In Forma Pauperis

On one fateful day in Florida a man named Clarence Earl Gideon broke into a poolroom with the intent to commit a misdemeanor.[1] This action constituted a felony in the state of Florida, and the man was charged with the crime. After being arrested, Gideon requested the assistance of counsel in his case. Gideon’s request for counsel was denied by the trial court, and Gideon went on to represent himself in his proceeding.[2] As a layperson, he put on his best defense. Gideon made an opening argument, performed cross- examinations, presented his own witnesses, refused to testify himself[3], and even made a closing argument. Alas, his greatest efforts were unsuccessful, and he was found guilty and sentenced to five years in prison. But, this is where the story begins.

            On appeal to the Supreme Court Gideon argued that his rights were violated by not being appointed counsel. Ironically, for this appeal Gideon was appointed counsel because he was acting in forma pauperis[4]. The Court found in favor of Gideon saying, “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.”[5] In every criminal case a litigant is guaranteed counsel.  In civil matters, however, Gideon does not apply. Hypothetically, if a person were to violently rape and murder 17 women, 8 men, and a goat, that individual would be guaranteed an attorney to ensure justice. Yet, if a mother of 4 was wrongfully evicted from her home and subsequently lost custody of her children, that mother would not be guaranteed the same protection from the system.

            The University of Baltimore School of Law Sayra and Neil Meyerhoff Center for Families, Children and the Courts’ Truancy Court Program (TCP) uses a holistic approach to address the problem of truancy in Baltimore City schools. Truancy is often not the major problem but is a mere symptom of a deeper issue. Every known aspect of a student’s life is taken into account in order to offer services to the child and to the child’s parents, thus alleviating underlying causes of truancy. One of the services provided by the Truancy Court Program is limited legal advice concerning the child and the child’s living situation. Common issues that these families face are the need for creation or enforcement of an Individualized Education Plan (IEP), homelessness, drug abuse, and poverty. The TCP gives a select few families access to invaluable legal advice that these families may not have access to otherwise. For example, a parent or child may reveal at the TCP session that they are homeless. With assistance from the TCP, students have received assigned “yellow bus service” or school provided cab service to commute to and from school.[6]

            The lack of a Civil Gideon[7] in our court system has caused many to question the true legitimacy of the legal process, especially for those who cannot afford an attorney. Projects like the TCP help to mitigate the damage that the pro se[8] problem creates, and this impact must continue to expand and intensify until the system is corrected. Remember that the highest court in the nation recognizes that even the educated layman will do little better than clumsily stumble through the system without representation, and then consider that the majority of pro se litigants are unrepresented because they cannot afford an attorney. The conclusion that you reach is that the pro se problem disproportionately impacts the low income community, those who often need representation the most. The only things that overshadow barriers to justice presented in cases between two pro se litigants are the barriers to justice facing a pro se litigant who must argue against a represented party.

            When discussing pro se litigants, it is also important to recognize that many people without access to legal minds may never know how or why to get into court to begin with. While participating in the TCP, I have learned from our attorneys that there are specific requirements for IEPs and for those experiencing homelessness. This knowledge was also communicated to  parents, who are then able to put that knowledge to work.

            In an ideal world the TCP would not be necessary, because everyone would have access to legal representation. We do not live in an ideal world, however--in fact far from it.  So we must work to move closer to a more perfect world. An examination of just one of the many needs that the TCP fills shows just how important the services the TCP offers are to those that it serves. Hopefully, the program will continue to grow and expand not only in Maryland but also in the other 49 states of the union until we can say that we finally have a truly perfect union.   

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[1] For a full review of the case, including facts and holdings, please see Gideon v. Wainwright, 372 U.S. 335 (1963).

[2] The trial judge explained to Gideon that the laws of Florida required representation in cases concerning capital offenses.

[3] In criminal cases, the defendant has the right to refuse to testify under the Fifth Amendment of the United States Constitution. This is quite often in the best interest of the defendant for many reasons.

[4] In forma pauperis is Latin for “in the character or in the manner of a pauper”

[5] Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963).

[6] For insight into issues with transportation in Baltimore City Schools please see CFCC blog entry “The Wheels on the Bus and the Truancy Court Program” by Samantha Sammartano posted Friday, November 7, 2014 at 12:47 pm.

[7] “Civil Gideon” is the right to an attorney in civil cases. This right has yet to be established.

