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June 16, 2005

Remarks of Chancellor Chirls to Interbranch Commission for Gender, Racial and Ethnic Fairness

June 9, 2005
National Constitution Center -- Philadelphia, PA
1:00 p.m.

Honorable Chief Justice Cappy, members of the Interbranch Commission for Gender, Racial and Ethnic Fairness, and honored guests. Thank you for giving me the opportunity to be here today. 
I want you to know what a great deal of respect I have for the goals of this commission as it works to carry out the recommendations of the Pennsylvania Supreme Court Committee's Final Report on Racial, Ethnic and Gender Bias in the Justice System from 2003. The Philadelphia Bar Association is honored to do whatever it can to advance the goals and objectives of the report. We are eager to work closely with the Supreme Court and other Courts and with the Interbranch Commission to help make these goals a reality.
As we know from the Final Report -- and as the 13,000 members of the Philadelphia Bar Association know from their daily practices -- racial, ethnic and gender bias still exist in our justice system. In ways that cannot be measured, they can affect the outcome of cases -- even if we cannot identify any particular case.  And they have bad impacts on lawyers, judges, court personnel, parties, witnesses, and jurors. We want the public to have confidence in the system of justice, and we want for ourselves as the people who participate in it all the time to have that confidence -- it's a matter of morale, of professionalism, and of being useful in what we do. 
In his letter to me, Chief Justice Cappy asked me to speak specifically to the Commission about the Philadelphia Bar Association's efforts related to providing interpretation and translation services to litigants with limited English proficiency, and about the Committees we have established to focus on implementing portions of the Final Report.
I am pleased to tell you that I have a lot to report on what we have been doing to implement the report. And I have had to resist the impulse to give you our entire laundry list. As Chief Justice Cappy has requested, I will focus primarily on what we have done in the area of language access to the courts, as outlined in the recommendations in Chapter One of the Final Report. That is the chapter entitled "Litigants with Limited English Proficiency."
As I reviewed the report, I noted that there were recommendations at the end of each chapter --some recommendations on what the courts should do, others aimed at the legislators, and others at bar associations. Chapter One's recommendations were all directed to the Court. I note with some pleasure -- and a little bit of pride in Philadelphia's legal community -- that the initiatives we have undertaken relating to language access were taken on our own. The steps the Bar Association has taken to advance the goals of access to justice for people with Limited English Proficiency were taken on our own, with no push from any commissions or courts, because we perceived the need. But these steps are all within the spirit of Chapter One of the Final Report.  
You should know, by way of background, that the Philadelphia Bar Association has had four committees that have been dealing specifically with recommendations of the Bias Commission. In 1993, we established a Task Force on Fairness in the Justice System. Among other things, it began its work to urge that bias in the system be studied under the aegis of the Supreme Court.  In 2003, one of my predecessors as Chancellor, Audrey Talley, established a Special Committee to Coordinate the Bar's Response to the Supreme Court Racial and Gender Bias Report and Recommendations. That committee was charged with seeking ways for our Bar Association to implement some of the Report's recommendations and to provide input to those who might be charged by the court with implementing the Final Report. In 2005, I established two committees: the Ad Hoc Committee on Language Access to the Courts and the Ad Hoc Committee on Racial and Gender Bias. The second committee is continuing the work of the committee that Audrey Talley appointed in 2003. 
The Ad Hoc Committee on Language Access has as its mission finding ways to improve access to interpretation and translation services for litigants with limited English proficiency, including people with hearing impairments. 
You may know that the Bar Association this year is focusing its resources on reaching out to the immigrant communities of Philadelphia. And the Ad Hoc Committee on Language Access is, of course, part of this. This is one area in which I have taken a particularly strong interest. 
We have pledged to work with the city's courts to institutionalize and improve on the tremendous progress that Philadelphia has made in making interpreters available Our courts are now a model for the rest of the state and the nation in this regard. And the Bias Committee's final report acknowledges that the courts of the First Judicial District are leading the way in this area. So we are trying to find ways to share what we and the courts have learned and done and to make more progress. 
