Access to Justice is a Lot More Complicated than Making Lawyers Affordable

Lawyers are expensive, which means there is a gap between people who can afford a lawyer and those who can get access to free legal services. And it is probably a big gap. So how do we fix the gap and make it so that everyone can get the legal help they need at a price they can afford?

Well, it seems pretty simple. If we can make it less expensive to hire a lawyer, more people should be able to afford the legal help they need. That will narrow the gap, right?

Maybe not. Maybe there’s more going on.

Even $400 Is Too Expensive

The Federal Reserve investigated savings in the US in 2014, and found that half of Americans couldn’t come up with $400 in an emergency. And a substantial portion of the rest would probably need to borrow that $400. So any legal services that cost more than $400 are unaffordable for half of Americans.

If that’s right, you can’t nibble away at the access-to-justice gap by making legal services just a little bit cheaper. You would have to get your fee below $400 for any given legal service. And let’s be honest, people who can’t come up with $400 in an emergency probably can’t come up with $399, either. The “magic number,” if there is one, is probably half that.

Value, Not Affordability

On the other hand, ABA Staff Counsel Will Hornsby has argued (pdf)—persuasively, in my opinion—that affordability isn’t really the problem.

When we predicate our solutions to improving access to legal services on the presumption that those services are unaffordable, we misdirect our resources from solutions that are better applied to increasing engagement. The research clearly indicates the crisis involves the recognition, or lack of recognition, by people that their problems have legal solutions and decisions need to be made determining when it is of value for people to pursue those solutions.

If that’s true, we should expect to see people who are willing to pay once they are made to appreciate the value of legal services.

DIY Fail

On that note, here is an anecdote. When I interviewed Billie Tarascio for the podcast we talked about the free legal document portal she built. Even though the templates she makes available for free are the same ones the lawyers at her firm use, the DIY tool is pretty much a failure. People aren’t using it. Instead they are saving up to pay Tarascio’s fee.

My experience was similar. I gave away a simple, easy-to-use template to help defendants in debt collection lawsuits answer and serve discovery requests. But a lot of people who downloaded the template paid us to help them prepare the documents anyway.

So maybe people just don’t understand what they are paying you for until you show them. Even though Tarascio and I gave away perfectly good, easy-to-use documents for free, people want to know they are doing it right, or that the form they have is the right one to solve their problem. And they are willing to save the money to pay for it. That’s basically what Hornsby’s research says, too.

Pro Se by Choice?

Here’s another data point. About 80% of the parties in family court are pro se. Most lawyers look at that number and see a big pile of potential clients. Jordan Furlong has a somewhat different perspective. Maybe we should understand that number to mean that 80% of the parties in family court don’t need a lawyer. Or don’t think they need a lawyer, at least.

So if 80% don’t need a lawyer or are getting along okay without one, why is the court system still constructed on the assumption parties will be represented? Even those who are represented suffer because pro se parties bog down the court. After all, if there’s one thing that really could disrupt the legal profession, it is the judicial system.

Maybe, in addition to people who don’t yet appreciate the value of a lawyer and people who actually can’t afford one, there are some people who don’t want to hire a lawyer at any price. Not all 80% of those in family court, surely, but some percentage of those probably just aren’t interested in hiring a lawyer.

Who Really Wants a Cheap Lawyer?

Consider one more thing regarding affordability. Do we really think people want a cheap lawyer? Do we think the public really views lawyering as something that any knucklehead with a law license can do? That’s certainly not my experience. In my experience the public understands that there are good lawyers and bad lawyers, and that good lawyers are more expensive than bad lawyers. Which makes perfect sense after all.

So even if the cost of getting legal help drops below the level people can afford, how will those offering that help convince the public that they are offering quality legal help at those prices?

It’s Complicated

Is it possible to bring all these data points and anecdotes together and come up with a prescription for increasing access to justice?

I don’t think so. I think we have a tendency to try to look at access to justice as One Big Problem, but it isn’t. It’s hundreds, thousands, or millions of different problems.

Different problems require different solutions.

For example, it turns out you can make legal help for parking ticket appeals accessible to just about everyone who lives in cities with online appeals processes. But that process certainly won’t work for every type of legal problem.

Document assembly and automation may play a role, too. Many courts already do a lot through their self-help desks, but imagine courts with DIY portals that walked pro se parties through the forms and automated filing. (I know it is hard to imagine courts doing a good job at this given how awful e-filing systems are, but a fella can dream!) Or if not courts, maybe Legal Aid.

