Access To Justice

As anyone who subscribes to cable television knows, DIY stands for do-it-yourself.  The phrase is frequently heard on the more than two dozen cable shows designed to teach ordinary Americans how to tackle home improvements.   The pattern of these shows is similar:  combine the sweat equity of an average hard-working couple with a team of experts who coach them along the way, and the job is done right at a fraction of the cost. 

Sounds good, right? Now think about applying that DIY principle to the justice system.  What if we could have a nation of do-it-yourself lawyers, who only call in the experts when they hit a snag.  Sound far fetched?  Well, it’s exactly what the chief justices of the California andNew Hampshire supreme courts wrote in an opinion piece in a recent edition of The New York Times.

Justices John T. Broderick Jr. (New Hampshire) and Ronald M. George (California) first defined the problem, that we’re already a nation of DIY lawyers:

“An increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own — pro se. What’s more, they’re often on their own in cases involving life-altering situations like divorce, child custody and loss of shelter…an inaccessible, overburdened justice system serves none of us well.”

They’re right, of course.  In fact, studies have suggested that as many as 80 percent of the civil justice needs of society go unmet because people lack access to the system.  One of the main reasons for this is the high cost of legal representation.  Many people who go to court without a lawyer do so because they simply can’t afford one.  

Justices Broderick and George not only identify the problem, they also propose an innovative solution, one I believe is a critical reform for the legal profession—unbundled legal services.  Let me explain.

Traditionally, if a lawyer got involved in a case, they owned it.  They had to stay with it from beginning to end.  But that’s starting to change.  As Broderick and George point out, there are 41 states that now permit lawyers to get involved in only part of a case, so-called “limited scope representation.”

It’s a reform the other 9 states should adopt. Under the new rules, lawyers can be hired to help with basic parts of a case or other legal matters that require the assistance of an attorney, while the other more pedestrian parts can be handled by the litigant alone.  In this way, lawyers can focus their efforts where they are really needed, and litigants can limit the legal fees but still get expert advice regarding the complex issues. It’s win/win for the entire system.

What’s more, the proposed reform could improve access to the legal system for the increasing number of pro-se litigants who chose to represent themselves.  As the justices write:

“For those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage…”

Lawyers offering unbundled legal services may be able to help some people who would otherwise have never hired a lawyer—just like the television DIY experts help people who might otherwise have never considered renovating their home.