Former public defender, legal services attorney, and justice technology designer. Foremost crusader for the cause of self represented litigants in US.
Oral history details
|Date of interview:||Oct 25, 2017|
|Where relates to:||District of Columbia, Massachusetts, and New York|
|Topics:||Access to justice and Technology|
Full text of transcriptDownload PDF: Transcript
Consortium for the National Equal Justice Library
Oral History Collection
Interview with Richard Zorza
Conducted by Alan Houseman
October 25, 2017
Alan Houseman: This oral history of Richard Zorza is being recorded in Bowie, Maryland, at his home. The interviewer is Alan Houseman for the National Equal Justice Library. Let’s begin, Richard, with a summary of your biography or your life. Where did you grow up? Where did you go to college and law school and what kind of jobs have you held? And then we’ll come back and focus on some of these in much greater detail.
Richard Zorza: Absolutely. So I was born in England in 1949. I came to the United States on an English Speaking Union scholarship to a prep school in 1968. It being 1968, it was much too much fun to go home. So I stayed. I went to Harvard College. I then did a variety of things, including working at a place called Vocations for Social Change, which was part of AFSC, the American Friends Service Committee. That included creating an unemployment advocacy project, so that’s sort of relevant.
RZ: Then I went to law school. Then I clerked for a year. Then I taught legal writing at a law school for a year. Then I worked for eight years for the Massachusetts Public Defender. Then I moved to New York City to the Vera Institute of Justice. I helped them set up the Neighborhood Defender Service of Harlem and then worked more generally on a consulting basis through Vera with a number of different groups, including New York City cops. Then I moved to the Fund for the City of New York where I did a variety of access to justice technology stuff that ended somewhat unhappily. I then went into a lot of private consulting work, including as part of that creating the Self-Represented Litigation Network (SRLN).
AH: Great. So, what factors, influences and mentors led you to go into legal aid and legal defender work?
RZ: Before law school, I had been in this unemployment advocacy group, which we called Unemployment Law Project. It’s a cute story that it was only after I was applying for the bar that I realized I might have engaged in the unauthorized practice of law. I discovered, fortunately, that in Massachusetts, as everywhere else, there’s an exemption to the unauthorized practice of law statutes for people doing unemployment advocacy.
RZ: But what’s important is that we became part of the unemployment coalition run out of Mass Law Reform by Allen Rogers. So, I was actually going to meetings at Mass Law Reform before I went to law school. So it was very natural for me to think in terms of access to justice. At the time, I think I really went to law school because of that project and being interested in worker’s rights litigation. I remember reading stuff in the New York Times Magazine about one of the greats who created such a clinic.
RZ: It has always been very clear to both my wife, Joan, and myself, that we went to law school to help poor people. We didn’t go to law school and then get jobs helping poor people. We had to be very clear about that. When we graduated, it was, in my case 1980, and in Joan’s case 1981. We had a combination of Ronald Reagan and Ed King and the jobs just weren’t there. So that’s why I ended up at the public defender because the job was there.
RZ: In fact, for a long time and from very early in my career, I was the only bridge between the public defender world and the then-labeled “legal services” world. There was an enormous amount of hostility that had some state-specific individual historic roots that probably don’t matter. But it meant that the kind of things that we now have in many states didn’t exist. So, even though I was working for the public defender, I came upon a publication that you did about the future of legal aid when it looked like Dukakis would become president in ’88. I remember you did it and it was great. But I was undoubtedly the only public defender there.
AH: So at Mass Law Reform, did you just solely work on unemployment?
RZ: Actually, another story that was very cute, very special for me, is this was the year when there was work study in law school. So I went and got approved for work study, and I called Allen Rogers up and I said, “I’ve gotten approved for work study.” He just said, “Wow,” because he knew where I was going. That was one of those compliments that carries you on in life.
RZ: So then I did a lot of unemployment stuff. I did a lot of work with Tony Windsor helping to write practice manuals specifically on interlocutory appellate review in Massachusetts. It was then, and I suspect still is, the most unbelievably ridiculously complicated tangle. Then, and here’s where another braid comes in, there was some kind of legal services computer project that came to pass in the era when it was clear there was going to be a huge change in governance at LSC and a huge different usage of money. A bunch of money was invested in technology. Actually, two of the pilot programs were in Massachusetts — Esther Lardent’s Volunteer Lawyers Project and Allen Rogers at Mass Law Reform. I was actually paid by Mass Law Reform to help them manage their end of the project. I had done computing stuff in high school. But that was the time when the two started to come together. But I was not paid for substance at Mass Law Reform.
AH: And how long did you do the public defender work?
