washington access to justice board - WSBA

WASHINGTON ACCESS TO JUSTICE BOARD TWENTY YEARS OF WORK July 2014

AN EVALUATION

Conducted by John A. Tull John A. Tull & Associates

WASHINGTON STATE ACCESS TO JUSTICE BOARD EVALUATION REPORT

Introduction and overview BACKGROUND The Washington State Access to Justice Board was created in 1994 by an order of the Washington Supreme Court. In anticipation of its 20th anniversary, the ATJ Board embarked on a comprehensive evaluation of its work since its inception and engaged John A. Tull of John A. Tull & Associates to conduct the assessment. He is the author of this report and solely responsible for its content.

FOCUS OF THE EVALUATION The evaluation focused on three broad issues: 1) whether the activities in which the ATJ Board engaged since its inception in 1994 succeeded in accomplishing the objectives assigned to it by the Supreme Court;1 2) how the ATJ Board might approach its future activities to accomplish its objectives, given the findings regarding its past efforts; and 3) if there are other factors that might affect how the Board undertakes new endeavors. In addition to the 10 objectives enumerated in the Supreme Court’s order, the evaluation examined two broad questions related to the ATJ Board’s activities over the past 20 years. The first is whether it had succeeded in developing and sustaining a broadly based commitment to access to justice in Washington State and creating a viable Access to Justice 1

The Supreme Court’s order establishing the Access to Justice Board's objectives reads in pertinent part:

The Access to Justice Board shall work to: A. Establish, coordinate and oversee a statewide, integrated, non-duplicative, civil legal services delivery system that is responsive to the needs of poor, vulnerable and moderate means individuals; B. Establish and evaluate the performance and effectiveness of the civil legal services delivery system against an objective set of standards and criteria; C. Promote adequate levels of public, private and volunteer support for Washington State's civil equal justice network; D. Serve as an effective clearinghouse and mechanism for communication and information dissemination; E. Promote, develop and implement policy initiatives and criteria which enhance the availability of resources for essential civil equal justice activities; F. Develop and implement new programs and innovative measures designed to expand access to justice in Washington State; G. Promote jurisprudential understanding of the law relating to the fundamental right of individuals to secure meaningful access to the civil justice system; H. Promote widespread understanding of civil equal justice among the members of the public through public legal education; I. Promote the responsiveness of the civil justice system to the needs of those who suffer disparate treatment or disproportionate access barriers; and J. Address existing and proposed laws, rules and regulations that may adversely affect meaningful access to the civil justice system.

Report on the Evaluation of the Washington State Access to Justice Board July 2014

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Community. The second was the degree to which it had been successful in broadening support for access to justice among segments of the society that are not directly involved in the justice system.

METHODOLOGY The evaluation began with a Steering Committee2 that reviewed with the consultant the numerous activities of the Access to Justice Board over the 20 years of its operation and categorized those activities in relation to the objectives set forth by the Court. That catalog of activities and objectives formed the basis for a survey that was prepared by the consultant and administered to a cross-section of individuals who had been a part of or interacted with the ATJ Board since its creation.3 The evaluation consultant also conducted focus groups of leaders of providers of legal aid services to low income and vulnerable populations, of staff members of the Administrative Office of the Courts, of staff members of the Washington State Bar Association and of Members of the Washington State Bar Association Board of Governors. In addition, the consultant met with the Washington Supreme Court. The consultant also interviewed a cross-section of members of the access to justice community to ask them more in-depth questions about the activities of the ATJ Board, its success accomplishing the Supreme Court’s objectives and other factors affecting the Board. The interviews offered the opportunity for more in-depth, confidential probing regarding the Board’s accomplishments and its challenges.

OUTLINE OF THE REPORT This report is divided into three sections. The first is an Executive Summary of the Findings and Recommendations of the Report. The second contains broad findings regarding the Access to Justice Board’s successes as well as its challenges. This section contains recommendations for the ATJ Board to consider in planning its future direction and activities. The third section contains a detailed analysis of the many activities undertaken by the ATJ Board, clustered in relation to the major objective of the Supreme Court’s order that the activity was explicitly or implicitly designed to serve. In some cases the analysis is intended only to provide a general assessment of the relative success of each activity in relation to the Supreme Court’s objectives. In other cases, recommendations are offered with regard to the activities. Any such recommendations are included in the Executive Summary, as well.

2

The Steering Committee consisted of Kirsten Barrow, Board Chair, Ishbel Dickens, In-coming Chair; Andrew Sachs, Millicent Newhouse, Board Members and Joan Fairbanks, Access to Justice Manager.

3

The survey was sent through the email service, Constant Contact, to over 800 persons, of whom 300 opened the email and 150 responded to the survey.


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Executive Summary OVERVIEW The Washington State Access to Justice Board has been fundamentally successful over the course of its 20 years of existence. It has been instrumental in making awareness and concern about access to justice issues a part of the culture of the courts and the legal system. It has effectively supported the development of a vibrant, broadly based access to justice community that includes the providers of civil legal aid, the courts and the organized bar. The ATJ Board carries out four interrelated roles in meeting the responsibilities outlined for it by the Supreme Court’s order. At times, it functions as a Convener, bringing together disparate elements of the justice system to consider collectively the access to justice needs of the system. At other times, it operates as a Catalyst/Instigator deliberately and consciously pushing others to work toward change that, from its independent perspective, it deems important to protect or further access to justice. A related, but more assertive role calls for it to be an Analyzer and Advocate directly arguing for change in a policy or practice, usually in the form of proposed changes to court rules. And finally, at times the ATJ Board becomes a Doer, taking direct responsibility for the design and implementation of a project or initiative. In each of these four roles, the Supreme Court looks to the ATJ Board to maintain an independent perspective of the functioning of the civil justice system, with an eye toward identifying and causing action to respond to its access to justice needs. As such, it is important that the Access to Justice Board be institutionally independent and not the captive of the interests of any one component of the civil justice system, including the providers, the courts or the organized bar. At the same time, the ATJ Board needs to maintain cooperative and collaborative relationships with others in the civil justice system. To maintain the expected level of independence, it is essential that while – pursuant to the Supreme Court’s order – the Access to Justice Board is administered by the Washington State Bar Association, its substantive direction not be subject to the control of that or any other organization and that its staff work under the guidance of the ATJ Board.

CHALLENGES FACING THE ATJ BOARD In spite of its overall success, the evaluation identified three broad challenges that the Access to Justice Board faces. The ATJ Board has since its inception been involved in a wide range of activities and initiatives to accomplish the ten objectives set for it by the Supreme Court. Although the evaluation found that the quality of those activities and initiatives has generally been quite high, they have not always fully accomplished what was intended or what was possible. The shortcomings have resulted from three factors: 1) inadequate communication about the initiatives and activities, both within the access to


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justice community and outside of it; 2) a lack of attention to implementation and followup; and 3) a failure to assess whether the initiatives and activities accomplished their intended purpose. 1. Communication. •

The Access to Justice Board has generally not committed resources to communicating about its initiatives or its role in sponsoring or encouraging work that is sometimes identified exclusively with other organizations. The result is that it is less well-known than is warranted both inside and outside the civil justice system. Moreover, some of what it has accomplished is not well known by individuals and institutions that would benefit it has produced. RECOMMENDATION. The ATJ Board should develop a broad communication and marketing strategy about its work and the issues that it addresses. The goal of the strategy should be to publicize important access to justice issues that it has addressed and the resources that are available as a result of its work and the work of others. It should seek to increase its public profile and with it the profile of the access to justice community, with an eye toward drawing attention to access to justice issues among a broader spectrum of institutions. As part of its communication strategy, the Access to Justice Board should consider utilization of evolving social media as a means to communicate on an ongoing basis about its activities and their accomplishments.

•

There is a need for improved communication and engagement with the providers of civil legal aid in the state as well as other institutional partners. The Annual Access to Justice Conferences were identified by the evaluation as one of the Board’s most successful undertakings in terms of communication, networking and community building. Their suspension in 2013 because of the loss of funds to support them has been a serious loss to communication and networking in the access to justice community. The civil legal aid providers expressed feeling disconnected from the ATJ Board and its activities. Board meetings, which are one of the principal means to communicate, are not an effective device for communication and engagement, both because of their length and their inaccessibility to people outside of Seattle. The discussions at the Delivery Systems Committee have begun to take on importance as a forum for collectively identifying and analyzing issues affecting the delivery of civil legal aid, but there is uncertainty regarding the degree to which the discussion and analysis comes to the attention of the full ATJ Board. RECOMMENDATION: The Access to Justice Board should seek funding to reinstate to the Annual Access to Justice Conference at the earliest opportunity. The Annual Conference is key to the ATJ Board addressing its communication challenges and would also be beneficial to its carrying out other recommendations made in this report.


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RECOMMENDATION: The Access to Justice Board should explore ways to increase communication and interaction with the legal aid providers. Discussions, conclusions and recommendations reached at the Delivery Systems Committee should be regularly reported to the ATJ Board. The ATJ Board should examine ways to make its meetings more efficient and more accessible to persons throughout the state. It should seek to create a decisionmaking structure based on communication with and among its committees outside of the formal meeting structure.

•

There is a need for improvement in communication with the general public and with those who are not directly involved in the civil justice system. The ATJ Board has not focused resources on broadening support among those not involved in the justice system. It has not communicated with potential beneficiaries of the work that it has produced, such as persons with disabilities or self-represented litigants. It would also be helpful for it to communicate more directly with members of the bar regarding access to justice issues and its efforts and activities. RECOMMENDATION: The Access to Justice Board should develop a communication strategy to inform a broader audience about access to justice issues and to provide information regarding how pertinent activities and accomplishments benefit certain targeted audiences, such as persons with disabilities and self-represented litigants. As part of that strategy, it should consider using the Living History website currently being developed to provide such information to the general public. RECOMMENDATION: The staff of the ATJ Board should schedule periodic meetings with pertinent staff of the Washington State Bar Association to discuss the Board’s initiatives. The ATJ Board also should develop a strategy with the appropriate staff of the WSBA to take advantage of the communication resources of the Bar Association to reach out to its membership and to the public at large.

2. Implementation and follow-up •

It would be beneficial for the Access to Justice Board to focus more on what is necessary for its or others to implement its projects and to follow up on them. Taking more responsibility for implementation and follow-up is not tantamount to the Board itself assuming responsibility for implementation. Rather, it should build into the development of its projects greater attention to the partners, such as the Administrative Office of the Courts and the civil legal aid providers that will be necessary to implementation and engaging them so that there is buy-in and a reflection of the practicalities that will be faced in their execution. RECOMMENDATION: The ATJ Board should develop protocols for addressing how each policy, initiative, recommendation or order, if adopted, will be implemented. The protocol should address 1) what will be required for implementation, including a communication strategy, 2) the resources required and 3) what other institutions or organizations need to be consulted and enlisted.


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The ATJ Board should explore with the Administrative Office of the Courts ways to communicate before, during and after the development of policies, recommendations or orders that will require the participation of its staff to implement.

3. Assessment of results and outcomes •

Little attention has been devoted over the years to assessing whether the initiatives, recommendations and policies of the ATJ Board have accomplished their intended results and outcomes. A more disciplined effort to examine the results of its initiatives would give the ATJ Board a solid basis for communicating about its work and its impact on access to justice issues. It would also enable it to identify strategies that have not been successful in order to make adjustments in future efforts. RECOMMENDATION: The ATJ Board should establish a protocol 1) for identifying intended outcomes for policies, strategies and initiatives undertaken by it; 2) for identifying the means by which the accomplishment of the intended outcome will be measured; and 3) for conducting a simple follow-up assessment. The Board should explore with local universities and law schools the potentiality for using interns to help conduct assessments of the outcomes of its work.

