What Do We Mean When We Say Access to Justice?September 20, 2018
By Bob Glaves | CBF Executive Director
Access to justice or equal access to justice, as it often is stated* is the promised land we all are seeking. But what is it? And what is necessary to achieve it?
After I proposed a banned words list for access to justice earlier this year, several people commented that we should add another phrase to the list: access to justice! That was not meant as snark, but as genuine concern that the phrase has grown too amorphous and inconsistent to be meaningful. And that presents a big problem for all of us who care about these issues.
This dilemma brings to mind the great quote from Yogi Berra we used in one of our recent 70th Anniversary posts: If you don’t know where you’re going, you might not get there. And if we aren’t clear and consistent about what we mean when we say access to justice, we are going to have a heckuva time in reaching the goal we all are seeking.
Defining Access to Justice
Access to justice includes both substantive and procedural elements, and they are interdependent. With that in mind, below is my proposed longer definition:
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 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.
Or in simpler terms:
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.
By either definition, it is important to remember both the substantive and procedural sides of this coin. If someone gets an objectively fair result but the process does not allow them to understand or believe that they got a fair shake, they aren’t going to believe justice was served.
Breaking down the definition helps identify three interrelated areas we collectively need to address for everyone to have access to justice.
The Role of Education and Outreach
The starting point for access to justice is that someone facing a legal issue actually recognizes it as a legal issue and can find basic information on their rights and responsibilities and where they can go for assistance. Before we even get to the matter of access to legal help, the biggest reason people don’t seek help when they face a legal issue is that they don’t recognize their problem as a legal one. And even when they do, they too often don’t know how or where to find quality, cost-effective legal assistance.
Addressing this challenge requires a combination of increasing the availability of simplified and user-friendly legal information and resources for the public; expanding community outreach through existing networks where people already are going (e.g., hospitals, schools, churches and community associations); and rethinking the rules on marketing and advertising of legal services, which are restraining market forces that could address this problem.
The Role of the Courts
The courts obviously have a large role in ensuring access to justice. There are many ways we can make the courts more user-friendly, accessible and welcoming for people facing legal issues, and to increase the likelihood that people will understand and feel heard in the process so that they can walk away feeling they got a fair shake even when they may not like the substantive outcome. We also need to continue to prioritize making the court process more efficient, accessible and understandable for people who come into the system without lawyers.
Where an alternative forum is appropriate or required (e.g. administrative hearings, arbitration), we need to be equally mindful of these procedural justice issues, which too often is not the case today.
The Role of Legal Assistance
While the above steps are essential, there is no substitute for the help of a good lawyer when someone is facing a more significant or complex legal issue. A recent article by former ABA President Robert Grey did a nice job of explaining the often dire impact when people do not have necessary legal help, for their own cases and for the overall justice system.
Studies consistently show that in contested matters in court, people have a much greater likelihood of success when they are represented by a lawyer compared to when they are self-represented. A recent California study confirms that legal representation for low-income people also has significant benefits on the procedural justice side. Litigants in this comprehensive and multi-year study not only got better substantive results when represented by a lawyer, they were more likely to reach lasting settlements more quickly, to be satisfied with the process, and believe they were treated fairly.
I explored the key roles lawyers play on both the substantive and procedural sides in more detail in my recent Fool for a Client series. There is much more we collectively need to do to make pro bono and legal aid services available to all who need them, and to make legal services more flexible, affordable and accessible for everyone. We need to be clear in our messaging and advocacy that affordable access to legal assistance remains an essential element of access to justice even as we continue to make the other improvements described above.
A Clear and Consistent Future
Being clear and consistent in what we mean when we talk about access to justice is the necessary first step in actually reaching our ultimate goal some day. I welcome feedback and suggestions on my proposed definition, and on how to broaden the conversation so that we can get all key stakeholders involved and on board with a common definition. In a future post, I’ll talk more about how we can do a better job of measuring how we are doing in achieving the goal.
* There is a compelling case that the word equal is superfluous in this context because there can be no justice unless everyone has the same access.