Exploring Equal Justice: Law Clinic Students Study Unmet Legal Needs

Margaret Moore Jackson

 
Exploring Equal Justice: Law Clinic Students Study Unmet Legal Needs

By Margaret Moore Jackson
Associate Professor of Law, Lloyd & Ruth Friedman Fellow
University of North Dakota School of Law*

Originally published in The Gavel, February 2009 (pdf)
Official Publication of the State Bar Association of North Dakota

Download original pdf version of this article.

 

The concept of “equal justice under the law” provides the theoretical foundation for our legal and governmental institutions. 1 Thanks in part to our comprehensive system of civil laws,many problems experienced by people in this country have legal dimensions that could play a role in fairly resolving them. These controversies often cause individuals intense stress and anxiety, along with financial losses. But despite the negative impacts involved, disputing parties may not submit their dispute to the legal system or even obtain any professional legal advice. In fact, low- and moderate-income Americans report that their most frequent response to civil legal needs is either attempting self-help or taking no action at all. 2

Although we may like to believe that people decide whether to assert their legal rights, for some, there is no real choice to be made. With the high cost of legal services, forbearance of claims is often an involuntary reality for lower-income persons who cannot afford legal representation and cannot effectively represent themselves. 3 Recent studies of civil legal needs nationwide confirm that lower income persons navigate the vast majority of their civil legal needs without the assistance of a lawyer. 4

What is the impact of a legal system that operates to price some people out of the courts? Are there particular geographic regions where people are more likely to face difficulty obtaining legal representation? Are there certain areas of law in which claims are most frequently relinquished, because people with those types of legal problems are unaware of their rights or have no viable means of enforcing them? How concerned should we be as lawyers, or as a society, about the answers to these questions? As articulated by The Honorable Raymond Pace Alexander:

The businessman does not seek a license, a franchise, a government contract, or a subsidy without his lawyer at his side. Is the need of the poor for shelter, possession of household furniture, sustenance, or custody of his children less important? 5

To learn more about the people who go unrepresented and the claims that do not get asserted, law students enrolled in the Clinical Education Program at the University of North Dakota School of Law (“the Law Clinic”) designed and implemented the North Dakota Civil Legal Needs Assessment. 6 In this study, Law Clinic students specifically aimed to explore the legal issues facing lower-income and under-represented residents of North Dakota. Particular emphasis was placed on identifying the nature of these legal needs and the extent to which certain legal rights may be unenforced in our communities because disputes involving those issues are so seldom brought before the judicial system.

Creating the Questionnaire

One of the first tasks involved in the Legal Needs Assessment was to develop a tool for obtaining detailed information about what are often quite sensitive, personal matters. Law students designed a 94-item questionnaire inquiring into common situations that often give rise to a need for civil legal services. 7 To reveal these otherwise unseen needs for legal representation requires substantial probing, because laypersons are often unaware that problems occurring in their lives impact legal rights that could be pursued. 8 The students worked to phrase the questions using language that non-lawyers could easily understand, while simultaneously considering ways to convey to potential respondents that they were not being judged for their past decisions or experiences. To protect confidentiality and enhance respondents’ cooperation, care was taken both to ensure anonymity and to assure respondents that they could not be identified.

Obtaining Public Participation

Students collaborated with a variety of public and non-profit agencies to distribute the questionnaire and, if necessary, assist respondents in completing it. 9 At the outset the students set a goal of obtaining a minimum of 600 completed questionnaires.After considering the likelihood of obtaining responses through various methods of outreach, the students decided on a multipronged strategy for data collection. The questionnaire was distributed by mail and in person throughout the state at community, non-profit, and government assistance centers and at community events. Students also conducted extensive in-person and telephone interviews. In addition, some participants completed the questionnaire online. The students committed many nights and weekends to the outreach effort, traveling great distances to get the questionnaire distributed to and completed by participants throughout the state. Creative methods of obtaining participation were used, such as attending community gatherings and special events. Several of the students involved in these efforts recently shared their memories of the experience as being rewarding on multiple levels:

Trista Roy 10 recalls that,“We visited several communities across North Dakota, in order to get better results that represented a wider cross section of the state. In looking back at that trip, people's enthusiasm and willingness to participate is what stands out the most to me.We were always greeted and treated kindly by community leaders and other people. They were interested in what we were doing and often shared personal stories about their legal struggles. People were glad that [Law] Clinic students and the legal community were taking a look at what could be improved to make the system better for everyone. It was encouraging to have that kind of support in putting something like this together.”

