Category: Uncategorized

by Kelsea Jeon, Civil Justice Fellow

Last term, the Rhode Center hosted a lunch talk at Stanford Law School on “Access to Justice: Crisis and Crossroads.” During the hour-long discussion, Professors Nora and David Freeman Engstrom, Lucy Ricca, and Todd Venook introduced the audience of primarily first-year law students to the access-to-justice crisis and laid out the myriad of ways the Rhode Center is tackling the issue.

Professor Nora Engstrom began the talk with a nod to the late Deborah Rhode, who once noted the “shameful irony that the nation with the highest concentration of lawyers fails so miserably to make their services available to those who need them most.” Professor Engstrom then presented the audience with statistics capturing the extent and severity of the access-to-justice crisis–in approximately 75% of civil cases in state court, at least one party is self-represented. These cases in civil court touch on significant aspects of people’s lives. The vast majority of civil cases in state court are debt collection actions, where most debtors are unrepresented, and which could lead to wage garnishment. Not only do debt collection actions take place in state courts, but so do evictions and child support matters, among others. And in these evictions, 98% of tenants are unrepresented, and in child support cases, 95% of parents are also unrepresented.

Next, Todd Venook presented a case study diving deeper into the problems with debt collection actions. He noted the rise of debt claims in state courts over the past decade and highlighted the disparity between parties on both sides of the v. Plaintiffs are increasingly institutional debt collection companies—as opposed to the original creditors—and defendants are almost exclusively unrepresented individuals, many of whom are people of color. What usually happens in these cases, Venook pointed out, is wage garnishment for the defendants.

After the deep dive into debt collection matters, Lucy Ricca presented one of the potential solutions to the access-to-justice crisis. Given that unauthorized practice of law rules in many states restrict non-lawyers from providing legal advice, advocates have been creatively thinking about how to reform regulations on who could provide legal help. The Rhode Center has been at the center of the research and policy work in this area. Ricca proposed three emerging categories of regulatory reform—from the allied legal professionals who are licensed legal paraprofessionals, to justice workers who are lay community-based providers, to finally organizational entities which have nonlawyer owners/investors and/or use nonlawyer providers.

Finally, Professor David Engstrom closed the presentation by pointing out the role of state courts, who are feeling increasing pressure from the pro se crisis to reform, and of technology, especially generative artificial intelligence given its capabilities in helping self-represented litigants, in addressing the access-to-justice crisis.

The access-to-justice problem is a complex issue with entwined contributing factors, and accordingly, the Rhode Center has been tackling the issue from a variety of angles. For those eager to join the efforts of the Rhode Center, here are some ways to get involved: taking courses including the Winter/Spring Policy Lab: “Expanding Access to Justice in Eviction and Family Law” and the Spring Course: “Access to Justice: Law, Policy, and Legal Ethics”; applying to the Rhode Center Civil Justice Fellows Program in the Spring; and finally, staying in touch with the Rhode Center online. We hope to see you soon!

by Ben Welton, Civil Justice Fellow

Today, Stanford Law School’s Filing Fairness Project announced the launch of its Filing Fairness Toolkit, a first-of-its-kind, interactive guide for state courts to increase access to justice for all court users by modernizing, standardizing, and simplifying court technology and filing systems. The toolkit provides concrete, actionable recommendations for courts and court partners to work across jurisdictions and to implement and scale more efficient, usable, and sustainable ways for court users to access the legal system. This was a major milestone for the project, which has been working with state supreme court justices, court technologists, and access to justice experts for nearly two years to understand the landscape of court technology in the United States.

An Access to Justice Crisis: Outdated and Needlessly Complex Court Technology 

The U.S. legal system is currently gripped by an access to justice crisis. Roughly three-quarters of the millions of civil cases filed in the U.S. each year involve at least one self-represented litigant trying to navigate our dense, complex legal system alone. A 2019 report from the California State Bar found that 55% of households had faced at least one legal issue in the previous year, yet more than 85% of them received no or inadequate legal help. Many of these cases are significant, even life-altering moments: debt disputes, evictions, domestic violence, or a former partner behind on child support.

Part of the problem is that court users must wrestle with outdated, opaque, and difficult-to-use filing tools. While user-friendly tools are already ubiquitous for things like public benefits applications and tax filings, the picture is very different for court filing technology. Some courts require that users fill out PDFs directly when they need to generate basic legal forms. Other courts have guided interview tools that generate forms for users, but they often involve highly technical legal language and add procedural hurdles like requiring physical (“wet”) signatures or notarization. And other courts have tools that are expensive and difficult to maintain, which has caused them to become outdated or error-prone.

