Behavioral Economics and Access to Justice, Part Two

With last month’s brief introduction to behavioral economics in the access to justice context as a backdrop, I want to turn this month to some concrete steps we can take to make the legal system more fair and accessible knowing the many predictable ways we can all be “irrational” when facing legal problems and other life issues.

Behavioral economics shows us that there are many reasons that any one of us may not act rationally in any given situation–biases, emotions, and informational overload to name just a few. We need to better understand and account for these concepts as we evaluate the appropriate legal interventions for different kinds of legal problems and circumstances, and below are three important ways we can do that. 

Simplify, Simplify, and Simplify More

We have a legal system that is generally well-designed for complex and high-stakes cases, and many cases fit that bill. Whether it is a felony criminal case, a significant business dispute, a medical malpractice case, or a class action civil rights case—to name just a few common types of more complex cases—our comprehensive rules of evidence and procedure and the corresponding assumption lawyers will be representing all parties makes good sense.

However, for most of the civil, domestic relations, and traffic court systems, that level of complexity and the attendant assumptions about the role of and access to lawyers do not hold up to scrutiny. Rather than sticking to the one-sized-fits-all procedural complexity that characterizes most of our court system, we can vastly improve access by prioritizing simplification of the legal process, and behavior economics underscores the need to do so. Two key behavioral economics concepts I highlighted in my last post help guide the way.

Bounded Rationality

When people encounter an unfamiliar situation and are trying to make good decisions, there is a limit to the amount of information they can absorb. That is bounded rationality in a nutshell, and it happens to all of us when we are outside of our regular comfort zones.

Recognizing that most people coming into court today are coming without lawyers, courts and other justice partners (the CBF included) have worked to give them more information and resources to help them navigate our overly complex system. With the principle of bounded rationality in mind, there are two major mistakes we tend to make in these efforts.

First, in the well-intentioned effort to empower people without lawyers and ensure they have as much useful information as possible, we give them way too much information and do not deliver it in a language they can understand. Rather than helping as intended, giving people too much information in too complex a form quickly becomes overwhelming and of little use, often leaving them more frustrated than when they started.

Second, we hold everyday people using the courts to the same standards as lawyers and other legal professionals who have years of experience and training. E-filing in Illinois, which with very limited exceptions is required of all people using the court system in Illinois, including people who are unrepresented, is a prime example.

E-filing is intended to increase access and efficiency, and for lawyers and law offices that regularly use the courts, it generally works as intended. For people without lawyers trying to access the courts, however, it is an overly complex and difficult process that more often becomes a barrier to access. An easy way to acknowledge reality and carry out the original intent of promoting access is to make e-filing optional for people without lawyers rather than requiring it.

Choice Overload

Research has shown that giving people too many choices with the good intent to empower them can backfire, becoming paralyzing and leading to dissatisfaction. While we should be careful not to go overboard in limiting options, we can do a lot better for all concerned by aiming to limit choices to no more than three for any particular issue.

Returning to my e-filing example, check out this well-intentioned chart to help people make sense of the many options available to e-file in court. As a lawyer and former litigator, it makes my eyes glaze over to try to make sense of all these options. Imagine what that must be like for someone not trained in the law and trying to navigate this on their own.

Simplification Writ Large

I use the e-filing example because it is so fundamental to access, but it is hardly unique in the legal system when it comes to informational overload for the people we serve and the great potential to make that better.

The question we should constantly ask ourselves for the entire legal process: Is this complex because it needs to be (i.e., the issue itself is complex or the litigation itself is more involved, like a major trial) or because that has always been the case? My gut tells me that it is more often the latter, and addressing this fundamental problem needs to remain a top priority.

Use More Nudges

As we work to simplify the court system, we can use “nudges” to help people navigate the complex process and to account for the most common behavioral economics foibles we all share.

The term nudge, made famous in this context by the book “Nudge” by Richard Thaler and Cass Sunstein, is the concept that we can create tools and processes that encourage people to consider and take steps that are in their own interests. One of the easiest nudges—and perhaps most important in the context of the court system—is to make things we want people to do easy to do.

So yes, simplification is the first and most important step there, and nudges should never be used as an excuse to skip over that. However, it is now well-established that we can design court processes and attendant resources to make it easier to navigate even in our currently overly complex system.

On the low-tech end, these include checklists and journey maps. Technology gives many more possibilities though, including chatbots like Rentervention and guided interviews that help people navigate complex terminology and legal processes in a more comfortable and familiar question and answer format. As technology continues to improve with the assistance of AI, there is even more potential on this front going forward.

Recognize the Limits of DIY Solutions

While the potential to improve access through simplification, nudges, and related self-help solutions is enormous, lawyers will always have an integral role in any real solutions, and behavioral economics helps to underscore this reality.  

Emotions both consciously and subconsciously have a huge influence on our decision-making on a whole range of issues, and that is especially true for legal decisions. People facing legal issues often bring a whole range of associated emotions to the table that can cloud their ability to be objective and make the right decisions on their own: anxiety, fear, anger, anguish, hurt, and all the others. Being personally involved in a situation makes it difficult for them to effectively advocate for their own interests as a result, particularly when the stakes are high.

There is a reason lawyers picked up the name “counselor,” because that is at the core of what good lawyers do for their clients is to help them navigate difficult and emotionally fraught situations. That also helps explain why researchers consistently find that people represented by lawyers get better results in court than people proceeding on their own. The lawyer’s training, experience, and expertise of course play a big part, but the lawyer’s ability to advocate for their client from an objective vantage point without the attendant emotions of being personally involved plays a critical role.

A lawyer trying to represent themself is no different. The old adage that a lawyer who represents themself has a fool for a client came about well before anyone had ever heard of behavioral economics, but it is actually based on some of the same principles.

Unlike most other people who encounter legal issues, lawyers don’t face the challenge of bounded rationality and should be comfortable in the system and able to easily navigate the applicable law and procedure. The problem the lawyer faces as much as anyone else though is that they can easily lose their objectivity when personally involved in the situation. As a result, the lawyer generally can no longer be an effective advocate for their own interests, thus the old adage about being the fool.

This does not mean everyone (including lawyers) needs a lawyer for all issues or that they always need full representation when they do. The level of legal help necessary in any given situation can range from information and self-help resources to brief legal advice to limited scope assistance to full representation. The appropriate intervention will vary by the person and the nature of issue they are facing, and behavioral economics helps to understand the right path.

A More Behaviorally Conscious Future

As we continue in the quest to build a justice system that is more fair and accessible for all, there is much we can learn from the field of behavioral economics to significantly improve access to justice. If nothing else, I hope this two-part post is good food for thought for the tremendous potential on this front.