Stripping The False Premises From Civil Justice Problems

By Rebecca Sandefur | January 6, 2019, 8:02 PM EST

Rebecca Sandefur
Rebecca Sandefur
When I began researching access to justice in 2004, there were two settled beliefs so obvious that few bothered to investigate them. The first was that people with civil justice problems are always better off represented by an attorney than without one. The second was that the reason so many people with justice problems don’t have attorneys is that lawyers are so expensive. Both of these settled beliefs turned out to be false. The implications of these discoveries for our understanding of civil justice and for civil justice practice are profound.

Civil justice problems are very common. At least half of households and as many as two-thirds of American adults face at least one in any given year. To lawyers, these problems go under names like guardianship, wage theft, foreclosure, unlawful detainer, and Chapter 11. To the over 100 million Americans facing civil justice problems, these are situations that threaten their livelihood, the security and safety of their shelter, their ability to work, their access to health care, their chances to participate in the rearing of their children and care for dependent adults in their lives[1].

Despite the sometimes very high stakes, most civil justice problems never become court cases. Most also will not involve any input from an attorney. A vigorous tort reform movement portrays America as an absurdly litigious society, courts clogged with lawsuits over trivial matters like spilled coffee. The facts belie this: Many injured persons never seek redress[2], and most of the civil justice problems experienced by the public don’t come to the attention of any lawyer, court or administrative hearing.[3]

The traditional understanding of why people don’t turn to lawyers with justice problems is that it costs too much. The standard argument is that law and lawyers’ services have become so expensive that no ordinary American can afford to turn to law for help with justice problems.[4] And, indeed, legal services for ordinary justice problems can be quite costly. For example, lawyers’ fees for one side of a contested divorce can run into the tens or even the hundreds of thousands of dollars, depending on the issues of conflict and how long they drag on. But other services are less expensive. A lawyer’s work on a simple will that can smooth the transfer of property and other arrangements after death can be secured for a few hundred dollars, as can a contract review that may spot or prevent problems at work or with a landlord or service provider. Yet most Americans do not use these services either.[5] Understanding why requires turning the problem on its head, starting not with law, but with the people who might use it. The question isn’t “why don’t people use law?” but instead: “What do people do when they face civil justice problems, and why do they do it?”

In a survey of ordinary Americans living in a typical community, I asked those who reported experiencing a civil justice problem what kind of problem they thought theirs was. For example, they had reported believing that an employer owed them unpaid overtime, or taking over the finances of an elderly parent, or being two or more months behind on a housing payment. What kind of problem was that situation? Was it a personal problem, a moral problem, a bureaucratic problem, a private problem, a legal problem, a family or community problem? Was it bad luck or just a part of life? Was it God’s will for them?

The results were striking. People believed that a majority of their civil justice problems — the events and circumstances of their lives that raise civil legal issues, have consequences shaped by the civil law and are actionable under the civil law — were not legal at all. The most common way people understood their justice problems was as either bad luck or God’s will for them. For only 9 percent of the civil justice problems people reported did they see legal aspects.[6] If I don’t have a legal problem, but rather face a run of bad luck or the workings of divine providence, why would I go to a lawyer?

People do not usually take their problems to law, but they do usually try to do something about them. Typically, Americans try to handle justice problems on their own, or reach out to family and friends for help. When they reach outside that inner circle, they reach widely: to community organizations, elected officials, government agencies, religious communities, doctors, social workers and, occasionally, lawyers. In that same survey, I asked those who had reported a problem but had not sought any help outside their personal networks why they did not seek help. The most common reason they gave for not seeking help was that they didn’t need it. The second most common reason was that getting help wouldn’t make any difference.[7] Sometimes, of course, people are right in these judgments: They know the options and possible outcomes and they do what makes sense given their own priorities. Sometimes the wisest thing to do is nothing. But sometimes people are wrong in these judgments, and the results can be disastrous for them and for the rule of law. We make rules and establish rights because we want our activities to be ordered in a specific way, a way that we think supports important values, like justice. When justice problems don’t get resolved lawfully, those rules and rights are meaningless.

This new understanding of how people think about their civil justice problems can help push changes sorely needed but delayed for many years. Courts and the legal profession have both opportunity and responsibility here. A vast untapped market of people who could benefit from legal services but aren’t currently thinking about lawyers at all awaits attorneys who will meet them where they are. Courts and lawyers, as stewards of the justice system, have a duty to make justice accessible. Achieving this will require innovations that both courts and the legal profession have avoided for a long time. Most importantly, providers of legal services and binding legal resolution need to approach the design of services from the perspective of the people who have justice problems, rather than from their own vantage point. In other industries, this approach is sometimes called user-centered design. The smartphones millions of us use compulsively were built on these principles.

In the past, user-centered design of court processes and legal and related professional services were not a priority. Providers had few incentives to consider users’ or consumers’ perspectives and felt little pressure for innovation. The leadership of the organized bar was slow to permit lawyers to explore untapped legal services markets, such as those for limited or flat fee service, or those that might be reached by advertising. The major funders of subsidized legal services were content to allow individual provider organizations to set their own service priorities within the broad restrictions of what could and could not be funded. Courts were secure in their role as the sole providers of binding resolution to civil disputes. And, there was little in the way of a social scientific evidence base that might inform innovation in the way institutions of remedy or assistive services were organized and provided.

All this has changed. The Great Recession hit the legal profession hard. Lawyers today who provide legal services to ordinary people must devise new service and business models simply to stay afloat. Funders of subsidized services have become more sensitive to arguments about evidence-based practice. Court filings have declined, as courts have lost business to private arbitration and other faster, cheaper sources of dispute resolution. A growing evidence base can inform the design of better institutions that make justice more equally accessible to the public whose justice system this is. Pressure for reform and innovation is growing at the same time as new knowledge about how to respond. Change is here. Courts and the bar can try to guide it, or they can be swept away by it.

Rebecca L. Sandefur is associate professor of sociology and law at the University of Illinois at Urbana-Champaign. She is also a faculty fellow at the American Bar Foundation, where she founded and leads the access to justice research initiative. In 2018, Sandefur received a "genius" grant from the MacArthur Foundation for her research on access to civil justice.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Rebecca L. Sandefur. 2010. "The Impact of Counsel: An Analysis of Empirical Evidence." Seattle Journal for Social Justice 9(1):50-95.

[2] David M. Engel. 2016. The Myth of the Litigious Society: Why We Don’t Sue. Chicago, IL: University of Chicago.

[3] Rebecca L. Sandefur. 2016. “What We Know and Need to Know about the Legal Needs of the Public.” University of South Carolina Law Review 67:443-60.

[4] Hadfield, Gillian K. 2010. “Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans.” Fordham Urban Law Journal 37(1):129-56.

[5] Rebecca L. Sandefur. 2011. “Money Isn’t Everything: Understanding Moderate Income Households’ Use of Lawyers’ Services.” Pp. 222-245 in Middle Income Access to Justice, edited by T. Duggan, L. Sossin, and M. Trebilcock. Toronto, ON: University of Toronto Press.

[6] Rebecca L. Sandefur. 2014. Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study. Chicago, IL: American Bar Foundation

[7] Ibid.

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