This has been a burden on litigants and courts alike. Some court users are unable to find information they need, others are intimidated by court form complexity and language, and still others are deterred by barriers like in-person notarization requirements or cumbersome electronic filing systems. The result of all of this is worse substantive outcomes for litigants with otherwise valid claims, assuming they engage with the legal process at all. And when litigants do complete legal filings using these tools, clerks often must manually enter data into difficult-to-use systems, and judges frequently receive incorrect or irrelevant information.

The Filing Fairness Toolkit: Encouraging User-Friendly, Modernized Technology

The Filing Fairness Project—an ambitious, multi-jurisdictional effort to modernize court filing processes and improve access to courts and the administration of justice by leveraging readily available technology—has been working to address these challenges since it began as a Stanford Law School Policy Lab in 2021. The project has engaged seven state court partners—Alaska, Colorado, Indiana, Kansas, Michigan, Texas, and Virgina—to collaborate across jurisdictions to improve their forms and filing systems, and it previously brought state court partners and technology providers together to discuss how to tackle these problems. This toolkit is a culmination of those efforts.

The Filing Fairness Toolkit offers several concrete recommendations that prescribe clear actions for courts to modernize their systems. By following these recommendations, courts can leverage modern standards and contracting practices to promote sustainable, easy-to-find-and-use filing tools. To this end, the toolkit focuses on four key areas of change.

First, it recommends that courts standardize their filing system infrastructures by adopting and encouraging technologies that use modern data standards for their electronic filing platforms. Technologies that use nationally-accepted standards are easier to maintain over time, and they can more easily integrate with new vendors that increasingly rely on these data standards, some of whom serve self-represented litigants. 

Second, it promotes a diverse ecosystem of service partners by encouraging courts to work with vendors using a variety of business models and to set up a clear checklist of vendor requirements to ensure new partners are aligned with the court’s access to justice values. These steps can minimize the potential limitations of any one business model and improve sustainable and fair efiling access while ensuring that at least some among a diverse set of partners are addressing the access to justice crisis.

Third, the toolkit outlines governance and procurement best practices for filing system technology. It recommends that courts adopt a formalized certification process when contracting with vendors and discusses specific provisions for how future integration costs should be allocated. So much of court modernization is actually about governance and contracting, since these decisions freeze courts into multi-year commitments, with rules establishing everything from how flexible a court’s infrastructure is to who resolves technology problems.

Fourth and finally, the toolkit promotes easy-to-use digital form preparation and filing tools through a series of suggestions, such as reducing legalese, allowing electronic signatures, and adding virtual and in-person support resources for court users. While the aforementioned three recommendations are largely focused on attracting good underlying technology and ensuring it is maintainable and scalable, this set of recommendations is more specifically trained on the court users’ experiences.

It’s worth noting that these recommendations are not just for IT professionals. Many of the recommendations are specifically directed at judges, court administrators, and other court decision makers. Nor are the recommendations directed at courts at a particular level of technological maturity. Courts that are in both the early and more advanced stages of their filing modernization efforts will find useful features in the toolkit, including concrete recommendations, a diagnostic tool, maturity models that describe moderate, good, better, and advanced stages of progress, and examples of successful solutions that have been implemented in various state courts. 

What Comes Next?

We look forward to hearing how courts are interacting with this toolkit, and we are already planning how we can facilitate modernization efforts and provide expertise and oversight. We’ll be announcing next steps for the project soon, so check back on the blog in the coming months.

In the meantime, you can take a look at the Filing Fairness Toolkit here. If you are interested in participating in the Filing Fairness Project, please connect with the Filing Fairness team. 

Prompted by Leah Goodridge’s recent essay in the UCLA Law Review which “examines professionalism as a tool to subjugate people of color in the legal field,” the Rhode Center was proud to host a discussion illuminating how racial hierarchy and inequity operates within the legal profession—impacting not only attorneys and paralegals but also citizens participating in the legal process.

