The proposed definition of 100% access to justice has received near record comments — and hopefully there will be more. I want to comment on two here, although all are worth consideration and debate.
Jim Greiner points out that the proposed definition assumes that the person with a claim will usually, if provided sufficient information about an actual available remedial path, will take the needed steps. But, as he points out:
But a large, and growing, mountain of research going under various names (such as “behavioralism”) is suggesting that the majority of folks will not take action in areas in which they perceive action-taking to be difficult (law, health habits) even when action-taking is OVERWHELMINGLY in their own best interest. If that’s right, then a focus on maximizing individual autonomy and decision-making may simple recreate the world we live in now.
He suggests that we need to change the underlying processes so that they are structured so that they do not act unless it is appropriate, and that silence of one potentially acted against should not be used as a full measure of appropriateness. Rather:
. . . [T] he problem may be the default rule. (. . . “default” means what happens if nothing happens.) To stay with the debt] example: In the debt collection context, the “default” rule is . . . default (by the defendant). What if the default rule were different? What if the rule were that the plaintiff had to make a serious evidentiary showing of entitlement to relief before a judgment could be entered? A rule like that would not fit within your definition because it does not focus on maximizing individual/defendant empowerment and choice. But it may be (again, we need more research here) to allow effective access.
I agree that 100% access to justice ultimately means changing court processes so that they reflect the realities of access to information and of litigant capacity and determination, include significant simplification. Indeed, experiments in places like NY that place greater evidentiary burdens on creditors in the foreclosure context have been very effective — see especially last bullet point, descried here.
The problem is how to come up with a definition that does not go from mission creep to mission explosion, thus undercutting the liklihood of broad incremental strategic change that is needed.
Maybe it might meet all goals if the following were added after the first sentence:
Such a true 100% access state will be more easily and cost-effectively achieved and more genuine if the underlying decision-making processes are designed to minimize the complexity of the underlying proceedings, so that choices about whether to participate are based to the greatest extent possible on the person’s view of the merits, and their desire to resolve the matter, rather than on any deterrent effect caused by the complexity or burdens that might be reduced or transferred, even at the initial stage.
The second comment I want to discuss comes from Cathy Carr. She ulimately proposes that all procedures should be denominated “lawyer-free” or “lawyer for all.”
I think for us to suggest that people with lots of resources get lawyers, and others get something short of that, is not an equitable system. Lets stop talking about what is enough assistance for poor people to get, and instead talk about how the whole system should run. If we are going to now design a system where lawyers are not needed, then no one should have one. If the system is still designed where lawyers come in with people who can afford it, then everyone should have that same benefit. I agree that of course its unrealistic that we provide lawyers for everything. So then lets make systems that don’t require or allow the use of lawyers in certain areas. But we shouldn’t be talking about making poor people use a system without a lawyer, where everyone with money uses a lawyer.
It certainly has the appeal of symmetry, and a certain kind of formalist fairness. On the other hand, as a practical matter, unless it was defined as “lawyer for almost all”, it would come up against Fifth and Sixth Amendment concerns that it was depriving people of the right to counsel — not to mention the political interests of the bar. To the extent that there is currently some sympathy in the bar for simplification, moving in this direction would surely reverse that instantly.
Similarly, our work on triage has shown that whether a person needs a lawyer, an unbundled service, a nonlawyer advocate, or another means of help is a highly complicated matter, involving many factors beyond the case type or the presence or absence of a lawyer on the other side — major contributors though those are. So, we would end up having to start many cases with a pre-procedure to decide if this is a lawyer or a non-lawyer procedure, and surely we could only make that decision after participation by lawyers — so we would be off again to the same expensive and unfair races.
On the other hand, I do think that it could be useful to have a careful and focused consideration of whether the current small claims prohibitiion on the participation of lawyers in some states might be expanded. (Although it has to be recognized that this approach has had mixed success, mainly because the frequent flier landlords, banks and merchants are often more effective than lawyers.
Moreover, Cathy’s point emphasizes that there is huge value in trying to change procedures so that it does not matter if a lawyer is there or not. It is certainly possible to design a procedure so arcane and inhpitable that the self-represented will always lose. We know that it is possible to create, at least in some contexts, situaitons in which this is not the case. So that means that we can move judges, procedures and outcomes along that continuum.
So, thanks again to all of our Commentators.
Please note that I have changed the design of the blog slightly so you can now see a list of the five most recent comments on all posts, and go straight to one of them. Of couse, you can get to comments by going to the post itself, and then clicking the link near the bottom of the post.