Increasing Access to Justice for the Elderly and Others: The Illinois Experience

Vol. 24 No. 1

By

Jeffrey D. Colman, a partner at Jenner & Block in Chicago, is a litigator and co-chair of its Professional Responsibility Practice. He is a member of the Illinois Supreme Court Commission on Access to Justice, and he has been active in a number of other efforts designed to increase access to justice in Illinois.

Danielle E. Hirsch is the assistant director of the Civil Justice Division of the Administrative Office of the Illinois Courts, which is charged with improving access to the state’s civil justice system. She previously served as executive director for the Illinois Supreme Court Commission on Access to Justice and remains its liaison from the Administrative Office of the Illinois Courts.

In most civil cases, a person does not have a constitutional right to legal representation, even though civil legal proceedings can affect fundamental matters such as guardianship, placement in nursing homes or assisted living facilities, custody of children or grandchildren, and physical safety and shelter, to name just a few. Many people—because they lack the financial resources to hire a lawyer—are forced to navigate the civil legal system unrepresented and alone, too often with negative consequences. People are often unrepresented, not only because of financial reasons, but also because they do not know they have legal rights or that a lawyer can help them. The consequences of unaddressed civil legal problems can be devastating and can spill over into other aspects of life. For an older adult with limited resources, for example, losing disability benefits can lead to homelessness. And if a senior citizen with limited resources is unable to secure legal protection from an abusive relationship, he or she may face a dangerous living situation and financial insecurity and instability.

According to a 2013 report from the Economic Policy Institute, nearly half of all senior citizens in the United States are economically vulnerable and have incomes that are less than two times the supplemental poverty line. This report underscores how economically vulnerable older adults are—particularly women and people of color—and how senior debt levels are reaching records levels. In Illinois, as is true across the country, many older adults are struggling to make ends meet and provide for some of their most basic needs, including their legal needs. This article outlines some of the ways that the Illinois Supreme Court and its Commission on Access to Justice have tried to increase access to justice for low-income elderly and people disadvantaged in other ways in Illinois.

First, as background, the Illinois Supreme Court Commission on Access to Justice (the Commission) was founded by the Illinois Supreme Court in June 2012 to recommend improvements to the judicial process, and particularly to recommend ways to improve access to justice for the poor and vulnerable in our communities. Illinois is one of 30 states that have access to justice commissions bringing together the courts, private bar, civil legal aid providers, clerks of court, law schools, and other partners to address barriers to civil justice for low-income and other disadvantaged people. The Illinois Commission has proposed, among other things, the development of standardized forms in many areas of law; organized conferences to bring together interested stakeholders; and advocated for rule changes, policies, and programs it deems necessary and appropriate for enhancing access to justice in Illinois.

The Commission has 11 members representing geographically diverse areas across the state: five judges (including trial court and appellate judges), five attorneys (including lawyers practicing in large and small law firms, solo practitioners, and legal aid providers), and one nonattorney clerk of court. It has many committees and advisory groups making recommendations in important substantive areas, including court guidance and training, language access, and promoting pro bono work and developing standardized forms. One of the Commission’s key goals is to bring together important constituencies to discuss how their existing work intersects with access to justice issues. It has, for example, a Deans Advisory Committee, Government Lawyers Advisory Committee, and Corporate Counsel Advisory Committee. It also has hundreds of volunteers who serve on the different committees. In its first two years of existence, the Commission has provided focus, coordination, recommendations, and new energy for efforts to improve access to civil justice in Illinois.

Challenges to Accessing the Civil Justice System

Last year, the Commission hosted five listening conferences across Illinois to engage with judges, clerks of court, legal aid lawyers, members of the private bar, law librarians, law students, social service providers, and bar leaders to discuss access to justice. More than 500 people participated, including justices of the Illinois Supreme Court from each appellate district. Common themes emerged that have informed our work and helped us identify challenges facing our civil justice system and many potential solutions, as well.

