and supporting this process.

Respectfully Submitted,
Richard A. Soble, Chair

Access to Justice for All Goal Group, State Bar of Michigan Long Range Planning Process

III. OBJECTIVES

Note on Listed Order of Objectives: While the linear nature of our language requires that these objectives be listed one after another, the only objective which carries a priority is Objective A. It is first in priority simply because it provides the context for coordination and integration of all the Access to Justice for All objectives. The labeling of the other six objectives B through G is for identification only. It would be inconsistent with Objective A to rank the other objectives, all of which must work together in an integrated fashion for Objective A to succeed.

A.     Assure that all of the State Bar's efforts to expand and improve access to justice are developed and implemented in an integrated fashion to ensure a coordinated, comprehensive and effective approach and that adequate staffing and resources are committed to this effort.

B.     Subsidized (free or reduced fee) civil legal services are provided to those in greatest need in a quality, comprehensive, and integrated delivery system.

C.     The profession maximizes the amount of civil legal services provided pro bono to those in need.

D.     Appointed counsel are available in all appropriate circumstances and they provide effective representation to all their clients.

E.     Promote Alternative Dispute Resolution availability for all.

F.     Legal self-help and law-related assistance by non-lawyers is maximized within the bounds of the concerns of the profession and the public.

G.     Ensure that options for obtaining information and appropriate referrals are available to all facing a legal situation.

IV. RATIONALE "Access to justice for all is a dream. We must make it a reality." --John W. Cummiskey, April 17, 1997

These words capture the challenge--yet the opportunity--that lies before us. The goal of access to justice transcends all bounds--economic, ethnic, and gender, to name a few. Yet it is not enough to say, "There is the courthouse. Anyone can use it." The concept of access to justice for all would be mere lip service if it did not incorporate the concept of "meaningful access." While it is difficult to define "meaningful access to justice for all," this report attempts to frame it in terms that can incorporate many facets of access to justice and yet at the same time provide some realistic strategies for bringing access to justice into reality.

V. STRATEGIES

Objective A. Assure that all of the State Bar's efforts to expand and improve access to justice are developed and implemented in an integrated fashion to ensure a coordinated, comprehensive and effective approach and that adequate staffing and resources are committed to this effort.

1. Continue the Task Force on Access to Justice for All to oversee and coordinate Access to Justice efforts, with the Task Force assuring the involvement and input of relevant others where appropriate.

2.     As a matter of practice, matters relating to access to justice should be referred to the Task Force for evaluation and comment before presentation to the Board of Commissioners.

3.     The State Bar should institute systems to assure that all relevant State Bar entities are regularly informed of Access to Justice for All activities (e.g., broader dissemination of Task Force minutes), including local bars and others when relevant, and that minutes of committees which are represented on the Task Force are distributed to all Task Force Members.

4.     The Task Force on Access to Justice for All should biennially produce or update a written work plan to achieve the Access to Justice for All objectives and strategies, taking care to assure integration with implementation of the State Bar Long Range Plan and the Michigan Plan for Legal Services as appropriate.

5.     The State Bar should biennially hold a statewide conference on access to justice to report on its Access to Justice for All efforts and to seek input from the public and legal community on the Access to Justice for All goals and objectives.

6.     Encourage the development of community partnerships and strategic alliances with non-legal social services providers to produce systemic change, particularly in addressing the needs of low-income clients.

7.     Promote commitment among all State Bar entities to support access to justice efforts through increased coordination and strategic partnerships (e.g., access to justice efforts which are helpful to Image of the Profession Task Force goals).

Objective B. Subsidized (free or reduced fee) civil legal services are provided to those in greatest need in a quality, comprehensive, and integrated delivery system.

1.     Provide leadership and staffing to increase funding and other resources for civil legal services agencies serving the indigent from a variety of public and private sources, with Bar contributions setting the example. Do this through development and implementation of a comprehensive plan.

2.     Continue State Bar advocacy in support of governmental funding for civil legal service organizations serving the indigent.

3.     Promote the development of innovative methods to deliver quality legal services at affordable prices to more citizens, thus benefitting all groups.

4.     Promote the development, use, and replication of technology, innovations, and economies of scale (e.g. e-mail, hotlines, integration) when that would achieve increased efficiencies and effectiveness of services.

5.     Promote the availability of the full range of legal services for indigent clients.

6.     Expand access to subsidized legal services (free or reduced fee, as appropriate) beyond the poor to the near poor, less affluent moderate income, and to special populations with severe access obstacles. Without reducing the emphasis on the indigent, begin this process even if 100% of indigent needs not yet met.

Objective C. The profession maximizes the amount of civil legal services provided pro bono to those in need.

1.     Work to change the culture to create the expectation that all lawyers will perform their pro bono responsibilities.

2.     Work to increase the amount and quality of pro bono services provided to low income persons and develop special strategies for serving low-income clients in rural areas and special underserved populations.

3.     Work to increase the resources and training available for the use of lawyers performing their services pro bono, such as experts and court reporters for depositions, to assure quality pro bono representation.

4.     Encourage the development of innovative intake and referral systems that provide more efficient client service and utilization of pro bono attorneys. Coordinate and integrate as appropriate.

5.     Coordinate and integrate pro bono work with the work of local legal services providers; utilize appropriate technology to improve the efficiency of the pro bono referral process and the delivery of pro bono services (e.g. electronic bulletin board).

