By Bob Glaves | CBF Executive Director
With children and young people everywhere getting ready to head back to school, I thought I’d start today’s post with a short pop quiz:
Name the #1 reason why people don’t use lawyers when they encounter a legal issue:
A. Believe it wouldn’t make any difference
B. Too expensive/can’t afford it
C. Don’t recognize a need for legal advice
D. Don’t know how or where to find one
E. Determined to handle it on their own
The answer is C, and by a large margin. According to a recent American Bar Foundation study, the number one reason people facing legal issues don’t have a lawyer to help them is that they don’t recognize they have a legal problem.
As I’ve been blogging about the future of our legal profession and the justice system over the course of this year, I’ve focused on the many issues that arise when someone knows they have a legal problem and is trying to navigate the legal system from there. As often noted, we’re a long way from being able to provide meaningful access to justice even for the people in our community who recognize they have a legal problem. That gap in access results from a shortage of pro bono and legal aid resources, what may be an even greater shortage of affordable legal help, and a justice system that is more complicated and inaccessible for regular people than it should be.
Given the reality that there already is much greater demand for legal help than the existing system is currently able to serve, it’s tempting to put off the quest for trying to reach out to the even larger segment of people who don’t even recognize that they need legal help when facing legal issues. That would be a shortsighted move for a number of reasons though, not least because a large segment of these people could afford to pay something if they recognized the value a good lawyer could bring to their situation and had more affordable options to access that value.
Another recent study from our neighbors to the north identified additional reasons that people don’t use lawyers even when they are in court and aware that they have a legal issue.
The combined lessons from these studies illuminate some important challenges for our profession that have serious repercussions for the justice system. At the same time, these studies point the way forward for our profession to do things differently and better connect with a potentially huge pool of clients, which would be to everyone’s benefit.
The American Bar Foundation Study
The American Bar Foundation study referenced above was done in an unnamed mid-sized Midwestern city, underscoring once again that even trained researchers agree that the most normal mix of people in the country resides right here in the Heartland.
The study focused on civil issues, and about two-thirds of the people surveyed reported an issue that could be considered a civil justice problem. These were usually bread and butter issues like employment, money and debt, insurance and government benefits, and housing, and about half of these problems had significant adverse effects or consequences.
The study found that almost 80% of the time people handled the problem on their own, usually because they did not even recognize a need for legal help. For the 22% who sought help outside of their family/social network, it often was not from a lawyer but an elected official, government agency, social worker or religious leader. 42% of them did seek help from a lawyer when court was involved, but only 5% in other situations.
Why did so many people not even try to consult a lawyer? Cost was cited as the issue only 17% of the time; far greater percentages of people identified the top reasons as feeling they don’t need legal advice or that it wouldn’t make any difference.
The Canadian Study on Self-Represented Litigants
The 2013 Canadian study focused on self-represented litigants from Canada. The study looked at a number of issues facing people without lawyers in the courts, and the findings are equally insightful for us here.
Why were the people who were interviewed for the study representing themselves? Just about 20% expressed a determination to handle the issue themselves, but 90% of them mentioned finances as at least part of the reason.
Many of the people in this study had a lawyer at some point earlier in the process and were asked why that was no longer the case. The overarching reason was that they did not see commensurate value for the money they paid for the legal services. Other responses included that counsel was not listening to their goals or expectations or was not explaining what was happening, and that counsel was perceived to be doing nothing to advance their case to a realistic outcome or dragging out the case.
Another common response was that unbundled service options were lacking. The study found that people who represented themselves clearly could benefit from and might pay for unbundled options (i.e., where the lawyer would only provide representation for part of the case), particularly for coaching and preparation. However, they had difficulty finding and connecting to unbundled service options, a finding that would surely be repeated here in Illinois if a similar study were done today.
A more recent study by the Institute for the Advancement of the American Legal System (IAALS) focused specifically on family courts in the U.S. and noted similar findings. Most people who are self-represented in family court would like to have legal assistance or representation, but 90% cited cost and affordability as major barriers. In addition to affordability issues, awareness of how to find good legal help and questions about the value legal assistance would provide again were raised as well.
Takeaways for Our Profession and Access to Justice
The findings from these studies show that there are some significant challenges for access to justice that go well beyond the obvious ones of not enough investment in pro bono and legal aid services. These findings also point to a lot of opportunities for our profession, particularly for lawyers in private practice who are serving people in the middle income market.
All of us can think more creatively about how we can better connect to the large numbers of people who have legal issues and don’t even recognize them. Looking carefully at the findings in the American Bar Foundation study about where people are turning for help gives us a good roadmap about the many community intermediaries who can be connectors to this latent market.
Legal health checks, already in use in Canada today, are another way to help people identify legal issues that may impact them but otherwise might not be on their radar. The concept is similar to routine checkups with doctors and dentists, which often identify issues we would not otherwise have known were problems and can be more cost-effectively treated when spotted early.
For lawyers in private practice in particular, it is really critical to understand that when people do recognize they have a legal problem, it is not always obvious to them what value a lawyer would bring to the situation or whether they can afford the services. All lawyers can think about ways to better explain the value they are delivering for their clients and potential clients, offer unbundled service options whenever possible, more clearly link their pricing to the value they are providing for clients, and make their pricing options more transparent and predictable.
These are just a few of many ideas for how we can better connect to and serve the many potential clients who aren’t currently using lawyers when they encounter legal problems. Looking at these issues through the lens of these potential clients, there are a number of innovative solutions that can bridge these gaps that already are starting to surface, and there is a huge potential market out there waiting.