RECOMMENDATIONS REGARDING SPECIFIC INITIATIVES The evaluation offers an analysis and assessment of specific activities undertaken in relation to the ten objectives contained in the Supreme Court’s order creating the ATJ Board. Additional recommendations were made in the course of that analysis and are restated here. 1. State Planning RECOMMENDATION: The ATJ Board should engage in discussions with the civil legal aid providers, through the Delivery Systems Committee, about the most effective means collectively to identify and address issues that are germane to – as stated in the Supreme Court’s order – “a statewide, integrated, non-duplicative, civil legal services delivery system that is responsive to the needs of poor, vulnerable and moderate means individuals.” Consideration should be given to an ongoing process that identifies and responds to issues as they arise, rather than through a formal state plan. If reinstated, the Annual Access to Justice Conference should be utilized as an opportunity to increase communication with the providers and to consider issues affecting the statewide delivery system.

2. Annual Access to Justice Conference RECOMMENDATION: Given the strong evidence of the value of the Annual Access to Justice Conferences in assisting with its communication needs, supporting networking and energizing the access to justice system, the ATJ Board should prioritize obtaining funding to reinstate the Annual Conferences at the earliest opportunity.


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3. Standards and Criteria RECOMMENDATION: Strategies should be developed for publicizing the revised Hallmarks of an Effective Civil Legal Services System, particularly among the civil legal aid providers and others affected by them. The Proposed Strategies for Using the Performance Standards for Legal Aid in the State of Washington should be discussed by the Delivery Systems Committee and a plan developed for their use, if appropriate.

4. Technology principles RECOMMENDATION: The ATJ Board should explore with the Technology Committee, AOC staff and other participants what have been the key characteristics of the collaborative effort to implement the Technology Principles and how the approach can be replicated in future work.

5. Plain Language Forms Project RECOMMENDATION: The ATJ Board should explore with participants in the Plain Language Forms Project what the characteristics are that has made is such an effective collaboration and how the approach can be replicated in future work.


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Broad Overview and Recommendations Broad findings regarding the ATJ Board’s success This Report will examine the ATJ Board’s overall success as well as its success in relation to each of the objectives assigned to it by the court. Before detailing the findings in relation to each objective, however, there are broad conclusions that can be drawn from the overall assessment that will be germane to choices that the ATJ Board makes about his future activities. Those observations, including the criticisms, should be considered in light of the general backdrop of agreement about the Access to Justice Board’s fundamental success over the 20 years of its existence in increasing attention to access to justice issues and fostering a willingness among key institutions to address those issues. The essence of the widely shared view of the ATJ Board’s success was succinctly stated by the Chief Justice of the Washington Supreme Court, Barbara Madsen: “The impact of the Access to Justice Board has been to change the culture of the courts. Access to justice is now part of the vocabulary that is used throughout the court system.” Other comments in the survey, interviews and focus groups reflected the same broad affirmation of the ATJ Board’s positive impact in bringing attention to access to justice issues and changing the nature of the conversation within the legal system. •

“There is no way that we would be where we are at today as an access to justice community without the ATJ Board. They have been the convener, the cheerleader, the standard setter. They have played so many leadership roles creating the Alliance. They are what holds us together institutionally.”

•

“[The ATJ Board] has transformed the conversation in the legal community and in the legislature. It is a ‘change driver’ without formal authority. …It has no regulatory authority and no money but is tasked with the responsibility of bringing change.”

•

“Within the judicial branch, the ATJ Board is viewed as the go-to entity for matters relating to civil access to justice.”

•

“By and large, the ATJ Board has the power to make things stick. And they do it without threatening to pull the purse strings. They do with their moral authority.”

•

“Given the Board's limited actual resources and formal authority, it has done an amazing job of supporting the cause of Access to Justice in Washington during a time period when such access has been diminishing across the nation. So although I only rate the Board somewhat effective in actually moving the needle


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forward towards where it needs to be, I would rate them as exceptional in utilizing their resources effectively against a national tide pulling the other direction.” Responses to the survey regarding how effective “the ATJ Board has been in supporting the development of a broadly based access to justice community in the State of Washington” reflect a similar positive conclusion with two thirds of the respondents concluding that it had been “Very effective” (21.7%) or “Effective” (44.2%) in accomplishing this broad objective. Another 28.3% found the Board to have been “Somewhat effective.”

GENERAL OBSERVATIONS The dynamics within which the ATJ Board functions are complex. Appreciation of this complexity is important to understanding the findings of this evaluation regarding the strength and successes of the Board as well as its challenges and limitations. Although it operates with the mandate of the Supreme Court, the ATJ Board has no authority to carry out the responsibilities assigned to it by the Court. Moreover, the range of responsibilities extends in many directions and involves disparate parts of the civil justice system, ranging from the legal aid providers to the organized bar to court administrators, to judges and to the Supreme Court itself. For instance, the Court assigned the ATJ Board a core responsibility: “Establish, coordinate and oversee a statewide, integrated, non-duplicative, civil legal services delivery system that is responsive to the needs of poor, vulnerable and moderate means individuals.” It has a related responsibility to “Establish and evaluate the performance and effectiveness of the civil legal services delivery system against an objective set of standards and criteria.” These responsibilities rest within a matrix of non-profit organizations of varying sizes and focus, each of which is a separate corporation with its own governing body and executive leadership, often relying on different funding sources with their own requirements and restrictions. Other responsibilities assigned to the ATJ Board calls for it to propose, develop and implement policy initiatives and new programs and innovative measures aimed at expanding access to equal justice in the State. It has, for instance, a specific responsibility to “Address existing and proposed laws, rules and regulations that may adversely affect meaningful access to the civil justice system.” Meeting this responsibility principally involves proposing rules to the Supreme Court.


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A different type of responsibility is assigned to the ATJ Board with the provision of the Court’s Order calling upon it to “Promote adequate levels of public, private and volunteer support for Washington State's civil equal justice network.” In response to the disparate institutional audiences with which it interacts and the complex dynamics that result, the ATJ Board has developed several modes in how it functions. •

Sometimes the ATJ Board functions as a Convener, bringing different institutions and individuals to the table to consider and encourage actions in furtherance of its mandate. Its sponsorship of the Annual Access to Justice Conference, which has been suspended in recent years, was its most visible activity as convener.4 The Delivery Systems Committee – which is made up of representatives of the civil legal aid providers in Washington and which meets regularly to discuss issues regarding the service delivery system – is another such example.5

•

Other times, the ATJ Board operates as a Catalyst/Instigator, deliberately and consciously seeking change that it deems important to the furtherance of access to justice. A strong sentiment expressed in the meeting with the Supreme Court was of the importance of the Access to Justice Board having a broad overview of the civil justice system and from that perspective identifying issues that need to be addressed. Members of the Court espoused a strong view that the strong, active verbs in the Court’s order creating the ATJ Board were essential because it gives the Board “leverage to push others or to act itself, when necessary.” It was viewed as affirming the ATJ Board’s “moral authority.” An example of the ATJ Board’s operating in its Catalyst/Instigator role is its initial development of the Washington State Access to Justice Technology Principles.6

4

The Annual Access to Justice Conference is discussed at length beginning below at p. 16 and p. 35.

5

The engagement of the civil legal aid providers and the role of the Delivery Systems Committee are discussed below beginning at p. 17.

6

The Technology Principles as adopted by the Supreme Court are discussed below at p. Technology Principles. The Access to Justice Technology Principles represent a different expression of standards and guidelines than the Hallmarks or the Performance Standards. The Technology Principles were originally developed as a stand-alone document, and then were presented to the Supreme Court, which adopted them in 2004. .


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•

A closely aligned role is for the ATJ Board to be an Analyzer and Advocate for access to justice and the needs of low-income and vulnerable individuals. The Board was described by one Justice as being “the pure voice” for such needs. The Board has moved from being a catalyst and instigator to being an advocate when it has, for instance, proposed or supported rule changes affecting persons with disabilities,7 in forma pauperis petitioners8 and self-represented litigants.9 The ATJ Board’s role as a proponent of rule changes was affirmed by the survey as being one of its most effective and important roles.10

•

There have been times when the ATJ Board has acted as a Doer and the organization has taken direct responsibility for the implementation of a strategy or initiative. There have been two such occasions in recent years: 1) with the Supreme Court’s blessing, the ATJ Board took on primary responsibility for the development of Plain Language Forms for use by self-represented litigants;11 and 2) the ATJ Board approved the creation of the Washington State Community Equal Justice Leadership Academy (hereafter, Leadership Academy).12 The Access to Justice Board’s projects that it has undertaken, acting as the “doer,” have not been without controversy. The Leadership Academy, for instance, was initially strongly opposed as potentially competing for resources with the legal aid providers. With the Plain Language Forms, there was an underlying dynamic that prevented forward movement on the issue until the ATJ Board took the initiative to make it happen. It is instructive to note, however, that this evaluation found that these recent initiatives, which began with resistance and even controversy, have both become strongly supported. This dynamic with regard to both initiatives is discussed at length later in this Report.13

The Access to Justice Board’s different roles strongly affect how it interacts with its institutional partners and can create a challenging dynamic. When the Board is functioning as a convener, its role by definition is one that requires cooperation and coordination. As it moves across the spectrum of roles toward being an advocate or doer, however, it sometimes finds itself pushing its partners or acting in arenas to which the partners may object. Thus, for example, the ATJ Board has to rely on close, cooperative relationships with the civil legal aid providers for initiatives such as developing the State Plan for civil legal

7

The ATJ Board's activities in relation to persons with disabilities is discussed below at p. 24 and p. 43.

8

The ATJ Board's activities in relation to in forma pauperis petitioners is discussed below at p. 46.

9

The ATJ Board's activities in relation to self-represented litigants are discussed below at p. 44.

10

The Access to Justice Board's role as a proponent for rule changes is discussed at length beginning at p. 45.

11

See the discussion of the Plain Language Project below beginning at p. 41.

12

The Washington State Community Equal Justice Leadership Academy is discussed below beginning at p. 39.

13

See the discussion beginning at p. 39


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services. At times, however, the Board needs to stand outside of the network of providers in order to push for change that may or may not be welcomed. The Access to Justice Board encounters a different tension in its role in addressing issues and making recommendations related to the responsiveness of the court system to its users. At times its role may be to push for change against resistance from some parts of the judicial system to address the need of individuals who have suffered disparate treatment or encountered disproportionate barriers to access. It cannot, however, realistically undertake programs or propose rules that affect the operation of courts, without the cooperation and engagement of key parts of the court system to implement those changes. This dynamic has significantly affected how the ATJ Board is perceived and the strengths and weaknesses discussed in the following paragraphs. In each of these four roles, the Supreme Court looks to the ATJ Board to maintain an independent perspective of the functioning of the civil justice system, with an eye toward identifying and causing action to respond to its access to justice needs. It is, therefore, essential that the Access to Justice Board maintain institutional independence and not be captive of the interests of any one component of the civil justice system, including the providers, the courts and the organized bar. To maintain the expected level of independence, it is essential that while – pursuant to the Supreme Court’s order – the Access to Justice Board is administered by the Washington State Bar Association, its substantive direction not be subject to the control of that or any other organization and that its staff work under the guidance of the ATJ Board.

