What Do Courts Have to Do with the Affordability of Legal Services?

By Bob Glaves | CBF Executive Director

Quite a lot, as a matter of fact. Simply put, our court system is way more complicated than it needs to be.

The fundamental mission of the courts is to deliver justice for all by protecting rights and liberties, upholding the rule of law, and serving as fair and neutral arbiters to resolve disputes. Promoting affordable legal representation is a central part of fulfilling that mission, yet some of the key steps to doing so are too often overlooked by courts today.

For this reason, the courts are the integral third prong to fulfilling my 2019 Resolution for our profession to tackle our affordability problem for everyday people.

In addition to what higher courts can do to make the legal market function better in their regulatory role, which was discussed in last month’s post, there are several other key ways all courts can and must be a part of the solution to the affordability problem in our legal profession. In no particular order, these steps include the following.

Process Simplification

The rules sensibly put in place for complex litigation make very little sense for most of the bread and butter legal issues that are before the courts today. The result is more visits to court that take (often much) longer than necessary, making it more time consuming and expensive for lawyers to represent people. Also, unnecessary complication makes it more challenging for people to handle lower-stakes matters and more routine aspects of their cases on their own.

Simplifying and streamlining the court process is a key element of tackling the affordability issue. The Institute for the Advancement of the Legal System (IAALS) and Harvard Law School’s Access to Justice Lab are among those who have been looking more closely at reforming the process for family law and divorce in particular. As one of the most common areas of law where everyday people interact with the court system, this is a great place to start in these efforts, but just one of many areas ripe for a critical re-examination.

Limited Scope Representation

Promoting limited scope representation is a two-way street that requires lawyers to be more open to offering unbundled services and courts to fully welcome limited scope appearances for people.

While judges almost universally prefer a litigant to have full representation throughout the course of a case, that is not always realistic or necessary for many, if not most, court users. Too often, judges view the choice for the litigant or lawyers as full representation versus limited scope representation, when the real choice is between limited scope representation or no representation at all. And the courts are almost always going to be better off when people have at least limited representation rather than trying to go it alone.

Promoting and supporting limited scope representation to the maximum extent, including attorney coaching and document preparation assistance, is a win-win means for judges and court personnel to promote more affordable and accessible representation.

Remote Access to the Courts

Back in January, I touched on the pivotal role of technology, and the importance of getting that right, in looking at access to justice more broadly. While we always need to be wary of looking at it as some kind of magic solution on its own, technology has a particularly important role to play in improving the court process.

One of the most unnecessary drivers of making legal services more expensive is the number of routine or non-essential trips to the courthouse that currently are necessary over the course of a case. The further away or more difficulty a lawyer or litigant has in getting to the courthouse, the bigger the challenge it creates and the more time and expense it adds to a legal matter.

There are many reasons courts need to have hearings of a more routine nature, but little reason that lawyers or litigants need to appear in person for them. Promoting and facilitating remote access via videoconference or phone is one of the best ways to make legal services more affordable and accessible.

A Customer Service Mindset

Making it feasible for people to handle lower-stakes matters and more routine aspects of their cases on their own is the other key step to making services more affordable. That starts with looking at the court journey through the eyes of someone coming into the system without a lawyer, which is not the way most court systems were originally designed.

While we don’t need people to be excited about coming to court, it should not be a daunting or terrifying experience for someone handling parts of their case on their own. Using plain language and standardized court forms, hosting more user-friendly and practical court websites, housing self-help centers in the courts, and setting the expectation from the top of the system on down that all court personnel treat patrons as valued customers are just some of the bigger ways this can be done. Limited scope representation will be a much more effective solution for people and the courts when we take these steps.

Leading by Example

Court policies have a direct impact on affordability and access to legal services. While the courts alone can’t make legal services affordable for everyday people, our profession will be unduly limited in what we can do on this front without exemplary leadership from the courts.