[8] “Pro se” is Latin meaning “for self.” It is the term used to describe litigants that are not represented by counsel.

 

Family Law Attorney Panel Discussion

This semester through my participation in the Sayra and Neil Meyerhoff Center for Families, Children, and the Courts Student Fellows Program, I was able to meet a panel of successful and enthusiastic Maryland family law attorneys. The panel of attorneys was able to provide insight into their experiences in a career field where their work often does not receive the recognition and praise that it deserves. The attorneys provided unique perspectives into their journeys to the practice of family law and useful words of wisdom. Some always knew that they wanted to practice family law, while others began practicing in other areas of law until family law chose them. Each panel member added valuable perspectives to the discussion, and it was a breath of fresh air and reassurance for me as a second-year law student with a passion to help others through child advocacy and family law.

From the panel discussion, I also gained a better understanding of how family law attorneys dedicate their careers to advocate for broken families and how they often meet their clients at the lowest points in their lives. Seemingly for some clients, the attorneys are a lighthouse in a hopeless sea of never-ending issues, including domestic violence, poverty, child custody, and divorce. The attorneys transform their clients’ lives and provide them with the peace of mind that they will work for them to resolve their issues. I listened as the panel described how they work long hours but expressed just how rewarding it is to impact the life of someone else in a way that is life-changing, whether it is helping a distraught woman get out of an abusive marriage or assist a deserving parent to gain custody of their children during a nasty divorce. I walked away from the panel feeling empowered and enthusiastic about the career path that I chose and with a better understanding of the importance of the work of family law attorneys.

Whenever I express my interest in becoming a family law attorney to others, the usual response I receive is “Why? You will not make any money.” Through this panel discussion and my experiences in child advocacy and family law thus far, I am persuaded that there is no way to put a price on the ability to make a substantial difference in the lives of children and families in crisis.

Dealing with Feelings of Inadequacy in the Truancy Court Program

Each week, law students involved in the University of Baltimore School of Law Sayra and Neil Meyerhoff Center for Families, Children and the Courts Truancy Court Program (TCP) discuss at the weekly team meeting each of our TCP student’s cases and the deeper issues that students may be experiencing that result in truancy.  This past week one of my fellow law school classmates bravely expressed that he feels inadequate to help the TCP students.  We see these students once a week for an hour, and we talk about their goals, problems, and possible solutions, but is it helping?  My classmate’s comment struck me because it’s a feeling I have from time to time.  Some of the TCP students have issues that are hard to find solutions to, including illnesses in the family, poverty, and overcrowded houses.  In these situations, what can we as law students do?  One of my TCP student’s mothers was diagnosed with cancer, which required the student to miss school a few times last year.   Situations like that are problematic because there is no quick and easy solution.  Even with the “simpler” issues, such as being disruptive in class or poor grades, we direct the TCP students to coach classes and encourage them to get help.  Nonetheless, there is always the lingering feeling that the work we do for the TCP students is not helping them.

I find myself not only wanting the TCP students to end their truant behavior, but I also want them to become scholars and leaders in their community--especially with the group of TCP students I have at Reginald F. Lewis High School.  I see so much potential in these students and would love to see them achieve their short-term and long-term goals.  Realistically, however, I understand that the students face so many hurdles, some of which are beyond the reach of my ability to assist.   It’s a good feeling when we see the TCP students absorbing what we say in our one-on-one meetings at the TCP sessions, but I struggle with the thought, what happens when we leave?

In response to my classmate’s comment in our meeting, one of the TCP staff members simply stated, “We help the students more than we know.”  It is so easy to feel as though you are not doing enough because some of the tougher problems are not solved immediately.  I didn’t take time to consider, however, that my presence is helpful.  For some of these students, the TCP provides the support and attentiveness they do not receive anywhere else.  That statement put things in perspective for me.  Nothing great is achieved overnight, and you never know how your actions may be positively affecting another person.  Naturally, I still want the TCP students to end their truancy and achieve their goals, but I understand that things take time and that my help is not in vain.  I look forward to continuing my work with the TCP because it is a huge step in the right direction for the students involved.

Collaborative Family Law Works

Collaborative family law is a non-traditional type of dispute resolution that focuses on the unification of the parties in an efficient and therapeutic manner.  Unlike the traditional litigation process, collaborative law negotiations occur outside the courtroom and commit to cooperation and honesty.   This commitment to transparent communication encourages parties to work together toward a mutually agreeable settlement.

