Director Lisa Foster of the Access to Justice Initiative Delivers Remarks at the Equal Justice Conference

Remarks as prepared for delivery

Thank you. And good morning.

The first Equal Justice Conference was held 16 years ago, in 1999. At the time, approximately 45 million people were legal aid eligible – roughly 16% of the population.  By 2013, that number had grown to over 60 million – or roughly 20% of the population.

The LSC budget in 1999 was $300 million – $405.7 million in 2014 dollars. Today, the LSC budget is $375 million.  IOLTA funding for legal services in 1999 was $153.4 million.  In 2014, it was $73.3 million.  Total funding for civil legal aid in 1999 was estimated to be approximately $1.3 billion. In 2014, total funding for civil legal aid was estimated to be….$1.3 billion dollars – a 23% decrease in real dollars from 1999.

One could argue, based on those statistics that the movement for equal justice in America has not made much progress.  But those statistics are only half the story. 

In 1999, there were 3 state access to justice commissions, today, there are 38.  In 1999, the American Association of Law Schools created an equal justice project to explore the roles that legal education can play in confronting the “severe maldistribution of legal resources.”  Today, virtually every ABA-accredited law school operates a clinical law program providing legal aid to the underserved.

In 1999, the internet was new, self-help centers were rare, and we still used Latin to refer to self-represented litigants.  Today, we have HotDocs, ProBono Net, Stateside Legal, the Self-Represented Litigants Network, Limited License Legal Technicians in Washington, Navigators in New York, and the Justice Corps in California.

And in 1999, although there was a Department of Justice, there was no sign on the door anywhere in the building that said this.  So what does this decidedly mixed message tell us?

In a recent book entitled “The Resilience Dividend”, Rockefeller Foundation President Judith Rodin, defines resilience as the capacity of an entity to prepare for disruption, recover from shock or stress and adapt and grow from disruptive experiences.  Well, we and, more importantly, our clients have certainly had our share of disruptive experiences over the past 16 years.

And I would argue that despite the fact that disruption has been the defining feature of our working lives - the movement for social equality has proven itself resilient.  We’ve lost funding – and lots of it, but our essential infrastructure remains intact, and we’ve identified new sources of funding.  We figured out how to do more with less by harnessing technology, and we enlarged capacity by enlisting new partners in law schools, in the bar, and in the courts. 

But there is another aspect to resilience that Rodin highlights in her book.  Resilience, she contends, is more than the ability to survive or even to bounce back.  Resilient organizations are able to create and take advantage of new opportunities in good times and bad.

In my view, the equal justice movement today faces a historic opportunity – an opportunity that will test our resiliency.  I’m going to explain this morning, why I believe we are in one of those unique moments in American history when significant change can happen and then suggest what we – all of us – need to do to bake resiliency into our organizations and make the most out of this moment in history.

There are, I believe, several social and economic forces today that have shifted the terrain of American politics so that fairness in our justice system and equal access to justice can rise to the top of the political agenda.

The first is the growing recognition of income inequality.  Income inequality in the U.S., as measured by the Census Bureau, is greater today than it has been since 1928 and the divide is wider in the U.S. than in any other developed democracy in the world.  To be sure, both those facts have long been true.  What’s different today is that everyone – and I mean everyone – is talking about it.  The President has called income inequality, “the defining challenge of our time.” In January, at a forum sponsored by Freedom Partners, an organization that describes itself as a chamber of commerce that promotes the benefits of free markets and a free society, Ted Cruz, Rand Paul and Marco Rubio all spoke about the problem of income inequality. Jeb Bush said that Americans are frustrated because they see only a few people riding “the economy’s up escalator.”

It’s not just the chattering classes that are worried about income inequality and the collateral damage it can cause.  Last year, the Pew Research Center conducted a survey in 54 countries about which of five dangers people considered to be the “greatest threat to the world.”  Many of the countries polled listed religious and ethnic hatred first.  Americans chose income inequality.

The second dynamic can be summarized in a word -- and in pictures: Ferguson.  Ferguson – a city whose fiscal and judicial policies have trapped too many of its largely African-American residents in a cycle of poverty and despair. 

The light that was shined on Ferguson – a light made a little brighter by the Report issued by the Justice Department’s Civil Rights Division - that light has illuminated many other dark corners of our country where the practice of incarcerating people simply because they can’t pay geometrically mounting fines and fees is rampant.  In California, and in many other states, the Legislature has permitted and in many instances required judges to suspend or revoke a person’s driver’s license if they have not paid fees, fines or child support, leading – because one has to drive to get to work to earn the money to pay off those fines and fees – to additional citations and ultimately arrest. 

