CJRI's February '21 Newsletter
February 17, 2021
CJRI Chair and Berkeley Law Dean Erwin Chemerinsky discusses what Californians can expect from the Supreme Court with the New York Times.
February 12, 2021
January 9, 2019
November 15, 2018
December 30, 2016
May 18, 2016
May 12, 2016
May 9, 2016
April 28, 2016
April 27, 2016
April 27, 2016
U.S. Supreme Court
October 4, 2020
Law 360 reports on upcoming Supreme Court cases this term addressing access to justice and civil rights issues such as unreasonable searches and seizures, non unanimous juries, and religious freedom. In Torres v. Madrid, argued on October 14th, the justices heard arguments about whether police officers who shot at a woman's fleeing car violated the Fourth Amendment prohibition against unreasonable seizures. In Edwards v. Vannoy, to be argued on November 30th, the Court will decide whether one of its previous rulings declaring non unanimous jury verdicts to be unconstitutional should be applied retroactively. In FNU Tanzin v. Tanvir, a freedom of religion case argued on October 6th, the justices considered whether the Religious Freedom Restoration Act gives Muslim-American individuals the right to seek monetary damages from FBI agents who allegedly placed them on a no-fly list after they refused to provide information about other Muslims.
April 13, 2020
Law 360 reports on the Supreme Court’s decision to hold half of its March and April oral argument sessions via teleconferencing in May and to postpone the other half for early in the 2020 session. The court announced that it would allow news media, such as CSPAN, to stream live audio feeds of the arguments as they become available.
April 10, 2020
Law.com reports on how remote technology is being used in New York to promote access to civil justice. For the time being, jury trials are not likely to proceed while all oral arguments, alternative dispute resolution arbitrations, and emergency hearings will be held via telephone or video conferencing except in the case of exigent need and demonstrated impracticability of conducting the hearing virtually. Similarly, depositions will be conducted by remote means unless a litigant can demonstrate why they would be unfairly prejudiced should remote depositions be allowed to proceed in their case. In addition to traditional platforms like Zoom and Skype, some companies like TSG and Veritext have developed video conferencing technology tailored to depositions, allowing the person taking the deposition to control when a witness and opposing counsel may access exhibits. Though these technologies seem to make cases proceed more efficiently, issues of security and privacy as well as the diminished power of litigators to command attention are major concerns.
February 27, 2020
Law 360 reports on the Supreme Court’s decision that prevented Jesus C. Hernandez, a father of a Mexican teen who was killed by a Border Patrol officer, from pursuing civil damages under Bivens v. Six Unknown Named Agents. Bivens would have allowed Hernandez to collect monetary damages for the violation of constitutional rights by a federal officer when no alternative legal remedy would suffice.
November 13, 2019
CNBC reports on a $20 million racial discrimination case between black comedian Byron Allen and telecommunications company Comcast, with Comcast more reluctant to carry Allen’s black-owned channels as opposed to other white-owned ones. This case concerns the 1866 Civil Rights Act, which “guarantees black and white citizens the equal right to make and enforce contracts.” Erwin Chemerinsky, Allen’s attorney and founding chair of the Civil Justice Research Initiative, said that the argument went well and that he is “hopeful the Court will agree that it is enough to say that race is a motivating factor in the denial of a contract.”
June 20, 2019
Law 360 reports on the U.S. Supreme Court ruling that allows defendants who face criminal charges based on fabricated evidence to sue prosecutors starting when the case ends in the defendant’s favor, and not when the defendant learns about fabrication.
April 26, 2019
JD Supra reports on the Supreme Court decision in Lamps Plus, Inc. v. Varela, which held that the Federal Arbitration Act requires a non-ambiguous, clear expression of agreement to arbitrate class actions. In this instance, the court held a court may not compel class arbitration if the agreement is silent on whether class arbitration is permitted.
January 9, 2019
USA TODAY reports on a battle between California and Nevada whose roots date back to the nation's founding. At stake is an important issue of states' rights: Can a state be hauled into another state's court system against its will? Forty years ago, the high court allowed it. But times – and all the justices – have changed.
January 9, 2019
The Washington Post reports on how the Supreme Court justices are pondering the reversal of a a 40 year old precedent permitting one state to be sued in another state’s courts, without their consent. Erwin Chemerinsky, Dean of Berkeley Law and Chair of the Civil Justice Research Initiative, argued against reversal of existing precedent and in support of the case proceeding. He emphasized the sovereign power of states to “protect their citizens when they’re injured, including by other states.”
November 4, 2018
Law 360 reports on Justice Kavanaugh’s approach to access for justice. Despite writing more than 270 opinions during 12 years as a judge on the D.C. Circuit, Judge Kavanaugh has said relatively little on access to justice issues.
November 4, 2018
Law 360 reports on Frank v. Gaos where the Supreme Court justices’ skepticism of cy pres distributions to charities raises concerns for legal aid providers. Several justices criticized the fact that the $8.5 million deal settling privacy claims against Google would pay millions to attorneys and charities, but nothing to consumers. The scrutiny of these deals indirectly threatens a system that the American Bar Association estimates sends approximately $15.5 million every year to legal aid service organizations.
Access to Legal Services
September 20, 2020
Law 360 reports on suggestions made by a panel at SMU Dedman School of Law for attracting lawyers to work in rural and tribal “legal deserts”. A shortage of judges and attorneys in these regions is cause for concern as it jeopardizes residents’ constitutional rights to speedy trials and access to counsel. Stanford Law School and South Dakota are among those entities experimenting with lower law school costs, loan forgiveness, and bar waiver fees, believing in the power of financial incentives to attract more lawyers encumbered by student loans. However, Professor Lisa Pruitt emphasized that financial incentives are “piecemeal solutions to a wide-reaching problem” and that greater action at the federal level is required.