The traditional collaborative law model consists of an  attorney for each client, who agree to work together with the parties toward a single goal of reaching a fair settlement.   Furthermore, each attorney can consult experts,  such as a child or financial specialist, to further advance the transparency of the negotiations.

Unlike mediation, each client’s lawyer is present during settlement and can provide legal advice during face to face negotiations.  The term “fair” is used because both parties must agree before a settlement is reached. Consequently, parties are more satisfied with their decisions because they are in control and are not solely relying on a judge’s interpretation of their family’s dispute.

Secondly, unlike most litigation, collaborative law takes into account the present and future needs of the clients.  Here, clients can schedule meetings without waiting for court dates, which often can require long waits before hearings.  This delay in litigation can create new issues for the  litigants. 

Moreover, unlike other settlements, which can occur under the threat of  litigation, collaborative law eliminates the adversarial element by requiring both attorneys to withdraw from representation if an agreement is not reached. This encourages each party to disclose privileged information, which cannot be used during  any necessary litigation, in a setting which preserves the privacy of each party. This privacy element is often key to restoring and keeping communications open in family disputes.  Many attorneys, however, believe this requirement to withdraw  is a barrier to the widespread practice of collaborative law.  Withdrawal of representation and requiring parties to hire new attorneys causes inflated legal costs and eliminates the  lawyers’ familiarity with the case. 

In summary, one must remember that collaborative law is only one method to resolve family legal disputes and may not be the correct approach for everyone. This is especially true in cases involving domestic violence, as these often  require a resolution by a judicial officer.

Family Courts and Assessments for American Family Improvements

There is a profound distaste for the harsh realities that have settled among a number of poor families, children, single parents, delinquent teens, gay and lesbian couples, and abused spouses. Tomorrow a child in Georgia will be placed in the state’s custody and a family in Chicago will be completely dismantled through a divorce settlement. People all over America are affected by the legal challenges that can arise out of family relations. In 2013 family and juvenile cases made up nearly 130,000 of the 271, 000 cases presented in Maryland’s state courts.[1] That is nearly half of the state court filings, and these numbers represent a similar pattern for state courts across the nation.

While we may have laws and policies to improve the issues, there is a lack of emphasis on providing a comfortable setting that encourages positivity and can essentially lead to a more acceptable outcome for the families and children involved. The court house, for many families confronting their legal issues, can be frightening and traumatic, and not everyone has the means to sufficiently cope with their problems. Thus, it is important for us to have standards for each individual with direct contact or influence on the family members involved in a legal proceeding.

In 1999 judges within Maryland’s Family Division began an effort to improve the court’s effectiveness and partnered with other legal professionals to establish a set of performance standards and measures for Maryland family courts.[2] This team also created a specific mission statement that established a foundation for some of the following goals and values:

·         Stabilizing families in transition

·         Promoting co-parenting relationships

·         Fostering parents as primary family decision-makers

·         Maximizing the use of alternative dispute resolution methods and programs

·         Providing safety and protection

·         Preserving family relationships where possible

·         Supporting linkages between resource needs and available resources on behalf of parents and their children

 

The performance standards and measures were established for those individuals servicing families within the court house and for others who have direct contact with the families regarding their case. These standards sought to improve the quality of service for these fragile families and in the end provide the highest quality of care.2 I agree with the implementation of these standards because I believe that families experiencing legal issues should be approached with consideration, compassion, and care. It may be difficult to completely overcome the “win or lose” effect of a court proceeding, but, with these standards, we can offer hope in an otherwise seemingly hopeless situation.

 

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[1] http://mdcourts.gov/publications/annualreport/reports/2013/fy2013statisticalabstract.pdf

 

[2] http://www.courts.state.md.us/family/publications/performancestandards.pdf

 

Applications of Human Development to Truancy

In administering the Truancy Court Program (TCP), the Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC) applies one of its founding philosophies, the ecology of human development, to a real-world setting. The ecology of human development focuses on four different systems that effect affect a child’s daily routine, though children may not be aware of all of them. Those four systems are:

            • the microsystem: where children have contact with those influential in their lives (siblings,
               parents, teachers)
            • the mesosystem: relationships and connections between microsystems (home-school, etc.)
            • the exosystem: where children don’t participate but where significant decisions are made 
               affecting child and adult (choice of employment)
            • the macrosystem: the blueprints for organizing the institutional life of a society

TCP is uniquely suited for such a philosophy, as both its in- and out-of-school components factor into at least one of the above systems. The ecology of human development complements CFCC’s other underlying philosophy, therapeutic jurisprudence, to achieve goals across all system levels.