Our committee is being led ably by Shira Goodman, of Pennsylvanians for Modern Courts.  Judge Streeter Lewis, Judge Lachman and Judge Deni agreed to be on our committee. And Janet Fasy, who coordinates interpreters' services so ably for the First Judicial District, is a key member. I have to say that she has cooperated graciously and with great zeal. The professionalism that she brings to her job is reflected in the way she deals with our bar. The legal community is fortunate to have her. 
The Committee has people who are active in the Friends of Farmworkers, the Tenant Action Group, the family law bar, both sides of the criminal bar, and from agencies like CLS and PLA that provide services to low income people on a large scale. 
Our committee has begun its work, of course, by identifying and understanding the interpreter services that currently exist. As many of you know quite well, the courts in Philadelphia are quite complex in their structure -- understandably so because of the volume of cases, and the different ways in which different kinds of cases in the various Divisions are handled. So there isn't a one-size-fits-all solution to the cultural and administrative question of "How do we deal with and serve people who don't speak English proficiently." Each kind of case has its own administrative questions attached to it.
But I think we can say that we've discovered one overarching principle to administrative questions on how to provide language services effectively. When a case will have the need for an interpreter, it is important to identify that need early, if at all possible. When we are dealing with Spanish, it is pretty much the case that the courts can deploy an interpreter to a courtroom on quite short notice. But when we get to one of the other of the scores of languages that are spoken in Philadelphia, it is true that you have to make an appointment to find a capable and qualified interpreter to perform services in that language. We're targeting ways to enhance communication to the public and the regular users of the courts -- the lawyers and the judges -- about the availability of these services and the need to ask for the interpreter on a timely basis. Once people are educated, and the mechanisms for seeking interpreters are known and readily available, the appointments can be made timely and the administrative burdens associated with interpreters will be eased.
So we have to find ways to flag the cases early.  If they aren't flagged early, then people show up and there is no interpreter.  And then they get frustrated. The prosecutor might lose a witness because there is a continuance in the absence of an interpreter. Or a family law case gets kicked over to the next available date, and important issues of custody stay unresolved for too long. And people lose confidence in the justice system -- particularly people who are inclined to be alienated because they don't speak English and are already to some degree on the margins of our society and our economy. We don't want this to happen, and we are searching for the spot in each kind of case where the need for an interpreter can be flagged.
And there is sometimes another important consequence when the case has reached the courtroom and the interpreter hasn't -- a consequence that could be worse than delay.  Sometimes -- and I've seen it -- the judge says, "Let's proceed without an interpreter. We'll have people speak slowly and we'll wing it. Or we'll use the witness's sister as an interpreter." This is exactly the kind of event that having professional interpreters is supposed to prevent -- and we want it not to happen.
There isn't a perfect answer, since you don't always know who the witnesses are, or a party may be shy about acknowledging a lack of English proficiency. It seems simple: "Why not give somebody a box to check on the form where the appearance is entered, or that is filed when the case is initiated?" 
We all wish it were that simple, but it's not. But what we do want to do is prompt people at every opportunity -- particularly the earliest opportunity -- to say, "This case will need an interpreter, this is the language, and these are the special needs or issues the interpreter will face." 
The question of what form to use, or which person in the filing offices should transmit the information to Ms. Fasy's office -- these questions vary from one kind of case to another. Our committee has had some useful discussions on how to ease the administrative path between the filing of a case and the supply of an interpreter.    
The second goal of the committee, as it is developing, is to publicize how interpreters' services are used and how they are available.
Our Bar's Committee has set as part of its mission an education effort on how to use interpreters. The Committee hopes to produce a pamphlet and Web materials outlining interpreter services, so that attorneys and pro se litigants can have access to these services. The Committee also intends to expand other educational efforts for lawyers, so they will know how to get interpreters and use them professionally.