RZ: I was there for eight years. I started the first two or three years as an appellate attorney doing a bunch of cases, and being part of the team that’s almost in an ongoing debate with the state appeals court about evolving law. Bernie Spear, who you probably know, was my supervisor and this incredible guy. He knew exactly how to supervise me. He had me down from day one and I needed it. But then, about two, three or four years in, I started getting engaged in the creation of a technology initiative there. First I helped them buy computers for the appellate. That then got into creating a whole online advocacy system, litigation support system, which was, not a phrase that was used much in those days — and it actually meant something very different — that would give all kind of tools to advocates.
RZ: By the time I left, we had pretty much — we are now talking late ’80s — computers on every desk and a legal research system built on our own case summaries. The first thing we’d done was with the billing system. The Committee for Public Council Services had both a public division and private division, so it was salaried, defended, and assigned counsel. So all the statistics were on the same system. I could go to the computer and type in a query and I could find all the cases statewide with a particular charge or with a particular assigning judge and so on. But we also did a lot of stuff for salaried attorneys.
AH: So after public defender, you moved to New York and got involved with Vera. Describe what Vera is and what you did.
RZ: The Vera Institute of Justice really is best understood by its history. Early in the ’60s, during the Kennedy Administration, somebody had the idea that maybe people would come back to court even if they weren’t held in prisons on high bail. It was a radical idea. They did some research experimenting with measuring people’s ties to the community, predicting whether they could come back with essentially zero bail. Sure enough, if you selected the people right, you didn’t need to set bail amounts. People would come back to court anyway. That became the standard in every common law jurisdiction. It’s eroded since.
RZ: So Chris Stone, who’s just actually about to move on from being head of OSF Foundations, was starting this new public defender at Vera, which had become what they called an action research institute. At that point, the idea of the Vera model was we take an area in the justice system, we study it, we develop a theory about how to improve it, we do rigorous research on it, and then we publicize and hopefully replicate. It didn’t always work that cleanly. This was a public defender in Harlem. Chris brought me in because he wanted to do the best public defender technology there was and he was fantastic support.
RZ: He gave me enormous amounts of money by the standards of the time. We did things that I’m not sure anybody else has ever done, like use what I now know as GIS to map every investigatory location. So we knew, when a crime happened, who were our friends on the street. We indexed by cop. We indexed by DA. We used email to tie teams together because it was a team-based system with social workers and investigators. The minute you got a new case on the team, you would get an email that other people in the office have cases with the same cop, cases with the same DA. We are now talking about the early ’90s. We were using email to tie stuff together in a way that’s routine now, but nobody was doing before. So we were very, very proud of that.
AH: And after Vera, you worked with the Fund for the City of New York. What was that about?
RZ: The Fund’s a very strange place and so it tends to be pretty fragmented. But there were a lot of links like Herb (Sters?) had been very involved with both it and Vera. Fritz Schwartz had been on both boards. And it was basically established by Ford in lieu of tax payments. Ford gave money to this operating foundation in New York which basically ended up spending most of it itself. I was brought in to do technology and did the most important project by far, with the online domestic violence system, that was done with the Legal Services Corporation. But for reasons that I tend to think of having to do with very poor management, I fell out with the director and was terminated. So then I went into private consulting.
RZ: But in terms of the history, I think, of technology in legal services, there are a lot of other things going on. Julia Gordon was working at your project and people in Maine were doing work. But what actually happened was I was brought in by Ed Quatrevaux when I was at Vera, first at Vera and then the Fund, but much more the Fund, by Ed Quatrevaux and …
AH: And who was he?
RZ: Ed Quatrevaux was the Inspector General of LSC. There is a naturally tense relationship between the IG and the Corporation. That was there, indeed. But one very, very positive thing that Ed did was saw the potential of technology to make the legal aid access to justice system far more efficient. He did a series of studies. I was brought in as the consultant partly because I had credibilty, but also hopefully because of ideas. He authored a very influential report. If nothing else, it was influential in getting Congress to add the TIG grants, which have now been going on for nearly 20 years. That’s the ongoing technology initiative program, which is a significant amount of money for technology and access to justice. It allows long-term planning and expansion in all the ways that people see every day.
RZ: In the mid-90s, the first thing that happened was that — initially with Ed’s help and then after some politics with the board, Ed had to stop supporting it — we built a system that would allow people to go online to prepare domestic violence protection petitions with the idea that they would be able perhaps to do it without going to court. We worked with the Georgia Legal Services Program and the Atlanta Legal Aid Project and did something that nobody had done, although Maine was working on something somewhat similar. It’s nice to feel that, when Ed Quatrevaux showed it to the House appropriators, that was the tipping point in getting them interested in the TIG program.
