Deconstructing Access to Justice, Part Two: The Continuum of Legal Help

Some of the best wisdom ever about life comes from the immortal philosopher Mick Jagger and the Rolling Stones: You Can’t Always Get What You Want, but if You Try Sometimes, You Just Might Find, You Get What You Need. It’s a good way to think about access to justice too and sets the stage for the next part of this Deconstructing Access series. (And while I hope you will read this full post, make sure to also check out the official video for the song linked above, for the first time or again, it is like a time capsule). 

It is hardly groundbreaking to note that people have varying kinds of legal problems and need varying levels of legal help to resolve those problems fairly and effectively. But what does that mean in real life, and how can we ensure that people have access to the right level of legal assistance they need when they need it?

To achieve this goal, we need to have an integrated and properly supported continuum of assistance available that gives all people access to the level of legal help they need. That ranges from AI and other self-help solutions on one end of that continuum to full representation on the other, with many service options in between.

Most of these pieces are in place, but not in sufficient quantity and not adequately connected for people to find the best option for their circumstances. Building out that continuum will be no small task in the best of circumstances, and a significant added challenge we must confront is being credible about what people really need to get a fair outcome.

The discussion in access to justice circles these days tends to focus on the two ends of this continuum— “right to counsel” on one end and the “lawyers are unnecessarry” on the other— but most often the solution is going to be somewhere in between.

Defining Access to Justice: The Critical Starting Point

In each chapter of this series, I want to start with our CBF definition of access to justice, as it is the fundamental starting point for determining what 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 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. As a result, 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,

                      

The graphic above is a basic way of visualizing two of the biggest factors in the analysis of when people need lawyers most: the stakes and complexity involved (larger gavel means higher importance for a lawyer to be involved). Other important factors also influence when people need a lawyer and how much lawyer they need, but keeping these two overarching factors in mind is crucial to the analysis.

Building the Continuum to Meet People Where They Are with What They Need

The concept of a continuum of assistance depending on what we need is a common concept in other areas of our lives, most notably in health care.

When we have a health issue, it is far more likely to be resolved with “take two of these and call me in the morning advice” than it is with surgery, and there are a whole lot of options we all are familiar with in between (e.g., physical therapy, all kinds of drug regimens, and good old-fashioned rest).

While we don’t necessarily think of it this way, legal help has a similar continuum of solutions depending on what someone needs. The graphic below shows in broad terms the range of assistance that makes up that continuum.

In my next two posts I will take a more detailed dive into the key elements of this continuum, and in the closeout to the series will talk more about what is needed to build a more integrated continuum of legal help into the larger justice system.

For the remainder of this post, I just want to briefly touch on two points critical to building a sustainable continuum that gives everyone access to the level of help they need.

Want v. Need

As the start of my post suggested, “need” is the operative word in determining the right level of legal help. In this context, need means the right amount of legal help to meet our definition of access to justice.

For a variety of reasons, people may often decide there is value in paying for more services than they need for a fair outcome, as they do for many other kinds of services. Lawyers play an important role in those instances too, but when we think about what is necessary in terms of public investment to ensure access to justice, what people need is the proper focus.

It is important to note that the concept of need cuts multiple ways. We must be disciplined so that we are not giving people a chatbot when they need a lawyer just as much as we have to be realistic about the level of legal help people should get when they do need a lawyer.

To be clear, we are not yet close to a system where there are sufficient services accessible to people of all incomes to give them the level of legal help they need. However, if we keep a disciplined focus on building a system where people have what they need, the path to get there gets a lot more realistic even in a world of limited resources.  

Dispute Resolution v. Justice

Speaking of great philosophers, in the legal space Jordan Furlong is a thought-provoking analyst of our profession and justice system who is well worth your time to follow.

One of his provocative challenges from a few years ago that is highly relevant to our goal of building a sustainable and effective continuum of legal help is to think about access on two planes: as a justice system and as a dispute resolution system.

I commend his entire article to you for your consideration, it goes to the heart of our access to justice definition. To summarize his point, he does not disagree that we need a fair and accessible justice system for the more significant legal issues people face in their lives. However, when people have simpler or lower stakes disputes, efficient and affordable resolution often transcends other concerns about the fairness of the process, and our traditional justice system does not serve them well.

That will not always be a bright line. Still, Furlong’s point is a valid one and underscores the reality that building a realistic and sustainable continuum of legal help does not happen in a vacuum. The courts and our policymakers have a critical role to play here as well, and more on that as the series continues.

Looking Ahead in the Series

Next month, the focus will be on the many situations where lawyers may not be necessary to achieve access to justice, and the other important ways AI and technology can improve access for people in all cases.

In April, I will talk more about the areas where having a lawyer is more critical, and the varying levels of the lawyer’s assistance they may need in those instances.

In May, we’ll turn to the critical role the courts can and must play for making this all work.

And finally in June, I hope to bring it all to stirring conclusion. Thanks for reading and stay tuned!