Deconstructing Access to Justice, Part Four: Lawyers Matter, in Degrees

As we continue this Deconstructing Access to Justice journey, this month I want to turn to the higher-stakes legal issues people face. In last month’s post, I talked about the many lower-stakes issues where people may be able to realistically solve their legal problems without the help of a lawyer.

As we turn to the higher stakes issues people face in the system, which are the issues most of us think about when we think about access to justice, that is where there is no substitute for a good lawyer. But that does not mean that everyone needs or should get a lawyer from start to finish for their case; there are varying degrees of a lawyer’s help necessary for people to get a fair outcome in their case and in many instances, brief services are the right solution.

When we look at the issue through that lens, closing the still huge gap in the availability of legal services is not as far-fetched as it may appear, but there is far more we can and must do to make that help more available and accessible to the people who need it.

Defining Access to Justice: The Critical Starting Point

In each chapter of this series, I have been leading with our definition of access to justice, as it is the fundamental starting point for determining the level of help that people need.

Everyone facing a legal issue (1) has timely and affordable access to the level of legal help necessary for them to get a fair and efficient outcome on the merits of their legal issue, and (2) objectively can believe they were treated fairly in the process.

As this definition makes clear, getting the right result on the merits is, of course, necessary for someone to receive justice, but when the stakes are higher it matters just as much how that result is delivered, or procedural justice. Access to the right level of legal help is crucial on both fronts.

The Varying Kinds of Legal Problems People Face

I started this series by appropriately focusing on the vantage point of the people we are helping.

In assessing the right level of legal help that is necessary, there is no one-size-fits-all solution. It depends on the legal issue involved, its impact on the person involved, and related dynamics. This quadrant graphic below looks at it through the lens of the stakes and complexity involved in the person’s legal issue, two of the biggest factors in assessing the level of legal help that is necessary.

Last month’s post focused on the lower stakes side of the quadrant, where the lower left quadrant—lower stakes and low complexity—is the obvious place to start for solutions that should not require a lawyer. AI and other interventions also have tremendous potential in that lower right quadrant of lower stakes and higher complexity by helping people to effectively navigate otherwise unwieldy systems on their own.

It is the upper part of the quadrant that is different; this is where access to a good lawyer is most crucial for access to justice, but how much lawyer does someone need?

The Access to Justice Continuum of Legal Assistance

As noted at the outset, recognizing that a lawyer matters is just the starting point for the analysis. The extent of the lawyer’s help that is necessary to achieve a fair outcome can vary from brief advice to various types of limited-scope legal assistance to full representation that can extend all the way through an appeal. A continuum of legal assistance, tiered to the merits and circumstances of each case, should be our goal to provide the right level of legal services to ensure someone can reach a fair and effective resolution for their legal issue.

Just as is true for health care, where we rarely end up needing surgery when we go to see a doctor, full representation generally is not going to be necessary to achieve access to justice (with the notable exception of where someone’s liberty is at stake). Rather than everyone getting a lawyer for the whole case regardless of the merits of their position or the stakes involved, we should be focused on making sure people have the right amount of legal help necessary to reach a fair resolution.

When something less than full representation is what is appropriate to reach a fair resolution, there is no doubt that people may want a lawyer to help them beyond the more limited assistance than is necessary. And in almost all instances, people can benefit from at least talking to a lawyer, even for the lower-stakes part of our quadrant. However, with relatively rare exceptions, these services should not be necessary for ensuring access to justice.

Making Lawyers More Affordable and Accessible

Even when we take a more proper and nuanced approach to when a lawyer is necessary and how much of that lawyer’s help is needed to achieve true access to justice, it is hardly news to say that we are a long way away from having the necessary resources today for everyone to get the legal help they need.

Despite some notable recent progress, we are still not close to the level of investment in free legal help for all low-income and disadvantaged people who need it. And we need to recognize the access problem extends well into the middle class.

Closing the gap requires more funding for legal aid as well as more investment in solutions where people above the income eligibility line for free help can pay on a sliding scale based on their income. 

It also requires more innovation in the practice of law and the use of technology. Just because AI and other technology-based products may not be a solution on their own to resolving more significant legal issues does not mean they cannot play a role in improving access to lawyers and making their services more efficient and cost-effective.

While we are only in the proverbial second inning of what is possible with AI, it already is clear that it can help lawyers to make legal services more efficient and accessible. AI and other technologies also can help people more realistically handle the routine aspects of their cases so that limited scope assistance from a lawyer for the more significant aspects is a more effective solution. AI also has a lot more potential to help people to better identify when they need a lawyer and how to connect with those services.

There are many practice improvements beyond technology that can make a big difference as well, including maximizing limited-scope options and changing the way we price legal services. Along with making the most of technology, these practice improvements will help lawyers serving the middle market to deliver more accessible and cost-effective services so that everyday people are better able to find and afford legal help when they need it.

Being Real About Real Solutions

For all the above reasons, access to the right level of assistance from a lawyer is a central part of any real access to justice solution when people face higher stakes issues, particularly when unequal power dynamics are involved.

That said, as emphasized in my prior posts in this series, other solutions along the continuum of assistance can play a key role for lower-stakes issues and for helping people handle parts of their cases on their own, with a lawyer providing limited scope assistance at key stages.

As a matter of principle, when we are suggesting self-help options or other services on the continuum are a legitimate solution, that should work for a wealthy person as much as it would for a poor or middle-income person. If someone needs a lawyer to get a fair outcome on their case and that is not available, the answer is not to offer other interventions and pretend we have given them the access to justice they deserve.  

The Next and Penultimate Stop in the Deconstructing Access Series

That is a wrap for this month. We have covered a lot of bases in the first four parts of the series, and none of them sit in a vacuum.

Next comes the courts in May, which have a crucial role to play in ensuring access to justice in many important ways. And then the grand finale comes in June when I hope to bring this all together into a cohesive access to justice plan. Thanks for reading so far and stay tuned!