But you can’t solve every problem with a slick app or a DIY portal, either. Some legal problems still (and will for the foreseeable future) require an actual lawyer representing a client. Making those services more accessible is not just (or not always) a matter of making them cheaper. It may have as much or more to do with marketing (communicating the value of lawyers to the public) as price tags.

I don’t have a prescription for narrowing the gap or getting rich with new business models that lower the cost of legal services to serve those currently in the access-to-justice gap. There is no one prescription. There are lots of prescriptions, and none of them are probably as simple as lowering fees.

If all we do is focus on lowering fees, the access-to-justice gap probably won’t change much.

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  • Well said, Sam.

    Your post makes me think about the debate over non-lawyer ownership, too. While I agree with many of the problems the advocates of non-lawyer ownership raise about the current state of the justice system, access to justice usually the first they bring up, I’ve yet to hear a compelling explanation how their solutions will actually do anything to narrow the access to justice gap.

    Many of the reasons why, I think, you quite nicely outline here. If there is no one reason why the access to justice gap exists, there’s no way (absent an absolute miracle that Richard Susskind has yet to persuade me that he’s got) that one thing that will solve the problem.

  • Gee10

    Thoughtful post, Sam. One way I think about the Access to Justice Gap is that it isn’t really about the 80% of people who go to family court unrepresented. Some might, as you say, be perfectly happy and competent to self-represent. Instead, I think we should first focus on the needs of the million or so people every year who, according to LSC research, request free legal services and get turned away. These aren’t the folks Will Hornsby is talking about who don’t realize they have a legal problem – they specifically do realize it, they just can’t get anyone to help them!

    To take a wack at that problem, I’m interested in things like the recent finding in Michigan that for certain types of cases, building automated tools yields the same result as using humans with a JD to do the work (in their study, it was uncontested divorces. Here is the full report: http://goo.gl/yYmw3O (PDF)). A few years ago, Jean Charn wrote about the need to celebrate this type of “null result”: the situation where intelligent, automated self-help systems yield the same result as attorneys (here’s Jean’s piece: http://www.yalelawjournal.org/essay/celebrating-the-null-finding-evidence-based-strategies-for-improving-access-to-legal-services).

    I agree with Jean: people interested in this area should look for tasks where people are getting turned away from legal services, then determine which of those tasks a computer can do as well as the human. It won’t solve all problems – or maybe even most of them…but what it might do is free up far more legal aid lawyers who would’ve otherwise been using human labor to do what a machine could do as well. Freeing those attorneys to help on problems where human intervention is needed could meaningfully shrink the gap.

    • That sounds like a sensible way to prioritize according to need/impact. When you can create a non-lawyer solution that solves the problem as well or better than a lawyer for a group of people for whom a lawyer is not an option, it seems like a win-win situation.

  • Cole Combs

    In rural counties in Texas I’ve noticed that the biggest restriction on access is the availability of courts rather than attorneys. My office, and most others around here, offer fairly low cost services because it’s impossible to stay in business if you don’t. You have to make up for the clientele’s average income with higher volume.

    One of the most frustrating things I see for my clients is not only there not being enough courts (and that holds true nationwide, rural and urban) but rather the hours of those courts, and the hours that judges spend actually on the bench making decisions. General civil dockets are wildly inefficient, and for parties who strain to pay $400 it can be nearly impossible to get an entire day off of work, or two if they don’t even get called after sitting in court all day because a contested summary judgment takes up 3-4 hours.

    More judges who work “off” hours (holding court after 17:00) will do more to help blue collar and minimum wage America than DIY forms. Lawyers are already cheap where their clients are poor, else they go out of business.

  • flotiste

    I think this article is written by someone who has never had to struggle financially. I spent nearly a year looking for someone who could represent me at a reduced cost for a divorce, and no one would go lower than a mandatory $3,000 retainer before even doing a minute of work. There was no legal advice, no assistance in who to talk to, and no ability to even get an idea of what the process was to represent myself. $3,000 is 3 times my entire savings, and I don’t see any reason I should pay that much to anyone before they even do any work for me.

    The legal profession is about ensuring it stays in business, by making justice accessible only to the very wealthy, and by ensuring that those who can’t afford a lawyer lose their cases, in order to keep themselves able to justify their 3rd summer home and 2nd yacht by charging extortionate prices to people who can’t afford to even feed their family.