Ep. 12 Self Represented Litigants

In this episode, we discuss self represented litigation in Tennessee and across the United States by exploring the meaning and definition of a pro se litigant as well as provide advice on how pro se litigants can use state resources to gain more access to the court system and seek free legal advice. Guests include Justice Connie Clark of the Tennessee Supreme Court, Buck Lewis is the founder of Free Legal Answers,  Professor Cat Moon is the Director of Innovation Design at Vanderbilt University Law School and Judge Fern Fisher who is now a professor at Hofstra University School of Law. 

Produced by Nick Morgan

Transcript

00;00;00;12 - 00;00;21;16
Voice Over
Tennessee. Court Talk is a podcast presented by the Tennessee Supreme Court Administrative Office of the courts. The aim of the podcast is to improve the administration of justice in state courts through education and understanding. The target audience varies and is announced in the beginning of each episode. Welcome to Tennessee Court talk.

00;00;21;19 - 00;00;41;29
Host
Welcome to Tennessee Court talk. I'm your host, Barbara Peck. Today we are talking about self represented litigants in civil court. This podcast is intended for all audiences. Our first guest is Tennessee Supreme Court Justice Connie Clark. Justice Clark joined the Supreme Court in 2005, and is the court's liaison to the Access to Justice Commission. Our second guest is Buck Lewis.

00;00;42;05 - 00;01;12;16
Host
He's a partner at Baker Donelson in Memphis, a member of Tennessee's Access to Justice Committee, former chair of the ABA Pro-bono and Public Service Committee, and the founder of Free Legal Answers, a website that has answered more than 100,000 questions for low income clients in 41 states. Our third guest is Professor Kat Moon, director of innovation design for the Program on Law and Innovation at Vanderbilt's Law School, where she spends much of her time creating systems to merge law and technology to reimagine the delivery of legal services.

00;01;12;18 - 00;01;25;27
Host
Our final guest is Judge Fern Fisher, who is now a professor at Hofstra University School of Law, where she oversees social justice initiatives. She was previously the deputy chief administrative law judge for New York City. Welcome to you all.

00;01;25;29 - 00;01;27;04
Voice Over
Thank you. Thank you very much.

00;01;27;05 - 00;01;43;01
Host
Let's start with exploring this issue and defining it a little bit. So statistics show that three out of five litigants go to civil court without a lawyer. What is a self represented litigant? How common is it and what types of cases are people usually representing themselves in?

00;01;43;07 - 00;02;09;04
Judge Fisher
It's extremely common. Three and five people, don't have lawyers. Some people start out with lawyers and then aren't aren't able to continue to be able to afford a lawyer. And so they go without a lawyer for the rest of the case. We see it mostly in family cases, but we also see people without lawyers in, evictions, consumer debt, and mostly civil cases.

00;02;09;04 - 00;02;17;25
Judge Fisher
Most people in criminal cases do have lawyers, but in civil or civil cases, people don't have lawyers. And there's no right to a lawyer in a civil case.

00;02;17;28 - 00;02;48;02
Justice Clark
And I agree with Judge Fisher. It's in small claims court that I think we probably see the most self represented litigants in exactly the type of cases that she mentioned, where it's easier to come into court and represent yourself, where usually they're not as many documents and other things required, but people really arrive there and don't know what they're supposed to do to either prove their case against a repairman who may not have repaired their automobile.

00;02;48;02 - 00;03;19;21
Justice Clark
Well, or to defend their case against a landlord who says you haven't paid your rent in a couple of months and I want you out. But we are seeing more and more in our trial courts as well. And it's especially difficult if one party arrives with a lawyer and the other party arrives without a lawyer, because the judge remains the neutral arbiter and cannot give legal advice to one side or the other, and at a client with a lawyer can actually take advantage of the other side in ways that are not good for the process.

00;03;19;26 - 00;03;40;20
Judge Fisher
I'd like to clear up just a little bit of a myth that most people who don't have lawyers don't have lawyers because they simply cannot afford a lawyer. And that goes from the low income, population right into the moderate income. Lawyers are expensive and if you are a lower middle class and middle class person, you're paying your mortgage, you're paying your car.

00;03;40;20 - 00;03;59;08
Judge Fisher
Note you're trying to send your kids to school to afford a lawyer that costs anywhere from 200 and $400 an hour, depending on where you live. It's almost impossible. There is a very small percentage of people who don't come to court without lawyers, either because they think they can do it themselves, because we're a do it yourself culture.

00;03;59;10 - 00;04;08;09
Judge Fisher
Or they have some particular hatred for lawyers. But that's a very small percentage. The majority of people come to court without lawyers simply can't afford one.

00;04;08;15 - 00;04;13;14
Host
So what are some of the pitfalls that people who come to court of representing themselves face?

00;04;13;21 - 00;04;33;03
Judge Fisher
Well, clearly people go to law school in order to learn the law. The law is extremely complicated, complicated. There are different laws for different areas of the law. There's loads of them. And so people come to courts without knowing the law or the procedural aspects of their case, you know, how do they get from one point of the case to another point in the case?

00;04;33;06 - 00;04;46;23
Judge Fisher
Some people have language difficulty, so they're unable to understand, the processes. So those are some of the difficulties and as, as, the judge said, they're often facing an adversary who has a lawyer.

00;04;46;26 - 00;04;52;15
Host
So what are some of the things that the court system can do to help self represent the litigants?

00;04;52;18 - 00;05;24;19
Justice Clark
There are a lot of things that Tennessee has explored, and those include providing forms for easy types of cases so that at least if the person fills out the form correctly, they will be ready for the judge to hear their case. Obviously there are many other avenues of trying to match lawyers with citizens who cannot afford lawyers through clinics and through, free Tennessee answers and and through help for t in and through many, many ways.

