The “Right Paper”: Developing Legal Literacy in a Legal Self‐Help Clinic

Legal self‐help is the fastest‐growing segment of legal services in the United States, and a significant addition to the repertoire of programs aimed at opening up access to justice in the civil legal system. Few studies, however, have examined how such services work in practice. Through ethnographic research and analysis of meetings between unrepresented litigants and attorneys offering advice in a legal self‐help clinic, this article expands the empirical investigation of access to justice to consider what legal self‐help looks like in actual practice. In this article, I follow the concept of the “right paper” to analyze the process through which legal self‐help litigants develop legal literacy, including the role of lawyers in helping them to do so. The article concludes by discussing what such practices reveal about recent efforts to open up access to justice and also about the dynamics through which people come to think about law and, especially, how to use it.     

TO BUNDLE OR UNBUNDLE? THAT IS THE QUESTION

A substantial number of parties either represent themselves or are partially represented in family law matters because they are unable to afford traditional full service representation. As this number continues to climb courts are taking a proactive approach in servicing self-represented litigants through self help centers. The following is a judge's perspective on how unbundled legal services assist the self represented and the courts as well as answers to ethical concerns should they arise.     

Redesigning the Family Law System to Promote Healthy Families

Family law professionals should be proactive in seeking and implementing constructive reforms. We identify some successful cutting‐edge reforms: (1) family resource centers, where all kinds of needs can be met; (2) informal family law trials, which streamline clogged calendars and provide an empowering and efficient forum; (3) licensed legal technicians, who increase public access to legal services; and (4) unbundled family law services. Second, we outline a protocol for implementation of reform developed by the Oregon Task Force on Family Law which is effective and replicable. Thoughtful reform of dispute resolution processes will serve family health and promote peace.

Key Points for the Family Court Community:
• Evolving family constellations, private ordering through pre‐ and postmarital agreements, an increase in self‐represented litigants, and shrinking judicial resources are changing family law dramatically.
• Thoughtful, practical process reforms are needed in order to accommodate these changes.
• Practitioners should be proactive about seeking out and implementing such reforms.
• Some reforms already finding success include family relationship resource centers, informal domestic relations trials, licensed legal technicians, and unbundled legal services.
• We outline a protocol with a proven track record of success for implementing cutting‐edge family law reform.

     

PRO SE DIVORCE LITIGANTS

With the increased number of divorce litigants appearing pro se in the past century, trial court judges and court personnel are forced to deal with their conflicting obligations with more frequency. It is virtually impossible for a trial court judge to ensure all litigants have a fair and meaningful trial without compromising their neutrality. Likewise, court personnel are allowed to give out legal information but not legal advice, with the definition of legal information and advice not neatly packaged into two separate and distinct categories. Consequently, changes must be made. This note suggests various solutions that can be imposed to either reevaluate the role of trial court judges and court personnel so that they no longer have conflicting obligations and are able to accommodate the needs of the pro se litigants or implement services that can provide pro se litigants with other avenues of obtaining information and assistance.     

Communication in family court: financial remedy proceedings from the perspective of litigants in person

The article presents a rationale for communicative, conceptual, cognitive and procedural challenges experienced by litigants in person in financial remedy proceedings. The article also explores oscillation between written and spoken legal genres and narrative development strategies which litigants in person have to use throughout different stages (from the early stages of starting proceedings, filling in court forms and providing documentation, through the negotiation process to interaction in court). While legal professionals express themselves in paradigmatic legal mode influenced by legal acts and legislation, litigants in person tend to express themselves in narrative mode similar to everyday storytelling. The objective is to investigate obstacles litigants in person experience during the process originally designed by legal professionals for legal professionals. The article evaluates different options for empowering lay people involved in legal proceedings and argues for the need to provide more specific support for different stages of family proceedings.     

