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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.

October 20, 2011 at 9:37 pm 2 comments

Philipines: small claims procedure

October 2, 2011 at 10:39 pm Leave a comment

Liberia: Liberlii project brings open access to Liberian and case law


October 2, 2011 at 10:26 pm 1 comment

Justice by mathematics – sentencing in the shadow of harsh penalties

The New York Times published an article which details how toughened sentencing rules and practices allow prosecutors to coerce defendants in precarious guilty pleas. As a result of the increasing prosecutorial power less and less felony cases go to trial. Instead, they are settled between the risk of tough sentencing and assessment of chances of fair or unfair outcome from a jury trial. The article aledges that one in 40 felony cases reaches a court room. The rest are solved through plea bargaining between parties with unbalanced power. Prosecutors are strivig for resources and use the opportunity to pursue aggresively their targets.

Many guilty defendants benefit from plea bargaining and get less punishment than what they would have gotten in trial. But those who are innocent are massive pressed to accept the offer or to risk the unpredictable risk to reeceive disproportionally high sentencing. “…many defendants who opt for trial effectively face more prison time for rejecting a plea than for committing the alleged crime.” As one lawyer has put it, defendants who reject plea bargaining are “plainly being punished for exercising [their] right to trial”.

Furthermore, the power disbalances are aggravated by inequality of arms. “The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.” According to legal professor Paul Cassel the increased power of prosecutors is at the expense of the decreasing authorities of the judges. Particularly, the ability of the judge to influence the outcome of a criminal case is now shifted towards the process in which the prosecutor bargains with the defendant.


Read the NYT article Sentencing Shift Gives New Leverage to Prosecutors here

September 26, 2011 at 10:21 pm Leave a comment

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

April 27, 2011 at 9:59 pm 1 comment

Where’s the role of ADR in Access to Justice

In his Australian Dispute Resolvers blog, Chris Whitelaw ponders over the potential of ADR to promote and secure Access to justice. ADR has been present on the A2J scene for a long time but nowadays the ongoing cutbacks of public budgets make policy makers and service delivery agencies to look for cheap and effective alternatives. That’s where ADR comes riding waves of assumptions that it’s cheaper (than legal aid?) and effective (to solve disputes in fair manner).

Victoria and New South Wales have introduced reforms aiming to introduce ADR in the early phases of the dispute. Bellow is an example of the steps that a provider of dispute resolution services has to take attempting to settle a dispute before litigation has been considered:

1. Obtaining sufficient information and material  about the dispute, its parties, their interests and values

2.  Working out who needs to be involved in the dispute

3. Obtaining access to relevant documents

4. Send out questionnaires to the parties

5. Preliminary meeting with each disputant

6. Considering and recommending the right ADR method for the conflict at hand

7. Establish dates for all processes that might supplement ADR

8. Establish all things that have to happen before the main ADR process

9. Schedule the dispute resolution process

10. Work with the parties and others involved – education, awareness raising etc.

Read more about the relationship between ADR and Access to justice here

April 16, 2011 at 7:32 pm 2 comments

Barriers to access to justice: what the people want

In a speech to the Speech to the Law Society of BC Benchers Mayland McKimm, Chair of the Legal Services Society reflects on the problems of access to justice as the low-income people in British Columbia see it. The central question of the speech is – what prevents people from getting access to justice? McKimm immediately turns down the easy answers – it’s not the lack of lawyers or court fees. Drawing on results of series of workshops with stakeholders he states:

“The number one barrier is actually a cluster of obstacles that includes poverty, transportation, and child care. For many people, particularly in remote communities, the biggest barrier to accessing justice is simply getting to the courthouse or even having the means of getting to the courthouse. Participants also noted that their clients do not know what legal services are available and that they fear lawyers and the legal process.”

Another lesson from the study is that from the perspective of the people access to justice has two components:

  • “…simply making the legal system more accessible or user friendly”
  • “…helping people understand how the legal system can help them”

McKimm offers two practical initiatives intended to improve access to justice. First, he advocates for integration of legal services with “existing, trusted social services.” An example is the training of a health worker about child protection law.  Second, McKimm suggests to work towards reduction of the costs of large criminal cases.

Read here the speech of Mayland McKimm

    March 19, 2011 at 8:48 pm Leave a comment

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