The Access to Justice Board’s challenges Although the Access to Justice Board’s success in fostering an increased commitment to access to justice throughout the State of Washington is undeniable, this evaluation identified three broad areas of challenge. The first is the need for more effective communication about the ATJ Board and about its past successes and its current activities. The second is for a stronger commitment to implementation and follow-up on its current initiatives, as well as some from its past. The third is to assess regularly whether its initiatives have accomplished their intended objectives, both so that adjustments can be made to assure future success and to be able to communicate more effectively about the impact of its work.


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COMMUNICATION The key challenge confronting the Access to Justice Board is the need to improve communication about its role, its current activities and the broad array of what it has accomplished or encouraged to improve access to justice in the state of Washington. There was nearly universal agreement among the focus groups and interviewees that the ATJ Board had not communicated adequately over the years about the volume and range of its past and current activities. The need for improved communication encompasses both interactions with its partners and constituents as well as communications to the general public. Communication about activities in which the Access to Justice Board has engaged One striking feature of the survey, interviews and focus groups conducted as a part of this evaluation was the number of individuals who – although they were selected because of their current or prior association with the ATJ Board – indicated they did not know about some of the Board’s activities or whether they had been successful. Some described the survey itself as having educated them about the – for them – surprising range of activities and projects of the Board. The following table shows the percentage of respondents to the survey who indicated whether they knew about various projects of the ATJ Board. Respondents Who Are Familiar with

Percentage

Annual Access to Justice Conference

94.5%

Equal Justice Coalition*

84.1%

Courthouse Facilitator Program

81.0%

Proposed changes in Court Rules

80.3%

2003 Civil Legal Needs Study*

73.8%

Greater Assistance and Access Project/WSBA’s Moderate Means Program*

72.2%

Washington State Community Equal Justice Leadership Academy

62.2%

Hallmarks of an Effective Civil Legal Services System

60.9%

Technology Principles

59.4%

Performance Standards for Legal Aid in the State of Washington

51.6%

2003 Task Force on Civil Equal Justice Funding*

49.2%

Guides for Ensuring Equal Access for People with Disabilities

42.4%

State Plan for Integrated Pro Se Assistance Services (2010)

41.6%

*

These items were frequently not recognized to be associated with the ATJ Board


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As the table above shows, some activities, such as the Annual Access to Justice Conference, were almost universally recognized. The fund-raising arm of the civil justice community, the Equal Justice Coalition, is a committee of the ATJ Board that operates independently of it. Although well-known, there are many who do not identify it or its efforts with the ATJ Board – one such person commenting in the survey, for instance: “I have never heard the EJC referred to as a ‘committee’ of the ATJ Board.” Similarly, the 2003 Task Force on Civil Equal Justice Funding and the Civil Legal Needs Study were created by the Supreme Court at the suggestion of the Access to Justice Board and were staffed by it, although that fact was apparently not widely known. As one comment to the survey observed: “I wasn't aware of Board involvement with the task force on funding or the civil legal needs study. However, the civil legal needs study was brilliant and remains an effective tool for advocates and promoters of civil legal aid. I look forward to the new study.” This was reflected as well in the results of the survey, shown in the accompanying chart, which demonstrate that nearly 40% of the respondents to the survey did not know whether the ATJ Board provides the right amount of support and participation in the Equal Justice Coalition and Campaign for Equal Justice. More than 50% indicated that they did not know whether the ATJ Board had provided the right amount of support and participation in the Task Force on Civil Equal Justice Funding and the Civil Legal Needs Study in 2006. The lack of identification of the ATJ Board with some of these activities may have been deliberate, given that collaboration and not taking credit for what is been accomplished are ideals in the State. Whether intentional or not, one casualty has been a lack of recognition of an important contribution of the Access to Justice Board. By definition, persons who were interviewed as part of this assessment were basically familiar with the ATJ Board. It was noteworthy, however, that two of the individuals interviewed who are now active with the ATJ Board, indicated that in spite of their having been involved for a number of years with the civil justice system, they for a long time had not known about the ATJ Board. One reported having been involved in the 2006 state planning process, but even in that context initially not having known that there was an ATJ Board and that it was responsible for the planning process. The solution to the perhaps surprising invisibility of the ATJ Board and some of its activities lies in broader communication strategies that are suggested later in this Report, par-


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ticularly those related to reaching a broader audience regarding access to justice issues. There are some steps, however, that could be taken to increase knowledge of the ATJ Board’s activities among those who are more active in the civil justice community. Some of the lack of knowledge of the ATJ Board’s projects, for instance, was attributed by some to the fact that it does not follow up with former participants in its activities regarding what has happened and what continues to be done. One person who was formerly highly active with the ATJ Board and the Alliance for Justice noted receiving over the years “lots of notices about meetings, but not much about what’s been done [by the Board]. That would be cool to get.” Others who were interviewed noted the importance of celebrating what has been and is being accomplished as a means to keep people informed and engaged. RECOMMENDATION. The ATJ Board should develop a broad communication and marketing strategy about its work and the issues that it addresses. The goal of the strategy should be to publicize important access to justice issues that it has addressed and the resources that are available to respond as a result of its work and the work of others. It should seek to increase its public profile and with it the profile of the access to justice community, with an eye toward enhancing its capacity to draw attention to access to justice issues with a broad spectrum of institutions. As part of its communication strategy, the Access to Justice Board should consider utilization of evolving social media as a means to communicate on an ongoing basis about its activities and their accomplishments.14

Communication among partners in the Access to Justice Community One key aspect of the communication challenge facing the Access to Justice Board is interaction with the constituent members of the civil justice community, including particularly the legal aid providers. The lack of adequate interaction involves both communication to the providers about what the ATJ Board is doing as well as communication from the providers to the Board about their work. Communication about ATJ Activities. Emblematic of the need for greater communication with legal aid providers is the fact that the survey showed a lack of familiarity among providers and their staff of some projects and accomplishments for which they were the principal audience. While 92.9% of the legal aid attorneys who responded to the survey were familiar with the Hallmarks of an Effective Civil Legal Services System, only 75% of the leaders or managers of legal aid programs indicated they knew about them.15

14

See the recommendations below regarding the importance of implementation and follow-up (p. 21) and assessment of outcomes (p. 23).

15

The Hallmarks are discussed below beginning at p. 29.


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Only 71.4% of the legal aid attorneys and 68.8% of the leaders and managers responded that they knew about the Performance Standards for Legal Aid in the State of Washington (2010), even though the Standards directly address the operation of programs and representation of legal aid clients.16 Nearly one-half of the respondents from legal aid organizations did not know about the Access to Justice Technology Principles.17 Historically, there have been two main vehicles for providers finding out what the ATJ Board is engaged in: 1) the first was the Annual Access to Justice Conference, which was suspended in 2013 for budgetary reasons, and 2) the ATJ Board’s regularly scheduled meetings. This assessment clearly shows that the Annual Access to Justice Conference has been one of the ATJ Board’s most successful means of communicating and that its termination has been a great loss. As shown on the Table on page 13, the Annual Conference has the highest recognition rate – 94.5% – of any of the activities in which the ATJ Board has been engaged.18 The accompanying chart shows, 67.1% of the persons who responded to the survey for this evaluation had become familiar with the Access to Justice Board through the Annual Conference, far surpassing the other means by which respondents came to know it.

16

The Performance Standards are addressed below beginning at p. 30.

17

The Technology Principles are addressed below beginning at p. 32.

18

See also the Table showing familiarity with ATJ Board activities on p. 13.


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The Annual Access to Justice Conference is discussed at greater length later in this report.19 Two of the many comments about the value of the Conference are recorded here in the relation to the importance of the Conference in the context of the ATJ Board’s need to communicate effectively. • “It is a shame that the Annual conferences are not occurring any longer. They were vital opportunities for the legal aid community to form and expand relationships which allow for the effective sharing of information which improves the delivery of legal aid.” • “They were most effective in shining a light on the continuing challenges facing poor and vulnerable people in WA, creating opportunities for leaders …to establish expectations and encourage continued effort, providing a forum for new public justice-oriented attorneys and law students to connect with one another, with legal aid programs and with justice system leaders, and in instilling a necessary once-a-year boost in the inspiration, energy, passion and connectedness of those engaged in civil equal justice work.” RECOMMENDATION: The Access to Justice Board should seek funding to reinstate to the Annual Access to Justice Conference at the earliest opportunity. The Annual Conference is key to the ATJ Board addressing is communication challenges and will also be beneficial to its carrying out other recommendations made in this report.

The meetings of the Access to Justice Board have also not been an adequate tool for communication with its partners. First, the meetings are not easily accessible, both because they are very long and because they are in Seattle, limiting participation for persons from other parts of the state. The observation of one person who was interviewed reflected a common theme about the length of the meetings: “What the ATJ Board needs to do better is communicate internally. A lot of communication happens at the ATJ Board meetings, but unless you’re a faithful attendee you don’t get it. And, the meetings are very long. I mean, very long!” Another key factor is that there was also common agreement among participants in the providers’ focus group that they felt “disconnected” and were uncertain of the relevance of some of the ATJ Board’s activities to their specific concerns. Among the comments expressed at the providers’ focus group were the following: • “I don’t go to very many meetings and when I do I feel disconnected from the ATJ Board talks about.” • “A lot goes on at meetings and there’s a lot of workflow, but I just observe and I don’t think it’s relevant to me.” • “[It’s] interesting, but not necessarily engaging stuff.” Communication from the providers. A related issue identified in the evaluation is the perception that mechanisms do not exist for providers to communicate with the ATJ 19

See the discussion of the Annual Access to Justice Conference beginning at p. 35.


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Board about their activities and insights. Again, there was a common theme at the providers’ focus group of a lack of connection regarding their work. • “There never seems enough time on the agenda to provide a level of engagement with the providers. The Delivery Committee is digging into it more. Those meetings are very interesting and very helpful, but I’m not sure the content ever gets to the Board.” • “I don’t know if any of what we talk about at the Delivery [System] Committee goes up. They are good, deep discussions – but are they relevant? The committee is an incredible brain trust of people, but I don’t know if what we talk about ever goes up.” •

“[The Board] invited the providers one time to talk about their work – it would be really helpful to do more of that.”

•

“The Delivery Systems Committee’s focus on things tends to be on traditional legal aid, sometimes leaving out smaller programs and narrower issues (like immigration). There should be a way for people to share what they’re doing on a regular basis. It’s important information for the Board to have."

•

“Coordination of expectations related to the delivery system has been an area of difficulty. In recent months, the Delivery Systems Committee has begun to gather buy-in and momentum to help develop a blueprint for intractable challenges facing discrete populations”

•

“I feel like the priorities and the setting of the agenda should come from the people who are doing the work, the providers. The power is in the ATJ Board and not in the Alliance, but there should be more interaction and drawing from the Providers and more of a marriage of the two.”

RECOMMENDATION: The Access to Justice Board should explore ways to increase communication and interaction with the legal aid providers. Discussions, conclusions and recommendations reached at the Delivery Systems Committee should be regularly and formally reported to the ATJ Board. The Board should examine ways to make its meetings more efficient and more accessible to persons throughout the state. It should consider ways to increase communication with and among its committees outside of the formal meeting structure.

Communication with the public and others outside the civil justice community This evaluation also found that communication with the general public and with those who are not directly involved in the civil justice system needs improvement. As noted at the outset of this Report, one of the focuses of this evaluation was on the degree to which the ATJ Board has been successful in broadening support for access to justice among segments of the society that are not directly involved in the justice system.


