People Should Have Access to Justice
Life presents every person with challenges. In our society, the law matters, and yet for many people justice is elusive.
Every year, tens of millions of people in the United States encounter difficult moments in their lives that implicate the law. Families reel from unfair evictions, foreclosures, debt collections, job terminations, denials of benefits, denials of health care. Women seek refuge from domestic violence. Children suffer abuse, exploitation and neglect. Partners are embroiled in the conflict and consequences of divorce. People face financial crisis from fines and fees imposed by state and local courts for everything from traffic tickets to laying down on the wrong park bench.
In our country, we promise equal justice under the law. But for many who are caught up in these and similar scenarios, the promise of equal justice is unfulfilled. The complexities of law and process, the inequality between ordinary people and powerful adversaries, the cost of hiring a lawyer, the fear many people have of government authority, the belief that the system is biased and rigged against them-- these and many other barriers stand in the way of justice.
Access to Justice is the Fair Chance to Secure Your Rights Under the Law
Access to justice is a necessary part of making the rule of law fair for everyone.
At NCAJ, we believe access to justice means that when people encounter life challenges they are able to understand their rights under the law, protect those rights, obtain a fair outcome, and know that the result will be enforced under the law.
Access to justice is high stakes. It routinely determines whether basic human needs for food, clothing and shelter will be met, and it can mean everything for a person in crisis. Yet only about 3% of tenants facing eviction have a lawyer, while in more than 80% of cases landlords are represented by counsel. For a person facing domestic violence, or seeking child support, access to justice can be the difference between physical safety with food on the table, or physical harm and deprivation.
There are many things government and the courts can do to improve access to justice. Some courts offer people help from lay “navigators” who explain the court’s procedures and outline the next steps in a case. Others offer online technology that empowers a tenant to start (or defend) a lawsuit by helping them create the critical legal documents online. And of course, what many people want most is help from a lawyer. Some can get legal help from a civil legal aid office or from a private pro bono program, though far more resources are required to meet the need. In some parts of the country where there are new civil right to counsel laws, governments are trying to ensure that every tenant in a housing case has the help of a free lawyer, paid for by the government, if they are unable to afford an attorney on their own.
Access to justice is also critical to efforts to root out racial inequities in the justice system. People of color suffer disproportionately from the justice system’s maltreatment of disadvantaged litigants. They are also disproportionately likely to be involved in high-stakes cases that put their basic needs and the stability of their families at risk. Matthew Desmond observed in his book Evicted: “If incarceration had come to define the lives of men from impoverished black neighborhoods, eviction was shaping the lives of women. Poor black men were locked up. Poor black women were locked out.”
Consider the importance of access to justice for a person fighting to preserve a home, protect herself from a debt collector, or free herself from an oppressive and unsafe relationship:
Many landlords behave responsibly, but a landlord who knows that his tenants can’t or won’t defend themselves in court can take advantage of the law. The landlord in many parts of the country can lock the person out of her house, stop the heat and hot water, charge too much money for rent, refuse to do repairs, or harass the tenant with threats.
What does access to justice mean for a tenant facing this kind of trouble from a landlord? A tenant who knows her rights will understand that the law can protect her and help her to get the fair treatment she deserves. She will know that there is help available. If she is also able to speak with a civil legal aid lawyer, visit a court self-help center, use powerful automated tools designed for non-lawyers or have the help of a navigator, the tenant will be able to tell her story to the court, agency or tribunal that has the power to order the landlord to meet the law’s obligations.
The type of assistance a tenant may need will vary depending on the case. Asking for the return of a security deposit is a relatively straightforward matter. Securing an emergency order of relief from a court when the landlord has changed the locks presents another level of difficulty. Likewise, automated tools aren’t expected to substitute for a trained lawyer in complex cases. States must offer an array of tools and other options to tenants facing legal crises, which is why the NCAJ tracks, promotes and supports evaluation of multiple approaches for assuring access to justice (including in our Justice Index, https://justiceindex.org, described below).
For someone on the receiving end of violence in a relationship, access to justice is an essential lifeline. Without it, an abuser who knows the limits of a domestic partner’s capacity to turn to the law may feel freer to continue the violence. When marriages end, people often need legal representation or advice to arrive at an equitable divorce. Sometimes, one party has legal help while the other struggles alone. Other times, people are ready to work together on the terms of their divorce but struggle to understand the law and the process around it.
What does access to justice mean for a person in these circumstances? It means they can count on the courts to hear their side of the story. It means they can initiate a divorce proceeding or demand a protective order that keeps an abuser away at a safe physical distance. It means they can obtain an order of child support.