Leah Goodridge, a nationally renowned movement lawyer, thought leader, writer and current Managing Attorney for Housing Policy at Mobilization for Justice in New York City, started her presentation with the observation that just 5% of the attorneys in the United States are African American. Over her decade of experience in the legal field, she has seen how the standards of professionalism are not applied equally across all lawyers. In particular, Goodridge has both observed and experienced professional norms applied to people of color and other marginalized groups to police, constrain, and undermine their participation in the field. Specifically, Goodridge has identified three characteristics of professionalism deployed as a tool for marginalization. First, the bias and discrimination threshold concept notes how professionalism demands that people of color and other marginalized groups accept racism and bias with grace and lightheartedness, requiring them to “play the game” and act unbothered when faced with discriminatory behavior by colleagues. Second, the selective offense characteristic normalizes racist, misogynistic, ableist, or otherwise discriminatory behavior but allows for the dominant group to take offense at those who denounce or dispute discriminatory behavior. And third, the reasonable person standard, or reasonable professional standard, labels the marginalized identity, whether by race, gender, sexual orientation, or ability, as unreasonable and unprofessional.

Goodridge’s opening comments and the article itself were then discussed in depth with the panel: Misasha Suzuki Graham, practicing litigator and co-author and co-host of Dear White Women; Ron Tyler, Professor of Law and Director of the Criminal Defense Clinic at Stanford Law School; and moderator Richard Thompson Ford, Professor of Law at Stanford Law School.

Professor Ford asked the group: When do you speak up and how? Goodridge emphasized the importance of building your own support system –to identify and build relationships with people who are not going to reinforce dehumanization just because that was what they were taught or experienced. Graham noted that she had found success in her work with pausing and asking the simple question: Why do you think/say that?

Ford then asked what professional norms need to be reconsidered in the light of their racial implications. Professor Tyler observed that since the professional standard is white male, anything that deviates from that is less than acceptable. Communication styles, hairstyles, clothing, and the acceptability of body art are examples of aspects of professionalism.  Professor Tyler encouraged the audience to think about who sets the norm? Who is applying the standard and how?

A key to being a professional is knowing how to treat other people and show up for them in the workplace. When issues such as these emerge, the panelists noted the importance of first naming the issue and then questioning the standard of professionalism. Moving beyond a white-centered view of the impact of racism, it would be valuable to get input from all impacted communities to arrive at a better standard. But, professionalism and bias are intertwined with power – so unearthing these power dynamics is a vital step in moving toward a professional standard that incorporates intolerance of racism in any form.

Finally, the panelists considered the pace of change in the law profession to move beyond racism. They noted that we are relitigating social norms, and the law is moving slowly. Should we push gently or move toward big changes? It is important to challenge these norms. Ron noted that bigger changes are possible when you are the decision-maker. In the meantime, when confronted with biases or outdated ideas of professionalism, name it and contextualize it. Someone in the room, not just a person of color, flagging it can move the organization forward.

This thought-provoking conversation with Leah, Misasha Suzuki Graham, Professor Ron Tyler, and Professor Richard Ford was hosted by the Deborah L. Rhode Center on the Legal Profession, the Stanford Center for Racial Justice, and the John and Terry Levin Center for Public Service and Public Interest Law. This event was co-sponsored with the Black Law Students Association, Asian and Pacific Islander Law Students Association, Native American Law Students Association, Black Business Student Association, and Stanford American Indigenous Medical Students.

The Rhode Center on the Legal Profession published today a new white paper titled The Bar Re-Imagined: Options for State Courts to Restructure the Regulation of the Practice of Law. Authored by Rhode Center Executive Director Lucy Ricca and Dr. Thomas Clarke, the white paper critically examines the role of state bar associations in the regulation of the practice of law and offers state supreme courts multiple structural alternatives to consider. The paper encourages courts to recognize the serious limitations of the traditional delegation of their regulatory authority to state bar associations, particularly noting the protection of the professional monopoly at the expense of the public interest in access to low cost legal services. It then outlines five alternative ways to structure and house the regulation of the practice of law to encourage increased effectiveness, empiricism in regulation, efficiency, and independence from those subject to regulation.  Rhode Center Executive Director and paper author Lucy Ricca notes, “This white paper will be of interest to state supreme courts and other stakeholders concerned that the traditional delegation of regulatory authority to state bars is no longer sufficient to ensure the public interest is prioritized.”  The paper is available as part of the Rhode Center’s Legal Regulatory Innovation Toolkit which includes research and policy analyses on the legal services regulation, innovation, and access to justice.

The legal profession has long promoted a very particular understanding of “success” and the metrics we should use to measure it. An elite law degree, a prestigious clerkship, partnership at a big law firm. In our society, it is an image that historically has been most readily achieved by white males of high socioeconomic status who don’t have childcare responsibilities. Even as the profession has changed, and more women and people of color head to law school, at the highest, most prestigious levels, the diversity of the profession lags.