September 8, 2020
Bloomberg Law reports on the results of its 2nd annual Litigation Finance Survey. The survey reveals stark differences in opinion between those involved in litigation finance and those with no experience in it: 87% of industry participants say that litigation finance increases access to justice while only 34% of those with no litigation finance experience agree. It is possible that COVID-19 may change these perceptions. The economic downturn could emphasize the role of litigation financing in lowering barriers for potential claimants and allowing businesses to defend against lawsuits that could potentially bankrupt them.
August 9, 2020
Law 360 reports on requests to reopen the Department of Justice’s Office for Access to Justice, created by the Obama administration in 2010 and shuttered by President Trump in 2018. GOP lawmakers have accused the Access to Justice Office, which was intended to provide national guidance on indigent defense, fines and fees, juvenile justice, and civil legal aid, of promoting “hyperpartisanship” and weakening the government’s prosecutorial capacity. However, former senior officials in the Access to Justice Office deny claims of “hyperpartisanship” and say that such discussions distract from the office’s important work like filing amicus briefs in civil rights cases and issuing guidance to state court justices on best practices regarding fines and fees.
August 09, 2020
Law 360 reports on the American Bar Association’s mapping and quantification of legal deserts throughout the country. The map reveals a scarcity of lawyers in many small towns and rural counties, with 54 counties nationwide having no lawyers whatsoever and 182 counties having only one or two practicing attorneys, most of whom are over the age of 55. The large disparity between access to a lawyer in urban areas and rural areas can have big implications for legal outcomes and health consequences, especially for criminal defendants, and is expected to become worse as lawyers in rural areas begin to retire. A wide array of solutions have been adopted, including using state funding to bring young lawyers to rural areas and providing scholarships to high school students who commit to getting their JD and becoming small-town attorneys.
July 30, 2020
EIN News reports on the Tennessee Supreme Court Access to Justice Commission’s 2020 Strategic Plan to address issues of racism in the justice system. Among the initial actions the commission plans to take to eliminate barriers to racial and ethnic fairness are virtual trainings on implicit bias, poverty, and racial injustice for various legal system participants and stakeholders. Additionally, the Commission will partner with local faith-based organizations to host virtual town halls to address issues of racial injustice at the local level and to “identify local champions and bring diverse voices to the table”. The Commission also added a new “prong” to its vision: building greater funding capacity for the Commission and the equal justice community in Tennessee.
March 22, 2020
Law 360 reports on U.S. District Judge James Bredar’s decision to suspend non-emergency hearings and all jury trials in the District of Maryland in response to the COVID-19 pandemic. Decisions like this one are being made by judges throughout the United States, who are balancing heavy caseloads and criminal defendants’ rights to a speedy trial with CDC recommendations to limit gatherings of over ten people. The fact that filings continue to rise with judgeships trailing far behind means that there will be lasting consequences for caseloads long after the pandemic. Although the civil docket has seen the majority of the caseload crisis until now because of a lack of statutorily required speed, many cases based on legal argument, like petitions for temporary restraining orders, can be conducted remotely with little impact on the integrity of the hearing.
March 18, 2020
The ABA Journal reports on a thirteen-page commentary released by the ABA’s Commission on the Future of Legal Education in March of 2020. The document includes recommendations for aligning legal education, rankings, and licensure more closely with the public’s legal needs. In addition to a general call for a systemic reexamination of the education of legal professionals in the United States, the Commission called for leveraging technology to drive change, investing in the well-being of law students and lawyers, adopting a more “problem-solving focus”, and developing fair and reliable methods of assessing “progress and competence” in legal education.
March 15, 2020
Law 360 reports on legal aid organizations’ efforts to brace for the ramifications of the spread of COVID-19 during the early days of the pandemic. The Legal Services Corporation, the nation’s largest benefactor of civil legal aid services, urges collaboration with community organizations and public health officials as well as developing thorough plans for continuing services when the situation worsens. Many legal aid organizations, such as the Legal Services of Hudson Valley, the Northwest Justice Project, and the legal aid arm of the Alameda County Bar Association, have already begun minimizing in-person meetings and events and relying on telephone and video conferencing. In addition to managing volunteer shortages, groups like the Legal Aid Foundation of Los Angeles are seeking moratoriums on evictions and increased protections for immigration detainees and incarcerated individuals.
March 15, 2020
Law 360 reports on the private bar’s reluctance to engage in limited scope representation, known also as “unbundled” legal services. Although no state has prohibited the practice and 40 state bar authorities have explicitly authorized it, many attorneys still harbor misgivings about explaining the concept to clients, consequences for malpractice insurance, and the possibility that judges will prohibit lawyers from leaving a case once entering it on a limited basis. Efforts are being made to alleviate these concerns. Illinois’, for example, is offering sessions to educate both judges and law students on unbundled services and how to navigate appearances and withdrawals.
March 8, 2020
Law 360 reports on three automation technologies aimed at legal services delivery as discussed by three lawyers at the American Bar Association’s TechShow in Chicago in February 2020. The first was a TurboTax-like online form called Massachusetts Defense for Eviction that employs user-tailored questions, glossary terms, and videos to assess a user’s legal needs and connect them with an appropriate legal aid provider. Additionally, Harvard Law School’s access to justice lab is exploring how aid organizations can use artificial intelligence tools to mine public data like water bills and identify and alert individuals likely to face a legal problem. Another tool is a platform that centralizes pro bono intake in order to more efficiently and effectively match pro bono clients and attorneys.