THE SELF‐REPRESENTED LITIGANT: IMPLICATIONS FOR THE BENCH AND BAR

It is widely accepted that the number of self‐represented litigants has skyrocketed nationwide, especially in family law cases. Although nationwide comprehensive data on the number of self‐represented litigants do not exist, anecdotal evidence supports the belief that self‐representation is increasing. The challenge for courts and the entire legal profession is how to respond. Most observers in Indiana would agree that the traditional model of family law litigation—both spouses represented by lawyers settling their disputes before a judge—is no longer the norm in family law cases. Judges face a dilemma: assisting a self‐represented litigant to level the playing field against a represented party is seen by many as violating impartiality, even if the assistance is rendered to create a just result. In an effort to address the situation, the Indiana Supreme Court created the Pro Se Advisory Committee in April 2001. This article explores the long‐range implications of the issue of self‐represented litigants on Indiana's court system in hope that it will provide some insight for other jurisdictions. The first part of the article addresses the numbers of self‐represented litigants by tracking growth or declines in self‐represented cases and assessing whether there are any pockets of self‐represented litigants geographically or in certain case types. The second part of the article puts Indiana into context with the rest of the nation and reviews national trends. The third section reviews Indiana's response to self‐represented litigants over the last decade. The fourth section reviews current and ongoing projects in Indiana. The article concludes that the issue of self‐represented litigants will not fade away and that the challenge that guides the legal profession is how we provide equal access to justice for all who enter our courthouses.     

Reducing Domestic Violence and Improving Outcomes for Children: Funding Civil Legal Aid to Maximize Impact

Domestic violence survivors and children in foster care often experience significant unmet civil legal needs. Legal aid services, when adequately funded, can help close the justice gap for these two populations while improving safety, stability, and court efficiencies. However, despite ample literature demonstrating how legal aid can improve outcomes, almost half of those seeking legal aid services are turned away due to lack of resources. This article reviews the research and data about how legal aid can improve outcomes for people in the domestic violence and child welfare contexts. It also discusses how several state‐administered federal funding opportunities—including the Victims of Crime Act (VOCA) Victim Assistance Formula Grant Program, Title IV‐D child support funds, and Temporary Assistance for Needy Families (TANF) basic block grants—can fund the needed civil legal help.     

Unbundled Services to Enhance Peacemaking for Divorcing Families

Unbundling, also known as limited‐scope representation, has been adopted by judges, the organized legal profession, and divorcing parties. Unbundling is a legal access approach to better and more affordably serve unrepresented divorce litigants as well as to assist overburdened and underfunded courts. This article will focus on another critical benefit of unbundling: the ability of divorcing professionals to provide information and support to divorcing families to help reduce family conflicts. This article shall discuss four unbundled peacemaking roles that lawyers can play: (1) Collaborative Lawyer; (2) Lawyer Coach for Self‐Represented Litigants; (3) Lawyer for Mediation Participants; and (4) Preventive Legal Health Care Provider.

Key Points for the Family Court Community:
• Overview of limited‐scope lawyering roles
• Impact of unbundled representation on peacemaking
• Best practices of noncourt lawyering

     

Toward Improved Legal Service Delivery: A Look at Four Mechanisms

A legal service delivery system intended to facilitate the providing of services by private practitioners should, to be complete, include among its functions three that are of special importance. First, it should diagnose legal problems. Second, it should make available to a person with a legal problem the information needed for informed selection of a lawyer. And third, it should, when necessary, help the prospective client to make the initial contact with a lawyer. Lawyer advertising, specialty certification, lawyer directories, and lawyer referral services perform some of these functions, but no one mechanism performs all three adequately. A system combining the lawyer directory with an expanded lawyer referral service might do so and thus might be a more complete answer to the problem of delivery of legal services.     

Can We Talk? What We Have Learned About How to Have Productive Conflicts About Family Policy and Family Law

How we handle professional conflicts affects our capacity to help others in conflict. Two AFCC dialogues, one about domestic violence, the other about shared parenting, illustrate the challenges of taking on professional differences. The former resulted in considerable consensus. The latter involved a frank exchange of differences but little overall consensus. It was, however, an important beginning of a critical conversation. Other issues calling out for constructive conflict engagement, include the crisis in providing access to justice for family litigants who cannot afford legal representation. Professional groups must move beyond defending their own self interests to addressing this crisis.     

The ‘Code of Silence’: Are Self‐Report Surveys a Viable Means for Studying Police Misconducts?

Police misconducts have very rarely been studied by the self‐report method because it is assumed that the ‘code of silence’ is too hard to break even in an anonymous survey research situation. In this study a self‐report method was carried out in a police unit in Finland. Respondents were shown a list of 16 possible conducts. They were asked whether they knew a police officer who had been engaged in misconduct mentioned in the list or whether they themselves had engaged in one or more of the misconducts mentioned in the list. The analysis results indicated that, in an anonymous self‐report survey context, police officers are clearly willing to report on service misconducts, both their own and those of their fellow officers. Thus, the assumed ‘code of silence’ does not seem as strong as the literature suggests.     

