Vol. 83, No. 4, April 2010
Every day Wisconsin residents who face complex legal problems are forced to go at it alone, in court, before government agencies, or in negotiations with their adversaries. For these people, one of the fundamental promises of our democracy – equal justice before the law – is unfulfilled, because they cannot afford the professional legal help they need, and they cannot effectively represent themselves.
On June 5, 2009, the Wisconsin Supreme Court, in response to a petition by the State Bar of Wisconsin, ordered the establishment of the Wisconsin Access to Justice Commission.1 Its mission is “to develop and encourage means of expanding access to the civil justice system for unrepresented low income Wisconsin residents.”2 The establishment of the commission is an important step forward in the effort to tackle the ever-growing justice gap in Wisconsin and deliver on the promise of equal justice.
Although Wisconsin has a network of independent legal aid programs that serve many low-income people in need of legal help,3 these organizations still report being unable to serve up to 80 percent of the eligible clients who apply for help.4 Furthermore, financial constraints and budget cuts increasingly restrict the ability to develop or sponsor affordable legal services options for poor people. This means that, despite all the resources that are currently available in Wisconsin, most of the people whose income qualifies them for free legal aid are still unable to access legal assistance. Equal justice cannot be realized for those individuals and families who lack meaningful access to their justice system. A lack of access to legal advice or advocacy for basic needs can have catastrophic consequences. The denial of equal justice not only has an adverse impact on these individuals, their families, and their communities; it also erodes public trust and confidence in our justice system.5
The commission was created to help address this justice gap and assist in eradicating the roadblocks to obtaining legal assistance encountered by low-income individuals. A fundamental principle underlying the Access to Justice Commission is that access to effective legal representation in civil matters is important for democracy, critical for maintaining the rule of law, and a responsibility of the entire community,
not just one segment.6 The commission’s work is to help support those willing to make that right a reality. The commission can promote successful legal programs and other initiatives statewide that are focused on providing legal assistance to the underserved. It will provide a pivotal forum and a base for the leadership of and collaboration between community partners that are necessary to promote these types of innovative programs and resolve the access-to-justice crisis in Wisconsin.
The Justice Gap in Wisconsin
The Access to Justice Commission developed from the 2006 Wisconsin Civil Legal Needs Study commissioned by the State Bar of Wisconsin. In 2007, the State Bar’s Access to Justice Study Committee published the “Bridging the Justice Gap” report, which contained data from the legal needs study and recommendations for change.7 Some key findings included the following:
- Overall, 45 percent of the low-income households surveyed (more than 500,000 people) experienced an average of two civil legal problems.
- Among the poorest families surveyed, the level of need was even higher, with 48 percent of those in the lowest income group encountering an average of two civil legal problems.
- Nearly 32 percent of rural households reported a civil legal need.
- One finding in particular should concern anyone who believes in equal justice: nearly 66 percent of the low-income households who proceeded without legal representation in court or at an administrative hearing faced opposing parties represented by counsel.8
Innovative Approaches to Equal Justice
Lawyers and courts are grappling with the challenges of promoting equal access to the justice system while maintaining the integrity of the legal process. The attorneys who make up Wisconsin’s formal structure of legal aid offices provide vital services to thousands of Wisconsin residents every year. However, they cannot fulfill all the demand for their services, leaving many people who must rely on other resources. In many of Wisconsin’s 72 counties, lawyers, judges, advocates, and community organizations have developed innovative programs to fill the gap by providing legal information or assistance to people of limited means who have been unable to obtain more formal legal representation. These programs help self-represented litigants navigate the legal system. This article focuses on issues and opportunities related to these self-help options. Information from a recent survey the authors conducted suggests that these valuable efforts often are not coordinated or are unknown by some key players even within the communities they serve.
In 2009, the University of Wisconsin Law School9 undertook a survey to identify the kinds of programs or other outreach efforts already in place that might be replicated or expanded to address the unmet legal needs identified in the State Bar’s “Bridging the Justice Gap” report. The results are interesting and reflect the need to redefine what it means to offer pro se assistance10 to encompass the variety of efforts undertaken in our state.