00;05;24;19 - 00;05;47;19
Justice Clark
But if if someone actually gets into a courtroom and doesn't have a lawyer, then it's very difficult because there's no one who's going to give them information on the rules of evidence and what hearsay is. And you can't just bring a a repair bill in unless you've got the person who did the repairs or prepared the bill to talk about how it got created.

00;05;47;21 - 00;06;07;23
Judge Fisher
In some jurisdictions, there's also health centers where you can go and get free procedural or legal advice. Some jurisdictions have what is called a navigator program, and navigators are usually not lawyers. There are people who are there just to kind of help you. What what it means navigate the court system. You know what paper do you file?

00;06;07;23 - 00;06;32;05
Judge Fisher
Where do you file it? How do you speak in court when it's time for you to speak? There are a number of things that are happening throughout this country and the world in terms of providing bigger access to justice, the use of law students. And I think Professor Moon will speak on that. To to what we call close the justice gap so more people get as much as we call it legal assistance.

00;06;32;05 - 00;06;41;08
Judge Fisher
And legal assistance can be anywhere from just legal advice, and legal information all the way up to, full representation.

00;06;41;11 - 00;07;11;25
Justice Clark
We also have professional mediators, some attorneys and some not, who are volunteering their services, again, specifically in our small claims courts to just be on call. And so a judge can call a docket, see that most people there without lawyers and say, if you would like to mediate your claims, there's a lawyer available to do that, and that person can help guide the process and hopefully get people to a reasonable resolution and bring it back to the court and not waste anybody's time or resources.

00;07;11;27 - 00;07;37;19
Professor Moon
So this is Cat moon, and I wanted to, dovetail actually on things that, have been said. I'm referring to the navigator system. I think that actually provides a great metaphor. I think you asked, what can courts do? And I think that one clear opportunity is to think about how we can make our system more navigable for the people who use it.

00;07;37;20 - 00;08;10;10
Professor Moon
We have a system that was designed by lawyers for lawyers, and if you have three out of five people self represented, lawyers are actually technically the minority of users. And so we now have a system that requires navigators to help people who aren't trained in the law to use the system. So I think that we can, even with, without changing regulations or other things, think about how we can be proactive in redesigning some of the ways that we do things to make the system more accessible for the people who are the majority of users.

00;08;10;12 - 00;08;31;19
Professor Moon
So the public, that the system is intended to serve. So I think that, is a clear, low hanging fruit opportunity. And, you know, I do work with law students to think about how we can reimagine the delivery of legal services and they come up with really creative ideas, some of which might not work within the current regulatory system.

00;08;31;19 - 00;09;02;21
Professor Moon
However, I think if we can be more proactive starting in law school and how we educate lawyers to, creatively think about how we can do things differently, I hesitate to use the I word, but innovation, is really going to be critical because we have a situation now. You know, we have one point, not quite 1.4 million, licensed practice or licensed lawyers in the US.

00;09;02;21 - 00;09;28;07
Professor Moon
And we have, at any given time, I think some studies show 272 million legal problems happening at any given time, any moment in the US. And so the idea that we can match, even if someone could afford, a lawyer to every person who needs legal help and who needs help navigating the system, the numbers just simply don't bear that out.

00;09;28;07 - 00;09;59;26
Professor Moon
And, so understanding that, how can we be more creative in, in how we can make the system more navigable? And I think there are a lot of people globally looking at that. Canada has an amazing, program happening now. Shannon Salter, who gave the keynote at LCS Technology Conference in Portland in January, talked about how they are using this system to serve, just exponentially more people with certain kinds of civil legal matters.

00;09;59;29 - 00;10;27;10
Professor Moon
And often lawyers and judges are completely removed from the process. So they're giving people the tools to figure out how to solve these problems and using mediators and other third parties, they're pulling them out of a very clogged judicial system. And giving them the tools to solve these problems themselves. And so I think if if we can start kind of looking around to see what other people around the globe are doing, there are a lot of really interesting experiments. I think we could run.

00;10;27;18 - 00;10;52;15
Judge Fisher
As you indicated in your, in your introduction, there is an innovative, process going on, and that was developed by Buck Lewis, and that's the legal answers. And I'm just hear the statistic now, 100,000 people plus being served in 41 states. I mean, that is just something that is just, you know, one person came up with an idea and saw through and maybe should tell us about it.

00;10;52;17 - 00;11;14;01
Buck Lewis
Thank you. Judge, I'll be glad to do that. Freelancers was just a very simple idea and that was that. If lawyers could serve traditional clients by answering questions by email, why couldn't they do the same thing for pro-bono clients? And we launched in Tennessee and it worked there. And then the ABA allowed us to take it national under under their umbrella.

00;11;14;01 - 00;11;43;23
Buck Lewis
And here we are with 7000, lawyer volunteers and 100,000 questions. I think one of the things freelancers proves is that, online business is very helpful to low income people. We buy cars online, we buy real estate online whether we should or not. We buy insurance online, we shop for groceries now online. And, you ask, what course could do?

00;11;44;00 - 00;12;11;11
Buck Lewis
I think more court annexed online dispute resolution is in order and it's been done. As Kat points out, in other states. And that's something that we're looking into. But freelancers is simply a place where lawyers who want to volunteer and want to do their pro bono anywhere and anytime they can access the internet can do so, and they can help clients who can post their questions online and get limited scope answers to it.

00;12;11;11 - 00;12;31;24
Buck Lewis
And what the last ten years has taught me is that so often very basic legal information or legal advice can totally change the course of a legal problem. We know that the average low income household has two problems a year. We know they have one. They're more likely to have two. They have two, the more likely to three.