Inspired by Deborah Rhode’s book, Ambition: For What?, the Rhode Center on the Legal Profession recently hosted a panel that invited reflection on the themes of ambition, success, and the legal profession. Panelists Cassandra Knight, SLS ’94 and Vice President of Litigation and Discovery at Google, Leslie Hatamiya, SLS ’97 and Executive Director of the San Bruno Community Foundation, and Michelle Banks, former GAP Global General Counsel, discussed why the conventional image of success is often not achievable for people of color and women. But the panelists also invited further consideration of whether the conventional image is the right one, challenging attendees to reflect on what success means for them.

The panelists emphasized the structural and institutional barriers that make it hard for certain groups to obtain the traditional markers of “success” and offered a call to action for the profession to take definitive steps to address these barriers. Women and people of color continue to be underrepresented in firms, and especially in partnerships. Women of color, for example, account for 14% of associates, but only 5% of non-equity partners and 3% of equity partners. Knight suggested women and people of color often feel like outsiders in traditional legal organizations. She stressed the importance of having someone who supports you in the room, particularly for performance reviews and promotions, and noted that many women and people of color lack that support. By contrast, Hatamiya noted the presence of larger numbers of women in public sector lawyering makes it easier for women to find mentors. Part of what is missing, then, is community and mentorship.

The inflexibility of firm life also makes it hard for women who serve as primary caregivers to balance childcare responsibilities and lawyering. Banks and Knight suggested that this structural barrier would not change without intentional firm policy changes. Hatamiya suggested this structural inflexibility persists in the public sector too, where it is often brought on by court deadlines. Interestingly, each panelist noted this issue was currently relevant for her because of the need to care for aging parents.

The panelists described how their personal understanding of what success means for them has changed over time. Some of this change has come from intentional reflection at particular infection points. Hatamiya asked herself hard questions about what she wanted to do and how she wanted to spend her time. In turn, Hatamiya’s love of wrestling with difficult public policy questions led her down a less traditional lawyerly path. Similarly, Knight spoke about how being less wedded to a certain definition of success has made her open to the opportunities that have fallen into her lap.

The panelists also commented on how their sense of what success is for them has changed over time with more life experience. Banks emphasized that the most important question for her has become whether she is fulfilled by her work and her life more generally. Hatamiya and Knight spoke about how life experiences, such as getting married, having children, and caring for ailing parents have shifted their priorities.

by Graham Ambrose, Rhode Center Civil Justice Fellow

STANFORD, CALIF. — Leading scholars, practitioners, and judges met on February 11 and 12, 2023, at Stanford Law School as part of Stanford Law Review’s symposium on access to justice. One panel explored the fledgling movement to make legal help less expensive by rewriting the rules governing the practice of law.

The panel, which was moderated by Stanford Law Professor David Freeman Engstrom, featured Salena Copeland of the Legal Aid Association of California, Karin Martin of the University of Washington, Dan Rodriguez of Northwestern Law School, Lauren Sudeall of Georgia State Law, and Vice Chief Justice Ann Timmer of the Arizona Supreme Court.

Arizona has emerged as a national leader of this front. At the event, Vice Chief Justice Ann Timmer surveyed some of her state’s recent reforms. One of the most significant was the elimination of ethics rule 5.4, which barred non-lawyers from owning law firms.

A recent report from Stanford’s Rhode Center on the Legal Profession found that non-lawyer ownership has spurred innovation in Arizona and, at least so far, generated relatively few complaints from consumers.

Stanford Law Professor David Freeman Engstrom, an author of that report and co-director of the Rhode Center on the Legal Profession, challenged reformers to consider the extent to which lawyers should play a role in the legal system of the future. Because of their skills, education, and ethics requirements, Freeman Engstrom suggested, lawyers should be centered but equipped with technology and perhaps even non-lawyer advocates.

As Vice Chief Justice Timmer noted, and as the Rhode Center report describes in detail, Arizona has answered this challenge with legal paraprofessionals. Launched in 2021, the paraprofessionals program licenses legal versions of nurse practitioners to practice law in select contexts, including family law and criminal cases, without the threat of jail time.

Many of the newly licensed paraprofessionals in family law were formerly family law paralegals, Timmer said, and they “know that subject backwards and forwards.”

“I’ve heard anecdotally from judges that they already tried cases, and [the paraprofessionals] have been better than most attorneys they have in their court,” the vice chief justice added.

