Court Navigators – Another Important Tool to Increase Access to Justice

There is an active access to justice movement alive and growing in Canada. It is widely recognized that no one program, tool or activity will, by itself, solve the “access to justice crisis”. Instead, a variety of approaches are needed at all stages of the citizen’s journey through the justice system (not just in the courts).

In the United States, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) issued a resolution in 2015 calling for “100% access to effective assistance for essential civil legal needs…through a continuum of meaningful and appropriate services.” As this resolution underscores, no one tool or innovation alone is enough. Instead, a full spectrum of approaches is needed.

Unbundling is one helpful approach. Another approach on the continuum is the “Court Navigator” – a person who is not a lawyer who assists self-represented litigants with their civil legal problems. There are a variety of these sorts of initiatives In Canada including:

• In Nova Scotia, community volunteers who are trained as Small Claims Court Navigators;
• BC’s Northern Navigator initiative provided a trained coordinator in a local service organization to support families in Provincial Court by providing intake, basic assessment and referrals to resources, including mediation;
• Alberta’s Ministry of Justice is piloting a Family Justice Navigator in two locations;
• The BC Provincial Court permits “support persons” (often called “McKenzie Friends”);
• In BC’s Amici Curiae program, paralegals assist self-represented litigants (SRL’s) to complete forms and other court documents on a pro bono basis;
• There are also numerous online “navigator” tools including Steps to Justice in Ontario, MyLawBC and The CRT’s Solution Explorer.

I apologize if I have missed some.

U.S. states have instituted a variety of navigator roles and there is now an important report which evaluates the effectiveness of these services. The Justice Lab at Georgetown Law has published a report entitled “Nonlawyer Navigators in State Courts: An Emerging Consensus”.

This helpful report focuses on navigators who are not court staff. It follows up on a previous evaluation of the Court Navigators in New York courts (Note 1) by surveying similar initiatives across the U.S. (23 programs, over 80 locations, in 15 states and the District of Columbia).

The authors define “navigators” as individuals who:

• “are without full formal legal credentials and training (i.e., a law degree), but who are trained specially to assist SRLs with basic civil legal problems, one party or side of a case at a time;
• do not act or operate under an attorney/client relationship, with no “traditional professional liability” accruing to the navigators, the entities under which they operate, nor to their supervisors, even if the supervisors happen to have law degrees; and
• are part of a formal program and institutional auspices, and not acting in their individual capacity.”

The report catalogues the wide variety of services provided by navigators and is packed full of ideas and learnings. I thought the following was particularly interesting:

• Impact – The report describes a positive impact on the following objectives:
  • Enhancing court effectiveness
  • Facilitating access to justice for SRLs (expressed in a wide variety of ways)
  • Providing a positive and rich experience for navigators (especially for students)
  • Achieving positive system change
• Very few are authorized formally by court rules, judicial orders, regulation or statute. Instead, they are initiated and managed through the collaboration of multiple champions and supporters:

Across the board, partnerships have proven instrumental, serving as the driving force behind programs. Nearly half of the programs reportedly started as collaborations and they continue to see themselves as such, with a variety of arrangements in play—whether between and among the judiciary, bodies like access to justice commissions, and/or legal aid and nonprofit groups.

• Navigators come from a variety of backgrounds. 8 of the 23 programs involve paid staff of non-profit organizations. The remaining 15 involve a variety of volunteers including members of AmeriCorps (including JusticeCorps) which are funded nationally
• There is no “one size fits all” model – each program is creatively designed to meet the particular and unique needs of its jurisdiction and litigants
• All programs emphasize the distinction between legal information and legal advice (Note 2).
• There have been no reports of official charges or complaints of the unauthorized practice of law
• Many programs struggle with funding issues (identified as a significant challenge):

Despite the best efforts of program personnel, many programs lack the institutional commitment to garner necessary resources for longer-term program sustainability, let alone expansion. Availability of resources is a critical issue and, unfortunately, in a number of the programs, funding is relatively patchwork and ad hoc.

• Data collection efforts suffer as a result of a lack of sufficient financial and human resources (i.e. not always done or done well).

The report concludes:

Nonlawyer navigator help is emerging as a viable option for courts to amplify and enrich their ongoing services to meet the overwhelming demand from SRLs, as well as for justice advocates to supplement their work and allow lawyers to operate “at the top of their licenses.”

My hope is that Canada will continue its creative work in this area and that these results will support positive movement to build the capacity of “alternate service providers” to support citizens with justice problems.

Note 1: Rebecca L. Sandefur & Thomas Clarke, “Roles Beyond Lawyers: Summary, Recommendations and Research Report Evaluation New York City Court Navigators Program (2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2949038. The projects in the New York court used “nonlawyers”who were authorized to provide to self-represented litigants factual information, assistance in obtaining and completing simplified court-required forms, attendance with them at settlement negotiations, and accompaniment into the courtroom. The navigators also were authorized to respond if the judge addressed them with a direct factual question.

Note 2: This is a much more thorny distinction than it first appears on its face (see helpful articles here and here). In my experiences, it is often driven by fear of being sued or complaints about the unauthorized practice of law. Service providers seem to be more fearful of complaints by lawyers or judges than by those they are serving. And yet, it is a distinction critical to the effective provision of access to justice for citizens and deserves closer attention.