By: Jeanne Charn. Published by: Loyola of Los Angeles Law Review. Published in June 2009.
For decades, the organized bar has been an unwavering supporter of expanded access to legal assistance for everyone the market cannot serve. The bar shares a fundamental agreement with legal aid providers that only a massive infusion of resources, complemented by an army of pro bono attorneys can solve the access to justice problem in the United States. This two-pronged agenda has not succeeded. The US continues to rank last among peer nations in access to legal advice and assistance.
However, there have been substantial changes in the legal services landscape that point to a more complex and challenging agenda. Resources along will not solve the access problem. Normative, structural and institutional changes will be needed to produce a more robust, efficient and generous delivery system in every state. These reforms will pose substantial challenges for all sectors of the bench and bar, but particularly for the lower trial courts, solo and small-firm practitioners, and attorneys in the staffed legal aid offices who have been at the core of the delivery system in the US. If the legal profession is willing to grapple with these challenges, reinterpreting and in some instances reformulating both its ideals and its practices, the US legal system may finally be able to assure access for all.
Three important realities of the access to justice debate:
Legal needs are highly elastic: resources will never be adequate to address every problem. There will always be constraints Public policy must involve resource targeting and rationing. Resource-targeting decisions must be based on credible evidence of benefits to clients as a result of legal (as compared to other helping) interventions. What might an Access Guarantee look like?
For whom? Individuals, associations, not-for-profits, small businesses.
For which matters? Those involving importance impacting family, livelihood and assets, housing, education, health, personal safety, community economic development.
In what form? Traditional lawyer service, in-court advice from “lawyers of the day,” unbundled assistance, advice from trained lay advocates.
What else? Independent and objective research similar to that underway in peer nations. Higher financial eligibility levels (and as these rise, clients should bear the cost of a system of copayments) to prevent those just above 200 percent of the poverty line from falling through the cracks. Set priorities.
Multiple accessible points, like internet, telephone, storefronts in community centers, shopping malls. Should be well branded.
Simplified court processes
How do we shed the culture of scarcity? If well-managed, we don’t need tons more resources! Learn from consumer preferences. When people have adequate choices, they don’t necessarily choose to litigate. Settlements are more likely than trials. With adequate legal services, because people will have the ability to litigate, they’ll be more likely to negotiate favorable settlements. Prevention and early intervention may reduce costs. Getting people help in the early stages may avoid more extensive interventions later on. Technology drives costs down. Front-loading services may improve quality and save costs. Client co-payments increase resources.