Talking Legal Aid With Executive Director DarKenya Waller

DarKenya finishes her discussion about Legal Aid by overcoming myths and misconceptions as well as revealing the future of our firm.

Transcript

SPEAKER_01 0:06

Hello and welcome to Talking Legal Aid, a podcast that takes you inside Tennessee's largest nonprofit law firm. I'm Dean Hinton, a licensed attorney for Legal Aid of Middle Tennessee and the Cumberlands. Whether you're an attorney or a person with a legal problem looking for help, we are here for you. With me again today is Darkinha Waller, the Executive Director of Legal Aid. We're going to discuss misconceptions about our firm as well as the future of our firm. And so, Darkinya, I want to ask you about common myths and misconceptions. And then maybe as a closing, I want to ask you if there's anything new on the horizon that you can share. But first, a misconception might be, and this might be somewhat redundant, but hopefully to emphasize a few points already made. I make too much money for legal aid to help me.

SPEAKER_00 0:54

A lot of times people may think that, but our intake process is literally created to determine that. And so we encourage people to just apply, just call. Because if you're not, obviously we'll let you know. And if you are, then there may be a whole set of opportunities that can open up to you just because you made the call.

SPEAKER_01 1:14

Yeah, and I think you touched on that previously because you took you sort of gave us the guidelines about you know family of four versus single person, how much. When people come to clinic, they still need to qualify, obviously, for clinic, but think you still might be able to talk to someone one-on-one. That's right. And so I wouldn't worry so much about the income aspect as what your legal issue is and how we might be able to help you. Another myth legal aid only handles the small stuff.

SPEAKER_00 1:37

Oh no. Oh no. Is that wrong?

SPEAKER_01 1:39

That is absolutely small stuff, right? That is no, no.

SPEAKER_00 1:43

We we're excited about opportunities to make systemic changes that impact lots of folks. We've had cases where we've had multiple law firms co-counsel with us to achieve a result on behalf of multiple clients, partner with other legal aid organizations where it makes sense to do so, push a particular issue forward. We worked on things to provide more home health care on a systemic basis for multiple clients. Now we we do that with one client, but the impact of it you every time is for thousands, hundreds and thousands of people. We make changes in the courts. We are very much involved here recently in Davidson County behind Winter Storm Storm Fern where people were being impacted by the by that particular storm. And so we worked with the mayor as well as the judges and the courts and landlord counsel as well as eviction advocates to create a winter storm docket. So those people who may be facing eviction as a result of being impacted by the storm will have an opportunity to work with the landlord and try and keep their housing because a lot of it was beyond their control. It was a uh an act of God, a natural disaster. But we step into those situations to to help. We have taken multiple cases to the Court of Appeals, to the Supreme Court. Our goal honestly is to take the hard cases, to take the difficult cases. That's actually our goal because we know that often if a person cannot afford a lawyer, those cases will never be taken. No one will take a very hard case from a non-paying client. But guess who will? We will. We'll take that case. I remember when I was practicing more fully in family law, 80% of my caseload was non-English speakers, victims of domestic violence who were trying to get out of abusive relationships in order to protect themselves and children. If you think domestic violence is tough, I couldn't imagine being a domestic violence victim who didn't speak English and who is at the mercy of whoever signed their documents to be here. I I just simply cannot imagine being in those shoes and I've saw it over and over. Those aren't easy cases. You stack domestic violence on top of culture, on top of language, on top of children, on poverty, on top of poverty, and then throw in immigration. These aren't easy cases.

SPEAKER_01 4:14

As you know, I do DV work, domestic violence. There's a lot of English speakers who misunderstand the court system or don't get it, or you know, and I'm not trying to belittle anyone. I don't know how to build a house. I'm just saying there's certain people who are good at certain things, but maybe they don't understand the legal system very well, and then as you're saying, compound that with not even English is not even your your first language, or maybe you don't speak any of it, or just very little, or you can't write it, you're at a huge disadvantage.

