Moving Upstream

I want to talk about the difference between solving problems downstream and solving problems upstream. Solving problems “downstream” means we are fighting fires; it means dealing with end results. Solving problems “upstream” means we get to the root of the problem. The common analogy is:

Downstream = pulling people out of the river

Upstream = going upstream to figure out why they are falling into the river, and/or who/what is pushing them in

Traditional legal aid is pulling people out of the river. I am not suggesting we stop pulling people out of the river; solving the downstream problem is imperative as it is a critical, often lifesaving intervention.

However, I want to talk about also moving upstream to identify the source of the problem. A good example of identifying an upstream access to justice problem is provided by a New Mexico Legal Aid anecdote:

It is possible that Covid-19 provides us with an opportunity to move our thinking upstream about how we address the justice gap.

I want us to also consider what other aftermath planning we can do that will get to root causes or address access to justice problems “upstream”.

However, is that all we think we can really gain from Covid-19? It may sound mercenary, but I think we are missing an opportunity if we don’t think of changes that might be more revolutionary than finally getting courts/clerks offices to adopt plain language forms.

A few of my ideas?

· Do away with any and all county-specific filing or forms or procedural requirements and move entirely to one court system for each state that has only one set of forms and only one set of processes. Or maybe go with one system nationally. Period.

· Completely eliminate all fees to litigants — no more charging for paper forms or to file a case. Yes, we will have to find another way to fund our court system — isn’t it about time we did?

· Empower all current clerk and self-help center staff to provide as much legal assistance and advice as is needed; they are smart enough to know when a self-represented litigant needs a lawyer or legal aid and to refer litigants to those resources. Trade protectionism has no place in our justice system.

I think we need nothing less than a complete cultural shift from away from the profit motive and to systems with compassion as the highest value. How about that as the legacy of the Covid-10 pandemic?

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