Editor’s Note: This article was originally published in November 2018. Since then, topics around social justice and equitable access to legal aid and representation have, unfortunately, garnered more prominence than ever. Relativity has also made strides in doing our part to close this gap, especially over the last year. To keep this important subject top of mind and highlight these resources for those who need them or want to help, we’re republishing this article again today.
Although billions of dollars of work is performed by millions of professionals in the legal industry every year, there remains an undeniable gap in access to justice across demographics in the United States.
At Relativity Fest 2018, a panel of professionals from both sides of the bench convened to discuss this important issue and how legal experts of all kinds can help close that gap. Check out a Twitter recap here.
“This is the most important session you'll attend this week,” said Relativity’s David Horrigan as he opened the panel, which took place on the first full day of Relativity Fest. “The issue is access to justice, and it's a problem—but we don't want to focus on the doom and gloom. We want to discuss how we can all help improve this in our jurisdictions, and across the nation.”
It was a sentiment that set the stage for a productive, empowering discussion. What follows are four key barriers that panelists touched on, the solutions that could help address them, and how every legal professional can, right now, start contributing to a more just future. (Note: Upon updating this article for 2021, we’ve added a bonus opportunity to help make a difference: Relativity’s Justice for Change program.)
Barrier #1: Funding for Legal Aid Services
James Sandman, president (now emeritus) of Legal Services Corporation, kicked off the discussion with a hard statistic.
“Legal Services Corporation is the single largest funder of civil aid for low-income people in the United States,” he explained. “We get virtually all of our money—$410 million, currently—from Congress. That sounds like a lot, but the fact is that this is less than what Americans spend every year on Halloween costumes—for their pets.”
He explained the “huge variation” in state funding to supplement that federal money, from $100 million in New York to virtually nothing in many others.
“58 million people nationwide qualify for legal aid, and they need to make 125 percent of the federal poverty guideline at maximum—for a family of four, that's $31,374 dollars,” he said. “As you can imagine, many more people could use this help, but don't qualify.”
The lack of funding contributes to that maximum qualification—there’s only so much to go around. It’s a problem that stops many legal aid efforts in their tracks.
Solution #1: Prioritization of Funding and Greater Support from the Legal Community
Though more funding would, of course, be the biggest help, James also suggested cultural changes that need to happen for access to justice to become a greater priority—and a more effective campaign—in the broader legal community.
“Taking a step back, let’s look at what needs to precede greater access to justice,” he said. “There are four things: think big; focus on process improvement, because legal processes are way too complicated; broaden participation, including everyone from business schools and designers to social workers and engineers; and build evaluation into everything you do, because we want to know what works and why.”
These are the tactics that will help build a system in which increased attention to legal aid can become both more pervasive and practical.
James had a message of accountability for attendees to mull over: “Given the centrality of ‘justice for all’ as a value in our nation, I would expect to see far more consistency when it comes to legal aid funding across the U.S. than we have today.”
Barrier #2: High Costs for Legal Action
Though the court system is often the only way to resolve personal conflicts and obtain justice in civil circumstances, the court fees and costs of representation that come with legal action add up. For too many citizens, that cost is prohibitive—and justice sits on the backburner.
As James alluded to, legal aid is available for the poorest citizens, but is often lacking for those who exceed the poverty line yet don’t have the budget to accommodate these costs.
An audience member touched on this directly with a question for panelists: “It feels like court fees are structured such that working class people are discouraged from solving disputes via the legal system. We help people with no money, and people with a tiny amount of money, but we don't have help for people who make more but live paycheck to paycheck.”
“For some, they may be in court as defendants and not plaintiffs—so generally no fees are involved,” James said in response. “But lower income people should be able to assert their rights by bringing cases proactively, as well; they shouldn't be limited.”
Solution #2: More Pro Bono and “Low Bono” Legal Work
Serving those who can’t afford the expense of working within the legal system is where pro bono work—in which legal services are offered at no cost to the client—can have a huge impact.
In some communities, prioritizing pro bono work is a strong part of legal culture. But “in some states, unfortunately, there’s virtually no pro bono culture,” James explained. That needs to change.
Working for free, though, isn’t the only way attorneys—new and experienced—can help.
“There are some efforts in law schools to help young attorneys begin with programs called ‘low bono,’ so they’ll say to clients ‘You'll pay for the services, but at a modest rate,’” Wendy Collins Perdue, dean and professor of law at the University of Richmond School of Law, said. “Law schools and bar associations are helping to create incubator services to help attorneys start practices beginning with services at a lower cost.”
The result is rapidly gained experience for new attorneys, but it might also be an option for experienced professionals who want to balance service with an already-full plate of obligations.
Barrier #3: Lack of Automatic Right to Counsel in Common Legal Circumstances
Anyone familiar with the name “Dick Wolf, Producer” should know their Miranda rights by heart, and those include a right to counsel in criminal proceedings. But the civil system doesn’t work the same way. A surprising number of common matters—including housing, custody, and debt proceedings—guarantee no legal counsel at all.
