Usually, when people outside of the legal profession talk about the legal system being imperfect, it is about a criminal justice system that is so suffused with racial bias as to be untenable.
Lawyers know, however, even if they never discuss it, that the civil system is also critically damaged. Half of Americans aren’t able to come up with $400 in an emergency, which almost certainly means they aren’t hiring a lawyer when trouble arises. Legal Aid is criminally under-resourced and underfunded, which means even people that qualify for representation through a legal services organization aren’t getting assistance. That said, outside of certain pernicious civil problems that plague many individuals who fall into the access to justice gap—domestic violence, evictions, debt collections, foreclosures—even lawyers likely generally assume that the remainder of the civil system runs relatively smoothly, with both sides of a dispute having access to an attorney. It turns out that isn’t even remotely true.
Richard Zorza looked at some of the data from the National Center for State Courts’ Landscape of Litigation in Civil Courts. After playing with a data set of 650,000 cases from a random selection of ten urban counties, Zorza figured out that nearly 70% of all civil cases1 only have an attorney on one side of the equation, and that side is usually the plaintiff. Here’s Zorza’s chart in all of its not-at-all-really glory:
This isn’t a gap. It’s a chasm. Basically, if most people get sued, they are going to court without a lawyer. Period. Put another way, the users of the court system aren’t primarily lawyers and judges like we tend to think. The primary users are unrepresented parties, and nothing about the system is designed for that.
Zorza’s comments about this feel like hyperbole, but they aren’t.
What a shattering change to the self-image of courts this requires, and what a challenge to access to justice, and what a rethink of our whole court management, indeed whole civil justice system, challenge.
Zorza suggests some solutions on the court side of things: educating and selecting judges so they understand that self-represented litigants are the norm, not the exception, building out technology for the self-represented, not just lawyers, and caseflow management for those who need help most.
Lawyers have a real opportunity to be the drivers of change here. No, this won’t be solved with more pro bono work or an app. Lawyers need to bring pressure to bear on the system to enact reforms of the sort Zorza proposes. We also need to rethink whether we are necessary for the entire life-cycle of a case. Maybe our job is to help navigate only initial filings or provide a better understanding of the steps that occur in litigation rather than representing someone the entire time. Maybe law school needs to be redesigned to not just emphasize but require significant assistance to non-represented litigants. Maybe we need to rethink the prohibition on the unauthorized practice of law and throw open the marketplace. But there’s no “maybe” about the fact that we have to do something, because right now we’re participating in an absolutely broken system.
Zorza omitted domestic cases, which have an even higher rate. One study shows that about 80% of people in family court are pro se. ↩