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Responses to the survey reflect a perception that the Board has been considerably less successful with this broader objective than other aspects of its work. Less than one quarter of the respondents felt that the ATJ Board had been either “Very effective” (3.6%) or “Effective” (19.6%) in accomplishing this goal. Almost 40% felt that the ATJ Board had been only “Somewhat effective,” 10.9% felt it had been “Ineffective” and 0.7% “Very ineffective.” Slightly more than 25% responded that they “Don’t know.” There are various aspects to the challenge of communicating more effectively to the public. First, the evaluation noted that over the years the ATJ Board has not made communicating with the potential beneficiaries of its work a priority. A member of one of the focus groups that was part of this evaluation had been a lawyer who had been active in the segment of the bar that represents persons with disabilities. This lawyer had not known until this evaluation that the ATJ Board had published two manuals affecting that population: Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts and A Guide for Washington Administrative Proceedings and had successfully advocated for the Court Rule, GR 33, to assure that persons with disabilities have equally meaningful access to the judicial system. The lawyer observed that there are approximately 500 attorneys in Washington who specialize in representation of persons with disabilities “who would have loved the stuff.” That comment reflected the view of another person interviewed who commented on the lack of communication with the public about the existence of GR 33, although it could be beneficial for potential litigants to know about the protections and rights given to them. The lack of focus on informing persons with disabilities and the lawyers specializing in disability law does not reflect a lack of attention on the ATJ Board’s part to encouraging widespread use of the manuals by the courts and administrative law judges. In fact, the ATJ Board implemented a well-designed training program aimed at judges and administrative law judges, who were the primary audience for the manuals. That focus did, however, result in little attention being directed to informing the general public and members of the bar of the potential benefit of the initiatives for them. The lower priority given by the ATJ Board to communication with the general public is reflected in the Board’s website, which is housed on the website of the Washington State Bar Association. The homepage for the Washington State Access to Justice Board is largely informational about the Board’s activities with links to a description of its Committee Structure, a Statement of its Current Priorities and Key Documents. The list of


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“key documents” is essentially an impressive archive of 57 links to various documents, reports and studies produced by the ATJ Board. None of the links, however, provide any directly accessible statement regarding the importance of access to justice or of the benefit to the public of any of the items archived on the site. The accompanying screenshots are presented to show the visual impact of the Access to Justice Board’s website as an impressive archive of links to materials, but as a relatively unfriendly page for a member of the public looking for information about access to justice.

Visual of items presented on the “Key Documents” page http://www.wsba.org/Legal-Community/Committees-Boards-and-Other-Groups/Access-to-JusticeBoard/Access-to-Justice-Board-Key-Documents

RECOMMENDATION: The Access to Justice Board should develop a communication strategy to inform a broader audience about access to justice issues and to provide information regarding how pertinent activities and accomplishments benefit certain targeted audiences, such as persons with disabilities and self-represented litigants. As part of that strategy, it should consider using the Living History website currently being developed to provide such information to the general public


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Communication with members of the bar One of the audiences that is outside the immediate purview of the access to justice community, but, nevertheless, is aligned with it is the broader membership of the bar. The instance described above of the lawyer who had represented persons with disabilities, but had been unaware of the resources developed by the ATJ Board reflects a broader need to reach out to the bar. One Washington State Bar Association staff member who participated in the focus group observed: “I have always had trouble seeing ways that the work of the ATJ Board relates to the needs of the members of the bar. What should I be messaging to the board of a minority Bar Association about what the ATJ Board does. What is the ask for them?” Another stated simply: “The Access to Justice Board has done a very good job of getting support of the leadership of the bar and the BOG [WSBA Board of Governors], but they have failed at reaching out to the private members.” A participant in the focus group of the Board of Governors of the Washington State Bar Association observed that it often “…feels …hard to get information – like looking through binoculars.” The Washington State Bar Association staff focus group also explored the potentiality for taking advantage of the communication resources of the WSBA. There have been discussions in the past about making greater use of the resources, but no strategy has emerged for making that happen. RECOMMENDATION: The staff of the ATJ Board should schedule periodic meetings with pertinent staff of the Washington State Bar Association to discuss the Board’s initiatives. The ATJ Board also should work with the appropriate staff of the Washington State Bar Association to develop a strategy for taking advantage of the communication resources of the Bar Association to reach out to the membership of the bar and to the public at large.

IMPLEMENTATION AND FOLLOW-UP Closely related to the ATJ Board’s challenge to improve communication with various audiences about its past and current work is the need for greater attention to implementation and follow-up. The Board typically invests a great deal of work in the development of its various projects and initiatives, but the pattern has been to move onto the next initiative, once the policy has been adopted or the report completed. This theme emerged in many of the interviews and focus groups. One observation was that the ATJ Board has many “Great ideas that result in a big report that just sits on the shelf unless someone pays attention to its implementation.” Another characterized the ATJ Board as “… great at proposing, but not so good at implementing.” One person, familiar with the operation of courts noted the historic resistance of court clerks in smaller rural counties to change mandated from Seattle. In the face of that, ATJ Board initiatives that lack a plan for implementation were described as “not fully baked,” evoking “…zero confidence [of] …being implemented out in the counties.”


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A broad lesson can be drawn from the experience of the ATJ Board with implementation of its initiatives. It harkens back to the observations made at the outset of this Report that there is sometimes a dynamic tension between the ATJ Board’s necessarily cooperative and collaborative role as convener and instigator and its more assertive role, pushing its partners as an advocate or creator of change.20 The dynamic tension comes full circle when, in order for a policy to be implemented, the cooperation and participation of other partners are necessary, as is often the case with court rules and other initiatives that affect the operation of the judiciary. There are complicated dynamics in the ATJ Board and its committees finding the right balance in its interaction with partners who may initially be resistant to a proposed change, but are ultimately necessary for its implementation. On the one hand, the Supreme Court is clear in its expectation that the Board will be a catalyst for change and will maintain its independent perspective in order to identify where change is necessary. Too close an alignment with various partners can inhibit the necessary objectivity. The staff of the ATJ Board already works closely with the Administrative office of the Courts, but, nevertheless, there was still a perceived need on the part of the AOC staff for more consultation about proposed court orders and policies. Participants in the focus group stated a perception that they “…are handed to us to implement,” so that from their perspective, there is not always buy-in and full consideration of practical issues. Comments to the survey and in the interviews and focus groups reflect this sentiment. • “It seems that the ATJ doesn't realize the ramifications of some of its actions on other areas of the legal community, but perhaps that is not their concern.” • The ATJ Board is a “big idea factory, without a lot of grounding in the practical effects of its ideas.” • “My criticism of the ATJ Board is … that it does not understand the practicalities of some of its policies and recommendations on the ground where they are implemented. If started again, it could be a place where there are meetings to talk about the practical aspects of the policies that the ATJ Board is considering. We have an opportunity to figure out how to make things work better.” Because the ATJ Board has limited staff and resources, it necessarily has to rely on others to implement nearly all of the policies and initiatives that it recommends. A concern expressed by members of the Supreme Court was that if the Board takes responsibility for implementation of its initiatives, it could limit the number and scope of issues that it could address, undermining the Court’s intention for the Board. The answer, however, does not lie in ignoring the importance of implementation, but rather in building into the development of any initiative, plan or study a strategy to engage the appropriate institutions and individuals to assure that the initiative, plan or study is implemented. • “With [the ATJ Board’s] resources, it will be hard to follow up with implementation and evaluation. It is important have the right people in the room when 20

See the discussion of the ATJ Board's various roles at p. 10.


•

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you’re developing policies, since they are going to be the people who are implementing it. If they’re not open to it and what it might do, they will not support it.” “There is a need for ‘backroom conversations’ about the actual application of the rules” so long as it does not undermine the board’s being “the pure voice representing the interests of low-income communities.”

In the following assessment of the ATJ Board’s specific activities related to each of the objectives set forth by the Supreme Court’s order, this Report enumerates examples of the challenge of implementation and follow-up. Several are particularly instructive regarding the challenge and opportunity presenting itself to the ATJ Board. The first two are the various Plans for the Delivery of Civil Legal Services to Low-Income People in Washington State21 and the Performance Standards for Legal Aid in the State of Washington,22 for both of which implementation strategies were developed, but which fell short in practice. Another is the set of strategies related to treatment of persons with disabilities for which there was a detailed implementation plan to provide training to the courts regarding the pertinent court rule and the manual for the court. No implementation plan was developed, however, regarding publicizing the initiatives to its beneficiaries, that is, persons with disabilities.23 The final instructive initiatives are the Technology Principles24 and the Plain Language Forms Project,25 both of which ultimately have had significant resources devoted to their implementation, including the active involvement of the Administrative Office of the Courts. RECOMMENDATION: The ATJ Board should develop protocols for addressing how each policy, initiative, recommendation or order, if adopted, will be implemented. The protocol should address 1) what will be required for implementation, including a communication strategy, 2) the resources required and 3) what other institutions or organizations need to be consulted and enlisted. The ATJ Board should also explore with the Administrative Office of the Courts ways to communicate before, during and after the development of policies, recommendations or orders that will require the participation of its staff to implement.

ASSESSMENT An issue that is closely related to the challenge of implementation and follow-up is the need for greater attention to assessing whether initiatives, recommendations or policies have their intended effect. There was general agreement among persons interviewed,

21

See the discussion of the State Plan below at p. 26.

22

See the discussion of the Program Standards below at p. 30.

23

See the discussion of the policies and initiatives related to persons with disabilities below at pp. 24 and 43.

24

See the discussion of the Technology Principles below at p. 32.

25

See the discussion of the Plain Language Forms Project below at p. 41.


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participants in the focus groups and comments to the survey that little attention has been paid over the years to such assessments. •

“So many ‘don't knows,’ but I'm just not aware of any evaluation that has been done of these programs, what the base lines were and how much of a difference they have made for people needing access to the justice system.”

•

“Sadly, I have to answer don't know to all these because despite working intensely on some of these, there were never measures to gauge effectiveness, and little, if any, reporting on them. Yes, there is the annual report of the ATJ Board, but it's a dense document that catalogs activity. It doesn't usually capture impact.”

•

“Again, we need to do a better job of identifying goals and outcomes, so that we can measure success.”

•

“Although the ATJ Board convened adoptions of all these standards and approved them on behalf of the Alliance, the Board does not seem to have any role in evaluating whether or not they are being met. Thus, they are often disregarded in the field. The one exception seems to be the technology principles. The ATJ Technology Committee tenaciously promotes these principles and evaluates seemingly every court rule through the lenses of these principles and is thus very effective even without formal evaluative authority.”