It is clear that low-income, elderly, and vulnerable people face significant obstacles in the civil legal system. Many do not receive, among other things, assistance with their civil legal needs because they are unaware of their legal rights; lack confidence in enforcing those legal rights; do not have knowledge about available legal aid services or cannot find a legal provider able to help; have physical or cognitive disabilities; do not speak English fluently; have poor literacy skills; and/or have difficulty getting to a lawyer and court because they are geographically isolated.

People Who Live in Poverty

In Illinois in 2013, a Heartland Alliance Social IMPACT study found that approximately 15 percent of Illinois residents are living in extreme poverty. Extreme poverty was defined by reference to the federal poverty line, which in 2010 was set at $11,344 for individuals under age 65, $10,458 for individuals over age 65, and $22,113 for a family of four. In addition, the report held that another 16 percent of Illinois residents are living in poverty or near it. Thus, almost one-third of the Illinois population is living in poverty or could be classified as low-income. Legal aid services are generally only available for those making up to 125 percent of the poverty line (in today’s dollars: $24,641 for a family of four).

In Illinois and much of the nation, the biggest increase in the number of people living in poverty from the 2010 census occurred in suburban areas around urban centers. As a general matter, many of the new poor are living in formerly middle-class households dragged into poverty by unemployment, underemployment, foreclosures, and uninsured medical costs.

People living in poverty are more likely to experience a number of different legal problems and often have trouble obtaining legal representation or otherwise accessing the civil court system to protect their homes, families, or livelihoods. For example, they are more likely to rent than own their homes, and several studies indicate that renters experience more legal problems than homeowners. Moreover, people with low incomes are often dependent for survival on public benefits, and eligibility for public benefits issues are often urgent and common.

People Who Are Elderly

The growth in Illinois’s aging population has led to an increased awareness of the special needs of older adults and the impact of the law on them. In addition to the barriers experienced by the poor, generally, the low-income elderly population confronts its own set of challenges. Their legal issues arise in the context of housing and long-term care, abuse and neglect, consumer exploitation, grandparent custody and visitation, estate planning, public benefits, Medicare, services for homebound seniors, and insurance issues. The ability to address those problems may be impaired by lack of physical access to, or awareness of, legal resources due to limited mobility, decreased physical and mental health capacity, and lack of knowledge regarding computers or the Internet.

People Who Are Disabled

People with disabilities face many of the same legal issues as everyone else, but their disabilities also give rise to unique legal problems and obstacles in the civil justice system. Physical access to legal services is the most obvious obstacle. There are also communication barriers. For example, courts and legal aid providers may not be fully equipped to communicate with people who are deaf or hard of hearing, provide the particular services needed by people who are blind or sight-impaired, or offer necessary accommodations for those with mobility impairments. People suffering from mental illness may also feel stigmatized, which in turn may affect their ability to represent themselves or obtain legal help.

People Whose Proficiency in English Is Limited

According to the 2010 census, more than 21 percent of Illinois residents have limited English proficiency. People, and especially seniors, with limited English proficiency face additional barriers in entering and navigating the justice system. Like individuals living in poverty, individuals with limited language skills are often unaware of their legal rights and responsibilities and do not know where to turn when they have a legal issue. When people who do not speak English well go to court, they often cannot communicate about or understand what is happening without language assistance. Moreover, certain cultural influences, concerns about immigration status, or a lack of underlying documents may leave them reluctant to seek redress.

People Whose Literacy Is Limited

Many studies across the country have found a direct relationship between low literacy and unemployment: the typical adult with low literacy skills is likely to live in poverty. Many tools that courts and legal aid providers use to educate the public are simply ineffective in reaching people who are illiterate or nearly so. Brochures, pamphlets, and standard, simplified forms offered by court and legal aid websites for self-represented litigants are of little or no assistance to people who cannot read them.

