Access to Justice and the Management of Expectations

For the last 25 years, there is one theme which has been echoed more than any other at judicial conferences and Bar Association meetings Federal, State and local, as well as strategic planning sessions conducted by every organized judicial and legal organization from Legal Aide, Law Schools, even the decisions of The Judicial Disabilities Commission. That theme is that lawyers and judges should always be working to increase access to justice. Indeed, it would likely constitute heresy to the profession to suggest otherwise.

This I will not do in this space or elsewhere. However, I hope that recognizing that the rhetoric and the actions taken to “increase access to justice” have created dramatically heightened, and at times unrealistic expectations among our citizens about the ability of courts and other public dispute resolution institutions to solve everyone’s problems is not viewed as an attack on that goal.  The goal is on balance a good one, worthy of our collective and individual attention and energy. That said, increasing access to justice will proceed more smoothly if we contemporaneously address and temper the enhanced expectations created by that effort honestly and forthrightly.

The results of this focus are very visible. The creation of The Family Divisions in Maryland’s Circuit Courts in the mid-90’s after years of advocacy was the first accomplishment. There followed other specialized courts including, but not limited to, Drug Courts, Mental Health Courts, Veterans Courts, and other adjunct and specialty Case Management Programs all coordinated by an “Office of Problem Solving Courts housed in the Administrative Offices of the Courts.”

The emergence and development of these “Problem Solving Courts” have proceeded on a parallel time track with our judiciary enabling, indeed encouraging, our citizens to represent themselves (self-represent) in court proceedings. These proceedings, at times, include arguably complex cases which might even challenge a lawyer’s knowledge and ability to manage. The judiciary has done this despite what former Court of Special Appeals Judge Theodore Bloom repeatedly in his opinions presciently used to refer to as “the perils of pro-se practice”. The Judiciary has done so by providing forms which can be used to commence, respond to and maintain litigation as well as presenting “How To” programs which attempt to instruct litigants, who are not legally trained, on how to handle their self-represented cases in court.

Also emerging, the last 25-30 years, and developing during roughly the same timeframe, was the comparatively new field and profession of ADR. All of these trends and developments have proceeded from the premise that a satisfactory resolution of peoples’ disputes, more often than not, should deal not just with the dispute itself, but with the underlying causes of the dispute.

The underlying cause of most disputes is usually more economic and psychological than it is legal or even factual except when the psychology and/or /the economics drives the law and the facts. The enhanced expectation that not only will our citizens’ disputes be resolved, but the underlying causes of those disputes will be addressed is one that is evolving among all classes of disputants and litigants in our courts as well as in the halls of our administrative agencies, ADR Conference Rooms, and even in our legislatures.

Without question, these inflated expectations are a by-product to a certain extent of our focus on providing greater “access to justice” to individuals and institutions who do not completely understand and accept the constitutional statutory and most importantly practical limitations of our judicial branch of government. It also results from the hue and cry from all segments of society to reduce the time and costs of dispute resolution generally and litigation particularly both in the short and long term.

The result of those enhanced expectations that disputes should not just be resolved, but that they should be resolved in a manner that economically and efficiently addresses their cause so that they will not recur is that the public and private institutions including law firms and courts that have been developed in our society to assist people in resolving their disputes are being forced to dramatically change their business models and work processes to accommodate these enhanced expectations.

That process is ongoing and far from perfected or even complete. Nor is progress uniform even from country to country, state to state or even county to county in our own state of Maryland. Individuals and institutions including judges, clerks, administrators, and regulators in our justice system have not uniformly adapted to their changing roles particularly where litigants are self-represented, and those roles are, at best, not clear in certain situations. That has recently been exhibited in Judicial Disabilities Commission cases among others.

Finally, new methods of dispute resolution are emerging and increasingly being utilized by parties including many who could still afford to pay for full blown litigation or arbitration but choose not to. The Judiciary will soon have to determine whether they will offer these arguably more efficient and economical dispute resolution techniques through qualified and trained practitioners or leave them strictly to the private ADR sector which is already embracing them. More on what those techniques are and how to decide if they can work for you and your client in my next column.