Are You Ready for Some Football?

June 26, 2019

By Bob Glaves | CBF Executive Director

Jim Harbaugh came through town last week, but not on a recruiting trip for Michigan. He was here in his role as a member of the Leaders Council for the Legal Services Corporation (LSC), where he joined in a fitting tribute to LSC’s board chair and long-time champion for the cause, John Levi.

In the course of his heartfelt toast to Levi, Coach Harbaugh used a football analogy to illustrate what it means when someone has to fend for themselves in a contested court case: it is like a game where one team has to play without helmets and pads. You don’t have to stretch your imagination to recognize that team would get routed and end up with some serious injuries.

I thought this was a great analogy that most everyday Americans can connect to and understand, and it also offers an interesting framework for tackling the broader barriers to equal access to justice.

The easy response here is to say we should just make sure everyone has highly skilled players with proper helmets and pads (i.e., lawyers to represent them throughout the case). For many people, that indeed is an essential part of the solution, but there are too many people forced to play the legal game as a highly competitive contact sport for that to be a viable solution for everyone, practically or economically.

Before we try to find all that money to sign the best players and outfit them with the best equipment, we should first take a new look at the game to see how much of that is truly necessary or appropriate in its current form.

Can we allow some people to play the equivalent of 7 on 7 flag football instead, where the players don’t need to be quite as skilled and don’t need all those helmets and pads? Or could some play other kinds of non-contact games like poker or e-sports?

For those who want or need to play the traditional game, can we get better coaching, more specialist players, and more active referees? And can we take a harder look at the rules to better ensure it is a fair fight?

Considering Alternative or Streamlined Games

In their book “Rebooting Justice: More Technology, Fewer Lawyers and the Future of Law,” Benjamin Barton and Stephanos Barbos argue that taking a fresh look at the legal system and reducing its complexity is exactly what we should do first. For simpler and lower-stakes cases, they argue we should consider new, much more streamlined and simplified processes where lawyers and the courts play a much smaller role. They also make a strong case that there are other ways we can reduce complexity and increase accessibility for cases where more involved litigation is required. While I don’t subscribe to all of their proposed solutions, they certainly make a solid case that we should take a hard look in the mirror and reconsider the “game” we are playing in the legal system, and it is a thought-provoking read.

The bottom line is that not everything that currently gets handled in court needs to be a contested proceeding from start to finish. A lot of it can be a lot simpler and more streamlined and accessible, and much can be handled through alternative processes like mediation or online dispute resolution.

New or Revised Roles on and off the Field

Once we consider some of the alternatives to the traditional “contact sport” version of law, some refined roles and other kinds of players can get involved in ways that make the process fairer and more accessible.

For example, more hands-on coaching can allow people who aren’t great “legal athletes” to play reasonably well on their own. Similarly, the referees (i.e., judges) can take a more proactive approach to ensuring everyone understands the rules and what they need to do to comply with them. And we may be able to bring some non-traditional players (e.g., court navigators) on to the field for parts of the game, helping amateur players that don’t understand the game they have just been dropped into.

Leveling the Playing Field in the Traditional Game

The above approaches can all be very effective when it is not a full-on contact game against professional players. But when it is the traditional game of football, those approaches aren’t going to make much difference. The best coaching and the most proactive referee possible won’t stop you from getting steamrolled when you are trying to play without helmets or pads.

Just as a football player needs the skills and training and the helmet and pads to have a fighting chance, someone facing a contested case in the traditional court process needs the help of a lawyer to ensure it is a fair fight. In these instances, we need to do what we can to ensure everyone has fair access to the equipment they need to compete, (i.e., good legal help) regardless of their income or circumstances.

The analogy starts to get looser here, but in professional football there are salary caps that ensure all teams are working with the same levels of resources and significant revenue sharing among teams to ensure everyone has the resources to compete, not just the teams in the biggest markets.

Using public dollars to properly fund legal aid and public defender services is the closest approximation to revenue sharing in the professional football context. We unfortunately are a long way from seeing sufficient funding to ensure everyone has the equivalent of helmets and pads and the proper training and skills to use that equipment effectively. But if we want everyone to have a fair shake, there is no substitute for making that possible in contested, higher-stakes cases.

While the salary cap concept is not a realistic analogy in our capitalist system, the idea behind it—to make sure one side can’t just win by “nuking” the other with spending—is something we can be more mindful of in law as well. For people in the middle class and others who can’t get free legal help, doing more to ensure they have access to affordable legal help and can shift fees to the other side in appropriate cases is an equally critical step.

Competitive Games Are Better for Everyone

Ensuring everyone starts on equal footing does not mean it will work out the same for everyone, nor should it. (See, New England Patriots). But few people like watching a blowout or seeing a game where one side has an unfair advantage.

And that’s where this analogy ends. Because when a person’s health, livelihood or family is at risk in a legal matter, that’s anything but a game.