Changing the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families

The provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) will remove almost all immigration cases from the scope of legal aid with effect from 1 April 2013. Part One of this paper describes the expected changes LASPO 2012 will make and then explores their anticipated impact. It explains that large numbers of migrants and their family members are likely to be without legal advice and representation after April 2013, including in cases where the state-enforced removal or deportation from the UK of a parent is contemplated, with the consequence of separating parent from child. Part Two explores the possibility that an ‘exceptional case determination’ might provide a route back into legal aid funding, and finds that this is likely to be restricted, in immigration cases, to those making applications relying on Article 8 ECHR and who can demonstrate a particular and individual requirement for legal aid. Part Three explores the rationale for these changes, and concerns about access to justice for migrants and their family members in cases involving acute interference with rights to family and private life. It places these concerns in context, specifically the fundamental and restrictive amendments to the Immigration Rules relating to family migration introduced from July 2012. These amendments are enormously complex and their full legal implications have yet to be tested in the higher courts. Part Four questions whether the changes will in fact achieve their stated aim of cost savings or whether the costs will simply be transferred to other parts of the State (especially to the Tribunal system, in dealing with litigants in person). The paper additionally questions, in Part Five, whether the regulators are equipped to regulate the quality of the fee-charging immigration advice services to which at least some individuals will turn. The paper concludes that, at the very least, it is particularly harsh that the Government has removed the ‘currency’ of legal aid at this time, so that those with limited financial resources have neither access to legal aid advice about the meaning of those Rules nor legal aid representation to test their proper interpretation.     

Large‐scale Map or the A‐Z? The Place of Self‐help Services in Legal Aid

Australian legal aid agencies are increasing their reliance on self-help legal services as part of their service delivery mix. Self-help legal services seek to harness the productive capacity of consumers,enabling wider distribution of legal aid services. The move to self-help services as an alternative to traditional legal service delivery appears to have gained momentum in advance of any sound understandings of what legal consumers, and legal aid consumers in particular, are capable of. In addition to the cost benefits of providing self-help services rather than traditional legal services, these services have been promoted on the basis of their capacity to empower users to address their own legal matters. Examples of the misuse by government agencies of notions of empowerment emphasize the importance of ensuring the usefulness of self-help legal services.     

Mental Health Problems among Prison Inmates: the Effect of Welfare Deficiencies,Drug Use and Self‐Efficacy

In this paper, we investigate the differential contribution of accumulated welfare deficiencies, drug use, and self‐efficacy on inmates' current symptoms of mental health problems. Few studies so far have investigated inmates' mental health based on empirical data covering both social and psychological predictors. Our analyses are aimed at the following research questions: (a) what is the relationship between welfare deficiencies, drug use, and symptom reporting among prison inmates? (b) is this relationship influenced by inmates' perceived self‐efficacy? and (c) how might this information be used to inform the discussion of challenges in prisoner re‐entry? Findings are based on a national survey among prison inmates in Norway, focusing on living conditions generally, as well as mental distress, drug use, and self‐efficacy. The findings indicate serious accumulation of disadvantage, and more welfare deficiencies among drug users and those suffering from mental distress. When it comes to prediction of mental distress, accumulation of welfare deficiencies and self‐efficacy both turned out as significant contributors. The findings are discussed both in terms of practical implications, and in terms of how they illustrate some of the shortcomings inherent in a traditional welfare research perspective.     

The impact of cuts in legal aid funding of private family law cases

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made deep cuts to legal aid in the UK from April 2013, withdrawing state aid from almost all private family law cases. The paper is based on the findings of a micro-study of solicitors and Citizens Advice Bureaux (CABx) in Kent and London to investigate the impact of LASPO cuts on their work. The findings suggest that: legal aid firms have closed or merged; legal aid work is often partially carried out in solicitors’ own time; ‘unbundled’ services for litigants in person (LIPs) are increasingly common; and family cases are being complicated and extended by the new ubiquity of the LIP. Respondents suggest that litigants may increasingly be ‘giving up’ on pursuing their cases, with clear implications for financial justice and contact with children. Further research is needed into the financial and affective impact of the cuts and the distribution of losses and difficulties between genders. The study, however, suggests the likelihood of post-separation poverty, debt and capital losses increasing in the post-LASPO environment, and that firms and CABx are having to find various methods of dealing with clients abandoned by the state.     

