By Michael D. Greenberg and Geoffrey McGovern. Published by the RAND Corporation. Published in 2012.

Link to report

In 2009 and 2010, RAND researchers examined the impact of the financial crisis on various facets of the civil justice system. The research staff and the RAND Institute for Civil Justice Board of Overseers discussed how activity in the civil justice system might serve as an index of broader economic disruption felt elsewhere. Our intent was to examine widespread concerns that the financial crisis may pose a threat to the functioning of the justice system itself, particularly in light of the continuing economic downturn and fiscal problems that have become the “new normal” of the Great Recession. This paper provides a snapshot assessment of several dimensions of civil justice system performance, from the initial years of the post-2008 period through early 2011.

Another dimension of the civil justice impact of the financial crisis may well involve its effect on the funding and provision of legal aid services. In contrast to criminal law cases, in which indigent defendants are constitutionally entitled to representation by counsel, there is no constitutional right to a civil attorney, even in potentially high-stakes proceedings such as foreclosures, seizures of property, or divorce. This means that civil representation and legal advice in these situations must be purchased by (or provided to) low-income individuals, or else those persons must go without legal counsel. In some instances in which legal aid services are simply not available, the consequence may be to require low-income persons to represent themselves in court proceedings (i.e., pro se). By implication, lower-income persons who are unable to obtain counsel through legal aid may operate at a disadvantage in many types of proceedings and, as a threshold matter, may be less likely to seek help or redress through the justice system in resolving civil disputes.

The Great Recession has been particularly hard on low-income earners. Unfortunately, in the wake of the collapse, the programs that are in place to provide access to justice regardless of ability to pay seem to be suffering from their own financial hardships. The policy ramifications of diminished legal aid, in terms of what the civil justice system actually accomplishes and whom it serves, present a troubling set of questions for society.

The situation may simply be bleak: Unmet need may be translating into an increasing prevalence of unresolved issues and unaddressed grievances among low-income populations. More detailed investigation would be needed to explore these possibilities.

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