OUR DUAL SYSTEM OF CIVIL JUSTICE
As anyone who knows me or has read what I’ve written could tell you, I have had a deep and unshakeable interest in our legal system treating all fairly. Over the years, I have attempted to raise public awareness of the fact that our courthouse doors are seemingly closed to too many of our citizens.
And if that’s not bad enough, even if people get through those doors, too often they think they’ve been treated unfairly. Let me be clear. People don’t feel they have been ill-treated because they may have lost, they feel unfairly treated because they were not heard.
For decades, scholars and practitioners have tried to raise political and public awareness of this uneven and unfair administration of Justice without success. I wrote a book about this issue, Access To Justice On The Outskirts Of Hope. Obviously, it didn’t make it to the top of the New York Times Bestseller List.
Clearly there’s no accounting for taste.
Recently a current litigant has been publicly railing against this Dual System of Justice. He has tried to shine a light on this issue, trying to raise public awareness if not inspire public action. Unfortunately, this litigant’s name is Donald John Trump.
Now if you’ve just read that last sentence and feel nauseous, I get it. Me too, and I wrote it. Unfortunately, like so much of what he says, he stands reality on its head. Trump, the quintessential grievance litigant, claims that he’s being persecuted by the entire justice system because he’s successful. Or because he’s a former president. Or because his enemies have “weaponized” our system of Justice. Or … reasons.
I won’t opine whether he’s rightly or wrongly accused of numerous criminal and civil charges. But it’s hard to see Trump as some defenseless victim. Given that he claims to have more money than Croesus, he has more than ample resources to engage the best counsel available. There can be no doubt that his counsel will safeguard every right that Trump has and maybe (?) make novel assertions of those rights.
And maybe they’ll even get paid for their efforts.
Like so many other issues, Trump perverts the meaning of Dual System of Justice, discards any underlying facts and then uses it in an attempt to gain public support and to bludgeon the courts into submission. This bastardization of a serious issue effecting millions of people and thousands working on improving the lot of others is just plain despicable.
Most of us haven’t the financial wherewithal to hire the “best counsel,” and too many of us cannot afford any counsel at all. This is the genesis of our Dual System of Justice.
In my book, ATJ for short (look, I don’t plug books but it’s on Amazon), I wrote about the nature of the dual system on the legally marginalized and underserved population. I wrote about the political and legal barriers preventing change this Dual System of Justice. I wrote about the disparities of legal outcomes in contests between represented and unrepresented parties. And I wrote about a survey of trial court judges who bemoaned those disparate outcomes.
I even wrote about the formation of my legal services organization, the services we provided and the barriers we could never overcome.
Since I unleashed my book upon the public, some of the facts that I cited have changed, and not for the better.
For example, for at least a decade prior to writing ATJ, the rule of thumb was that 20% of all low-income people with legal issues were able to access pro bono legal services. The other 80% of those in need were out of luck. This was true within tenths of percentages in studies by the Legal Services Corporation, American Bar Association, and various state organizations.
In my book, I highlighted a study conducted in Cambridge, Massachusetts that focused on why low-income public housing residents didn’t avail themselves of the legal services office literally just down the street from where they lived. Many of the reasons cited were volitional in nature: people claimed to handle it themselves; some relied on their negotiating skills; still others thought that “free” lawyers were not as good as paid lawyers.
Whatever the reason otherwise eligible people did not seek help did not obviate the fact that those people were at risk of adverse legal consequences.
Which brings me back to the information in my book, particularly the number of marginalized people unable to access legal services. I rarely thought about the 20% served, instead I concentrated more on the 80% unserved.
But that was then, this is now. According to a 2022 study conducted by the Legal Services Corporation, 92% of all eligible poor and economically struggling people did not receive adequate, or any legal services to meet their legal needs regarding an array of issues such as child custody, evictions, or trouble obtaining and keeping public benefits.
Put another way, only 8% of all low income and economically disadvantaged people get the legal help they need. In some ways it’s kind of like winning the lottery where the winning ticket entitles the winner to obtain at least a modicum of access to justice.
There are any number of blues tunes that liken love to a gamble. The “gambler’s roll should never be the criteria for people to receive legal assistance to protect and vindicate their legal rights. Not in the United States in the 21st century, but there it is.
Lincoln Caplan, a Yale University lecturer and author of an article in “Daedalus,” The Invisible Justice Problem (2019),recently said that the above cited LSC numbers do not include those who do not even know that they have a legal problem.