00;12;31;27 - 00;12;53;12
Buck Lewis
And so if we can nip the problem a little bit earlier, then we can get into the prevention game, which is something that we have to do. You talk about three out of five. I'm not so sure. Because if you talk about small claims court, especially small claims courts in rural areas, I think that figures more like nine out of ten are unrepresented.

00;12;53;14 - 00;13;18;16
Buck Lewis
And they say that's what my friends, who are small claims court judges in West Tennessee tell me, so the extent to which we can solve more of this without having to be in the same time or even in the same place, or even on a different on the same media at the same time. You know, telephone lines are fine, but if you have to be on the phone at the same time, that's a problem.

00;13;18;21 - 00;13;43;17
Buck Lewis
Video conferences are fine, but you have to be on the video conference at the same time. That's a problem. And so if we can start to spend more money on ADR, the technology is there. As with so many access to justice resources now the technology is absolutely there. It's just a matter of overcoming the cost barrier. But but lawyers don't like to travel to places and spend that time.

00;13;43;21 - 00;14;06;00
Buck Lewis
Courts could have more telephone hearings, especially when somebody is acting pro bono or is self represented. The federal court uses video conference facilities to a much greater extent than the state court systems do. But a lot of this has to do with having the political will to spend the money to employ these resources that are sitting right there in front of us.

00;14;06;02 - 00;14;27;03
Judge Fisher
And I think we're at a at a point in time where we have to reimagine our, our legal system, our legal system was built, you know, way back when there were lawyers, everybody had lawyers. That's changed. And so an adversarial system built the way it's built right now does not work for the masses of people who use the courts.

00;14;27;05 - 00;14;49;06
Judge Fisher
And so simplifying the court is, is, the professor said it's just one step to making it a fairer system, simplifying the procedures, writing things. The average, American or person who lives here reads on a fifth and seventh grade reading level legal language is way above that. Lawyers don't always understand what they're reading either. Which is a problem.

00;14;49;08 - 00;15;15;14
Judge Fisher
And our system, our discovery system, how to get information in a case. It's very difficult for, an untrained person. So we I think we have to step back and say, has the world changed? Has the country changed so that we have to reimagine? Should we reimagine our legal system? And these are discussions that have to be taken up in law schools and courts and at bar associations, because I think time has come.

00;15;15;15 - 00;15;31;03
Buck Lewis
Judge Fisher, I seem to remember from a couple of justice conferences back that that New York, your state of New York, has been a leader in helping self represented litigants fill out forms. Maybe our listeners would like to hear about what you've done. Sure.

00;15;31;06 - 00;15;58;03
Judge Fisher
We have a couple of ways of dealing with it. One, we have what they're called do it yourself forms, DIY forms. You can go on the computer. There are 23 computer programs where it will help you fill out, for example, a request to modify your child support in New York about 90% of individuals that try to get either, upward modification or downward modifications of their child support do not have lawyers.

00;15;58;09 - 00;16;17;16
Judge Fisher
So this program will make sure that the form is filled out properly. And if the person actually doesn't have a case, it'll the the program will tell you that there's one and name changes. You know, it's New York, it's a very diverse population and people are changing their names all the time. There's a name change. There is a smallest state program.

00;16;17;16 - 00;16;32;22
Judge Fisher
There is, eviction answer program. And so you can go on and have your form drafted with step by step instructions and if you don't understand something, you can click on what is called a Learn More button. And it will it will answer your questions.

00;16;32;23 - 00;16;34;04
Buck Lewis
Similar to TurboTax.

00;16;34;04 - 00;16;50;09
Judge Fisher
Yes. Like it's just like TurboTax. Exactly. Exactly which which is a very useful program. We also have the help centers where you can actually come in in person and somebody will help you fill out the forms. But to do it yourself forms, particularly in New York, everybody thinks of New York as being a New York City.

00;16;50;17 - 00;17;11;06
Judge Fisher
It's not just New York City. New York is very rural. And in rural areas, you may not even be able to get to the courthouse to get help or to the bar association and get help, but you can go online and everybody goes online, particularly in, you know, the age 30 group. They live by computers and they can get legal information and fill out their forms by computer.

00;17;11;06 - 00;17;32;01
Host
So for small communities like rural communities, you were just talking about and mixed in Tennessee, there's a lot of rural communities. And we also don't have a unified court system. So if we're talking about a small you know, judicial district out in West Tennessee who doesn't have this, all the a lot of support, what kind of changes can they make that would have impact?

00;17;32;08 - 00;18;02;00
Judge Fisher
Well, I can't answer for Tennessee. I can can make some suggestions like the do it yourself programs, the software and the training is free. So somebody from that district can go and get the training and maybe start with their first do it yourself form. They could do a virtual help center. I understand that they're very small, court districts here, but maybe the law can be here in Nashville and talk to somebody, you know, in, wherever in Tennessee. Those are some of the things not everything costs money.

00;18;02;08 - 00;18;33;00
Professor Moon
When I think to, your point that technology can help us leverage and, scale people's access, to legal information and legal understanding and, maybe even some level of legal services and also to your point, judge, for sure, about times have changed. Measurably so. So actually our current legal system was is a product of the second industrial revolution.

00;18;33;02 - 00;18;58;20
Professor Moon
We are currently in the fourth Industrial Revolution. So we have a world around us, a society and a culture and technology that has leapfrogged us not once, but twice. And, so I think that technology becomes even more relevant to how we solve these problems and deliver, as the world around us continues to advance very rapidly.