CFCC Student Fellows and staff join faculty from participating TCP schools to interact with program participants at the micro level. In weekly meetings, they assess problems occurring between the home-school relationship (mesosystem) that cause students to arrive late to school or not at all. These problems frequently involve a lack of communication at the micro level between parents, students, and teachers. A deficiency in communication can lead to misunderstandings between participants, which eventually blossoms into distrust of the school system at the meso level. Events at the micro level, therefore, greatly affect what goes on up the chain, which is why the TCP’s on-the-ground approach is so important. The home-school relationship is quintessential to what the TCP does, but there are other important relationships? Can you think of anything else?

The data-gathering component of the TCP can influence policymakers in the exosystem to make changes that attempt to eliminate the types of barriers to school attendance over which children have little control, such as transportation. Lack of site-specific transportation and reliance by children on general public transit systems is a good example of an early exosystem problem the TCP has encountered.  A parent’s choice of employment is another, more private example of an exosystem issue that can affect a child, as a parent who works far away from the school, or who also needs to take public transportation, may be unable to ensure that their child gets to school on time.

Finally, the macrosystem is the farthest we can pull back from the TCP table, and, thus, it is what the program has the least power to influence. Participation in the TCP by local judges and its public funding may relate to the program’s impact at this level. While the TCP has its greatest influence at the microsystem and mesosystem levels, it is at the macrosystem level where aggregate change begins to build up, and where, hopefully, the seeds of change planted at the other system levels will be nurtured by policymakers as well as by parents.

The Therapeutic Side of Law

One of my apprehensions in committing to law school was the adversarial process and the impact on families and children in the judicial process.  The Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC) Student Fellows Program has been instrumental in reassuring me that my pursuit of a legal career was the right decision.  Throughout this semester, my colleagues and I have learned a different side of the law grounded in Therapeutic Jurisprudence (TJ) and the Ecology of Human Development.  TJ is a holistic approach that aims to address the legal and non-legal issues of clients while incorporating interdisciplinary methods to address the root issue(s) and providing the necessary resources to empower clients to regain ownership of their lives and problems.  The Ecology of Human Development looks at each litigant’s environment individually to customize a solution to fit their individual needs.  

These brand new concepts and programs were introduced to us through classroom discussions, guest speakers, and (my personal favorite) field trips to see these concepts in action!  From guest speakers and visits to the Unified Family Court to seminar topics dealing with Preventive Law, Court Reform in Family Law, Collaborative Law, the Juvenile Justice System, and Problem Solving Courts, the CFCC Student Fellows have been exposed to a hidden side of law that I suspect is concealed from even most practicing attorneys. 

This year also marks the fifteenth anniversary of the creation of Maryland’s Family Divisions.  While this major milestone deserves a celebration (stay tuned for a date), it is also a reason to pause, reflect, and assess the implementation of the mission and goals of the Family Division.  My CFCC project this semester was to assist in planning the fifteen year celebration, including analyzing survey results from Circuit Court Judges and Masters to learn about their attitudes and court practices with respect to addressing the needs of families and children in the family court.  The mission of the Family Division is to provide comprehensive services early on in the litigation process to improve the lives of families and children who appear before the court.  Preliminary survey results indicate that while judicial officers find it important to have and integrate interdisciplinary solutions, the implementation is lacking.  To see the concepts we’ve learned all semester being recognized and requested by the judiciary is encouraging.    

As we wrapped up this semester last Wednesday, I realized how influential this class has been to me.  This class has taught me to practice law more holistically, which not only will benefit clients but additionally will reassure me that I can make a substantial impact in the lives of my future clients.  I truly believe the experience and concepts of the CFCC Student Fellows Program should be integrated throughout the law school curriculum so that all future lawyers are trained to practice law more holistically.  Until then, I encourage my fellow students at UB Law to take advantage of this fantastic opportunity and enroll in the CFCC Student Fellows Program I to learn about the therapeutic side of law.