There’s one simple reason why the underserved are so underserved. There just are not enough attorneys to do the work for low-income people.
In the 2023 Profile of the Legal Profession report, the American Bar Association found that although the United States has more lawyers per capita than anywhere else in the world, these lawyers are concentrated in urban areas, leaving rural areas pretty much to fend for themselves.
For example, in New York City there are 1300 paid attorneys to serve the civil legal needs, pro bono, of underserved clients. Contrast this with Yuma, Arizona, a city of 100,000 people, with only one attorney to serve the legal needs of the poor. And in the City of Ocala, Florida, a city with 400,000 residents, there are only three attorneys to meet the needs of the poor.
To place this in stark relief, according to the ABA there are approximately 1.3 million attorneys in the United States, but only 10,000 of them are full-time legal aid attorneys. Put another way, there are 2.8 legal aid attorneys for every 10,000 people below the federal poverty line.
According to a recent Legal Services Corporation report, one million people seeking help with their legal problems are turned away because of the lack of resources necessary to serve them. One million people who will not be able to get help with the legal issues touching on basic needs such as housing, child support/custody, public benefits, and debt issues.
Some scholars estimate that 16% of our population of 330 million people are in danger of of not accessing necessary legal assistance to safeguard their basic needs. One scholar estimates that Americans face 150-250 million civil legal issues each year, with an estimated 120 million issues unresolved each year.
This Dual Justice System and its resulting access to Justice gap is not just a threat to individuals and families, it is also a threat to our democracy. We cannot pronounce that we are a society of laws where each of us is equal before those laws when we perpetuate a legal system that denies a large swath of our people any meaningful access to Justice.
We cannot claim to live in a just, democratic society until each of us has equal access to legal services. We have some of the pieces already in place to meet this goal. In 2020, there were 132 Legal Services Corporation grantees with 877 offices throughout the country. Medical Legal Partnerships, an organization dedicated to the amelioration of social determinants effecting health outcomes, exist in 49 states. This doesn’t take into account the number of public non-LSC agencies, bar association programs and individual attorneys providing pro bono or low bono services.
This seems a lot but taken together these programs fall far short to meet the ever-increasing needs of indigent people. These programs are restricted as to what they can do, especially with LSC funding, while many other programs are tenuously underfunded, raising concerns about their survival from year to year. My book ATJ discusses this issue at some length.
Moreover, with some exceptions, many of these legal services programs operate in silos. Cooperation between programs, let alone coordination, exists – if it exists at all – only rarely and then on an ad hoc basis. This lack of structure ignores the efficiencies gained by more collaborative efforts, thus wasting scarce funds.
Moreover, there are restrictions on who can provide legal counsel. There are suggestions for the use of paralegals to provide legal counsel in specific areas (with appropriate training, certification, and supervision) to low-income parties. There are even proposals that laypeople be empowered to provide legal services. I’m not sold on the layperson proposals, but the paralegal suggestion and implementation is at least a decade overdue.
If this sounds like a jumble of efforts to meet the legitimate needs of people, it’s because it is a jumble. There needs to be order imposed to coordinate the efforts of individual programs and support to promote collaborations. Moreover, while not detailed here, there are no shortage of ideas regarding the access to court forms, the use of plain language making these documents commonly understood, and the use of court staff to assist an unrepresented party.
To try to bring order out of chaos, most states have formed Access To Justice Commissions to try to innovate at the state level ways to serve those people desperately in need. These Commissions are supported by the Judiciary in their states. As of this writing, my home state of Rhode Island has yet to establish such a commission. This, too, is discussed in my book. As they say, none are so blind as they who will not see.
Our nation has long extolled the dignity of the individual. Objectively we know that’s more aspirational than reality. But our history shows that we move toward our ideals, often painfully glacial and incrementally. That said, we still have a long way to go before our reality matches our aspirations.
This progress has led to many political conflicts and compromises. In 2023, looking to 2024, there are those who are concerned that our democracy is under assault from within. I am one of those so concerned. But in the face of those threats, I believe that democracy will prevail.
If our democracy does prevail over the next year, so too will the rule of law. And in order for the rule of law to prevail it must be applied and be accessible to everyone, equally. To do less is to allow a broken system to continue the erosion of our judicial and political institutions.
And as the rule of law goes, so too does our democracy.
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