(NOTE: If you haven’t read Parts I - III, you should take a little time and do so prior to reading Part IV. In doing so, Part IV will make a lot more sense. But as always, suit your self.)
Years ago when I was in law school, trial practice professors would instruct us to write our closing statement prior to even thinking about our opening statement. Putting the last before the first forces us to think about where we want our case to end up so that we can plot the legal map to get there.
Think about this as a call to reject the time honored admonition that if you don’t know where you’re going, any road will get you there.
Or, when I was studying to be a classroom teacher, one of my profs was a proponent of “Mastery Teaching.” Basically, you tell the students what you’re going to teach, conduct some form of a pre-assessment, then teach it, review what you taught, and then conduct an evaluation to see what the students retained.
Fortunately for all of us there’ll be no test on this material. We’ll stick with the trial practice model.
Good lawyers are good storytellers. A lawyer’s job is to tell a story to perfect strangers and get them to not just understand the story, but to accept and embrace it. Not to be ignored are the forensic aspects of the story - its elements and evidence that draws the listener/reader in. It’s the introduction of verifiable information, information that will survive adverse scrutiny, that gives texture to the story that enhances its believability and thus acceptance.
I fear I’m inadequate to convince my audience of the need to ensure that every civil litigant must have access to an attorney. I have spoken before two committees of the Rhode Island General Assembly advocating for expanded legal services for the poor. I have argued this issue to the Chief Justice of the Rhode Island Supreme Court to no avail. I have written a book on this topic. I have written on this blog and other publications advocating for, at minimum, an Access To Justice Commission in Rhode Island.
I have shown that such ATJ Commissions have value, not just in assuring a consistent administration of Justice, but also in offsetting many of the social costs of increased funding programs to assist homelessness, inequities in educational opportunities, and impermissible cessation of public benefits to name just a few.
I have focused on the issue of evictions. There are numerous studies that show that an eviction, in addition to the disruptive impact that relocation has on a family, impacts the evicted tenant’s economic stability, possible employment prospects, the tenant’s debt load and his inability to access credit, and the effects that evictions have on the physical and mental health of the evicted.
Since the vast preponderance of the evicted are low income persons, these unintended and unrecognized outcomes result in increased social costs borne by the broader society.
Put more starkly, we permit and finance a system that dehumanizes millions of people each year. And this is only one issue.
Imagine the other of life’s issues that most of us deal with every day. While annoying to us, these issues are threats to the stability and security of low income people. Put yourself in a position where you have a modest educational achievement, few resources and no help trying to navigate our bureaucratic systems with no one to assist you. Imagine the threats you face and the vulnerability you would feel. Imagine a life where each day is a struggle to survive to the next day.
We permit and finance those systems as well.
And it’s not going to get any better in the foreseeable future. As reported in the 2021 Census, there are 37.9 million people, or 11.6% of the population who live at or below the Federal Poverty Level (FPL). Twenty-five percent of people with disabilities, 23% of single moms, 20% of black Americans, 17% of Hispanic Americans, and 15% of children all live in poverty.
Because the COVID era expansion of SNAP benefits will expire in March, 32 million families will see their access to food diminished. This expansion kept 4.2 million people out of poverty and reduced by 14% the level of childhood poverty. A 2016 report published by CNBC indicated that 42 million people live with food insecurity.
Every $1.00 spent on SNAP currently generates about $1.42 in Gross Domestic Product. With the SNAP benefits cut, will we return to the bad old days where 42 million people worry about whether they have food to eat? In the United States? The dystopian future almost writes itself.
That said, I assert that the above FPL numbers do not measure the actual level of poverty in America. The measured numbers are way too low. Around 2014, the Census Bureau began using an alternative method of calculation that increases the number of persons living at or below FPL by one-half to one percent. The alternative calculation of poverty is also too low.