Very important initiatives of the ATJ Board over the years have been aimed at increasing access for persons with disabilities. The results seen in the survey responses regarding these initiatives reflect the lack of any assessment of whether they have achieved their intended objectives. Initiatives on behalf of persons with disabilities. To respond to the needs of this population, the ATJ board developed two sets of guidelines regarding their treatment in both the courts and administrative hearings. Respondents to the survey strongly supported the importance of such undertakings with more than two thirds of the respondents either strongly agreeing (36.6%) or agreeing (30.5%) that the development of guides to assure equal access for persons with disabilities in courts and administrative hearings was a good use of the ATJ Board’s time and resources. Nearly half, however, indicated that they did not know whether the guides had, in fact, had a positive impact on persons with disabilities treatment in either courts (47% responding, “Don’t know”) or administrative hearings (48.8% % responding, “Don’t know”). A little more than one third either


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strongly agreed (20.7% for Administrative Proceedings/20.5% for Court proceedings) or agreed (17.1% for Administrative Proceedings/18.8% for Court proceedings) that the results had been effective. It is not uncommon for initiatives and projects, such as those undertaken by the Access to Justice Board, not to be assessed to determine if they accomplished their intended outcomes. With limited resources, it often seems daunting to consider spending some of those resources to engage in any follow-up assessment. Nevertheless, knowing if a strategy has been successful is important to provide guidance for future endeavors using similar strategies. If a strategy does not, in fact, accomplish its intended outcomes, it is not a good use of limited resources to pursue the strategy, no matter how well-meaning the intent or focus of the effort. A follow-up assessment can help determine what factors contributed to the success of an endeavor and what impeded it. Armed with that knowledge, adjustments can be made to current work and future strategies can the directed to take advantage of the strengths and avoid what did not work. Assessing the effectiveness of initiatives and projects does not necessarily call for the significant expenditure of resources. A part of every plan for implementation could involve a fairly simple design to conduct a simple online survey or phone calls to a small cross-section of individuals, such as judges or court clerks, likely to be affected by rule or knowledgeable about its impact. RECOMMENDATION: The ATJ Board should establish a protocol 1) for identifying intended outcomes for policies, strategies and initiatives undertaken by it; 2) for identifying the means by which the accomplishment of the intended outcome could be measured; and 3) for conducting a simple follow-up assessment. The Board should explore with local universities and law schools the potentiality for using interns to help conduct follow-up evaluations.


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Assessment of Success Achieving Specific Objectives To assess the Board’s success accomplishing its assigned objectives, the evaluation focused on the major activities undertaken over the years in relation to each of those objectives.

A. ESTABLISH, COORDINATE AND OVERSEE A STATEWIDE, INTEGRATED, NON-DUPLICATIVE, CIVIL LEGAL SERVICES DELIVERY SYSTEM THAT IS RESPONSIVE TO THE NEEDS OF POOR, VULNERABLE AND MODERATE MEANS INDIVIDUALS

The first objective set forth by the Supreme Court’s order is central to the overall capacity of the civil legal aid delivery system to meet the needs of persons whom it serves. Some, who were involved in establishing the Access to Justice Board in 1994, recalled that one impetus for its creation was to bring the legal aid providers together and to overcome competition and “turf” struggles among them. That early focus led to an activist role with the creation in 1995 of the Plan for the Delivery of Civil Legal Services to LowIncome People in Washington State. The 1996 State Plan laid out the blueprint for a major restructuring of civil legal aid in the state, including notably creating the core of one LSC funded statewide program that would be subject to LSC restrictions (which became the Northwest Justice Project) and one statewide program that would get unrestricted funding (which became Columbia Legal Services). The 1996 State Plan also specifically incorporated the Hallmarks of an Effective Statewide Civil Legal Services System. The State Plan was substantially revised in 1999 into a 75 page document that addressed such diverse issues as intake, technology, self-help, coordination of legal work, training, private attorney involvement, funding and broad substantive objectives. That plan was in turn revised in 2006 in a process that created 19 delivery regions for planning purposes. The 2006 State plan set goals to upgrade rural delivery, strengthen pro bono, centralize client intake in King County, to strengthen state support functions and to expand client access to overcome barriers to the system resulting from cultural, linguistic, status-based, ability-related or other challenges. The plan also created an oversight committee charged with the responsibility of overseeing and supporting implementation of the plan. Looking back over the past 20 years, there is no doubt that the state planning efforts have had a significant long-term impact on the delivery system, particularly at the beginning when the current structure was designed and put in place. At that time in particular, the comment of one respondent to the survey was true: “The State Plan has become central to establishing and providing a framework of expectations for the broader delivery system and distinct components of it.” One of the persons interviewed observed: “Did we accomplish some really major things? Absolutely yes. Some really bad things would’ve


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happened if we had not for example done major restructuring in the 90s. Not everybody understands why those changes were made and we may need to do some kind of a legacy thing.” The focus on direct planning with providers also affirmed the importance of the legal aid delivery system at times when it was under fire. One participant in the providers’ focus group noted the ATJ Board has been instrumental in creating and sustaining a matrix of strong relationships among key institutions that are committed to civil legal aid and to the providers. “Legal aid is not only safe because of the relationships, but people are stepping over themselves to have a relationship with legal aid, to be associated with it, to be a part of it. That brings connections with people who do become an important part of resource development, because of the Supreme Court’s support. It is significant and substantial what the ATJ Board can ask of people and get.” Notwithstanding the early importance and success of state planning efforts, it seems clear that the central role of the ATJ Board’s planning effort has diminished in recent years. The plans for expansion of rural delivery, pro bono and increased access to isolated populations fell victim to the economic collapse of 2008, and its dire impact on available resources. One comment to the survey summarized it this way: “This is hard because the 2006 revision was quite good, but didn't have a chance to really work after the crash in 2008.” The results to the survey reflect the fact that the goals of the plan are viewed by many as not having been met. As shown in the accompanying charts, while a majority (55.6%) of the respondents to the survey felt that the adoption of the 2006 plan was a “successful strategy” (16.9% strongly agreed and 38.7% agreed), a little more than a third were uncertain of its success, with 21% somewhat agreeing, 8.1% disagreeing and .8% strongly disagreeing and 14.5% indicating that they “Don’t know.” The inability to follow through on areas identified as being a priority for expansion in the 2006 State Plan was noted by comments to the survey. One person expressed being “disappointed that


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expansion to rural areas is always on the chopping block when resources are limited or scarce, e.g. no volunteer lawyer program in [my small rural] county, few legal aid lawyers in rural counties.” Another expressed concern that the loss of resources to expand pro bono reflected a continuation of an outlook that “…the pro bono programs are not thought of as more of a higher service than other programs. Even though they provide on the ground, in the trenches help for clients.” It was also apparent in the evaluation that some feel disconnected from the state plan. This appears to have resulted from the goals of the 2006 State Plan having been thwarted by the budget crisis and the fact that there is new leadership without a history in the early planning efforts. This is exacerbated by – and may contribute to – the previously discussed sense of some providers feeling disconnected from the ATJ Board.26 These dynamics were commented on in the survey: • •

•

•

•

“The State Plan is somewhat stale and as personnel and other institutional changes occur, some of the strategic intention gets diluted or lost over time.” “Adopting a state-wide plan was a great idea and has generally been effective. However, the most recent plan seems to be out of date. The original plan was built from the ground up by local regional planning groups. Except for a few, those no longer meet; and there is no effort to coordinate the input of those that do meet with current state-wide operations or planning.” “In my opinion, the local planning should be continuous and connected directly to what is happening in other regions and state-wide. My perception is that a handful of leaders from a few stakeholders essentially conduct what limited statewide planning goes on. Most of them are effective leaders, but we have missed a huge opportunity to bring in new leadership, empower decision making closer to where it matters and facilitate the state plan as an organic document.” “This is hard because the 2006 revision was quite good, but didn't have a chance to really work after the crash in 2008. Around that time, new leadership in the state that was not as invested in the State Plan. Competition for resources emerged as a very un-state-plan-like trend, and now we have multiple organizations competing for the same dollars despite the state plan.” “The attempt to work through implementing the plans went very badly. It was a hard experience and so SPOC [State Plan Oversight Committee] was disbanded. The providers since then have been sort of left out.”

RECOMMENDATION: The ATJ Board should engage in discussions with the civil legal aid providers, through the Delivery Systems Committee, about the most effective means collectively to identify and address issues that are germane to “a statewide, integrated, non-duplicative, civil legal services delivery system that is responsive to the needs of poor, vulnerable and moderate means individuals.” Consideration should be given to an ongoing process that identifies and responds to issues as they arise, rather than through a formal state plan. If reinstated, the Annual Access to Justice Conference should be utilized as an opportunity to

26

See the discussion above regarding communication with the providers beginning at p. 17.


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increase communication with the providers and to consider issues affecting the statewide delivery system.

B. ESTABLISH AND EVALUATE THE PERFORMANCE AND EFFECTIVENESS OF THE CIVIL LEGAL SERVICES DELIVERY SYSTEM AGAINST AN OBJECTIVE SET OF STANDARDS AND CRITERIA

This objective set forth by the Supreme Court suggests two kinds of activity. The first is to set standards and criteria by which to measure the effectiveness of the delivery system and the second is to evaluate the delivery system against those standards and criteria. The ATJ Board has focused significantly on the former, developing first the Hallmarks of an Effective Civil Legal Services System and the Performance Standards for Legal Aid in the State of Washington. In addition, it developed the Technology Principles which were adopted by an order of the Supreme Court and relate to the introduction of technology into the civil justice system. On the other hand, the ATJ Board has not directly engaged in formal evaluation of “the performance and effectiveness of the civil legal services delivery system.” The Board has engaged in activities such as the development of the State Plan, which, while designed to produce the resultant plans and to guide development and operation of the system, were based on an analysis of the needs of the delivery system with an eye toward strengths that it was important to foster as well as weaknesses or limitations that were important to address. The Board has not, however, undertaken any formal evaluations of the delivery system per se. The implicit decision of the Access to Justice Board not to engage in any formal evaluations of the delivery system appears to be appropriate in light of the systems that are in place in the state to evaluate each of the providers. The principal funders of civil legal aid in Washington, the Legal Foundation of Washington, the Office of Civil Legal Aid and the Legal Services Corporation, all conduct evaluations of their grantees on a regular basis and additional evaluations do not appear to be a necessary. Reactions of persons interviewed in the course of this evaluation are consistent with the conclusion that it would not be a cost effective use of the ATJ Board’s limited resources to engage in formal evaluations. While the Board has not engaged in formal evaluations, it has committed significant resources to two initiatives to develop standards and guidelines that pertain directly to the operation of the civil justice system. Hallmarks. The Hallmarks of an Effective Civil Legal Services System were originally written and adopted in 1995, the first full year of the operation of the ATJ Board. They were designed to set forth the mission and values of the delivery system as well as its key components and capacities. The Hallmarks were revised in 2004, to produce “…a more clear and concise statement of the ideals upon which the legal services delivery system is based and from which it continues to evolve.”


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The Hallmarks received mixed reviews from persons who took the survey and who commented on them in the course of this assessment. Almost two thirds (60.9%) of the respondents to the survey indicated that they “know about the Hallmarks.” Only 46.6%, however, responded that the Hallmarks had “…been effective in stating principles guidelines and values that, in fact, guide the civil legal aid delivery system in Washington State,” with 14.9% strongly agreeing and 31.7% agreeing with the statement. The principal criticism of the Hallmarks over the years has been their “density.” As one person observed in the comments: “The Hallmarks aren't easily-readable, and that is why I disagree with their effectiveness.” At the time of this evaluation a process was underway to shorten them significantly and to simplify their language. Performance Standards. In 1999, the ATJ Board adopted its first set of standards, the Civil Equal Justice Performance Standards, which set forth how civil legal aid programs in Washington State should operate. These standards were substantially revised in 2009 and were renamed, Performance Standards for Legal Aid in the State of Washington. The survey indicated that there was somewhat greater doubt regarding the effectiveness of the Performance Standards, in terms of their actual impact on the delivery system. While the Performance Standards were seen as being “more practical overall than the Hallmarks,” the lack of follow-up or implementation hampered their usefulness.27 One comment to the survey noted: “The Standards are really good but I think we've definitely fallen down on implementing them/educating people and programs about them. Particularly in the pro bono community, training and education on the standards for staff and boards is needed. Hopefully once the new ABA pro bono standards have been incorporated into the WA

27

See the discussion of implementation and follow-up beginning at p. 21.