RZ: Of course, Georgia only replaced that thing two or three years ago. So it was up for a long time. Now we have huge document assembly projects in access to justice. I don’t want to say that it’s all me because it isn’t. Lots of other players played a role. But it was certainly a time that needed movement. What happened when LSC funding ceased was that I went to the State Justice Institute and got funding from them on the idea that this was court related. David Tevelin was head of the State Justice Institute at the time. I have to say he was superb. He waived the deadline. He did the things that good bureaucrats do — totally lawfully, totally within their rights — because they see the value of something and don’t want it to go away.
RZ: And then, and you, Alan, were part of this, in 1998, just around the same time, we had that summit conference on technology in legal services and legal aid. As you noted at the time — and it meant a lot to me and actually still does — one of the great things about that conference was that we brought in outsiders. We brought in people from the National Center of the State Courts. We brought in people from the State Justice Institute. We brought in people who were doing some of the same kind of work in the private sector, thinking of Richard Granat.
RZ: I remember specifically a colloquy between the two of us where I said, “Do we have consensus?” And then you and I actually went back and forth. And then I said, “Well, do we have a common basis for moving forward?” And you said, “Oh yes, I think we do.” I think that was a very important moment in moving that forward because, relatively soon after that, John McKay, who’d been very supportive of it, was able to take advantage of a moment when Clinton and Congress were clashing about the budget to get that slipped in.
AH: I want to turn now, and you can weave in other things as we go through these, to some of the work that you’ve done in your consulting capacity over the years. I want to focus first on the Self-Represented Litigation Network. Why was it formed? What does it do? What impact does it have? Where is it today? Why did you become involved with that and why do you think it’s important?
RZ: Well, at the risk of telling the story of access to justice through me, though I guess that’s the inevitable nature of these interviews, it actually ties directly back to when we were doing that work for the domestic violence system. The reason we were doing that work was because it became really clear that, if we really wanted to leverage technology to change the numbers on access to justice, just making lawyers more efficient wasn’t going to be enough. This was where everybody started this debate. This is a hugely important point. We had to leverage technology so people could do more on their own or bring in new people to do stuff that was being done by lawyers before. There’s just no alternative. So that’s why we did the domestic violence project and we chose domestic violence because of its political popularity.
RZ: That core insight was the basis for more and more cooperation between sectors — the courts, the bar, and legal aid as we were by then calling it — on innovation and particularly, but not only, technology innovation. So what happened was, after I was fired and I was doing various consulting, the biggest consulting by far and the block that gave me financial security (because that’s the trick to consulting, to have a base contract), was Catherine Samuels and the Open Society Institute brought me in to help them with the general problem of how technology can be used to strengthen and/or substitute for the backup center network, which was deteriorating because it was defunded.
RZ: Lots of things came out of OSI’s initiative. While I was originally intended to work with a backup center, Catherine gave me an enormous amount of flexibility. It was really almost like for five years, I had a MacArthur without the honor. I don’t want to overstate it. There was much reporting and back and forth and so on. So we were able to focus a significant amount of energy on organizing those people in these different silos or containers, on self-represented litigants.
RZ: So Catherine actually organized something that she called the Funders Group that brought together LSC and at this point John McKay, The National Center for State Courts, The National Association of IOLTA Programs represented by Jane Tyrell at the time, the Justice Institute, and, interestingly, the technology innovation program in the Department of Commerce under Clinton that was closed down under Bush. We met every quarter and it was a very productive communication-sharing set of meetings that resulted in quietly a number of initiatives because we had funders in the room, and pro bono.
RZ: One of the things that came out of it was what we called the collaborations conference. That was a conference adopting a model that had been used at the Justice Management Institute of bringing together teams of people from different silos within five or six states and working with them on the creation of an agenda. Actually, that happened with 50 states on self-represented — pro se, as we called them then — litigants in 1999. That was a very important blending moment. The people who organized that were part of this funder group discussion. So then we had one of those things in New Orleans for Katrina. And the people who’d organized that then kept meeting and that included people like Glenn Rowdan from LSC. People like Catherine Samuels from the organization that died, the America Judicature Society, and Michael Hertz from Pro Bono Net.
RZ: And we then started. We had a few small conferences. We weren’t any kind of institution. Different people funded different things, but it was building a common intellectual basis. I wrote a short book the National Center published, “Pro Se: The Self-Help Friendly Court”. Then Catherine Samuels left OSI and that justice program was basically dismantled, as part of the post George Bush victory because that saw us reorienting. In order to keep that initiative going, we had to reorganize. We had a conference summit. We had a summit with people from all of the stakeholders –now still relatively unusual but less so. Part of that summit was to formalize a self-represented litigant agenda and to identify how we would continue to move it forward. There was a lot of back and forth, as you can imagine, behind the scenes. I actually had a separate grant from the State Justice Institute to develop a plan and write a paper about it. It was a small grant, like a writing grant.