SPEAKER_00 4:36

It's just a tough situation. And so those are the cases we go after because we know no one else will. To be candid with you, the easier cases are the cases that we want to perhaps, you know, share with a supervised person, someone we can supervise to do it, like a law student who we can work with to to solve that case, or a pro bono attorney who perhaps this isn't their primary practice, but that I mean they're lawyers and they understand it and we can assist them. That's where those cases can land because the more complicated ones, they cannot represent themselves. It will not happen.

SPEAKER_01 5:12

You mentioned systemic change. When we talk about systemic change, can we break that down a little bit? Like what are we talking about exactly?

SPEAKER_00 5:17

And I have an example too, but well, just as a general matter, and I'll let you share the example. But as a general matter, when we talk about systemic change, we talk about addressing issues further up the stream so that a difference can be made for those further down the stream. We always talk about the example of someone throwing babies in the water, and our role is to pull the babies out of the water. Everyone that comes down, we pull it out of the water, we save that baby. But at some point, somebody has to go upstream and see who's throwing babies in the water. When we talk about systemic change, we talk about going upstream, stopping the person from throwing the babies in the water to begin with. And so that's such a significant part of our work. And because of the relationships we build over time and the expertise we develop internally, a lot of times we're able to have success in impacting some of those.

SPEAKER_01 6:05

As you mentioned before, we have to do that. We have to do that without lobbying like a legislator. We can't go up to a Mr. or Miss Legislator and say, hey, can you please change this at your level? Because that is a problem affecting a lot of people. We cannot do that. So we have to look at other ways within the judicial system to do that.

SPEAKER_00 6:21

Yeah. We we absolutely look through the judicial system, but simultaneously we can educate our legislators and we do about who we are and what we do. And we can also educate them on how certain things may impact. Obviously, we can't tell them how to vote. That would be lobbying, and we don't do that, but we can certainly explain how something may impact, particularly if we're asked. If we are asked, and when we encourage legislators to ask us, if if you ask us how some bill or piece of legislation that you're considering may impact people, you can call us and we will produce a comment or report or memo to share with you exactly how our clients or our client community can be impacted by that particular legislation.

SPEAKER_01 7:05

So my example of systemic change actually has nothing to do with my office, it has to do with the Murphy's Boro office, and this just came up recently, is that there was, and I'm just gonna make this brief, there was some sort of issue where orders of protection were being filed. You know, a petition was filed for order protection. They were being dismissed without even a hearing. So the way the statute read it is either there has to be a hearing and the judge will dismiss it, but you can't just say, oh, this does not even get in front of a judge. My understanding that was happening in Rutherford County recently, and the attorneys there were able to bring it to one of the judges' attention in court. And that judge took that information to work behind the scenes or more accurately, to address the problem administratively to make sure that orders of protection were put on the docket so that the judge could determine, the elected judge could determine the merit of that order of protection. If they have to be dismissed there, that's fine, but at least after a hearing or so that the petition for an order of protection is not dismissed upstream, to go back to your upstream, downstream reference. I will tell you a lot of my wins, if you will, with as far as systemic issues at my level, the trial level issue, a lot of things can be handled in front of a judge or to a judge. It might be behind the scenes. Now I'm not talking about backroom deals or trying to influence a judge in a particular case. We cannot do what's called ex parte communication. Attorneys cannot go to a judge and say, please rule in my favor. That's prohibited by the rules of ethics. Ruling on a particular case. That's not ever going to happen without everybody being in the courtroom at the same time. There are ways to bring things to judge's attention, maybe through the clerk's office or through the judge's clerk themselves, and saying, hey, this is a problem systemically. Can we look at it and do something about it? A lot of top judges are really receptive to that and they know what should be going on and how things should work. The chief judge of whatever district you were talking about. I think if I have wins, it hasn't been at the appellate level or something like that. It's been sort of behind the scenes.