The extensive media coverage of these events has drawn unprecedented attention to the deep flaws in our justice system – flaws that we live with every day

The third relevant strain is criminal justice reform.  In March, #cut50, a national bipartisan initiative to reduce incarceration, convened a summit on criminal justice reform.  The President, former Attorney General Eric Holder, three Republican Governors and 10 members of Congress - both Republicans and Democrats – participated.  Earlier this year, a remarkable coalition of the nation’s most prominent conservative and progressive organizations created The Coalition for Public Safety.  Through the Coalition, these organizations are working together to make our criminal justice system smarter, fairer and more cost effective.

At a speech at the National Press Club last week, Senate Judiciary Committee Chairman Grassley said: “We’re seeing studies that show 32 percent of American adults have criminal records if arrest records are included.  If an employer uses the database for hiring purposes, the records can be inaccurate and old.  It’s unfair that an arrest – not resulting in a conviction – is included in a criminal background check.  And while there is a process by which people can contest their records being in the database, there are flaws in that process that need to be looked at and changed.”  In the same speech, Senator Grassley also called for counsel to be provided in civil asset forfeiture proceedings, the need to ensure that the states are truly meeting their constitutional obligations under Gideon, and the need to reform the juvenile justice system.  Bipartisanship can happen. 

Finally, the United Nations this year will for the first time consider including Access to Justice as part of its Post-2015 Sustainable Development Goals, which will succeed the original Millennium Development Goals.  The United States supports that effort as does a large coalition of international organizations, countries and individuals.  The inclusion of access to justice, both as an enabler of development and as a critical development objective in its own right, recognizes that legal empowerment – giving all people the power to understand and use the law to secure justice and meet basic needs is essential to economic and social stability and security.  If adopted, the U.S. would report on its progress and its efforts to implement that Justice goal.

The issues of poverty and justice are on the front page of the papers, on NPR, local news broadcasts, and Jon Stewart; the direct connection between poverty and justice is part of the national dialogue; it’s on the agenda in Congress.  It is in the streets.

The last time we had this much attention paid to poverty and justice in America was in the late 1960’s and early 1970’s when the Office of Economic Opportunity was created and the Legal Services Corporation was born.

To quote Stephen Stills and Buffalo Springfield – “There’s something happening here.”

So, how does the movement for equal justice take advantage of this unique moment in history?  Gloria Steinem once said that “a movement is only people moving.”  But if moving is all we do, we risk being like an octopus on roller-skates – lots of movement and no progress.

To make progress, we need a coordinated strategy.  The movement for equal justice is larger than our individual offices or programs.  We need to be aware of and work in concert with all of the many organizations that try to secure justice for, and improve the lives of our clients, including the courts, community health centers, social service agencies, and state and local government.

And that’s hard, because we are, truly by definition, fragmented.  We are often geographically fragmented – we are legal aid of mid-Florida and Western Michigan, and southeast Louisiana.

We are fragmented by issues – protection and advocacy services, housing, domestic violence and immigration.  We are fragmented by affiliation – we are LSC and non-LSC programs, we are law school clinics, pro bono programs, and court self-help centers.  It’s also hard because, let’s face it, we are for the most part overworked  - we have too much to do without trying to figure out what everyone else is doing and try to work together.

But we must.  An effective strategy can’t just be at the national level – although rest assured, we at ATJ, together with national organizations like NLADA, the ABA, Voices for Civil Justice and many others, are working on it.  Coordination – and critical thinking - has to start at the local and state level. We need to assess our community’s strengths and weaknesses and then coordinate and integrate services.  We can’t afford to be duplicative or competitive.

And most immediately we have to brainstorm the opportunities to connect our work to these larger social issues.  That means a coordinated media strategy and lobbying effort; it means educating local and state government officials – many of whom disperse federal block grant funds aimed at low-income and vulnerable populations; it means speaking whenever possible – at Rotary Club and Chamber of Commerce meetings, at churches and community meetings – and drawing the connection between justice and poverty – and emphasizing the ways in which legal aid lawyers help.  I know – some of you can’t do all of those things – but many of you can – and working together, you can develop and execute a plan.

