The relationship of face to face assistance with digital provision is one of the seven major themes identified below underlying current developments in the use of technology for access to justice. The recently published report on the structure of the English and Welsh courts written by Lord Justice Briggs raises with this issue. The report is unavoidably domestically focused but its content is internationally relevant. Lord Justice Briggs has travelled since his interim report and his final version is full of references to online developments, particularly in British Columbia and California .
At paragraph 6.117 , Lord Justice Briggs refers to the response to his interim report by the TLEF (‘I cannot improve upon the general summary [of the need for litigant assistance in person]’). Below is an extended extract from a visit that I made in January to provide the basis for that report. California courts’ self-help provision is genuinely impressive – albeit that its growth has been largely due to the absence of adequate civil legal aid. It shows how a jurisdiction might adapt to the absence of publicly funded lawyers if there are no resources for legal aid and illustrates how some continuing public funding is required if there is to be anything like adequate justice between parties.
The State of California has a population of 38 million in 58 separate administrative counties. The division of courts is (generally) that each county has a Superior Court (a confusing name because actually it is really an Inferior Court) with a right of appeal to the California Supreme Court (but which also has an original jurisdiction over some matters of relating to what we would call administrative law). The state’s courts have a long commitment to assistance for self represented litigants. I visited provision in Orange and Los Angeles County Superior Courts.
The Los Angeles centre is in a large room shared by court clerks. Around the central area of the room were spaces where group sessions can take place involving litigants facing common issues. The number of such classes is impressive. There were, for example, thirteen taking place on a random Wednesday in January 2016. The subjects vary from the general – e.g. trial preparation – to specific – e.g. marriage dissolution. Classes are running four and a half days a week. The vast majority of classes related to aspects of family breakdown and the dissolution of marriage. Orange County provided statistics for 2014. It assisted a total of 135,549 cases in the year. The majority of these were ‘walk ins’ though 1500 were judicial referrals (up around 20 per cent on the previous year). There were 8,287 reviews of documentation. Los Angeles had higher usage – registering around 300,000 annual ‘incidents of service’. The centre manager, Kathleen Dixon, explained that, in LA, they had been lucky to take over former library space. In a new court at Long Beach, the self-help centre had been built into the design of the court. In other places, space was more of an issue.
I saw the Los Angeles self help centre mid morning, just as the early rush was dying down: it opens at 8.30. The level of activity was, even so, high. A queue was still stretching back into the corridor from an enquiry desk when I left as lunchtime approached. Inside the room, JusticeCorps volunteers (see below) in distinctive blue shirts were still working with groups of people. Supervising attorneys were providing assistance. I could hear a lot of Spanish as well as English.
The self help provision began with a family law facilitator programme – enshrined in 1987 legislation – emanating from the Federal Government to improve services for child support. Not all States took up the money but California did. Lawyer Bonnie Rose Hough was hired to oversee implementation. The Chief Justice was supportive; pilot projects were successful; and the California legislature backed an expansion of the programme. The provision has involved both court staff, legal aid providers and pro bono assistance from the Bar. By 2000, the cost of self help was accepted as part of the court budget – with family law as the main need and eviction as the second priority. The model was of supervising attorneys who would be neutral as regards the parties, a small staff and supplementing volunteers. The Los Angeles centre has four staff attorneys on staff with two more on contract. There is some immediate advice but the majority of the work, certainly in LA, is done in classes (usually of between 4 and 16 people). The centres also deploy some document assembly software and are launching a program which will facilitate e-filing.
Much of the teaching is done by law students and volunteers provided through JusticeCorps, a part of the wider public service volunteering programme, AmeriCorps. The basic commitment for volunteers is for 300 hours a year but the centre has now started a full time programme that requires 1700 hours a year. It has 18 of such posts and, in total, 132 undergraduates and 14 graduates. The self help facility sees between 2 and 300 people a day. Kathleen Dixon, the head of the self help centre, said: ‘We are very proud of our programme. We supply the volunteers with shirts with a logo. That makes them become easily recognisable by staff and litigants. It helps to give them credibility. The judges love them. We have a day with the students shadowing judges. They are all formally sworn in and we have a graduating ceremony.’ The students are particularly handy at helping litigants to use computers.
Even with assistance through sources like Americorps, the cost of the self help centres is not cheap. The main grant for the LA centre is $1.9m a year and the family law facilitator grant is around $2.4m. The centres are established under Rule 10.960 of the California Rules of Court which states that:
(a) Scope and application
This rule applies to all court-based self-help centers whether the services provided by the center are managed by the court or by an entity other than the court.
(b) Purpose and core court function
Providing access to justice for self-represented litigants is a priority for California courts. The services provided by court self-help centers facilitate the timely and cost-effective processing of cases involving self-represented litigants and improve the delivery of justice to the public. Court programs, policies, and procedures designed to assist self-represented litigants and effectively manage cases involving self-represented litigants at all stages must be incorporated and budgeted as core court functions.
(c) Staffing
Court self-help centers provide assistance to self-represented litigants. A court self-help center must include an attorney and other qualified staff who provide information and education to self-represented litigants about the justice process, and who work within the court to provide for the effective management of cases involving self-represented litigants.
(d) Neutrality and availability
The information and education provided by court self-help centers must be neutral and unbiased, and services must be available to all sides of a case.
(e) Guidelines and procedures
The Advisory Committee on Providing Access and Fairness must recommend to the council updates to the Guidelines for the Operation of Self-Help Centers in California Trial Courts as needed …
(f) Budget and funding
A court must include in its annual budget funding necessary for operation of its self-help center. In analyzing and making recommendations on the allocation of funding for a court self-help center, Judicial Council staff will consider the degree to which individual courts have been successful in meeting the guidelines and procedures for the operation of the self-help center.
Guidelines set out the detail of how centres are to operate. These emphasise the need to provide services which are ‘competent, neutral and unbiased and that are designed to provide practical legal information to self-represented litigants’. Staff are instructed to avoid issues where a lawyer is involved and to make clear to litigants the restricted nature of the assistance that they can provide. Centres must be headed by an attorney. It is also enjoined that ‘the self help centre staff should be included in regular meetings with court administration, judicial officers and other operational staff to discuss administrative and general issues facing self-represented litigants’. Considerable attention clearly goes into both staying out of the way of attorneys and in avoidance of being partisan. ‘It is sometimes hard.’ says Kathleen Dixon. ’It is not easy but it can be done.’
The self-help centres, at least in Orange and Los Angeles counties, appear to have widespread support – from the judiciary, legislature and court administration. They seem also to have negotiated an amicable relationship with the Bar and politicians. The former Chief Justice Ronald M George, so respected by California’s legislature that they named part of the new Civil Centre after him, received this honour for being ‘a driving force behind myriad branchwide initiatives, including self-help programs’. Alan Carlson, head of the Orange County court administration, saw a strong business case for self help: ‘To me, it is good case management. Any self help that you can provide speeds the court process. A lot of courts cut self help when the cuts came [in 2008]. We expanded. It is cheaper to run a system with self help. You speed it up with people having the right papers. The advantage of having the provision within the court is the close liaison with court staff.’
The Briggs report will be major influence on developments in England and Wales: the Ministry of Justice is already moving into implementation. They are also likely to be influential internationally. Chapter 6 of his report includes a detailed analysis of the principles on which a small claims online court should be run. These are generally applicable. A summary and analysis of the proposals for an online court should appear next week.