RZ: So a consensus emerged that we didn’t want to be a new organization. That was a lot easier for the existing organizations. We created this thing called the network. The states of California and Maryland put several hundred dollars into some sort of core initial funding. It funded me but not as a coordinator. It funded research. It funded development of products. It was with that money and huge help from California that we did some of the most important research, which was on communication between judges and self-represented litigants. This led to the curriculum, that led to the conference, that was integrated with the changes in the ABA Model Code of Judicial Conduct comment, and the alternative much stronger language from the Conference of Chiefs.
RZ: We developed lots of other stuff. We had a conference at Harvard with 35 states and teams, including five chief justices. I had no idea. I remember saying, “If we have five states come to this conference, we’ll be a success,” and we ended up with nearly 35 and it was quite astonishing. We developed a train the trainer curriculum that was used to train thousands of judges. You never know what’s going to make the difference. We shifted the dialogue and shifted expectations. The standard perception of what the role of a judge is is really different now. It’s changed and it won’t go back. I think the time was right and lots of people contributed intellectually, organized meetings, got it, became leaders. Laurie Zelon, for example, was on the same California court that Earl Johnson was on. She was a huge intellectual leader and a wonderful facilitator who was incredibly helpful.
AH: We have her oral history, I interviewed her already.
RZ: Oh, excellent. Okay. So, this should really cross reference well. She’s been present at so many of these things including the Bellow-Sacks Project which was also very important in developing this sense that there were leaders in every silo who thought the same way and would support each other in moving forward.
RZ: So then, to be honest, there were ways in which I really failed in that role. I did not succeed in building a long-term funding stream and I was already sick. I didn’t really know what it was. We knew I was more tired and then we knew that I had a problem with platelet count initially. I have a bone marrow cancer.
RZ: So what happened was I sort of announced to the group, “I cannot do this.” I was doing a lot of pro bono and that was okay, I didn’t mind that. Bonnie Hough and Laurie chatted informally with Mary McClymont, the head of the Public Welfare Foundation. So ultimately, after a lot of back and forth including me, Mary gave a small grant to bring a meeting together to talk about the future of the network. That evolved together with a lot of other input into a lot of money, which is why the network is still there. My successor, Katherine Alteneder, is really perfect for the role. She does all the things I was able to do and an awful lot more and that’s just a lovely feeling to have.
RZ: We’re still the only organization that isn’t a vested interest, such as the bar, the legal aid community, the courts. We are connected to all of those but we stand for the litigant. This approach has never been tested. The litigant voice has to be heard. Most of those other organizations just can’t do it because their primary loyalty is to their organization. There’s nothing wrong with that. But there are obviously moments in history when those organizations went slow on ideas that should have happened. Those ideas were too threatening to those organizations, but are not nearly as threatening to us.
AH: Obviously, I could go into more detail about anything that I’ve talked about in terms of the network or anything and I would actually like to take a bit of a pause.
AH: You did some work in Bosnia. What was that?
RZ: That was emotionally really hard but really good. As you know, Bosnia and Herzegovina remains a quasi state cut out of the Dayton Accords to try and preserve some stability in the former Yugoslavia. The thing about Bosnia and Herzegovina is it has three different populations — Muslims, Serbs, and Croats. Highly ambitious leaders came to power by building on hatred, aggravations, and resentments to stir people up against each other. It’s a pattern that has happened in other countries, but it was actually one of the first in recent history.
RZ: Anyway, I ended up getting some money from OSI to work with the human rights ombudsman which was part of OSCE, the Organization for Security and Cooperation in Europe. It is a fabulous group designed to resolve and advocate for people against human rights violations. This is a good example of how technology and access to justice has to be values driven and goal driven, not toy driven. I was sitting with the three ombudsmen, one from each of the three communities, and they had made a threshold decision that they would act together, that they would together investigate all the cases. It wasn’t that the Serb would deal with Serb complainants, the Muslim with Muslim complainants, and so on. I said, “What do you really want to happen? What’s your real goal here?” One of them said, “We want foreign businesses to use the human rights records of different parts of Bosnia and Herzegovina in their investment decisions. That’s our leverage.”