Opposition to regulatory reform remains ardent in several states, including California. (When discussing Arizona’s leadership on eliminating ethics rule 5.4, Timmer received a round of applause.) In 2020, the State Bar of California launched a working group to study possible changes to the rules that govern the practice of law. The group was convened to respond to the state’s worsening access-to-justice crisis. Last year, however, the legislature shut down the group, effectively ending the possibility of legal reforms in the short-term.

Salena Copeland, executive director of the Legal Aid Association of California, suggested that the legal regulatory reform movement learn to frame its case in terms legislators understand: dollars and cents. Because state courts need public funds to function, changes to the operation of courts must be accountable to the fiscal math that governs the rest of politics. For instance, civil assessments in California have been criticized recently for their unfairness. But courts and other state institutions rely on these fees, which generate $100 million annually.

One recent example of successful advocacy involves the effects of a driver’s license suspension. California passed a law in 2017 prohibiting the DMV from suspending driver’s license for failure to pay fines, and recently shielded some low-income people from having their license suspended for failure to pay child support.

“The reason we’ve been successful in California is because we connect it to money,” Copeland said. “Legislators will ask, ‘How much will this cost us’? And if you can’t answer that question, they’re not going to do the amazing policy work you’re arguing for.”

However, a major obstacle to reforms remains the paucity of data from state courts. Various panelists decried the “black box” of information about how courts operate, an information gap that hampers solutions.

Karin Martin, professor at the University of Washington, discussed the data shortage in the context of monetary sanctions, or the fines, fees, restitution, and other financial penalties created by the criminal legal system. Monetary sanctions include, for instance, the probation fees imposed by a local probation department either before trial or after conviction. Such fees create significant stress and financial hardship, forcing individuals with little money into hard choices like paying their rent or paying court fees.

Monetary sanctions hinder access to justice by “ensnaring people in the criminal legal system that then thwarts their ability to engage in the civil legal system,” Martin said.

But reform is tricky in part because no one knows the exact size of the problem. Only 25 states collect data on the size of criminal legal debt. “Literally half the states cannot tell you how much has been assessed in fines, fees, restitution,” Martin said. “They cannot tell you how much has been collected. They cannot tell you how many people have been incarcerated” due to these fines.

Part of the problem is that courts rely on outdated technology. But part of the problem is legal complexity. Panelists blamed overly complex court processes and systems, which frustrate litigants and multiply the difficulty of administering accessible courts.

“Law is really, really complicated—and ever more so,” noted Dan Rodriguez, a professor and former dean at Northwestern University Pritzker School of Law.

Rodriguez challenged lawyers to question the purpose and practice of legal self-regulation—whereinstate supreme courts assume, “as a matter of natural law,” the ability to control the practice of law. One consequence of this “zombie legal doctrine,” quipped Rodriguez, is that “the content of justice is determined by where you live, and that’s beyond sad.”

Ultimately, it is the public that loses most from the perception—and reality—that America’s institutions of justice fail to achieve justice. To most Americans, “courts are where bad things happen to people,” explained Copeland. “Courts are where your uncle goes to prison, where families are separated from their children, where you can lose your driver’s license in many states still, where even if you don’t go to prison, you pay fines and fees you can’t afford.”

Lauren Sudeall, a professor at Georgia State University College of Law, proposed “shrinking the system” of civil justice in a process she calls “delegalization.” In parallel to the process of “decriminalization” in the criminal justice context, delegalization would remove certain wrongdoing from the civil legal system entirely. For example, under this approach, a tenant’s inability to pay rent might be handled not through courts at all, but through social services or community-based programs.

Such a project—which, Sudeall recognized, is rife with problems and pitfalls—would require new ways of thinking about legal issues. It would also demand new humility from lawyers, who consider themselves to be problem-solvers.

“As it functions, the system is not achieving its own goals,” Sudeall said. “The legal system might not be the right place for some of these issues. Courts might not be the institution best positioned to resolve some of these questions.”

State court leaders and administrators from Alaska, Colorado, Kansas, Michigan, Texas, and Virginia, along with technology providers from 18 organizations, ranging from large, for-profit companies to small, non-profits, came together at Stanford’s d.school on October 14th to take the next steps in Stanford’s Filing Fairness Project. This all-day working session, led by Stanford Law School’s Deborah M. Rhode Center on the Legal Profession and Stanford’s Legal Design Lab, brought together technology providers and court leaders to discuss the future of easy-to-use, multi-jurisdictional efiling tools, particularly for self-represented litigants.