The survey consisted of telephone interviews conducted with all 72 county clerk of courts offices, a majority of county bar association representatives, more than 60 nonprofit organizations statewide,11 State Bar representatives, government agencies, private attorneys, and fee-based assistance programs. Survey respondents identified a total of 56 different programs, ranging from legal clinics and free lectures to online tools designed for self-represented litigants. The majority of the programs provide assistance to self-represented litigants and the public in the area of general civil legal assistance, with programs specializing in family law close behind. However, the results also showed that statewide, 65 percent of the counties reported that they have no resources for self-represented litigants.12 Furthermore, of the programs identified, more than half were concentrated in just three counties: Dane, Marathon, and Milwaukee. Thus, there are some fairly glaring disparities in access to legal assistance depending on where a person happens to live.
The most common model for self-help programming in Wisconsin is the clinic format, although the programs across the state vary widely in their level of staffing and frequency. Counties such as Dane, Milwaukee, and Portage have daily or weekly clinics. Other counties, like Brown, Chippewa, Eau Claire, La Crosse, Clark, and St. Croix, offer drop-in clinics one night a month at which volunteer attorneys assist people by providing basic legal information and help with filling out standardized forms. Finally, some counties, such as Dunn and Manitowoc, provide one free, day-long, drop-in clinic, staffed by volunteer attorneys, in conjunction with Law Day each year.
The authors were heartened to learn that almost every county has a domestic abuse shelter with advocates on staff to provide at least basic assistance for clients in the areas of family law and restraining orders. A handful of shelters across the state also offer additional programs to provide more in-depth assistance with family law matters such as divorce. In one of the most innovative programs, at Christine Ann Domestic Abuse Services Inc., in Winnebago County, shelter clients who are seeking simple divorces (those not involving property or retirement) take part in a pro se divorce clinic where they receive assistance from a volunteer attorney as they proceed through the divorce process. The volunteer attorney holds lecture-style classes during which she distributes paperwork and teaches the participants how to fill out and process the court filings for their specific situation. The group works together to complete each step in the divorce process.
Surprisingly, the survey found that in some counties, the clerk of courts offices (among the most important frontline players in the court system) were unaware of free legal-assistance options available in their county. However, a majority of the clerk of courts offices do offer standardized forms, resource guides, and referrals to online resources. In addition to referring people to the state court system Web site, from which forms can be obtained, some clerk of courts offices refer people to for-profit vendors that sell standardized forms. Some of these organizations also provide limited legal assistance for a fee. Unfortunately, the forms might be outdated or the instructions confusing. Furthermore, access to forms alone is generally insufficient. People often are confused about the process and frequently do not even understand what their legal issues really are.
Marsha M. Mansfield, U.W. 1984, is a clinical associate professor and director of the Economic Justice Institute at the U.W. Law School.
Anne Applebaum, U.W. 2009 cum laude, is an associate with Dorsey & Whitney LLP, Minneapolis. The authors thank State Bar of Wisconsin Pro Bono Coordinator Jeff Brown for his insights and assistance with this article.
Barriers and Bridges
The survey identified four significant barriers to providing effective pro se assistance: 1) lack of resources, 2) geographic sprawl, 3) poor attendance when clinics are offered, and 4) resistance by some attorneys to formalized self-help efforts and a lack of information sharing. However, the survey also located model efforts around the state that have managed to overcome these barriers with innovative and inexpensive solutions, demonstrating that the hurdles to providing effective pro se services to those who fall into the justice gap are not insurmountable. A more coordinated approach, encouraged and supported by Wisconsin’s new Access to Justice Commission, could result in a more consistent statewide network of services that would maximize legal-assistance options for individuals who do not have the resources to retain counsel.