SPEAKER_00 8:50

Yeah, absolutely. And again, that goes to the role that we play because we're in the weeds. We we are we're in the weeds of this stuff. We're doing it all day. We we know if the comma that was added to the you know particular form changes things because we're dealing with that form every day. And so we're well aware of that. And so anytime we can educate a judge, which we do, and that's something that I used to do while in practice and and particularly leading the Family Law Unit in Nashville, anytime a new judge came on the bench, I made it my business to meet with them and to find an opportunity to talk to them about domestic violence and to help them understand the nuances of domestic violence, help them to understand that a domestic violence victim who's dealing with trauma may not testify in a linear fashion. They're the way their brain changes after you've had a trauma response may not allow for the testimony to come out exactly the way it should. That may be a nuance they don't know, or to recommend to them certain trainings that they might want to consider attending. All of that's advocacy. Because now when that judge goes in, they still have their independent judgment, but having knowledge or gaining information or education is a good thing. The more you're informed, the more you the better you can can decide. And so doing those sorts of things or or bringing individual things to the attention of a judge, not relevant to any particular case, but as a general matter. I remember advocating around the affidavit of indigency, and of course, that allows people to file their cases without having to pay the fees up front. And there is in the rules a presumption that if it's a LSC organization filing the affidavit, there's a presumption that that person is indigent. And in this particular court, they were making everyone prove their indigency versus taking the presumption and shifting the burden. And so conversations around just something like that, that impacts thousands of people who come behind who now don't have to take that extra step beyond filing their affidavit. It's simple things like that that our advocates do every day. They're in the courtrooms, they're seeing it, mentioning it, saying something about it, that's changing the tide for people down the line.

SPEAKER_01 11:06

I find that hypothetically, if Dr. Kenya went to Judge Robinson or Judge Smith, who were no longer on the bench, by the way, if you went to them about a systemic issue, not about a case, but a systemic issue, because you're legal aid, you have that cachet. In other words, you're not doing it because you're trying to make a buck. Or for an improper purpose. That sort of clout helps with courts being probably more willing to listen, especially since you probably had a good relationship with those two judges or bench in general. In other words, I think because we speak and maybe we were judicious about speaking about systemic issues, then uh judges are willing to listen, or whoever we're addressing. I'm not saying judges are gonna snap to attention whenever I bring an issue to their attention. What I am saying is often judges will find their own fix, but if you bring it to their attention, at least it is being brought to their attention and can be acted upon accordingly.

SPEAKER_00 11:52

We work really hard, and all of our advocates and attorneys do, to maintain our stellar reputation, which we do have. We do have a stellar reputation in the courtroom because our advocates are diligent, they are intentional, they do work hard, and we do have oversight. We we we mentor, we train, and we monitor our own attorneys to make sure that we're staying on top of it. We review, we have case reviews, we have file reviews where we go in and look at the legal work that our folks do. We're intentional about how we show up in court, how we show up in the community, and we really work hard to maintain that reputation so that when we do need to make a call, when we do need to say something, when we do need to talk to the judge, they hear us because they know that we're very intentional and meticulous about the work we do, and that if it came from legal aid, then it's probably been vetted a hundred times because that is a part of our process.

SPEAKER_01 12:41

Again, I don't mean to get like on a high horse or anything, but I kinda I kind of see myself as a little bit of an ambassador for legal aid, but also maybe, maybe, again, I don't want to sound too high mighty, but for indigent people for poor people, for people who don't have that voice. But again, I don't want to overstate it, but I just literally why we were created.

SPEAKER_00 12:57

Okay. Literally why we were created.

SPEAKER_01 12:59

I mean the ballpark then, huh?

SPEAKER_00 13:00

Yes. I mean that that is who we are. We are ambassadors, we do carry the torch, we do advocate on behalf of those low-income and vulnerable people who may not be heard otherwise. You can't tell the number of times that people have said the same thing, but they didn't hear it until it came from us. Our client may have said the exact same thing ten times in writing, but when we say it, people hear it. And sometimes that alone is the benefit of having us involved, is because they will listen to the lawyer or they will listen to the legal aid lawyer, or we're just able to articulate, you know, the point that they're trying to make a little better, and the goal is to get the result.

SPEAKER_01 13:38

So here's a couple more myths. I don't want to take resources from someone else worse off.