00;18;58;22 - 00;19;36;18
Judge Fisher
And before, you know, the messenger is, is killed. I am not suggesting that lawyers are not necessary, lawyers are necessary, and lawyers will never, ever be, a profession that we will not need. But we should use lawyers for cases that really need lawyers and use other methods to solve legal problems. For those cases that really don't have to have a lawyer or we can use a lawyer, through limited scope, meaning the Lord does some of the work and not all of the work, and then leave a full representation lawyer for the for the people that have serious legal problems, and only a lawyer will be able to help them, or people who

00;19;36;18 - 00;20;00;00
Judge Fisher
aren't able to represent themselves, either because they're elderly or they have a mental, you know, illness or, you know, they have a language, impediment or something like that. We do need lawyers, and I don't want to be out there giving the message that we don't need lawyers. My law school would shoot me for that, but, I am of the school that we have to look for creative ways to solve the problem.

00;20;00;00 - 00;20;06;07
Judge Fisher
That there it is impossible for us to provide a lawyer for each person in this country, whether they can afford it or not.

00;20;06;11 - 00;20;28;24
Host
Yeah. And it seems like most professions have, like, different levels, like in health care. There's the doctor and then they have, then there's the nurse practitioner and the physician assistant that you may see in that state of the doctor. And even if the nurses in the hospital, there's the LPN’s versus the RPN’s versus the assistants. But in law, it's kind of like there's the lawyers and there's paralegals, but they just work for the lawyers.

00;20;28;24 - 00;20;33;15
Host
There's not really going to help. So, is technology the answer then?

00;20;33;17 - 00;20;52;03
Professor Moon
I think it's part of the answer. I mean, I think a tremendous opportunity and obligation, frankly, that lawyers have is to lead, the change, the redesign that we so desperately need. We are by far the best situated to lead that and, really bring more people into that and expand.

00;20;52;06 - 00;21;00;18
Host
So what would be if you could change one thing about the legal system tomorrow? What would you change?

00;21;00;20 - 00;21;05;07
Professor Moon
Professor moon is pointing at Justice Clark

00;21;05;10 - 00;21;08;01
Buck Lewis
Why am I glad about that? Yeah.

00;21;08;03 - 00;21;10;18
Professor Moon
All right, we just haven't heard from you and I.

00;21;10;22 - 00;21;45;24
Justice Clark
Well, that's right. I don't I don't think there is just one thing, but I think what we've been talking about are the things lawyers have to get less possessive, of what it is we do. And understand that, as in the medical paradigm, people with different levels of training can perform different services. And I don't think we want to send somebody with one year of of training out of high school into a court to litigate a high profile, complicated jury trial.

00;21;45;26 - 00;22;25;14
Justice Clark
But lawyers don't have to do everything. And, and, people like navigators and other types of people, people who just can check in lawyers and help them fill out forms and do other things. We need to scale better. The work that is being done and how it is being done. And we need to convince every lawyer that it's not only their obligation as an attorney, but that it should be considered a privilege and a responsibility to offer help to those who cannot afford it, as well as to their regular clients who can afford it.

00;22;25;17 - 00;22;52;01
Justice Clark
And that's part of what these efforts are trying to do, is really change the culture. Help judges understand, how to help those who are in their court, help individuals understand how and where they can find attorneys when they need them, and then and then help lawyers understand that there are many roles that they can play, and that they should run toward those opportunities and not away from them.

00;22;52;03 - 00;23;19;02
Buck Lewis
We probably shouldn't end this podcast, without mentioning what happened in the ABA House of Delegates in February, because in February, the House of delegates overwhelmingly passed resolution 115 entitled Encouraging Regulatory Innovation, that was, led the effort to get that pass was led by the ABA center for innovation, which was a presidential, project of William Hubbard in South Carolina.

00;23;19;05 - 00;23;42;23
Buck Lewis
And and among other things, it encourages U.S jurisdictions to consider innovative approaches to the access to justice crisis in order to help the more than 80% of people below the poverty line, and many middle income Americans who lack meaningful access to effective legal services. So the ABA has taken a strong position in favor of regulatory reform in favor of the use of technology.

00;23;42;25 - 00;24;24;22
Buck Lewis
Another thing we hadn't really talked about is the collection of data, data for many companies, any any executive will tell you, has become the most valuable resource of all that they have. And so if our court systems can start collecting better data that allows us to innovate and regulate in more intelligent ways. I was looking at some work product by a couple of very bright young people that had all of the eviction cases that had been filed in Memphis, Tennessee, mapped out on a heat map, and they could show where they were filed, when they were filed, when they were going to court, where the evictions were occurring throughout that community.

00;24;24;25 - 00;24;58;12
Buck Lewis
And we just need a lot more of that kind of data to allow our legal aid agencies, our direct providers, our court systems and our our legislators and our governors to do a better job of helping meet this need. And if you're not even collecting the data, we're in the dark. And I don't think a lot of, a lot of judges and a lot of legislators don't realize the creative uses of data that can be made now that really weren't possible even five years ago. So I think collection of data is a piece of this pie.

00;24;58;19 - 00;25;27;20
Justice Clark
And I want to credit Professor Moon, who started life as a lawyer, doing great lawyer things. But her knowledge and interest in technology is really what we have to have going forward. That is the future. And so she has helped us learn how to bring in folks who have no legal training, but lots of technology training, and present them with one of our problems and let them figure out how can they help us, how can they create a method to gather the data?

00;25;27;22 - 00;25;46;15
Justice Clark
Or, ways to actually measure things and we need more people who who speak in both, speak both languages, speak in both worlds, and can sort of interpret what our needs in the court system are to others outside our natural world. Who can help solve them.

