Semi-equality is never the goal of any successful civil rights struggle; it can not be an unstated goal of the access to justice movement of which pro bono is a component.
Friday I participated in the Pro Bono Week event at Seattle University,
"Pro Bono Workshops: Hope and Help in Hard Times"; it
was certainly enjoyable. The facilities were completely functional and pleasant, staff helpful and efficient, the atmosphere hopeful and exciting. I am especially glad that I didn't skip the social event at the end; Bill Gates (a.k.a. "The Senior"), Sal Mungia and Harry Schneider Jr. gave short talks that were both factual and inspiring. Schneider in particular is a very funny guy, which may be an underappreciated asset in protecting our constitution.
However, we had a fundamental, underlying, unaddressed problem:
no great goal.
Now in bringing this up, I am going to hurt the feelings of a lot of nice people: hardworking, decent, generous, possessed of all the virtues ... and far better lawyers than I. So be ready and remember, it's nothing personal; it's just business. We have a problem to solve and I ask you to reserve judgment on whether I'm just bitching.
So here's the problem:
No-one talks about what the goal of the pro bono enterprise should be.
While we can be proud of individual successes in pro bono efforts, who talks about solving the entire problem? Where are plans, however non-binding and informal, to systematically and measurably close the oft-invoked justice gap? If that's the goal, are we closer to it, or farther away? While we know how to make progress in individual cases, what will it take to move us all across the goal line?
What Is The Goal?
At this excellent programs, I heard several things in favor of pro bono:
- Pro bono makes providers feel good
- Pro bono trains new lawyers by letting them practice on people too poor to afford skilled assistance
- Pro bono is like giving away lottery tickets; winners get help navigating our legal system, although since there will never be enough winning tickets, the goal might otherwise be stated to be to abandon most of our fellow citizens to injustice.
Are you angry now? That's fine. The question is whether you're angry because (A) the above unfairly categorizes the many fine people who devote time, money and sometimes whole careers to providing pro bono services ... or because (B) you
don't think it's right that there will never be enough winning pro bono tickets for all who need one?
A good answer is "C) Both of the Above".
What is the goal of the pro bono enterprise as a whole? To get there, how much pro bono do we need? Can we get there without asking those questions?
If you don't want to ask those question, then why are you providing pro bono at all? If you are trying to solve problems, why not the greatest problem?
Success 101: Have a Goal
Anyone who's participated in large projects know that you need a goal. Everyone on the project needs to know the goal, and unless there are reasons for keeping progress toward the goal secret, you publicize honest and accurate periodic public measurements of what we have left to do.
Otherwise, you're playing football without a goal line, or building a house without even a rough blueprint.
"Just build more foundation and get us some more shingles!"
Biographical note: I came to the Law after working in private enterprise for decades on programming projects involving millions of transactions, multiple continents, more money than the Legal Services Corporation has ever seen. I say this not to boast, for hundred of thousands, or perhaps millions, of computer programmers can say the same. I state with little fear of contradiction that every one of us will say: No successful project lacked such goals.
You do not stumble into success! Good intentions, hard work and even huge resources are less important than having Commander's Intent. Goals may be unwise or ill-conceived (I have worked on projects in which the goals were mathematically impossible) but they are necessary if you want to succeed. Frank, unsparing, unsentimental goals analysis makes it possible to recruit the necessary help and trust that our efforts (even if sometimes individually insignificant or even wasted by our PHB's)
are worthwhile; this is highly motivating. They're also substantively useful, which is always a plus.
Now, tell me:
what is the goal in providing pro bono services, and how close are we to realizing it?
If the Goal is Healing the Justice Gap, Then Where Are We Now?
The final formal session of our October 30 program had a panel of four expert, intelligent, highly-motivated, skilled and experienced lawyers, all of whom have probably done more pro bono with their little fingers than I have with in my entire body. So I was not intending to criticize them when I asked:
"What share of closing the Justice Gap should pro bono fill? How much more pro bono do we need to do that?"