SPEAKER_00 13:43

Yeah, that and that's unfortunate that there are people who, you know, who do feel that way, but uh honestly that's exactly what intake is for. We do that. Like that's our job. Our job is to just is to determine if there is someone else that might need that slot instead of you right now. That doesn't diminish the importance of your issue, but it it is a a level of triaging we have to do. And so let us do that. Don't eliminate yourself.

SPEAKER_01 14:11

Uh yeah, try not to overthink it, which is what I do all the time, overthink things. But but sometimes I get paid to do that. Here's another myth. I already have a court date. It's too late. Oh, it's never too late.

SPEAKER_00 14:19

Well, I say it's never too late. If you have a court date, you miss the court date, you can still call because sometimes you have appeal rights that you can take up. Sometimes there may have been something done in the process that because it was not done well, it has to be redone anyway after the fact. If you weren't served, a judgment against you is no longer valid if it comes to light that you never received it. So there may be remedies available to you even after the court date, but you don't know that until you get some advice.

SPEAKER_01 14:49

Yeah, even if I got a judgment against me, I might be able to ask the judge to set that aside. There are ways to undo things if it's applicable. And by the way, that this comes up all the time is about people getting us to us too late, and and sometimes there's not much you can do about it. You know, they came to us too late. So if you have an OP hearing tomorrow and I've already got something going on, I cannot be in court with you tomorrow for that OP hearing, the order protection hearing.

SPEAKER_00 15:10

And that may be the case. And sometimes there's a scenario where we're educating you should this happen again, should you find yourself in this position again, this is what you should do. Unfortunately, there's no legal remedy now, but if you find yourself in that situation again, there is.

SPEAKER_01 15:26

I think you and I have talked about this before, but there's also, I don't know if it's a myth, but it's a common occurrence where people will come to us and it might be a clinic or it might be through a phone call or maybe it's a drop-in, and they're saying, hey, this is an emergency. This involves children. I understand you don't do custody visitation, but this is an emergency. And then you look at it, you you ask a question, well, are the children safe? Yeah, they're safe. You know, they're with me, but they might have to go back to the other side in a week or so, and you could say, and I say, well, this is an emergency. I mean, the judge is gonna say this is not a true emergency. Sometimes the emergency that the clo the potential client sees or the client sees is not really an emergency, and that is a reason to talk to an attorney, but your anxiety isn't warranted, or your level of anxiety isn't as warranted as you might think.

SPEAKER_00 16:06

Yeah, a lot of times that's what attorneys offer is some levity, and this is probably gonna sound more cavalier than I intended to, but honestly, if it's an emergency, call 911. If it's an emergency, then you should be calling 911. Typically, short of an emergency, it may be urgent, but rarely are there things that can be done that aren't between eight and five, Monday through Friday. If it is urgent, you know, certainly call if you need assistance, express that level of urgency. I will tell you from a legal perspective a lot of times, urgent equals a court date, and you should express that, you know, as soon as as soon as you call. Urgent equals safety, you know, you being in some situation where your safety is at stake. And again, typically in those situations, the first call is 911, then call us and we'll see what we can do at that point after that. But there it's again using the medical analogy, you know, you walk into the emergency room and your finger's bleeding and they're weighing it, and they may tell you to wait because the person beside you actually just got shot in the abdomen. And so it's not that your case isn't important, but there is a triage that's happening, and we may need to get to the person who got shot in the abdomen before we get to your bleeding finger, and that reality that anyone in any kind of service industry has to has to wrap their head around.

SPEAKER_01 17:29

I teased this a minute ago, but can you tell us? The answer is no, that's fine. But is there anything new on the horizon? Is there anything new, exciting right now regarding indigent representation? Thing new that we can share that might be coming on the horizon.