According to Mark Waddell, 11 “Traveling across North Dakota from the Red River to Montana to get the perspective of its people regarding their legal needs was eye-opening and heart-warming. The people truly appreciated that someone was listening to their needs, and I really hoped that our Law Clinic could be their mouthpiece to bring positive changes in their respective areas of the state. We made a promise, to make sure their voices were heard, and by analyzing and submitting the survey we felt we were putting the wheels of change into motion.”

Amanda Grafstrom 12 remembers that,“The idea behind the outreach effort was to make sure that we covered all cross-sections of North Dakota, paying particular attention to traditionally under-represented populations. It was a great opportunity for Clinic students to interact with non-clients and hear thoughts and feelings about North Dakota attorneys and the legal system. It was enlightening for us to hear about the ways our profession affects people’s daily lives and how just about every person we talked to had some contact with the legal system. It was also gratifying to hear that most of these experiences were positive!”

Examining the Results

Ultimately, 700 completed questionnaires were received and transferred into survey software by Law Clinic student Joy M. Bingham 13, who also spearheaded this project. The collective results of the data were then broken down by topical area and two primary populations of interest – elderly and Native American residents. Generally, the results indicated that approximately 68% of North Dakota respondents had experienced a need for legal representation during the prior 5-year period. 14 The most common areas of legal need were in housing law, family matters, estate planning, and consumer issues. 15 A copy of the detailed Executive Summary is available on the Law Clinic website. 16 These findings are consistent with the results of the most recent national survey of legal needs conducted by the ABA, which concluded that nearly half of low- and moderate- income American households were experiencing at least one situation that could be addressed by the civil justice system. 17 According to the national study,“[t]he most common legal needs of low- and moderateincome American households pertain to personal finances, consumer issues, housing (both owned and rental), and other real property.” 18

The ultimate effects of the Legal Needs Assessment in North Dakota are yet to be determined.However, according to Joy Bingham, the basic goals of the project were met.“At a minimum, the project developed a foundation for the State and its legal community to explore and act upon ways to foster access to the judicial system for all residents. At least 700 North Dakotans have now been introduced to the knowledge that normal, daily circumstances may have legal ramifications or remedies, and, hopefully, have been given the assurance that legal organizations and able individuals do exist that want to help them.”

Law Clinic Projects as a Component of Clinical Education 19

The primary focus of the Law Clinic is for students to study law and lawyering while taking on the role of the lawyer. Law Clinic students apply the law in the context of real cases and engage in sustained “reflection in action.” 20 Recent studies of legal ducation have confirmed that integrating legal doctrine, practical skills, and professional identity is essential to a sound professional education. 21 The accrediting body of the American Bar Association requires all member law schools to provide “substantial opportunities for live-client or other real-life practice experiences, appropriately supervised and designed to encourage reflection and the development of self-assessment abilities.” 22 ABA Standards governing law school accreditation expect law schools to ensure their graduates “understand the law as a public profession calling for performance of pro bono legal services.” 23 With these goals in mind, students enrolled in the UND Law Clinic have the opportunity to engage in public research and service projects. Past projects initiated by Law Clinic students have included presentations on legal issues for high school classes, community groups, and organizations serving housing assistance recipients, homeless persons, and the elderly population. These projects round out the Law Clinic course, which also includes classroom seminars, reflective writing assignments, and supervised liveclient representation of otherwise unrepresented individuals and groups in housing, employment, or general civil rights matters.

* Associate Professor of Law, Lloyd & Ruth Friedman Fellow, University of North Dakota; J.D.,University of San Francisco, 1992; B.A.,University of North Carolina, 1988. Thanks go to my research assistant, Gabrielle Goter, and to other former Law Clinic

 

1 As famously asserted by Justice Lewis Powell, Jr.,“Equal justice under law is not just a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society…It is fundamental that justice should be the same, in substance and availability,without regard to economic status.” TASK FORCE ON ACCESS TO CIVIL JUSTICE, Report to the ABA House of Delegates, Creating a Constitutional Right to Counsel in the Civil Context, 15 Temp. Pol.& Civ. Rts. L. Rev. 507, 508 (2006).

2 ABA CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, Legal Needs & Civil Justice: A Survey of Americans (1994), available at http://www.abanet.org/legalservices/sclaid/publications.html (last visited Jan. 12, 2009).