00;25;46;18 - 00;26;09;28
Professor Moon
Thank you. Justice Clark and I would chime in and build on that. That, my response to your original query is we need to learn how to play better with others. I think that we face challenges and problems that are so immense and wicked, meaning they have so many, elements that we cannot solve these problems alone.

00;26;09;28 - 00;26;36;07
Professor Moon
And so we really need to partner and collaborate with other experts and people from other disciplines, learn from how medicine has gone from one form of licensure to many and partner with statisticians and data analysts and technologists who can really help us. We have a very specific kind of knowledge which is critical, and we need the knowledge and expertise of others.

00;26;36;07 - 00;26;46;09
Professor Moon
And when we can collaborate effectively across disciplines, I think that's when we're going to get to the best solutions to the challenges that we face.

00;26;46;09 - 00;27;12;12
Judge Fisher
And I would add to that is also, working with social services experts because legal problems are often fueled by social services problems. And if we solve the social services problem, we may not have the legal problems. So along with the technicians, along with the accountants, along with the researchers, we also need to involve social workers and even doctors because sometimes medical medical problems fuel legal problems as well.

00;27;12;14 - 00;27;19;19
Judge Fisher
Lawyers have to stop playing in the sandbox by themselves. They have to invite other people in or we have to join other sandboxes.

00;27;19;24 - 00;27;33;01
Host
So Tennessee has its first online dispute resolution pilot. It's about to start out of Chattanooga. So tell me a little bit what online dispute resolution is and sort of how that could be used in the future.

00;27;33;04 - 00;28;07;24
Buck Lewis
Well, online dispute resolution has been in the ABA Pro Bono Public Service Committee strategic plan for three years. And, we know that Professor Millions has been done successfully by some of the biggest companies in the world and in other countries. I generally divide online, dispute resolution into a couple of major categories. One is one where no human being is ever involved, and the other is where they're at some point, maybe a referral out to to a human being, me, a lawyer or a non-lawyer.

00;28;07;27 - 00;28;33;24
Buck Lewis
And so what what we at the ABA have been looking into is the non-human being model. Because once you have human being mediators, then you've got to find the funding for staff to manage that program. And so we've gravitated towards, a couple of companies that that do online dispute resolution. And as you point out, we're about to try it in Chattanooga.

00;28;33;24 - 00;29;00;08
Buck Lewis
I'm optimistic that Texas and Florida are about to get into the ODR game. And that's all part of what I see is a major need to get out of playing whac-a-mole by dealing with disputes when they occur and into more into prevention. ADR works. It just does. And, the claimant likes it and the defendant likes it, and the courts and the judges like it.

00;29;00;15 - 00;29;20;12
Buck Lewis
And the lawyers are really happy to have those types of disputes resolved to. So it's a win win win again if we can just find the resources to put it in place where it needs to be put into place. But it's coming. It's just, well, it's here, it's just going to be coming in more jurisdictions, I think, with every passing year.

00;29;20;13 - 00;29;42;08
Judge Fisher
And I personally think the ODR works for some, legal problems. I just, you know, I cautionary that it's not the appropriate mechanism for all legal problems, but certainly for small money disputes. I could see it being used in child support, where it's just an issue of how much people make. And, you know, you do the math and that's over and done with some small claims court cases.

00;29;42;11 - 00;30;04;12
Judge Fisher
The courts can't continue to carry the burden that the courts have. The volumes of cases that all state courts have is just tremendous. And so you have to look at some creative, mechanisms to help the court resolve some disputes. But always keeping in mind that it's not the appropriate mechanism for all legal disputes.

00;30;04;14 - 00;30;28;20
Justice Clark
And that's right. But when you start a program such as the one that starting in Chattanooga, it requires that there be a level of cooperation and communication in Chattanooga. They are starting with medical bills and medical disputes. And it took a judge there who said, I'm willing to let you use the cases filed in my court, or I'm willing to allow diversion of those before they're actually filed.

00;30;28;26 - 00;30;50;20
Justice Clark
It took a large hospital. They're being brought on board and saying, yes, we will participate in this and we want we'll agree not to send cases to a court until we have gone through this process. And, it does have folks who are going to help, not weed out the cases, but determine which cases are appropriate, in which cases are not.

00;30;50;23 - 00;31;14;23
Justice Clark
And so it's where those communications have already started. And in a company or organization or hospital has said, yes, I'm willing to participate in the pilot. I'm really willing to try this out because I see there can ultimately be a benefit on our side as well. And the courts have to agree and the individuals participating have to agree. And that's how we get started. One step at a time.

00;31;14;26 - 00;31;48;05
Buck Lewis
Yeah. And I think housing is another, arena, Legal Services Corporation numbers and our freelancers data shows that there's been a doubling of housing related problems. And we are taping this in Nashville, which is one of the most difficult markets in the South for low income people trying to find affordable housing. And so often we find both in the old fashioned walk in clinics, in court and mediation and on feeding answers, that the tenant doesn't want to stay in that housing.

00;31;48;07 - 00;32;10;04
Buck Lewis
They just need time to find other housing. The landlord doesn't want them there, and the landlord, probably knows they're not going to collect the back rent. And so the parties can get together and negotiate a mutually agreeable move out date. And a lot of times that dispute goes away. And so we're seeing an incredible jump in those statistics.

00;32;10;04 - 00;32;23;06
Buck Lewis
It's reflected in the LSC funding requests that hit everybody's mailbox five days ago. And I wish that we can find a jurisdiction where we could experiment a little bit with landlord tenant disputes as well. I think some of those would go away.

00;32;23;09 - 00;32;42;14
Host
So we've talked a little bit about technology, but I feel like it's also sort of a move from being such an adversarial system more towards civility. And that's how some of these access to justice and self-representation litigate issues may be impacted. Do you feel like civility is part of the answer?