RZ: So we then brainstormed a project in which we would take the data on human rights complaints, obviously strip out any individual and identifying information, and create an online tool where anyone in the world could go in and say, “Tell me which canton has had the least complaints about housing discrimination or the most complaints about something else.” And we built it — and we’re talking here ’97, ’98, ’99. Just by way of narrative, probably the worst hour in my life was the hour after my laptop, as we were getting on the plane, was required to go into cargo. The laptop had all the information on it and I thought, “Oh shit, if their secret service gets that, how many thousands of people are going to be killed?” Fortunately, my friend, who was a former State person, was able to grab it when we got to the first stop in an hour. But if it’d been on the plane all the way to New York, God knows what would have happened.
RZ: It was just a thoughtless mistake. How do I acknowledge that? How do people … ? You know, all the thinking. But anyway. Obviously, when you’re in Bosnia, and you walk around, and you see the shell damage, and you talk to people who got wounded, it’s very different than the United States. The thought makes you particularly vulnerable to those kind of nightmares. But anyway, if you really think about it, that kind of transparency is something that should exist about any kind of violation overall and any kind of complaint. Can we go in to the EEOC database online and run our own queries on it? Of course not, right? So we were very sad that when I got fired that just got abandoned. So that’s that project. I just want to note one thing. They were willing to do this precisely because the internet was so new and I felt very confident that it was very safe, that there was no way anybody could have been identified. But 20 years later, we’re at a stage where everybody’s totally paranoid, actually with some reason, and as a result innovation is harder.
AH: One of the other things you worked on was the Washington State Access to Justice Principles Project. Why don’t you talk a little bit about that?
RZ: Right. The people in Washington State had this really brilliant idea to create what was initially called Access to Justice Technology Bill of Rights. The idea, at its most ambitious, was to have enshrined in law a bill of rights for how the government and courts were going to use technology. So I was brought in as a consultant and it was a lot of fun. They were very committed, interesting people. So the way it ended was the court was willing to pass an order but not to call it a bill of rights. So it actually is an order of the Washington Supreme Court. It deals particularly, with things like electronic filing, the principle there of equality of access, transparency, privacy, being access driven, not putting up new barriers.
RZ: I guess it’s actually getting close to 20 years. They’ve had a significant impact on the debate in that state and in other states. Again, it’s a great example of being principle-driven. As you can imagine, it was quite a tortured drafting process. The debate was between people who wanted a very specific set of rules versus those who wanted a set of principles. The staff attorneys and legal aid organizations tended to want a set of rules to fix a particular set of problems they were perceiving, which we may not have got through anyway. But it seemed to some of us really, really important that that what we have was a set of principle that could be used to resolve disputes rather than a set of formal rules which would cover only some things.
RZ: That was a moment of breakthrough for me life-wise. Everybody thinks differently and some of us think in principles and others think very concretely. That’s not only okay, but it’s necessary. But the real role of principles is bringing together people who might come from very different backgrounds but really agree in the end about the big things. So you can then appeal to those big things when people get caught in the minutiae of what they have to do this week to fix something.
RZ: I am now working with a group of people at Johns Hopkins on building an integrated system of bills for patients. In the past, there’s been physician bills and hospital bills, separate systems, total confusion. I’m the patient representative for one of them on that committee. I said, “Why don’t we come up with a set of principles on what should guide a bill?” And everyone loved that idea. We came up with principles such as: to tell you immediately what you have to do, to tell you where to get more information. It’s not particularly hard to come up with such principles, but it really has totally shaped the discussion on that committee, which by the way has been a great discussion. Really good ideas.
AH: I would like to turn now to some broader questions and these all fit together. What is your vision of access to justice and legal aid in the future? How do self-represented litigants and technology fit into where we need to go on improving access to justice?
RZ: Okay, that’s a big question. Let me advance to you the if-I-were-god answer. Yeah, and not only if I were God but if I were a God of the kind who would influence everyone else’s participation in the negotiations so that it happened that they actually really believed and indeed had contributed their best to a common agreement. Some of this is highly controversial and that’s probably its purpose.
AH: Yes, it is.
RZ: I am totally cognizant of how the fragmentation of the access to justice world has given it an ability to protect against the attacks that have been made. I have to honor you, Alan, for having really understood that from day one and played a very major role in building a system that did that. However, there’s always a however, right? However, with fragmentation comes the inevitable lack of leadership because, if there’s a leader you can cut the head off. That means that we do not have a system that takes advantage of every opportunity to blend together all the different things that are being done to make them most effective. So I suppose I would start by saying my vision is in terms of goals. Some of this shows up as a result of Mary’s work with the Justice for All Project. I hope you’ll do Mary as an oral history, by the way.
AH: I will.