A Tech Summit to Build a Better Justice Tech Ecosystem

The Filing Fairness Project is a multi-jurisdictional effort to improve access to justice by simplifying court filing processes and enabling high-quality form tools for lawyers and litigants. Stanford hosted a kick-off summit in March, where justice leaders came together to plan how to collaborate across jurisdictions and how to scale promising technology initiatives. At the kick-off, court leaders demonstrated their commitment to improving court users’ experiences in finding and using technology tools that can make it easier for a person to file a name change request, respond to an eviction lawsuit, or ask the court to waive its fees.

The Stanford team has also been building a network of technology providers who build case management software, efiling systems, and document assembly tools. To get high-quality justice solutions at scale, there needs to be an improved ecosystem of technology solutions and court infrastructure. Our team has been identifying the stakeholders in the current ecosystem and what they need to improve the quality and reach of their user-facing technology. Starting with our class teams from Stanford’s Policy Lab courses and then continuing throughout the year, we have spoken with technology companies, non-profits, and university labs to identify who is building which technology tools and what they need to build more sustainable, high-performing solutions.

The Filing Fairness Project Tech Summit brought this range of court leaders, advocates, and technologists together to make a clearer plan of how to advance this ecosystem and better serve court users across the country. The Summit was structured around three pillars of possible collaboration: 1) coordinating form fields; 2) streamlining efiling access, burdens, and protocols; and 3) establishing court leader and technology provider partnerships. The Stanford team gave an overview about the national landscape of court technologies and the project’s mission, and Jim Cabral presented on the current efiling software providers across the country. Court leaders and technology providers then went through the three pillars, exploring the next steps for each of them.

For the form field coordination pillar, the Stanford team presented a prototype data dictionary containing multiple states’ form fields in one standardized database. The form field dictionary was designed with several complementary goals. First, technology providers might use the database to understand what fields are used in which forms, and by which jurisdictions. Second, court leaders might use it to examine over-complexity in their forms and compare their approach to other states’ approaches. We also hoped to spur conversation about how a comprehensive database could generally help facilitate cross-jurisdictional tools. Technology providers gave us feedback about how the data dictionary could be useful, potential pitfalls in designing a court-oriented data standard, and what scalability and maintainability might look like. Court leaders gave us feedback about what information—for example, whether a field is truly optional in a given jurisdiction—should be added to the prototype.

For the streamlining efiling pillar, court leaders and technology providers discussed efiling access, burdens, and protocols across the states. Each state presented their existing efiling flow (and how it differed for self-represented litigants and lawyers) to rotating groups of technology providers. States discussed plans for reducing administrative burdens and how technology providers could plug into their efiling infrastructure. This helped technology providers understand the existing burdens to efiling, the similarities and differences from state to state, and the procedural improvements that court leaders are working with our team to make.

Finally, for the relationship building pillar, technology providers and court leaders met in small groups to explore future partnerships. After a lively series of breakout discussions, the broader group reconvened to discuss the top priorities that came up during these smaller conversations. Among other topics, we discussed the importance of finding values-aligned and maintainable business models and providing clarity for technology providers about when, if, and how courts would be willing to promote their tools. The attendees agreed that improving efiling–including for self-represented litigants–is not a problem of technology, but one of encouraging, facilitating, and managing change.

The Next Steps for the Filing Fairness Project

We heard one major piece of feedback throughout the day: these kinds of cross-jurisdictional, multi-stakeholder working sessions rarely ever happen, and they need to happen more. All the different stakeholders were enthusiastic about the Filing Fairness Project’s work to create a more coherent national ecosystem around efiling, user-facing tools, and court infrastructure.

Court leaders and tech providers agreed that there is an access to justice problem for self-represented litigants, and there are clear opportunities to use improved technology to address it. They also agreed that unnecessary filing burdens–a major part of this problem–impact litigants, lawyers, and legal aid organizations alike. Many attendees emphasized the value in getting these stakeholders in the same room and organized around a common goal. One provider put it best: “I’m left with the memory of the amazing day spent with all of you looking at court efiling systems and meeting all sorts of mission-driven organizations and tech providers.”

One of the key goals of the Summit was to build working relationships between court leaders and technology providers in order to identify which kinds of technologies, policies, and other initiatives can help them build better solutions for court users. The Stanford team was delighted to see such active conversations throughout the Summit, and we are following up with individual stakeholders to learn more about where they saw fruitful tool development opportunities, what barriers they still face, and what Stanford can do to facilitate ongoing work.