There are two reasons why we would want to do this.  First, the administrative reasons I explained before. If people know about the service, they will find a way to flag it early and get the interpreter to the court without delay. 
The second reason is a matter of philosophy. You can sit in the courthouse and design a perfect system for the cases that come before you. And when a case that needs someone who speaks Burmese arrives, and we have a Burmese interpreter available who does a good job, then we can be happy with ourselves and say that we've provided language access to the court. 
But we at the Philadelphia Bar Association don't think that that is enough. There are whole communities of people in our county -- just as there are in several counties in Pennsylvania -- who don't speak English well or effectively. Unless they know that this basic institution of government -- the court -- is open to them, they will not know that they can use the institution. So battered spouses will not think of the court as a resource for their self-protection. And the person with the small business will not know that he or she can use the court to collect a bill. And crime victims will not think that they can get their message across. 
We want these people to be part of American society. We want them to know that they can have access to justice. We are doing our part to make sure that they know that they have access to justice. Making the public aware of the availability of interpreters is part of that. 
We know that the Bar Association has a bit more of a public communications capability than the courts in Philadelphia. So we have offered to lend our hand to publicizing the matter. We'll help to write news releases and materials that can be posted on the Court's web site, the web sites of public service organizations, and the Court's kiosks. Of course, we publicize many other things, which I will discuss later, but we are going to publicize information about availability of interpreters for this important reason.
Our third activity in on the legislative front. Our Bar Committee -- along with the Legislative Liaison committee -- is closely monitoring the progress of Senate Bill 669. The Philadelphia Bar Association supports SB 669, which calls for providing interpreters for certain court and administrative proceedings. It calls for standards of licensing and professionalism for interpreters. I have testified in favor of this bill, and let legislators know how important it is to Philadelphia lawyers and, frankly, to the economy of Philadelphia as it tries to assimilate newcomers into our justice system and to the system of commerce to which the justice system relates.  
There is a fourth item of which the Ad Hoc Committee is aware, but which is primarily being handled by our Real Property Section. The Real Property Section of the Bar Association has had some basic documents related to landlord tenant litigation translated into Spanish. Examples are in the booklet that we've handed out, behind the second blue page insert. There you can see that there are some basic forms that facilitate, for example, settlement of a case. 
When one of the court settlement facilitators can get people to agree, they fill out the form in English. The form lends itself to being filled out with numbers in Spanish, as you can see. And everyone goes away with an understanding of what their settlement is. And this makes it possible for landlord tenant cases to be resolved quickly and in a way that people can understand. We're looking for other aspects of court proceedings that can be handled in the same way. This may be especially useful for the many cases where people tend to appear without lawyers, such as happens in the Family Court Division. 
Our fifth area of activity is one where I think we are aiming at some innovations -- activities that can be a model for others. As some of you know, there are recent rulings by federal authorities stating that lawyers have to provide interpreters for their deaf clients -- and maybe for their deaf prospective clients -- at their own expense. They can't charge the client for the interpreting service.  
I don't have to go into detail about how this cost may deter lawyers from wanting to take cases and matters on for people who cannot hear and who need sign interpreters. We are working to figure out a way to lower this cost, so that the cost doesn't become an impediment to attorney client relations.
For this reason, we have written to local providers of interpretation services for people who cannot hear. We are exploring the development of an arrangement where one or more of the services might be endorsed or recognized by the bar association, in exchange for an agreement to provide our members with interpretation services at a lower cost.  
This is being pursued by our Committee on the Rights of Persons with Hearing Impairments. I'm hoping it will bear fruit soon.      
Now, I have talked a little bit about why we think it is important to engage in public education about the availability of interpreters' services. We want the public to know that the services are there so that they will use them effectively and so that they will know that courts are open and available to all of the public. 
In the 2000 Census, the First Judicial District of Pennsylvania was estimated to encompass more than 30% of the population of people in Pennsylvania who speak English "less than very well." At the very least, that is about 368,000 people in Philadelphia. Nearly 18 percent of Philadelphians reported English as not being their primary language used in all aspects of their daily lives.
