Bar News - December 16, 2015
Opinion: Accessibility: The Legal Profession’s Biggest Challenge in the 21st Century
By: Tony Sculimbrene
The 21st century lawyer faces a system with one overarching challenge —accessibility. In addition to the cost of legal services, which is daunting even to the middle class, making access to representation a major issue for our country, the legal system must also tackle accessibility as it relates to procedures, concepts and human capital.
Technology, although helpful, cannot solve these problems alone. The NH e-Court Project and the Trial Court Call Center are increasing accessibility, but solving the challenge of accessibility will ultimately fall, as it always does, to the people within the system.
Procedures enable people to enter the court process. Presently, when a non-lawyer walks into a courthouse, he or she is greeted by racks of poorly written, overly complex, and jargon-loaded forms. The court rules are written for lawyers. The rules of evidence, well, I have no idea who the intended audience is for those, but they are uniformly terrible, logically inconsistent, and mostly unworkable. Getting into court and making arguments is a herculean feat for a pro se litigant. Were it not for the help of professional court clerks and their staff, it would be almost impossible.
Once a self-represented litigant gets into court, the challenges are even steeper. Many of the concepts lawyers take as foundational are foreign to non-lawyers. Look at the comments section of most legal news stories on the web, and you will see people expressing disbelief about what happened in court. This is our fault as a profession. We have not engaged non-lawyers enough to explain to them why, for example, the Exclusionary Rule matters. It is a safeguard of liberty, a disincentive to invade privacy, and that is something everyone, lawyer and non-lawyer alike, supports philosophically, but the public is unaware of this purpose, and instead sees the Exclusionary Rule as a dastardly technicality that keeps the truth from the jury and breaks the criminal justice system. We need to make clear the foundations of the law, the ideas that animate our system, and we need to do it in a way that is accessible to non-lawyers. We have good reasons for legal principles. We just need to communicate them more clearly to the public.
Finally, we as lawyers need to be more accessible. Often I feel like it’s a chore to move everything off my schedule and just talk to a client. With three courts every morning and jail visits, motion hearings, and other events, it seems like client contact is a scarce commodity. I have no idea how lawyers with corporate clients build relationships with their even busier schedules. That’s one of the reasons why I now give all of my clients my email address and strongly encourage them to use it whenever, night or day. It helps head off big problems (“Is this person on my no-contact list?”) and ease emotional concerns, such as the normal anxiety people have about going to court. It also lets me tell them, on the very day of court, where I am and if I am running late as I travel across the New Hampshire countryside (Jaffrey to Salem is one heck of a trip, especially in February). A quick message, sent safely from the court parking lot, is enough to let clients know they are important and I am on my way.
The clear challenge for us as a legal system going forward is accessibility. Technology can get us part of the way there, but it alone is not enough. We need to come together in a shared commitment to making our system, our ideas, and ourselves accessible to the people we serve.
Tony Sculimbrene is a public defender based in Nashua. His opinions do not reflect those of his employer.