March 8, 2020
Law 360 reports on Georgetown University Law Center’s Mary MyClymont’s survey of 23 nonlawyer navigator programs in her recent report, “Nonlawyer Navigators in State Courts: An Emerging Consensus”. MyClymont calls these programs--in which nonlawyers such as college students or retirees offer legal information, form completion, and translation services to litigants-- “one of the important tools on a continuum of services”. In addition to helping fill a “justice gap”, MyClymont notes, these programs are relatively inexpensive and require no major change in statute or regulation to institute. Though a fairly new phenomenon, MyClymont hopes to spread awareness of these programs and assist in bringing them to scale across the country.
March 1, 2020
Law 360 reports on an upwards trend in the number of firms with pro bono partners. A report released in February by the Pro Bono Institute, DLA Piper, the Australian Pro Bono Centre, Pro Bono Institute in Washington DC, and the Thomas Reuters Foundation counts 66 such firms internationally, with the most in the United States. Survey respondents did not indicate that pro bono partner positions proliferated in step with increasing pro bono work at firms; rather, having a pro bono partner is seen as a reflection of a firm’s values, reputation, and commitment to pro bono work, as well as the advantages pro bono partners bring with respect to risk management.
February 28, 2020
Law.com reports on the work of the University of Georgia students and professors who offer assistance to pro se litigants in court. The creation of the New Media Institute serves to help Athens-area residents who cannot afford an attorney with the necessary information to navigate the court system. This aid impacts the entire court system, as self-representing citizens without extensive legal knowledge lead to court inefficiencies and elongated procedures. Furthermore, these litigants often lose their cases because they do not have the legal repertoire to represent themselves effectively.
February 28, 2020
Law.com reports on Senate Bill 415, sponsored by state Senator Steve Gooch and backed by Republicans in the Georgia Senate. This bill would change civil law within Georgia, altering the information given to jurors in civil cases, which would impact the ability to pursue lawsuits against landowners for third party injuries. Senate Bill 415 would also affect when someone can bring forth a product liability lawsuit. While Gooch claims that this bill will benefit Georgia’s reputation by preventing lawsuit abuse, opponents argue that it will change fifteen areas of law and have negative repercussions for the entire state.
February 18, 2020
Law 360 reports on the passage of Resolution 115 by the American Bar Association. The resolution explores regulatory innovations to improve access to affordable and quality legal services. There was opposition by several state bars to nonlawyers practicing law. While advocates believe it addresses the lack of accessibility to justice, opponents believe that outside interests with monetary motivations conflict with legal ethics. However, various state bars still praise the resolution as a necessary step forward to help low-income people with civil matters. The Conference of Chief Justices also passed a resolution to consider regulatory fixes. There is an industry shift towards re-regulation to increase access to justice.
February 17, 2020
Law.com reports on the unanimous passage of Resolution 115 by the American Bar Association’s House of Delegates. The resolution encourages regulatory and cost-effective innovations to improve access to legal services. Henry Greenberg, the president of the New York State Bar Association, told delegates that pro bono is not doing enough work to increase access to legal services. However, leaders of several state bars opposed the resolution, stating that it could lead to outside investments of law firms or unauthorized practice of the law by nonlawyers. Following these public oppositions, sponsors of the resolutions made revisions to address concerns.
February 16, 2020
Bloomberg Law reports on an upcoming report from the Association of Professional Responsibility Lawyers (APRL) that will make concrete recommendations to encourage states to increase legal access. One anticipated suggestion includes changes to Rule 5.4, opening ownership of law firms to non-lawyers. The APRL report will also look at how often current firm ownership rules are violated by using data from three states (California, Utah, and Arizona) that have already experimented with rule changes, and the APRL report will address concerns from the ABA regarding lawyer independence and protection of consumers.
February 16, 2020
The Washington Post reports on U.S. District Judge William Alsup’s order to DoorDash to honor its own arbitration clause amidst a coordinated demand by more than 5,000 DoorDash employees for individual arbitration. When DoorDash refused to pay the $12 million in fees charged by the firm that handles its arbitration, DoorDash employees went to court to enforce the arbitration agreement. Though DoorDash argued that it had “no intention, nor the practical ability” of simultaneously proceeding with thousands of arbitrations, Alsup wrote that businesses imposing mandatory individual arbitration must accept the risks associated with workers pursuing “the remnant of procedural rights left to them”.
February 12, 2020
Bloomberg Law reports on Resolution 115 being debated within the American Bar Association. This resolution proposes changes to law firm ownership as well as utilizing “innovative approaches” for greater access to justice. The resolution, coming after proposed bar rule changes in multiple states like California and Arizona, addresses law firm ownership in a time where the “urgency to deliver legal services is becoming irresistible.” However, opponents argue this resolution may erode the law industry’s “critical values” and should not tamper with “centuries-old” legal traditions.
February 9, 2020
Law 360 reports on the extension of affordable legal services for domestic violence victims in Arizona, creating the “licensed legal advocate” as a new type of legal adviser. While attorneys are the only people allowed to give legal advice, this new program trains licensed legal advocates to provide guidance and to create courses of action for victims.
