It’s a truism and an article of faith in the access to justice community that the only way to get to 100% access to justice is a massive infusion of money. It might well be true, but try this mental exercise:
Step one: What percentage of legal need is met?
The standard answer, from many studies, is 20%.
Step two: How much of an increase could be achieved by internal management efficiencies alone?
One legal aid director recently told me 25%, so that means that we could get to 25% coverage by such efficiencies alone (i.e by adding 25% of 20%to get 25% coverage of need).
Step three: What increase in efficiency could be achieved by changing organizations so that nonlawyers in offices could do more?
The same director offered 20%. Adding 20% of the 25% gets us to about 30% coverage.
Step four: How much could be saved by allowing nonlawyers to appear in court in all legal aid cases? This is the first area of change that is outside the total control of legal aid programs.
Say another 20% (not so high because not so much time spent in court). That gets to about 36%.
Step Five: What happens when you greatly simplify court procedures, substance, forms, orders, and particularly the numbers of steps and hearings?
I think it is actually reasonable to cut the number of steps and hearings by 40% – although this wold take deep commitment from the courts.
So that would increase the percentage of need being to about 50% That would suggest that only about a doubling in resources would be enough to get to 100%. Massive, yes, but a lot less than the multiplier of 5 that we generally assume.
And, that probably does not take full account of technological innovation, market and regulatory changes that allow private sector lawyers and nonlawyers do more, diversion into non-court resolution systems, and court simplification that might allow self-representation to be a sufficient and fair option for many.
Obviously this is not a hard number, and it may be hopelessly optimistic in some areas, and perhaps pessimistic in others. It does not account properly for court based service provision costs
What this does highlight however, is that investments in innovation and change are much more important than fighting for small (on a percentage basis) changes in service delivery contributions. So, this is not an argument for not fighting very very hard to get as much money as possible on both fronts.
Finally, it highlights that 100% access is going to require changes in all parts of the system, with the biggest gains coming from court simplification and relaxation of unauthorized practice of law regulations, at least in the non-profit context.
A full scale more rigorous analysis using this multi-step approach would surely provide strong arguments for all players to cooperate in innovation towards 100% access — perhaps with a sense that it is less impossible than we thought. I wonder how one might get better estimates for these numbers. Please make suggestions.
HI, Richard, the big picture message that we can accomplish a tremendous amount without additional resources is unquestionably right. I don’t yet, myself, have enough an idea of what 100% access means, or what it would look like, to know what percentages, and percentage improvements, mean. I do recall testimony by Gillian Hadfield in New York that you blogged about before, https://richardzorza.files.wordpress.com/2012/10/hadfield-testimony-october-2012-final-2.pdf. The implication of that testimony was that, in New York, one would need to multiply the government legal aid budget by approximately 200 (that’s a multiplier, not a percent or a percent increase) to address the _known_ civil legal issues of all individual New Yorkers. Now, that’s all New Yorkers (not just the economic middle and lower class), and its all civil legal issues. That said, only the one-percenters can afford to access the private legal market anymore, and neither the ABA nor any other civil gideon advocacy body has made a serious effort to limit the set of legal issues as to which we would say, “Might be important, but not important enough to require a lawyer at state expense.”
Some might find Gillian’s numbers depressing. And in a way, I do, too. But they make clear to me that there is simply no way to address our A2CJ problems with additional resources alone. A civil legal aid group with a budget of, say, $1 million a year would not have a clue how to spend $200 million a year if it received that amount all of a sudden.
The other avenues you identify are at least as important as additional funds.
In the US, among the recipients of government benefits, about 30% of the population is disabled, 14% has a cognitive disability, 18% has ambulatory difficulties, and 15% have difficulties with self care or living independently. In addition 6.2% have hearing difficulties and 5.8% have difficulties. http://www.census.gov/prod/2013pubs/acsbr11-12.pdf
The vulnerable groups will present with more complex legal issues that the rest of the population, and will require higher level advocacy than the average case. So instead of having 5 or 9 legal issues that are legal per year, they might have more. In addition, they will have issues that combine civil rights with other substantive areas of law housing, health care, and other systemic issues–which will require an attorney in court. The approach for working with these clients is multidisciplinary in nature, and that requires a very high level attorney to interact with multiple systems/agencies/areas of law. So on step #4–not all cases can or should be in court without a legal aid lawyer. Plus we need to take into account what in Medicare they call the “disproportionate share” of legal aid, in that they handle more complex cases for populations that have more complex needs.
This also does not include other groups also with high level needs and complex intertwined issues, like victims of rape and DV, the elderly (over 75), etc.
I think we need to focus on #5–making the system more equitable and neutral for those without lawyers in court–and creating easy to follow rules and procedures and technology innovation designed for the end user, not just to meet the court system needs and reduce costs. If we do these two things we will go a long way to increases access to justice in court tribunals. The same should happen in other venues that decide who gets what, for how long in other non court venues (unemployment benefits, wage claims, public benefit fair hearings, housing authorities and the like).
The other steps, will be propelled by combination of self regulation changes by the profession with some good blue prints happening in some states, and internal resource recalibration out of years of resource scarcity and changing consumer needs and expectations on how services are delivered now, not in 1980.
I agree with you. There is hope and we will get to 100% Access to Justice by using multiple approaches.
I would love to learn more about process simplification efforts and see examples.
Richard wrote in the Self-Help Friendly Court that one form, one webpage, one day should be the goal with each step accomplish-able in location, on one occasion, with the same group of people, and with closure at the end of each step. Is anyone doing this yet?
Two questions regarding expanding access: In medicine, attempting to expand access is to help fight disease that is always a process of human “fighting” against biology. In law, isn’t there a fundamental split between whether one needs access to get something satisfactorily through the bureaucracy (“fighting” the government, which might have an intrinsically supportive role to achieve justice) vs. winning a suite by arguing against a lawyer on the other side, who is being paid to take sides. Human “fighting” against another human. Granted that a judge may be trying to level the playing field it seems that self-representation or anything less than an effective lawyer on your side is a disadvantage.
So is the push only for legal difficulties with an administration or is it to extend access also to cases where there is a lawyer on the other side, which seems very different?
Second related question: What is the spectrum of difficulty like? How many of these case are easy and could be dealt with in a short time by an English major (we need to expand their job market) who could help the litigant work through it? Rather than viewing them all the same, could concentrating on all the easy cases expand the % access more? More pro bono resources could be conserved for cases where it really matters. Maybe this is all impllcit and obvious …
Jim brings up some valid questions. As to the first one: Presently, the large majority of cases that involve self-represented litigants (other than small claims) are either family law cases, of which many are not contested, or are against a government bureaucracy (including admin law adjudications), e.g., seeking some sort of government benefit or improved immigration status. Lawyers are present in cases against governments, but the processes Richard talks about would improve efficiency dramatically, and probably lower governmental lawyer costs, if the agencies would see it that way.
As to the second question: It has been my experience as a law librarian that the majority of complicated questions that face self-represented litigants are procedural ones. Simplification and plain language court rules would vastly improve efficiency. I believe that, for instance, if service of process were handled by the courts, rather than the litigants, the savings all around would be tremendous.