It’s not often that I agree with David Sorota, who termed numbers like FPL and the monthly unemployment numbers, as “political” numbers designed to make public official look good. Now that seems a little harsh, but harsh is not necessarily wrong. For example, why is it that the U3 number (Total unemployed, as a percent of the civilian labor force) which was 3.4% in January 2023 instead of the U6 number (Total unemployed, plus all persons marginally attached to the labor force, plus total employed part time for economic reasons, as a percent of the civilian labor force plus all persons marginally attached to the labor force) which reports a more complete number of 6.6% for the same month?
It’s hard to ignore Mark Twains’s admonition that there are “lies, damned lies, and statistics.”
The better measure is the “standard of need,” the no-frills calculation of the amount of money it takes to maintain a minimal standard of living. For example, in Rhode Island, in 2022, the Economic Progress Institute calculated the differences between 100% Federal Poverty Level (FPL), 200% FPL, and the Rhode Island Standard of Need (RISN). They are as follows for a two parent, two children household:
100% FPL - $27,750
200% FPL - $55,500
RISN - $73,822
The rate of poverty in Rhode Island is 11.4% FPL, which calculates to 120,212 people. And that’s the low number. Using the national average of 3.13 persons in a household, this would calculate to 38,406 households in Rhode Island. Using the generally accepted number of 2 legal issues per low income household, this calculates to a total 76,812 legal issues. Per year. Every year. In Rhode Island.
The potential of civil legal needs for this number of people, who remember have no “right” to an attorney, portends an on-going tsunami of legal needs with no plan in place to meet those needs.
There is no right to an attorney in civil matters. Thanks to the Lassiter decision, along with the ideological makeup of the current Court, there is no likelihood in the foreseeable future that this issue will be revisited.
I have previously written here and elsewhere (e.g., my book) that the judgment in Lassiter was horrible. Indeed, it was beyond horrible. However, it did, mostly in dicta, allow for an attorney to be provided if a party’s liberty interests or a fundamental right was threatened.
“Liberty” interest has been narrowly construed to mean incarceration. Tell that to the evicted low-income family sleeping under an overpass who wasn’t represented by counsel at an eviction hearing that their liberty interests were not impacted by an adverse court decision.
Fundamental “rights” can mean anything from marriage to parenting to privacy to travel. So here’s an irony alert: Abby Gail Lassiter was not represented by counsel at her termination of parental rights hearing. Justice Stewart, author of the Lassiter opinion, found that parenting was a fundamental right but failed to hold that Ms. Lassiter should have had an appointed counsel at her TPR hearing. He concluded that a lawyer would have been no help to Lassiter’s case. Kind of like “no blood, no foul.” Stunning.
That doesn’t mean that nothing is going on to bring legal services to low income individuals and families. Since the establishment of the Legal Services Corporation with a presence in all 50 states, through the establishment of Access To Justice Commissions in most states, with local efforts in the heretofore mentioned cities of New York and Albany, along with the recent expansion (by zip code) of legal services to Philadelphia’s low income residents - all focusing on the single issue of eviction - there are efforts to fill the legal void in civil matters.
As exciting as these efforts are, they are nowhere near enough. I wrote that nationally there are 2 - 3.2 million eviction cases each year. How many more millions of cases touching on marriage and parenting matters, public benefits and debt collection matters, and employment and education matters are there each year, impacting low income residents in communities throughout the nation?
And why isn’t more being done to meet these needs? I have offered an analysis, both in this thread of posts and also in my book, of the intransigence of Rhode Island’s institutions, and the leadership of those institutions, to change. In the context of this thread, I use the term Institutional Law.
In the last analysis, the issue of providing legal services to low income parties touches on two of the basic tenets of our society - democracy and Justice. Both tenets rely on equality and fairness. In the realm of the law, each of us must be afforded a basic level of legal services so that we may be provided a fair chance of a merit based outcome. Anything less offends any notion of a fair, just, and democratic society.
Meeting this challenge must take place at the local level. And doing so, without national financial support, will not be easy. But as I have pointed out in my book, there are ways to maximize limited resources to meet the needs of more people confronting a variety of legal issues.
The formation of an Access To Justice Commission is not a final, but rather is a first step for us to live our ideals as a state and nation. But it takes political will to make that happen, a commodity in short supply in Rhode Island.
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