00;32;42;17 - 00;33;09;12
Buck Lewis
Well, your mouth to God's ears, but but I, I personally think that no matter how civil we were, most of these problems would still exist because we have too many low income households and we don't have the social services that we need, as Judge Fisher points out. And the system is just not set up to handle this volume with self represented litigants involved in the vast majority of cases.

00;33;09;12 - 00;33;26;22
Buck Lewis
So would civility be great? Yes, it would be great is important. Yes it's important. Our Supreme Court just changed, their oath to to put an emphasis on it. But these problems that we're talking about of self represented litigants and access to justice, I don't think are going to be solved with more civility.

00;33;26;24 - 00;33;33;26
Host
But let's go back to free legal answers. So what was your inspiration to start for Legal Answers?

00;33;33;29 - 00;33;52;26
Buck Lewis
When the court decided it was going to create an access to Justice Commission, it did a tour of various cities, and I was with former Chief Justice Holder and one of these listening tours, and I looked at the audience and I saw about 25 lawyers on their BlackBerrys in the middle of this hearing, answering questions from clients on their blackberries.

00;33;52;28 - 00;34;11;20
Buck Lewis
So here we are at an Access to Justice hearing. Here we are with lawyers answering questions on their blackberries. And I thought, well, why the heck can't we do that for for pro bono clients? And I went back, asked my tech team at my firm of those possible and they said, well, we think so. We'll tell you in a couple of weeks. And that's that's how it was born.

00;34;11;22 - 00;34;14;17
Host
And so how do lawyers get involved with free legal answers?

00;34;14;21 - 00;34;40;20
Buck Lewis
I'll answer the question in terms of the entire United States. If you're licensed in any state, you can go to ABA free Legal answers.org and click on the drop down menu. And that will tell you whether there's an active freelancers site in your state. And you click on that state, it'll take you to the state page. And then there'll be a place where you click on the volunteer and put in your information.

00;34;40;20 - 00;34;59;20
Buck Lewis
And typically in 2 to 3 business days, the site administrator for your state will confirm that your license is active and in good standing and so forth, and we'll send you an email that you can go in and answer questions. You then go online. You look at the categories of questions. You can preview the questions before you take them.

00;34;59;20 - 00;35;12;26
Buck Lewis
So you don't have to take any questions that you're not comfortable with and get started. It's really pretty simple, and we find lawyers absolutely love it. New York calls that judge, pro bono in your pajamas.

00;35;12;28 - 00;35;23;22
Host
So you've been an advocate for pro bono for so long, and you're a partner of Baker Donaldson. That's not a firm that represents low income, small clients in general. It's it's a big firm. Really it is. Yes.

00;35;23;29 - 00;35;25;06
Buck Lewis
If you say so.

00;35;25;09 - 00;35;33;09
Host
So you're you're in big law world. So what has inspired you to be so involved in the pro bono community and access to justice issues?

00;35;33;16 - 00;35;53;22
Buck Lewis
My mother came from a family of deep poverty. My grandfather often didn't work if there wasn't painting or house painting work, or he was not healthy, he couldn't work at all. They didn't have any health care. They had to get food at the back door of my uncle's grocery store on Saturdays, that people didn't want to buy.

00;35;53;24 - 00;36;19;01
Buck Lewis
And, a couple of times during the history of her family, lawyers help them through crises. And, so she was a great influence in my life for her entire life. And and of course, that influence still continues. But, we have many, many lawyers at Baker Donaldson with backgrounds similar to mine. They are often the first person in their families to go to college or go to law school.

00;36;19;01 - 00;36;29;12
Buck Lewis
And they have a great heart for the disenfranchized. But it's really my mom's family and her background and what she taught me growing up that's influenced me primarily.

00;36;29;15 - 00;36;42;21
Host
So what would be your advice to a young attorney who's thinking about pro bono work and sounds interesting, like a good idea, but hasn't actually taken a step to actually do any yet?

00;36;42;24 - 00;37;00;28
Buck Lewis
Well, I would first tell them to go read the preamble to the rules of Professional conduct that they agreed to live up to, and they were sworn in because it says we all have an obligation to be public citizens with a special responsibility for the system of justice. I would second tell them that there is great joy in doing pro bono.

00;37;01;01 - 00;37;25;28
Buck Lewis
And as you get older, the legacy that you leave professionally and personally is going to become more and more important to you. We none of us, know how long we will have on this earth and we ought to be doing worthy things. And it's a very worthy pursuit that brings you great joy. And I tell our associates, and, you know, we are representing a lot of America's businesses, that there's a business case to be made for pro bono.

00;37;26;00 - 00;37;43;18
Buck Lewis
And if you're doing pro bono, you're going to get to do jury trials faster. You're going to get to take depositions faster. You're going to get experiences that you might not get if you waited for somebody to assign and pay and client to do it. If you're doing pro bono, well, not some of my best clients are, our, Geico and International Paper.

00;37;43;18 - 00;38;07;20
Buck Lewis
And both of those clients came directly from my relationships that I formed through the Access to Justice community. And, the partners in your firm, that are evaluating your performance are going to give you a little extra credit for being committed to access to justice. So lawsuits that, you know, how do people find the time to do this?

00;38;07;20 - 00;38;19;03
Buck Lewis
Pro bono? We got these billable hour requirements and all these other requirements to make partner. I don't see how they can afford not to do it, because there's such a strong business case for being involved in access to justice causes.

00;38;19;06 - 00;38;30;25
Host
Let's switch gears and talk a little bit more about, soft represented litigants. What sort of ethical boundaries are there for judges and courts to assist self represented litigants?

