Access to Justice—What Art Thou?November 29, 2021
By Bob Glaves | CBF Executive Director
Access to Justice is one of our most essential American values. As lawyers and judges, we are the trustees of ensuring everyone has it. And we are all are seeking it. But what is it, really?
I wrote about this a few years ago and reopened the door to the discussion in my recent Banned Words for Access to Justice 2.0 post. While I don’t believe the phrase needs to join the banned words list, what we do need to do is find a more universal definition of what we mean, and honestly account for what it takes to achieve it. Here is my suggested definition:
“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.”
With that definition as a guide, let’s dig into what “Access to Justice” means and how we can get there.
The two sides of access to justice
The two prongs of this definition can be summarized as substantive and procedural, and like peanut butter and jelly, we need them both or we don’t have access to justice. Just getting the right legal outcome is not the same as someone objectively being able to believe they got a fair shake; the process matters too.
The stakes at issue and the level of legal complexity both have a lot to do with what is necessary to achieve true access to justice. A good example of this has been top of mind in the wake of the pandemic is evictions.
With notable exceptions, most people facing eviction don’t have a substantive legal defense to their case. But there almost always is a better alternative than eviction by order of the court, such as connecting to rental assistance to resolve unpaid rent that led to the eviction filing or the tenant moving out through a negotiated agreement that gives both the tenant and landlord a realistic shot at a fresh start.
If we were only concerned with the tenant getting the right legal result, those superior negotiated outcomes too often would not happen, leading to more instability for the tenant, the landlord, and the community. And we know anecdotally and from comprehensive studies that having a lawyer on your side makes a big difference in helping people reach these better outcomes. Having a lawyer helps screen for and assert legal defenses where they exist, but more fundamentally what it does is level the playing field for the tenant (and for small landlords as well, who often face very similar challenges in the system when they are unrepresented).
A recent comprehensive study in California shows how lawyers make a difference in evictions and other cases in ways that go far beyond the legal merits in a given case. The study found that when litigants had access to legal help, whether brief services or full representation, they were more likely to actively participate in their case, felt more supported and satisfied with their court experience, were more likely to settle cases, and more likely to achieve sustainable long-term outcomes. The courts also benefitted from cases that were resolved more quickly and efficiently and required fewer contested hearings, trials, and post-judgment motions.
Looking at access through an equity framework
A practical way to look at this access to justice definition is to use an equity framework. The following excerpt from Professor Alvin Tillery’s Leading Diversity, Equity, and Inclusion course at Northwestern University gives a good overview of the differences between equality and equity and sets the stage:
“The Government Alliance on Race and Equity, a US national network of government working to achieve racial equity and advance opportunities for all, explains that “equality and equity are sometimes used interchangeably, but actually convey significantly different ideas.
Equality is… concerned with treating everyone the same; whereas equity is about offering different types of support to ensure that everyone has a fair chance of being successful.
This is a framework the CBF is going to be fleshing out as one of the priorities in our new strategic plan, and I’ll be writing more about it in 2022. For now, it is a helpful way to think about achieving access to justice.
There are many procedural elements that can be addressed by the courts and legislative bodies to build equity into the system, some of which already are recognized. Just a few examples include access to interpreters so people can understand and participate in their cases, making remote access a permanent feature of the system for most matters so that people can participate in their cases without the need to physically come to court, and regularly reviewing rules and practices to ensure all people have fair access regardless of who they are, where they are from, or how much money they have.
However, as critical as the above process steps are to the solution, they generally will not be sufficient on their own for people to get a fair hearing. We also need to ensure people have realistic access to the legal assistance they need to level the playing field with the other party.
The level of legal help necessary to get a fair shake will depend on factors such as what is at stake in the case, whether unequal power dynamics are in play between the parties, and the complexity of the legal issues. For simpler, lower-stakes legal matters, of which there are many, a lawyer may not even need to be involved to reach a just resolution. However, when the stakes are high and a more powerful party is on the other side, there is no substitute for the assistance of a lawyer to reach a fair result.
Returning to the eviction example shows how this equity framework can be used to build a fairer and better system. Here in the Chicago area, the Cook County Legal Aid for Housing and Debt program took this approach to heart in its design, with significant changes in the court process and investments in both attendant court resources and legal aid for tenants and small landlords who otherwise would be unrepresented.
Through the program, all eviction court calls are structured so that the first hearing is a case management hearing where, with the assistance of neutral case managers, the court can assess what is happening in the case and where the parties are in terms of access to legal assistance and potential alternative solutions. The case management hearings are available remotely so people do not have to come to court to access the hearing or the related resources, and free mediation is available and encouraged.
Along with those process changes, all unrepresented tenants and small landlords have access to free legal advice and brief assistance that the case managers can connect them to in that first case management hearing; those services are also available in advance of court through a free legal aid hotline. Legal aid lawyers assess the cases and help their clients reach an early resolution, which can include rental assistance that also is available directly through the program.
