Page 17 - Impact: Collected Essays on the Threat of Economic Inequality

legal professionals to treat the legal and social services issues of impoverished communities holistically . The most significant challenge is to change a justice system that is rooted in tradition, but requires change to meet the needs of the public . The final section of this essay makes suggestions on how to meet some of the challenges .
Meeting the Challenges
As long as millions of individuals appear in court with low literacy skills and limited English proficiency, and without attorneys, an adversarial system is unjust . An adversarial system by definition presupposes that both parties have advocates who are able to present their cases to a person who will primarily remain neutral and passive .51 The system is built more on winning than the search for the truth .52 An unrepresented individual who doesn’t understand procedure or substantive law has little chance of winning or airing the truth, particularly if the judge is passive .
There is little chance that our system will evolve completely to another type of justice system, but some changes can assure more justice in the present system . Liberal interpretation of pleadings would allow individuals to have their issues heard . Open and mandatory discovery would provide more information for fact finders to discern the truth . Relaxed procedures and rules of evidence would ease the process for unrepresented litigants .53 A neutral but engaged judge in place of a passive one could insure more justice .54 The judge should explain how the settlement conference, hearing or trial would proceed, tell both sides what is needed to establish their claims, and ask questions .55
Simplification of the system will benefit low-income individuals by making the system more understandable . It would also make litigation less expensive .56 Procedures must be simplified and streamlined . Forms must be offered for use by the public both in print and online . These forms and applications must be written in plain language and on a fifth grade reading level to reach most litigants . Forms should be translated into languages prevalent in the community . Online interactive programs can provide guidance in filling out forms and can have an oral component which can be translated into different languages .57 Courts should offer more audio opportunities for low literacy litigants to hear information and receive directions . Court decisions and orders should be written in plain language and, if feasible, be delivered orally as well . Lawyers must be trained in law school to write in plain language and be prepared to deal ethically and effectively with culturally diverse, low literate, unrepresented adversaries . Legislatures should strive to pass plain language laws .58
51 Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 ohio sT. l.J. 713, 714-740 (1983).
52 Id.
53 cynThia gray, reaching ouT or overreaching: Judicial eThics and self-represenTed liTiganTs (2005), available at http://
www.courts.ca.gov/partners/documents/ReachingOutOverreaching.pdf.
54 naTional cenTer for sTaTe courTs, module a: Judges, eThics, and The self-represenTed liTiganTs-The law Today (2013),
available at http://www.ncsc.org/~/media/Microsites/Files/access/Module%20A%20Guide%20Draft%208-8-13.ashx.
55 Id.
56 Richard Zorsa, Some Thoughts on Court Simplification: The Key to Civil Access and Justice Transformation, 61 drake l. rev. 845 (2013); naTional cenTer for sTaTe courTs, rules and process simplificaTion, http://www.ncsc.org/ microsites/access-to-justice/home/Topics/Rule-and-Process-Simplification.aspx.
57 See new york sTaTe courTs, diy forms, https://www.nycourts.gov/courthelp//diy/index.shtml.
58 Plain Writing Act of 2010, 5 U.S.C. § 8301 (2010).
The Challenge of Economic Inequality
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