6.     Promote universal participation in the Michigan Voluntary Pro bono Standard.

7.     Promote reporting of pro bono services and financial donations, and explore court-required reporting of the same.

8.     Develop pro bono opportunities for lawyers in large law firms, for the handling of complex litigation cases, and for the handling of cases that cannot be adequately handled by local legal services providers due to funding or other restrictions.

9.     Develop pro bono opportunities for non-litigators and lawyers not in private practice, as well as work to expand ways judges can promote pro bono.

10.   Distribute to local bar groups and agencies effective ways to quickly select and receive cases to get to pro bono attorneys who are trained and ready.

11.   Increase methods by which the organized bar and society at large recognize and reward pro bono attorneys.

Objective D. Appointed counsel are available in all appropriate circumstances and they provide effective representation to all their clients.

1.     Develop cost-efficient service delivery systems that provide effective representation to indigent clients.

2.     Adopt appropriate practice standards for assigned counsel.

3.     Work to change the culture to increase willingness of attorneys to participate as assigned counsel.

4.     Assure that training and other resources are available to help assigned counsel meet the standards (e.g. electronic bulletin boards, local trainings).

5.     Advocate for an adequate compensation system to promote quality of assigned counsel representation.

6.     Develop or update effective client eligibility standards and easy ways to make the determination of client eligibility.

7.     Seek expansion of assigned counsel to other venues beyond criminal (e.g., friend of the court, juvenile, probate) where critical rights are determined (e.g., custody cases, cases involving important rights for families and for children, eviction cases, etc.) and with special populations.

Objective E. Promote Alternative Dispute Resolution availability for all.

1.     In order to promote integration and collaboration, identify all existing resources that address alternative dispute resolution, e.g., education, judicial, community, bar association and State Court administrative office.

2.     Explore ways in which the State Bar can assist in furthering Alternative Dispute Resolution, such as convening a statewide conference of ADR and other leaders.

3.     Promote collaboration among the Alternative Dispute Resolution service providers and teaching institutions in the State, e.g., Michigan Judicial Institute, law schools, Alternative Dispute Resolution sections of the State Bar, ICLE, community dispute resolution programs, etc.

4.     Promote increased awareness in participation by individuals in resolving their own differences especially through locally based programs (such as Community Dispute Resolution Centers where individuals resolve their differences before going to court) and early education initiatives (such as student/peer mediation programs in the schools).

5.     Collaborate with non-lawyer peers to develop Alternative Dispute Resolution processes for a wide range of dispute both within and outside of court.

6.     Promote the use of mediation, facilitation, or other collaborative dispute resolution techniques early in the life of a case in order to streamline discovery, encourage settlement discussions, and to attempt early resolution.

7.     Promote the training of third party neutrals in substantive issue areas to compliment their mediation training.

8.     Encourage the teaching of collaborative dispute resolution processes in law schools.

9.     Help set appropriate litigant expectations of their court experience and outline other dispute resolution processes through such mechanisms as litigant orientation programs.

Objective F. Legal self-help and law-related assistance by non-lawyers is maximized within the bounds of the concerns of the profession and the public.

1.     Promote a user friendly justice system with expanded options for people seeking legal help.

2.     Promote and develop funding for the study, development, and improvement of programs that assist litigants in representing themselves.

3.     Encourage simplification of the forms and procedures and further the development of effective self-help tools (e.g. PPOs, statutory wills, living wills, and Arizona-type documents) and seek ways of making legal assistance available for self-help remedies (e.g. for the completion of such forms).

4.     Explore methods to encourage unbundled (i.e. discrete task) legal services to support simplified forms, procedures, and self-help tools.

5.     Promote increased use of and new ways to work with non-lawyer advocates where appropriate, and promote their training and appropriate regulation.

6.     Explore improving small claims and probate court and/or developing other simplified courts for cases of low monetary value.

7.     Study whether selected issues could be removed from court jurisdiction.

Objective G. Ensure that options for obtaining information and appropriate referrals are available to all facing a legal situation.

1.     Promote the development of easy-to-understand legal information at public locations (e.g., libraries, courts, community centers, schools, etc.)

2.     Promote the use of information technologies to disseminate legal information to the public.

3.     Expand and improve the ability of all types of public service lawyer referral and information systems, including legal aid, pro bono and public service lawyer referral systems, to provide quick, simple legal information directly to callers who do not need an attorney referral for more complex legal assistance.

4.     Expand the ability of all types of public service lawyer referral and information systems to refer callers to non-legal agencies (e.g., social services, community agencies, etc.)

5.     Coordinate the referral of clients with a legal problem to legal aid agencies, pro bono programs, and public service lawyer referral and information systems as appropriate.

6.     Explore methods to study and track information about or the type, amount, use, and effectiveness of public service lawyer referral and information services.

7.     Promote the development and improvement of local public service lawyer referral and information systems and improve coordination with and support by State Bar lawyer referral and information services, including state and local services for persons able to pay a reasonable fee.

8.     Expand public education programs on understanding legal rights and responsibilities, and on finding affordable legal assistance sources that are targeted to low- and moderate-income people.

9.     Explore the feasibility of a statewide prepaid legal insurance plan to help make legal representation available to all.

10.   Notwithstanding the availability of information and referral services, assure that free legal services are available to all low income persons facing a significant legal situation.