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‘Where Is the Outrage?’

March 21, 2023

The Future of the Profession Initiative’s Jim Sandman L’76 recently discussed strategies to close the civil justice gap.

Jim Sandman L’76 recently delivered the keynote speech at the Stanford Law Review’s Symposium, “Access to Justice.”

The following is excerpted from his remarks:

“Where is the outrage?”

In 2018, Professor Gillian Hadfield posed this question to advocates at an access to justice summit at Fordham Law School. She decried the lack of progress in improving access to justice. In “Striking a Match, Not a Pose, for Access to Justice,” a follow-up essay, Hadfield questioned why the public hasn’t risen up in fury at being deprived of the legal system; she said, “they deeply deserve — a reasonable, fair, and low-cost way of navigating normal life, with its ups and downs and disagreements and disasters.” She attributed this to the legal profession: “We’ve made law so complex and so alien that people don’t even know that they face legal problems when they are embroiled in them, much less what legal protections they’re not getting.”

Jim Sandman L'76 Jim Sandman L'76I’m with Gillian. The state of the American civil legal system is a five-alarm fire, and we’re fighting it with a bucket brigade — with tools developed for a different world.

The civil justice system is failing low-income people, the middle class, and small businesses. There are many indicators of this failure: astonishing numbers of self-represented litigants in civil cases; law firms’ increasing focus on serving businesses, not individuals; and increasing numbers of people with unmet legal needs.

Our civil justice system has failed to adapt to a tectonic shift in the identity of its users. We are operating a lawyer-centric system created for a world where both parties are represented in most cases — a world that ceased to exist sometime in the last quarter of the last century. Current interventions to improve access to justice are too modest, too slow, and too diffuse to make a meaningful difference any time soon.

Evidence of a Failing System

Every year, the World Justice Project ranks the countries of the world on their compliance with various measures of the rule of law, including the accessibility and affordability of civil justice. In the most recent rankings of 140 countries, the United States is 115th on this measure. Among the 43 wealthiest countries, the United States ranks 43rd — dead last on accessibility and affordability.

This ranking plays out every day in state courts, where 95 percent of civil litigation occurs. In more than 75 percent of these cases, at least one party is struggling to navigate the legal system without a lawyer. The prevalence of lawyer-less litigants is troubling on two counts. First, the cases in which so many people are self-represented are high-volume: they involve tens of millions of people every year. Second, these cases typically involve the most basic of human needs and can alter the course of a person’s life. They involve shelter (evictions and foreclosures), personal safety (protection orders against abusers), family stability (child custody and child support), and financial subsistence.

Recent research suggests that our access to justice crisis is getting worse. In 2022, the Legal Services Corporation [LSC] reported that 92 percent of the civil legal needs of low-income people received no or inadequate assistance in the prior year — a six percentage point increase since 2017. And this occurred despite a 31 percent increase in funding at the 132 legal aid programs LSC helped to support between 2017 and 2022.

The lack of adequate legal assistance is likely related to a shift in the focus of lawyers’ practices over the last 50 years. In 1973, 54.2 percent of law firm revenue came from individuals. As of 2017, only 25.4 percent of law firm revenue was coming from individuals. The majority of the system’s users — individuals — aren’t getting their fair share of services. Lawyers are following the money are focusing on business clients able to pay their rates.

Current Interventions Are Too Little, Too Slow

The principal tools today for improving access to justice are legal aid, pro bono work, and technology. Legal aid funding is grossly inadequate to meet the legal needs of low-income people. For example, this year’s $560 million appropriation for Legal Services Corporation, the United States’ largest funder of civil legal aid, is, when adjusted for inflation, $300 million less than in 1980, when the eligible population was substantially smaller.

Between fierce competition for government funding and legislators’ limited understanding of civil legal needs, “fully funding” legal aid is not realistic. And even if it were, the very low income-eligibility requirements would still leave millions of Americans both ineligible for legal aid and unable to pay for counsel. In 2023, an individual making more than $29,160 does not qualify for legal aid, and that figure is even lower in some states.