Building sustainable free legal advisory systems: Experiences from the history of AI & law

The enthusiasm for artificial intelligence (AI) as a source of solutions to problems is not new. In law, from the early 1980s until at least the early 2000s, considerable work was done on developing ‘legal expert systems.’ As the DataLex project, we participated in those developments, through research and publications, commercial and non-commercial systems, and teaching students application development. This paper commences with a brief account of that work to situate our perspective.The main aim of this paper is an assessment of what might be of value from the experience of the DataLex Project to contemporary use of ‘AI and law’ by free legal advice services, who must necessarily work within funding and other constraints in developing and sustaining such systems. We draw fifteen conclusions from this experience, which we consider are relevant to development of systems for free legal advice services. The desired result, we argue, is the development of integrated legal decision-support systems, not ‘expert systems’ or ‘robot lawyers’. We compare our insights with the approach of the leading recent text in the field, and with a critical review of the field over twenty-five years. We conclude that the approach taken by the DataLex Project, and now applied to free legal advice services, remains consistent with leading work in field of AI and law.The paper concludes with brief suggestions of what are the most desirable improvements to tools and platforms to enable development of free legal advice systems. The objectives of free access to legal information services have much in common with those of free legal advice services. The information resources that free access to law providers (including LIIs) can provide will often be those that free legal advice services will need to use to develop and sustain free legal advisory systems. There is therefore strong potential for valuable collaborations between these two types of services providers.     

Intelligent Agents and the Information Requirements of the Directives on Distance Selling and E-commerce

A significant amount of research in artificial intelligence is dedicated to intelligent agents, software that can perform tasks autonomously. Due to this autonomous character, agents are interesting from a legal perspective: lawyers struggle with the question whether agents are just instruments used by humans or legal entities that can perform legal acts. An interesting area for the practical application of agents is Internet commerce. Agents can find for their users profitable goods and services, and place orders online. The sellers of online goods and services have to meet information requirements that are laid down in the European Union Directives 97/7 and 2000/31. This paper addresses whether online sellers should provide (all) required information to agents directly, and as far as this is the case, in what format the required information regarding prices, delivery costs, etc. should be provided to agents.     

One lawyer acting for two clients: implications arising from an experimental practice model ‘Family Matters’

The legal services market has faced unprecedented change following implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Alternative business models and wider use of digital technologies have developed alongside debates about the future of legal practice in family law. Arguments have been made for new hybrid models that combine legal advice with mediation and for solicitors to be enabled to work with two clients. This paper contributes to that debate by highlighting implications for such practice innovations based on research evidence of solicitors’ experiences of delivering an experimental model of practice: ‘Family Matters Guides’. This model, piloted by Resolution, involved the Guides providing intensive support and legal information (not legal advice) to both separating parents to help them reach agreements. This paper is timely as the professions await the new regulations from the Solicitors Regulation Authority (autumn 2018) making flexible practice models a reality.     

A Randomized Comparative Effectiveness Trial of Two Court‐Connected Programs for High‐Conflict Families

Parents who experience great amounts of legal conflict as they dissolve their relationship and arrive at their parenting arrangements require an outsize proportion of courts’ time and resources. Additionally, there is overwhelming evidence that conflict has a deleterious effect on their children. We partnered with the family court to conduct a study comparing the effectiveness of two programs for families deemed by their judge to be high conflict and thereby mandated to a program. Both involved one 3‐hour session; the existing program, Parent Conflict Resolution (PCR), used exhortational lecture and video; the newly designed experimental program, Family Transitions Guide (FTG), based on motivational interviewing, employed exercises attempting to get parents to decide for themselves what they needed to do for the sake of their children. Parents were assigned at random to one of the two programs (the literature often terms this a randomized clinical trial) and were interviewed just before it began and 9 months later, as was a child. Results showed that child's report of their own well‐being was significantly improved by FTG as compared to PCR and that these effects were mediated by children feeling less caught in the middle. On several variables, parent report showed that parents in PCR as compared to FTG felt decreased problems in co‐parenting and less interparental conflict, although the effects were not consistent across mother and father report. There was also evidence of diminished legal conflict over 9 months in FTG as compared to PCR.