People Who Are Geographically Isolated from Courts and Legal Aid Providers

Poor people in Illinois’ rural areas face the same kinds of legal problems faced by the urban poor and others, but they also have distinct needs. Fewer legal aid lawyers practice in rural areas than in urban areas, and few private lawyers and pro bono volunteers fill the gaps. Inadequate public transportation makes access to legal services or attendance at court difficult, especially given large distances between courts and legal aid offices typical of rural areas. Geographic isolation and lack of available legal aid services make it particularly difficult for rural seniors to receive services, including those needed to maintain independence.

Some Solutions to Access-to-Justice Barriers

Many of the problems discussed above are longstanding and not easily remedied, but this is not an excuse to permit those access-to-justice barriers to persist. Rather, we have engaged all those involved in the Commission’s work to come together to address these challenges. The following discusses some of the resulting proposals.

Standardized Forms and Instruction Sheets

Illinois has never had statewide standardized forms for use by litigants—whether represented by counsel or not—in basic areas such as uncontested divorce, change of name, mortgage foreclosure, basic procedural matters, and expungement and sealing. The lack of standardized forms in plain language and clear instruction sheets have been consistently identified as a major obstacle for poor and unrepresented litigants, including elderly litigants. As a result, in 2012, the Illinois Supreme Court adopted a rule and an administrative order that set forth a procedure for the development of statewide standardized forms. The Commission’s Forms Committee and the Administrative Office of the Illinois Courts (AOIC) are working with more than 60 volunteers and the legal aid organization Illinois Legal Aid Online to create forms in a variety of areas of law that will soon be available statewide.

Language Resources to Assist Litigants with Limited English

The Commission, its Language Access Committee, and the AOIC are addressing challenges the civil legal system faces in trying to serve a growing population of people with limited knowledge of English in Illinois. First, the Illinois Supreme Court approved the Commission’s proposed circuit court language access plan template that identifies court-based programs and services to serve such litigants. The AOIC is working with the 24 circuits across Illinois to complete circuit-wide language access plans. Second, the Commission is working with the AOIC to draft a proposed language access policy to accompany the plans that, if adopted by the Illinois Supreme Court, would set language access guidance statewide. Moreover, the AOIC is working with the Commission to develop a certification process relating to the qualifications of interpreters, identify sample language access signage in courthouses, and create other language access resources. The process of developing these language access programs and policies is complicated, but the Illinois Supreme Court, AOIC, and Commission are working together to improve services for litigants whose proficiency in English is limited.

Training Opportunities and Guidance to Inform Judges and Clerks of Court about Interacting with Self-Represented Litigants

Judges and courtroom personnel throughout Illinois have long noted how difficult it is to help self-represented litigants without departing from their impartial role or being seen as acting as advocates. As a result, in 2013 the Illinois Supreme Court adopted an amendment to the Illinois Code of Judicial Conduct to permit judges “to make reasonable efforts to facilitate the ability of self-represented litigants to be fairly heard.” The Commission and AOIC are working to develop training opportunities and related materials to guide judges, clerks of court, and other courtroom personnel with respect to steps they may take to assist the unrepresented in civil matters.

Expansion of Opportunities to Provide Effective, Efficient Pro Bono Representation

Despite the pro bono legal work going on across Illinois, more legal help is urgently needed. The private bar has considerable untapped sources that could provide significant additional pro bono support. It is incumbent on the courts, legal aid programs, and the private bar to maximize pro bono representation and ensure its effectiveness and efficiency. To help meet this challenge, the Commission proposed and the Illinois Supreme Court adopted rule changes in 2013 to enhance opportunities for attorneys to offer pro bono legal services. These rules include provisions enabling all attorneys, including those licensed in other states, to represent clients pro bono in Illinois. But more can still be done.

Conclusion

While there have been significant strides in recent years to ensure equal access to justice for all, this article illustrates just how much remains to be done. The quest for equal access to justice is not something that can or should be faced by one segment of the legal community alone. Rather, it will take all stakeholders working together to ensure that equal access to justice has real meaning for all people.

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