These people are an important part of our economy. They are people who come here to work hard and get ahead. And we want them to do more than just work hard and get ahead. We want them to work hard, play by the rules, and get ahead. Playing by the rules means being able to use the courts to enforce the rules, too. 
We want our immigrants to be able to come to court for bill collection and protection from abuse. We want them to record their real estate transactions property and their wills. And we want them to follow the rules associated, for example, with landlord tenant law, and not to be resorting to "self help." And we want them following employment law, and enforcing their rights as employees. This means being able to use the courts. 
If our courts are available for the people in the neighborhoods where our immigrants are settling and revitalizing, then our neighborhoods will prosper more.
And we are doing our part to do more than sit at the courthouse and wait for those 18 percent of people to come to court and get their interpreter services. We want those people to know that the court system is theirs as much as it is mine or that of anyone else in this room.
Let me give you an example of what we are doing. In May, we held Polish Community Law Day in the Kensington section of Philadelphia. We collaborated with Pennsylvania Legal Assistance.  We rounded up 7 lawyers who speak Polish. We publicized the event and almost 200 people who speak Polish -- and who don't speak English -- showed up and had their questions answered individually. Questions about real estate law, family law and laws associated with small businesses or employment. And some of them got referrals. 
This is one of the first events that we will be having in languages other than English to provide this kind of service.  We are planning one in Spanish to be held soon. 
An event like this is important for far more people than the 180 or so people who got direct services. You'll see at the back of your booklet some press clippings in Polish. This event was covered in Philadelphia, New York, Washington, D.C., Boston, Phoenix and Las Vegas. It was also covered in a newspaper that was on the stands in Warsaw, Poland.  
When this happens, our legal system's openness becomes a model for other states. I was asked by a bar leader in a Texas border city for advice on how his bar association can reach out to Spanish-speaking immigrants. The sociologists and economists also tell us that cities that are hospitable to immigrants draw more immigrants -- the kind of people who revitalize our city's neighborhoods. When an event like this is in the newspaper in Poland, that sends a direct message around the world that our courts are open to new Americans. 
A more direct impact comes from how these communities are underserved. I am told by leaders of the Latino communities that there is an over reliance on people who are called Notarios --Notaries. In Spanish-speaking countries and all around the Mediterranean notaries do what lawyers here do. And when an immigrant goes to a Notary in North Philadelphia, that immigrant is underserved -- underserved by a person without malpractice insurance, without the technical and ethical support that a bar association provides, and without the ethical constraints and disciplinary restraints that are imposed on real lawyers.
And when a Notario mishandles an immigration question, for example, the consequences are not reversible, and there is no recourse for the victim.
I am told that there is a similar problem in the Slavic communities, and that some Asian communities are not served by lawyers who are appropriately tied to the kinds of organizations that promote ethical and responsible practices. 
So there are many community leaders who tell me that they are overjoyed when we do this kind of outreach, and who tell me that they are thrilled that we are bringing responsible services to our immigrant communities. 
You will see in our package that we have had press coverage about what we do in Spanish and Russian. We have also been written about in Korean. We have public service announcements in Spanish publicizing our Legal Line, and our Lawyers' Referral and Information Services are available now in Spanish. Our calls in Spanish are up from about two a week to about 10 a week. We have advertised our Campaign for Qualified Judges on Spanish television and in newspapers in Russian, Korean and Spanish. All of these things, we believe, are making the immigrant populations understand that the justice system exists for them as well as for everyone else.  That is the essence of access to justice.
If we do this, our city will be more prosperous, and it will bring our new populations into the rule of law. That's not all in Section One of the Final Report, but I believe it is totally consistent with the goals of it, and perhaps, I dare say, in a more far-reaching way.  