Three years ago, that’s what my office – Access to Justice – did.  And, parenthetically, I get to brag a little because the work was done long before I arrived.  ATJ created the Legal Aid Interagency Roundtable – or LAIR – and started educating federal agencies about the role legal aid can play in achieving the agencies’ program goals.  We connected legal aid to housing, employment, health, veterans services, domestic violence, elder abuse and trafficking, family stability, and community safety.  The result is provisions in dozens of federal grants that allow for legal services among the range of services provided. We know federal grants can come with more burdensome requirements and that new partnerships come with growing pains, but the additional funding has allowed many of you to do more in your communities to help your clients.  LAIR is working because we identify each agency’s goals and demonstrate how legal aid can help to successfully advance them. 

Earlier this year, in the aftermath of Ferguson and Staten Island, the President created a Task Force on 21st Century policing.  ATJ submitted testimony that drew the Task Force’s attention to the important work that civil legal aid does with local law enforcement and to support community safety – in domestic violence and elder abuse, with education and reentry.

We need to do the same thing locally and at the state level.  We need to connect the dots beyond our traditional allies to make the case that without a vibrant and thriving civil justice system, we cannot solve the problems of poverty nor the myriad factors that contribute to poverty.

And many of you have. 

In Connecticut, the VA Errera Community Care Center has partnered since 2009 with the Connecticut Veterans Legal Center integrating legal help into VA care for veterans recovering from homelessness and mental illness.  CVLC connects veterans with the most challenging cases to Yale Law School’s Veterans Legal Services clinic, which has also helped CVLC successfully lobby for new state laws that help veterans access treatment, avoid jail sentences, and transition into the civilian workforce.

In Oregon, the Association of Pro Bono Counsel and NLADA sent a letter supporting state legislation that authorizes cy pres awards to legal services organizations from any undistributed residue of class action settlements.  The letter included a Virginia Journal of Social Policy and Law article providing the legal justification for the legislation and an ABA Resource Center for Access to Justice Initiatives’ list of legislation and state court rules that provide for legal aid to receive class action cy pres awards.  Less than a week later, legislation was approved by the Oregon Legislature that grants 50% of any unclaimed funds in state class actions to the Oregon Bar to support legal aid.

To build resiliency into our organizations, we can’t just talk, we also have to walk.  We have to do our work differently. 

Here’s one model – a Vet comes into a legal aid office.  She’s about to be evicted and has a child she wants to see. But her driver’s license was suspended, and there’s no bus to her ex-husband’s house.  The intake worker gives her an appointment to see a lawyer in the housing unit, sends her to the Court’s self-help center for family law litigants, and says he can’t help her with the driver’s license.

Here’s a different model: The legal aid office is a subgrantee under a VA Supportive Services for Veteran’s Families grant.  At a Veteran’s Services Organization, a lawyer and a paralegal have office hours two days a week.  Our Vet’s case worker makes an appointment for her to meet with the legal team, and before the appointment, she finds replacement housing that the Vet can move into in two months.  At her appointment, the Vet signs a settlement agreement the lawyer has already negotiated, resolving the eviction case, and allowing her to move out in two months. The paralegal helps her access HotDocs to prepare a motion to modify custody and electronically files it with the court.  Utilizing the Consumer Financial Protection Bureau’s on line tool kit written especially for legal aid lawyers, Your Money.  Your Goals, they also do a comprehensive evaluation of the Vets finances.

They discover that her credit report lists a small claims judgment against her that was entered by default while she was in Iraq.  They then contact a pro bono lawyer through the local Bar’s Veterans’ program who will help get her driver’s license reinstated, set aside the judgment under the Servicemembers Relief Act, and cleanup her credit report.

Here’s another model – a lawyer working with health professionals as part of a Community Health Center’s Medical Legal Partnership.  She’s trained the medical staff to identify legal issues, and in some instances, to resolve them without the lawyer ever being involved.  The lawyer has written a form letter, signed by the physician, to the local utility explaining that the patient has a medical condition that will be compromised if she’s without heat.  The nurse practitioner can type in the name of the patient and her medical condition, print the letter, and send it off.  The number of clients whose power has been restored thanks to the lawyer’s relatively minimal efforts?  Hundreds more than if the lawyer had to see all of those folks in an office, open a case file, etc., etc.

Both new models are great examples of thinking about where our clients are, how to collaborate with other institutions that serve them, and how to craft creative solutions to common problems so that our work can be multiplied geometrically.  Both require an initial strategy that includes outreach, education and coordination with partners in the larger community. 

