“We Are the People We’ve Been Waiting For,”
as June Jordan reminds each of us in her Poem
South African Women.
That the courts and the justice system are caught in a
perfect storm of circumstances there can be no doubt. I am confident, however,
that together we can steer ourselves clear and end up smarter and stronger for
the experience. Each one of us must accept the challenge and continue to
volunteer time and talents to a greater degree.
In the face of Gov. Deval Patrick’s proposed budget not
granting adequate funding for our court system, the Massachusetts Bar
Association will work diligently to seek level fiscal year 2010 funding for the
courts. Even level court funding, however, will not meet the unmet civil legal
needs of low-income citizens, especially given the catastrophic losses in legal
services funding sources.
In considering what more the bar and bench can do to address
those needs, I revisited some crucial reports set forth by the bar and bench in
recent years. Those included the May 2003 Policy Implications of the
Massachusetts Legal Needs Survey; the Massachusetts Access to
Justice Commission’s June 2007 Barriers to Access to Justice in
Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court;
Massachusetts Trial Court Working Groups’ Recommendations to the Standing
Committee on Dispute Resolution September 2006; and the Supreme
Judicial Court Steering Committee on Self-Represented Litigants’ November 2008
report entitled Addressing the Needs of
Self-Represented Litigants in Our Court. In concert with the review
of these important reports, the MBA surveyed its affiliated county bar
associations regarding their respective volunteer efforts with their area
courts that improve access to justice across the state.
From canvassing all the mentioned resources, the areas of
housing and family and consumer matters surfaced as needing immediate
According to the Policy Implications of the
Massachusetts Legal Needs Survey, housing problems account for the
highest rate of unmet needs. These include violations of housing codes, housing
discrimination, eviction threats and other serious disagreements with
landlords, shortage of public housing (Section 8 housing, landlords’ refusal to
accept Section 8 vouchers and unfair denial of public housing) and foreclosure.
According to the Barriers to Access to Justice in
Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court,
the Housing Court’s Lawyer for the Day Program in coordination with the Boston
Bar Association effectively addresses housing problems. The Volunteer Lawyers
Project and the Greater Boston Legal Services train volunteer lawyers to sit at
separate tables to advise landlords and tenants of their respective rights.
Where one party is unrepresented, volunteer lawyers will attempt to mediate the
dispute. A favorable Housing Court standing order does not commit the lawyer to
the case, should the mediation fail.
In the Barriers to Access to Justice in
Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court,
Samuel “Sandy” B. Moskowitz, a participant in the Boston Housing Court’s Lawyer
for the Day and an Adams Pro Bono Award recipient, is quoted: “There’s nothing
like the feeling when you’re walking back to your office in the morning after
having staffed that table and . . . realize that you helped somebody save their
home. These are experiences that a lot of people went to law school thinking
that they’re going to get in their careers, that as you move on through your
career that you lose and miss.”
With 10 county bar associations currently not having a
Housing Court Lawyer for the Day program, and with Plymouth being the only
court working on such a program, the BBA’s example presents an opportunity for
bench and bar leaders and legal services organizations to configure a process
to the demonstrable needs of people.
Massachusetts Access to Justice Commission has found that the use of
alternative dispute resolution in landlord/tenant conflicts has been used
successfully to avoid eviction proceedings. Among the county bar associations,
only Essex County offers a conciliation service in the Housing Court. Essex
conciliators work also in the District, Probate and Family and the Superior
Court. The Norfolk County Bar Association is developing a similar conciliation
Conciliation also offers potential benefit in Probate and
Family Court cases. Given the delicate, life-altering matters processed by
family law attorneys and decided by the court’s judges, the more legal services
and support from the bar, the better. An increased magnitude of volunteerism
from attorneys cannot be underestimated in this area of law.
I was pleased to learn that Barnstable County offers
conciliation in the District Court and has a “work-in-progress” for the Probate
and Family Court. Hampden and Hampshire counties currently offer conciliation
services in the Probate and Family Court. When polled, several county bar associations
expressed an interest in obtaining the eight-hour conciliation training
requirement in accordance with the Uniform Rules on Dispute Resolution; while a
few expressed a possible interest. The need for these highly efficient and
effective (and low-cost) programs cannot be understated given the circumstances
that threaten our system of justice, including the bulging pro
Addressing the Needs of
Self-Represented Litigants in Our Court reports that at least
100,000 litigants represent themselves in civil matters and that, depending
upon the county, as many as 80 percent of family cases involve at least one
self-represented party. The lack of representation is alarming considering what
is at stake in these cases — divorce, child support, custody, visitation,
domestic violence, restraining orders, etc. According to the SJC Steering
Committee on Self-Represented Litigants, lack of financial resources is the
primary reason for the continued growth in self-representation.
Similar to the positive impacts realized in the Housing
Court, the expansion of Lawyer for the Day programs in Family Court can help
ease the strain these cases put on dwindling court resources, as recommended in
to Access to Justice in Massachusetts: A Report, with Recommendations, to the
Supreme Judicial Court. At present, nine county bar associations
either run or coordinate Family Court Lawyer for the Day programs. All of these
programs would welcome the addition of more well-trained lawyers who are
willing to volunteer their time and talents. Essex County’s example seems to be
an ideal model for other counties as it has had much success in addressing the
legal needs of citizens across all income levels.
Consumer issues compose the third area of extensive unmet
legal needs of low-income citizens. Like with housing and family-related cases,
bench-bar collaborations could play a key role in addressing today’s
consumer-related cases, when some case outcomes can result with a family’s
utilities being cut off. As noted in the Implications 2003
report, one quarter of low-income Massachusetts households reported legal needs
related to consumer problems, including 12 percent who reported an unmet
consumer problem. Barriers to Access to Justice in
Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court
expressed concerns about debt collection practices in the District Courts and
regarding lopsided small claims proceedings when only one party is represented.
Only the Essex County Bar Association offers consumers
conciliation services. Although there is no systemic, coordinated effort, ADR
services are sprinkled about the small claims sessions in District Courts
throughout Worcester County. With the October 2008 suspension of funding for
court-annexed ADR, the fate of community-based mediation programs across the
commonwealth hangs by the slimmest of threads. Given ADR’s successful niche in
District Court, lawyers from local and county bar associations could assume
this important service while acquiring lifelong skills that are readily
transferable to the practice of law.
While the conventional, and more adversarial litigation model
may be considered, the best for obtaining the “truth” in numerous cases, citizens
without the means to hire an attorney are looking for resolution achieved by
less confrontational means and are willing to accept adjustment over
adjudication. The Essex County conciliation and mediation programs and others
mentioned earlier reinforce that fact.
Some may say that lawyers already do enough pro
bono. Do more anyway. Some may say if we volunteer even more pro
bono, institutional change will never occur. Volunteer anyway. Some
may say that other professions do not do nearly as much as we do. Help anyway.
You’ll be thanked a thousand times over, and like “Sandy” Moskowitz, you’ll
walk with a lighter step, a smile on your face and the knowledge you’ve done
the right thing.