September 30, 2024
By Bob Glaves | CBF Executive Director
In last month’s post, I focused on human-made barriers at the legislative and government levels that make access to justice far more challenging and expensive for everyday people than it should be. Now it is time to turn that microscope on ourselves as lawyers, judges, and other legal professionals, as far more often these calls are coming from inside our own house.
I’m looking at you unnecessarily complex court processes and procedure, billable hour, outdated rules governing the practice of law, and mandatory arbitration and mediation. While I am confident that none of these problems came about with the intent to create barriers to access to justice, they are four prominent examples of issues within our direct control that have in fact created significant challenges for access. They also offer us tremendous opportunities that are a critical part of the overall efforts to create a justice system that is fair and accessible to all.
Unnecessary Complexity
I have previously offered a strategic plan for simplification in the legal system, and one of the core elements is identifying whether the source of the unnecessary complexity is legislation or government policy or if it instead falls within the purview of the courts and legal profession. The source often is the legislative and government levels, and for that reason this issue appeared on last month’s list too.
But far more often, the needless complexity is in our own backyard, and as a legal community it is incumbent on us to prioritize tackling it. While we all recognize the importance of good legal help in ensuring access to justice, people interacting with the justice system often face a more immediate challenge: navigating what can be mind-numbing procedural aspects of their case.
Those procedural challenges people face include figuring out where to go for their court case (which for all its benefits for access can be even more complicated in the hybrid court era), finding and making sense of the forms and documents they need to file to participate, how and where those forms need to be filed with the court, what it will cost them to do all this and how to ask for a fee waiver if they cannot afford it, and where they can go to find reliable legal help for their case.
With rare exceptions, these are not the types of questions and challenges where people should need to talk to a lawyer, but they are the types of issues that can stop someone in their legal tracks before they even pass go in their case. It is both the language we use and the processes we have created that create these barriers, and this is all largely in our control to fix it.
Fortunately, there are many signs of progress on this front, with the Illinois Supreme Court prioritizing the issue in its Strategic Agenda for the Judicial Branch and through the work of the Court’s Commission on Access to Justice and Access to Justice Division and the Circuit Court of Cook County making it a similar priority through the Pro Se Advisory Committee and related efforts.
We need to double down on these efforts as we are still just scratching the surface of what is possible and needed on this front.
Billable Hour
The billable hour continues to be a significant and self-inflicted barrier to access to justice. Whatever its merits may be in the corporate market, for low and moderate-income individuals and small businesses, the billable hour makes legal services less affordable and accessible because it lacks transparency and certainty and misaligns incentives for efficiency, innovation, and value.
That paragraph above was the intro to my “Top Ten” post back in 2018, and it remains true today.
Legal services were not always so out of reach for everyday people. As I have noted before, the start of our affordability problem was in the 1970s when the billable hour started to become the prevalent form of pricing in the consumer and small business markets. Prior to that time, fixed fee pricing was the norm in the market, and to this day, the areas of the legal market where fixed fees are still the custom, along with the contingent fee market, are much more accessible.
When people seek out legal services, they typically are looking to solve a problem, manage a risk, make a deal, right a wrong, or find peace of mind on an issue that is important to them. In their minds, a good lawyer is a means to achieve one or more of those ends as effectively and efficiently as possible.
The billable hour, on the other hand, focuses on the lawyer’s inputs rather than on the value the lawyer is delivering for the client, and it rewards inefficiency rather than reaching solutions as quickly as possible. It also creates a perception of unaffordability when the client does not know the cost and the value they will receive; people generally won’t buy things of uncertain cost or value unless they feel they have no other choice.
Yes, the price still matters, but when set fees (which come in many forms) are offered with flexible service options, like limited scope representation, they give clients the transparency and certainty to make a value-based judgment about affordability that the billable hour never can.
Modernizing the Rules of Professional Conduct
The 1980s called, and they want their Rules of Professional Conduct back. And they can have them. That was the start of my “A Fork in the Road for Our Profession” post a few years ago, and it remains largely on point today.
The overarching problem is that we have an opaque and fractured market for legal services that has not seen the kind of innovation we have seen in other professions. This problem starts with the fact that we are still regulating for a bygone era rather than today’s fast changing world. As a result, people have a difficult time judging price and quality when they seek out legal services, have little way of knowing if technology-based solutions are right for them even as they seek them out, and too often do not even realize they have a problem that may have a legal solution.
Modernizing regulation can improve affordability and improve the overall market for lawyers and clients alike. The CBA/CBF Task Force on the Sustainable Practice of Law & Innovation offered a comprehensive roadmap and series of recommendations on this issue several years ago, and if anything, the urgency of tackling these issues has only grown as we enter the AI era.
Mandatory Arbitration or Mediation
As I noted last month, I am a big fan of alternative dispute resolution (ADR), which can be a more timely and cost-effective way to resolve disputes and/or give parties who are interested in reaching a negotiated settlement the assistance of a trained neutral who can help them get there. We should incorporate added time and resources into the court process to promote negotiated resolutions, including optional ADR “off ramps” that start before court when possible, and there are many great models for doing so both here in Cook County and around the country.
That said, when participation in arbitration or mediation is required as part of the court process, most commonly in lower-value civil litigation or in family law disputes, it can have the unintended and negative effect of adding significant time and cost to the case and inhibit the ability for lawyers to provide affordable representation in these cases.
When there is mutual interest in resolving the matter amicably through mediation or mutual agreement among the parties in advance to abide by an arbitration result (as is true in many negotiated contracts that include mandatory arbitration), ADR is great. However, without that mutual agreement among the parties, requiring parties to participate in arbitration or mediation adds unnecessary time and cost into the process and negatively impacts access to justice.
Opportunity Knocks, Part 2
These are just four examples of issues within our direct control that can create significant and unnecessary barriers for access to justice. I finished last month’s post by focusing on the important opportunities at the legislative and government levels where our legal community needs to play a lead role in improving access. We have an even greater opportunity and the corresponding responsibility to tackle the many problems and barriers that are within our direct control to address as lawyers, judges, and legal professionals.
For that reason, advocacy at both the legislative/government level and in the court policy context is and will continue to be an important part of the overall CBF approach to improving access to justice. Addressing these policy issues won’t remove the need for other access to justice interventions but can materially improve the landscape to maximize their impact, and as a legal community, we need to lead the way.