SPEAKER_00 17:43

So one of the biggest things that's happening right now is years ago the Tennessee Supreme Court made clear that their first priority is access to justice. And that is remarkable because every Supreme Court does not feel that way. Their first priority could be crime, their first priority could be elections, their first priority could be youth, it could be any number of things. But our Tennessee Supreme Court has named access to justice, and in that vein, a recent court order was issued requesting comments relative to the practice of law and the regulation of the practice of law. The regulation of the practice of law falls fully under the purview of the Tennessee Supreme Court. They determine who becomes a lawyer, who doesn't become a lawyer, how that's regulated, how it's monitored, all of the things, bar exams, all of that fall under the Supreme Court. And pursuant to court order ADM 2025-01403, court has asked for comments relative to the idea of paraprofessionals as well as alternative business solutions. In essence, what they're getting at is what does it look like if there were different pathways to becoming a lawyer, or if there were persons who did not complete law school but had perhaps an alternative pathway to be able to practice law, whether that's an apprenticeship program or something coming out of law school or the bar exam itself? How can we, question being asked, how can we find different ways to provide access to justice if we recognize that 50% of people are turned away from legal aid? There are a lot of what's called legal deserts, which means that there's less than one attorney for every 1,000 people in the area. What can we do to help people get access to legal services? And so a lot of comments are coming in. April 30th is actually the last day for comments to be made. And if you want to see some of the comments that's already been filed, they're on the Tennessee Supreme Court website and you can read those. But it's interesting to see where this conversation is going to go because it is centered around access to justice and the ability to find ways to provide more legal services to people who may need them. One of the ideas floating around is the idea of community justice advocates or community justice workers who are people who are certified in certain specific areas to represent people. And that exists in in administrative proceedings. There are advocates or licensed people who can represent you that are not lawyers in immigration cases and certain tax cases and social security cases, certain administrative hearings like at certain um public housing authorities, things like that. But what does that look like in certain other segments? And so we'll see. It's an interesting time for the Supreme Court to offer this invitation for for comment and we'll see what happens.

SPEAKER_01 20:35

It's an interesting time just in society with AI. Artificial intelligence. Is there anything coming down the pike that you can see regarding AI, artificial intelligence as it relates to indigent representation, or is it are we all just using the same tools regardless of whether it's indigent or not?

SPEAKER_00 20:51

No, I I anticipate as AI continues to develop that there will be more opportunities for self-represented litigants. I've spoken to many judges who have already begun to receive filings produced by AI on behalf of pro se individuals. Interestingly, most of them are not pleased by them because obviously it's still a work in progress and even what AI produces isn't in and of itself ready to be filed. There still has to be another set of eyes on it to check any, you know, sites to make sure that you're not citing two hallucinated court cases or that the arguments actually make sense in context or aren't unnecessarily wordy, which AI, at least right now, tends to produce. I do anticipate that it is going to have a growing impact on the practice of law as well as on individuals' ability to represent themselves in court. The end goal is access to justice. We have to be prepared for this reality because it it is opening the door for people to be able to assert their rights.

SPEAKER_01 21:52

Yeah, you mentioned hallucination AI hallucinating. I just did a train a few weeks ago, and hallucination, for those who might not know, is that AI will just make up stuff. If it doesn't, no, it'll just make up things. I hear what you're saying, but there's there is a caveat here. There's a warning, I guess, is that you might be producing something as an individual because you're relying on AI, and then when you put it in front of a judge, it's a bunch of gibberish, uh, literally legal gibberish. So what you said kind of was interesting in that context. Hey, uh, so in closing, in closing, I've got a few things here, and I think these are some of the points you made. I'm I'm gonna run them past you to see if you agree. If you need help from legal aid, call and apply today. Do it sooner rather than later.

SPEAKER_00 22:30

Yeah.

SPEAKER_01 22:30

We went through some of the misconceptions. Let's see, let's let legal aid analyze and see how we might be able to help you. If you don't need help, uh tell someone who does.

SPEAKER_00 22:38

Yeah, recommend us.

SPEAKER_01 22:40

Oh, okay. All right.

SPEAKER_00 22:41

Share it. Our biggest ambassadors are people sharing that they had a good experience or they know of a resource and telling someone else about it.

SPEAKER_01 22:50

We talked about how our supporters and donors make this work possible.

