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Change in the Works: Courts, clinics, and the challenges of access during a pandemic
“Make no mistake—we will never go back to the way things were in our courts before COVID-19,” says Massachusetts Trial Court Chief Justice Paula M. Carey ’86, “and we are doing everything in our power to make sure that is a good thing. We have an incredible opportunity to improve access to justice for lower-income, under-resourced, and historically marginalized communities.” Securing this outcome will require new and accelerated initiatives by the courts and the legal community to analyze the root causes of inequities, reconceive methods of engagement, and rebuild trust in just outcomes. The short-term challenge, however, is to keep courts operating safely under pandemic-related precautions without compromising that larger vision.

New options for remote business

When stay-at-home orders and limitations on in-person business activities took effect, the trial courts quickly transitioned from in-person operations to the virtual handling of a wide range of emergency proceedings. New permissions for electronic signatures, for example, enabled judges and clerks to efficiently issue court orders. Litigants were empowered to file pleadings remotely and serve documents to opposing parties via email. To encourage wide adoption, the Supreme Judicial Court (SJC) temporarily waived electronic filing fees for indigent parties.

“We launched additional support tools early on to help litigants navigate the new landscape of virtual courts,” Justice Carey says. “We staffed a new centralized telephone help line with court employees to field general questions about pending civil and criminal cases. We also established new email addresses for more than 100 courts to expand access for people seeking information about their proceedings.”

The courts ramped up their use of live video platforms, too. “We’ve had virtual conferencing for years,” Justice Carey notes, “but adoption was far from universal. Now, all of us in the courts system are becoming experts on Zoom. We’re harnessing the power of video tools to support live hearings, real-time breakout sessions, and individual attorney-client consultations.” At the same time, Justice Carey and her colleagues are mindful that many individuals with business before the courts don’t have access to the necessary technology. “We don’t want the widespread adoption of these tools to exacerbate the already troubling divide between the haves and have-nots.”

Ramping up community outreach and assessment

In recent months, the Massachusetts Trial Court has gone on the road—virtually, of course—to spread the word about interacting with the courts under COVID-related restrictions for physical distancing. In communities such as Chelsea, Lawrence, Brockton, and Worcester, court personnel have partnered with mayors, town administrators, and community health and housing officials to share information about when, where, and how individuals can access the legal system. At the same time, public and nonprofit service providers are supplying details about available food, medical, employment, and housing assistance programs.

Justice Carey and her colleagues also are working to identify spaces in individual jurisdictions where litigants without access to technology can safely participate in Zoom hearings—local libraries, for example, or courthouse resource rooms. “We’re even providing remote training for people who could connect with us via their mobile phones,” she says. “The bottom line is that we are trying to be much more creative about how we engage with the communities we serve. If we can connect people to services that help stabilize their lives amidst this crisis, they stand a much better chance of having a productive interaction with the court system.”

New opportunities for confronting systemic racism

One of the Trial Courts’ most far-reaching initiatives is a series of community conversations around racism within the legal system. “We know that we’re not where we should be in the staffing of the courts,” says Justice Carey. “Despite considerable effort, we’ve yet to achieve the diversity we need in the ranks of the judiciary. We also need to hear more from Black and Brown individuals who view the system more negatively and, as a result, are reluctant to participate.”

Justice Carey believes that law schools and law students will play a key role in confronting systemic racism. “I hope students are motivated by recent events to learn more about the history of institutional injustice in our country, and that they will use that knowledge to tackle the root causes,” she says. “At the same time, they have the opportunity to change the narrative with every client interaction they have—as we all do. Gaining cultural competency, providing excellent legal service, and truly understanding the distinct hurdles and stresses confronting individuals of color are essential to remedying the injustices caused by racism in our nation.”

Students Working In Clinic Pre PandemicClinics pivot to urgent projects

In the early days of the pandemic, programs in New England Law’s Clinical Law Office as well as its thirteen legal externship specialties were completely upended. “Our externships depend heavily on the operation of outside law offices,” explains Russell Engler, Professor of Law and Director of Clinical Programs. “COVID-19 hit in the middle of our spring semester, and firms that were hosting our students temporarily had to stop what they were doing and reimagine their law practices.”

