Deconstructing Access to Justice, The Grand Finale:

Well, we have reached the end of the epic series I kicked off in January. It has been a more formal exploration than many of my posts over the years but an essential one too. If you have stuck with me from the start of this venture, I owe you a beer or something one of these days—please reach out to collect if that is you, you have earned it!

In all seriousness, the point in all this is to take a critical look at what we mean when we say “access to justice”, what it means to deliver on that fundamental promise, and the responsibility we all have to make it a reality, both individually and as a larger legal community.

I am firmly convinced that if we stay disciplined and collaborative in our approach, access to justice does not need to be—and indeed cannot be—the illusion that it remains for most people in our community today. Following are some thoughts from the series about how we can reach the proverbial promised land.

Defining Access to Justice: The Critical Starting Point

In each chapter of this series, I have led with our CBF definition of access to justice, as it is the fundamental starting point for determining the level of help that people need. Yoga Berra’s immortal words ring true: “If you don’t know where you are going, you might end up somewhere else.”

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 of course is necessary for someone to receive justice, but particularly 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.

When and How Much Lawyer is Necessary?

started this series by appropriately focusing on the vantage point of the people we are trying to help.

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, its impact on the person involved, and related dynamics.

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, especially unequal power dynamics that may be at play and the relative merits of their case.

A Continuum of Legal Help 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.

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. The focus in access to justice circles too often is on the opposite ends of this spectrum—self-help on the one side and full representation on the other—when the right solution most often is going to be somewhere in between.

Beware Those Pitching Technology as a Catchall Solution

With the above principles in mind, when someone says AI is the solution, we should respond with a question: the “solution to what?” 

While advocates for these technology interventions often wildly overstate their potential to improve access to justice as freestanding solutions, AI and other tech-based solutions clearly have a key role to play in improving access. However, when the stakes are high and unequal power dynamics are at play, they are no substitute for a good lawyer.

That said, if we just focus on the many types of legal issues people face every day that don’t involve those kinds of stakes, these interventions have tremendous untapped potential to improve access to justice for people who never realistically will get—or should need—a lawyer to resolve their issue. 

Lawyers Matter, In Degrees

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. This is where the continuum concept comes in, with the extent of the lawyer’s help that is necessary to achieve a fair outcome varying from brief advice to various types of limited-scope legal assistance to full representation that can extend through an appeal.

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.

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 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 this 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. Even when AI and other technology-based products may not be a solution on their own for resolving more significant legal issues,  they play a key role in improving access to lawyers and making their services more efficient and cost-effective.

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.

Other Legal Professionals Can Help More Too

When I go to get a flu shot, go to physical therapy, or get a routine dental cleaning, I don’t normally see or have any need to see a doctor or dentist. I see other very qualified professionals—a pharmacist, physical therapist, and a dental assistant—and in most instances don’t need to go through my doctor or dentist to do so.

There are so many equivalent situations in the legal system, but with rare exceptions, we don’t make it easy for everyday people to get help from other legal professionals who could help them navigate those lower-stakes issues where lawyers are not necessary or realistically accessible to them.

This again is no replacement for lawyers in the more complex and higher stakes issues, but it has far more potential as a solution on the access to justice continuum for the many lower stakes legal issues people encounter.

The Integral Role of the Courts

I finished the series by focusing on the courts in recognition of how critical they are to the success of all the other steps noted above. Courts alone cannot ensure access to justice—we all share in this responsibility and need to do our part—but there is no way we can reach true access to justice without the courts fully embracing their leadership responsibility.

Top of Form

Bottom of Form

The courts have multiple key roles in ensuring access: as the arbiters of justice in individual cases, in the way they manage and oversee the court process and associated policies, in their leadership in making the case for the necessary resources and supports to deliver justice, and as the regulators of the justice system and the practice of law.

The obvious place to start for the courts to carry out their central role in access to justice, and the area where we have seen some real advances in recent years after the jolt of the pandemic, is improving efficiency and access to the court process.

However, even  recognizing the noteworthy recent progress on this front, our court system remains far more complicated than it needs to be, making access more challenging and expensive than required for the many bread-and-butter legal issues people face in the courts.

Continuing to eliminate unwarranted complexity and delay through steps like active case management, reducing unnecessary hearings, and simplifying court forms and the court process are low-hanging fruit for the courts to improve access. Furthermore, providing more procedural assistance, both in the courts and remotely, is an important corollary to these continued streamlining and simplification efforts.

Improving efficiency and access to the court process by incorporating hybrid and remote proceedings and modernizing court practices is another key step. The courts made tremendous progress on this during the pandemic, and we need to build on that progress to continue to improve access.

While courts have a unique role to play in delivering procedural access to justice, that is just the start of the Court’s responsibility. As noted in more detail in last month’s post, in their judicial management and regulatory roles the courts also play an integral role by integrating access to legal assistance into the court process and making legal assistance more affordable and accessible.

Real Solutions Need to Work for Everyone Across the Income Spectrum

As a matter of principle, when we are suggesting self-help options or  more limited 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.  

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. And it is up to us as a legal community to lead the way.