The New Normal
How can we apply New Normal principles to increase access to justice?
Posted May 8, 2014 12:14 PM CDT
By Paul Lippe
Before law school, I worked for Daniel Patrick Moynihan, the Democratic senator from New York.
That job exposed me to a lot of interesting experiences, none perhaps more so than in the winter of 1980-1981, after Ronald Reagan defeated Jimmy Carter and took office as President.
The initial days of the Reagan Administration were defined by the new federal budget, which had been prepared by David Stockman. Moynihan was on the Senate Budget Committee and had been Stockman’s former boss, so he had more than a passing interest in the new budget, which was clearly intended to reset the direction of the federal government in a much more conservative (for Stockman, perhaps, libertarian) direction.
In the general spirit of Washington, the first draft of Stockman’s budget, which had been leaked to the New York Times, was then leaked by the New York Times to me as Moynihan’s staffer. The very first and most striking Stockman cut in the budget was to the Legal Services Corp., which as I recall had been budgeted at $330 million and was to be cut to near zero. (With some resistance from the Democrats, the LSC budget ended up going from $320 million in 1981 to $241 million in 1982—probably one of the most severe cuts of any agency.
In the intervening decades, government-subsidized legal services, even constitutionally mandated criminal defense, has always been underfunded, and it’s hard to imagine that changing anytime soon. Indeed, as a result of fiscal 2013 federal budget cuts, the federal defender services account—the one that pays for public defenders in the federal courts who fulfill the mandate of the Sixth Amendment and the Criminal Justice Act for the appointment of counsel for criminal defendants who lack the financial resources to hire an attorney—was cut by more than $50 million. Defender staff was downsized 6 percent, and those not laid off were furloughed for more than 12,500 furlough days.
Lawyers who are serious about access to justice should start figuring out how to dramatically improve output and quality with the resources we have, applying the kinds of approaches we’ve been talking about in this space for a long time (my often lonely interest as a Democrat has always been how government gets more done with the resources it has, rather than instinctively spending more).
So what would it look like to design better access to justice, especially in civil cases?
• Simplify the interface. I’m all for the independence and majesty of the judiciary, but it does seem like an awfully cumbersome process for most people to interact with. I’m sure many far greater minds than mine have been working on this problem, but as long as legal process has a maximally complicated interface, then improving access to justice will be extraordinarily expensive.
• Be clear on what lawyers do. Clearly, a lot of what lawyers do can be done by nonlawyers (e.g., find information). To maximize access to justice, we need teams of complementary skills, just as medicine has evolved into complementary teams, not just physicians.
• Be clear on what drives quality and outcomes. In talking to someone who does a lot of housing court cases, she told me her No. 1 issue is clients not showing up to scheduled hearings because of the difficulty of getting time off from work. If that’s what drives quality, then we should design systems that ensure people can show up. Let’s measure what outcomes are and what drives them in a rigorous feedback system.
• Avoid reinventing the wheel. Most legal analysis is fairly repetitive, as is most work product. How can that be shared across teams? Clearly technologies (document storage, networks, playbooks, document assembly) can play a role here.
The great irony of course that the primary people focused on scaling service delivery now are in-house lawyers and “legal rebels.” We need them to join forces with the people who are really passionate about access to justice to find ways to scale. I have no doubt that the leaders in the access to justice world either have designed or could quickly design approaches 100 times better than what I’ve laid out here, and that they have been trying to apply new approaches in all settings, from refugee assistance to mortgage modification. Legal reasoning and lawyer intent are great, but by themselves they don’t address problems of scale.
This isn’t easy in the world of pro bono, where many teams are ad hoc, changing and voluntary, but that’s precisely why we need law school clinics (like medical school, apologies for my refrain here) to help create networks and find ways to scale, creating 21st-century practice models.
The Silicon Valley world where I’ve spent most of my career is driven by Moore’s law, which for the last 40 years has meant an ongoing exponential increase in chip functionality.
With that increasing capacity comes an expectation of recurring paradigm shifts—changes in the way work get done.
Law and the world of access to justice has been largely disconnected from that norm—but now we need to integrate Moore’s law thinking with the best of the legal culture if we're going to fulfill our aspirations around access to justice.
Paul Lippe is the CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering.