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Change from Within: The Massachusetts Trial Courts Access to Justice Initiative

SANDRA E. LUNDY*

INTRODUCTION

n State civil court systems across the nation, the majority constituency is now comprised of those traditionally marginalized by the justice system: the impoverished, the self-represented, persons of limited English proficiency, and those disabled by addiction or other psychological or medical impairment. State civil courts have become the emergency room for societys worst ailmentssubstance abuse, family violence, mental illness, mortgage foreclosures, and so many more.1 Welcome to the new normal. For centuries, our vaunted adversarial system was a means of dispute resolution dependent on the skillful manipulation of legal rules and concepts by trained professionals. But such a system is ill-suited to meet the needs of litigants wholly untutored in, or even aware of, the finer points of legal argumentpeople who come to court with acute social needs rather than discrete legal issues. For many years, state-court judges and court staff, as well as attorneys, complained about the heavy toll this new majority takes on the civil-justice system. Court staff often must reschedule cases for a variety of reasons: an unrepresented plaintiff did not understand how to serve her complaint; an unrepresented defendant needed a translator; an order is disobeyed because it is not understood; the clerks offices are clogged with people asking basic questions about legal
*

Sandra E. Lundy, J.D., Ph.D., is a Senior Attorney at the Supreme Judicial Court of Massachusetts and Deputy Advisor for Access to Justice Initiatives in the Massachusetts Trial Court. The views expressed herein are solely those of the author and do not represent the position or policies of the Massachusetts Judicial Branch. Jonathan Lippman, William H. Rehnquist Award for Judicial Excellence Address, 47 FAM. CT. REV. 199, 200 (2009).
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procedure; incorrect pleadings; and incomprehensible arguments. A typical refrain is:

[m]ost pro se plaintiffs believe they are victims; few pause to consider questions of materiality, causation, or damages. Allegations in most complaints filed pro se are difficult, if not impossible, to understand or categorize into recognizable claims. The plaintiffs often are ignorant of, or choose to ignore, the rules of pleading, discovery, and evidence.2

Yet courts do not exist for the convenience of judges and attorneys. It is not court users who must change, but the courts themselves. In the words of Massachusetts Chief Justice Roderick L. Ireland, the judicial branch must provide justice to the community as we find it. Not the community as we once knew it or the community we might wish it to be.3 The imperative to broaden meaningful access to justice has constitutional,4 moral, ethical, and practical dimensions. Ensuring that every person who comes to court is treated fairly, equally, and respectfully is foundational to the American justice system, and key to its survival. Former New Hampshire Chief Justice John T. Broderick, Jr., a prominent voice for judicial reform, urges state courts to re-engineer themselves to align the delivery of civil justice more closely with an evolving population of court users [r]ather than complain about a changing and diversified customer base.5 Yet state courts are slow to change. . . . conditioned on the past and reflect[ing] the influence of informal norms and wellestablished ways of doing business.6 For those familiar with hierarchical and hidebound judicial administrations, re-engineering state courts to embrace a culture of change may seem like asking a battleship to perform like a speedboat. Yet state courts are the linchpin of our democratic system,
2 3

Paul B. Zuydhoek, Litigation Against a Pro Se Plaintiff, 4 LITIG. 13, 14 (1989).

Roderick L. Ireland, Chief Justice, Supreme Judicial Court of Mass., Annual Address (Oct. 13, 2011), available at http://www.mass.gov/courts/press/mbaspeech2011.pdf. See, e.g., Turner v. Rogers, 131 S. Ct. 2507, 2520 (2011) (noting that courts must provide procedural safeguards to unrepresented litigants in civil proceedings, including, fair opportunity to present, and to dispute, relevant information); Lau v. Nichols, 414 U.S. 563, 567-68 (1974) (holding that the prohibition against national origin discrimination of Title VI of the Civil Rights Act of 1964 includes the prohibition against unequal treatment of linguistic minorities). Hon. John T. Broderick, Jr. & Daniel J. Hall, What Is Reengineering and Why Is It Necessary?, in FUTURE TRENDS IN STATE COURTS 2010, at 25, 25, 27 (Natl Ctr. for State Courts eds, 2010), available at http://cdm16501.contentdm.oclc.org/utils/getfile/collection/ctadmin/id/1622 /filename/1623.pdf. Brian J. Ostrom & Roger A. Hanson, Understanding Court Culture is Key to Successful Court Reform, in FUTURE TRENDS IN STATE COURTS 2010, at 55, 55 (Natl Ctr. for State Courts eds, 2010), available at http://cdm16501.contentdm.oclc.org/cdm/ref/collection/ctadmin/id/1611.
6 5 4

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the arena where the vast majority of the American litigants go to assert and defend their rights.7 We cannot allow state courts to lumber into irrelevance without harm to democracy itself. Management experts tell us that for an organization to fundamentally change, its culture must change. By not taking shared values and beliefs into account, proposed reforms risk meeting with a lack of engagement and subtle (or not-so-subtle) resistance.8 When we speak of culture in reference to the courts, we mean the beliefs and behaviors shaping the way things get done by the individualsjudges, managers, and staff memberswho have the responsibility of ensuring cases are resolved fairly and expeditiously.9 Courts where litigants are allowed to endure long waits at the counter for assistance while staff members appear busy avoiding them, for example, reflect a pervasive institutional devaluation of court users. This in turn shapes court users perceptions of the courts and the justice system as indifferent, humiliating, and unresponsive. Conversely, a court that offers a self-help center, self-help materials, attorneys for the day, interpreters, clear signage, and other resources can feel like a place where the guarantee of equal justice is possible. Courthouses that contain helpful how-to pamphlets and a staff who treat each court user respectfully regardless of the users status or appearance reflect the guarantee of fair and equal justice. The central thesis of this Essay is that expanding access to justice means more than adding new programs; it means fostering a court culture where concern for broadening access to justice is part of the institutional DNA. This Essay examines the attempts of the Massachusetts Trial Courts Access to Justice Initiative (Initiative) to both directly meet the needs of an evolving population of court users and promote a sustainable grassroots enthusiasm among line judges and court staff for enhancing access to civil justice. In examining two of the Initiatives key programs expanding limited assistance representation and translating court forms this Essay presents models for transforming cultural attitudes about access to justice in a traditionally change-adverse judicial administration. This Essay concludes with some observations about the future of access to
7

State courts account for the bulk of the caseload in American courts. For example, for the twelve-month period ending March 31, 2011, approximately 430,000 cases commenced in all federal appellate and district courts combined. See ADMIN. OFFICE OF U.S. COURTS, CASELOAD STATISTICS 2011, at Tbls. B1, C1 & D1 (2011), available at http://www.uscourts.gov/Statistics/ FederalJudicialCaseloadStatistics/FederalJudicialCaseloadStatistics2011.aspx (last visited Apr. 12, 2013). The total number of cases commenced in state courts in 2010 (the latest available figure), not counting traffic cases, was 45.5 million. RICHARD SCHLAUFFLER ET AL., EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2010 CASELOADS 1, 31 (2012).
8 9

Ostrom & Hanson, supra note 6, at 55. Id.

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justice initiatives in the Massachusetts courts and in state courts in general. I. Background

In June 2009, then-Supreme Judicial Court Chief Justice Margaret H. Marshall and Chief Justice for Administration and Management of the Trial Court Robert A. Mulligan established the Initiative.10 Chief Justices Marshall and Mulligan selected the Honorable Dina A. Fein, First Justice of the Western Division of the Housing Court Department, as the Trial Courts first Special Advisor on the Initiative. I was appointed Deputy Advisor. The Special Advisors responsibility, assisted by the Deputy Advisor, is as follows:
[G]uide and coordinate resources within the Trial Court to broaden access to civil justice for all litigants, including self represented litigants, individuals of modest means, those of limited or no English proficiency, and individuals with mental or physical disabilities. . . . [to] develop long and short range goals, statewide strategies, and best practices to increase access to justice throughout the Trial Court. . . . [and to] work closely with judges, court personnel, the Massachusetts Access to Justice Commission, bar associations, legal service organizations, law firms, law schools and others to implement access to justice initiatives and protocols.11

Chief Justices Marshall and Mulligan appointed both the Special Advisor and the Deputy Advisor to work on Initiative matters not more than half time, while carrying out their other responsibilities. The Initiative had no other staff and no budget. However modest, the Initiative represented a notable exception to how the Trial Court traditionally operated. Briefly, the Massachusetts Trial Court is composed of seven distinct and largely autonomous trial court departments: superior court, land court, district court, Boston municipal court, probate and family court, juvenile court, and housing court. Judges are appointed to serve exclusively in one of these departments. Each department has separate (although sometimes overlapping) jurisdiction and rule-making authority, and is headed by its own Chief Justice, with his or her own administrative staff. The Chief Justice of the Trial Court and the
With the advent of recent court reform legislation, the duties of the Chief Justice for Administration and Management of the Trial Court have been split between the Court Administrator, a new position, and the renamed Chief Justice of the Trial Court, who together comprise the Executive Office of the Trial Court. The former Administrative Office of the Trial Court has been reorganized and renamed the Office of Court Management. See, e.g., MASS. GEN. LAWS ch. 211B, 1 (2010), amended by MASS. GEN. LAWS ch. 93, 49 (Supp. 2011). Press Release, Mass. Supreme Judicial Court Pub. Info. Office, Special Advisor for Access to Justice Initiatives Appointed (June 8, 2009), available at http://www.mass.gov/courts/press/pr060809.html.
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Court Administrator, operating as the Executive Office of the Trial Court, oversee this federation, subject to the supervisory powers of the Justices of the Supreme Judicial Court. The departments were, and are, fiercely independent and protective of their autonomy. Programmatic initiatives did not usually involve more than one Department. Indeed, Chief Justices Marshall and Mulligan chose the Initiatives structure to avoid any suggestion of trenching on the individual departments authority. Massachusetts judicial leaders affirmatively rejected establishing a formal access to justice office or committee with directive powers, a model used in many other states.12 They opted for an advisory presence whose authority was limited to support, guidance, and gentle persuasionwhose work would depend on an all-volunteer army.13 The formation of the Initiative coincided with other broad-based changes in the trial court. First was a well-publicized effort by the Supreme Judicial Court, the Chief Justice for Administration and Management, and the Legislature to make the trial court more efficient, cost effective, and responsive to litigants and lawyers needs. In 2003, the Report of the Visiting Committee of Management in the Courts ( the Monan Report) issued a damning indictment of the trial court as an organization, calling it dysfunctional, drowning in managerial conf usion, hostile to
In some states, such as Washington and Illinois, for example, the state supreme court established multiple person access to justice boards tasked with recommending ways their respective courts might restructure court operations to improve access. In New York State Court, a formal access to justice office, headed by a judge-director and operating with its own staff, assumes central responsibility for expanding access in both civil and criminal matters. In California and elsewhere, a court administrator heads the access to justice office. In 2010, the Supreme Judicial Court also revitalized its Access to Justice Commission, which was refocused to coordinate statewide efforts to expand access to civil justice. The Supreme Judicial Courts Access to Justice Commission was reconstituted to coordinate statewide access efforts by strengthening the civil legal services community in providing legal services for those unable to afford counsel; enlarge the number of attorneys willing to provide pro bono legal services; serve as a clearing house and coordinating presence in the field, assisting the courts; and otherwise provide leadership and vision to people and organizations working to broaden access. Mission Statement, MASSACCESSTOJUSTICE.ORG, http://www.massaccesstojustice.org/the-new-commission---2010.php (last visited Apr. 12, 2013). A Supreme Judicial Court Justice and a prominent lawyer in the legal services committee head the Commission. Its many members represent a broad range of constituencies inside and outside of the Judiciary, including legal services and pro bono organizations, the business community, law firms, and social services agencies. The Special Advisor is a member of the Commission, and the Commission and the Initiative often work together on court-based programs. The work of the Commission and the Initiative complement each other, but the Initiatives special job is to stimulate the interest of judges and court staff in enhancing civil access services.
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innovation, demoralizing for forward-thinking judges and employees, and indifferent to customer service.14 The Initiative mirrored other reengineering efforts that followed in the wake of the Visiting Committees scathing assessments, including the introduction of time standards for judges and a centralization of certain shared administrative functions. The second development was the slashing of the trial courts budget. From fiscal year 2008 to fiscal year 2012, trial court funding plummeted from $605 million to $524.9 million.15 As a result, the trial court eliminated all court-based alternative dispute resolution programs and severely curtailed the use of guardians ad litem. Court staffing also plummeted, which forced clerks offices to reduce public access, mandated the consolidation of courthouses, and left courts operating with less than 50% of required staff.16 As a Massachusetts Lawyers Weekly editorial noted:
[T]he Trial Court already contributed more than its share to the cause of shrinking government. Overall, the number of state employees fell 5,800 between 2008 and 2012. During that timeframe, the Trial Courts staff shrunk by 1,249 individuals, or 21.5 percent of the total reduction. Yet in 2008, the judiciary represented only 9 percent of total state staffing. That means 9 percent of the states workforce contributed nearly a quarter of the reduction in state staffing.17

If access to justice initiatives were to become a central feature of the trial courts work, then we would have to motivate a disheartened and overworked cadre of line judges and court staff to add more items to their to-do list, with no prospect of material or personnel support for their efforts. II. Surveying the Field Upon our appointment, Judge Fein and I quickly decided that our first task was to listen. In the weeks following the announcement of the Initiative, we met with judges, clerks, administrators, line staff, probation officers, bar representatives, academics, and virtually anyone else who was
14

VISITING COMM. ON MGMT. IN THE COURTS, REPORT TO CHIEF JUSTICE MARGARET MARSHALL 4 (2003), available at http://mass.gov/courts/sjc/docs/Monan_Commission_Report .pdf. Letter from Dina E. Fein & Sandra Lundy, Access to Justice Initiative, to State Justice Inst. 5 (Apr. 26, 2012) [hereinafter State Justice Inst. Memorandum] (on file with author). Id. (summarizing the Massachusetts Trial Court's application findings of April 26, 2012, to the State Justice Institute for a Technical Assistance Grant for Video Instructions in English and Other Languages for Small Claims Proceedings in the Massachusetts Trial Court). Administration, Op-Ed., Legislature Must Reject Judicial Budget Cuts, MASS. LAW. WKLY., Jan. 7, 2013, at 38.
17 16 15

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interested in sharing their opinion about what the trial court should or should not do about expanding access to civil justice. From our many discussions, we drew three preliminary conclusions. First, several Massachusetts courthouses already took significant steps to address the needs of traditionally underserved court users. Second, these innovative programs generally were discreet, isolated, and poorly publicized within or outside of the trial court. Consequently, there was much reinventing of the wheel from department to department, region to region, and court to court. Third, notwithstanding the inevitable cynics and naysayers, we sensed abundant untapped energy among judges and court staff to do more for the most vulnerable court users. Although many employees were demoralized, they did not forget their desire to serve the common good that led them to careers in the public sector in the first place. We determined that we did not need to generate interest in access to justice initiatives among judges and court staff, but rather surface that interest and allow it to grow. But how? We wanted to find a meaningful way to understand access to justice needs from the perspective of trial court judges and employees. After some trial and error, we decided to create an access to justice survey, which the Initiative distributed to every judge and employee in the trial courtabout 7,200 people in jobs ranging from judge to janitor.18 The survey focused on seven access to justice services that have been widely recognized as national best practices: interpretation, translation, and other services for court users with limited or no English skills; courtroom and courthouse advocates; services for self-represented litigants; alternative dispute resolution; technology; collaborations with outside organizations; and general court user services (e.g., libraries, day care centers, and transportation). We asked respondents, among other things, which of these services was available where they worked and which they would most like to see added. The survey was open from October through November 2009. The response rate was impressive: 29% overall, and for those working in courthouses as opposed to administrative offices, 34%. Working with research analysts from the Massachusetts Sentencing Commission, Judge Fein and I were able to analyze the results from multiple perspectives to gain a granular understanding of the unmet civil justice needs of the trial courtfrom the perspective of judges and court employees themselves. The most surprising finding was that across departments and job titles, respondents identified the same few topics as priority access to justice

See DINA FEIN & SANDRA E. LUNDY, INTERIM REPORT ON ACCESS TO JUSTICE INITIATIVES IN TRIAL COURT 27 (2010) [hereinafter ACCESS TO JUSTICE INTERIM REPORT], available at www.mass.gov/courts/atjreport.pdf.
THE

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services. Most members of the trial court reported that victim-witness advocates and lawyers-for-the-day were readily available in their workplaces, but that expanded technology services, better services for selfrepresented litigants, and services for litigants of limited English proficiency were not readily available. Indeed, nine of the twenty-six access-to-justice services listed in the survey accounted for the top three unmet needs: (1) services for court users with limited or no English skills (including multilingual staff and signage, and forms and instructional materials in other languages); (2) advocates (including lawyers for the day, non-lawyer advocates, and limited-assisted representation); and (3) services for self-represented litigants (including pro se coordinators, customer service centers, self-help written materials, and self-help audiovisual materials). The Initiative found an alarming gap between the access to justice services that respondents feel are most needed in their courthouses and the services currently available.19 Through their responses to the survey, judges and court staffeach with one equal voteset the Initiatives priorities. And they helped Judge Fein and me determine how we would get the work done. Using the survey results, we decided to form five task forces, each co-chaired by a judge and a court administrator, to address five priority needs: courtservice centers, self-help materials, education of judges and court personnel, uniformity across printed materials, and limited-assistance representation. Because enhanced technology and language access services were pervasive concerns, we decided not to form separate task forces on these issues. Instead, we asked each of our five task forces to address technology and language access issues in all aspects of their work. We also created a court-wide advisory group, composed of judges, clerks office personnel, and other offices including finance, capital planning, and security services. This group would meet quarterly to review the work of the task forces, provide guidance and suggestions, and act as liaisons between their offices and the Initiative. Because our access to justice survey allowed respondents to self-identify if they were interested in working on specific priorities, we had little difficulty constructing our task forces and advisory committee. Within the nearly five years since the access to justice survey closed, the Initiative spearheaded several significant projects across Massachusetts: the establishment of courthouse information centers; the printing of forms, and instructional materials in multiple languages; the creation of uniform, plain-language printed forms; the enhancement of electronic services for self-represented litigants; the revamping of the trial courts public-facing

19

Id. at 24 fig.10.

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website; the addition of employee training on customer service; and the expansion of pro bono and low-bono services for litigants.20 We partnered with the trial court law libraries, the organized bar, the Massachusetts Access to Justice Commission, the Cyberlaw Clinic of Harvard University Law Schools Berkman Center for Internet and Society, the Law in a Social Context Program of Northeastern University School of Law, Senior Partners for Justice, and the Massachusetts Justice Project, among others, to bring innovative programs into more than 100 courthouses around the Commonwealthserving about 42,000 court users each day.21 Some programs succeeded more than others. For example, one notable disappointment has been our inability to establish a sustainable statewide, coordinated network of self-help centersthe money and staff power needed to set up and maintain court-service centers has been a formidable barrier. But where the Initiative has succeeded, it has done so because members of the trial court, with the full support of judicial leadership, have taken it upon themselves to be agents of change under difficult circumstances. In the following section, this Essay examines two Initiative programs that illustrate the contributions that a court-based, grassroots program can make to create a court culture in which furthering access to civil justice is a core value. III. Grassroots Trial Court Initiatives A. Limited-Assistance Representation In the ideal adversarial system, every litigant is represented by an attorney. Yet in Massachusetts, as elsewhere, there are not nearly enough pro bono, legal services, or reduced-fee lawyers to meet the legal needs of the poor and middle class. Recently, Professor Laurence Tribe, among others, called for the removal of artificial and often enormously counterproductive obstacles standing in the way of limited-assistance representation (LAR).22 LAR offers a way to expand legal assistance by permitting a client and an attorney to agree that the attorney will handle part, but not all, of a legal matter. It allows those who would otherwise self-represent to retain

DINA E. FEIN & SANDRA E. LUNDY, 2011 ANNUAL REPORT ON THE ACCESS TO JUSTICE INITIATIVE IN THE TRIAL COURT 1, 7-9, 21, 23 (2013).
21 22

20

See generally id. at 1, 6, 8, 11, 19, 23.

Laurence H. Tribe, Keynote Address, Annual Meeting of the Conference of Chief Justices and Conference of State Court Administrators (July 26, 2010), in FUTURE TRENDS IN STATE COURTS 2011, at 1, 6 (Natl Ctr. for State Courts eds, 2010) (speaking in Professor Tribes former capacity as the Senior Counselor for Access to Justice of the United States Department of Justice).

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counsel for someoften the thorniestportion of their legal matter.23 LAR encompasses a range of attorney-client relationships: the performance of the lawyers traditional role of rendering advice and counsel; assistance with the drafting of pleadings; and appearances in court for part of a legal proceeding. It is the latter relationshippartial representation in court that is the most controversial. Under standard interpretations of rules of professional conduct, and standard court practice, an attorneys entry of an appearance in court was considered an ethical commitment to represent the client to resolution, unless new counsel immediately entered a substitute appearance or the court allowed the attorney to withdraw. Judges are particularly big fans of this rule. They could, and often did, refuse to allow an attorney to withdraw, even where the client refused to cooperate with or pay the attorney, if it meant that a self-represented litigant would appear instead. In 2002, the American Bar Association, at the behest of advocates for self-represented litigants, amended Model Rules of Professional Conduct 1.2(c) and 6.5 to allow for limited representation.24 In 2009, the Supreme Judicial Court issued a standing order allowing LAR in any of the seven trial court departments who chose to adopt it.25 At that time, LAR was a little-known practice, but an LAR pilot program had been operating in three divisions of the probate and family court for approximately three years.26 Though carefully developed and well-run, the probate and family court LAR pilot program was underutilized. Judges and court personnel reported that LAR was not widely understood by the public, and that they had seen only a handful of LAR cases. The Initiatives task force on LAR assumed responsibility for promoting LAR within the trial court. The Massachusetts bench and bar voiced hostile opposition to LAR when it was first raised as an alternative
Limited Assistance Representation, THE MASS. COURT SYS., http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/lar.html (last visited Apr. 12, 2013). See AMERICAN BAR ASSN, ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT 38-40, 510 (6th ed. 2007); see, e.g., Report of the Working Group on Limited Legal Assistance, 67 FORDHAM L. REV. 1819, 1821, 1823, 1825 (1999) (recommending changes on behalf of clients in need of limited legal aid); see also MODEL RULES OF PROFL CONDUCT R. 1.2(c) cmts. 6-8 (2012) (A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.). In 2013, the American Bar Association passed Resolution 108, which encourages practitioners to consider limited scope representation as a means of increasing legal representation. AMERICAN BAR ASSN, RESOLUTION 108 (2013), available at http://www.abanow.org/wordpress/wpcontent/files_flutter/13606187922013_hod_midyear_meeting_108.pdf. See SUPREME JUDICIAL COURT, IN RE: LIMITED ASSISTANCE REPRESENTATION (2009), available at http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt /documents/limitedrepresentationstandingorder.pdf.
26 25 24 23

See id.

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to full representation in the late 1990s. Attorneys saw it as an assault on their economic interests and their ethical obligations, both of which presumed soup-to-nuts representation of each client. In addition, LAR requires the judge to allow the LAR attorney to withdraw whenever the attorney files a notice that his contracted scope of representation has ended. Judges saw this provision as an encroachment on their broad discretion to deny a motion to withdraw representation, even where the litigant and the attorney were at loggerheads or the attorney was not being paid. The probate and family court pilot project made progress in assuaging these concerns, but more was needed to generate acceptance of LAR throughout the trial court. The more turned out to be peer interactionjudges reaching out to judges and court staff reaching out to court staff. Judges on the task force joined with other LAR-experienced judges from Massachusetts and elsewhere to speak to their inexperienced colleagues about LAR. Court staff on the task force met similarly with their peers around Massachusetts. In each case, the speaker and audience spoke the same professional language, shared the same professional concerns, and inhabited the same court culture. These attributes proved invaluable, for the speakers enjoyed goodwill and credibility from the outset. For example, one de facto member of the task force was a prominent retired probate and family court judge who for many years had been a staunch opponent of LAR until his own experience turned him into a staunch advocate. The judge was instrumental in persuading his colleagues to reframe their thinking about limited representation. He reminded them that LAR did not subtract attorneys from court but rather added them, and he counseled that LAR was entirely compatible with orderly case management. I believe this one judge did more to lay a foundation for the judicial acceptance of LAR than years-worth of outside presenters or stacks of data sets could ever do. While building a culture of acceptance for LAR within the Judiciary, the members of the LAR task force also worked to build on a growing momentum in favor of LAR in the organized bar and among the public. In a particularly effective partnership, the trial court has taken on the responsibilities of formulating LAR rules and standard training materials while the organized bar publicizes, conducts the actual trainings, and keeps lists of LAR-qualified attorneys. In this way, the most onerous administrative tasks have been outsourced to the organizations that have the greatest capacity to handle them. Task force members have also written articles for Massachusetts legal publications and for local newspapers on the availability and advantages of LAR. Today, LARs status in Massachusetts has undergone a sea change from only a decade ago. LAR is now available for all or some civil cases in the probate and family court, the Boston municipal court, the district court,