Engler and his clinical law colleagues went to work immediately to tap their extensive networks in the legal and access-to-justice communities to locate active projects that could replace assignments that had been halted. “Many of our students needed clinical hours to graduate in the spring,” Engler says. “The new activities had to be remote and adequately supervised to qualify. As it turned out, the crisis created new opportunities—consulting with clients via Zoom, analyzing emergency court orders, researching new guidelines and privacy questions, conducting remote negotiations—and we were able to get everyone across the finish line.”

Engler notes that in planning for the fall semester, the keys were flexibility and customization. “We identified a number of relevant subject areas where the client needs were high—unemployment, housing, healthcare, custody, and visitation, for example—and we tackled the ones that were appropriate for our in-house clinical law office.”

As school began, the New England Law clinical faculty conducted one-on-one meetings with students to determine the best option for each individual. “Our students’ lives are wonderfully diverse, and their placements must respect that diversity,” says Engler. “Some can’t work remotely and need in-person hours in the school’s law office. Others need to work from their remote locations to accommodate personal health issues or family circumstances. We’re committed to finding the right opportunity for each student and keeping every person’s educational journey on track.”

What the future could be

“From the standpoint of legal practice, the twin crises of COVID-19 and racial reckoning offer wonderful opportunities for systemic change,” says Clinical Law Professor Caryn Mitchell-Munevar ‘98. “Clinical students today will be on the frontier of long-term change. The skills they learn during the pandemic and the insights they gain from the communities they serve will lay the foundation for what could be a much brighter future for equity in the justice system.”

Key, in Mitchell-Munevar’s view, is how well lawyers, court officials, and community organizations listen to the individuals they serve. “I don’t think the legal profession or the justice system should be relied upon to equitably determine the needs of historically underserved and disadvantaged litigants. Instead, we need to create opportunities for people to share their stories, whether in online community forums, client consultations, or judicial outreach initiatives.”

A holistic approach to client service

Mitchell-Munevar is proud of the fact that clinical students at New England Law learn to support the whole person when providing legal services. She cites a recent case of a survivor of domestic violence who was seriously injured when she and her then-husband were living in an apartment owned by her in-laws. “On one level, the survivor’s immediate legal needs were for a restraining order, criminal complaint, and divorce proceedings,” says Mitchell-Munevar. “Her deeper needs included protection from eviction, safe housing, and counseling. In addition to securing her divorce, we were able to partner with the Greater Boston Legal Services housing unit to connect her with those other essential services.”

The pandemic also has highlighted the need for students and attorneys to exercise self-care in the face of compelling client needs. “Most of us chose legal careers because we wanted to help people,” says Mitchell-Munevar. “As instructors and mentors, we’ve embraced that spirit and trained our students to show up and do the job. Now, we need to adjust that mindset and remind each other to stay home when we have a sniffle or sore throat—not only for ourselves but to protect our clients from the risk of exposure. Fortunately, the new technologies we all are mastering enable us to err on the side of caution and complete our work safety.”

Calling on alumni to be the change

When asked how New England Law alumni can help, Chief Justice Carey, Mitchell-Munevar, and Engler are united in their advice. Assist legal aid organizations in identifying gaps and loopholes in the needs of self-representing individuals. Create and disseminate materials that help self-representing litigants navigate virtual hearings. Volunteer with a Lawyer for the Day program. And find creative ways to employ and mentor digitally-savvy students who can contribute to forging the new methods of practice needed during and after the pandemic.

“We are on the threshold of massive technological and cultural change,” says Engler. “New England Law, through its students, faculty, staff, and alumni, is well-positioned to serve the legal and access-to-justice communities in the way that teaching hospitals serve the medical community. If we bring empathy and humility to our work, we can use our positions of power for good and help engineer the change we seek.”
 

This piece was originally published in the 2020 Edition of The Bridge, New England Law's Alumni Magazine. Flip through a digital copy of the edition: here.