Report from the States

Judicature, March/April 2011 | Go to article overview

Report from the States


Introduction

As described in the inside cover of this and all issues of this journal, the mission of the American Judicature Society is to "secure and promote an independent and qualified judiciary and a fair system of justice." The goal of Judicature is to act as a "forum for fact and opinion" in accordance with this mission.

This mission and this goal is the basis for this new regular feature. Members of the National Advisory Council of AJS have agreed to prepare short pieces about what is happening in their states. These can relate to rules changes, budgeting priorities, activities of the judiciary, or arty other topic that addresses the administration of justice and improvement in the justice system. The first two reports appear below.

We encourage your feedback about this new feature. We particularly encourage you to submit short pieces that we can include in future issues. Contributions are not limited to members of the National Advisory Council. "Reports" should be no longer than 300 words and sent to David Richert, the editor oí Judicature (drichert@ajs.org).

Martin H. Belsky

Chair, National Advisory Council

Dean and Randolph Baxter Professor of Law

University of Akron School of Law

belsky@uakron.edu

New class action residual fund rule helps low-income Hoosiers

The Indiana Supreme Court has amended Indiana's rule regarding class action residual funds, Rule 23(F) of the Indiana Rules of Trial Procedure. Rule 23 now requires that at least 25 percent of class action residual funds be disbursed to the Indiana Pro Bono Commission to increase access to justice for low-income Hoosiers. Under Rule 23 "residual funds" are funds that remain after the payment of all class member claims, expenses, litigation costs, attorneys' fees, and other court-approved disbursements. Under the doctrine of cy près, judges and counsel can recommend that residual funds be put to their "next best" use for the aggregate, indirect, or prospective benefit of the class members.

The amendment to Trial Rule 23 is similar to cy près rule changes in other states such as Washington and Massachusetts. "In the coming years, more states are expected to pass laws and adopt rules to direct residual funds to public interest projects," noted Thomas Doyle in his July 2010 article in The Federal Lawyer, "Residual Funds in Class Action Settíements: Using 'Cy Pres" Awards to Promote Access to Justice."

This amendment to Rule 23 creates a source of funding to assist low-income Hoosiers with critical legal needs. There is a huge unmet need for the assistance that the Indiana Pro Bono Commission and the pro bono disüict programs provide. The 2009 Indiana study of the legal needs of the poor, "Unequal Access to Justice: A Comprehensive Sutdy of the Civil Legal Needs of the Poor in Indiana," found that the greatest needs were in the area of consumer finance, family law, housing, public entitlements, and health. On average, 62 percent of those who sought legal representation from the pro bono districts and 75 percent of those who applied for assistance from Indiana Legal Services were unable to obtain it.

Cy près awards can help bridge that justice gap by expanding the capacity of the pro bono districts in Indiana. Recent cy près awards in other states include a $2.6 million award to the Texas Access to Justice Foundation and five Texas legal aid providers. The Chicago Bar Foundation received cy pies awards in several diffèrent cases and used that funding for help desks in state and federal courts, guardian ad litem programs for disabled adults, and initiatives to help victims of predatory lending and other consumer fraud, among other things. …

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