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.