To address the issue of limited resources, organizations in several counties have pooled their resources. For example, in Dodge County, the Aging and Disability Resource Center (ADRC) and the Dodge County Bar Association facilitate a monthly clinic at which volunteer attorneys provide elderly individuals with legal information. The ADRC houses the clinic and provides organizational support while the bar association arranges for volunteer attorneys to staff the clinic. Similarly, in Sheboygan County, the Salvation Army hosts a legal clinic in conjunction with the Sheboygan County Bar Association. The Salvation Army advertises the clinic and distributes sign-up sheets at its facilities and local churches. Members of the county bar association take one-year turns in the position of volunteer coordinator, who schedules the volunteer attorneys who staff the monthly three- to four-hour clinic. Operating costs are minimal because the organizations can combine their resources to reduce the burden on the individual agencies.
Many of the individuals surveyed also cited lack of attendance and geographic sprawl as barriers to establishing effective programming for self-represented litigants. However, several counties addressed those hurdles by moving their services from the courts to places in the community where consumers are more likely to use them. In Wausau, for instance, once a month at the YWCA, Judicare hosts “Legal Grounds” during which volunteer attorneys answer brief legal questions over coffee, supplied free to the attendees. To maximize attendance, the program offers the clinic at times of day when parents are already in the YWCA picking up their children from daycare. This allows people to access legal assistance without scheduling an appointment during the workday or making a trip outside of their daily routine. Another example is a program of the Catholic Charities of the Diocese of La Crosse. There, an attorney volunteers with local priests to hold informal pro se clinics in churches after Sunday mass. People are much more likely to use legal-aid services when they are easily accessible and housed in convenient locations.
In some parts of the state efforts have been developed to address geographic sprawl and information-sharing challenges, increasing the likelihood self-represented litigants can effectively access and use the resources available to help them. Working with the Wisconsin Supreme Court pro se coordinator, committees in the 9th and 10th judicial districts organized training for clerk of courts staff to help them be more effective in responding to self-represented litigants. That training included preparing binders of information on legal resources and the legal system that were distributed by the clerks to local librarians. The clerks also met with the librarians to discuss the materials and followed up regarding use of the materials. The effect was to expand the network of self-help resources for the public in those judicial districts, increasing the likelihood that people in need would know when and where to go for appropriate legal assistance, including lawyers. Individual county courts have responded with their own outreach programs. In Adams County, the family court commissioner conducts educational lectures for the community regarding family law issues. Other resources have been developed by the Wisconsin court system and the State Bar’s Family Law Section.
Several of the survey respondents also suggested that Internet, phone, and video technology can be used to overcome the barrier of geographic sprawl. Both the State Bar and the Milwaukee Bar Association sponsor lawyer hotlines, which allow individuals who need basic legal information or referrals to talk to a volunteer attorney on the phone instead of traveling to a clinic site. Additionally, the 10th Judicial District is evaluating the feasibility of using video conferencing technology and is preparing to institute a Web-based software portal to connect volunteer attorneys locally and in larger communities with clients in more rural areas that have fewer attorneys or no formal self-help clinics. A similar Web portal for basic legal questions in Michigan shows how use of such technology can dramatically expand the delivery of pro bono legal services to rural residents by connecting them with volunteers willing to help.
Resistance to expanding self-help resources often is based on a mistaken assumption about why people seek out these resources. Access to a lawyer for legal advice and representation is still the gold standard that litigants with sufficient resources will pursue. As the Wisconsin Civil Legal Needs Study makes clear, respondents prefer lawyers for legal help by a wide margin over every other option, including the Internet.13 The justice gap exists because people cannot afford the help they need, not because they are unwilling to pay. That misperception can be countered, however, and examples of support in the legal community for self-help efforts abound, as demonstrated by the working partnerships found in the study.
Clearly, barriers to providing effective legal assistance can be overcome with greater collaboration, more attention to avoiding duplication, exploring new ways of doing things, and a commitment to a collaborative approach to expanding equal justice to all without regard to income or geographic location. The commission can play a central role in coordinating these programs and enhancing their visibility statewide in addition to promoting necessary funding to support and sustain these efforts.