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and the housing courtour busiest pro se courts. Thousands of attorneys earned qualifications to represent clients on a limited basis; in fact, many private attorneys use the fact that they are LAR-qualified in their promotional materials. LAR-only private practices are beginning to emerge. Legal services organizations and pro bono attorneys have also come to rely heavily on LAR as an effective way to represent as many people as possible at the most critical junctures of their cases. Of course, the LAR task force was only one of many actors working to establish LAR in Massachusetts. But its groundwork among trial court judges and court staff was integral in moving this once untenable idea into the mainstream of Massachusetts practice, all at minimal expense and without overtaxing an already overworked judiciary. B. Translated Small Claims Forms Expanding access to the civil justice system for linguistic minorities has become an urgent priority for state courts.27 Indeed, the United States Department of Justice recently informed state courts that both the Sixth Amendment and the Civil Rights Act of 1964 require that Limited English Proficient (LEP) individuals have a right to full linguistic access to the full panoply of court services, from counter to courtroom to courtconnected programs such as batterers treatment and alternative dispute resolution.28
27

One commentator noted: The starkest consequence of linguistic barriers to the courts is simply that justice is unavailable. The very people who are arguably most in need of help from the courts are unable to obtain that protection. In routine civil proceedings, such as evictions, repossessions, creditor/debtor cases, wage garnishments, and family law matters, they cannot effectively defend themselves or assert their legal rights. And the court system itself can appear unfair and unbalanced when, because of inability to comprehend the process, defendants with limited English proficiency cannot meaningfully participate in court proceedings, and thereby lose legal rights, property, livelihood or shelter.

CAL. COMMN ON ACCESS TO JUSTICE, LANGUAGE BARRIERS TO JUSTICE IN CALIFORNIA 1-3 (2005), available at http://www.svcls.org/media/1880/language%20barriers%20to%20justice %20in%20california.pdf. Letter from Thomas E. Perez, Assistant Attorney Gen. Dept of Justice, Civil Rights Div. to Chief Justices and State Court Administrators (Aug. 16, 2010), available at http:www.justice.gov/crt/lep/final_courts_ltr_081610.pdf (stating that individuals with LEP must have access to all court services, including courtroom interpretation, counter services, signage, and court-connected programs such as guardians ad litem and batterers treatment); cf., Lau v. Nichols, 414 U.S. 563, 567-68 (1974) (holding that a school systems refusal to provide English language instructors denied the meaningful opportunity to participate required by the Civil Rights Act of 1964); see also AM. BAR ASSN, STANDARDS FOR LANGUAGE
28

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The emphasis on the rights of linguistic minorities is easy to understand. Immigrants currently make up the fastest growing segment of the American population. A substantial number lack fluency in English, and even fluent non-native English speakers may have great difficulty understanding legal terms in English or American legal procedure. A day in state court is stressful enough for most native English speakers, but those who do not speak English well, or not at all, have the added anxiety of having their rights adjudicated in a process and a language they cannot understand. Massachusetts is home to an increasing number of non-English speakers. From 2000 to 2010, the Hispanic and Asian populations each grew by 46%, while total growth for the Commonwealth hovered at around 3%.29 According to United States census figures for 2010, 14% of Massachusetts residents were foreign-born, a 19% rise since 2000.30 According to the 2007 American Community Survey report, almost 43% of Massachusetts residents over five years of age who spoke a language other than English at home spoke English less than very well, and 6.7% spoke no English at all.31 Massachusetts has a higher proportion of linguistically isolated households (5.9%) than the national average (4.7%).32 Perhaps not surprisingly, 67% of over 2,000 trial court respondents identified services for court users with limited or no English skills when asked which access to justice service you would most like to see where you work.33 The need to provide more services for LEP court users was identified one of the most urgent priorities for improving access to justice across job titles, trial court departments, and geographic areas.
ACCESS IN COURTS 19 (2012), http://www.americanbar.org/content/dam/aba/admin available at

