Part II: State of the Judiciary

In March, Chief Justice Wallace B. Jefferson presented his State of the Judiciary speech before the 83rd Texas Legislature. Yesterday, Disputing published Part I of his speech.

Here is Part II:

Pro Se Litigants

I have spoken about the indigent. But there is a dark secret that plagues our justice system as a whole. We in the judiciary must bring this secret to light. The sad fact is that the middle class and small businesses find our system unworkable and unaffordable. They believe there are too many unnecessary lawsuits, coupled with incessant legal wrangling that drags out cases. And they feel that even if they are entitled to a remedy for a legal wrong, they cannot afford the fees a lawyer quotes for vindication. It is time for us to do our part to answer these concerns, because if the remedy is unaffordable, justice is denied.

Eligibility for legal aid is generally capped at 125% of federal poverty guidelines. A family of four with an income of $30,000 does not qualify. After that family pays for shelter, sustenance, and the other necessities of daily life, it cannot possibly afford a lawyer for the most basic legal necessities of life. The most generous legal aid programs limit eligibility to those within 200% of federal poverty levels, meaning that a four-person household with income over $46,100 does not qualify. Statutory rights to counsel generally apply only to the indigent, as do most pro bono efforts. Increasingly, litigants are representing themselves, because they have no real alternative.

We have more lawyers in America than at any time in our history. In 1960, there was one lawyer for every 627 people in the United States. Today, there is one for every 252. Isn’t it ironic that as litigants are increasingly forced to represent themselves, law school graduates cannot find jobs?

I believe that we have to shift our thinking. Access to justice is about more than giving a poor person a lawyer. An accessible justice system requires that even broader segments of our society be able to use it, including those that are forced to navigate the judicial system alone. Our remedies must be expansive and creative. We must change the way we do business in our courts to meet the needs of all citizens and businesses while at the same time improving customer service, increasing transparency, and investing in technology to decrease costs and increase efficiency. We must develop a judicial climate in which people who lack money to hire a lawyer have a reasonable chance to vindicate their rights.

To address this, the Supreme Court recently approved forms that litigants may use when seeking an uncontested divorce involving no children and no real property. Forty-eight states have court-approved family-law forms. Of the thirty-seven states that have forms for divorce proceedings, all have reported a positive impact on the overall efficiency of those cases. I commend the efforts of the Real Estate, Probate and Trust Law Section and Appellate Section of the State Bar, both of which have undertaken similar forms efforts in their respective specialties.

Through the promulgation of procedural rules, we can reduce the expense and delay of litigation while simultaneously protecting the rights of litigants. At the Legislature’s direction, the Supreme Court recently adopted rules to simplify proceedings in cases involving claims for monetary relief of less than $100,000. Discovery is limited; the cases are expedited. Now, a case that is vital to the success of a small business owner can actually be tried, to a verdict. A remedy for a legal injury –even for the individual who cannot afford to pay a lawyer $500 an hour. The Supreme Court also adopted a rule allowing trial courts to dismiss cases that have no basis in law or fact. The net result is that cases that have no business in the courts will be shown the door, expediting relief for litigants who are subject to frivolous suits. Finally, we are working on rules to simplify and consolidate small claims cases in our justice courts. These rules will be comprehensible for citizens who are representing themselves in Court, and ensure the fair, expeditious, and inexpensive resolution of their cases.

E-Filing

One of the more intractable barriers to justice is antiquity. Our courts operate much like they did in 1891, with paper, stamps on paper, cabinets for paper, staples, storage, shredding of paper. To paraphrase, the era of big paper is over. We must modernize the courts so that the people can swiftly find case information, instructions for how to resolve their disputes, even videos demonstrating proper court protocol. Since 2007, all of the Supreme Court’s arguments are webcast. And a new case management system, designed by the Office of Court Administration and now used by the Supreme Court and ten of the 14 intermediate appellate courts, has increased the speed with which we decide cases. The effect? The child from a broken home is returned to normalcy faster, the building tied up in litigation can finally be sold. Responsible investment in technology saves money and promotes efficiency.

If paper is dead, what will take its place? In December, the Supreme Court mandated electronic filing in civil cases by attorneys in appellate, district, county, and statutory probate courts on a rolling schedule, beginning next year. The Court’s order requires the use of one uniform, statewide e-filing system overseen by the Office of Court Administration. With e-filing, document storage expenses for court clerks decrease. Staff that formerly spent time sorting and file-stamping paper can be assigned to higher-skilled tasks. Important court documents are less likely to be damaged or lost. Attorneys can file their pleadings across the state without the need to master various filing systems. And litigants can more quickly access documents online.

But e-filing currently requires litigants to pay a fee each and every time a document is filed. Those expenses add up quickly, even if only a few documents are filed in a case. This week Senator West and Senator Duncan filed SB 1146 and Representative Hunter and Representative Senfronia Thompson filed HB 2302 to address this problem. These bills decrease the cost of e-filing by shifting from a per-document fee to a one-time fee, paid at the beginning of each case. If these bills are passed, the per-case cost to e-file will be less than the per-document cost to e-file now. I commend and support efforts like these to lower the cost of litigation in our state, a key to ensuring access to our judicial system.

You may read the entire speech at Texas Courts Online.