Douglas Cummings, Executive Director
East River Legal Services
335 N. Main Ave., Suite 300
Sioux Falls, SD 57104-6038

Dear Doug:

    Thank you for the timely submission of South Dakota’s state plan, developed in response to LSC Program Letters 98-1 and 98-6. Please excuse this much delayed written response to your report.

    We recognize the considerable work that went into this plan and continues to go into your planning efforts. The staff of the Legal Services Corporation’s Office of Program Performance has thoroughly reviewed the plan and would like to share the following observations with you. They reflect the information from the March 13 update to Reginald Haley, our conversations, and my recent visit to all three programs The observations also include developments since the report was initially submitted. We want to emphasize that our letter is a "feedback" document and should not be viewed as a criticism. We are available to answer any questions or concerns about our response to your plan and to provide assistance to you in your planning work.

    At the outset, we note with appreciation South Dakota’s planning efforts over the past two years. We are pleased that during the time between the initial submission of the plan and receiving this letter, your planning efforts have continued. Indeed the initial report reflected activities of the three individual programs and the challenges they face rather than collectively addressing the seven programmatic areas described in Program Letter 98-6. The March 13^th update reflects a considerably improved comprehensive planning approach.

1. General Comments

   In order to place our comments on the South Dakota state plan within a context, it is important to understand what we look for when we review a plan.

   1. Coordination of efforts. Coordination of existing legal activities is required to insure that no community of low-income clients is excluded from securing and enforcing their legal rights, and that all low-income persons in the state have appropriate access to the civil justice system. To this end, a state’s legal services programs must coordinate efforts with one another, with other providers’ services to low-income residents of South Dakota and with funders. A good plan sets out how this coordination occurs and what changes are necessary to improve current efforts and meet future needs.

          The initial plan indicated a substantial lack of coordination among the three LSC funded programs in South Dakota. We note that recently there has been substantial improvement in the coordination. This improvement is reflected in the support of all three programs for the technology grant applications to LSC, increased contact and collaboration among the programs on a variety of issues, and the proposed merger between Dakota Plains Legal Services and Black Hills Legal Services which will be discussed at greater length below.

          Although the individual programs engage in considerable coordination with the few non-LSC legal services providers in their service areas, there appears to be little collective statewide coordination such as with the Law School. Likewise there is coordination with local social service agencies, such as the domestic violence shelters, but none at the state level. We strongly urge you to establish such statewide partnerships. They enhance funders willingness to commit resources in a given state and the partners’ capacities to increase both the amount and effectiveness of services.

   2. Common purpose. A viable plan is founded on shared goals, purposes, values, principles and norms to ensure a consistent vision and purpose. It spells out as early as possible what the planners are attempting to achieve through their plan. Sometimes planners have these in mind but make the assumption that others will see them as inherent in their planning effort.

          The South Dakota plan does not include a common vision, shared values, or principles to guide the planners and the planning process. Developing and reaching agreement on a common purpose or vision helps to clarify and resolve any difference among the planners, thereby strengthening the process and its outcomes. Also it is our experience that when planners have reached consensus on goals, they can better prioritize tasks and measure success against the norms they have established. A common vision guides the planners through the years and provides a foundation to which they can return as they evaluate progress and set new objectives.

          Florida, for example, has adopted the touchstone of "energetic, affirmative, client-centered advocacy." Proposed activities are examined by planners to see if they advance "energetic, affirmative, client-centered advocacy." Strategies that cannot be seen as leading to this goal are abandoned. In the same vein, New Jersey planners articulated (1) a belief in the need for legal services programs to function as a "concerted, coherent, closely coordinated legal assistance delivery system" and (2) the need to develop additional resources to expand the provision of legal services; (3) the need to incorporate the views of clients and key partners in making major decisions about how to design and implement a system of high quality comprehensive legal services; and (4) the need to target legal services resources to achieve the greatest measure of equal justice for clients and economically disadvantaged people. That state’s plan then showed how its vision would be realized through planning efforts. Washington State developed a set of hallmarks and core capacities needed in the civil justice system to achieve its vision. The hallmarks, agreed upon five years ago, continue to guide the planning process today. Oregon likewise established "equal justice values" in 1996 that continue to frame the planning issues.