This process does not resolve every case, and in many cases, tenants or landlords require further representation to litigate a meritorious claim or defense or resolve a more complex issue. A significant number of cases, however, can and do resolve with alternatives to eviction early in the process, and the changes to the court process and investment in these attendant resources makes it possible for everyone to get the fair shake they deserve.
How Do We Get There More Widely?
While the eviction example above shows what is possible on this front with focus and concentrated investment and can serve as a model, tackling access to justice at scale requires us to think more broadly given the widely varying case types and the fact that people have varying levels of income and need. There is no one-size-fits-all solution.
To address access to justice more broadly, a more expansive multi-pronged approach is needed, one represented by the three-legged stool image below.
As this image illustrates, we need all three legs to be solid or the stool will collapse under the weight above it. These three legs are summarized below, and as an overarching matter, we also need to invest in the community partnerships and outreach necessary to connect people in need to these solutions rather than the more traditional “build it and they will come” approach we’ve taken as a justice system.
Our court system was largely designed for the bygone era when it was a realistic assumption that both sides would be represented by a lawyer in virtually all cases, but for years now, the more common scenario on the civil side of the system is that at least one party comes into the system unrepresented. Modernizing the system to account for this reality is a critical first step.
By looking at how the system looks through the eyes of someone going it alone, courts can make the changes necessary so that it is feasible for people to handle lower-stakes matters and more routine aspects of their cases on their own, an essential part of the broader access to justice efforts. Court modernization also is essential to making legal assistance accessible and affordable for people of all incomes for the many cases where having a lawyer is necessary to reach a fair result.
Maintaining and expanding remote access to court proceedings is a particularly important step for courts to promote access to justice, as I have discussed in more depths in prior posts you can find here and here.
There has been some tremendous progress in Illinois on this front in recent years, but we’re still just scratching the surface of what is needed for the courts to fulfill their core role in ensuring access to justice, and we need to double down on these efforts.
Legal aid and pro bono
As noted in the equity framework discussion above, a continuum of civil legal aid options should be available to people in need depending on the level of assistance appropriate for their case, and while there have been noteworthy recent improvements, we remain a long way from providing sufficient funding for the legal aid system. Proper investment in public defense for criminal matters and in the government legal offices who represent the community (e.g., state’s attorneys, attorney general) as well as the nonprofit public interest organizations who advocate on behalf of vulnerable groups is also necessary.
Along with properly investing in the lawyers to do this work, we also should continue to build on the experience of other professions and expand the ways that other advocates and legal professionals can appropriately play a role in the delivery of legal services.
And finally, while it can never replace proper investment in the above services, pro bono plays a key supplementary role and is an integral part of the broader solution as well.
Market-based legal services and Technology
Our third and final prong that is integral to the solution is technology and market-based services for people of all incomes. While these are distinct strategies for reaching access to justice and there is a lot of good happening on these fronts already, they are on the same leg of our access to justice stool because our outdated regulatory structure for the legal profession and the delivery of legal services–the Rules of Professional Conduct–is artificially restraining both from reaching their full potential. The status quo on this front is the ultimate lose-lose for our profession and access to justice, and our Rules need to catch up to modern times for all concerned.
Market-based legal services
While access to justice conversations tend to focus on the needs of the most vulnerable l people in our community, the problem extends well into the middle class. When everyday people cannot afford lawyers when they need them, as is increasingly true today, it leaves a huge gap in access. Somewhere between 40%- 60% of our community falls into this category of making too much to qualify for already overstretched free legal aid but not enough to afford prevailing law firm rates.
While there is more that lawyers can do on their own to meet these needs, the fundamental problem is that our regulatory structure essentially confines lawyers and the public to the traditional law firm model when a range of business models is needed to meet the needs of the market in today’s omnichannel world. Other professions are way ahead of us in this regard, and lawyers should have similar options. In addition, we need to invest in more subsidized market services that are available on a sliding scale basis for people who are at the early part of the middle-income spectrum, as we do with the health care marketplace.
It is hardly news anymore that people of all incomes want and increasingly will use technology-based solutions in most every part of their lives, and legal help is no different. While it is clearly not appropriate for every kind of legal issue or every aspect of that issue, we know that people can benefit from technology-based solutions on a broad range of legal issues and they want access to those options, especially for what they perceive as lower stakes or simpler aspects of their legal problems.
Unfortunately, our current regulatory system gives people little guidance on whether these are good legal products or appropriate solutions for their legal issues. We can and need to do better, and more to come on how we can do that in a future post.
The Road Ahead
Anyone who has worked around these issues for even a minute knows we are a long way from achieving our ideal fair and accessible justice system for all. However, with a realistic definition and a commitment to the multi-pronged strategy to achieve it, we can see an attainable path to access to justice for all. Thanks to the strong support of Chicago’s legal community and our many dedicated partners, the CBF is more invested than ever in helping blaze this trail forward in the coming year and beyond and we look forward to continuing to work together to do just that.