My work on disaster legal services at Pro Bono Net has made me keenly aware of the barriers to access to justice that many Americans encounter. I’ve also become cognizant of the vast regional and jurisdictional differences in how courts accommodate participation by non-lawyers in the civil legal system. So when Mark O’Brien invited me to the launch of the Justice Index at Cardozo Law School on February 25th, I was equal parts curious and skeptical – could you really apply a uniform standard to measure civil access to justice in the United States? Long story short: the Index is an important tool for promoting understanding about the many different factors that affect how individuals experience access to justice and for measuring the progress that states are making to improve access. But it’s a work in progress, and I also feel it is missing a key measure of innovation in state law.
The presentation at Cardozo featured representatives of the organizations that collaborated on the creation of the Index: David Udell and Jamie Gamble of the National Center for Access to Justice, Ellen Rosenthal of the Pfizer Legal Alliance (who marshaled the efforts of Pfizer’s law firms to undertake exhaustive state-by-state research), Mondi Basmenji of Skadden Arps (who spearheaded her firm’s efforts), and Jeremy Perisho of Deloitte (which analyzed the raw data and developed the algorithms and visualization strategy to make sense of more the individual data points that make up each state’s score.) The Index measures state performance against four factors that define the daily experience of litigants in the justice system: the Ratio of Legal Aid Lawyers to State Poverty Population; Help Available for Self-Represented Litigants; Support for Litigants with Limited English Proficiency; and Support for People with Disabilities. The first category is a numeric count, whereas the latter three are calculated based upon the presence or lack of identified laws, rules, and formal policies in place. The four categories are then given equal weight in a composite index.
Two questions asked during a lively Q&A session that followed the presentation really stood out: how did the developers of the Index compare fundamentally different measures across states? And to what extend can the findings be interpreted? In answering the first question, David Udell acknowledged that, in order to ensure consistency, the Justice Index team could only evaluate whether states had rules in place to promote access and not assess how well states are doing to enforce (or to fund) implementation of identified standards. The Index, then, is still a measure of rules rather than the lived experience of access to justice. But Udell is (rightly, I think) hopeful that advocates will be able to use the Index to start a discussion about how to better measure progress in improving the availability of access to civil justice.
In answering the second question, Mr. Udell noted that among the key findings was that in many cases neighboring states, which spent similar amounts on civil legal services, performed very differently on the Index. Instead of looking at the Index as a way of comparing the composite scores of the 50 states, he said, advocates could look at how neighboring states fared as an indicator of innovations in state laws. Advocates can see the Index as establishing a road map for promoting reform in their states.
Ultimately, Mr. Udell said it best when he noted the development of the initial Justice Index is a first run at creating a resource that can be a force for change. He hopes that leaders in the access to justice community view the Index as an impetus for important conversations about what should be measured and how respective measurements should be valued.
Like the developers, I am hopeful that the Index will provoke a serious conversation about what individual states can do to improve access to justice, and that this conversation will lead to improved measures in future releases. Based on my exposure to the civil legal system here at Pro Bono Net, I wonder if the Index should place more weight on the relative number of lawyers and overall resources available to support access for people in poverty (even if performance on that measure is poor across the board).
I also agreed with Mark O’Brien’s observation that the Index needs to incorporate innovations in practice rather than simply the presence of rules. Possible indicators of innovation could include support for the types of pilot programs that Chief Judge Lippman has announced here in New York (to provide trained volunteer non-lawyers as “navigators” to assist self-represented litigants in court), or expenditures on technological innovation in the delivery of legal services. The Index may better encourage innovation if it rewards courts for taking risks, not just for making rules.
Together with many of my colleagues at Pro Bono Net I am very excited by the arrival of the Justice Index. (Aside from everything else, it is an elegant and attractive demonstration of what a difference effective data visualization can make in parsing complex information!) The Index makes clear to the public what many attorneys and advocates have long known – the civil legal system is broken and fails to serve those most in need. More positively, it highlights where and how progress is being made, so that others can replicate and expand on successful practices.