HiL Comparision of Nine European Countries Legal Aid Systems Should Get Everyone Thinking About Costs, Quality, and System Change

Netherlands-based HiL has released an absolutely fascinating study of nine European legal aid systems.  This not only compares costs (based on hard numbers)  , but also hypothesizes which organizational, structural, and legal system aspects seem to be driving higher or lower costs.  These are obviously of very high relevance as we try to think about the most effective way to 100% access to justice in the US, and as middle and low income countries explore building systems.  The study attempts to put the results in a quality context, but there appears to be no hard data on this.

Here are extracts of the offered hypotheses of the nine driving factors (I have removed most state-level detail from the ends of the paragraphs below, and not put in “. . . .” there):

1. Reducing complexity of procedural routings for problem categories

All else being equal, the costs of legal aid are likely to be higher if court procedures are more complex. The same will be true if two or more procedures are needed in order to resolve a conflict in a certain relationship instead of one. In these situations, more people will need legal assistance, and legal assistance will be more costly, because more effort has to be spent to navigate the procedure. We found some indications of a rather strong relationship between legal aid spending and complexity of procedures in Chapter 4.

2. Further developing specialised procedures for frequent and urgent problems

Specialised procedures before courts or tribunals may exist for employment matters, social security, family matters, consumer cases, refugee and immigration and housing. These procedures are often less complex, more straightforward and more easy to use for citizens. Although the number of cases before these tribunals can be quite substantial, Chapter 4 offers no example of a specialised procedure leading to high costs of legal aid. To the contrary, such procedures seem to lead to lower spending per case than procedures for civil or administrative cases in general.

3. Services integrating legal analysis with other disciplines

In fields such as debt restructuring and family disputes, legal assistance is being integrated into more holistic services based on interdisciplinary approaches. These are likely to improve quality of the outcomes for clients. The effect on costs is uncertain. If integration means involving more professionals per case, then it is likely to increase costs. If one person combines the necessary skills and fields of knowledge, costs will be lower (Sections 4.4, 4.8).

4. Reducing the services that are a monopoly of the legal profession

A monopoly for the legal profession on representation in procedures at courts is likely to increase the costs of legal aid. States are then obliged to provide legal aid under ECHR case law for citizens with limited means and justiciable problems of sufficient importance. Moreover, such a monopoly is a restraint on innovation of legal services. In Finland, no monopoly for the legal profession exists, whereas Finland seems to achieve a high level of quality at low costs.

5. Improving legal information/advice which is a low cost service and facilitates negotiation and representation

Legal information and advice is available from a range of different sources. It is needed by many people and rather easy to standardise. Once produced in the forms of manuals, guidelines or web text, it can be delivered at low marginal cost to each additional user. So models of delivery include websites, telephone helplines, advice by paralegals, lawyers, social workers, trade unions, consumer organisations or state officials, as well as over the counter services at community justice centres. Costs per client served with information or advice are low, that is in the range of €30 up to €300, and spending on this primary form of legal aid tends to be 10% of the overall legal aid budget (Section 3.1). There is reason to believe that availability of trustworthy legal information and advice makes it easier to settle and adjudicate cases in a fair way as well. It is difficult to find good business models for information and advice, however, so government subsidies may be needed here (Sections 2.3.1-2 and 5.1).

6. Fixed fees instead of hourly fees for legal aid lawyers

Most state legal aid systems pay fixed fees to lawyers for each legal aid product they deliver. England & Wales and the Netherlands (for cases requiring more than three times the number of predetermined number of hours) have important exceptions to this and then pay a fee per hour spent by the lawyer. . . . Spending under such schemes has a tendency to spin out of control quickly and is indeed substantial in both countries. This suggests states should consider to change these schemes. One option is to design additional fixed fee categories for homicide, major fraud and other rather frequent complex cases. Another option is to let an appropriate fixed fee in complex cases be established beforehand by (independent) legal aid authorities (Section 3.6).

7. Fixed fees on market for legal services

In Germany, there is a tradition of lawyers charging fixed fees related to value at stake. So clients with limited means and a value at stake in the range of €500 to €10,000 can obtain legal assistance up to representation in court for fees in the range of €100 to €2,000. Many cases will settle before this fee level is reached. This may be one of the explanations why Germany (although it has a strong monopoly for lawyers which drives up the costs of legal assistance) has low spending on legal aid whereas there are no indications of poor quality procedures and outcomes. This German system is difficult to implement elsewhere because it requires extensive fee regulation. But the effects can replicated if suppliers of legal services start offering fixed fee services, as they now do in many countries, and governments stimulate this (Sections 3.6, 3.9 and 5.2).

