If we are to assess the viability of 100% access to justice solutions, we must at least begin to have an economic model for what 100% access means, and particularly for whether we can regard services as sufficient in any particular context. This can help lead to a more realistic estimate of resources likely to be consumed by any comprehensive solution. Let me suggest this way of thinking about it.
Traditionally, those whose resources are generally unconstrained (rich folks) employ a marginal return analysis. That is to say that when an additional thousand dollars of investment in legal expenses is not anticipated to yield more than the thousand dollars would generate in ultimate return through another investment, then the investment is not made. If the matter is not economic, they put all it needs to have the very very best chance of winning.
Middle income people, facing many other pressures on their budgets, and without access to capital, apply a different test, at least in the real world, comparing the possible benefit of the legal fee against the other things they need to spend money on, food, shelter, education, etc. and they do so on a much shorter time horizon, i.e they ask if they have to do it.
The poor have very few resources, so the choices are family borrowing (if available), self-representation, or legal aid (if they can successfully steer their way through an access maze largely intended to reduce demand to a fraction of what it would otherwise be. Once litigants are through the maze, however, if they get representation, most programs then do not apply any kind of marginal return test. They give it everything they have. This is close to the Medicare and Medicaid models. (Although Medicaid has many controversial cost control and service limitation mechanisms, as well as, now alternative incentive funding structures.) This is justified as ensuring that the poor are treated properly at least somewhere, as a means to keep the system honest, and perhaps in terms of craft pride.
In other words, the traditional community-based legal aid view is to treat as many of the poor as possible as if they were so rich that they need not have to worry about opportunity costs. Over time however, as more and more of legal aid cases are handled through other than full representation,[6] we know that forms of triage[7] and methods of assessing how much a case is “worth” are playing a larger and larger role.
The problem is that because the rich on the one hand, and everyone else on the other, use a very different analysis, the resources used are unequal, even when if the two sides had equal ultimate resources, they would choose to spend the same resources. The gap between what the equal players would invest, and what the unequal ones are able to do, is almost really what we measure as the justice gap. The question is what can be done to minimize this. Another question is how much this needs, as a matter of social policy to be done, and how can the cost of doing so be minimized.
So, in a perfect equal access system, everyone would have the support resources to get the services they would pay for if they did not have opportunity costs (i.e if they did not have other needs). Obviously, in the real world this is impossible, so we need a measure of 100% that is viable, justifiable, and meets the needs of both the individuals, and society as a whole.
An alternative measure is to ask when a additional investment would not significantly increase the person’s chance of obtaining an outcome that is responsive to their needs and interests. In other words this is not perfection, or even optimization, rather it provides access rather than a guarantee. In a sense, such a model places the task of perfection on the decision-maker, not on the services provided to the litigant or client.
Richard Zorza's Access to Justice Blog 
A big cost (opportunity costs) for those looking for free/affordable legal aid is trying to find the illusive free lawyer. Triage systems–if well decide reduce those costs significantly for the potential applicants and for the program receiving applications for those they don’t have the resources to serve or can’t save for multiple good reasons (out of jurisdiction, over income, over assets, living in a half way house–and that kind of requirement imposed by funders–procedural posture of the case, not a priority case for the program, temporary intake closure, etc). With online intake what has been found out is that less applicants who are not eligible apply, leaving room to receive applications for a group with higher potential of accepted cases. Information on this can be found at LSNTAP–under online intake.
Richard,
In ever program I have ever practiced law (pro bono, LSC funded, and non LSC funded programs), whenever we decided to accept a case we discussed with the client the options and our analysis of the case, in effect doing the cost benefit analysis with the client before signing a retainer agreement.
I don’t agree with the assertion that “most programs do not apply any kind of marginal return test”. All litigation directors have a litigation line item in their budget and make hard decisions on how to use those very valuable dollars managing that budget carefully.
Another important question to ask is–would access to that institution problem resolution process mean anything? Are the rules, processes, and way that institution treats those with out lawyers easy to grasp, simple, and respectful? Access to what? I posit that access to byzantine rules, lengthy forms, convoluted multi-step processes that require multiple visits and papers to be filed at the forum, to a system that uses that no regular person can understand–is meaningless.
So part of the cost benefit includes how much would it cost to simplify the places where decisions are rendered and conflicts are resolved? Do those institutions have an incentive to simplify their own rules, procedures, and codes–to reduce their own costs and improve access?
Interesting. So, does the litigation director typically get involved in the decision whether to take a custody dispute to hearing, and how does the calculation work. How does does the decision-making structure vary from when the litigant is the one paying? Thanks, as always, for your thoughts.
The case acceptance guidelines (CAGs), by area of law and characteristics of the case, which are approved and created in consultation with the Litigation Director include those judgements based on the annual budget. The ultimate acceptance for a case is done by unit (family law unit, or housing unit etc). When looking at all the cases open, and the status of the open cases, and cases that are about to close, and resources at hand, the unit director (EG family law lead, or housing lead, or foreclosure lead) (or regional manager if the program is managed by regional directors) decides how many more cases to open based on resources and strategy of the unit.
At quarterly strategy meetings, during litigation strategy meetings–priorities are affirmed or recalibrated, so there is ongoing review of what case types the program can take, is looking for and wants to litigate, and specific strategies that will be follow for certain types of cases if those are coming in, or not coming in, and other outreach is needed.
As the year goes by, and cases close, and new cases open the CACs might change by unit or region.. If a case comes in that will require significant resources, or requires new strategies, or involves certain groups, the Lit Director will be consulted before full acceptance. (Some type of cases require Lit Director and maybe even Executive director review–regardless of scope).
Most legal non profits have these mechanisms in place, so that the routine acceptance can be made in a time responsive way as par the ABA Standards on intake and case placement. So the CAGs internalize the cost benefit analysis and is under constant review. They are not static–they change as the year goes by and as needs/resources change and strategies change. Programs might their case acceptance criteria something else–intake guidelines, or some other name, but by and large most programs have those, use them and are tied to their budget/resources, and change when resources change, or when there are emerging trends that need attention, or needs change.
Richard, I am still hung up on the lumping of legal represention for cases against a lawyer on the other side vs. against a bureaucratic requirement on the other side. Doesn’t the former represent a much greater and more uncertain level of resources to win? For the poor, isn’t that a key calculation in figuring out what to do?
Jim Burdick
You are absolutely right. That goes into any calculation.