00;38;30;27 - 00;38;57;26
Justice Clark
There are specific boundaries. But having said that, how you interpret them is really difficult. So judges take an oath to be neutral arbiters, to hear the facts of cases, to read and understand the law that applies, and then to decide the case based on the facts and the law. And nowhere in there does it say, but if one person shows up as a lawyer and the other shows up without a lawyer, you can help one side.

00;38;57;26 - 00;39;22;29
Justice Clark
You can say, oh, there's an that's really hearsay, so why don't you object? So the other side can't put in their information? That's not possible. And yet we also took an oath to provide justice for all, which at a minimum has to mean a fair opportunity to present your case and to have it fully considered. And sometimes those two things are just inconsistent.

00;39;23;02 - 00;39;57;01
Justice Clark
And so judges have to look at that carefully. But where you can set rules that allow for assistance, either allow a lawyer to somehow get involved or have forms available, or have you be able, through telephone calls or, or online communications, get additional help that helps satisfy both requirements, that a judge hasn't put her fingers on the scale in favor of a self represented litigant, but that she has assured herself that that somewhere they have gotten information that's helpful.

00;39;57;03 - 00;40;16;09
Justice Clark
I said as a trial judge for ten years, and particularly near the last five years, more so than the first five years, as more and more self representative persons came into court, I worried every day. I worried when somebody just didn't know how to present a case and didn't show up with any of the things I needed.

00;40;16;16 - 00;40;44;15
Justice Clark
I worried when the other side had a lawyer. And sometimes lawyers will intentionally, take, the initiative in essentially abusing clients who are there without lawyers. And I worried about all of those things. And so you judges do sometimes intervene. And do we have cases in our courts have said, you you can't tip the scales, but you can be fair.

00;40;44;15 - 00;41;12;09
Justice Clark
You can bend over backwards. So if a document is filed and I called it the wrong thing, but it is essentially a complaint, just call it a complaint and let it be. And don't throw a case out of court because it's named the wrong thing. If you can't understand an argument that a person is making, and it really does have to do with fraud or whatever, then whatever they're calling it, don't be, don't throw it out of court because you're calling it the wrong thing.

00;41;12;11 - 00;41;46;19
Justice Clark
But judges need more assistance in that regard. And and we need better ways. If if judges themselves can't help litigants, we need to have more and more and different forms of opportunities to help litigants help themselves so that they show up, at least with minimum preparation, with some idea through a checklist or through a form or through a having some idea that if they're going to bring this document from a bank, it should be certified and not merely a copy.

00;41;46;21 - 00;41;49;29
Justice Clark
There are many ways to help the process.

00;41;50;01 - 00;42;09;28
Judge Fisher
And the line varies from jurisdiction, jurisdiction to jurisdiction. So you have to look at the jurisdictions rules. In New York, they adopted a new rule that said it is not a violation of judicial ethics for the judge to ensure that a self representing litigant gets a fair, fair hearing or day in court. Although what does that mean?

00;42;10;00 - 00;42;35;19
Judge Fisher
The US Supreme Court, in the case of v Rogers, in a case where a man was being held for contempt for not paying child support and subject to incarceration, the Supreme Court, U.S. Supreme Court found that he was not entitled to a lawyer because it was a civil case. And for other reasons, but that the court one should have provided forms and, you know, processes for the the litigants to get the information before the judge.

00;42;35;24 - 00;43;04;08
Judge Fisher
But also that the judge should have asked about the person's inability to pay the child support so judges can, in certain circumstances, actually ask questions as well. The line is so hard. It is hard for judges because they have to be reappointed. They have to be reelected. They don't want to do the wrong thing. Or judge training on on this could help and some more, definite, standards would help.

00;43;04;11 - 00;43;21;17
Judge Fisher
Across the country. But if you think about what the U.S. Supreme Court said, as judges, we do have to think about where is the line, what can we do to ensure that the unrepresented person or the self represented person gets their fair day in court?

00;43;21;19 - 00;43;31;09
Host
And Professor Moon, so envision your ideal American court system 20 years from now. Like what changes do you want to see?

00;43;31;12 - 00;44;19;06
Professor Moon
I hesitate to even answer that question, because I think there is so much opportunity to currently do better with the system. We have, while we can currently really reimagine it. I think the opportunity, especially with regulatory reform, being an obvious direction, to bring a diverse group of creative problem solvers together, people from social services, mental health technology, data science and really applied diverse creative problem solving methods, to how we can reimagine the system and build it so that it's user friendly.

00;44;19;06 - 00;44;54;24
Professor Moon
So, I guess if I have to answer the question of what it looks like, it it is a system that at the heart is designed, for those who it is intended to serve. And, and I was reminded by, a wonderful speech given by Jim Sandmann and an event at, Penn Law last week that, justice is, the first, and highest, value that is set forth in the US Constitution.

00;44;54;27 - 00;45;24;19
Professor Moon
And so I think that we who have the privilege as Justice Clarke said of, of serving and protecting justice and the rule of law, have this incredible opportunity and obligation and and at the same time, we are a group of people who are trained to solve problems in exactly the same way. So we, are trying to think like lawyers, which is a very, very valuable skill.

00;45;24;21 - 00;45;41;28
Professor Moon
But we can't solve this problem simply by thinking like lawyers. And so I think that's where our incredible opportunity is, is to bring others in, and expand who can sit at the table to help us solve this problem, putting people at the center, making it user centered.

00;45;41;28 - 00;46;01;21
Host
And so what would it be for everyone to answer this question? So what would be your advice to, someone who's fairly low income or moderate income, who feels like they have a legal issue with an employer or their landlord, like something that's happening and it just doesn't feel right. But where do you start to get information?