8. Closed budget

Belgium and France both have a closed budget and also low costs of legal aid as a percentage of GDP. In practice, Belgium has an open budget, because the fees of lawyers are retrofitted to make sure they receive a minimum fee. Under a closed budget, additional demand for legal services subsidised by the state is met by lowering the price per product paid to lawyers. There are some reasons to believe that this system may eventually lead to quality problems.

9. Compensation levels

The amount of compensation lawyers receive per legal aid product is very different per country. Based on the available data, it hard to establish which proportion of this difference can be attributed to the amount of work that has to be done and which proportion can be attributed to the level of compensation paid to lawyers. There are indications, however, that effective remuneration per hour worked is substantially lower in France and Belgium than in the UK and the Netherlands (see section 3.6). This being said, the compensation levels can have an influence on the quality of those lawyers that provide legal aid services. In Belgium and France for example, there are more signals that legal aid is supplied by inexperienced lawyers.

The study offers hypotheses that the following factors have “little impact on costs, and varying impacts on quality.

1. Availability of legal expenses insurance

 2. Preventing justiciable problems

3. Mediation

4. Raising own contributions and income level for eligibility

5. Recovering legal aid money from applicants, defendants or other funding sources

The study suggests that the impact of the following is uncertain, and should be studied further.

1. Products and incentives for negotiation and settlement

2. Reducing the types of problems for which legal aid is available

But:  “.  . . this strategy should be considered in combination with a thorough analysis of how this particular category of problems can be resolved without legal assistance sponsored by the state and, if necessary. be combined with creating simplified and specialised procedures for this category of problems.

This is very powerful stuff, as indeed is the rest of the report.

Obviously the main area of questioning of the results is likely to be the need for proper measures of quality.

 

Posted in International Models, Metrics | 2 Comments

Newly Released “Community Needs and Services Study” Should Trigger Some Rethinking About Barriers and Needs

Rebecca Sandefur and the American Bar Foundation have just (today) released Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study (CNSS).

This very important study went into a Midwestern city and asked people whether they had had problems that in fact (but not in the description in the survey) involved civil legal aspects.  In other words, it aimed not only at problems that people thought of as legal, but at anything that might have a legal aspect.  It surveyed individuals at all income levels.

Headline:  Over an 18 month survey, 66% reported at least one such problem, with an average of 2.1 problems from the whole population.  This is much higher than the ABA 1992 study (1 per person in 12 months).

But:

Americans respond to their civil justice situations in a wide variety of ways, but this variety masks a powerful consistency: rarely do they turn to lawyers or courts for assistance. In the CNSS, the most common source of assistance for people facing civil justice situations is actually themselves. That is, the most common way in which people reported handling civil justice situations is by taking some action on their own without any assistance from a third party. .  .  . People employed [such] self-help for 46% of civil justice situations.

And:

The second most common way in which people responded to civil justice situations involved turning to their immediate social network: 23% of situations were handled with the help of family or friends, either as the sole source of assistance (16%) or in conjunction with a third party advisor or representative of some kind (an additional 7%).  Just over a fifth (22%) of situations were handled with the assistance of a third party who was not a member of people’s social network.

Moreover, the percentage who sought assistance from lawyers was remarkably low.

When third parties other than family and friends became involved, these seldom included lawyers or courts. Situations that were selected for detailed follow up in the life histories provide rich information about how people handle these kinds of events. In these life histories, very few situations involved courts or tribunals of any kind: 8% of the total situations selected for in-depth follow-up.  Of the small number of situations with some kind of court involvement (n=36), people sought advice or other assistance from attorneys in just over two fifths (42%) of cases. In situations with no court involvement, they sought the assistance of attorneys in 5% of cases. (Bolding added)

The biggest shocker, however, is the reasons people gave for not seeking more help:

Why didn’t people reach out further for assistance in handling civil justice situations? Interestingly, cost plays a modest role in people’s accounts of why they did not do more to respond to the situations they faced. Among people who had not gone to any kind of advisor outside of their own social network, the most common reason given was that they did not see the need (46% of the instances in which no advice was sought): either the problem had resolved or they expected it to resolve without getting advice, or they simply felt that they did not need advice. Another important reason for not seeking advice was believing that it would make no difference (offered as a reason 24% of the time). In 9% of instances where people did not or were not planning to seek advice, they explained that they did not know where to go or how to do so. Concerns about cost played a role in 17% of cases in which people did not or were not planning to turn to third parties, including lawyers, for assistance in handling civil justice situations.

Here is the chart.

NohelpreasonWhat to make of these results?