The type of assistance the person may need will vary depending on the circumstances. For a divorce where the parties agree to separate, a simplified form coupled with basic legal advice may sometimes be enough, a court’s waiver of its filing fee can move the process along, or a court’s offer of free mediation services can lead to a resolution. Where violence is in the picture, access to justice may mean that a lawyer or a supervised law student interviews the person and helps obtain a protective order that keeps the parties apart. And, where a couple has decided to divorce, access to justice may require motions, depositions, cross-examination and other actions that a lawyer is best equipped to carry out.
Millions of Americans struggle with consumer and medical debt. When people fall behind on payments they can end up in court. The stakes can be incredibly high. People struggling to make ends meet can see their paychecks garnished by a creditor, their assets seized, their savings taken. The litigants in these cases generally lack the resources to hire an attorney and find that they have nowhere else to turn for legal assistance or advice. The overwhelming majority are unrepresented—upwards of 95% in many jurisdictions.
Every year hundreds of thousands of alleged debtors lose cases because they don’t attend court hearings – whether that is because they are afraid, because they don’t get clear notices from the courts or for other reasons, those people miss out on the chance to tell their side of the story. And that opportunity can make all the difference in protecting someone from an unfair collection action. An alarming number of debt collection suits lack supporting evidence. Some are brought against the wrong people, or for the wrong amounts. But without legal help, many people lose those cases because they don’t know their rights or how to stand up for them. When New York changed its laws to require debt buyers to provide evidence that the debt was valid before they could force someone into court or get a judgment, it sharply reduced the number of debt buyer lawsuits in the state.
Increased access to justice in these cases is a vitally important need that is mostly unmet. Many litigants would benefit tremendously from legal representation. But short of that, even basic legal advice would put people on a more equal footing and empower them to make their voices heard. A more proactive approach by judges—as in New York where the courts now require creditors to submit evidence to the court if they want to seek a default judgment—can also help.
Our Work to Expand Access to Justice is Making a Difference
At NCAJ, we are identifying and making real the policies that ensure access to justice for all. Our goal is to make it easier for people to learn their rights, assert their rights, obtain fair decisions, and enforce those decisions. Our advocacy to improve justice system policies makes a difference, whether the challenge is keeping a home, preventing physical safety, protecting life savings, or concerns other kinds of life problems that intersect with the law. We describe some of our current projects here.
The Justice Index
Built by the National Center for Access to Justice with volunteers from law firms, law schools and corporate partners, the Justice Index is an award-winning tool that highlights selected best policies as a means of encouraging states legislatures and court systems to adopt the those policies, thereby making their justice systems more fair and just.
The Justice Index ranks states on their respective policy environments for assuring access to justice overall, and for assuring access to justice in specific areas.
We support best policies for ensuring attorney access. NCAJ maintains the country’s only comprehensive “civil legal aid attorney count,” showing the number of civil legal aid attorneys in every state, and demonstrating that most states have fewer than 3 civil legal aid lawyers for every 10,000 people living below the federal poverty guideline. We also track and promote best policies for civil rights to counsel, best policies governing pro bono legal representation, and other best policies for increasing the availability of lawyers in civil cases.
We support best policies for aiding and empowering self-represented litigants. We measure progress by the states toward establishing policies that help people who don’t have lawyers learn their rights, advance their claims, and protect their interests in state justice systems. We track and promote best policies for court technologies, use of plain language, conduct of judges, and more.
We support best policies for language access. We ask whether each state is ensuring that people with limited English proficiency are able to obtain free interpreters in courtrooms, at clerks’ desks, and in remote settings, and that the courts are taking affirmative steps to ensure that interpreters will be qualified when hired and perform capably on the job. We also track and promote best policies for ensuring that court forms, notices, signage, and publication be translated for those who need this assistance.
We support best policies for disability access. We rank states on their policies for ensuring that people with disabilities have access to free interpreters, the assurance those interpreters will be qualified and capable, and an opportunity to obtain reasonable accommodations for their disabilities.
NCAJ’s Justice Index relies on data to establish better policies that lead to fairer justice systems that result in more just outcomes for people facing eviction, struggling with domestic violence, contending with debt, and confronting innumerable other categories of life problems that are legal problems.
Fines and Fees Project
State and local courts sentence millions of Americans to pay fines every year as punishment for an extraordinary range of offenses. Too often, they sentence struggling people to pay amounts they simply cannot afford and then punish them again for “failing” to come up with the money. Monetary sanctions are a necessary accountability tool, but in the United States they are so widely misused and abused that they effectively criminalize poverty.
We owe this ugly reality to a mix of bad policy choices and cruelty. The same monetary sanction that inconveniences an affluent person can prevent a poor family from paying the rent—but fines are usually set without regard to a person’s financial situation. When people can’t pay, courts often treat them as though they refuse to pay—and the penalties are steep. People who don’t pay what they owe face incarceration, suspension of their drivers’ licenses—even the loss of their right to vote. All of this misery falls disproportionately on people who are already struggling to make ends meet.
