By Katherine Alteneder.
Americans have been searching for a solution to the civil justice gap for generations. Today it is estimated that 50% of all Americans cannot get the legal help they need, and in state courts upwards of 75% of the people in civil cases are self-represented. This problem is so vast, and has so many adverse effects on American society—from unjust evictions to family separations to job loss and beyond—that it is difficult to see the whole crisis clearly, let alone craft an adequate response.
The United States federal government made its first effort to address civil justice needs as part of Lyndon Johnson’s Great Society. In 1964, Johnson created the Office of Economic Opportunity (OEO), which set aside federal funds for the creation of a small number of legal services programs for the poor around the country. The OEO effort was the precursor to the Legal Services Corporation (LSC), founded in 1974, which continues to help fund civil legal aid for those unable to afford it.
These two dates, 1964 and 1974, were the last watershed moments in the history of civil legal aid, when national leaders decided to devote at least some time and effort to the epidemic of unequal and inaccessible civil justice. We may have arrived at another watershed moment.
The COVID-19 pandemic has brought widespread attention to the social and income inequalities that undermine the rule of law in the United States, as well as to the infrastructure challenges that the judicial and executive branches face as they try to meet the needs of the public. The legal community—judges, lawyers, scholars, service providers—knows this crisis reaches far beyond society’s most vulnerable and is also undermining opportunity for the middle class and small businesses. This problem has been growing in magnitude over the last two decades. It has been especially visible to justice system leaders in the rising numbers of self-represented litigants in state courts, who are now estimated at 30 million or more per year. Today, leaders from the Conference of Chief Justices, the Conference of State Court Administrators, and the American Academy of Arts & Sciences are organized with a response that is designed to help all Americans and strengthen the rule of law.
In September of 2020, the American Academy of Arts & Sciences published Civil Justice for All, a national report that helps to define and address the civil justice gap.
Fundamentally, Civil Justice for All is a capacity-building report. It recommends a range of strategies to provide more legal assistance to more people in need: more lawyers, more legal assistants, more cooperation from service-providers like doctors and social workers, and more technology to mitigate inequalities of income and access.
Given the prestige and influence of the American Academy, one of the nation’s oldest learned societies and an “institution builder” for much of its history, the seventh and final recommendation of the report merits special attention. It calls for the creation of “a national team, or even a new national organization, to coordinate the efforts listed above, collect much-needed data on the state of civil justice, and help identify and publicize effective innovations that improve access.”
Such an effort would be an invaluable addition to the legal landscape. As the Academy report states, there is no standardized, consistent “system” for civil justice in America. Instead, there are “many vigorous yet uncoordinated institutions, organizations, and efforts…distributed unequally around the United States.”
In effect, the Academy report concludes with a call to remedy this disorganization, to systematize civil justice. And a follow-up report, Measuring Civil Justice for All, provides a blue-print for data collection—another important step in the coordination effort.
While the Academy effort has made been making the case for capacity and data collection, the Conference of Chief Justices and the Conference of State Court Administrators has been developing and testing a framework to re-align and deploy new and existing resources in the states through the Justice for All Initiative, hosted at the National Center for State Courts in partnership with the Self-Represented Litigation Network.
Launched in 2016, the Justice for All Initiative has supported the development of a national civil justice strategy and framework for reform that is being tested and improved in fourteen states selected through a competitive grant process.
The Justice for All Initiative envisions a future in which civil justice is administered through a continuum of services, from self-help materials to alternative dispute resolution to limited-scope or full legal representation. In this continuum, individual litigants receive precisely the help they need—no more and no less, and lawyers work “at the top of their licenses,” able to trim overhead to increase profit. This continuum is part of a framework that brings together traditional and non-traditional stakeholders to increase access to justice, and includes government, non-profit, and for-profit providers. The framework also offers a component architecture to assess interventions, set targets, and measure progress.
