Justice, Plain and Simple: Proposals for the Legal Community
On March 29, 2019—almost exactly a year ago—the Maurice A. Deane School of Law's Center for Children, Families and the Law hosted “Plain and Simple: Making the Legal System Accessible to All,” co-sponsored by IAALS, the Self-Represented Litigation Network (SRLN), and the Hofstra JD and Master of Forensic Linguistics Joint Degree Program. This conference was directed at the immense need for plain language and simplification reform efforts, and involved nearly 100 participants, including legal aid and private practice attorneys; judges and court staff; New York City Council legislative staff; college professors, law professors, and a professor of nursing; and Hofstra University undergraduate, graduate, and law students.
In January 2020, the Association of Family and Conciliation Courts (AFCC) Family Court Review published Justice, Plain and Simple: A Report of the 2019 Siben & Siben Conference on Plain Language and Simplification, an article that highlights the key takeaways, proposals, and results that came out of that conference.
Conference Takeaways and Proposals for the Legal Community
One overarching concept noted by conference participants is that plain language includes both language and visual design elements. With that understanding, courts should create better signage at the courthouse, comprehensive self-help centers, and informational guides and instructional videos (both online and at the courthouse) to help self-represented litigants (SRLs) better navigate the courthouse and prepare for when they have to try their case. Judges, court personnel, and law students should be trained on plain language in order to help courts with this task, and part of that training should include a plain language style guide. In November 2019, IAALS released Guidelines for Creating Effective Self-Help Information, a guide to help courts increase the efficacy of existing self-help materials and assist in the development of new materials in plain language that empower parties with information and an understanding of what to do with that information.
When courts begin to revise their forms into plain language, drafters must first identify the intended audience, that audience’s needs, and the purpose of each form. Then, once drafted, the forms should be tested by those who will actually use them, because it’s almost impossible for attorneys and court staff (who already have the necessary knowledge to understand these forms) to be able to identify content that is still too complicated for other people to understand. Courts should not be solely responsible for this transition, however. Undergraduate institutions, for example, can play an important role in both teaching its students plain language and encouraging their use of it.
Apart from plain language, there are a number of steps courts can take to simplify the process for SRLs and alleviate the stress they often feel. Implementation of e-filing would allow SRLs to file documents at home or at a local library, relieving them from coming to an unfamiliar and intimidating courthouse. Additionally, judges should receive written information or training on how best to work with SRLs in court, because working with them is inherently different from working with attorneys. To address this need, IAALS released another guide in November 2019, Ensuring the Right to be Heard: Guidance for Trial Judges in Cases Involving Self-Represented Litigants, that summarizes what research and experience show to be effective practices for trial court judges to follow when resolving cases with one or more self-represented litigants in the courtroom.
Lastly, changes should be made to the bar exam to test plain language competency. One example provided was to design one of the two essay prompts to be addressed to a client or another non‐legal audience.
The conference has spurred a number of state and national developments in just the past year. In July 2019, the Conference of Chief Justices and Conference of State Court Administrators adopted the resolution In Support of Implementation and Clear Communications and Streamlined Procedures in the Courts. The resolution implores courts to use plain language, better help court users navigate the justice system, and consider streamlining court procedures and legal requirements. Also, SRLN is planning to host a national webinar to help other states hold similar conferences.
Organizations in New York have also taken proposals from the conference and run with them. The New York State Permanent Commission on Access to Justice established the Law School Access to Justice Council on Plain Language. And Hofstra is now offering a plain language program that combines existing creative writing courses with library sciences.
Additionally, the New York court system has made a number of changes since the conference. It has begun revising its family court forms into plain language, and it provided plain language training to its judges and justices at their summer 2019 Judicial Institute education program. And a previously developed pilot program designed to help litigants file for a joint divorce will be revised based on takeaways from the conference.
Courts still have a long way to go to simplify the process and improve access to the courts for SRLs, but it’s important to acknowledge the numerous people who are making significant changes to help address these problems. The participants at this conference and organizations mentioned above are part of that movement.