00;46;01;22 - 00;46;13;01
Buck Lewis
What a softball log on a free legal answers and post a question or call into your helpline. If you have a helpline in your local or state jurisdiction, I think would be the two starting point.

00;46;13;02 - 00;46;28;13
Host
But do some people who who call or are right into free legal answers, do they not even know if they have a legal question? Just like my landlord keep sending me these letters and that's not right. Or my employer said I have to do this and that doesn't feel right.

00;46;28;14 - 00;46;55;14
Buck Lewis
Or they think they have one legal problem when they maybe have three, or they maybe have a different one. We just signed a memorandum understanding with Baylor University so that Baylor Baylor's got a grant to study the way, low income people phrase questions so that there's certain question patterns that usually actually mean other problems are lurking and and Stanford is studying this right now as well.

00;46;55;14 - 00;47;17;23
Buck Lewis
So, yes, quite often. And that's why on phone lines, especially the sophisticated phone services and on and on, federal answers, that colloquy stays open so it can evolve and become more clearly defined. And so a lawyer begins to work their way through the the holistic situation with that family.

00;47;17;25 - 00;47;48;09
Judge Fisher
Professor Rebecca Sanford has written, articles on this that people just don't perceive they have a legal problem. And so therefore, you know, they're hurt before they know it. Also that people in low income categories also don't do preventative legal measures, like people who have money, who are raised in, you know, in a household with where legal problems are, you know, discussed and people know their legal problems, like, oh, they get wills, for example, people who aren't exposed to the legal system, who have no access to the legal system, they don't get wills.

00;47;48;09 - 00;48;17;26
Judge Fisher
So when somebody dies, there's a problem, you know, or reading a document or whatever. And so we have a lot to do before people get to court, before people have to go to court. So I don't want to limit our, our view of the legal system, just about litigation and about what the courts do. But the legal problems that people experience in the community that never get to the court and where people are hurt before, there is even an opportunity to go to court and we have to do some work on that as well.

00;48;18;02 - 00;48;20;18
Buck Lewis
We haven't mentioned legal wellness check ups. Go ahead.

00;48;20;21 - 00;48;21;16
Justice Clark
Go ahead.

00;48;21;19 - 00;48;45;20
Buck Lewis
Well, many states are are looking into having legal wellness check up resources. We're fortunate here in Tennessee because of the generosity of international paper funding and an equal Justice Works fellowship of the Tennessee Lottery. Legal services that our own Kirsten Jacobson has developed the nation's first legal wellness check up. It's not means tested, and it's not limited to Tennesseans.

00;48;45;22 - 00;49;07;25
Buck Lewis
So anybody can go on to. And freelancers check the box for legal wellness, check up and go through the various paths for whatever issue might be on their radar screen. And that that is symbiotic because it will sometimes tell them. Here is the question you need to answer. Here's the resource you need to access. Excuse me. Just go ahead.

00;49;07;26 - 00;49;40;10
Justice Clark
No, I just wanted to added that there one other thing that we have looked at in the slightly broader question of pro bono representation is where else do people intersect? And one of the real reasons for our faith in justice, one of the real reasons for our faith in justice alliance is that we know that people go to their house of worship, and, and what they, they tell their story and their it gets told as pastor or rabbi, or I'm,

00;49;40;12 - 00;50;13;26
Justice Clark
I just lost my job, and now my life is spiraling out of control. Don't have insurance anymore. And my child is very sick and needs an operation, and I can't afford it. And I haven't paid my mortgage or my rent in two months. And now my bank or my, landlord is saying I'm going to lose my house, and I've used up all my savings, and the person hearing that is going to try to do what they can, perhaps give them a month's rent.

00;50;13;29 - 00;50;34;09
Justice Clark
They're going to they're going to minister to them spiritually, but and they're often going to be able to give them money. But neither side of that conversation is thinking about where are the legal implications. And so we are trying to figure out who else in the community hears these stories. Who are the other first responders besides just lawyers or people showing up in a courtroom?

00;50;34;12 - 00;50;54;23
Justice Clark
And how can we train them to hear that story and know there might be a legal issue in there and say, well, have you applied for unemployment benefits, or have you do you know there's a a slow pay method in court or can I help you? Can I give you the number to Tennessee free legal answers or to the, Legal Aid Society in your community?

00;50;55;00 - 00;51;16;01
Justice Clark
And so that's back to needing to integrate, when we often train, ministers and others. Now, they say, I love this because you're giving me more resources. I was hearing this story, and I'm going to do what I can to make sure they have a place to stay tonight. And to, maybe help get an old car or something.

00;51;16;04 - 00;51;23;22
Justice Clark
But they can't get their lives back in order until there's some other things dealt with. And we need to keep those things in mind as well.

00;51;23;25 - 00;51;49;03
Judge Fisher
And that's professor, Moon's point is that we have to work with other disciplines. Some people tell their stories to social workers, to the people that give them public assistance. And if they could spot legal problems, maybe they should not have be up for eviction. We don't know, because somebody has to do that assessment. In New York, we're looking at, public libraries using public libraries as a point where people go where they have legal problems.

00;51;49;10 - 00;52;13;01
Judge Fisher
Junior colleges, so many, students who go to junior colleges or to your colleges are facing poverty and eviction, and they don't have enough food and they have legal problems. Maybe that's a point of view. It's like there's lots of places where people, go to try to get their problem resolved, not knowing it's a legal problem. So let's let's figure out how to reach out to those folks.

00;52;13;03 - 00;52;16;06
Host
Good. Well thank you all for being a guest on Tennessee Court talk.