Similarly, our bar association is working with the Mexican Consulate to develop a Continuing Legal Education program on representing immigrant communities -- to explore the cultural barriers (as well as the language barriers) that impede development of effective attorney client relations. And our fee dispute committee is working to provide systematic support through the Mexican consulate on resolution of disputes between our attorneys and their clients who are Mexican citizens.
We have plans to put on People's Law School in Spanish and Russian, though I have to acknowledge that doing so in accordance with our high standards has been harder than we thought it would be. 
I want you to know that we are not newcomers to these causes. Eleven years ago this month, the Philadelphia Bar Association adopted a resolution supporting the institution of an independent court-based program to test and certify the linguistic and professional competency of the interpreters used in Pennsylvania's courts. At that time, we urged the Pennsylvania Supreme Court to institute an interpreter certification program in the Pennsylvania courts. We urged the federal Courts Administrator to expand the list of languages available for certification under the Court Interpreters Act of 1978. We contacted court administrators about electronic recording of non-English and sign language testimony. And we addressed the failure of the system to adequately meet the diverse linguistic needs of Pennsylvania courts.
The first section of the booklet we've handed out includes a set of the resolutions we have passed on the topic of language access and other access to the justice system in ways that will overcome bias. 
I have been asked to describe some of our other committees' work on implementing the goals and recommendations of the Final Report of the Bias Committee.
Like the Ad Hoc Committee on Language Access, our Ad Hoc Committee on Racial and Gender Bias is moving ahead on provisions of the Final Report.
The Ad Hoc Committee on Racial and Gender Bias is really an outgrowth of a Task Force established by the Philadelphia Bar Association in 1993 and the Special Committee set up in 2003.
In 1999, our Bar Association established a Committee to Promote Fairness in the Philadelphia Legal System, which invited individuals who had knowledge of possible instances of bias in the legal system to confidentially report such information, so that the committee could examine and evaluate such reports.
The 14-member committee currently seeks information about possible instances of bias from the civil courts relating to all classes of persons protected by the Philadelphia Fair Practices Ordinance. These possible instances of bias include: race, color, religion, national origin, ancestry, age, sex, sexual orientation and disability.
Beyond collecting, evaluating and disseminating information about bias in the legal system, the committee provides an opportunity to mediate and/or conciliate differences among the individuals involved.
People who wish to report an instance or instances of bias can complete an intake form that is found on the Philadelphia Bar Association's Web site. This triggers examination and evaluation process by the Committee -- sometimes with the assistance of the Bar Association's staff. Once the forms given in, the filer's confidentiality is respected and the process begins.
Unfortunately, as the Supreme Court's Committee on Racial and Gender Bias in the Justice System has found, some lawyers and people in the legal system might have a fear of coming forward because of a concern about harm to their careers -- or harm to their clients that might come from filing a complaint. So there remains a challenge for us to encourage aggrieved individuals to come forward to report a problem, without fear that there will be adverse ramifications. The problem is, of course, bigger when it comes to letting people outside the legal system -- the witnesses, the jurors and the litigants -- know that they can complain and be heard.
In  2003, the Philadelphia Bar Association Board of Governors unanimously passed a resolution commending the Pennsylvania Supreme Court's Committee on Racial and Gender Bias in the Justice System for its extraordinary efforts, insightful findings and Final Report recommendations. The Association authorized the Chancellor to take the appropriate steps to encourage further consideration of the issues addressed in the report.
The Board of Governors also expressed its support for House Resolution 402 to establish a legislative advisory committee to draw on specific recommendations to write legislation aimed at eliminating bias in Pennsylvania's justice system.   And we now see the Interbranch Commission as a vehicle for educating the legislature about needs along this line and involving the legislature in solutions.
In July 2003, the Association adopted a resolution on Improving the Delivery of Justice in the Domestic Relations Division of Philadelphia Family Court. The Bar Association resolved to take steps to address concerns that are also the subject of gender bias findings by the Supreme Court's Committee on Racial and Gender Bias in the Justice System.