It’s a problem because the average citizen likely can’t advocate for their case as effectively as possible without the expertise of a legal professional to back them up.
Wendy had some shocking data for this subject: “Virginia did a study on this recently. In their court, what percentage of cases have a lawyer on both sides? One percent.
“Many of these cases are debt collection, eviction—so one theory is that there isn't any defense anyway,” she conceded, but went on to describe why that wasn’t explanation enough.
“There’s additional data in eviction cases in which the plaintiff is represented and where the defendant is not: in 62 percent of those cases, eviction happens. But if there is a lawyer on the other side, it's 36 percent. That's a big difference,” she noted. “Our court system is adversarial—it's designed to have advocates on both sides to ensure a fair fight.”
Solution #3: Legal Aid Beyond the Bar
Zabrina Jenkins, then managing director of litigation, law, and corporate affairs at Starbucks (now the coffee company's senior vice president and deputy general counsel), was passionate throughout the session about the need for legal expertise to help citizens live their best lives.
“There's a need for people who do not have representation and aren’t knowledgeable about the legal system to have someone assist them,” she said, and that isn’t limited to litigation—it includes more universal legal needs, too. Her team actively offers solutions where they can.
“Every year, we conduct a wills clinic at our corporate office to bring in first responders—many of whom work day-to-day to protect our community, and yet haven't had the time or resources available to craft a will to protect their families in the event that something happens to them,” she said.
In addition to more hands-on help from attorneys, assistance from legal professionals who aren’t admitted to the bar—perhaps experienced paralegals, law school graduates, or retired attorneys—could make or break a matter for many citizens who are otherwise attempting to seek justice without help.
However, there is debate among the legal community about whether that type of assistance should be encouraged.
“There's resistance to funding legal aid by folks not admitted to the bar, as an issue of consumer protection,” James explained. “But this is the perfect example of ‘the good being sacrificed for the perfect.’ The choice isn't between a lawyer and a para-professional, but between a legal aid lawyer and nothing. Some competent help is better than nothing.”
Barrier #4: Lack of Awareness of Legal Rights, Services, and Procedures
As the old saying goes, “you don’t know what you don’t know”—and that’s painfully true for citizens trying to engage with the legal system alone. Many of us simply don’t know what rights we have, what services are available to us, or how to navigate an often cumbersome court system with complex procedures and rules.
Sadly, even when people do qualify for aid, they may not know it.
“We do have relief for poor citizens in New York, and it's an awareness problem—we need to make sure people know about that,” said Justice Tanya Kennedy, Supreme Court Justice of New York State, New York County.
“We need to increase funding to make people aware of the issue as well as address it directly,” she stated. “It's difficult because the court can't fundraise, but we can use creative partnerships to work with other funders and make progress.”
Solution #4: Emphasize Education
Justice Kennedy and several other panelists talked at length about how lawyers, judges, and citizens of all ages and stages can work together to improve access to justice across sectors. It’s an uphill battle to teach people about something they may never have had exposure to before, but it isn’t impossible.
Often, it’s a grassroots effort that can have the greatest impact in communities.
“Volunteer organizations often don't have the resources to mount outreach campaigns to help them grow their volunteer base” or spread the word about their services, noted James. “That's something I'd encourage people to think about: in-kind contributions. Get marketing teams to provide pro bono help to these folks. Offering these types of contributions, available from across the business community, can help address these problems” in a way that brings communities together to solve a real problem.
To some, support from the bench can also make a difference.
“There are different views on this and I respect that,” Justice Kennedy noted, “but I take the view that, as a judge, I have the responsibility to explain the process to persons who represent themselves.”
At a broader professional level, we need to create, advocate for, and pursue “educational programs on things like the dark web and virtual currency. Even if you're a judge who doesn't often handle these types of cases, you need to know what they are,” cautioned Justice Kennedy. She added: “Outreach even earlier to talk to even elementary school kids to let them know these resources exist is also important.”
Another Way to Help: Justice for Change
At Relativity Fest 2020, we announced Justice for Change—a new program with the mission of empowering legal teams to tackle social and racial justice issues by providing the technology needed to organize data, discover the truth, and act on it.
Via Justice for Change, legal teams working on cases like these can apply for two years of free use of RelativityOne to support their efforts. As part of the program, a partner or law firm in our network is paired up with each team to provide administrative and project management expertise along the way.
While this kind of program isn’t a cure-all for the access to justice issues that ail our society, our hope is that it will provide demonstrable help for teams doing important work to support racial equity and social justice. Take a look at the program page for more information on how to benefit from the program—or support it. If you have any other questions, feel free to contact firstname.lastname@example.org.
How does your team help close the access to justice gap in your community? Share your stories on Twitter, Instagram, and LinkedIn using #ClosingTheJusticeGap to discuss ideas for a brighter future with your peers.