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standards, we can put together an effective way to inform and educate everyone about the standards.” Other comments to the survey regarding the Performance Standards reflected similar concerns about their limited impact: • “While the standards are routinely used by funders in undertaking program and delivery system review, it is not clear whether they have created any new sense of understanding or expectation within the individual programs themselves.” • “At best, they serve as community agreements to wave around in conflicts in [an] effort to get the Alliance back to common ground.” Ironically, a 13 page guide, Proposed Strategies for Using the Performance Standards for Legal Aid in the State of Washington was developed to encourage their use by legal aid organizations for training and orientation, for self-assessment and values clarification and for peer-review.28 Unfortunately, the proposed strategies were not brought to the attention of those who might have used them, so advantage was not taken of them. It is telling that responses to the survey of one of the principal audiences for whom the Performance Standards were written – that is, advocates in civil legal aid providers – reported being less familiar with the performance standards than the overall respondents to the survey. Only 15.4% of the legal aid attorneys who responded to the survey either agreed that the Standards “had been effective in providing guidance for the operation of the late organizations.” None strongly agreed and 38.5% indicating they “Don’t know.” In contrast, while none of the leaders or managers and legal aid programs strongly agreed, 53.3% agreed they had been effective and 26.7% said they “Don’t know.” Data for all respondents to the survey show 38.4% either strongly agreeing (10.1%) or agreeing (28.3%) and 29.3% saying they “Don’t know.” One interesting feature of the responses to the survey regarding standards and guidelines is shown in the two charts on the previous page related to both the Hallmarks and the Performance Standards. For both, a 61.4% of the respondents either strongly agreed (17.8%) or agreed (43.6%) with the general statement that “The focus of the ATJ Board on the adoption of standards and guidelines had had a positive impact on the civil justice system in Washington State.” The responses regarding the effectiveness of the each of the spe28

http://www.wsba.org/~/media/Files/Legal%20Community/Committees_Boards_Panels/ATJ%20Board /Proposed%20Strategies%20for%20Using%20Performance%20Standards%20for%20Legal%20Aid%20 in%20the%20State%20of%20Washington%20-%202010.ashx


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cific guidelines standing alone, however, were significantly less positive. Only 45.6% either strongly agreed (14.9%) or agreed (31.7%) with the effectiveness of the Hallmarks. A smaller percent, 38.4% strongly agreed (10.1%) or agreed (28.3%) with the effectiveness of the Performance Standards. One explanation for the difference may be that in spite of the drawbacks associated with each, the process of defining and articulating the underlying values in the Hallmarks, particularly in the early days of the operation of the ATJ Board, helped create the shared values around access to justice issues and a client centered approach to civil legal aid that are woven into the system in Washington State. Thus, the cumulative effect of discussions of the values reflected in both sets of guidelines may be recognized to be significantly higher than the perceived immediate benefit of either one. RECOMMENDATION: Strategies should be developed for publicizing the revised Hallmarks of an Effective Civil Legal Services System, particularly among the civil legal aid providers and others affected by them. Potential uses for the Proposed Strategies for Using the Performance Standards for Legal Aid in the State of Washington should be discussed by the Delivery Systems Committee and a plan developed for their use, if appropriate.

Technology Principles. The Access to Justice Technology Principles represent a different expression of standards and guidelines than the Hallmarks or the Performance Standards. The Technology Principles were originally developed as a stand-alone document, and then were presented to the Supreme Court, which adopted them in 2004.29 The history of the Technology Principles is instructive with regard to the challenges of implementing the ATJ Board’s initiatives that are discussed elsewhere in this Report.30 The Principles were ten to state “values, standards and intent to guide the use of technology in the Washington State court system and by all other persons, agencies, and bodies under the authority of this Court.” The values and principles are very broadly stated and do not provide explicit guidance regarding specific uses of technology. As shown in the accompanying chart, slightly fewer than 40% of the respondents either strongly agreed (12.9%) or agreed (26.7%) with the statement that the Technology Principles had been effective, with 31.7% stating they “Don’t know.”

29

Order of the Supreme Court dated December 3, 2004. http://www.wsba.org/~/media/Files/Legal%20Community/Committees_Boards_Panels/ATJ%20Board/ Washington%20State%20Access%20to%20Justice%20Technology%20Principles%20%20Supreme%20Court%20Order%202004.ashx

30

See the discussion of implementation and follow-up beginning at p. 21.


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When the Technology Principles were first adopted by the Supreme Court, they were described as having “sat on the shelf for a number of years and having a court order did not make any difference.” Another participant in the evaluation observed: “The principles are at such a level that no one can disagree with them. But the question they raise is now what? They should have an implementation plan that sets out how it should be put in place.” As it happened, because of a very active and knowledgeable chair, the Technology Committee of the ATJ Board began actively to work to support the implementation of the Technology Principles. The process is instructive regarding the importance of engaging those who are essential to the implementation of the policy. When the effort began to focus on what the Technology Principles might mean in practice and how effectively to implement them, the Technology Committee found resistance and even hostility among Court Clerks, because the Principles were seen as an “unfunded mandate.” What has evolved, however, has been a cooperative effort among 1) the Technology Committee, 2) the staff of the project (for whom the Board has obtained grants) and 3) selected Clerks of County Courts who are interested in exploring together the best practices for the use of technology. The result has been an interactive relationship that was described as working “best when we are seen as partners.” Staff members of the Administrative Office of the Courts cited the work done on the Technology Principles (along with the Plain Language Forms31) as a model for cooperative work planning and implementation. The benefits of the cooperation are seen as going both ways: “The Technology Committee is getting a better sense of how the courts operate and asking more to be involved. It’s important to have more interaction, and the technology committee has gotten better at it.” At the same time, “Our focus [the AOC’s] is largely on the courts and the judges, but it’s a big help to have somebody in the room who has a different perspective. And the technology committee person helps with that. And with taking the principles and actually using them.” RECOMMENDATION: The ATJ Board should explore with the Technology Committee, AOC staff and other participants what have been the key characteristics of the collaborative effort to implement the Technology Principles and how the approach can be replicated in future work.

C. PROMOTE ADEQUATE LEVELS OF PUBLIC, PRIVATE AND VOLUNTEER SUPPORT FOR WASHINGTON STATE'S CIVIL EQUAL JUSTICE NETWORK

Resource development in the State of Washington is generally a cooperative effort. The Access to Justice Board has largely pursued this objective through its support of commit31

See the discussion of Plain Language Forms beginning on p. 41.


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tees that operate and are administered independently. It created the Equal Justice Coalition [EJC] as a separate committee whose objective is to advocate for public funding for state civil legal aid. As noted earlier in this Report, the survey shows generally positive support for the work done by the Equal Justice Coalition, but there is less knowledge about the fact that the EJC is a creation of the Access to Justice Board.32 The Board also supports the Campaign for Equal Justice which is administered by the LAW Fund to raise charitable contributions for the civil legal aid system. Both are housed with the Legal Foundation of Washington.. This assessment was not designed to review the joint resource development and fundraising efforts in the State of Washington. It is clear, however, that there is widespread support for the efforts that are underway. Comments to the survey and in the interviews, nevertheless, noted that while the efforts in the state are laudable, they clearly have not been successful in securing “adequate” levels of support and that public and private funding lag far behind the level of need. That lament, of course, is commonly repeated in every state in the country. One suggestion did emerge, however, which is to increase the focus on raising unrestricted funds for smaller programs. “The ATJB should be more involved in advocating for funding existing unrestricted legal aid programs that currently serve populations who are otherwise excluded from receiving services from legal aid programs that receive restricted funding.”

D. SERVE AS AN EFFECTIVE CLEARINGHOUSE AND MECHANISM FOR COMMUNICATION AND INFORMATION DISSEMINATION

The Supreme Court’s order explicitly charges the Access to Justice Board with the objective of serving as an effective clearinghouse and mechanism for communication and information dissemination in the state. The assessment specifically focused on the Annual Access to Justice Conference as a strategy significantly aimed at carrying out this objective. Many of its other activities have a dimension that relates to this responsibility. Accomplishing this objective is complicated given the number of organizations and the various interests and groups engaged in the civil justice system in the state. Issues addressed elsewhere in the report, suggest that there is room for improvement regarding this objective. As noted at the outset of this report, the primary challenge facing the Access to Justice Board is to improve its communication.33 Moreover, the degree to which the ATJ Board has become isolated from some of its key constituents, notably the legal aid providers, its capacity to serve as a clearinghouse and mechanism for information dissemination is diminished.34 32

See the discussion of communication about the ATJ Board's activities beginning at p. 35.

33

See the discussion of Communication beginning at p. 13.

34

See the discussion of relations with legal aid providers beginning at p. 17.


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Annual Access to Justice Conference. For 17 years, ATJ Board sponsored the Annual Access to Justice Conference to which leaders and staff members from the State Bar, local bar associations, the courts and judiciary, legal aid providers and other interested institutions were invited. The Conference, which would last for two and half days, typically had an agenda that covered a broad range of access to justice issues. In addition, the Conference provided an opportunity for various participants in the access to justice system to get to know each other and connect socially as well as substantively. In 2013, the Annual Conferences were defunded in the budget set by the Washington State Bar Association for the ATJ Board. This assessment clearly shows that the Annual Access to Justice Conference was one of the ATJ Board’s most successful endeavors and that its termination has been a great loss. As noted earlier in this Report, two thirds of the respondents to the survey for this evaluation had become familiar with the Access to Justice Board through the Annual Conference, by far the most common means of gaining such familiarity. The 94.5% who indicated that they were familiar with the Annual Conference also represents the highest recognition rate of any of the activities in which the ATJ Board has been engaged.35 The Access to Justice Conferences were recognized by respondents to the survey as being successful in accomplishing several objectives. Nearly 80% of the respondents either strongly agreed (42.9%) or agreed (36.1%) that the Conferences were “effective in educating participants about important issues affecting access to justice in the State of Washington.” More than 80% either strongly agreed (47.1%) or agreed (33.6%) that the Conferences “…were effective in strengthening relationships among leaders from the organized bar, the judiciary, the civil legal aid and pro bono communities, law schools, community partners and others.” 35

See also the Table showing familiarity with ATJ Board activities on p. 13.


