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).
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.
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.
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.