Access to Justice: How We Will Know When We Get ThereNovember 15, 2018
By Bob Glaves | CBF Executive Director
When I recently took a stab at defining what we mean when we say access to justice, I looked to the great Yogi Berra for inspiration: If you don’t know where you’re going, you might not get there.
Now that we have established a working definition of where we are going (at least I have!), the question becomes how do we measure our progress to that promised land.
With the massive disclaimer that I am not an academic researcher or anything resembling it, here are some thoughts on how we can improve evaluation based on my experience as a former litigator and my many years now working on these issues at a macro level.
Defining Where We Are Going
My proposed definition includes elements of both substantive and procedural justice:
A person facing a legal issue has timely and affordable access to the level of legal help they need to get a fair outcome on the merits of their legal issue, and can walk away believing they got a fair shake in the process.
A person or entity facing a legal issue i.e., they could benefit from or be hurt by a legal action has timely and affordable access to:
(a) the appropriate level of legal assistance, and
(b) a fair and efficient court or process to resolve disputes
so that they can understand and make informed decisions about their legal issue; get a fair and cost-effective resolution on the facts and applicable law; and feel like they were heard, were treated fairly, and understood the outcome.
Under either version, there are three essential things to evaluate in each case to determine if they had access to justice:
- Whether the person understood it as a legal issue and could make a reasonable decision on the level of help they need,
- Whether they got a fair result on the substance of their case, and
- Whether they believe they got a fair shake, which is impacted by both their access to legal help as well as the legal process
Limits of Traditional Legal Needs Studies
Traditional legal needs studies, like the recent Justice Gap report from the Legal Services Corporation, are helpful in identifying the types of legal problems low-income people around the country typically encounter, how often they recognize them as legal issues, how often they then seek legal help, and how often they are able to get that help.
These studies yield some important information for evaluating access to justice. For example, the LSC report showed that large numbers of low-income people did not recognize their problems as legal issues, and even when they did, only one in five sought legal help. Even then, the LSC study and other similar studies consistently show that for those who actively seek legal aid, more than half are unable to get it due to a shortage of pro bono and legal aid resources, making a strong case for increased funding for legal aid.
What these traditional studies are not as good at identifying is what level of legal help those who could not get it would have needed to get a just result. They also don’t tell us whether and to what extent those who did not recognize their problem as a legal one or chose not to seek legal help actually needed it. They typically don’t give us much information on the critical issues of procedural justice.
And finally, because most legal needs studies focus on low-income people, we still don’t have a good understanding of what is happening in the middle-income legal market, where growing numbers of people often struggle to afford legal help as well.
Filling in the Gaps
Other studies help to fill in some of these evaluation gaps. These are some of the more notable examples.
A recent study of several state courts in the U.S. and a similar report from Canada honed in on the experience of unrepresented litigants in the courts. These studies looked more closely at why these people were unrepresented (the vast majority would prefer to have a lawyer), and what their experience was like proceeding without lawyers.
A noted American Bar Foundation study by Rebecca Sandefur tracked the experience of people across the income scale when they encountered legal problems. This study illustrated even more clearly that the most common reason people don’t seek help for a legal issue is that they didn’t recognize it as such. It also showed that the experience of middle-income people mirrors that of low-income people in many ways.
The most comprehensive and in-depth research I have seen is a recent California study and report on the impact of various levels of legal representation on access to justice for low-income litigants. This study looked at the impact on both substantive outcome and perceptions of procedural fairness, and it provides some great guidance for all who do this work.
Building Towards Better Evaluation Models
The examples above show us that we’re not starting at ground zero in this work but have a lot of room for improvement.
The Sandefur study in particular is a good model for more research going forward on the legal issue recognition front. Being able to understand and make informed decisions about what to do when facing a legal issue is the critical first step for access to justice.
The California study offers a good model for measuring the impact of legal assistance on both the substantive outcome and on the perception of procedural fairness. Court studies on procedural justice that also consider access to legal assistance as part of the evaluation will be helpful too.
The California study also opens the door to much more in-depth study of the impact of different levels of legal assistance on access to justice. There is a continuum of options on the legal help scale that ranges from making an informed decision that it is not worth the bother (e.g., signing an adhesion contract for mobile phone service), to seeking legal information or self-help solutions online, to getting brief legal advice or limited legal assistance, to full representation.
And finally, we need a lot more study of the middle-income market. Low-income people can be particularly vulnerable in the legal process, fully justifying the heightened focus we give them in this work. But these challenges are very real for middle-income people as well, and that impacts the court system and overall perceptions for everyone.
The good news on this front going forward is there is a much greater focus on these issues today. The recent selection of Rebecca Sanderfur as a Macarthur Foundation Fellow is a great sign.
The recent announcement by the Pew Charitable Trusts that they have made a significant commitment to modernizing the civil legal system that includes a strong research component is more good news.
The work of the Access to Justice Lab at Harvard Law School is another good sign as well.
Given the scope of the challenges we face in reaching equal access to justice, it is in all of our interests to work from a common definition of what that means and how we are going to evaluate our progress along the way.