Firstly, as suspected from Canadian and British studies, the extent of legal problems that the public does not identify as such is great.  This may mean that there are many more problems needing legal intervention than we know, or it may be that lawyers tend to think that they are needed far more than the public, applying common sense, simply does not see as practical legal problems. Additional analysis and research would be helpful

Secondly, and much more controversially, the above chart might well suggest that cost is not the primary barrier to access to justice, rather it is perceptions and assumptions.  This is in a sense good news, because it means that the problem may, from a cost point of view, be more soluble than we think — which means that it is much easier to make the argument for whatever resources are really needed.

Third, and this is what really excites me, it may be that the family and social networks of most individuals, as well as they themselves, are much better problem solving resource than we realize.  If this is the case, then it may be our job to develop the resources that will make these helpers more powerful and more accurate than they now are. (You can’t help but think of McKenzie Friends, allowed in most Commonwealth countries, to provide help in the courtroom, as well as web-based information and tools.)

There’s a lot more in here worthy of study.

The study was partially funded by NSF.  Its great to see the fruits of NSF’s interest in access to justice.  Kudos to the DOJ Access Initiative for helping move forward the idea of more research in this area.

Note: a footnote in the Report says that “These initial findings exclude situations involving consumer purchases, health care, and neighborhood and community issues,which will be presented in future reports.”  These will up the prevalence rates, but not massively, I understand.

Posted in Research and Evalation, SRL Statistics | 2 Comments

Canadian Group Offers Guide to Settlement for the Self-Represented

The Canadian Group, the National Self-Represented Litigants Project, has released a very interesting resource: Settlement Smarts for SRLs.

It goes through the process step by step, very much from the self-represented litigant’s point of view.  All too often such documents are legal summaries, rather than this kind of material which really puts the reader in the litigant’s shoes.

Here, for example, is the section on being strategic.

It is important to show the judge that you are serious about exploring settlement. Even if you feel skeptical – for example, if you have approached the other party before and they have dismissed the idea – the judge will be much more supportive and helpful towards you if you state your commitment to trying to find a fair settlement.

Your opening statement to the judge is a good opportunity to describe your commitment to a fair settlement, to explain your settlement goals, and why these are important to you. Try to acknowledge in a respectful way the other side’s goals as well. Try to frame what you want to accomplish as goals – which you can express clearly and firmly – rather than as demands or entitlements.

For example, rather than saying “I am entitled to more access to my kids and there must be no last minute changes” say instead “I want to reach agreement on an access schedule that can enable me to plan ahead and avoid the anxiety of last minute changes”. Or, rather than “I demand payment before I complete work on the deck”, instead try “I need to be paid for my time and materials in order to be able to move forward with my commitment to finish the job.”

You should also mention any previous efforts you have made to reach an agreement – for example making an offer, producing documents, offering to compromise on something – even if the other side did not respond or dismissed your efforts.

It is also constructive for the other side to hear you say that if a fair settlement can be reached, you are committed to following these terms e.g. committing to following an agreed access schedule for co-parenting, or agreeing to completing a job for a customer.

You want to show the judge and the other side that you are “settlement smart.”

I thought this section, which integrated lessons from the group’s 2013 self-represented litigant survey particularly interesting and persuasive to the self-represented engaged in the settlement process.

2.5.1 Many litigants believe that their caseis“different”–because of course it is unique and personal to them – and that a judge will “obviously” side with them. Unfortunately, legal outcomes are never certain, which is why so many cases settle before trial when the risks and costs of proceeding become more real and immediate. This primer encourages you to think about settling earlier, even if you are convinced a judge would rule in your favor.

2.5.2 Bear in mind that a settlement agreement will rarely give you – or the other side – everything you want. This may sound obvious, but it is worth repeating that there is no incentive for anyone to settle by agreeing to everything the other side wants – they might as well go to trial and let the judge decide.

2.5.3 Many litigants adopt a strategy of “waiting it out”.They hope that if they persevere, the other side will eventually give up. This may work out – or it may not. In the meantime, you will be stuck in a process that will cost you time and money and sap your patience.

2.5.4 Getting angry, however understandable,is usually counter- productive. You will achieve more if you can express yourself in a calm and reasoned manner that suggests confidence and competence.

It would be nice to think of a range of tools that would help in settlement.  These might include predictor tools, tools to marshal arguments, model talking points, advice on how to read the mediator, etc.

 

 

 

 

Posted in Mediation, Self-Help Services | 3 Comments

Wonderful Graphic Triage Model

The wonderful OpenLawLab blog recently shared a triage chart designed by the NC Immigrant Rights Project to help intake workers work with clients to decide if the client is eligible for the Deferred Action (DREAM) program.  It is here, and below, under the Creative Commons license.