RZ: Good. She can tell you more of how that came to birth. Again, many people I’ve talked about have been wonderful to work with, including you, But I have to particularly shout out Mary who was just astonishing to work with. The goal is simply that no one should not have access to justice, meaning not only the true opportunity to be heard but also the opportunity to advocate for changes in the rules under which things are heard and the substantive rules. So a true definition of access to justice includes the ability not to get the result you want about changing the law but to be heard about changing the law. That nobody should be barred by any barrier from that. Obviously, the financial barrier is the biggest but it’s not the only one. As I see it, the only way that can happen is through systems of triage and systems of, I won’t use the phrase copayment because that assumes what the solution is, but systems in which costs are controlled through participation and cost sharing. We’re obviously making … said literally, it’s sort of in some ways analogous to what goes on the public defender side. If you have a million dollars in the bank but we know that your defense is going to cost $10 million, you’re entitled to a public defender and you have to spend down.
RZ: I don’t mean to be insulting to people who follow the strategy of: we’re meeting 10% of need, give us a 10% increase and we’ll meet 11% of need. That just is not that appealing a slogan, right? What Jeanne Charn and I have talked about is a big grand bargain including a strategy that somehow gets 100% within something you can imagine. When we first used the 100% phrase it was highly controversial. I don’t think it is as controversial now.
RZ: But that has to include triage. And that has to include somebody, somewhere — and it could be decentralized, centralized, automated, non-automated, combination, alternatives — deciding what assistance does this person need in order to have the full opportunity to be heard. That triage system feeds into a much wider range than we now have of ways of helping people and a system of decision-making that is designed to minimize the cost and need for that help. You can’t separate all of those bits. I mean, you can, but if you want to get there, it’s not going to happen.
RZ: One of the nice questions you have is what’s the most significant of my papers. There are really two that I’m most proud of, and they both tie so directly into that. One is The Emerging Consensus About Access to Justice, which strives to make the case of how everybody is moving towards that sort of vision with each of the stakeholders changing the way they operate, the people in their stake gang operate in order for that to work. So the whole self-represented services system in the court, including online forums, means that people can do more on their own and if they need legal help it should cost less and similarly all the way through.
RZ: Then the other paper is the one about judicial neutrality, which obviously is exactly the same thing except it’s more focused on the bit of it that’s in the courtroom. Judges can build personas that let them be deeply engaged in the factual and legal development of a case where they aren’t lawyers without being non-neutral. The spread of that idea has been really important. Once again, it’s not just my idea by any means. I gave it a little bit of framework that was helpful.
RZ: Anyway, you have to have triage and you have to have a system of supports. In the last two years, we’ve started to fill in what some of those look like. We have a much better sense of what websites will and won’t do, what document assembly will and won’t do, what the work with paralegals in the courtroom will do. We can call them non-lawyers. I like the phrase “roles beyond lawyers” but it may not work until people know what it means. Anyway, the grants Mary made for research into those projects I think are hugely important, particularly when the court is changing the way it operates. You can certainly build a court in which nobody without a law degree and advanced law degree could function, right? You could build a court in which neither of us could function. For example, if we walked into the patent court, you or I would be blown away, although we could learn it. In the rest of the common law world, that’s what happens. Non-lawyers play all these roles with court protection and approval.
RZ: So that has to be a combination of interrelated steps. That then gets to the question, so how do we get there? What happens? What’s the strategy and who carries that? Without in any way knowing what it would be called and without in any way knowing how it functions, I believe there has to be somebody that advances that as a national solution. Now that Mary isn’t funding, we have those pilots going on. We have the National Center for State Courts administering the pilots. But I think that the gap is in that infrastructure and I think it’s a huge gap. One way of coming at this is, and I’ve tried sometimes to blog about this, if you just for a moment fantasized about an infinitely funded national framework organization that moved forward all the things that needed to happen for access to justice that weren’t coming out of one particular silo, what they would do?
RZ: It’s a huge list. You could come up with all the dangers, how it could become the focus of attack. You could come up with how it could become blind and compromised because of all the stakeholder participation. But the fact is that there are just so many things. We’ve never been able to develop that research and I know that goes back to your idea for the LSC. I mean, that’s when we had it, right? The ability to respond politically in moments of opportunity. We actually now have developed pretty good ad hoc disaster response but we didn’t do that for several iterations because we didn’t have a group.
RZ: So the one question I remember putting at the meeting of the communication strategy group was, when there’s a crisis in our world, who makes the phone calls to the group to get people together to start talking? Some of it happens and you did a huge amount of it when you were there, I know. But whether it’s a moment of opportunity or a moment of risk, there’s nobody or no group or no rotating leadership who you look to and there are reasons why not. I understand if the LSC is part of that, what happens if we get a terrible president.