January 17, 2020
Forbes reports on how Artificial Intelligence (AI), big data, and online courts will change the legal system. Richard Susskind, an author writing on future legal practices, describes how automating old tasks and utilizing AI and technology will bring greater access to justice in the future. In the next decade, machines could work alongside attorneys as well as taking over some legal services entirely.
November 20, 2019
Law.com reports on nine Connecticut attorneys who are giving legal advice on Facebook, extending access to justice to those seeking quick legal advice. This new initiative attempts to expand access to legal services, with Facebook being easily accessible to those already registered.
October 24, 2019
The Legal Examiner reports on California’s new state law giving victims of childhood sexual abuse until age 40 to file a suit against attackers. Arizona, New York and New Jersey legislatures have followed in passing similar legislation, extending victim time window for filing civil suits. However, President Trump’s tax reform law makes settlements involving sexual harassment and abuse taxable, unlike traditional injury lawsuits.
October 18, 2019
Vox reports on the lack of legal services for migrants facing deportation under the Trump administration immigration policies. Courts created at the US-Mexico border to hear cases regarding migrants and deportation have a “lack of access to counsel and the limitations of video conferencing,” with opponents arguing that teleconferencing does not facilitate fair proceedings. Transparency within the processes of deportation and immigration and human rights violations are also cited as concerns.
October 6, 2019
Law 360 reports on the benefits of virtual legal aid, with states like Massachusetts developing online help centers that guide people through basic legal proceedings. Financial background of litigants typically impedes the hiring of attorneys, resulting in two same claims potentially facing different rulings. The proposal of “Virtual Court Service Centers” could potentially provide legal services to the financially disadvantaged, litigants who do not qualify for pro bono, or those who self-represent.
September 26, 2019
Above The Law reports on the gap in access to justice, specifically finding a lack of legal services are more of a problem for low-income Californians but the justice gap exists among all income spectrums. Low-income Californians cited uncertainty about legal issues and financial concerns as top reasons. The California bar recently announced $78 million in funding for legal services in the next year.
September 22, 2019
Law 360 reports on Illinois' exploration to become the sixth state to open up their state’s legal profession to nonlawyers. Some legal experts could see this as a "tipping point" to help solve the access to justice problem in America, where “86% of low-income Americans' civil legal needs are not being met.” Illinois’ actions would allow for attorney-client matchmaking services that pair lawyers looking for work and consumers looking for legal help. California, Utah, Arizona, New Mexico, Washington, and the District of Columbia all are either considering opening up the profession, or have already done it.
August 25, 2019
Law 360 reports on Cleveland being the most recent city in this country taking steps to provide a right to counsel for individuals facing evictions who are living with children and are below 100% of the federal poverty line. 1,200 cases would be impacted by this proposed legislation. The Legal Aid Society, one of the creators of this proposed legislation, recognizes the effects that losing a home can have on individuals’ ability to sustain a job, stay healthy, or send children to school. Other cities, like New York City, San Francisco, and Washington D.C., have already passed this legislation.
August 11, 2019
Law 360 reports on the legal aid cut for trafficking victims, arrested mostly for trafficking-related charges, by the Department of Justice. The budget, meant for expungement and vacating efforts to make housing, education, and employment more available to victims, was considered not an allowable cost. Proponents raised concerns that it would prevent access to legal services to those in need, while opponents argue that vacatur and expungement investments should go directly to the inaccessible social services for victims.
August 4, 2019
Law 360 reports on the sweeping set of proposals in California to redesign law practice. Some of these proposals include encouraging the development of technology and authorizing nonlawyers within hybrid entities to give legal advice to make justice more affordable and accessible.
June 30, 2019
Law 360 reports on the House budget approval of $550 million in funding for the Legal Services Corporation, one of the largest funders of legal aid services in the nation. Many find it critical to pass this budget resolution due to the fact that the White House has planned to eliminate the LSC since March.
June 18, 2019
Law 360 reports on the NY Bar Association's push to provide legal counsel to those in immigrant proceedings in New York. In the NYBSA’s report, detained immigrants with pending hearings who have attorneys prevail 48% of the time, as opposed to 4% without legal counsel. This proposal came as a response to the changes of federal immigration policy and the way immigration agencies, like ICE and courts, operate.
May 19, 2019
Law 360 reports on the rejection of a cy pres proposal by the Florida Supreme Court. The court did not provide a reason for the decision, with potential conflict of interest concerns surrounding the state bar’s eligibility for the funds. Proponents of the rejection argue that this was an attempt to funnel money to the Florida Bar, and question its constitutionality.
May 12, 2019
Law 360 reports on the limited legal resources that rural American communities face, like those in Alaska. One of Alaska’s big access to justice problems is reaching most of the state's 229 federally recognized Native American tribes, which require transportation by plane, boat or snowmobile. Rural cities make up 20% of the U.S. population but only 2% of U.S. lawyers. Legal professionals and organizations suggest solutions like providing legal services through libraries, lawyers relocating to rural areas, and non-lawyers offering basic legal services.
May 5, 2019
Law 360 reports on an international Task Force for Justice report that states 5.1 billion people worldwide lack meaningful access to justice. The report also found that 4.5 billion people are blocked from legal protections. Countries could also lose up to 3% of their gross domestic product due to the cost of unequal access to justice. The Justice for All report lays out a plan that focuses on "reaching the furthest behind first" and using people-centered data and evidence to steer reform.