Open-Law-Lab-DACA-Screener-part-1Open-Law-Lab-DACA-Screener-part-2I love how clean and logical this is.  And it tells people what to do and where to go even if they may not be eligible.

Just think how much training and talking time this saves.

Why don’t we have this for every triage situation.

 

Posted in Immigration, Triage | Leave a comment

DC Court Offers Chat Informational Serices — Thoughts on Expansion

As reported in the Washington Post, the SC Superior Court is now offering chat informational services.

D.C. Superior Court officials on Tuesday announced a new online Web chat feature where court users can ask questions of court employees about their cases within the civil division.

Individuals with cases in small claims court (involving disputes of $5,000 or less), landlord and tenant, and civil actions ( involving disputes of more than $5,000) can access the various Web chats through the court’s main Web site.

 Of course, every court should be offering this service — there are several advantages of chat, two of the biggest are that the litigants get a full text record of the interaction that they can review later, and that supervisors can review the chats for quality.  The use of the stored answers can make chats much more efficient that traditional phone info services, and produces higher quality from volunteer information providers.

In terms of expansion, it should not be forgotten that chat — and indeed phone hotline services — may well be more efficiently be provided that locally based services.

 

Posted in Self-Help Services, Technology | Leave a comment

American Constition Society Issuue Brief Addresses Multi-Layered Approach to Solving Access Crisis

Historically, I have found that the generally progressive community — even the generally progressive legal community — has been relatively traditional in is approach to the access to justice crisis.  The “line” has been right to counsel, and increased funding for LSC.

It is perhaps a harbinger of acceptance of a more nuanced view that the American Constitution Society (ACS) has released an issue brief titled Deconstructing the Right to Counsel.

While the document does not represent an official ACS view, and while its title initially scarred me off as a too theoretical document, in fact the document is useful as laying out the reasons that a binary right to counsel or nothing analysis is counterproductive, and as suggesting a broader perspective.

The writer, Lauren Sudeall Lucas, lays out a value driven approach in which the values discussed are access, efficiency, fairness and legitimacy.

.  .  .  the value framework has potential to better inform and foster more constructive dialogue among policymakers about the best way to accomplish shared goals on a system-wide level, rather than devolving into a war over specific entities, fought in terms of numbers and dollars. When the only currency for reform is lawyers, there is little room for negotiation or creativity. However, when the menu for reform includes many options, there is more reason to have a constructive conversation about which would be the best fit and why. This framework could serve as a basis for such a discussion. Seeking a sound basis for future policy decisions, many commentators have called for increased data collection to evaluate the effectiveness of various mechanisms providing an alternative to full representation by counsel; this framework could also be used to develop metrics to analyze such data.

The paper will be particularly useful to cite to academics out of touch with the changed reality on the ground.

Posted in Access to Counsel, Systematic Change | Leave a comment

Assessing the Strengths and Weaknesses of the Institutional Structure of Communty Based Legal Aid

As “access to justice” receives more and more attention, and as we start to put in place new structures such as the “communications hub,” perhaps it is time to step back and think about the strengths and weakness of our institutional structure, now essentially 20 years old.

In the mid-1990s, in response to the Gingrich era, community based legal aid moved to a highly decentralized model, with funding fragmented, a deep resistance to national leadership (at least most of the time and in most things) and very varied funding, leadership, alliances, and capacity at the state and local levels.

This had one huge and critical benefit — community based legal aid survived and at the local level is still there to play a very significant role.

But, at the same time, we have paid the price of a relative lack of coordination and leadership at the national level.  This is a structural, not a personal issue, and I am not pointing the finger at anyone.  Indeed, the new LSC board has made very significant efforts to play a major leadership role with the Pro Bono Initiative, and the Technology Summit — we look forward to their full fruits.  Similarly, the ABA Access to Justice Commissions Project (often working with the Chiefs and the National Center for State Courts), has had a huge impact on the setting up of Commissions in so many states.

But, as the successful establishment of the Communications Hub illustrates, there are many functions of overall coordination, planning, communication, research, and institutional and substantive advocacy that desperately need to be strengthened.  The post 90’s structure, which has served survivability goals so well, gets in the way of these establishing the systems that should be serving these functions.

In particular, as the state commissions movement illustrates, coordination with other aspects of legal aid — court and bar based, for example, provides a huge and critical opportunity for the development of an integrated 100% access to justice strategy.  Without an integrated strategy developed by integrated leadership of all the aspects of legal aid, we will not get there.

 

 

Posted in Access to Justice Boards, Access to Justice Generally, Communications Strategy, LSC, Systematic Change | Leave a comment