SPEAKER_00 22:53

Absolutely. We are eternally indebted to all of the folks who year over year make the decision to support legal aid. And it is something that has to happen year over year. One donation this year will assist us for this year, but then the the issues are there next year. And so for us having those donors that are willing to recurring donations year over year or even month over month, or are willing to make legal aid a part of their planned giving as they are determining their state plans that legal aid factors into that because they're interested in making a a long-term contribution to us. So we certainly encourage that. We folks to really consider the value of access to justice and how they can be a part of making that a permanent thing.

SPEAKER_01 23:38

Doesn't that kind of keep us on our toes? I'm again, I'm talking about our all of us, because we're always, and it's mainly you, I know, it's not me, I'm not I'm not doing it, but it's we the legal aid has to sell itself. Everybody's stretched thin. We're talking, we know what kind of times we live in, everybody's stretched thin. So we we are accountable in some ways to our donors because we have to show them that we're worthy of their money.

SPEAKER_00 23:59

Absolutely. And it and it's why I'm so dead set on delivering high-quality legal services. Our biggest challenge, and if detractor is probably the wrong word, but if there are detractors, they're primarily because we're unable to help people. But those who we are able to help, and for some it's unfortunate, it feels like a lottery. For those who are chosen, w we make such an incredible difference, and they sing our praises, which is awesome. But again, you have that segment of folks that we're unable to help who it it's just really a tough situation.

SPEAKER_01 24:30

Earlier in my career at legal aid, if I would send out counsel and advice letters, I would try to give people counsel and advice, that sort of thing. And I always thought that I'm not really doing a great job here because I mean if you go to the dentist you and you go in for tooth pain, they don't say, Well, here's how you get rid of your tooth pain, now get out of here. In other words, I thought I had to represent everybody. But I've learned over time that I can empower people by giving them the documents. And and at first there is that trepidation, there is that nervousness about having to go into court, giving themselves divorce. And as we're saying, we can't help everybody, but if I give you the forms and you go into court, you can do it yourself. Divorce is sort of a process like bankruptcy. I think those people who do it themselves and come out the other end are very happy that we gave them that leg up.

SPEAKER_00 25:10

Absolutely. That's the goal.

SPEAKER_01 25:11

People are stronger than they think, and all this stuff, people don't like file on their own taxes, but once you do it a time or two, you know, I'm not saying get divorced more than a time or two, but once you once you go through the process and get to the other end, you can look back on and say, I did this, I achieved, and yeah, there was some help, but I did it myself.

SPEAKER_00 25:27

Yeah, absolutely.

SPEAKER_01 25:28

Looking at the people we serve, there is sort of a certain dignity about them. I think we can look at our clients and we see the struggle and we can empathize with them, and even if we can't go all the way to full representation, we certainly s can appreciate their struggle and their their desire to get out of their situation.

SPEAKER_00 25:43

As a law firm, we do serve a certain demographic. That demographic is no less deserving of high quality legal services than someone who can afford to pay for it. You're not more entitled to get paid what you're owed because you have money, you're not more entitled to not be physically beaten because you have money. You're not more entitled to have repairs done because you have money. Every one of our clients is a whole person who has value. We try and deliver that level of dignity and respect to all of our clients on every level. It's how we talk to them when they call us. It is our physical spaces. If you've ever been into any one of our legal offices, they are very inviting, legal looking, um, law office-looking spaces. How we approach them, how we conduct ourselves around them, and honestly how hard we fight for them. It's because we want them to feel the dignity that they deserve. We don't want to be another agency that they called and didn't listen, or another agency that didn't do what they needed or didn't help them. We want to be an agency that once we take you on as a client, that you feel proud to have represented you and that ultimately you get the service that you need. That's what we do every day. That's what we look forward to every day. That's why people forego $700 an hour jobs to come do this because they want to make sure that you get what you need at the level you deserve it.

SPEAKER_01 27:15

Thank you, Dr. for coming to the studio and talking about legal aid. We appreciate you.

SPEAKER_00 27:18

Thanks for having me, Dean. I appreciate the opportunity.

SPEAKER_01 27:23

Thank you for listening to this episode of Talking Legal Aid. I'm your host, Dean Henton. Legal aid of Middle Tennessee's website is LAS.org, and the podcast website is legal aid in action. Buzzsprout.com. Don't give up hope.