Like the American Academy effort, the Justice for All Initiative advocates extra help for the most vulnerable populations, yet its principle-driven framework can be applied to all. One of the most innovative aspects of the Initiative is its call for a paradigm shift from a focus on designing a legal system by and for lawyers alone, to one that recognizes the rule of law must support an individual’s direct access to the law. In other words, one’s access to justice cannot depend solely on whether or not one is represented by an attorney. The public is entitled to understand the law, and be able to use it. By embracing user centered design, the Justice for All Initiative incentivizes changes to systems and services that will hit the sweet spot (in a coordinated way) for the public, lawyers, judges, and justice tech entrepreneurs.
As already noted, the public demand for legal help far exceeds the capacity of the traditional legal system. In recent years, we have seen significant innovation and testing of legal help by people who are not trained by law schools but instead have developed specialized legal expertise by working in the courts or for non-profit organizations. While it is well accepted that accountants and real estate brokers can provide effective professional advice that may have legal consequences, this is not the case in family law, wage theft, eviction, and debt collection where there is only nascent acceptance of field-specific non-lawyer experts providing advice with legal implications. However, the overwhelming demand for legal help has provided the opportunity for court based and court annexed self-help services to demonstrate that non-lawyer experts can provide important and effective assistance. For example, trained navigators from the University Settlement Navigators Pilot Project in the Brooklyn Housing Court were able to help 100% of their clients avoid removal from their homes by the marshal, while one out of nine tenants without such help were being evicted at the time of the 2015 program evaluation. Justice for All embraces the notion that capacity building in the civil justice field must include the development of non-lawyer expert providers with field-specific training.
The Justice for All Initiative’s continuum approach supports non-lawyer experts, private entrepreneurs, and justice tech in addition to lawyers; the framework ensures that systems are designed to deliver right-sized legal help at the right time. If done properly, this also creates opportunities for up-stream interventions to avoid court altogether, as well as off-ramps to allow for negotiated settlements (on-line or in-person) between the parties without judicial intervention. When people end up in court, they face limited options, significant risk, and deleterious, poorly understood downstream consequences. The Justice for All Initiative addresses this problem first—the risks associated with being in court—and in doing so creates an infrastructure that supports both those in court and those seeking alternative or upstream solutions. Some of the innovations advanced by the the Justice for All Initiative include:
self-help centers providing standardized forms, legal information, and process guides;
language access initiatives for those with limited English proficiency;
accommodations for those with visible and invisible disabilities;
judicial and court staff education to improve the quality of the proceedings and support procedural fairness;
tech-based solutions that reduce trips to the courthouse and enable court users to find legal help and resolve their disputes online;
and, intentional simplification of policies, rules, and statutes to reduce the often unjust impact of form over substance.
Throughout the country, courts, legal service providers, and others have made heroic efforts to broaden access, with few resources at their disposal. But little has been done, or even tried, at a scale large enough to overcome the great disparities at the root of the problem—including growing income inequality—because public and private investment has been woefully insufficient.
Funder hesitance is understandable; in the absence of a recognizable, national system for civil justice, coordination among the stakeholders within the sector, an accepted framework for innovation, or benchmarks for success, massive investment can seem premature.
However, by considering the efforts of the American Academy of Arts & Sciences, the Conference of Chief Justices, and the Conference of State Court Administrators together, investors can welcome the opportunity for which they have been waiting for so long. For the first time in almost four decades, there is real momentum behind the idea of coordinated, national effort to improve access to civil justice, as well as a framework and strategy to deploy interventions for measurable results.
About the Author Katherine Alteneder is an experienced justice system innovator who has led and influenced reform efforts throughout the United States. She currently serves as the Consulting Senior Strategic Advisor to the Self-Represented Litigation Network (SRLN), which connects and educates lawyers, judges, and allied professionals who are creating innovative and evidence-based solutions so that self-represented litigants have meaningful access to the courts and get the legal help they need.