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Responses to the survey were also sanguine about the effectiveness of the Annual Conferences in creating and sustaining networks among key stakeholders in the civil justice system, with 40.3% strongly agreeing and 33.6% agreeing. There was less agreement that the Conferences were effective generating concrete action to respond to challenges facing the civil justice system, with 21% strongly agreeing and 32.8% agreeing with the statement. Another 24.4% somewhat agreed. Comments to the survey strongly stated the importance of the Annual Access to Justice Conferences and the loss which had occurred because of their suspension. • The discontinuance of this annual recharging networking event has been a significant loss. We lost significant opportunities to : 1. connect and engage with bar and judicial leader allies whose support is essential for funding and other support; 2. initiate new ideas and programming, such as ‘inclusion, diversity & crossdifference competence as a justice imperative’ to a large equal justice-minded audience in a community-building setting; 3. strengthen advocates and supporters in Eastern Washington and other more remote parts of the state who work in isolated communities where support for the work can be controversial and thin. • The discontinuation of the ATJ conference was a huge blow to the cohesive development of the Alliance. There will hopefully be a way to fund the conference (on a smaller scale) in future years. This is a critical piece of creating and sustaining the networks that support the work of the Alliance. • There is simply no substitute for getting everyone together for a few days. The absence of the conference for the last few years has really dampened our ability to get things done on a statewide basis. It will only get worse without a new conference because relationships were strong enough to withstand a few years of missing the conference but will eventually wither away. I have noticed a substantial drop off in new ATJ Committee members, which is the lifeblood of Board work. • Such an important annual event. We need it back. • The Conference was great and served a useful purpose for years, although it did tend to feel more geared toward insiders. • To have the champions of access to justice all gather annually with the broad legal community, including the members of the Supreme Court, was a meaningful and valuable assist to those who labor in the trenches The interviews and focus groups reflected the same sentiments. One person interviewed stated simply: “Not having the Annual Access to Justice Conference has really sapped the energy of the ATJ Board.” The focus group of the staff of the Administrative Office of the Courts noted the importance of the Annual conference: “It was the only place where everyone came together that way so you had a mix of all types of people who work in relation to the justice system.” Three values were identified as resulting from the confer-


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ence: “… getting to know whom to contact, getting to know what other people do in their work, and getting new insights because of the interchange.” RECOMMENDATION: Given the strong evidence of the value of the Annual Access to Justice Conferences in assisting with its communication needs, supporting networking and energizing the access to justice system, the ATJ Board should prioritize obtaining funding to reinstate the Annual Conferences at the earliest opportunity.

E. PROMOTE, DEVELOP AND IMPLEMENT POLICY INITIATIVES AND CRITERIA WHICH ENHANCE THE AVAILABILITY OF RESOURCES FOR ESSENTIAL CIVIL EQUAL JUSTICE ACTIVITIES

One feature of the Access to Justice Board has been the wide range of activities in which it has engaged over the years. Many of these activities were pursued to meet the Supreme Court’s objectives related to policy initiatives that enhance the availability of resources for civil equal justice. The survey focused on three initiatives with which the Access to Justice Board has been associated in recent years that reflect this objective: 1) the Technology Plan, 2) The Courthouse Facilitator Program, and 3) The Greater Assistance and Access Project, which became the Washington State Bar Association’s Moderate Means Program. Survey results show general support for the ATJ Board’s involvement in these efforts. Responses to the general question regarding whether the “ATJ board has focused on the right issues in developing and implementing policy initiatives” resulted in a total of 59.4% either strongly agreeing (23.4%) or agreeing (36%). On the other hand, 23.4% only somewhat agreed with the statement. An even higher percentage either strongly agreed (26.4%) or agreed (39.1%) that “The ATJ Board has been effective on its own and in collaboration with others in developing policy initiatives that, in fact, enhance the civil justice system in Washington State.” A comment in the survey lauded the efforts: “All great initiatives that would never have been developed but for the ATJ Board.” The Courthouse Facilitator Program generated the most comments and discussion in the comments to the survey, the interviews and the focus groups. Of the people who re-


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sponded to the survey, 80% indicated that they were familiar with the Courthouse Facilitator Program. Only the Annual Access to Justice Conference (94.5% familiarity), the Equal Justice Coalition (84.1% familiarity) and the Campaign for Equal Justice (81% familiarity) have a higher recognition rate. • It is unfortunate there is not a Courthouse Facilitator in every County; this program is a necessity. The assistance this program provides for low income pro se litigants is valued beyond measure. • The Courthouse Facilitator Program ended up being less helpful than anticipated because the counties interpreted rules against the unauthorized practice of law as preventing facilitators from providing meaningful advice to the burgeoning numbers of pro se family law litigants. This could be remedied by contracting with contract courthouse attorney coaches for these litigants (one assigned to moms and one to dads with appropriate designations for same gender parents). These attorney coaches and their paralegals and law student interns would provide actual advice and assistance in filling out mandatory forms to a high volume of low income litigants but would not appear in court for them or negotiate for them. • Courthouse facilitators provide much need assistance to pro se litigants, but not every county has a facilitator • The Courthouse Facilitator program needs more funding and needs to expand its hours and services to the public. • The Courthouse Facilitator Program has from the beginning had structural issues which have never been successfully addressed. ATJ has operated in the periphery of this quagmire but never been effective in correcting the deficiencies • The Courthouse Facilitator Program is only as good as the leadership within any individual court house. I know the facilitator in [one] … County is very helpful, whereas the facilitator in [another] … County is extremely unhelpful. When approached about the issue, the judges in [the latter] …County are extremely cautious in granting the facilitator any authority to give anything that might be construed as advice to people – she is instructed to merely sell people a packet of forms, and she cannot even tell people which forms they need for their particular issue. As is the case with many problems in Washington courts, the noncentralized nature of our system means service and treatment varies by geography. Responses to the survey indicated that there was limited knowledge of the Technology Plan and the degree to which it had been effective. There was a similar lack of


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awareness of the Moderate Means Program, which has been adopted as a project of the Washington State Bar Association, so that some do not recognize that it was initially proposed as an ATJ Board initiative.

F. DEVELOP AND IMPLEMENT NEW PROGRAMS AND INNOVATIVE MEASURES DESIGNED TO EXPAND ACCESS TO JUSTICE IN WASHINGTON STATE

Closely related to the Supreme Court’s objective of proposing policy initiatives is the objective to “Develop and implement new programs and innovative measures designed to expand access to justice in Washington State.” It is in pursuit of this objective that the ATJ Board has exercised its role as “doer,” as discussed at the outset of this report.36 The development of programs has generated the most controversy over the lifetime of the ATJ Board. It is perhaps inevitable that when the ATJ Board decides to develop and implement a project it will be seen by some to be competing with the providers for scarce resources. The initiative may also be seen to conflict with some or most providers’ perception of priorities for the system. To identify and pursue an innovative initiative, however, is consistent with the role intended by the Supreme Court for the Board to identify areas of need that others might not see and to pursue them. This evaluation identified two such initiatives as being consistent with this objective: 1) the Washington State Community Equal Justice Leadership Academy [Leadership Academy] and 2) the Plain Language Project. It is instructive that is these two projects, which were born in controversy, now enjoy widespread, although not universal, support. The Leadership Academy was created with an eye to developing the next generation of leaders for the access to justice community in Washington State. It also was seen by those who created the concept as a way to reach out to a broader audience than those who have traditionally been engaged in the civil justice community. Results of the evaluation suggest that it has been successful in accomplishing both objectives and will continue to do so increasingly as more participants in the Academy graduate from its course of study. The Leadership Academy has now had two cohorts of persons who have gone through its program. Participants were chosen with an eye toward including some experienced members of the community as well as fresh faces without prior involvement. One third of the 62 who have graduated from the Leadership Academy’s program are from community-based organizations and one third are persons of color. As stated in two lengthy comments to the survey: •

36

“The single most promising initiative for expanding effective connections with others outside of this core circle is the Equal Justice Community Leadership Academy. This effort involves the intentional recruitment and engagement of members from nonSee the discussion of the ATJ Board's roles beginning at p. 10.


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legal organizations immersed in work designed to further the social justice aspirations and experiences of members of communities that experience high priority legal problems, differential treatment by legal, business and governmental institutions, and who experience significant barriers in meeting societal expectations. The nascent partnerships being developed through the Academy will likely grow as a succession of cohort groups participate and graduate.” •

“The ATJ Board's efforts with respect to the EJCLA fall squarely within the scope of its responsibilities. It identified a critical system gap (leadership development) and intentionally (and inclusively) undertook to develop capacity to address this system gap. This is the ATJ Board operating at its most effective and strategic level.”

•

“I suspect that over time, it will prove to be one of the most important things the board ever worked for.”

Participants in the Leadership Academy who were interviewed as part of this process were highly enthusiastic about their experience and the degree to which they see it as having prepared them to be leaders in future activities of the access to justice community. •

Having participated in the Academy, I can say that it will be very effective in the future (and those from the first cohort are already using much of what they learned). As the number grows of those who have gone through the Academy, I think we will definitely see the rewards of having instituted the program

In contrast to the initial opposition which greeted the proposal to create the Leadership Academy, nearly 60% of the respondents to the survey felt that the Leadership Academy was “an effective use of the ATJ Board’s time and resources” (37.2% “Strongly agree” and 23.1% “Agree”). Another 16.7% “Somewhat agree” with only 12.6% disagreeing (7.7% “Disagree” and 5.1% “Strongly disagree.”) Although the Leadership Academy has garnered significant support among persons surveyed, a minority of respondents to the survey continue to doubt its value. •

“I am worried the cost is too high; and so far, I haven't seen that the Academy is building ‘new’ leadership.”

Report on the Evaluation of the Washington State Access to Justice Board July 2014 •

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“I think the leadership academy is a waste of time and money. Serves no useful purpose.”

The Plain language Forms Project has an interesting and instructive history. Its genesis was the Washington State Plan for Integrated Pro Se Assistance Services (2010) in which it was one of the strategies proposed to be undertaken first as part of the plan. Initially, the concept languished as the Washington Pattern Forms Committee demurred from taking action to implement the concept. Consequently, with Supreme Court’s blessing, the ATJ Board took the initiative. What has evolved is a joint project that the AOC staff now see as a model for the ATJ Board and them working together. One comment to the survey stated it this way: “To some degree I agree with the criticism … that this is something that the Courts and the Administrative Office of the Courts should have undertaken. That said, the process, integrity and effectiveness of the plain language forms initiative was better served being hosted by the ATJ Board, and the effort was wellcoordinated with, supported by and is now being taken over by AOC.” Participants in the AOC Focus Group characterized the project “an effective merger of creativity and practicality as it’s been implemented.” They noted that there is a 10 or 20 to 1 ratio of “volunteer” to staff resources committed to it. “If it had not been for the ATJ Community, there wouldn’t be plain language forms. There is agreement with that point. People sit around the table and work on it who have practiced in courts and are very giving of their time and talents.” Responses to the survey also showed strong support for the plain language forms effort. More than 70% of the respondents to the survey, for example, termed the Plain Language forms as “an effective use of [the Board’s] time and resources” (46.9% “Strongly agree” and 24.7% “Agree”). RECOMMENDATION: The ATJ Board should explore with participants in the Plain Language Forms Project what its characteristics are that has made is such an effective collaboration and how the approach can be replicated in future work.

G. PROMOTE JURISPRUDENTIAL UNDERSTANDING OF THE LAW RELATING TO THE FUNDAMENTAL RIGHT OF INDIVIDUALS TO SECURE MEANINGFUL ACCESS TO THE CIVIL JUSTICE SYSTEM

The objective of promoting jurisprudential understanding of the law relating to the fundamental right of individuals to secure meaningful access to the civil justice system is inherently served by many of the activities undertaken by the ATJ Board. Various stud-


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ies undertaken by the Board related to persons with disabilities37 and to self-represented litigants38 meet this objective. Similarly, the Rules proposed to the Supreme Court, which are discussed later in this report, also are grounded in analysis and advocacy that involves this objective.39 Although no specific project was identified in this evaluation as relating to this objective and assessed from that point of reference, there was both inferential and explicit agreement that the ATJ Board has been successful in accomplishing this objective. As one long time leader in the community observed: “They have done this terrifically. The Board has promoted a way higher level of jurisprudential understanding, particularly through the Access to Justice Conference and the engagement of judges on the Board.” The success of the ATJ Board in accomplishing this objective is perhaps best demonstrated in the observation of the Chief Justice of the Washington Supreme Court, Barbara Madsen, quoted at the outset of this report and repeated here: “The impact of the Access to Justice Board has been to change the culture of the courts. Access to justice is now part of the vocabulary that is used throughout the court system – this was not always the case.”

