The National Center for Access to Justice carried out interviews with more than 60 people who have a sharp, firsthand perspective on America’s access to justice crisis and the kind of change they think is needed. None of them are lawyers. Most work directly, every day, with people who suffer for want of legal help. This report shows why those perspectives are so vital to any hope of solving America's access to justice crisis.
The law does not belong to lawyers. It belongs to everyone in this country who needs the law’s protection, who wants to use the law to improve their lives, or who finds themselves in court against their will. Yet conversations about who should be allowed to use the law tend to have only lawyers in the room. So do state-led efforts to imagine new ways of extending legal help to more people. The result is a failure of perspective and imagination, against a crisis of unmet legal need that is only growing worse.
Every year, millions of Americans who need help with their legal problems find out that there is no such help on offer. Some are left to go it alone in court, where they may stand little chance against a better-equipped adversary. Some lose their homes, their savings and their children in cases they might have won with the right kind of help. Others avoid the legal system altogether, in situations where it could help vindicate their rights or win reparation for abuse.
Lawyers are expensive, and in many communities there simply aren’t enough of them. There is also no economical way for private attorneys to take on many kinds of low-value legal matters. Legal aid provides excellent representation to many but is dwarfed by the scale of unmet need—and most Americans do not qualify for those services at all. There is a vast universe of people who need help but will never sit down with a lawyer. Many do not understand how much of a difference legal help could make in their lives.
Many of these people end up being casualties of America’s broken legal services market. Every state gives lawyers a sweeping monopoly over the provision of legal services, including the kind of basic legal advice and support many self-represented litigants crave. Policymakers see this as a way to protect consumers from incompetence and exploitation. In reality, it serves some litigants well while failing everyone else completely.
Faced with the vast scale of unmet legal need, several US states are finally moving to embrace alternative models of legal services delivery. They are leading the way forward with real, concrete steps to improve access to legal services. Some are contemplating new licenses that will allow accredited non-lawyers to provide a limited range of legal services, and a few states have taken this step already. Utah has taken the boldest step. It has set up a program to authorize carefully monitored experiments with different models of legal services delivery—experiments that will also shed light on the potential, larger impact of loosening the rules on non-lawyer practice. California is considering a similar approach.
Unfortunately, most reform efforts have suffered from a defect that sharply limits their potential. They are almost entirely dominated by lawyers. Lawyers too often assume—implausibly, but with conviction— that they alone are well-equipped to imagine alternatives to themselves. Lawyers express trepidation about allowing others to work with the law, but they seldom bother to ask those “others” what they think they should be allowed to do with it and why.
In state after state, debates around legal services reform have been devoid of non-lawyer perspectives. Reform efforts have unfolded mostly at the state level, led by either the bar association or the judiciary. Some have tried to build in a diversity of perspective—California’s paraprofessional working group, for example, includes several non-lawyer members. Many others, however, have excluded non-lawyers from their deliberations almost reflexively, and most have garnered little public input from beyond the bar.
Predictably and unfortunately, this has led to a narrow and inaccurate understanding of the need for change, and to a set of proposed solutions that lack ambition and creativity. Lawyers have tended to work towards the creation of entirely new classes of certified professionals, similar to themselves. Those models are part of the solution, and where they have been adopted they have worked well. But America’s access to justice crisis is a multi-layered challenge that needs many solutions and not just one.
Lawyers know the law better than others. However, they have a limited perspective on the reasons people do not seek legal help, and on the kind of help people who never speak to a lawyer actually want. Nor are they likely to have a clear perspective on the kinds of legal help actors outside of the legal profession are willing and able to give. Lawyers do not generally ask whether and to what degree the existing rules make it harder for vulnerable people to obtain the help they need. The voices of consumers—and would-be consumers—of legal services have not been properly included in any serious discussions around unmet legal needs.
Fortunately, there is an entire universe of people who encounter unmet legal needs every day and have keen perspectives on their urgency, as well as the best ways to confront them. They are not lawyers. They are librarians, legal document assistants, social workers, community organizers, tenant advocates, and others. Those professionals, community leaders and activists often have a sharp perspective on the kind of change states should embrace to empower their residents to get the right kind of help.
It’s long past time for lawyers to embrace the need to include these perspectives, and accept the limits of their own.
Over the course of the past year, the National Center for Access to Justice carried out interviews with more than 60 people who have a sharp, firsthand perspective on America’s access to justice crisis and the kind of change they think is needed. None of them are lawyers. Most work directly, every day, with people who suffer for want of legal help.
Our interviewees brought keen insights to bear on many key issues. Some emphasized the widespread need for limited legal advice. Others focused on the legal needs of middle-class consumers—often neglected thanks to an assumption that unmet need is “only” a problem of the poor. Some wanted to professionalize new, low-cost models of service delivery. Others wanted more space for activists to use the law to fight for structural change—and not just offer it as a “service.” Many who urged an expansion of legal empowerment also argued for strong consumer protections—an imperative many lawyers tend to assume they are alone in understanding.
This report puts forward some of the most vital, inspiring and provocative perspectives that emerged from those interviews. Our interviewees do not all agree with one another. Their perspectives do not add up to any one clear vision. Nor do they speak for the entirety of their fields or professions. What their insights do illustrate is just how much sharp, original and useful perspective lawyers are missing when they huddle around a table to discuss these issues by themselves.
This report aims to help show why every state contemplating legal services reform should include a strong range of voices from outside the legal profession. This is how states can gain an accurate picture of the problem, an honest understanding of the urgent need for change, and a chance at developing the best solutions. Lawyers have a vital role to play, but they cannot chart the way forward on their own and should not presume to try.