This is a fair question, and relevant. Precision is not needed (e.g. "39.14%"); the question asks for rough estimates in the context of an over-all plan.
A good answer would have been something like
"The 2007 Washington State Access To Justice Strategic Plan (the latet year available) envisions pro bono efforts filling in about one-third of the Justice Gap, with the remainder being filled with a mixture of legal aid, public legal education, public service lawyer recruitment and statutory reform. Our current economic crisis has been a setback; although it's hard to measure, we anticipate that unmet civil legal needs has increased over the last year. At the least, we need to roughly double the number of pro bono hours provided to meet the goal.". There's studied vagueness in this response but it indicates a goal and an idea of how to get there.
That's not the answer we got. The panel was visibly rocked by the question although, I hope, amused
Into the pause came a response came from an audience member - a highly dedicated, respected and hard-working participant in pro bono enterprises - who voiced the opinion that it didn't matter, because the need was so great that we just needed more pro bono, lots more.
This was
an entirely wrong answer! It may not have been wrong on the facts, but it was wrong from a project management standpoint. You cannot meet any goal that you refuse to define; it is impossible to get adequate resources if you refuse to quantify them however imprecisely.
The panel did not shrink from a further response, showing (if I may editorialize) why they are such effective advocates: they provided an excellent, fact-laden response that
did not answer the part of the question that they could not answer. The panel referred to a plan more than five years old that had never been fulfilled. It gave a frank admission that the facts on the ground (e.g. our current economic problems) have made things worse since the plan had been written. These were
top oral advocates, and they gave a great no-answer.
One did some quick math and come up with a number; while it unfortunately was low by a factor of 10 (lawyers are not mathematicians), it was pretty good start for a pop quiz. Too bad this should not have been a pop quiz, but a central point in every planning session. Of greater concern to me is that this response assumed that the 1st question's answer was "100%" - that the entire Justice Gap was to be filled by pro bono - a strategic concept which is neither possible nor wise.
That panel did not suggest how much of the Justice Gap pro bono should fill, and therefore how much more pro bono we needed to get. If
they do not know the plan, then there IS no plan in any meaningful sense. We have many virtuous, hard-working and generous individuals and institutions playing football without goalposts or chalk lines, and building houses without a blueprint.
I'm sorry if I hurt anyone's feelings with this, but it is not about our feelings. We need to habitually think of pro bono in the context of the broader effort of closing the Justice Gap. We need to start or resume the practice of setting measurable goals toward closing the Gap, measuring how far we have left to reach each goal, and then taking steps to close the distance. That is how every successful project ... succeeds.
What Is Now To Be Done?
You might ask, well what is now to be done?
Hey, I'm just this guy. I'm a poor lawyer, in every important sense.
But if
you do not have a goal and
you do not have a plan, do you really expect
me to come up with a plan? If I had t, I'd set a reasonable goal, such as "Cut the Justice Gap from its base level (2009) by 10% per year until it is zero'd out (2019)". Naturally, pro bono would be only a fraction of the means t implement this goal; other means (e.g. legal aid, statutory reform, development of a corps of lawyers financially able to make public legal aid a viable career option). Then I would start setting out tasks and phases and dependencies, and all that project management stuff.
However, why look at
me? Somewhere, there must be people, many people, who have thought these thoughts before; it's simply implausible to suppose any of the above is without precedent. So somewhere, surely there's a Committee somewhere working on a plan; I'm willing to go to find it. Why isn't it not merely easy to find, but all up in the face of every lawyer, makes no sense. But whatever - just tell me where to go, and thither I shall go, not with the expectation of being any smarter than anyone there (...let's be realistic...) but totally willing to be a pain in the ass until someone comes up with an answer.
I love you all, people of the Access-To-Justice Community. You are smart, dedicated, hard-working and well-meaning; you have defended individuals, groups and our sacred human rights and Constitution with more skill and effectiveness than I ever have or could.
But how the heck do you expect to succeed if you won't even talk about the frickin' goal?
let us compare and contrast the cases of Al Gore and of George W Bush.