RZ: But there are always reasons not to do things. There are always risks. Eric Washington, former DC chief judge, was very nervous about what we talked about as an access to justice commission idea. I wrote the first concept paper on this nearly 20 years ago now, because he was worried that it will become like EEOC. Totally legitimate, useful comment. But the question becomes okay, so how do we build it so it doesn’t become like EEOC? Not that you reject the concept. This is not about Eric. But it’s really hard for me that, when people come up with an objection to doing something, I get into an argument about the objection rather than saying, “Okay, let’s assume that’s right. But you agree the goal is valuable. How do you think we could try and have our cake and eat it?
RZ: I think if we as policy people and advocates — and I’m talking to myself now,– and I see this in the retirement community all the time, partly maybe because as people get older they become more themselves so they know they can come out more quickly — anyway. so that’s the vision that is most general overall. That’s the gap that we need to find a way to fill. This is a weird moment now with Trump as President. If you believe that this weird moment may create a lot of opportunities, then it may not be the time to launch stuff because everybody’s preoccupied. But it’s not such a bad time to think about how to at least move towards that. Now the closest there is to that at this moment in the fall of 2017 is the Voices for Civil Justice communications project which has been incredible. Martha Bergmark and her group have done an incredible job that works really well.
RZ: So that’s the closest to a place where those discussions have been happening. The funders group was another example of how, when a communication system starts, then that’s an opportunity for real leaders to talk about jumping to the next stage. Then the project itself gets launched and the operational people start going to the meetings or the detail policy people rather than the people who can really carry their whole institutions with them on a new path, and then the opportunity slips away and you need a group where the opportunity can’t slip away because it’s by definition to do that. So that’s that answer.
AH: Okay. Well, there was a lot there. Richard, you’ve been a leader in helping legal aid and access to justice programs utilize and innovate in technology. Thinking back to what went over your life and where we ought to go, how do you see the role of technology? Why is innovation and technology important to Access to Justice?
RZ: I think it’s largely not recognized how early the predecessors of the access to justice community started using technology. Almost everybody has forgotten that in the 1980s, Ken Smith had a publication called Advocates Computer News that was aimed at public defenders, and legal aid, and co-legal services people about technology. They put on, I believe, three conferences around the country at two-year intervals that were really important incubators. I’m inventing the numbers, but it was something like this, there were like 250 people at the Advocates Computer News technology conference and there 600 at the ABA technology conference.
RZ: We were actually right there at the start and, as so often happens, the pioneers get overtaken by capital. It’s really one of these sadnesses that’s probably unavoidable that a lot of stuff was going on earlier in the public sector of the law than in the private sector. So I refer people to those. I hope you have a copy of those. If not, you should get them from Ken. So I’m talking about in a different segment the work we did in the public defender world. But what had happened by the late ’80s was that really we were just on the beginning of a huge increase in the use of technology. The Internet — which I think of as a 1994 thing and the first website I put up was in 1994 — it wasn’t long before people understood the potential. Many also saw the potential of direct services to litigants.
RZ: But the important step was when we moved from a purely information-based model for people without lawyers, or with lawyers for that matter, to a tool-based model. In other words, what are we going to give people? What tools to help them navigate the system? I would say that that is a journey on which we have only just begun. So we had in the ’80s tools that could be used by a legal aid lawyer to do a benefits checkup. That was really a very advanced thing for us to have. I don’t think most states now have online benefits checkups that can be used by clients. They certainly don’t have the kind of tools that help people decide whether or not they should bring litigation, particularly pro se.
RZ: There’s some talk about that in the triage area because one of the most difficult things to figure out in triage is what people are capable of doing on their own versus what they needed help with. There is the kind of tax return they file. That’s probably a correlate. Have they been in court before? Clearly some kind of correlate. How they feel about that, some kind of correlate. How do you come up with the questions that aren’t too gameable? Is there data in electronic public records that you can get to use so that people aren’t even responsible for it? What are the privacy implications?
RZ: I remember in the mid-’90s, there were so many more .orgs than .coms. It’s hard to remember, but the fact is that a .com was a rarity and a .org, lots and lots of people had. Now, statistically, there aren’t any .orgs. Some of that is inevitable beause of money. But there’s an awful lot of lost opportunity. One of the things we talked about was a technology backup center for the delayed programs. Now, there was a lot of dispute about what that format should take. Again, the anti-centralizing force for something like that was absolutely enormous.
RZ: Nobody wanted to be told what to do. If there’s been one theme of frustration, and I guess this is a general thing in my history in the access to justice movement or in any world, it is this continual theme of people not wanting to being told what to do, resulting in nothing happening. I mean, it’s not like they do it on their own as they wanted to. It’s that not much happens. Again, there were reasons for not having central command and control. But there are also reasons for figuring out how you are going to fulfill functions and, if they can’t be centrally controlled, then you figure out how to have the benefits of that.