April 29, 2019
Law 360 reports on how two Boston-area district attorneys filed a federal lawsuit challenging ICE’s policy of arresting unauthorized immigrants at courthouses. The two DAs were joined by public defenders and community groups in the suit. The plaintiffs claim that ICE’s policy undermines the work of the justice system and doesn’t allow prosecutors to do their job. The suit marks the first time a DA's office has sued the federal government over courthouse immigration arrests, according to Lawyers for Civil Rights.
April 29, 2019
Corporate Counsel reports on how the general counsel of Twitter, Hewlett Packard Enterprise, Amazon, Ford Motor Co. and 258 other major companies have requested that Congress increase federal funding for the Legal Services Corporation. The corporate request was in response to a White House proposal to defund the Legal Services Corporation in the Administration’s 2020 budget proposal.
April 21, 2019
Law 360 reports on the New York state court system’s recent bar on U.S. Immigration and Customs Enforcement (ICE) administrative arrests on its property.
April 14, 2019
In her essay "All Rise for Civil Justice," Martha Bergmark of Voices for Civil Justice reminds us that civil justice reform has to start with compelling human stories. She’s right. Building a movement requires drawing in the care and effort of those who previously had not seen the problem.
March 31, 2019
Law 360 reports on a study by two University of Michigan law professors, Sonja Starr and J.J. Prescott, that reveals only 6.5 percent of people eligible to clear their criminal records actually do so via Michigan’s expungement laws. For those eligible, the study details how expungement requires “administrative burdens” that “may be simply impossible, or at least difficult enough to be strongly discouraging.” In the study’s conclusion, the authors listed suggestions to increase access to expungement benefits for the people who qualify like automation, elimination of fees and increased online services.
March 8, 2019
NPR reports on a Court ruling that gives access for asylum-speakers to appeal fast-track deportations. The U.S. Court of Appeals for the 9th circuit ruled that the 1996 law that sharply limited the ability of asylum-seekers to access U.S. courts if they want to challenge decisions of an asylum officer and immigration judge is unconstitutional. The ruling could give thousands of asylum-seekers the right to seek review in the federal court system.
March 3, 2019
Law 360 reports on a court loss regarding the Brooklyn detention complex in the case New York Federal Defenders v. Federal Bureau of Prisons. A New York federal judge declined to renew an order mandating strict access to attorneys, finding the lawyers who sued over the ordeal lack standing to bring Sixth Amendment claims. U.S. District Judge Margo K. Brodie said that "I think the government is right, that as to the Sixth Amendment, it is the right of the accused and not the lawyers. While the inmates have the right to bring this particular claim, the Federal Defenders don't." Deirdre von Dornum, the attorney-in-charge of the Federal Defenders, told reporters after the hearing they plan to add inmates as plaintiffs to cure the standing issue.
March 1, 2019
Oregon Public Broadcasting reports on a new study by Oregon’s Access to Justice Coalition that showed Oregon is meeting only about 16 percent of the need for low-income civil legal aid services. The study revealed that about 84% of the people surveyed who had legal issues did not receive legal help of any kind. This is due to a lack of funding for legal aid offices and attorneys, Bill Penn, assistant director of the Oregon Law Foundation, said. With its current funding level, Oregon only has two attorneys for every 14,000 low-income individuals who qualify for services, but if it was properly funded then it should be two attorneys for every 10,000 people.
February 10, 2019
Law 360 reports on a court victory providing access to attorneys for 1,600 peopled detained in a Brooklyn detention complex. U.S. District Judge LaShann DeArcy Hall, who issued the order, noted that the conditions of confinement raised constitutional concerns. Attorneys had alleged that the lack of heat and power inside in the complex had given rise to a "humanitarian crisis.”
February 10, 2019
Law 360 summarize three court cases that could boost immigrants’ access to counsel. The first case focuses on improving conditions in rural Georgia and Louisiana detention centers that inhibit access to counsel for clients by obtaining access to more interpreters and providing sufficient space for attorney-client meetings and teleconferencing. The second case focuses specifically on insufficient telephone access at facilities in southern California that restrict access to legal representation. The third case focuses on the issue of whether immigrant children have a right to appointed counsel before the Ninth Circuit.
January 31, 2019
A Slate article reports that anyone going before a judge in Pennsylvania courts has their access to justice severely risked due to the increased presence of ICE agents in courts there. According to Slate, probation officers and judges tend to help the agency with “identifying undocumented individuals whose immigration status has nothing to do with their claims before the court.”
January 27, 2019
Law 360 discusses the lack of lawyers and legal aid in the rural United States, which is continually getting worse. Research by Lisa Pruitt, Professor of Law at U.C. Davis, documents the limited access to legal services in rural areas. Similarly, the Legal Services Corporation’s 2017 Access to Justice Report found that “low-income, rural residents received inadequate or no professional help for 86 percent of their civil legal problems.”
October 28, 2018
Law 360 reports the challenges that legal funder, Legal Service Corporation (LSC) faces under the Trump Administration. In proposed budgets for fiscal years 2018 and 2019, the Trump administration said Congress should "end the one-size-fits-all model of providing legal services through a single federal grant program" because state and local governments "better understand the needs of their communities."
October 28, 2018
Law 360 reports on a pending U.S. Supreme Court case regarding cy pres deals. Cy pres deals are when class action settlements allocate a portion of the funds to nonprofits when the parties and the judge have agreed the money can't be feasibly distributed to class member. But a challenge to an $8.5 million privacy settlement that has Google LLC paying millions to third parties — and nothing to class members — opens the door for the Supreme Court to issue a broad ruling that could wipe out this significant source of funding for legal aid.