H. PROMOTE WIDESPREAD UNDERSTANDING OF CIVIL EQUAL JUSTICE AMONG THE MEMBERS OF THE PUBLIC THROUGH PUBLIC LEGAL EDUCATION

This is another objective that has been discussed elsewhere in this report.40 It is the area in which there have been the fewest explicit strategies, although the independently operating Counsel on Public Legal Education41 did to grow out of a recommendation at an ATJ Access to Justice Conference. Results from the survey and observations in both the interviews and focus groups identified as an area where more needs to be done. Less than one quarter of the respondents felt that the ATJ Board had been either “Very effective” (3.6%) or “Effective” (19.6%) in “…broadening support among those not involved 37

See the discussion of initiatives related to persons with disabilities beginning at p. 24 and p. 43.

38

See the discussion of initiatives related to pro se litigants beginning at p. 44.

39

See the discussion of initiatives related to proposed court rules beginning at p. 45.

40

See the discussion of communication with the public beginning at p. 18.

41

See http://www.lawforwa.org/civics-washington/council-public-legal-education.


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in the justice system.” Almost 40% felt that the ATJ Board had been only “Somewhat effective,” 10.9% felt it had been “Ineffective” and 0.7% “Very ineffective.” Slightly more than 25% responded that they “Don’t know.” Interestingly, this is a role that the legal aid providers see as being paramount for the ATJ Board. A theme that emerged from the discussion of the focus group made up of the leaders of providers was that the Access to Justice Board serves as “ambassadors for legal aid to the larger community.” This “ambassadorial responsibility to the larger world, was described as “incredibly important.” It is a “transformational, not a monitoring role.” • “The message does not stop with the legal community and it’s about justice. It’s not about charity; it’s about strengthening the economy and building a healthier society.” • “It’s about being evangelical about a better society. Saying why it’s important is also saying why it should be funded.”

I. PROMOTE THE RESPONSIVENESS OF THE CIVIL JUSTICE SYSTEM TO THE NEEDS OF THOSE WHO SUFFER DISPARATE TREATMENT OR DISPROPORTIONATE ACCESS BARRIERS

The ATJ Board has been active over the years in highlighting issues involving “disparate treatment or disproportionate access barriers” for various populations, focusing on persons with disabilities and pro se litigants. Persons with disabilities. In 2006, the ATJ Board produced a document entitled: Ensuring Equal Access for People with Disabilities: a Guide for Washington Courts, which it revised in 2011.42 It also published in 2011 a document aimed at treatment of persons with disabilities in administrative proceedings, Ensuring Equal Access for People with Disabilities: a Guide for Washington Administrative Proceedings.43 Both are thoughtful and complete guides to the treatment of persons with disabilities in either courts or administrative hearings. They are well researched and cover legal requirements as well as access and accommodation obligations. They also address practical considerations for meeting the needs of persons with a variety of disabilities in courts and hearings, and offer common sense guidance regarding etiquette and use of language when communicating with persons with various disabilities. The appendices of both contain useful models and guides, such as a Model Agency Rule, Interpreter Status and Rules and Sample Scripts and Instructions.

42

The Guide for Washington Courts can be found online at http://www.wsba.org/~/media/Files/Legal%20Community/Committees_Boards_Panels/ATJ%20Board /A%20Guide%20for%20Washington%20Courts%20updated%202011.ashx

43

The Guide for Washington Administrative Proceedings can be found online at http://www.wsba.org/~/media/Files/Legal%20Community/Committees_Boards_Panels/ATJ%20Board/ Access%20Guide%20for%20WA%20Administrative%20Proceedings%202011.ashx


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Respondents to the survey strongly supported the value of the ATJ Board’s work related to persons with disabilities with more than two thirds of the respondents either strongly agreeing (36.6%) or agreeing (30.5%) that the development of guides was a good use of the ATJ Board’s time and resources. In spite of the excellence of the Guides and the general recognition of the value they should serve, this is an area where there is uncertainty regarding the long-term impact of the initiative. Close to one half of the respondents to the survey indicated that they did not know whether the guides had, in fact, had a positive impact on persons with disabilities. With regard to treatment in the courts, 47% responded, “Don’t know” and with regard to treatment in administrative hearings, 48.8% responded, “Don’t know”. Also as recounted above, one of the participants in a focus group, who had practiced disability law and been active in the segment of the bar engaged in that practice, had, nevertheless, never heard of the guides, even though, they would have been invaluable.44 The Access to Justice Board proposed General Court Rule 33 that governs Request for Accommodation by Persons with Disabilities, which was adopted by the Supreme Court, effective September 1, 2007 and was amended in 2010.45 Pro se litigants. In 2010 the Access to Justice Board, in collaboration with the Administrative Office of the Courts and the Office of Administrative Hearings, developed the State Plan for Integrated Pro Se Assistance Services (Pro Se Plan). The initiative presented a well-researched plan to create an online Family Law Assistance Self-Help Center that would integrate with the existing on-site Courthouse Facilitators and eventually expand to other substantive areas. The first phase of the plan called for expansion of the Washington Law Help Website to include all family law forms and related information, written in plain language. The first step of creating plain language forms was postponed until the ATJ Board took responsibility for its implementation, obtained staff support from the providers, notably the Northwest Justice Project, and developed a collaborative approach with the Administrative Office of the Courts. The result has been slow, but steady progress to complete what turned out to be a significant commitment of resources. The Plain Language Forms Project is discussed elsewhere in this report.46 44

See the discussion above of communication beginning at p. 18.

45

GR 33 is discussed below at p. 46.

46

See the discussion of the Plain Language Forms Project beginning at p. 41.


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The survey yielded strong support regarding the value of the ATJ Board’s commitment of time to development of the Plan for Integrated Pro Se Assistance Services. A total of 59.2% either strongly agreed (37.0%) or agreed (22.2%) that the development of the Washington State Pro Se Plan was an effective commitment of the ATJ Board’s time. At the same time 48.1% responded that they did not know if it had, in fact, been effective, with less than one third of the total either strongly agreeing (17.3%) or agreeing (14.8%) that it had been effective.

J. ADDRESS EXISTING AND PROPOSED LAWS, RULES AND REGULATIONS THAT MAY ADVERSELY AFFECT MEANINGFUL ACCESS TO THE CIVIL JUSTICE SYSTEM

The Access to Justice Board’s role in proposing rules for the Supreme Court to improve meaningful access to the civil justice was the activity that ranked highest as an effective use of the ATJ Board’s time among persons interviewed, the focus groups and responses to the survey. The Survey results strongly reflected the value that the civil justice community ascribes to the ATJ Board’s engagement in proposing rules for the Supreme Court to consider. Of the respondents, 86.3% either strongly agreed (49.0%) or agreed (37.3%) with the statement : “The ATJ Board has been an effective proponent for rule changes that are important to the civil justice system.” A similar total (83%) either strongly agreed (43%) or agreed (40%) with the statement: “The rule changes that have been adopted will improve the civil justice system.” A less strong, but still impressive, majority agreed with the statement that “The ATJ Board has chosen the right issues for proposing rule changes,” with 29.7% strongly agreeing and 49.5% agreeing.


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This evaluation considered two rules that were proposed or strongly supported by the ATJ Board and adopted by the Supreme Court: 1) GR 33 regarding Request for Accommodation by Persons with Disabilities47 and 2) GR 34 regarding Waiver of Court and Clerk’s Fees and Charges in Civil Matters on the Basis of Indigency.48 Because of the decentralized nature of the Washington State court system, implementation of court rules is not a foregone conclusion in every county, even though they have been adopted by the Supreme Court. This challenge was noted in one of the comments to the survey: •

“I expect that GR 33 and 34 will lead to improved access; however, I think implementation of the rules (particularly GR 34) has been inconsistent. It is too soon to say definitely that the rules have increased access.

The challenge of implementation was reflected in the survey responses regarding both rules. There was strong support for the value of the ATJ Board’s efforts to have both rules adopted, with 84.3% of respondents either strongly agreeing (53.5%) or agreeing (21.8%) with regard to GR 33 and 77.2% either strongly agreeing (58.4%) or agreeing (18.8%) with regard to GR 34. There was considerably less agreement, however, regarding the degree to which the rules had accomplished their intended objectives. Only 41% either strongly agreed (33%) or agreed (18%) that the “… adoption of GR 33 has increased equally meaningful access to the judicial system for persons with disabilities.” Another 16.0% only somewhat agreed and 29% indicated that they “Don’t know.” There was stronger agreement regarding the impact of GR 34 related to In Forma Pauperis petitions, with a total of 59.4% either strongly agreeing (43.6%) or agreeing (15.8%) that adoption of the rule “… has improved access to the courts for persons unable to pay court filing fees and surcharges.” Another 14.9% only somewhat agreed and 20.8% responded that they “Don’t know.” 47

http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=gr&ruleid=gagr33

48

http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=GR&ruleid=gagr34


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The history with GR 34 is illustrative of the implementation challenge that follows the Supreme Court’s approval of a rule change. The rule was not universally embraced among the counties in Washington and some continue to ignore or to adopt their own interpretation of it. Several comments to the survey noted the problem: •

“There are still courts making their own changes to the GR 34 and I think this should be monitored and the courts should be held responsible for not following the rule.”

•

“With respect to GR 34, I think it was a critical need that unfortunately is still not fully implemented by some courts/judges. We still need to work on getting it to be universally used and accepted within the state.”

•

“Where GR 34 has been embraced by the court and the court clerks, it has improved access. Where clerks or courts create roadblocks to the implementation of GR34, it has not had the desired effect.”

Some of the resistance to following the mandate of GR 34 was attributed to a perceived failure in proposing the rule to appreciate the potential consequences on the Courthouse Facilitator Program, which in some small rural counties rely on court fees for funding. For those counties, GR34 was viewed as another "unfunded mandate for cash strapped rural counties, which KILLS locally needed programs.” Some courts were reported to have started charging user fees for the Courthouse Facilitator program to make up for the loss – fees that some, it was reported, cannot afford to pay. A lawsuit has been filed by one of the legal aid providers challenging the failure of some counties to implement GR 34, so it remains to be seen how the rule will apply and impact on smaller counties. The “unintended consequence” that the rule has undercut the courthouse facilitators in some counties was cited as an example of a failure to understand the practicalities of some of the policies and rule changes the Board recommends. As discussed above,49 such conversation before or during implementation is sometimes essential to effective realization of the intended outcomes of a ruler policy.

Conclusion This Report is long because of the impressive array of activities in which the Access to Justice Board has been engaged over the past 20 years. In a detailed analysis of multiple, individual projects as well as suggestions for broad change in communication, implementation and assessment, it is possible to lose sight of the overall picture of excellence that has been a standard for the ATJ Board’s work and for the impact it has had increasing access to justice in the State of Washington. With apologies for calling upon a much overworked metaphor, the focus on many trees that characterizes this Report should not lead the reader to lose sight of the forest of excellence and achievement that the Washington State Access to Justice Board has had a significant hand in planting and tending as it has borne fruit. 49

See the discussion of implementation beginning above at p. 21.