Moving Upstream
I want to talk about the difference between solving problems downstream and solving problems upstream. Solving problems “downstream” means we are fighting fires; it means dealing with end results. Solving problems “upstream” means we get to the root of the problem. The common analogy is:
Downstream = pulling people out of the river
Upstream = going upstream to figure out why they are falling into the river, and/or who/what is pushing them in
Traditional legal aid is pulling people out of the river. I am not suggesting we stop pulling people out of the river; solving the downstream problem is imperative as it is a critical, often lifesaving intervention.
However, I want to talk about also moving upstream to identify the source of the problem. A good example of identifying an upstream access to justice problem is provided by a New Mexico Legal Aid anecdote:
(This is my understanding of the story. I was able to confirm the anecdote with Rachel Perry (of Strategic Data Analytics) based on her work with New Mexico Legal Aid.)
New Mexico Legal Aid (NMLA) had captured sufficient data in their case management system to see a spike in evictions specific to two locations. They were able to trace those evictions back to unscrupulous car loans. Individuals who purchased cars using these loans had their cars repossessed — due I believe, to onerous balloon payments at the end of the loan. The consumers then lost their jobs because they had no transportation, and subsequently then were evicted for non-payment of rent[1]. NMLA was able to identify the provider of the car loans and sue that company; eliminating an eviction “root cause”.
It is possible that Covid-19 provides us with an opportunity to move our thinking upstream about how we address the justice gap.
The timeline[2] for Covid-19 will function like any crises — the event itself, the aftermath of the event, followed by a period of recovery and rebuilding. As many others with much more disaster response experience than I have will tell you, the time to plan your response is before the event occurs; many in legal aid know how to respond to a hurricane or a tornado or flooding or any other type of recurring natural disaster.
Since we can’t plan in advance of the pandemic, what can we do? We can plan for the aftermath of the pandemic. Many in the access to justice community are already doing that planning; for Legal Services Corporation’s new grant response go here, National Center for State Courts has a compilation of all state court Covid-19 responses here, Amanda Brown, Executive Director of the Lagniappe Law Lab and working with Community.Lawyer created an economic impact navigator site that helps individuals determine if they qualify for a Covid-19 impact payment which can be found here; and I am sure many others.
I want us to also consider what other aftermath planning we can do that will get to root causes or address access to justice problems “upstream”.
For example, courts, lawyers, bar associations, etc. may be more open to many of the suggestions SLRN.org has been making for years; plain language forms, unbundled services, automated forms systems, and expanded self-help centers/resources. In fact, courts may be scrambling for this kind of assistance and desperate for any kind of Covid-19 aftermath solutions.
However, is that all we think we can really gain from Covid-19? It may sound mercenary, but I think we are missing an opportunity if we don’t think of changes that might be more revolutionary than finally getting courts/clerks offices to adopt plain language forms.
A few of my ideas?
· Do away with any and all county-specific filing or forms or procedural requirements and move entirely to one court system for each state that has only one set of forms and only one set of processes. Or maybe go with one system nationally. Period.
· Completely eliminate all fees to litigants — no more charging for paper forms or to file a case. Yes, we will have to find another way to fund our court system — isn’t it about time we did?
· Empower all current clerk and self-help center staff to provide as much legal assistance and advice as is needed; they are smart enough to know when a self-represented litigant needs a lawyer or legal aid and to refer litigants to those resources. Trade protectionism has no place in our justice system.
I think we need nothing less than a complete cultural shift from away from the profit motive and to systems with compassion as the highest value. How about that as the legacy of the Covid-10 pandemic?
[1] This finding prompted NMLA to set up a system that could identify those kinds of connections and causal relationships more regularly and automatically. NMLA received TIG funding in 2015 to create a data sharing project, which aggregated data from five legal services organizations in New Mexico along with US Census data. The final report of that work can be found here.
[2] Two things: 1) Hat Tip to Abhijeet Chavan for the crisis timeline I use here; it came from him. and 2) I am well aware that many are saying Covid-19 may come in waves as stay-at-home restrictions are lifted; I am conveniently ignoring the “wave theory” as doesn’t directly impact my argument here.
