A recent post discussed how to analyze the value of different approaches to access to justice in cost benefit terms.  This follow-up post takes a different approach, looking at the same issue — of how to decided whether to implement an innovation in more traditional rights terms.

“Civil Gideon” advocates assert a “right to counsel” in certain types of cases.  While they are deeply nervous about individualized assessment at the counsel assignment stage, they generally concede that there are cases that do not need, or are simply not worth, counsel.

More general access advocates assert that the right should be to access to justice, and that at a minimum one is entitled to an individualized (or triaged) analysis of what is needed to fulfill that right.  They believe that Turner, regardless of what it does to the right to counsel argument, strongly supports the general access argument in any case in which there is no right to counsel.

So, what does one do when faced, for example, with the question whether to implement an unbundled attorney advice only program, or a non-lawyer initiative?

For the general access advocates, the argument is simple, at least conceptually.  The question is whether the program, as designed, provides “access.”  Presumably that means whether the case is sufficiently presented that it is heard on the substantial and procedural merits in the particular forum.  How that is answered will depend on the court environment, as well as how what is being offered fits against what is needed to get the case prepared and presented — i.e. triage.

For right to counsel advocates, perhaps the question is simpler, whether this case fits in the broader class of case in which an attorney is necessary for such a presentation.  If the answer is yes, then it should be a right to counsel case.

If this is a fair analysis (and I welcome more nuanced versions or alternatives), then the benefit of the right to counsel analysis is that, assuming resources are available, it is less likely to produce cases in which cases that need counsel do not get them.  The obvious problem is that the resources are just not available, and are unlikely to be unless the class of cases in which counsel is needed can be radically reduced.  This too can be achieved by changes in court process.  (I would urge “right to counsel” advocates to focus heavily on court processes, and thus strengthen their argument for counsel when the process can not be changed enough.)

On the other hand, the benefit of the right of access analysis is that is more flexible, and perhaps easier to achieve, while the risks include that more complex cases are wrongly pushed into the wrong service category, or that lower levels of service to not provide the supervision and skill in fact required, given the stakes.

Perhaps the long term way to integrate these perspectives is to make sure that access innovations include real individualized triage that reduces the risk of the above errors.  It is equally important that they build in sufficiently specific and nuanced evaluations that that the lessons can constantly improve the triage process.

Similarly, perhaps right to counsel folks should focus as much as who does not need counsel as who does.

Once again, I welcome comments and alternative views on this central, important and difficult subject.

I hope to post a third part of this series, applying these modes of analysis specifically to situations in which the litigant is paying directly for the resource.  We will see how customer choice impacts the analysis, and whether this analysis then impacts back on the cost-benefit and rights analyses.