Access to Justice and the Critical Diagnostic Role of Lawyers
February 29, 2016
Having shared some thoughts on the future of our profession and what we might learn from other disciplines in my last post, today I turn to the billion-dollar question of what it all means for access to justice.
Looking at this question through the lens of the client—as we always should—and recognizing all of the advances in access that technology and improvements in court processes are making possible, when does someone really need the advice or assistance of a lawyer to justly resolve their legal issue? When is it okay for people to use increasingly robust self-help legal resources to address their issue rather than get assistance from a good lawyer, especially knowing there is not nearly enough free and affordable legal help to go around today? And finally, what should we as a legal community be doing to shape the future so that all people have access to the level of legal help they need to achieve justice regardless of their income or circumstances?
All big questions for sure, and I think the answers we collectively write in the next few years will be critical to whether the future turns out to be a boon for both our profession and access to justice, or the end of our profession and justice system as we know them. While that may sound overly dramatic, I am not sure we can overstate the magnitude of change that is both necessary and already afoot, or the need for the legal community to get out in front of these changes to lead the way towards a better future.
The starting point for this conversation needs to be understanding that the great majority of people today are not getting help from a lawyer when they encounter legal issues. Canadian legal analyst Jordan Furlong describes this as the 85% problem: that is, all of the legal services combined are serving only an estimated 15% of the actual legal issues that people across all income levels face. Much of that 85% is latent demand, where people aren’t even recognizing they have a legal issue. And when they do recognize it, they often are seeking help from someone other than an attorney, for reasons that include concerns about affordability and access as well as distrust of lawyers and the legal system.
To put it in simpler terms, for the great majority of people in our community, what our profession is doing now isn’t working very well for them. While others also share some of the blame for this sad state of affairs, to close the gap between what people need and what they are getting now, our profession needs to evolve and hone in on the core components of value that lawyers bring to people facing legal issues.
The Critical Triage Role of Lawyers
As discussed in my last post, there are several types of core value lawyers provide for clients that transcend all of the changes happening around us, including our roles as: distillers of knowledge; trusted advisors to properly diagnose a client’s legal issues and counsel them towards the best solutions; and advocates who guide clients through complex or emotional legal situations and proceedings. The distiller/diagnostic/counseling services a good lawyer provides collectively can be thought of as a triage role, and it is an essential function for access to justice.
Virtually everyone who has looked at access to justice on a macro level recognizes that a continuum of resources and assistance should be available to people facing legal issues, starting with information and self-help resources on one end and full representation on the other, with varying levels of assistance in between. The proper level of assistance depends on both the type of legal issue involved and the client’s abilities and circumstances. Just as hospitalization or surgery rarely are the outcomes for someone who complains about not feeling well, full representation in a contested proceeding is not typically what a client facing a legal issue needs. In fact, in most cases, advice or brief assistance is enough to resolve the legal issue.
In both the medical and legal contexts, the diagnostic, or “triage” role is key to determining the appropriate level of assistance that will be necessary in each case. Having a good lawyer to properly diagnose the legal issue involved and guide the client towards the best solution for their individual case is almost always helpful. And it is downright critical when more complex or important matters are at stake.
Does It Have to Be a Lawyer?
But is it always necessary for a lawyer to play the diagnostic role? There are some who suggest that online portals and algorithms can serve the triage role effectively and for far more people, given the shortage of free and affordable legal help today.
Clearly, there are a number of less complicated legal issues people can and do handle on their own or with some limited advice, coaching, or assistance. For example, most disputes between eBay buyers and sellers are successfully resolved through online mediation, never even involving a lawyer or the legal system. These are situations where the amount at stake (and thus the risk of an adverse result due to a bad decision) typically is relatively modest, the power dynamics tend to be even, and the applicable rules and process for resolving the dispute are not very complicated.
For situations involving more complex or sensitive issues, or where more significant matters are at stake, there just is no substitute for someone being able to confidentially tell their story to a good lawyer who can help bring out what is most important for that person’s particular legal situation. As in the medical field, this is particularly true for people dealing with sensitive issues that require building confidence with them to bring out crucial details. The lawyer can then help guide their client towards the best solution for their particular circumstances, which may or may not involve further representation or involvement with the legal process. And that advice and counsel is an equally critical part of the triage process, particularly for the poor and vulnerable among us. Along with the behavioral economics foibles and other factors discussed in the last post that can make it hard for any of us to make the best decisions on our own in a legal case, people who are struggling with poverty can face even greater challenges.
We might think of it as the difference in asking Siri what defenses someone might have to an eviction case in their jurisdiction, to asking “her” the more complicated questions of whether those defenses apply in their case, or how likely they would be to succeed in asserting those defenses on their own. I actually don’t know if Siri can answer that first question yet, but it’s only a matter of time. For the second and third questions, though, those are very hard things to evaluate without knowing more about the exact circumstances of the case, sizing up the client and their abilities, and assessing how much leverage the client has in the case and other options they may want to consider. This is what good lawyers do.
Helping People Determine When and Why to Consult a Lawyer
For truly simple legal questions or issues where there is not much at stake, it may not be realistic or necessary for someone to consult a lawyer. But if I had a dollar for every time someone asked what they framed as a simple legal question…
We need to develop easily accessible tools to help people understand and realistically assess when they might handle a legal matter on their own and when they should consult a lawyer first. These tools could be similar to the systems that Microsoft and other corporate counsel have created to help their salespeople determine when they should consult their legal department on contract issues.
The CBF is currently working with several of its partner organizations to create this type of tool for the consumer context. Some of the factors for people to consider in making the initial evaluation of whether to consult a lawyer are: what’s at stake for the person and how important the matter is to them; how comfortable would they be handling the matter on their own, particularly if it may involve going to court; and whether there are unequal power dynamics with the other party (e.g. if the other party is represented by counsel) that may shift the balance.
Another way we can do a better job of helping people recognize legal issues and realistically assess their options for handling them is through the increased use of preventive lawyering. The Canadian Bar Association has led the way on these issues through Legal Health Checks and other preventive lawyering approaches that offer us some good models to consider.
Leading the Way Towards a Better Future
Just because technology and other providers can’t replace the critical role that lawyers play in triage, that doesn’t mean we should just keep doing things the way we’ve been doing them. To make these legal triage and preventive lawyering services more efficient, effective, affordable, and accessible to clients, the lawyer’s role needs to be supplemented by both the latest technology and strategic use of other professional assistance (e.g. paralegals). And we all need to get more comfortable that for many cases, one of the outcomes that results from a good lawyer’s triage process should be empowering clients to handle all or part of their legal issue on the own.
While the focus of this post was primarily on the lawyer’s linchpin diagnostic and counseling roles, these points are equally true for all legal work. Simply affirming that lawyers will always have critical roles in ensuring access to justice isn’t enough, particularly when so many people can’t get the legal help they need today. Wherever we are in the legal community, this is a conversation we need to be having now.
My next few posts will focus on the roles key stakeholders can play in creating a better future for both the profession and for access to justice. Next month’s focus will be on market for consumer legal services and why the billable hour needs to get put out to pasture there for us to reach this better future—stay tuned!
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