European Small Claims Procedure – normative and positive dualism in access to justice

In 2009 the European Small Claims procedure was established by Regulation 861/2007. Easier and cheap access to justice for consumers and other parties in civil and commercial trans-border transactions was the main rationale behind the new device. A recently released empirical study (although methodologically not very robust!) illustrates well how intentions to provide more access to justice might be hindered by mundane but tangible barriers.

First, finding of the study is that the procedure is barely known among consumers but also courts and other judicial authorities. There is anecdotal evidence of claims being turned down because courts allegedly did not know about Regulation 861/2007 and the procedure.

Second, there is significant evidence that language, service of judgments and enforcement might rise as serious barriers. Many courts require all foreign documents officially translated. It is the claimant herself who has to manage through the complex rules and procedure of serving documents and enforcing court decisions of foreign courts. The report tells the example of a claimant who has obtained a favorable judgment, contacted a bailiff in the country of execution but never received a response.

Not surprisingly, there is lack of systematically collected data on the application of the procedure. Lastly, the report emphasizes on the fact that often the claimants do not have access to forms and templates as stipulated by Regulation 861/2007.

Several policy changes are recommended as a way to bridge the apparent discrepancy between the goals of the Regulation and its implementation. Common language, appointment of courts which are solely responsible for dealing with the small claims procedure and awareness campaigns are the three most salient options.

Read here the report on the application of the European Small Claims Procedure

Settlement mills – how good are they for access to justice?

Settlement mills are allegedly edgy law firms that process high volume – law value personal injury cases. In a recent paper, Nora Freeman Engstrom provides detailed account of the practices of settlement mills and discusses their pros and cons. Interestingly, one of the arguments in favor of the mills is that they might provide access to justice for tort victims who otherwise would not have been able to find their way through the personal injury maze.

To start with, the characteristics of settlement mills is that they target a niche of relatively low value “cut and dry” cases. Very few ‘mill’ cases ever go to trial – most get settled for some amount. This is where the settlement mills provide value. They thrive on the disadvantages of the traditional tort system – quick compensation; predictability, low transaction costs and reduced court congestion. All this advantages are achieved through economies of scale, specialism and increased shift of work towards non-legal staff.

Do settlement mills increase access to justice? According to Nora Freeman Engstrom that might be the case if one compares for the alternatives in the US legal market. Lawyers working on contingency fee basis is the most obvious alternative route to justice. However, contingency fee personal injury lawyers are notoriously picky. Studies have shown that risk mitigation strategies result in high volume of client refusals. Close to 2/3 of the clients are not signed due to meager profit prospects.

It is a different story with settlement mills. Almost everyone who comes with a claim is signed and most of the cases are processed. Indeed, the trade off is the amount and depth of work. But the point of Nora Freeman Engstrom is that most likely these victims would have otherwise done nothing. Another argument  supporting the thesis that settlement mills in a way expand access to justice is that they advertise aggressively. Many tort victims relegate their claims because they do not know what to do and where to seek support. TV and printed adds (and perhaps internet) bridge that gap and signpost people to paths to justice.  Yet another argument, well depicted in the paper, is that most clients receive something. Simply the modus operandi of settlement mills is that they squeeze perhaps not optimal but some compensation from insurers. Moreover, this compensation usually arrives rather quick – within two to eight months from the accident.

The paper does not juxtapose other options for tort victims which exist outside the US. For instance legal cost insurance in some European countries is a potent alternative. State funded compensation schemes can also be compared against the costs, processes and outcomes of the settlement mills. Using the TISCO Methodology for measuring the costs and quality of access to justice might provide interesting parallels.

Inevitably there are drawbacks in the practice of settlement mills. In a nutshell the paper identifies and discusses in detail the following risks:

– settlement mills’ “assembly line” approach deprives tort victims of in-depth, intimate, fact-intensive, truth-searching process that underlie traditional tort

– clients with serious injuries or high claims run serious risk to wind up undercompensated

– as most of settlement mills’ work is performed by non-lawyer personnel there are no ethical or professional standards and concerns and

– settlement mills tend to sell service which is priced as legal service but has little to do with the traditional understanding of legal services.