istrative/legal_aid_indigent)defendants/ls_sclaid_standards_for_language_access_proposal.a uthcheckdam.pdf. The ABA House of Delegates adopted these standards on February 6, 2012. The census statistics in this paragraph come from the Intiative's small claims video grant application. State Justice Inst. Memorandum, supra note 15 (summarizing the statistics presented in the Initiatives small claims video grant application). See Peter Schworm & Matt Carroll, A Portrait of States Population, THE BOSTON GLOBE (Dec. 15, 2010), http://www.boston.com/news/local/massachusetts/articles/2010/12/15/a_revea ling_look_at_the_population_in_mass/?page=2. HYON B. SHIN & ROBERT A. KOMINSKI, U.S. DEPT OF COMMERCE, LANGUAGE USE IN THE UNITED STATES: 2007, at 9 (2010), available at http://www.census.gov/hhes/socdemo/language/ data/acs/ACS-12.pdf. See Linguistically Isolated household Rates in the United States 2000 to 2009, U.S. ENGLISH, http://www.us-english.org/userdata/file/LIH2000to2009.pdf (last visited Apr. 13, 2013). ACCESS TO JUSTICE INTERIM REPORT, supra note 18, at 19; State Justice Inst. Memorandum, supra note 15, at 28.
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In 1986, the Massachusetts Legislature established the Office of Court Interpreter Services (OCIS) within the trial court to provide interpreters free of charge in all criminal and civil cases to LEP litigants; to all nonparty LEP individuals whose presence in a court matter is necessary (i.e., victims, witnesses, parents or guardians of juveniles); and for investigations and evaluations by psychologists and guardians ad litem as ordered by the court.34 In 2011, OCIS interpretation services for LEP litigants were used for 91,368 court events in seventy-one languages.35 OCIS has garnered national recognition for the quality of its translation services, but it was not set up and has no funds to provide such services. Thus, counter assistance, court forms and instructions, and self-help materials developed by the trial court have been inaccessible to LEP court users.36 Lacking the funds and personnel to translate court documents and forms, the Initiative turned outside of the trial court to one of the very few grant makers willing to fund court-based civil justice programs: the federally-funded State Justice Institute (SJI). In 2011, the Initiative, with the approval of the Chief Justice for Administration and Management and the Departmental Justices of the three trial court departments that hear small claims matters (the housing, district, and Boston municipal courts) applied for and received a grant of approximately $26,000 to work with an outside translator to convert Massachusetts small claims forms and instructional materials into Spanish, Portuguese, Haitian Creole, Vietnamese, Russian, Khmer, and Traditional Chinesethe foreign languages most often requiring interpretation in Massachusetts courts.37 The decision to focus on small claims was based on several considerations: small claims were heard by three of the seven trial court departments; the small claims process and forms were recently revised to make the process simple, cost effective, and speedy, so they were unlikely

MASS. GEN. LAWS ch. 221C (2010); see also OFFICE OF COURT INTERPRETER SERVICES, WORKING WITH COURT INTERPRETERS EFFECTIVELY 4-5 (2012) (describing the specific role of OCIS interpreters); Office of Court Interpreter Services, General Information for Interested Applicants, THE MASS. CT. SYS., http://www.mass.gov/courts/admin/interpreters/gen-infofor-applicants.html (last updated Feb. 18, 2011, 10:51 AM) (stating that the OCIS allows nonEnglish speaking litigants to assert their legal rights). THE MASS. COURT SYS., ANNUAL REPORT OF THE STATE OF THE MASSACHUSETTS COURT SYSTEM, FY2012, at 18, available at http://www.mass.gov/courts/fy12-annual-report.pdf (last visited Apr. 5, 2013). Spanish accounted for 73% of all requests for court interpreters. Id. The Office of Court Interpreter Services was recently authorized to hire its first dedicated translator to work full-time on translating court materials into Spanish. See THE MASS. COURT SYS., ANNUAL REPORT OF THE STATE OF THE MASSACHUSETTS JUDICIARY FY2010, at 22, available at http://www.mass.gov/courts/fy10-annual-report.html (last visited Mar. 3, 2013) (listing the most often requested languages).
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to be revised again soon; Massachusetts courts heard on average 100,000 small claims a year; and none of the small claims forms or instructional materials were available in languages other than English. Because the SJI translation grant offered the trial court the first opportunity for a largescale translation project, our goals for the grant went beyond translating small-claims materials. Equally important, translating small claims forms lay the groundwork for developing standard policies and procedures for translating other court materials. For the fifteen months that the small claims translation grant was in effect, judges and staff throughout the trial court contributed to the project. An advisory board consisting of administrative attorneys in the housing, district, and Boston municipal court decided how the translated forms would be used, advised on staff training, and acted as liaisons to their respective departmental chief justices to keep them informed and get necessary approvals. OCIS staff and contract-court interpreters worked with the translation agency to develop a vocabulary of legal terms, to edit and proofread the translation agencies work, and to test the translated forms in the field. As a result of the small claims translation project, and the work of the literally dozens of trial court judges, clerks, and staff drawn into its orbit, the trial court has translated a uniform set of small claims forms, instructional materials, and a new small claims brochure into seven languages (ninety-eight new forms in all).38 It also launched its first online employee training; developed a series of translation principles to govern future translation projects; created glossaries of legal terms in the seven languages to guide future translations; and established a dedicated page on the trial courts website for translated forms. Building on the momentum for and enthusiasm about language access that the translation grant generated, and with the encouragement and support of the Chief Justice for Administration and Management and the departmental chief justices of the housing, district, and Boston municipal courts, the Initiative applied for and received a follow-up grant from SJI to create a small claims self-help video in English and the seven targeted foreign languages.39 This grant also engaged a broad spectrum of judges,
See The Mass. Court Sys., Translated Small Claims Forms, MASS.GOV, http://www.mass.gov/courts/forms/translated/small-claims/ (last visited Mar. 21, 2013). One of the ancillary benefits of the grant is that the forms and instructional materials of the small claims courts were all made uniform, following the principles developed by the Intiative's task force on forms. See State Justice Inst. Memorandum, supra note 15, at 5. STATE JUSTICE INST., SJI GRANT AWARDS FY 05-13 WITH AWARD NUMBERS 7 (2013), available at http://www.sji.gov/PDF/SJI_Grant_Awards_FY_0513_with_Award_Numbers.pdf (reporting that SJI-12-T-132 granted $22,368 to the Massachusetts Trial Court).
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administrators, clerks-magistrate court educators, interpreters, information technologists, financial officers, public relations officers, and others. Additionally, in April 2013, the SJI awarded the trial court a grant to establish the nations first model language access courthouse in the Worcester trial court complex, to serve as a national model for the delivery of justice for persons of limited English proficiency. Independently, the trial court also established a permanent Language Access Committee to work on long- and short-range language access issues throughout the trial court system. While language access is a fast-developing concern of the access to justice community nationwide, and undoubtedly some of these projects could have happened without the prompting of the Special Advisor, it is safe to say that the 2009 access to justice survey and the success of the small claims translation grant were critical to advancing the cause of linguistic minorities throughout the trial court.