3 LEGAL SERVICES CORPORATION, Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans (2007), available at http://www.lsc.gov/justicegap.pdf (last visited Jan. 9, 2009) (finding that low-income people report financial concerns as a primary reason for not obtaining legal representation).

4 Id. at 4, 14 (concluding based on several state studies that less than one in five of the civil legal problems experienced by low-income people are addressed with the assistance of any lawyer).

5 COMMUNITY LEGAL SERVICES OF PHILADELPHIA (quoting the Honorable Raymond Pace Alexander, rendering decision approving the Community Legal Services Charter, 1966), available at http://www.clsphila.org/Content.aspx?id=407 (last visited Jan. 13, 2009).

6 North Dakota Civil Legal Needs Assessment for Civil Matters, hereinafter cited as “Legal Needs Assessment.”

7 The questionnaire is available at http://www.law.und.nodak.edu/Clinics/f08/NDLNA-08.php.

8 LEGAL SERVICES CORPORATION, supra note 3, at 9, 13 (concluding that, based on seven state surveys of legal needs, many low-income people do not identify their problems as having legal dimensions or solutions).

9 In addition, both the State Bar Association of North Dakota (SBAND) and Legal Services of North Dakota (LSND) contributed financially to this project.

10 Trista Roy graduated in 2007 and is an associate attorney at the Consumer Justice Center in St. Paul, MN, where she engages in consumer and Fair Debt Collection Practices Act litigation.

11 Mark Waddell graduated in 2007 and is currently an associate at the construction litigation firm Canterbury, Elder, Gooch, Surratt, Shapiro & Stein in Dallas, TX.

12 Amanda Grafstrom graduated in 2007 and worked as an intern with the Office of the Prosecutor at the Special Court for Sierra Leone. She is currently clerking for the Honorable Joseph A. Evans in Minnesota’s Seventh Judicial District.

13 Following her graduation in 2007, Ms. Bingham clerked for the Honorable Michael J. Kraker in Minnesota’s Ninth Judicial District. She currently is an associate attorney specializing in civil litigation at Jones & Swartz, PLLC, in Boise, Idaho.

14 Joy M. Bingham, NORTH DAKOTA LEGAL NEEDS ASSESSMENT FOR CIVIL MATTERS: EXECUTIVE SUMMARY 6 (Jan. 28, 2008), available at http://www.law.und.nodak.edu./Clinics/f08/NDLNA-08.php.

15 Id. at p. 7.

16 http://www.law.und.nodak.edu./Clinics/f08/NDLNA-08.php.

17 ABA CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, Legal Needs and Civil Justice: A Survey of Americans (1994), available at http://www.abanet.org/ legalservices/sclaid/publications.html.

18 Id.

19 Clinical education has been defined as a live-client experience, supervised by law school faculty, for academic credit. See SUSAN BRYANT, ELLIOTT S. MILSTEIN,

20 Reflections Upon the 25th Anniversary of the Lawyering Process: An Introduction to the Symposium, 10 Clinical L. Rev. 1, 6, note 15 (2003) (citing WILLIAM PINCUS, Legal Education in a Service Setting, in Clinical Education for the Law Student, WORKING PAPERS PREPARED FOR CLEPR NATIONAL CONFERENCE 27 et seq. (1973)).

21 PETER A. JOY, The Law School Clinic as a Model Ethical Law Office, 30 Wm. Mitchell L. Rev. 35, 43-44 (2003) (citing DONALD A. SCHON, Educating the Reflective Practitioner 31-36 (1987)).

22 See WILLIAM M. SULLIVAN,ANNE COLBY, JUDITH WELCH WEGNER, LLOYD BOND,& LEE S. SHULMAN, Educating Lawyers: Preparation for the Profession of Law 22, 28 (2007) (identifying the three apprenticeships and recommending that legal education include “forming students able and willing to join an enterprise of public service”); ROY STUCKEY & OTHERS, BEST PRACTICES FOR LEGAL EDUCATION at 84-5 (2007) (stating that, for law schools,“teaching law students to strive to seek justice may be the most important goal of all.”), available at http://www.cleaweb.org/resources/bp.html.

23 AMERICAN BAR ASSOCIATION, Standards for Approval of Law Schools (2008-09), Standard 302.

24 Id. at Preamble, subsection (3).