In light of the Supreme Court's Final Report finding about gender bias within the family law and domestic relations systems in Pennsylvania, the Board of Governors adopted a resolution in December 2003 urging the Supreme Court to take steps to eliminate gender bias in family law matters by requiring training of all judicial personnel on gender bias, domestic violence, custody, divorce, and support. We also suggested communications training regarding persons with limited English proficiency or with disabilities.
We have urged the court to conduct and publish audits of the allocation of funding and personnel to family law matters in each judicial district; to conduct and publish audits of Pennsylvania Common Pleas courts pursuant to the Trial Court Performance Standards; and to take steps to ensure that all courts handling family law matters provide support in key areas. The Bar's resolution also urged the Supreme Court to take steps to eliminate gender bias in family law matters by seeking and allocating additional funds to support these actions.
In the area of Family Law, we have pledged to support efforts -- including those about which Madame Justice Newman has spoken -- to develop a modern and efficient family law court facility in Philadelphia. A new facility will provide the opportunity to solve some -- but by no means all -- of the operational difficulties that the Family Court Division in Philadelphia faces. Our LRIS and Legal Lines receive more calls about family law than in any other category of cases.  The issues affect the lives of a great number of people in our city.
Our Ad Hoc Committee on Racial and Gender Bias also will carry out a resolution adopted by the Bar Association's Board of Governors in May of last year stemming from several recommendations in the Final Report regarding continuing legal education on issues of racial, ethnic and gender bias in the justice system. Our resolution steadfastly encourages the Supreme Court, Pennsylvania Bar Institute and other CLE providers to include education on bias issues in substantive and ethics CLE courses.
Here are some examples of our work with Pa. Bar Institute in developing courses that fulfill the goals of the Bias Report:
We developed CLEs presented in December 2003 and October 2004 entitled "Setting the Tone in the Courtroom."  These were developed as a direct result of the Final Report. The course focused on identifying and eliminating race, ethnic, gender and other biases in the courtroom. Participants learned how to handle biased conduct that can adversely impact the credibility of witnesses, the effectiveness of counsel, and the outcome of cases. The panel presented "best practices" to eliminate bias and engaged in a lively discussion about scenarios of biased conduct. The table of contents of the course materials are in your handout.
PBI held an education day in February for law school faculty members. Members of the Bar's Committee worked to add bias education to that program. 
The Committee has also provided scenarios, videos and other resources to ALI-ABA, which is planning to produce a video on bias issues. Committee members are also working with our planning committee for the Association's Bench-Bar Conference to be held on September 30 and October 1, 2005 in Atlantic City to provide programs on gender bias issues as well as jury selection practices.
Our bar association seeks to go beyond traditional methods to educate our members and implement techniques so that diversity training becomes part of the core CLE curriculum. We are working with PBI to assure that presentations are gender neutral, that courses have diverse faculties, and that opportunities to consider issues related to bias are considered during curriculum and course development.
Like the Ad Hoc Committee on Language Access, I have no doubt the mission of the Ad Hoc Committee on Racial and Gender Bias will continue to grow, as it has under the able leadership of my colleague at the bar, Judy Berkman.
The findings of the Supreme Court's Committee on Racial and Gender Bias in the Justice System have serious implications for all lawyers. Whether biased conduct and attitudes result from insensitivity, indifference, ignorance or prejudice, they have a negative impact on the administration of justice and the public's confidence in the justice system.
Regardless of whether lawyers' practice areas bring them into the courtroom, as officers of the court, lawyers must act to ensure that the justice system is fair and free of bias.
The Philadelphia Bar Association is proud to work with the Supreme Court and other stakeholders in the justice system to take specific measures to make the achievement of a more equitable and non-discriminatory system of justice a priority in the Commonwealth.
I hope you have seen that some of our ideas are innovative, and perhaps I have provided the opportunity for you and others to learn from some of the examples I think we are setting. We certainly look forward to the opportunity to learn from the Interbranch Commission, and to work with it in advancing the goals we share.
Thank you. 
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