          We ask that South Dakota planners spend some time candidly and fully discussing what they believe is the best civil legal services delivery system for the state. Based on the outcome of these conversations, planners should then establish a set of articulated values and principles that they adopt as the foundation to help them achieve that vision.

   3. Stakeholder involvement. Meaningful planning reflects the participation of all individuals, organizations and institutions within the state that have a stake in the state’s system for ensuring equal justice. We are pleased that participation in South Dakota’s formal planning process has been expanded from the three LSC program recipients. A critical partner in all successful state planning efforts is the state bar association. Without the state bar’s active partnership and participation, efforts to achieve a comprehensive, integrated legal services delivery system within the civil justice system cannot achieve an optimal outcome. Similarly, participation by representatives of the judiciary has been an important factor in noteworthy planning efforts in other states.

          In addition to the bench and bar, there are other stakeholders who need to be involved in a systemic planning effort. In other states planning partners have included representatives of domestic violence coalitions, law schools, homeless prevention organizations, client organizations and an array of social and legal services providers. We recognize that appropriate partners are dependent on the individual circumstances of each state but as we have discussed, for planning in South Dakota to succeed, it is imperative to bring in additional stakeholders. We encourage planners to engage others who are also committed to equal access to justice for poor people. We urge South Dakota planners to share their plan as widely as possible with appropriate groups if they have not already done so. Usually, the more that other organizations feel included in the planning process, the more they will support the implementation of a given plan. LSC encourages you to continue expanding the equal justice community of planners in South Dakota.

   4. Assignment of tasks. A good plan presents its goals both in terms of measurability and of who is responsible for ensuring their completion. Responsibility is either assumed or assigned. Moreover, responsibility is shared among everyone who is covered by and included in the plan. In a high-quality planning document all of the legal services providers play important roles and perform essential tasks.

          While South Dakota’s plan does present some timelines, and a number of activities have moved forward since it was submitted, as a next step, the planners may want to set out specific tasks, assign responsibility for their completion to individuals and organizations and establish definite time frames. Formal deadlines with assigned accountability are often quite useful tools to help activities move forward since they create common expectations about completion. They are helpful too because they highlight agreed-upon goals. Furthermore, individually and collectively, discrete accomplishments generate a sense of achievement that inspires additional movement and deepens a sense of ownership in participants.

   5. Broad vision. An effective plan indicates that all of the legal service providers and their partners looked beyond single issues or a single provider and examined client needs and organizational capacities at the state level. This allows participants to design the best possible methods and mechanisms to address present and future needs of clients within the state. A plan that provides for coordination of legal services will contain concrete information about what the legal service providers see as the major issues confronting clients and client communities. It will indicate how these providers will collaboratively respond to these issues, and it will describe what they envision for their collective future and for the future of their delivery system.

          It is unclear from the materials submitted what the planners see as the major issues facing low income residents of South Dakota. Likewise, it is not clear if South Dakota has in place delivery mechanisms that will ensure that all low-income persons within the state are able to enjoy meaningful and appropriate access to the civil justice system including those individuals who may be disenfranchised, unpopular, or not adequately served by legal services providers. We ask that these critical issues be addressed in the response to this letter.

   6. LSC requirements. A comprehensive plan will fully respond to all of the issues identified in Program Letters 98-1 and 98-6. Our comments on those specific issues are found below. Again we acknowledge South Dakota planners= understanding of the importance of good planning as evidenced by the continuing efforts undertaken prior to receiving a formal feedback letter from LSC.
      
2. A Delivery Network that Maximizes Client Access, Efficient Delivery, and High Quality Legal Assistance.

       We congratulate you on the successful technology grant application to develop, and to eventually implement statewide, a centralized intake and telephone advice system utilizing law students. Having evening hours for service demonstrates a sensitivity to the low income community and a recognition that most low income clients work. When developed, such an intake system, with one statewide toll-free telephone number, will allow applicants to be screened for eligibility, referred to the appropriate provider, or given advice and information regardless of where they may live within the state. This project will also help facilitate integration of the delivery system in South Dakota.

        We ask that the planners share with us their specific goals, objectives, and measurable outcomes for the integrated intake system. For example, tell us why you selected this approach to intake, the benefits you expect that it will provide to the low income community in South Dakota, how it will strengthen services to clients, and the methodology you will use to evaluate it. Also please tell us the outcome of discussions with the bar to link this effort to pro bono activities.