Read the full text of  Sunlight and Settlement Mills here

Access to Justice Research: Connecting Self-Representation to Civil Gideon

Do self-represented litigants fate better off than those who are represented. No, according to a 2010 article by Russel Engler (Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 Fordham Urban Law Journal). An extensive meta-analysis of emprirical studies of the outcomes achieved by pro-se litigants, Engler concludes that presence of a lawyer is an important factor when we analyse case outcomes. But there are other non-less important variables: substantive law, complexity of procedures, individual characteristics and practices of the judge, and the courts’ modus operandi.

Russel Engler also recognizes that a universal Civil Gideon (civil legal aid scheme) is not viable policy alternative. Therefore, the right to council is seen as a part of a broader Access to Justice strategy based on three points:

“(1) the expansion of the roles of the court system’s key players, such as judges, court-connected mediators and clerks, requiring them to assist unrepresented litigants as necessary to prevent forfeiture of important rights;

(2) the use of assistance programs, rigorously evaluated to identify which most effectively protect litigants from the forfeiture of rights; and

(3) the adoption of a civil right to counsel where the expansion of the roles of the key players and the assistance programs do not provide the necessary help to vulnerable litigants.”

Read Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed here.

Study finds that UK Family Drug & Alcohol Courts outperform regular courts

Researchers from Brunel University announced results from a study of the impact of a pilot Family Drug and Alcohol Court in London. Main objectives of the study are to assess the effectiveness, added value and costs of FDAC as compared to regular courts dealing with the challenges of parental substance misuse. Small samples of problem parents dealt with by FDAC is compared to a sample of individuals and families suffering from similar problems but subjected to regular court proceedings.

Parental drug and alcohol abuse is a complex social and legal problem which is often passed across generations. The traditional responses to the problem are plagued by  “poor child and parent outcomes; insufficient co-ordination between adult and children’s services; late intervention to protect children; delay in reaching decisions; and the soaring costs of proceedings, linked to the cost of expert evidence.” The individuals who comprised the two samples suffered from multiple and serious problems.

“High rates of domestic violence, mental health problems, criminal convictions, housing problems and a history of parents being in care. Parents in each sample had a long history of substance misuse The children had many difficulties as well as child protection needs. Emotional and behavioural problems affected a third of the FDAC children and half the comparison children, and a quarter of all children had physical health problems. A higher proportion of FDAC children were under five and were born withdrawing from drugs.”

The pilot FDAC courts focus on problem-solving and integrate the efforts of specialized judges, and care specialists. In practice FDAC works as  a multi-disciplinary team of practitioners. Lawyers have relatively limited role and are largely excluded from the proceedings. Not surprisingly one of the findings is that FDAC proceedings show lower level of conflict.

Despite the limitations the study finds conclusive support for the effectiveness of FDAC in several dimensions:

• Troubled parents receive quicker access to effective services addressing the full range of problems resulting from their substance abuse. Most importantly – parents treated by FDAC received more help than the parents from the comparison sample;
• FDAC coordinated the access of the substance abuse parents to multiple sources of help and coordinated the provision of services;
• “FDAC assessments uncovered more unmet needs in relation to substance misuse, domestic violence and maternal mental health than had been identified by the local authority in the documents accompanying the application for care proceedings”;
• “A higher proportion of FDAC than comparison parents had ceased misusing substances by the end of proceedings”;
• More FDAC parents were reunited with their children;
• Although procedural duration does not differ time is allocated in a more constructive way.

Read the executive summary of the study on the Family Drug & Alcohol Courts here

UK: legal needs of disadvantaged groups

Rosaline Sullivan of the Legal Services Board conducted a literature review of the legal needs of disadvantaged groups. Groups at a disadvantage are “low income consumers in comparison to high income consumers; adults with mental health problems; adults with long-standing ill-health and disability;  ethnic minorities; refugees and asylum seekers; the elderly; young people; lone parents and prisoners.”

The review reports that incidence of justiciable problems varies according to income but there is no positive correlation between income and incidence of legal problems. People with exceptionally low income and those with high income experience more problems. There is difference, however, in the types of problems. Rich experience more consumer problems whereas the poor experience more problems with welfare benefits. Knowledge of legal rights is reported to be positively correlated with income – 68,9% of the low income respondents report that they do not know their legal rights versus only 54,6% of the respondents from the highest income bracket. Consequently, those with lower income were more likely to do nothing as response to a legal problem.

