Yale Law Journal, Yale Law School, Yale University
June 1, 2013
Charn argues that we should measure improved access to legal services by the extent to which self-empowered consumers are able to resolve everyday legal problems on their own or with limited assistance.
The abstract reads:
Recent empirical studies tested whether litigants with access to lawyers fared better than litigants with access only to advice or limited assistance. Two of the three studies produced null findings—the litigants with access to lawyers, the treatment group, fared no better than litigants without a lawyer. In this Essay, I propose that we celebrate these null findings. I do not doubt that expert lawyer assistance will be necessary in some, perhaps many, cases, but we should reduce procedural and other complexities wherever possible in order to facilitate self-help. We should measure improved access to legal services by the extent to which self-empowered consumers are able to resolve everyday legal problems on their own or with limited assistance. The flowering of “lawyer-lite” service innovations—services often preferred by consumers—suggests that the practical work of building consumer-centered and consumer-driven legal services delivery is not only possible, it is already underway.
Conclusion: Celebrating the null finding
I count myself among the advocates of consumer-centered, self-help services who cheered Turner’s holding and celebrated the null findings—that claimants fared as well on their own as with lawyer assistance—in the random controlled trials. Self-help, properly supported, is consumer centered and driven. It suggests that courts and agencies have found ways to encourage and facilitate self-representation. Claimants may gain confidence in adjudicatory institutions and be more willing to assert rights enacted for their benefit. Low- and middle-income claimants will have many options for assistance and can make choices that fit their needs and preferences. While I do not doubt that skilled lawyers will be needed due to inherent legal complexity, if swaths of problems can be resolved effectively with less or even no lawyer input, then lawyer services can be triaged where we have evidence that they are needed and will make a difference. We must keep in mind that access to courts and lawyers is not identical to access to justice. Courts and lawyers play an important role but the complexities and obscurities of the legal system can inhibit as well as advance goals of fairness and equity. The ideal of an informed and self-empowered public effectively pursuing their legal entitlements in institutions that welcome them also has great appeal but will not fit every circumstance. Which point along the spectrum from expert lawyers to advice for self-helpers best meets the needs of individual consumers is best addressed by review of data, empirical research, consumer surveys and cost-benefit analysis – the tools of public policy analysis. Normative issues remain (should society subsidize claims worth less than the costs of service) but policy tools advance debates about the marginal case by documenting potential second and third order effects of success on primary claims. Evidence based strategies offer promise of more generous, effective and consumer centered access to the legal system.
PUBLICATION DETAILSFormat: Commentary
Publication Type: Essay
Geographic coverage, US: NATIONAL
Topics: Legal Needs | Measurement | Research Agenda
Case type: Consumer/Finance
Practice Area: Consumer
Who Served: Consumers
How Provided: Legal Aid Attorneys
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