Other Things the Commission Can Do
The Access to Justice Commission’s activities will be developed in accordance with the mission set out by the Wisconsin Supreme Court “to develop and encourage means of expanding access to the civil justice system for unrepresented low income Wisconsin residents.” In its petition to the supreme court, the State Bar proposed that the commission should:
- Develop and encourage implementation of initiatives to expand access to the civil justice system for unrepresented low-income Wisconsin residents;
- Support the efforts of the Wisconsin Trust Account Foundation (WisTAF), the Equal Justice Fund, and other entities to develop and implement strategies that will increase funding and other support for access to justice in civil matters;
- Work to expand the resources of financial support for legal services to low-income families so that the services will not depend on the limited support generated by Interest on Lawyer Trust Account (IOLTA) funds, mandatory assessments, and the like;
- Work to maximize the wise and efficient use of available resources, including developing local, regional, and statewide systems that encourage the coordination of resources and communication among providers;
- Work to reduce barriers to the justice system by addressing existing and proposed court rules, procedures, and policies that affect access to civil justice for low-income Wisconsin residents; and
- Review and periodically report on the overall effectiveness of Wisconsin’s civil legal-services system for low-income residents, using a set of objective standards and criteria.14
The State Bar derived its aspirations for the commission from the American Bar Association’s Principles of a State System for the Delivery of Civil Legal Aid, adopted by the ABA House of Delegates in August 2006.15 Creativity, building collaborations, and joining forces to make change will be at the heart of the commission’s work. The commission has the potential to make substantial concrete changes in access to legal services for Wisconsin citizens. Many states where such commissions are functioning have garnered support from a variety of constituencies and are effecting real change.16
In the state of Washington, for example, the Access to Justice Board has been instrumental in helping to develop and move forward a plan for expanding resources to all areas of the state, including a recent multimillion dollar expansion of staffed civil legal-aid offices to rural counties that had not received such services in decades. It was possible for Washington to further this initiative, with bipartisan support, during a state budget crisis, because it was developed with and supported by a collaborative, thoughtful, and credible source, the Access to Justice Board.
One of the important jobs of the Wisconsin commission will be to educate the public about the growing problems regarding provision of legal resources to low-income persons. Other states have shown that there are several ways for a commission to successfully provide community outreach regarding justice-gap issues. Access to justice commissions in other states have convened hearings regarding the need for state legal services that are publicized and well covered by state and local media. These hearings, which have included local leaders, legislators, and judges, have resulted in key budget proposals sponsored by those legislators. In Maine, the Justice Action Group issued a long-term planning document that prioritized strategies for the state, including ones that required little or no new funding. More than 100 people from around the state participated in work groups to formulate recommendations that are already being implemented.17 Some states, such as New Mexico, have produced educational DVDs to draw attention to the legal needs of the economically disadvantaged.18 In Texas, the commission led a law-office-technology review and update program that resulted in a statewide upgrade in the systems legal-aid lawyers could use to conduct their work; most of the time and funds were donated by law firms and companies.19 In North Carolina, the state bar association and IOLTA foundation collaborated with their commission to create several successful and popular campaigns for expanded pro bono support.20
Although education is an important part of an access to justice commission’s reform efforts, the Wisconsin commission can focus on other initiatives as well. For instance, other states have concentrated on increasing funding for civil legal assistance, coordinating support for self-represented litigants, promoting public-interest loan-repayment programs for attorneys, improving administrative fairness, improving court access for people with limited English fluency, and increasing collaboration and coordination among legal-aid providers to ensure that all low-income people in the state have access to the services they need.21
In sum, the goal of such commissions is to identify specific goals and objectives for improving access to civil justice and the steps necessary to achieve them and to oversee and coordinate implementation of those steps. The Wisconsin commission’s success will depend on its ability to build a coalition of the willing, communicate its message effectively, and build on the successful collaborations, such as those identified in the survey, already in place in Wisconsin.