Pro bono is an important supplement to legal aid. But Professor Hadfield estimates that every lawyer in the U.S. would have to do 180 pro bono hours annually just to provide each underserved household with one hour of legal service. As former Justice Deno Himonas of the Utah Supreme Court says, “We’re not going to volunteer our way across the justice gap.”

With the rise of generative AI and other advancements, technology will likely be a critical component of achieving access to justice at scale, but the unnecessary complexity of many legal processes is resistant to technological fixes. As the saying goes, “If you automate a bad process, you end up with an automated bad process.” In addition, because most of the legal issues that affect individuals are matters of state law, our system of federalism can make generating accurate, state-specific tech solutions to legal problems prohibitively labor-intensive. Simplification and standardization of legal processes must accompany technological solutions.

Rethinking Access to Justice — Bigger, Faster Solutions

For any of the interventions to improve access to justice currently in use or in development, we need to ask ourselves one question: When will these interventions produce true access to justice across our nation? In what year, in what decade, in what century will the public have the justice system they deserve? This is not a rhetorical question. The crisis in access to justice demands solutions commensurate with both its magnitude and its urgency.

If you want a glimpse of what’s at risk by continuing on the current course of creeping incrementalism, there’s a long-running feature presentation on the subject showing Monday through Friday in every housing court, family court, and debt collection court in America. It shows the faces of the scores of lawyer-less litigants in those courtrooms — people who are frustrated, confused, and angry. These are the faces of people who have lost faith in our country’s solemn pledge of “justice for all.” This is what the demise of the rule of law looks like. As Professor Hadfield has warned, “People who feel as though the rules don’t care about them don’t care about the rules.”

As a former antitrust lawyer, I think we have a market problem. The market for legal services, though highly regulated, is catastrophically dysfunctional. Year after year, the market is unable to produce a supply of legal assistance that comes anywhere close to meeting demand. State governments have granted lawyers a monopoly over service provision, yet the suppliers consistently leave tens of millions of people without any service at all. This is bad regulation. We need systemic reform at scale, and we need it now.

Achieving systemic change means focusing on the regulators of the legal services market — state Supreme Courts — and implementing changes like licensing competent, well-trained paraprofessionals to provide some services that only lawyers are currently allowed to provide. Licensed paraprofessional programs have already been adopted in Utah, Arizona, Oregon, Minnesota, and New Hampshire, and are under consideration in other states.

All reform efforts must include an opportunity for substantial, meaningful, and easy public input. The legal system belongs to the people, not to lawyers and judges. For too long, regulation of the legal system has been conducted in the private councils of courts and the bar, in meetings and hearings the public cannot find, with “public comment” solicited solely on court and bar websites. When the public does have a meaningful opportunity to participate, they support regulatory reform by about the same supermajorities that lawyers oppose it. Three years ago, Arizona set the standard for obtaining public input in a process involving focus groups, town halls, ads, and a survey. It demonstrated so much public support for reform that it persuaded a majority of the board of trustees of the Arizona State Bar to support regulatory reform.

Lawyers and judges cannot solve the access to justice problem alone. This is a societal problem, not just a legal problem. We need other disciplines to help us: business, engineering, computer science, design, health care, and social work. We need practical problem-solvers, entrepreneurs, and experienced disrupters. It’s time to start recruiting far beyond the legal world to address the civil justice gap.

I am optimistic that America’s access to justice crisis is solvable. My optimism comes from leaders Vice Chief Justice Ann Timmer of Arizona, Justice Melissa Hart of Colorado, and Bridget McCormack, the former Chief Justice of Michigan and now my colleague at Penn Carey Law’s Future of the Profession Initiative. It comes from dozens of other judges and justices across the country and from colleagues throughout the access to justice movement. Most importantly, it comes from law students who aren’t afraid to think big — who dream of things that never were and say, “Why not?”

Learn more about Penn Carey Law’s Future of the Profession Initiative.