3. Coordinated Efforts and a Capacity to Utilize New and Emerging Technology to Assure Compatibility, Promote Efficiency, Improve Quality and Expand Services to Clients.

       We applaud the planners’ recognition of the importance of technology and commitment to using available technology to the greatest extent feasible to expand client access to services and to increase the effectiveness of service delivery. This commitment is evidenced by the recent upgrade in the computer capacity of the LSC recipients. All case handlers have computers on their desks. These are networked within the individual offices and all have internal e-mail capabilities. Each program office has at least one computer with access to the Internet. Although this is a good improvement, the planners need to consider the importance of each case handler having access to external e-mail and the Internet at his/her desk to facilitate efficiency.

       We are pleased that under the grant referenced above, the planners will also take advantage of video teleconferencing technology that currently is used extensively in South Dakota for a variety of functions including medical services, continuing education events and meetings. As this project moves forward, you may want to consult with other legal services programs that have undertaken similar projects. Florida Rural Legal Services has developed the capacity to do intake and provide services with clients in library locations throughout its service area. In rural Louisiana, Kisatchie Legal Services Corporation makes use of teleconferencing for staff meetings and for attorney/client conferences which results in both staff and clients avoiding driving long distances and still being able to meet face to face.

       The planners may want to establish additional connectivity and electronic communication goals for all the stakeholders in the South Dakota civil justice system. Besides improving and coordinating technological capacities among providers, planners should consider how low income people can use the various new technologies to meet their legal needs. Some examples of this approach include interactive web sites with pro se information, forms, and instructions and remote intake from public library and other sites. Technology can give pro bono attorneys access to poverty law materials, such as briefs and pleadings, and in recruitment of additional private attorneys.

       We have heard, but not confirmed, that the Bush Foundation would like to fund a substantial technology effort in South Dakota. We urge planners to make the exploration of this possible grant a very high priority.

   The Legal Services Corporation is able to provide technical assistance to planners in this area. Glenn Rawdon of our staff assists programs on technology issues. Feel free to contact him at (202) 336-8868.

4. Coordinated Effort to Expand Client Access to the Courts, Enhance Self-help Opportunities for Low-Income Persons, and Provide Preventive Legal Education and Advice.

       The reports do not address client access to state courts. We understand that pro se forms and procedures for some matters have been developed for a number of tribal courts and work is continuing to improve and expand those efforts. Access to the courts for everyone whether they can afford an attorney or have to be represented by a legal services or pro bono attorney is a foundational equal justice issue. Clearly courts prefer that litigants have attorneys. However, in many states including Arizona and Oregon, courts have come to recognize that litigants in many situations have no choice but to proceed without representation and have attempted to implement procedures to assist them. These changes have included hiring court facilitators in Oregon, developing more easily understood forms and instructions in Arizona, and establishing interactive pro se web sites in Maine and Washington.

       We urge South Dakota planners to review court access issues and to form a committee of appropriate partners, including the bar and court personnel, to address this issue in South Dakota by developing goals and an action plan to increase access. While we recognize that the need is particularly great in domestic abuse, the planners might want to explore housing and consumer law, also. They may also wish to study the use of technology advances to enlarge access to court forms through library terminals for pro se litigants.

       The reports state that each entity develops its own community legal education materials. This approach leads to needless duplication of efforts among providers. Given the limited resources available to serve low income residents in South Dakota, we urge planners to establish a committee or work group to review current materials, determine additional materials that need to be produced, and establish a protocol for keeping materials up-to-date. Specific tasks should be assigned along with time frames for completion. Please tell us the status of these efforts in the next report, discussed below in "Next Steps."

5. Coordination of Legal Work and a Capacity to Provide Training, Information and Expert Assistance Necessary for the Delivery of High Quality Assistance.

       The reports do not address the coordination of legal work among providers. In most states with multiple legal services programs, coordination is achieved through substantive task forces. Successful task forces have assigned, committed leadership; meet on a regular schedule; ensure active participation and communication among members; and complete assignments on time. They frequently include pro bono attorneys and other legal and social service providers and clients. Programs have found that collaboration on high priority substantive issues maximizes scarce resources and ensures that efforts are not duplicated or inadvertently weakened by cross purpose initiatives. They have also found that task forces have proved to be an excellent vehicle to provide training and updates in changes in the law for staff. We ask that the planners address the coordination of legal work in their next report.