December 5, 2017
The Hartford Courant reports on a new study showing that the provision of free legal services for veterans is correlated with improved veteran health. The study showed that the more legal services veterans received, the better they fared, experiencing reduced symptoms of Post-Traumatic Stress Disorder (PTSD) and psychosis, spending less money on abused substances and having better housing situations. Veteran mental health improved even if they lost the case.
December 15, 2016
A new American Bar Foundation Study reveals the efficacy of a new solution to the growing access to justice crisis in American civil courts. The study looks at a program in Brooklyn Housing Court that provides “navigators,” trained and supervised individuals without full, formal legal training, to unrepresented litigants in New York City’s civil courts. The study shows that the outcome of most eviction cases depends less on the merits of the case and more on whether tenants have access to legal help. Litigants assisted by navigators were 56 percent more likely than unassisted litigants to say they were able to tell their side of the story in court proceedings.
February 3, 2020
The Washington Post reports on the 10 cents per page fee for pulling up court records online, creating an economic barrier for those attempting to view public records. A lawsuit in Washington is challenging the government’s paywall for online documents, with PACER (Public Access to Court Electronic records) potentially allowing quicker and cheaper access to legal documents. The District Court’s decision found that “the fees exceeded the amount allowed by Congress but affirmed that the judiciary could use the money for certain non-PACER expenses.”
February 5, 2019
A New York Times article reports on the fight against a 10 cent per page fee for electronic access to the federal judiciary’s public record court filings. A class action lawsuit filed in 2016 by the National Veterans Legal Services Program and two other nonprofit groups argues that the “fees inhibit public understanding of the courts and thwart equal access to justice, erecting a financial barrier that many ordinary citizens are unable to clear.” The case is now on appeal to the United States Court of Appeals for the Federal Circuit.
Other Civil Justice News
November 20, 2020
Bloomberg Law reports on courts across the U.S. suspending in-person operations due to rising COVID-19 cases, with many jury trials being canceled, postponed, or moved to a remote format. Courtrooms are often not large enough to accommodate the social distancing of jurors, and in numerous states such as Texas, Arkansas, and Illinois, jury trials were suspended after multiple jurors tested positive for COVID-19. For several state court judges and administrators, their experiences during the first wave of COVID-19 in March helped them prepare for the current rise in cases, and they hope to adapt and innovate to ensure access to justice during these difficult times. According to Illinois Supreme Court Justice Anne Burke, "Justice isn't a place, it's a service, and you can't shut down justice."
November 1, 2020
Law.com reports on the challenges lawyers face during virtual trials, which are being held remotely due to the COVID-19 pandemic and present unique difficulties concerning access to technology and jury selection. Preparing for a virtual trial requires lawyers and jurors to adapt to using technology they may not be familiar with. These trials pose added obstacles such as internet connectivity problems, technical difficulties, and having to remotely screen-share exhibits. Moreover, virtual jury trials are often less accessible and representative, since jury pools are limited to those with access to adequate technology.
October 16, 2020
Law.com reports on the Clio Cloud Conference’s "Future of Virtual Courts" panel discussion held on October 15th. Panelists discussed the benefits of virtual court proceedings and how online hearings, which help reduce access-to-justice disparities, may continue even after the COVID-19 pandemic eventually ends. According to panelist and Michigan Supreme Court Chief Justice Bridget McCormack, "There are some fairness metrics that online hearings are far and away doing better than courthouse hearings." Virtual hearings and online courts have simplified pathways to justice for litigants who may feel overwhelmed by the legal system — especially for self-represented litigants, an online format is often less intimidating to navigate.
September 25, 2020
Law 360 reports on the California Judicial Council’s expansion of the use of video technologies in non-criminal proceedings. The CJC’s Information Advisory Technology Committee tasked a Remote Video Appearances Workstream with examining appearances via video conferencing and to make recommendations regarding state-wide expansion of such technologies. The workstream has received generally positive feedback from participants in mock hearings, but recommended refinement of exhibit sharing, a rule amendment allowing video appearances in family law proceedings, and exploring this type of appearance in criminal proceedings. The past several months have seen 52% of respondents to a survey sent to trial courts using some kind of remote video conferencing, experiences which could be instructive for further use of such technologies.
September 20, 2020
Law 360 reports on the difficulties attorneys are facing during the COVID-19 pandemic in contacting potential clients who are survivors of natural disasters like hurricanes and wildfires. Due to the pandemic, response efforts have to be conducted from a distance, making it difficult for FEMA and other organizations to set up disaster recovery centers and to advertise legal assistance for issues like landlord-tenant disputes and benefits claims. The United States is also on track to surpass declared disasters, counting 119 non-COVID disasters and 157 COVID-19-related disasters, causing already sparse relief resources to be spread particularly thin in 2020.
September 13, 2020
Law 360 reports on serious design problems with Utah’s online dispute resolution pilot program. An independent evaluator, the Innovation for Justice Program at the University of Arizona, recommends that the state improve document sharing, provide more guidance on the platform, and generally make the tools more user friendly ahead of its statewide launch. Users report frustration with finding information about ODR and completing registration, but are open to more online courts in the future. Utah, the first state to build their own program rather than purchase it, is willing and able to make the suggested changes in order to facilitate more positive resolutions to small claims cases.
