Measuring the Access-to-Justice Gap: Nearly 70% of All Civil Defendants Aren’t Represented

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:

Chart originally published at https://accesstojustice.net/2016/08/26/we-now-have-the-data-that-shows-that-the-one-side-self-represented-case-is-the-dominant-case-situation-in-us-civil-state-courts-and-that-we-need-a-fundamental-rethink-of-the-state-civil-justice-system/

Chart originally published at https://accesstojustice.net

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.


  1. Zorza omitted domestic cases, which have an even higher rate. One study shows that about 80% of people in family court are pro se. 

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  • Ken Chasse

    Devising ways for self-represented litigants to be better self-represented litigants does not justify a law society’s monopoly over the provision of legal services. That majority of society that cannot afford legal services pays for the justice system where we lawyers earn a much better living than they do. Those taxpayers have a right to demand that their law societies provide lawyers in a fiduciary relationship, doing all the work arising from each client’s legal problems, and doing it at a reasonable cost. Charity is not good enough to prevent the abolition of law societies in favour of regulators who are more responsive to the democratic process. Here’s how to bring that about:-
    “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (hyperlink to pdf download of full text) At:

    http://ssrn.com/abstract=2811627 .

  • Matthew Kreitzer Esq

    I’m more in favor of a government led reformation of the marketplace. Many practitioners may have heard passing reference to “sliding scale” and “low-bono” firms that are beginning to grow in popularity. Instead of de-regulation and harming the end consumer, I would rather promote increased taxation and reformation in the Grant process.

    There are plenty of hungry, young, debt-ridden attorneys out there looking to build a client base. The thing that stands between them and service includes outreach, costs of entry into the marketplace, and debt barriers.

    If we were to grant low-bono firms IBR and make it easier for new low-bono/non-profit firms to petition for state or federal grants, the service gap would lower, the employment problem in the marketplace would shrink, and we wouldn’t be stuck with non-lawyers mucking up important, complex legal matters.

  • David

    First, this article may be interesting, but is not truly helpful as it provides no other data or information. It presents on picture of life on one particular day (or month or whatever); it fails to show any trend, or usable data. One needs a historic review to appreciate where we are, in light of where we have been. While I have no historic data, my impression is that defendants in particular have not had attorneys to represent them in the past. If they did, then why did Gideon v. US ever happen?

    So yes, there may be a problem. But, does changing the system to accommodate pro se clients achieve a respectable goal? Does that not go to the actual value of services? By analogy, does our society want to unlicense physicians and nurses so that people can prescribe their own drugs, treatments and therapies? Should hospitals have people on staff to assist pro se medical patients attempting to undertake their own surgeries?

    Yes, in both instances there are economic problems causing access problems. But, in our society it appears that like health care and other “rights”, free access to legal assistance, or any access to legal assistance (or medical care), is not a right our society is willing to fund.