Stakeholders from both the courts and the technology companies emphasized that the Filing Fairness Project can play an important role in change management. This may include driving discussions to help states standardize their form fields or efiling requirements, including through more research, user testing, and policy-mapping. It may involve working with courts to provide certification pathways for technology providers or to understand how and when the courts can neutrally promote efiling tools developed by the Project’s providers. It may also involve establishing guidance for technology providers around setting up court partnerships or integrations with court technology systems. Our follow-up conversations will help us understand where Stanford can be most useful, and we look forward to communicating progress on these initiatives.

Your Next Steps

If you did not attend the Tech Summit but are interested in participating in the Filing Fairness Project, please complete this Google Form and subscribe to the DLR CLP blog.

Lena Nelson and Jessica Seigel, Co-Presidents of the Stanford’s Plaintiffs’ Lawyers Association (PLA), here. We are guest posting this week to discuss PLA’s recent event co-hosted with the Deborah L. Rhode Center on the Legal Profession. The event, “Debunking the Myth of the Ambulance Chaser,” featured two plaintiff-side attorneys: Alexandra Walsh, JD ‘01 (Walsh Law) and Kurt Arnold (Arnold & Itkin). Professor Nora Freeman Engstrom, co-director of the Center on the Legal Profession, moderated the event.

Plaintiffs’ lawyers have historically gotten a bad rap among lawyers and law students. Lawyers consistently rank the plaintiffs’ bar, and especially the personal injury bar, low in terms of professional prestige. On law school campuses, and especially those of the most elite law schools in the U.S., career services centers have typically ignored plaintiffs’ firms. Career offices often concentrate on corporate practice, funneling students to “big law,” while public interest centers concentrate on government and nonprofit career opportunities. Students seeking opportunities in plaintiff-side practice often find themselves in a career advising no-man’s land.

This is beginning to change. As students seek a more diverse range of career paths, they have begun to express interests in plaintiff-side practice as a “best-of-both-worlds” somewhere between the typical public interest/big law dichotomy. And, in recent years, plaintiff-side firms have started to interview students as part of On Campus Interview programs. But, despite these constructive changes, gaps in information, perception, and opportunities remain.

At the same time as student interest is growing, civil plaintiffs’ practice is itself underdoing several transformations. In 2019, multidistrict litigation (MDL) rose to dominate the federal civil docket, and MDLs continue to compose more than half of federal civil caseloads nationwide. This rise in MDLs presents new opportunities for plaintiffs’ lawyers to serve in leadership positions and to help achieve innovative and fair resolutions to major public health calamities and corporate misfeasance. Also notable is the rise in alternative methods of litigation finance. Although third-party financing is somewhat controversial, it also is possible that new financing options could lower the barrier to entry for new plaintiffs’ lawyers and/or mitigate the risk associated with the work. This could open the doors for interested parties typically nervous about taking on such risk to enter the practice. Diversity issues are endemic to the legal practice, and the plaintiffs’ bar is no exception. When capital and risk are prerequisites to practice, it is no surprise that these inequities have persisted in plaintiffs’ practice. But, plaintiffs’ firms are taking steps to improve the problem. And to some extent, these efforts are bearing out results: the number of women plaintiffs’ lawyers leading complex litigation is increasing.

PLA’s event fell at the center of these two trends: evolving aspects of plaintiff-side practice and growing student interest.

In response to these trends, we’ve focused on growing Stanford PLA this year and fostering discussions around the diverse opportunities, ongoing trends, and new frontiers in plaintiff side practice. PLA’s most recent event featured two plaintiffs’ attorneys, Kurt Arnold of Arnold & Itkin and Alex Walsh of Walsh Law. Kurt has had a long career representing plaintiffs as a personal injury trial lawyer, and Alex recently left a successful career as a corporate lawyer to represent plaintiffs in mass tort litigation.

The event focused on two key issues at the intersection of plaintiffs’ personal injury law and student interest in the practice—the roots of the bias against plaintiff side attorneys, including complaints about frivolous lawsuits, overly inclusive MDLs, and attorney advertising—and students’ growing interest in plaintiff side practice.

Addressing the “myth of the ambulance chaser,” Professor Engstrom asked the panelists where the root of the bias against plaintiff attorneys might come from. The answers among the panelists varied. Kurt focused on lawyers’ frequent discomfort with television advertising, which many view as sleazy and even predatory. But, as Professor Engstrom explained, scholarly research has actually shown that the public’s perception of these ads is quite positive. Indeed, those who file complaints regarding lawyer advertising are usually lawyers themselves. Our colleagues in the legal profession are the ones who view attorney advertising as distasteful. The broader public, including those who may have been harmed by a faulty medical device or a dangerous drug, typically appreciate these commercials. Without them, they may not know the root of their harm, or that they have avenues for redress. Attorney advertising might also expand access to the justice system—a necessary step in a system where most tort victims lack representation.

