The latest meeting of the American Academy of Appellate Lawyers took place last week in San Antonio (yee haw!), and yours truly is here to provide a summary of relevant learning.
The first session was a panel on Texas Access to Justice programs. The panel included the Dean of a new Texas law school (there are 10! Texas is big!) concentrating on affordability and open access; two ex-members of the Supreme Court of Texas who founded the Texas Access to Justice Commission, and Justice Jane Bland of the First Court of Appeals in Houston.
After noting AAAL’s key role in access to justice issues (AAAL’s founder, Arthur Englund, founded IOLTA, when on the Florida Supreme Court), the panel noted that Texas has two commissions, one focusing on no income, and the other on low income issues. There is a biennial budget of $90 million, up from $10 million in 2001.
They recommended that every state undertake a current need study – this is the first step to obtain changes in the law and funding increases – data, data data. They did a random survey of 600+ low income folks asking if they had ever confronted 39 types of legal need issues and if so, had they consulted a lawyer. Answer to the first question: Yes. Answer to the second: only 10%. 50% of family law cases in the county where Houston is located has one side unrepresented. 12% of all civil cases have one side pro se. On the appellate level, 18% statewide, 21% around Houston have one side pro se. So while everyone knows there is a huge need, they collected numbers to support their position.
Legal needs, they noted, have a cascading effect. First there’s a housing issue with an eviction, for example, which then prompts additional consumer debt problems, and then the ex-tenant can’t get to work, so wages and income issues, and then domestic relation problems. A father goes to prison and you get child welfare problems, and so on. Nipping this in the bud saves money in the long run.
The key to getting the Legislature on board in a red-state jurisdiction, they said, was to focus on “low-hanging fruit” – for example, veterans. Domestic violence was also an area that the Legislature was receptive toward devoting resources. Conversely, you can bet they don’t like taxes in Texas – but they are also not big fans of porn. So to fund domestic violence programs, they tax adult sex businesses (sexually oriented businesses or “SOBs”). Pro hac vice fees provide $500,000 a year. The national settlements with the federal government (e.g. Texas received $32 million for foreclosure and community re-development under the BANA settlement) are other sources of revenue. Rumor has it a big Volkswagen settlement might be coming down the pike.
Washington State had the first access to justice commission, and the Texas Supreme Court looked to it as its model, becoming the 4th state with one (now there are 38).
On the appellate front, Texas has a very organized and formal appellate bar (more later on that), and it has put together a pamphlet to assist pro se folks with forms and has a process for screening and finding lawyers to provide services. If the Supreme Court takes a case with a pro se (there’s an intermediate court of appeals, so the matters before the Supreme Court are discretionary), the lawyers for the pro se party are found through that program.
Mental health issues are an overlapping problem that judges are not equipped to address. So they are now thinking about developing mental health courts. In the surveys they took, they asked lawyers who provided indigent services to prioritize issues – one of the top was mental health.
You must have an engaged Supreme Court to be a success, they said. How did the Texas Supreme Court get so interested and active in this area? In a word, they got sued. After waiting 5 years for a study to be finished, a civil rights lawyer tired of no court involvement in this area filed an action arguing that it was a part of the court’s responsibility to ensure that all citizens have access to the judicial system. The panel noted that one power of a state supreme court is the power to convene, hold hearings, and listen to people. So they did. They held public meetings, and they also made lots of turf warring factions in the state bar and legal aid community get in the same room and talk it out, and hold similar meetings every time it looks needed.
There is also a tacit rule before the Texas Court of Appeals, which usually doesn’t hold arguments, that it will hold argument if a lawyer takes a matter pro bono, to get the younger folks experience.
In the audience discussion portion, one comment made was that a big problem on appeal for pro se matters is that no one creates a decent record at the trial level, so at that point, there’s nothing that can be done. Another big problem noted is that the users of the judicial system that have money are opting out, with mediation and arbitration. The panel noted that it was critical to get business buy in to make progress. In Arizona’s need study they identified costs such as lost work time that resonated with businesses. Arizona also has an interesting program where they use college students and librarians to help pro se navigate the system. This avoids the problem when a lawyer of the day or similar provider is misperceived as the pro se’s general attorney. Also, the Arizona member speaking said the librarians really like it. With the role of libraries changing radically, they are happy to be using their skill sets productively.
Part two coming up!