Compounding this cruelty still further, jurisdictions across the United States increasingly charge exorbitant fees that try to shift court costs away from taxpayers and onto the people who “use” the courts. Politically expedient for lawmakers, these user fees are devastating for many litigants. People who might already struggle to pay the fines they are sentenced to as punishment are required to pay for the costs of their own prosecution, their own court-ordered drug treatment, their own probation supervision—even their own incarceration. What’s more, many courts face tremendous pressure to raise revenue for local authorities by collecting fines and fees. That creates a very real perverse incentive to focus on extracting money rather than doing justice.
NCAJ has identified a set of 17 policies we believe every state should have in place to rein in these abuses. These policies represent our vision of a minimally adequate, rights-respecting approach to monetary sanctions. They are grouped loosely into five issue areas:
- Abolition of harmful practices, like the imposition of predatory “user fees.”
- Steps to ensure that fines are cognizant of what a person can actually afford to pay.
- Elimination of unreasonably punitive collateral consequences for non-payment of fines, like suspending drivers licenses and voting rights.
- Data collection and transparency, so policymakers and the public know what the human impact of fines and fees policies looks like and who shoulders most of that burden.
- Mitigation of the impact of fines and fees in light of the economic harm so many families have suffered due to the COVID-19 pandemic.
Legal Empowerment/Unauthorized Practice of Law Project
America's access to justice crisis is too profound to be solved by lawyers alone. Even the most ambitious efforts and real progress to expand the right to counsel in civil cases, which NCAJ supports through its leadership role in the National Coalition for a Civil Right to Counsel, won't connect all those who need counsel to an attorney to help them. The challenges are too many and too diverse – more options are needed.
Unfortunately, every US state maintains sweeping "unauthorized practice of law" rules that prohibit anyone who is not a licensed attorney from using the law to help others -- including even very basic legal advice. The result is a vast chasm between the amount of help people need, and the amount of help that is actually on offer.
Unauthorized practice rules are supposed to give people who need a lawyer confidence that their lawyer has the education and knowledge to do the job well. Most of the time, it works. But unauthorized practice rules also protect lawyers from competition, raising prices and limiting availability. We need to find a better balance, with new regulatory approaches that get more help to more people -- while at the same time protecting people against unethical or incompetent providers.
NCAJ believes that people deserve the option of obtaining essential legal help from talented and trained people other than attorneys. The good news here is that momentum for UPL rules reform is building in many US states. Several have already authorized new models of legal services delivery by licensed non-lawyers. Utah has gone a step further than everyone else by creating a "regulatory sandbox" that allows careful experimentation with legal services models that would normally constitute unauthorized practice.
NCAJ’s work takes multiple forms including: advocating in the states to support state UPL reform initiatives, writing about the experiences of front line advocates who are telling their stories about how their efforts to help people resolve legal problems bump up against limitations imposed by the operation of the UPL rules, investigating the impact of cease and desist letters sent to practitioners who are allegedly engaging in the unauthorized practice of law, and carrying out research into the vulnerability of UPL rules to challenge grounded in a range of constitutional and other legal claims.
The US and Global Movement for Access to Justice
NCAJ is proud to contribute to a large and growing movement in the United States and around the world to increase access to justice:
Since the founding of the NCAJ in 2011, the movement for civil justice reform has grown substantially into a force that is advancing on multiple fronts. What began as a concept debated entirely within the legal academic community, and focused on expanding the number of civil legal aid lawyers, has now become a broad set of legal empowerment initiatives in pursuit of a continuum of goals for assuring that people can understand and defend their rights.
The access to justice movement includes the work of the legal academic community the civil legal aid bar, the judiciary, the private bar, the medical and social work communities, the corporate sector, the criminal justice and abolition movement communities, the social science sector, government officials in all settings and levels, and such leading international bodies as the United Nations and the Organization for Economic and Cooperative Development. Increasingly, social justice organizations, social services providers, community based activists are working together to secure fair policies and outcomes in civil and criminal justice settings.
Activities & Goals
Today the movement for access to justice includes cost-benefit analyses, a vision of racial justice, increased collection of and attention to court data and evaluative data, initiatives to map policy (including NCAJ’s Justice Index), a communications strategy that reaches into the mainstream culture, a fundamental reassessment of the prohibitions on the unauthorized practice of law, and a commitment to social science so that we can be confident that the solutions posed are effective in accomplishing their intended goals. Those policy solutions extend across a multi-dimensional continuum that begins with improving options for self-representation and guarantees adoption and implementation of civil right to counsel laws.
Our Role. Our own mission at NCAJ is to use data, research, policy analysis and advocacy to expose how the justice system fails to stand up for equal justice and, all too often, functions as a source of oppression. Our work in pushing for change is rooted in the principle that all people should enjoy access to justice – the meaningful opportunity to be heard, to secure one’s rights and to obtain the law’s protection.