September 8, 2020
StreetInsider.Com reports on the decision by Rocket Lawyer, a UK-based digital legal services platform, to partner with a Utah pilot program. The pilot, approved by the Utah Supreme Court’s Office of Legal Services Innovation, includes regulatory changes that would include low-cost or free services for businesses and individuals in distress. Rocket Lawyer is uniquely positioned to contribute to this challenge to the traditional law firm model, having provided online legal help to UK customers in an affordable and scalable manner. Taking note of the increasing need for digital solutions during the COVID-19 pandemic, Arizona and other states are looking to follow suit.
August 16, 2020
Law 360 reports on renewed calls for right to counsel legislation in eviction proceedings amidst the difficulties of the COVID-19 pandemic. Some individual cities like San Francisco, Philadelphia, New York City, Newark, and Cleveland gave evictees right to counsel prior to the pandemic. However, new socially distant court procedures and disparities in technological access have added to the difficulties facing tenants navigating the court system, leading many to call for nationwide right to counsel legislation as well as a moratorium on evictions through the duration of the pandemic.
August 14, 2020
Bloomberg Law reports on calls from an ethics panel at a meeting of the Association of Professional Responsibility Lawyers to relax rules on who can provide legal services. According to the Legal Services Corporation, 86% of civil legal needs reported by low-income Americans in 2017 received either “inadequate or no legal help,” a fact that has been exasperated by the effects of the COVID-19 pandemic. Utah’s Supreme Court in early August authorized a pilot program to oversee the provision of legal services by non-traditional providers and California, Illinois, and Arizona are considering similar steps. One of the panelists, Utah Supreme Court Judge Deno Himonas, notes that civil justice is “biased” and it is “insane” to think that volunteerism alone, without new tools, will fill the justice gap.
July 30, 2020
A bill that would allow Americans to sue China in federal court for damages related to consequences of the COVID-19 pandemic--the Civil Justice for Victims of COVID Act-- has passed in the Senate Judiciary Committee. South Carolina Senator Lindsay Graham and other proponents of the bill argue that the Chinese Communist Party’s “negligence” in restricting travel out of China and “deception” of the world about the nature of the virus directly led to the suffering of American individuals and their businesses. The bill is modeled after the Justice Against Sponsors of Terrorism Act, which allowed Americans to file suit against Saudi Arabian officials accused of involvement in the 9/11 terrorist attacks.
July 29, 2020
The Brennan Center for Justice reports on the New York State Legislature’s passage of the Protect our Courts Act, which would prohibit ICE from arresting any individual entering or leaving a court proceeding unless the officer has a judicial warrant. Such arrests have increased ten-fold during the Trump administration and surveys demonstrate that, as a result, undocumented individuals are afraid to come to court and are hesitating to pursue cases or seek court-ordered protections. Judges and law enforcement officials have discussed the difficulties posed to proceedings by such arrests, but ICE officials argue they are necessary due to sanctuary cities’ noncompliance with federal immigration enforcement. Several states, such as Washington, California, Oregon, and New Jersey, have passed similar laws and the Biden-Sanders Unity Task Force has recommended that the Democratic Party’s 2020 platform include a pledge to curb actions at courthouses that “deter access to justice”.
July 24, 2020
Law 360 reports on the anticipated increase in the need for legal aid in a number of civil law issues due to the COVID-19 pandemic. The Legal Services Corp, which is the nation’s largest funder of legal aid, has reported an 18% increase in the number of clients eligible for its services. Although Kentucky Legal Aid reported a 3, 471% increase in the number of unemployment claims filed from last year, survey responses show that evictions are the most common type of case for providers, despite most states instituting moratoriums on evictions. Though LSC received $100 million in aid from the federal government, 78% of its grantees expect that the money will not be enough to carry them through the pandemic. In order to cope with increasing demand and anticipated cuts in state funding, providers are updating online resources and hotlines for in-demand services.
April 5, 2020
Law 360 reports on reflections on the COVID-19 pandemic from ASU Law professor and founder of the access to justice research initiative at the American Bar Association, Rebecca Sandefur. Sandefur notes that the pandemic will not only increase the number of people experiencing civil justice issues as a consequence of unemployment, but that these individuals will also experience difficulties with “understanding, accessing, and using” relief programs. Additionally, deaths as a result of the virus will create their own justice issues relating to inheritance, probate, and more. However, Sandefur sees the crisis as a catalyst for key justice reforms, citing Utah, which is opening up re-regulation for new types of legal services, as an example.
March 29, 2020
Law 360 reports on the American Pro Bono Counsel’s efforts to respond to an increasing number of unmet legal needs during the COVID-19 pandemic. Rebecca Greenhalgh and Steve Schulman, co-Presidents of APBCo, suggest that firms and attorneys looking to meet this justice gap should connect with other attorneys via platforms like Chatter to discuss best practices for pro bono work during a pandemic, to identify and coordinate remote work opportunities, and plan for the pandemic’s aftermath. Schulman and Greenhalgh recognize that, while this type of collaboration and communication between pro bono attorneys has been beneficial to the cause, existing pro bono work cannot fill the justice gap alone. They urge firms without pro bono counsel to fill this position and encourage other attorneys to seek opportunities through informal initiatives and bar associations.
March 26, 2020
Law 360 reports on reflections on adapting to the COVID-19 pandemic from Erwin Chemerinsky, dean of Berkeley School of Law at the University of California. Dean Chemerinsky notes that although the law school had to rapidly transition to entirely virtual instruction, the transition was notably smooth, garnering students’ praise for their professors’ efforts. Though the faculty has been active in proposing best practices for distance learning, Dean Chemerinsky says that online instruction is no substitute for on-campus interaction. It is one of the reasons why, in conjunction with a concern for the health and safety of students and faculty, that Dean Chemerinsky decided to shift all grading to Credit/No Credit for the Spring 2020 semester.