But changing the way we talk about our work and changing the way we do our work will not be enough.  We have to demonstrate that what we do and how we do it – actually works. 

At this very moment, in a courtroom somewhere in America, a lawyer is telling a jury: “Ladies and Gentlemen, rely on their common sense.”  Well, in this room, this lawyer – and former judge – is telling you not to.  Common sense solutions don’t cut it today.  Only evidence-based solutions do. 

In his first Inaugural Address, President Obama said: “The question we ask today is not whether our government is too big or too small, but whether it works – whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified.  Where the answer is yes, we intend to move forward.  Where the answer is no, programs will end.”

In the federal government, that statement is now embedded in how we do business.  This year, the White House Office of Management and Budget – or OMB – launched the budgeting process by telling every department that their budgets should advance “evidence-based policymaking by increasing access to administrative data, utilizing low-cost randomized trials, embedding evidence and evaluation into grant programs, and strengthening agencies’ capacity to build and use evidence.” 

Here’s how it gets translated into our work: 

The Justice Department’s Second Chance Act grants, to help people involved in the criminal justice system get, as the title says, “a second chance.” The grants, by the way, allow for civil legal aid and in California, the court and several legal aid programs partnered -- and were awarded-- Second Chance Act grants.

Note that assessing outcomes is a DOJ priority that you shouldn’t apply if you aren’t committed to collecting data, and that a research partner is mandatory. 

While not everyone agrees with evidence-based policy making and not everyone is happy with what the evidence in a particular case might show, data-driven decision-making is here to stay.  It is embedded not only in the federal government but in the for-profit and non-profit worlds.  “Where are the numbers?”, “What data do we have?” “Where’s the evidence to support that?” are questions every decision maker asks.

And here’s an example of research, courtesy of the National Center for Medical-Legal Partnership that applies in our realm:

Between September 2011 and September 2012, Lancaster General Health in Pennsylvania conducted a pilot project that embedded lawyers within a professional care team working with super-utilizers – patients who disproportionately use emergency rooms, hospitals and other health services.  When the team addressed a patient’s civil legal problems, health care use and costs dropped.  Both inpatient and Emergency Department use dropped upward of 50 percent, and overall costs fell by 45 percent.

That is data that proves what we do makes people’s lives better – and reduces spending.

What do we do with that data?  We sent it to our federal partners who work hard to improve health outcomes, urging them to deepen their commitment to MLPs. What should you do with that data - take it to your local community health center and begin a conversation about MLPs.

Here’s another critical data point.  Berkeley law professors Jeffrey Selbin and Justin McCrary conducted a retrospective study of clients served by the East Bay Community Law Center’s Clean Slate Clinic, analyzing the impact of obtaining criminal record remedies – sealing and expungement - on their subsequent earnings.  They concluded that the evidence suggests that clean slate legal intervention stems the decline in earnings and may even boost earnings.  While it is too early to tell if the boost is significant and sustained, halting the decline in earnings suggests that the intervention makes a meaningful difference in people’s lives and is a key component of an effective community reentry strategy.

Let me add one important point here, the purpose of research and metrics is not simply to be able to prove that what we’re doing works, it’s so that we know that what we’re doing works.  We don’t have the time or the resources to waste on solutions that don’t produce results.

To help us fill the dearth of data about civil legal aid, DOJ’s 2016 budget submission includes a request for $2.7 million to fund civil legal aid research.  That may help us get you more of the data you need to make the case that legal aid reduces poverty and improves outcomes for the millions of people who need a legal solution to their problems.

These three strategies – publicly drawing the connection between poverty and justice, thinking about new approaches to our work, and constantly testing and evaluating what we do – those will build true resiliency into our organizations and allow us to do what we all joined this movement to do – make our clients’ lives better.

Just last week, we were reminded of the enormity of the problems our communities face when Baltimore exploded.  And while the immediate target of the communities’ wrath was law enforcement, before the crisis had ended, coverage focused on these facts: In the Baltimore neighborhoods where the rioting occurred, median income is less than $20,000, unemployment is double the city average, just 6% of adults have bachelor’s degrees, and average life expectancy is 69.5 years -comparable to Iraq. 

We can look at those numbers and despair or we can see them as a challenge and the fact that they were on the front page of the New York Times as an opportunity: A challenge to build a broad-based campaign for justice and an opportunity to succeed. 

Thank you for what you do every day.  Let’s spend the next few days together making it even better.