Access to justice is a complex problem to solve. We certainly don’t have all the answers and it’s something that we strive to play a key role in, too. This is why it’s so important for all law firms- including solos and small firms- to take a role in addressing access to justice as well.
Everyone who has a legal problem has to get that problem solved in some way. Whether they are able to hire an attorney, represent themselves, or a default judgment is rendered because they never answered the issue. The bottom line is the same: too many people are going without getting legal help from an attorney due to access issues.
Lawyers are expensive and can be hard to find or difficult to deal with 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 and have access to quality legal representation when they need it?
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?
We believe that a four-pronged approach is the only way to really address the challenges in the access to justice problem:
- Making courts more accessible
- Increased funding for nonprofit and public legal services
- Modernized regulation and ethics rules to incorporate representation of underserved communities
- Championing new law firm business models that are scalable and client-centric
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The Cost of Legal Services
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 or providing alternative pricing options like a sliding fee scale. You would have to get your fee below $400 for any given legal service.
Value, Not Affordability
On the other hand, ABA Staff Counsel Will Hornsby has argued that affordability isn’t really the only 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.
In his former practice, attorney Sam Glover 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 his firm 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 if you give away 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?
Is it possible to bring all these data points and anecdotes together and come up with a prescription for increasing access to justice?
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.
Access to Justice Statistics
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 cases 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.
Want to learn more about Access to Justice? Get the first chapter of The Small Firm Roadmap.