Deconstructing Access to Justice: A New Hit Series

“Intense narratives.” “Thought-provoking and serious themes.” “Practical advice.”

Reviews for this new series I am kicking off with my first Bobservation of 2024? Er, well, no, they come courtesy of ChatGPT as the kinds of reviews a compelling drama or bestselling business book might receive.

You of course will be the judge of whether any of those testimonials fit this new series, or whether it is a hit by any definition. But flowing off my 2024 Resolution for the Legal Profession I want to use these next few posts to break down access to justice into its key components, starting this month with an ongoing and fundamental challenge we need to take the lead in solving: how to help people determine what level of legal help they need to get a fair shake on their legal issues.

Along with helping to create self-aggrandizing reviews, AI and other self-help technology tools definitely belong on the continuum of solutions people can turn to when facing legal issues. They also have the potential to help people understand when they should get further legal help, what level of legal help is right for them, and how they can find that help.

What do we mean by access to justice?

As the title of this post suggests, the theme for this new series is “deconstructing access to justice” and that is what I will be doing in these next few posts. As Yoga Berra once said, “If you don’t know where you are going, you might end up somewhere else,” so the starting point is returning to our CBF definition of access to justice.

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 how that result is delivered—or procedural justice–matters just as much. Access to the right level of legal help is crucial on both fronts.

The 2024 Resolution for the Legal Profession

My resolution for the year, “Back to the Future, with a Twist” is the other important backdrop for this series. In summary, as much as AI and improving technologies are upending the way we have always done things, the core qualities and value that good lawyers have brought to the table for centuries—as counselors, advocates, and helping people navigate challenging legal situations remain essential for access to justice. However, there is no question we can make those services more efficient and accessible for all and empower people to handle lower-stakes matters and the more routine aspects of their cases by modernizing the way we do business and deliver justice. 

The resolution intentionally was aimed at our legal profession and our responsibilities, but to put the proverbial “meat on the bones,” we need to look at this from the vantage point of clients and other people facing legal problems. 

Just Because You Can Doesn’t Mean You Should

There are no one-size-fits-all solutions to access to justice; it requires a broad range of service options depending on the nature of the legal problem and the individual circumstances.

I addressed this in more detail in a prior post a few years ago that is still on point, and some of the high points bear repeating here:

As is true in medicine, where health issues range from minor aches and pains to potentially deadly injuries or diseases, there are a whole spectrum of legal problems people encounter that require varying levels of legal assistance to reach a fair and effective resolution.

In medicine, the continuum of services necessary to address a problem can range from online self-help information to brief “take two of these and call me in the morning” advice to complex surgery and hospitalization, with a whole range of options in between.

In law, that continuum also starts with online information and self-help and then ranges from brief advice to complex litigation, again with many options in between.

As is true for a layperson facing a health issue, it is not easy for someone who is not trained in law to know where their problem falls on the spectrum and what level of legal help on the continuum they might need. 

That is the challenge we need to tackle now. Those of us working on broader access to justice issues do not put enough priority on helping people understand what level of legal help they may need to get a fair shake. Too often, the focus is on the opposite ends of the spectrum—self-help on the one side and full representation on the other—when the right solution is more often in the middle of the service continuum.

Key Factors to Help Identify the Level of Legal Help

Recognizing the elephant in the room–that people do not always have realistic access to the level of legal help they may need due to the lack of sufficient free and affordable legal services today—there are some larger considerations that can help them understand when they should seek legal assistance and where that help is most crucial. Here is more from my prior post laying out some of those key factors:    

How important is the matter to you? This should always be the starting point of the analysis. The more important the issue is to you, the more you should strongly consider talking to a lawyer to understand your options and determine next steps.

What is at stake if you do not win or get the result you are seeking? The more that is at stake, the more important it is to have a lawyer as studies consistently show that lawyers get better results. This might be money or something very important to you personally, such as your family or your home.

Are you on equal footing with the other side? If the other side has an attorney or you feel like they have more power than you, it can make all the difference to have a lawyer represent you.

How complicated is your legal issue? If your matter is complicated, a skilled attorney can make a big difference in what happens in the case. Talking to a lawyer at the beginning of your case can help you figure out whether your matter is simple enough to handle some or all of it on your own.

Can you be objective about the matter? This one is the principal source for the original fool for a client adage. If the issue you are facing can make you angry, upset, or scared, then having a lawyer to provide objective advice or representation can help you avoid making a decision based on feelings that may cloud your judgment.

How comfortable are you researching the law and rules, filling out forms, and appearing in court? Court cases require understanding the law, navigating the court process, completing court forms, and appearing in court. If you handle some or all of a court case on your own, you need to be comfortable handling these tasks. Appearing in court can be scary and emotional for some people.

Putting it all Together

There are many instances where determining the right level of legal help is a relatively easy proposition for most people. We all routinely sign contracts for cell phones and other personal items that have legal implications, but no one would reasonably suggest we should have that reviewed by a lawyer. On the other hand, there are some legal issues, like facing a felony criminal charge, where it is quite clear we need a lawyer to represent us given the stakes involved (to the point we have a constitutional right to counsel when we can’t afford it). As noted above though, more often this is a grayer proposition for people not trained in the law, and we need to give people better tools to determine when they need legal assistance or may want to consider seeking legal help if they have the means to afford it.

Good lawyers consider the key factors identified above (and other important aspects like the strength of the legal claim) to triage the appropriate legal response for their clients. The problem is that most people facing legal issues are not getting to lawyers to even have that conversation.

About 12 years ago, my friend and former CBF colleague, Kelly Tautges, had the great idea that technology might help people make these determinations on their own and find lawyers when they really need to or believe legal assistance would be a good value for their circumstances. We did not get too far in coming up with that tool back then, but with the advent of AI and other improved technologies, it is a great time to reconsider if we can come up with a practical tool for people to help them find the right level of legal help for their issues.

Who’s in to tackle this challenge?