Read the literature review if the legal needs of groups at disadvantage here

Access to justice in Europe: an overview of challenges and opportunities

A recent report of the European Union Agency for Fundamental Rights makes a comparative inquiry of access to judicial and quasi-judicial mechanisms in the area of non-discrimination. Broadly the report covers subject matters regulated in a number of EU legislative acts, namely Racial Equality Directive, Gender Equality Directive, Gender Goods and Services Directive and Employment Equality Directive. Three levels of analysis are intertwinned in the report – international (European Convention on Human Rights), EU and the 27 member states.

Bellow is a summary of the main findings of the report:

• many EU Member States provide victims of discrimination with alternative non-judicial routes through which they can obtain redress;
• Legal aid is generally available for a party to proceedings in the area of non-discrimination law in all
  EU Member States through the application of ‘means’ or ‘means plus merits’ tests. Nevertheless, a greater allocation of resources appears to be needed;
• Financial compensation is the primary means of compensating victims of discrimination in all 27 EU Member States. In the majority of EU Member States, furthermore, such financial compensation is supplemented by other nonfinancial forms of reparation (such as reinstatement in the case of dismissal from employment that was
  discriminatory).

Read the whole text of Access to justice in Europe: an overview of challenges and opportunities here

Croatia: study of the implementation of the Legal Aid Act

Since 2009 Croatia has a Legal Aid Act which extend the state funded legal aid to a number of civil and administrative matters. Unlike other countries, Croatia preferred a dual system in which criminal legal aid is regulated by the Code of criminal procedures and the non-criminal advice and representation is regulated by the 2009 LLA but also in specialized laws. Pursuant to LLA the Croatian citizens and residents can request state-funded legal assistance in case they experience one of the broadly defined categories – i.e. personal status, employment disputes, social benefits, housing etc.

The limitation of the scope of legal problem covered by LLA has been criticized in a recent assessment of the implementation of the law.  In the first year of the application of LAA half of the requests for legal assistances concerned family matters, followed by housing and means for work (13%), enforcemen (12%), and domestic violence (5%). Interestingly, social benefits, labour and consumer disputes make an small proportion of all requests.  The study led by Prof. Jon Johnsen recommends among other things that “primary legal aid ought to cover all types of legal problems. A survey should be carried out to map the need for primary legal aid.” Discussing the scope of the legal representation funded by the state the study recommends:

“For secondary legal aid CLAA ought to define a number of problem types of high welfare importance that are covered without further qualifications unless they are manifestly ill founded.  All other categories of problems also ought to qualify after a fair merits test if access to the courts is of importance to the applicant and the prospects are fair.  The „existential issues” criterion should be removed from 5(1) CLAA.”

The assessment also fins a mismatch between the means test specified in LAA and the actual poverty level in the country. “Under all these conditions, it seems that a significant part of the people who live at the edge of poverty would not qualify under the criteria of Art. 8 CLAA.”  Consequently, the study recommends adjustment of the means test in accordance with the case law of the ECtHR.

Another area in which the assessment recomends improvement is the process of delivery. Requesting legal assisstance is complex and uncertain. Applicants have to deal with different types of forms which require plenty of information and details. An applicant must also have a fairly extensive knowledge of the institutional arrangement of the legal aid scheme. Moreover, there is little difference in the application for legal aid in difficult cases and cases which only requre consultation.

Read the assessment of the implementation of the Croatian Legal Aid Act here

Report of the British Columbia Public Commission on Legal Aid in British Columbia

The Public Commission on Legal Aid of British Columbia was launched in June 2010 with the task to discuss the future of legal aid. On 8 March 2011 the Commission published a final report in which it calls to recognize legal aid as essential public service:

“The  Legal Services Society Act should be amended to include a statement clearly recognizing legal aid as an essential public service and the entitlement to legal aid where an individual has a legal problem that puts into jeopardy their or their family’s security—be it their liberty, health, employment, housing, or ability to meet the basic necessities of life—and he or she has no meaningful ability to pay for legal services.”