March 12, 2020
Lawdragon reports on the 41 lawyers inducted to Lawdragon’s permanent Hall of Fame in 2020. The percentage of women inductees this year surpasses 40 percent and includes Senator Elizabeth Warren and Anita Hill. Other notable inductees are celebrated academics, such as UC Berkeley School of Law’s Erwin Chemerinsky, public interest attorneys, such as Connie Rice, David Lash and Patti Goldman, and many of the nation’s most renowned attorneys, like David Boies, Theodore Wells and Ty Cobb.
February 3, 2020
Forbes reports on the criticisms of the American legal system by Judy Perry Martinez, president of the American Bar Association, urging the legal profession to support reform. Martinez addresses the lack of access to justice for low-income Americans having no legal services for over 86% of their civil legal problems. Protectionism is another major issue Martinez acknowledges, arguing that “the ultimate purpose of regulation is not to protect the livelihoods of lawyers but to advance the administration of justice.”
November 6, 2019
NY Times reports on a federal ruling that the government must provide mental health services to migrants who have experienced psychological harm as a result of family separation at the border. Judge Kronstadt of the United States District Court in Los Angeles found that Trump’s zero-tolerance immigration policy has caused severe mental trauma to parents and children. Erwin Chemerinsky, founding chair of the Civil Justice Research Initiative, describes this as “truly groundbreaking,” stating that the government being responsible for inflicted trauma is something that he has not seen before.
September 20, 2019
Law.com reports on the use of emails to notify class members about a settlement. An FTC report found that email notices resulted in a median claims rate of 2% and a mean claims rate of 3%, far lower than the 10% weighted mean 16% median by traditional packets sent by mail. The report comes as the implementation of a new rule that specifies “electronic means, or other appropriate means” could be appropriate to fulfill a federal mandate to provide the “best notice that is practicable.” Lawyers saw this shift to email as a less expensive and more effective means of settlement notices.
May 22, 2019
In the early 1920's American businesses faced a legal crisis. The federal courts they relied on to resolve disputes and enforce contracts were overcrowded and otherwise a challenge to navigate
March 18, 2019
Last week, the Judicial Conference of the United States released new numbers on the federal district courts most in need of additional judges, and asked Congress to create 73 permanent judgeships.
February 21, 2019
The Hill reports that Google is ending its mandatory arbitration policy allowing its employees to sue the company in court over discrimination and harassment claims. The change will apply only to Google's full-time employees. Google also said it will no longer include mandatory arbitration clauses in legal agreements with temporary and contract workers.
February 14, 2019
The Associated Press reports on the new New York law that gives childhood sexual abuse victims more time to seek criminal charges or file lawsuits. The law known as the Child Victims Act loosens one of the nation's tightest statutes of limitations on molestation cases. Victims now have until age 55 to file civil lawsuits and seek criminal charges until age 28, as opposed to 23 under the old statute.
January 24, 2019
Fair Warning reports on the dueling claims of the American Tort Reform Association (ATRA) and the American Association for Justice (AAJ) regarding the ‘Judicial Hellholes’ report. Victor Schwartz, the creator of this term and the ATRA’s longtime general counsel, said the report “is about courts where defendants can’t get a fair trial.” On the other side, the AAJ said that “the real hellhole is a world in which an unsuspecting consumer is harmed, abused or defrauded by an unscrupulous corporation and has no recourse and no chance to prevent future wrongdoing.” Academic researchers generally say neither side of this divide deserves praise for objectivity.
January 6, 2019
Law 360 summarizes four access to justice cases to watch in 2019. These four cases address civil forfeiture, an immigrant child’s right to a fair hearing without a lawyer, cy pres awards, and double jeopardy. The Civil Justice Research Initiative submitted a legal brief in the cy pres case.
October 28, 2018
Law 360 reports that the MacArthur Foundation has awarded a ‘genius’ grant to a researcher in access to civil justice. University of Illinois sociologist Rebecca Sandefur was awarded the no-strings-attached $625,000 grant. Sandefur noted that federal grant money for research into the civil justice system dried up in the 1980s, and scholars focused instead on crime and criminal justice issues as they took priority in the national consciousness.
October 24, 2017
The Wall Street Journal reports on how Congress just made it harder to sue the financial industry. Congress overturned a rule by an Obama-appointed financial regulator that would have made it easier for consumers to sue banks in groups. The overturned rule prevents companies from including in consumer contracts arbitration clause that blocks class-action lawsuits, though it doesn’t ban arbitration entirely.
June 28, 2017
Reuters reports on a new study by University of Connecticut law professors Alexandra Lahav and Peter Siegelman that show the winning rate for plaintiffs in civil litigation in federal courts declined drastically and steadily between 1985 and 1995, from about 70 percent to 30 percent. If plaintiffs had continued to prevail at 1985 rates across the 24 years the professors evaluated, they would have won 377,000 more cases than they actually did.
December 30, 2016
The Washington Post reports on research disputing top Republicans’ claim that frivolous lawsuits are driving up malpractice insurance premiums and forcing physicians out of business. Researchers and experts say that the nation’s medical malpractice insurance industry is running smoothly and has not been in crisis for more than a decade.
Anthony E. Davis and Anthony J. Sebok
Martha Mccluskey and Sidney Shapiro