Approaches to closing the access to justice gap
There are many approaches to solving the access to justice problem, both with and without the use of direct representation by attorneys:
- Pro bono representation
- Legal aid for people earn a small enough amount
- The right to an attorney, or Civil Gideon
- System redesign for pro se litigants
- Expanding limited scope rep representation
- Fee shifting or "private attorneys general"
- Technology-aided delivery of legal help
This living textbook focuses mostly on technology-aided delivery of legal help. We will touch briefly on each of these areas below.
Pro bono representation
Pro bono representation simply means lawyers representing people who need legal help for free and not as their primary job. In some states, every attorney in the state is required to volunteer some hours each year. The best estimates show that only 1% of legal help is provided in the form of pro bono representation.
A problem with relying on pro bono representation is that there are simply not enough volunteer hours available to represent everyone who needs meaningful legal help.
Legal aid organizations act as free law firms for those who cannot afford to pay for an attorney by:
- representing people directly in court and in administrative hearings
- lobbying for changes in the law
- running limited assistance clinics to give advice or to help completing forms
- maintaining self-help content, such as websites and standardized forms
Generally, in the United States, you qualify for help by a legal aid attorney when you earn less than 125% of the federal poverty guidelines, or in some cases up to about twice the poverty line.
Many people do not qualify for legal aid but still do not earn enough money to pay for a private attorney. In addition, legal aid in the United States serves only a small percentage of eligible clients. Funding allows, on average, for about 1 in 3 people who qualify to be helped by an attorney.
Right to counsel in civil legal cases
Civil right to counsel is also sometimes called Civil Gideon after the case Gideon v. Wainwright that established a right to counsel in criminal cases. Providing an attorney to represent someone in every case would close the access to justice gap immediately.
We likely can't hire our way out of the access to justice crisis. The gap is too large. Even proponents of civil right to counsel focus on a few critical areas, such as evictions and cases involving loss of custody. In addition:
- it may be too expensive to fund
- it may be inefficient, with an attorney being a too complex solution to some simple and standardized legal problems
Making it easier to use the court without an attorney
A direct alternative to providing every person an attorney is to make it easier for people who need legal help to navigate court without an attorney. System redesign includes:
- requiring fewer court appearances, or solving problems before they reach court
- using more standardized forms with fewer open-ended questions, to quickly capture important facts for the judge or fact finder without relying on litigants knowing the right things to say
- making court procedure simpler to follow and more informal
- providing orientations, welcomes, and perhaps court navigators to guide litigants while they are in court
Doing more by doing less with limited scope representation
Limited scope representation is a small change to the ethical rules that makes it clear an attorney can represent someone for just one small part of a case without being required to represent that person throughout a possible trial, appeal, or beyond.
Limited scope representation can expand access to justice by making it easier for an attorney to help with a critical phase in a self-represented litigant's case. This may make it more affordable for someone with limited income to get legal help.
Getting help when you can't afford it with fee shifting cases
Fee shifting empowers people who cannot afford an attorney to get legal help by paying their legal fees for them if they win. States can pass laws that require the loser in a law suit to pay legal fees, and often they do this for cases with a lot of societal interest.
For example: in Massachusetts, a tenant who sues their landlord for misusing their security deposit is probably unable to justify paying an attorney thousands of dollars to risk getting back less than the fee. Massachusetts lets this tenant sue and then requires the landlord to pay if the tenant wins. This lets some attorneys create a business model of representing tenants, without requiring that they can afford a lawyer or that they all win: just so that enough win to cover their cost.
Expanding the provision of services beyond licensed attorneys
In a small number of jurisdictions, courts have begun experimenting by allowing so-called "licensed limited legal technicians" to provide some services that are traditionally provided by an attorney, such as advice or completing documents in limited situations.
While a typical law firm already does include people playing different roles, the core legal advice and representation in court function is performed by a paid attorney.
These innovations may allow people with legal problems to more easily afford help if the limited technicians can be paid less than attorneys doing the same work.
Technology-aided delivery of legal help
In the next section, we discuss using technology to deliver legal help.