Oklahoma Bar Journal
The Theory and Practice of Access to Justice
By Brian Candelaria
“Access to Justice.” We all have an idea of what that phrase means. But what does it mean in practice? The answer may be different for each person.
For me, access to justice means taking the adequate steps needed to make justice a reality for all. For example, legal institutions and practitioners should make legal concepts easier for those not acquainted with the law. This can be done by drafting documents and providing legal advice using “plain language.” As noted on www.plainlanguage.gov, “Plain language is communication your audience can understand the first time they read or hear it.” The website further notes that plain language was even codified in 2010 with the passage of the Plain Writing Act of 2010. Additionally, the website named various techniques to achieve the goal of plain writing. Some examples that are cited are:
- Reader-centered organization
- “You” and other pronouns
- Active voice, not passive
- Short sentences and paragraphs
- Common, everyday words
- Easy-to-follow design features
The website also provides templates, checklists and guidelines.
Why is it important? It is important because, as any attorney can attest, words matter. This is especially true in a world where contracts bind a person to certain obligations and duties. A particularly important category of contracts is those dealing with the assumption of debt. A recent study conducted by the Oklahoma Access to Justice Foundation demonstrates the importance of “plain language and user-friendly forms” when dealing with the issue of debt collection lawsuits (page vi). The report, “The Downward Debt Spiral: A Study of Oklahoma’s Judicial Debt Collection System,” can be found at https://bit.ly/3EJdZUx. It is a sobering report.
Another important category of “everyday” contracts is lease/rental agreements signed by prospective tenants and prospective renters. This is because the majority of us have either signed a lease or rental agreement. Whether it involves an apartment or an automobile, it is likely that even the most seasoned attorney has signed such a contract without fully reading the language. For example, the terms of agreements are important when involving damage received during the course of a natural disaster. In fact, during the tornados and severe weather events of this past spring, there were some reports of storage facilities where damage occurred. Undoubtedly, renters at those damaged facilities were forced to look back at the contracts they had signed weeks, months or even years ago. In addition to plain language, I believe legal systems can move toward access to justice by: 1) utilizing technology, especially in rural locations, and 2) encouraging the use of standardized forms.
TECHNOLOGY IN THE COURT
It cannot be denied that technology played an important role in keeping the courts open during the depths of the COVID-19 pandemic. The use of virtual options was important for keeping cases moving through the system. This was particularly important in rural communities. Good examples of the integration of technology in the delivery of legal services can be found in tribal and rural county courts. For example, the Sac and Fox Nation, the Comanche Nation and other tribal nation courts made extensive use of telephonic and/or electronic virtual resources to connect with parties and keep cases moving. In fact, during the upcoming Oklahoma Access to Justice Summit on Oct. 20, there will be a panel addressing the use of technology in the courtroom. The panel will be called “Rural and Indigenous Solutions to the Technology Justice Gap.” The panel will even include a discussion of nontraditional uses of technology, like using vans and other vehicles to get out to clients and their communities to serve their legal needs.
STANDARDIZED AND UNIFORM FORMS
Another important step taken toward accessible justice for all is the use of standardized forms. As some legal practitioners can attest, there are some legal subjects and issues that can be addressed through the simple filing of important pleadings or paperwork. A good example is the transfer of a person’s residence through a “transfer on death deed.” It takes true expertise and “know-how” to understand what subjects and issues can be best addressed by well-drafted pleadings and forms. This is where bar associations and bar association law sections come in.
For example, some tribal courts have many forms available online for all to use. The forms are often approved by the tribe’s bar association, like those used by the Quapaw Nation or the Citizen Potawatomi Nation. The various tribal bar association members utilize their expertise and familiarity with the tribal codes. They also understand and appreciate how each tribe’s codes are reflections of that tribe’s unique history and exercise of tribal sovereignty.
Another important example is the hard work the OBA sections put into drafting forms and handbooks. The Estate Planning, Probate and Trust (EPPT) Section and the Family Law Section have each recently completed or updated handbooks and forms to help people understand these particular areas of law.
Whether it is the use of plain language, the use of technology or the use of standardized forms, these tools are only useful if they are competently used. Events like OBA Law Day and its corresponding annual Ask A Lawyer event, the OBA Solo & Small Firm Conference, the OBA Annual Meeting, the Oklahoma Access to Justice Summit along with various law section CLE meetings and seminars all provide us with opportunities to learn to use various tools and grow as legal practitioners. In the end, it is up to us to provide access to justice to all.
ABOUT THE AUTHOR
Brian Candelaria chairs the OBA Access to Justice Committee. He has been a staff attorney with Oklahoma Indian Legal Services (OILS) since he graduated in 2019. Before going to law school, he was a legal assistant for nine years and he also earned an LL.M. in Indigenous Peoples law from the OU College of Law.
 www.plainlanguage.gov/about/definitions (last accessed Sept. 9, 2023).
Originally published in the Oklahoma Bar Journal – OBJ 95 Vol 8 (October 2023)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.