CONCLUSION
If a central challenge of expanding access to civil justice in the state courts is finding a way to foster ownership of the issue within the Judiciary, then the Initiatives grassroots approach canand should serve as a model for effective institutional change. After all, no one knows the challenges of the day-to-day delivery of justice that our state courts face better than those on the front lines, and often these people know best what will and will not work. By making line judges and court personnel the innovators and implementers of access-to-civil-justice programs, they can become engaged and passionate advocates for needed changes in the organizational culture. Indeed, in a recent trial court poll answered by 55% of trial court staff (3,545 respondents) 90% of respondents believed that the trial court can and should change to keep pace with contemporary challengesa notable departure from the institutional indifference and cynicism identified in the 2003 Monan Report.40 Of course, the Initiative played only a part in this organizational transformation. The recent reconstituting of the Access to Justice Commission, the administrative reforms prompted by the Monan Report, partnerships with the bar, press scrutiny, and, most importantly, a united and strong court leadership, made it abundantly clear that the continued viability of the trial court as a forum for the expeditious and fair resolution of disputes hinges on how well the court can deliver high quality justice and meet the needs of its users. One advantage of the Initiative model that other court systems should

Massachusetts Court System, Strategic Planning Update, MASS. CT. SYS. CT. BULL., at 3 (Feb. 2013) (on file with author).

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not overlook is that it can operate effectively even where a courts budget and personnel have been decimated, as they have been in Massachusetts. It is not necessary to hire consultants or to conduct costly trainings on customer service; most judges and staff are strongly motivated to serve the public. They have good ideas and are willing to work for their implementation, with the right encouragement and support. Another correlating advantage of an Initiative style approach is the opportunity for outside-the-box solutions that are more likely to present themselves when people from various sectors and levels of an organization are asked to work together to solve a common challenge. In the case of the Initiative, for instance, the opportunity for the three small-claims departments to interact with each other on a matter of common concern resulted in the creation of a two-page, plain language brochure to supplement the turgid FAQ available on the trial court website. On the other hand, as in the rest of the world, money does talk in state court. The Initiative may be a good model for how to motivate judges and staff to prioritize issues of civil access, but an all-volunteer army with no budget cannot sustain many access to justice best practices: from courthouse information centers to new media outreach to court users. Indeed, the Initiative model seems to work best when the demands on personnel are relatively contained (as in the promulgation of LAR rules and the creation of a training manual), or where funding is available from grants or other sources (the small claims translation project). Yet the model was less successful in the case of court information centers because individuals were asked to commit substantial amounts of time over long periods, or where significant material outlays are needed. One lesson that lean times and an evolving population of untutored court users taught our state courts is that to move ahead, they will need to break down calcified but previously-sacrosanct organizational barriers. Outmoded hierarchies, unimaginative budgeting, costly legal practices, and wasteful administrative practices are changingand must change under the demands of ensuring equal justice for all in the twenty-first century. In this process of change, the organizational culture of our state courtsthe people who are our state courtsplays a critical role in the continued vigor of our democracy.