RZ: It’s the same as the states that refuse to integrate their programs into a statewide program. I know if I was the LSC board — back to the if-you-were-God question, but this is a technology thing in part — I would say, we’re not going to force you to be one program. We understand the politics of that, although I frankly don’t think the arguments are very good. But you must explain how the following functions are going to handled statewide and what the system is to do that. And, if you can’t do that, then we will force one program because then you will do it statewide. Technology is obviously a good example of that, right?
RZ: You know, the state in which all project directors except one, and there were a lot of project directors in the state, were against having a common statewide 800-number. I regard that as institutional malpractice. If I had been on the board of any of those programs and heard about it, I suspect it would have been a resignation issue. And the reason? Now, you’re getting my big picture but technology is so critical to this. The reason people fight it was, “We’d have too many people calling us.” No organization should ever make decisions based on the fact that too many people will be in contact. You can figure out ways of dealing with those people, and that would actually be good for them to do. One of the reasons that in some ways courts have really made faster progress on self-represented litigants than traditional legal aid has been that courts can’t say, “We only do intake the first Monday of the month.” They have to respond to the need and they have to figure it out. Courts run systems of triage. Legal aid programs do but they’re often utterly irrational. Courts tend to be more careful and rational and they’re very huge. I did some research for California at one point looking into the different systems people had. They vary enormously.
RZ: So technology is very much an area where we had the second technology summit. We have the whole law help interactive system. We have the pilot portals Microsoft and Pro Bono Net are doing. So the stuff is moving. But one way of looking at it is, if you would have asked me 20 years ago in ’97 how many documents do you think will be being assembled online through tools and the legal aid community 20 years from now per year, I would not have answered two million or whatever it is. I would have answered 50 million, I hope. That is just institutional inertia. There is no reason, no rational reason, for that, even if you want a community that isn’t one head that you can cut off or the disadvantage of technology.
RZ: I don’t need to give the speech on how lots of cases aren’t appropriate for self-represented litigants or lots of cases aren’t appropriate for being handled through technology and need a personal touch. I hope by now that goes without saying. I think, and this is obviously really critical of the legal aid movement — one of the ongoing arguments, and this has been triggered by technology but it’s not just about technology — one of the most depressing ongoing arguments, which I think largely over, was this argument that we were providing “McJustice” if we use technology. If you push that argument all the way, it’s saying I would prefer to feed one person steak and everybody else starves to death than 20 persons with hamburger. And that there are people who fail to see the other argument I find truly shocking. And they prefer cooking steak was I think an awful lot of it. People want to do the high status work rather than the volume.
RZ: So this comes to access to justice or the justice for all project. The evaluation has to be scale — what percentage of people who need service are getting served in some way adequately? That’s the only number that counts. The quality of the service counts too, but who is getting effectively served? I see no way, without an infusion of money that would require a revolution, to do that without the creation of a lot more tools adding the technology as a helping tool. If you think about building technologies that would really make non-lawyer participation in the court easier, it’s not hard to conceptualize what that looks like, or to build it. It’s always too slow.
RZ: The TIG Program is wonderful given its constraints and Glen Robin has done an amazing job to turn what was originally designed for internal political reasons as a very fragmented grant making system into one that has strategies and is coherent and coordinates and invests in solutions. But he’s operating under too many constraints. A great example of that is that some of us have advocated for decades now that TIG should make a grant for people who could then make small, quick grants for technology innovations that could be done like that. So a $200,000 grant under TIG to some LSC funded organization understanding that they would make grants on application with a two-week turn around, maximum $20,000. Never done it. Some objection within the LSC bureaucracy.
RZ: I just know that in terms of moving technology forward, two or three things that really matter are the ability to plan, in other words, not being limited always year to year. And, the ability to not plan. To take somebody who does something well, get an evaluation, get it written up. Then let’s get it out, quick. Anyway, those are a few observations on the role of technology in ccess to justice.
RZ: I do think that technology has been, in a way, and I mean this positively, highly subversive within the legal aid world. People, because they didn’t understand technology or because they didn’t think it important, allowed things to go forward that are really transformative, challenging, and even subversive. They think it’s often the technology box. Then when it’s done, suddenly people actually see, my God, you could do this and it has other implications. That’s part of why I think so much of the self-represented litigant stuff is technology-based and why the two have been joined at the hip. There are individual and personal reasons too. But I think we were off in a corner for a long time and we got more done there. That’s a break.
AH: Thank you.