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
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.