       The report does not explain how coordination occurs with other providers such as the domestic violence and the elderly networks. Since both East River and Black Hills receive the state grants for services to seniors, our assumption is that there are formal mechanisms for coordination with advocate groups representing that population. Please describe this and other coordination in the next report.

       The reports note that providing training locally is not a high priority, primarily due to a lack of resources and the size of staff. Employees go to national organization training events and CLE events sponsored by the state bar. Given the technology grant as well as increased efforts to engage the private bar, we suggest that planners look again at the need for and the importance of local and frequent training, asking how it can be provided cooperatively rather than separately. The planners may want to establish a working group or committee to address this topic.

6. Coordination and Collaboration with and a High Degree of Involvement by the Private Bar.

       We congratulate the programs and the leadership of both the South Dakota State Bar Association and the local bars for their thoughtful work in increasing private attorney involvement in South Dakota’s equal justice efforts. We encourage the planners to offer a wide variety of opportunities for private attorneys to participate in equal justice efforts in addition to direct representation. Potential opportunities might include assisting with self-help clinics, providing community legal education, conducting intake and giving legal advice by telephone, mentoring new legal services staff, or sharing expertise in areas such as tax, that are outside the usual legal services practice.

7. Diversified Funding and Coordination of Resource Development Efforts.

       It is common knowledge that legal services organizations need diversified funding bases. Building coalitions that pursue creative resource initiatives will expand the number of groups participating in the equal justice community. A broader array of funding resources also will allow the legal services programs and their partners to offer additional services much needed by the low income community.

       We recognize the difficulty in expanding resources in a state with such a small population and little wealth. We are pleased that in this context, planners consulted with the Management Information Exchange fundraising project for ideas and assistance in seeking innovations in resource development. We encourage the planners to follow up on those efforts.

       In many states equal justice efforts are supported by filing fee surcharges, established with support of the bar and after solid strategic planning. Successful efforts have often taken several years of work but now are a continuing, reliable source of funding for legal services to low income clients. We note the previous efforts to obtain this funding source and the plans to continue to pursue it.

        IOLTA provides a substantial source of funding for equal justice work across the nation. However in South Dakota the portion that goes to serve low income residents seems quite small. We encourage planners to investigate ways to increase IOLTA and the barriers to a larger proportion going toward services for poor people.

       We urge the planners to persevere in their resource development efforts even though they will face considerable challenges. The low income residents of South Dakota deserve everyone’s best efforts in working to obtain the resources necessary to make equal justice a reality rather than an empty platitude.

8. A Configuration That Maximizes the Effective and Economical Delivery of High Quality Legal Services Throughout the State.

       As noted above the planning reports reflect progress toward collaboration and integration among the South Dakota programs. We congratulate the planners, boards and staffs of Black Hills and Dakota Plains on their decision to consolidate. The Black Hills 2001 narrative proposal quite correctly notes the difficulties small programs face in obtaining additional resources since funders now look to regional or statewide entities to maximize the services their grant dollars can provide.

       A hallmark of excellence is on-going evaluation and review of current systems to ensure that the most efficient and effective services can flow to the low income community. It is in this spirit that we ask the South Dakota planners to continue to examine configuration and include a discussion of the pros and cons of creating a statewide program to serve all of South Dakota in the response to this letter. Since the total resources in the state available for legal services delivery to clients are less than $3,000,000, we continue to have reservations as to whether the existence of two LSC funded programs in South Dakota is the most effective and efficient administrative structure for your state justice community. Having said this, we also recognize the importance of planners’ taking into account the historical and cultural context of Native American clients and issues while examining an optimal delivery system.

9. Next Steps

       The Legal Services Corporation acknowledges South Dakota=s efforts to create a comprehensive, integrated delivery system. We ask that you address the concerns raised in this letter about the 1998 plan and the recent update by May 31, 2001. At that time, also please provide information on accomplishments achieved since the initial plan was submitted. I have enclosed a copy of the Washington State plan along with its Hallmarks. You and the planners may find it helpful as you articulate your vision, goals, measurable objectives and the tasks necessary to achieve your vision. We wish you much success in this endeavor. Please contact Robert Gross, Senior Counsel for State Planning, at (202) 336-8856 if you have any questions or want to discuss any of the issues raised in this letter.