Further, the Report recommends:

• Development of  a new approach to define core services and priorities
• Modernization and expansion of the financial eligibility criteria
• Establishment of regional legal aid centres and innovative service delivery
• Expansion of public engagement and political dialogue
• Increase of long-term, stable funding
• Transformation of legal aid into proactive, dynamic, and strategic system
• Greater collaboration between public and private legal aid service providers
• More support to legal aid providers

Read the whole report here

New Article on National Consensus about Access to Justice

Fellow blogger Richard Zorza from accesstojustice.net published a new Judicature article entitled Access to Justice: The Emerging Consensus and Some Questions and Implications. With his kind permission I’m reproducing introduction to the article. It is insightful and invites the reader to think of innovative solutions to the problems of access to justice. Read the original post here.

I thought folks might be interested in my new Judicature article, Access to Justice: The Emerging Consensus and Some Questions and Implications. It will be in the forthcoming Jan-Feb 2011 issue. Thanks to Judicature, one of my favorite publications, for carrying it.

The article makes the case that there is a far broader consensus than we generally realize about what needs to be done to achieve full access to justice. It does so by weaving together statements of state and local court, bar, and legal aid leadership organizations and of individual leaders, and examples of actual projects and initiatives that reflect those perspectives. These show that the three major institutional constituencies not only have clear views about what they themselves need to do, but that the views of each constituency are shared and supported by the other two. Indeed, the consensus is broad enough to provide the needed foundation for joint action to build the needed comprehensive system, and we should celebrate it and build on it.

Specifically, the article postulates the following agreed directions:

Court simplification and services. Courts must become institutions that are easy-to-access, regardless of whether the litigant has a lawyer. This can be made possible by the reconsideration and simplification of how the court operates, and by the provision of informational access services and tools to those who must navigate its procedures.

Bar service innovation. The bar must, through the expansion of flexible services such as discrete task representation and pro bono, con- tinue to become more cost effective and innovative in reaching and pro- viding access services to both poor and middle income households.

Availability and cost-effectiveness of subsidized counsel. For those matters and individuals where subsidized experienced legal counsel is needed to obtain access, we must make sure that those services are actually available through pro bono, non-profit, and other subsidized methods, and that they are provided in the most flexible and cost effective way.

(There is one additional area as to which there are significant hints of agreement, and real steps forward, from all the major constituencies.)

Triage and referral. To take full advantage of these changes, there must be some system that ensures that litigants obtain the services they need to obtain access most efficiently and effectively. In other words there must be some system of triage, including referral and follow up.

The article also suggests some of the implications of this consensus, and discusses some open questions. Among the key open questions:

• How is triage to be done?

• How are middle-income people’s needs to be met?

• Should the private bar be subsidized for participation in the pro- vision of access services?

• Where is the funding to come from?

• What is the federal role in building the system?

The article concludes:

“It is critical to recognize the breadth of the consensus that we now enjoy. We must realize and leverage the fact that the consensus represents the foundation of a 100 percent access to justice system. The differ- ent constituencies have everything to gain, and nothing to lose from embracing a consensus, advocating for its implementation, creating the national institutions that will promote it, and working together at every level to put it into place. The excluded demand no less, the future of our democracy depends no less, and the future will not forgive us if we achieve any less.”

Whether you agree or disagree, please do read, comment, and discuss. And share your thoughts on the open questions posed. Lets take full advantage of this moment of consensus and opportunity — even, perhaps particularly in tough times.

First glance at empirical study of access to justice in Kazakhstan, Kyrgyzstan and Tajikistan

The Social Sciences in the Caucasus blog published yesterday a sneak preview of preliminary results from a study of access to justice in three Central Asia countries – Kazakhstan, Kyrgyzstan and Tajikistan. To the best of my knowledge this is the first comprehensive empirical study of access to justice in former Asian Soviet republics. Without doubt the value of the study is multiplied by it its comparative potential. For now there is little information on the methodology of the study besides that it is based on mix of quantitative and qualitative research methods (random sample cross-sectional survey in each of the countries supplemented by focus groups and in-depth interviews).

Evident from the figure bellow the authors asked about a broad range of possible problems which can be solved with legal means – criminal, civil and administrative. Theft, violent crime, document registration (perhaps a notarization of a private document?) are categories which appear frequently in each of the three countries.

The results of the study will be presented today (15th of February) in Almaty, Kazakhstan.