 

The panelists agreed that some of the bias may also come from a mix of judgment in both the legal community and the general public that plaintiffs’ attorneys are “only in it for the money.” Both have faced this bias, and it seems baked into the career services chasm noted above. Everyone in the discussion admitted that certainly, in limited instances, these stereotypes are true. For instance, in MDLs, one plaintiffs’ lawyer may represent thousands of clients. As the attorney’s client “inventory” grows, the attorney becomes further and further removed from their injured clients. Sometimes, the incentive to settle for plaintiff’s’ counsel is massive, potentially creating a gap between the attorney’s interests and those of their client

Yet, plaintiffs’ lawyers regularly resist these temptations.  Many plaintiffs’ attorneys are often client-oriented. Many seek to serve the public, helping those in need who have been harmed by large corporations—ranging from big oil companies to toy manufacturers to consumer product corporations. While this can be profitable work, few plaintiffs’ attorneys are in it for the money alone, including because the work comes with enormous risk: Working on a contingency can be profitable, but if those attorneys lose, they’ll never see a cent. The panel left one wrinkle undiscussed on this issue—while contingency fee work does allow plaintiffs’ attorneys to take on clients regardless of ability to pay, many attorneys can only take on those clients whose cases can pay. So on one hand, plaintiffs’ lawyers are restricted to the contingency fee model because their clients would otherwise not have representation. While on the other, it limits the cases that they will choose to take. have little choice but to use this model because their clients could not otherwise afford their services. Working on contingency is a massive risk, and one that might be easier for well-established firms. But for an attorney starting out on their own or a new firm trying to build, they can only take those cases that seem likely to yield a high reward.

And finally, the panelists discussed the idea that plaintiffs’ attorneys file frivolous lawsuits. The McDonald’s hot coffee case has branded the profession for (maybe) eternity. Kurt and Alex explained that, though there are few concerns about unmeritorious cases in single-client representation, there are some valid criticisms, particularly in large cases and MDLs. As noted above, as MDLs grow larger, the connection to each client shrinks. In one case against a pharmaceutical company, for example, a few plaintiffs were found to have never even taken the drug. To preserve the integrity of the MDL, plaintiffs’ attorneys must work diligently to screen clients, and the panelists agreed that the requisite thoroughness is sometimes missing.

The event also explored the reasons the panelists ventured into plaintiff side litigation, and why students seeking public interest careers might find joy in the space. Both attorneys talked about the client-focused nature of their work. They each explained the incredible feeling of connecting with a client, and more importantly, fighting tirelessly for that client’s relief. This ranged from single injury cases to mass torts.

Students, in turn, left the conversation understanding both how challenging and gratifying this practice can be. They also left with a deeper understanding of what personal injury practice actually entails: personal injury firms take on clients regardless of their ability to pay, investing in their case in the hopes of compensating them for their losses and deterring corporate actors from injuring others in the future. For students interested in public interest work, but for whom a firm might be the right fit, plaintiff side personal injury practice became a new option and opportunity.

The choice presented to law students has long been “big law” or traditional public interest (government/nonprofit) work. But, for some law students, plaintiff side work presents an opportunity to work in the public interest, broadly defined, while also finding more financial security. Similarly, for those interested in big law but bothered by the clientele or dismayed at the idea of spending their first few years after law school just digging through documents, plaintiff side practice offers an attractive alternative. Not only does the work more closely align with public interest practice, it also provides young attorneys the chance to do more exciting work sooner. Due to the firms’ smaller size, new attorneys at a plaintiff side firm have the chance to write key briefs, argue motions in court, and even go to trial in their first few years at the bar. For those students unexcited by their options in “big law” or concerned about the financial downsides of traditional public interest, this may just be a happy medium. It seems that the evolution of plaintiffs’ practice may coincide with a growing student interest in the “best-of-both-worlds” aspect of the practice.

In September 2022, the Rhode Center announced its Civil Justice Fellows Program by welcoming its inaugural group of student fellows.  As the work of the Rhode Center expanded dramatically over the past year, we saw multiple opportunities for students to engage in our cutting-edge work and contribute in critical ways to the research of the Center.  We are pleased to welcome seven extraordinary students in our first cohort and look forward to working with this group of truly outstanding students over the next year.