With Liberty, and Justice for Some

One of the most fundamental cornerstones of the American legal system is equal justice for all.  But, with the increasing cost of litigation and attorney fees, along with sustained stagnate wages for the average citizen, is the legal system actually an even playing field?  The numbers reflect that those with greater capital have ready access to lawyers, while those who are categorized as low-income, and even middle class, are left to navigate the legal process on their own.
Various studies report that in civil cases, such as evictions, mortgage foreclosure, landlord-tenant disputes, child custody, child support proceedings, and debt collections, only 20% of the legal needs of the poor are being met (See e.g., Florida State Bar, New York City Bar, and Legal Services Corporation).
In the 2003 case of Frase v. Barnhart, Maryland Court of Appeals Judge Cathell opined that “[t]here is no judge on this Court that believes in his or her heart or mind that justice is equal between the poor and the rich – even in the tradition hallowed halls of our appellate courts.”  This sentiment is still echoed throughout the justice system, and is also quantifiable due to the research conducted by the National Center for Access to Justice (NCAJ) through the Justice Index.
The Differences Among States
The mission set forth by the Justice Index is to bring transparency and accountability to the American legal system.  It strives to achieve this goal by analyzing how each state delivers justice, and comparing its data across all 50 states.  The index presently uses four factors to determine these results:

  • The number of civil legal service lawyers;
  • The presence of programs to assist pro se (or in pro per) litigants;
  • Interpretive services for people who lack proficiency in English; and
  • Systems assuring access to courthouses for people with disabilities.

Even though the existence of an ever-increasing justice gap between affluent and low-income individuals is widely accepted, it is surprising how stark the contrast is between some states.  As reported by the Justice Index:

  • There are 27 states that have less than 1 civil legal aid lawyer per 10,000 citizens who are classified as poor (Attorney Access);
  • 40% of states do not have rules in place that allow court clerks and staff to help pro se litigants, and almost 50% of states do not have a system in place that allows judges to assist these individuals (Self Representation);
  • Nearly 50% of all state court websites provide information only in English, over 30% of courts do not translate court forms into languages other than English, and 8 states do not assure the quality of interpreters through a certification program (Language Assistance). These statistics are especially noteworthy considering there are more than 25 million Americans who have only a partial understanding of the English language (Migration Policy Institute); and
  • 14% of states do not require courts to use certified sign language interpreters, 16% of states allow judges to charge a deaf or hearing-impaired person for the cost of a sign language interpreter, and 30% of court websites do not instruct users on how to request an accommodation for a disability (Disability Assistance).

Based on the above criteria, the Justice Index found the greatest overall commitment to providing access to justice in the District of Columbia, Connecticut, Minnesota, Hawaii, and New York, and the least in Oklahoma, Kentucky, Illinois, South Dakota, and Indiana (Overall Findings).
Solutions Currently Being Used
Consistent with the discrepancies noted by the Justice Index, states vary widely in the solutions that they have implemented to combat the increasing justice gap.  The NCAJ and various state bars have set forth an array of alternatives to increase direct support to pro se and low-income individuals.  Some of the options include:

  • Incubator Programs: Many states have already implemented Incubator Programs and Modest Means Task Forces (ABA). These initiatives generally involve a partnerships with law schools, lawyer referral services, legal services organization, law libraries, and other State Bar sponsored organizations to help extend legal aid to those with low- to modest-incomes. These programs usually provide some type of subsidy for attorneys that participate and, in turn, the attorneys commit a set amount of hours to work with low- and modest-income clients at discounted rates.  The main goal is to establish sustainable legal services for those with the most need.
  • Unbundled Services: The ABA and a majority of state bars have already endorsed the use of “unbundled services” (ABA). This is a move away from full service firms, intended to encourage attorneys to provide limited tasks at a discounted rate, instead of the classic comprehensive/long-term representation model.
  • Court Resources: A number of states have increased access to court facilities, including courthouse personnel, clerks’ offices, court forms on websites, and courthouse help desks (New York City Bar). These are vital tools due to the complexity of court forms and procedures, which can be difficult to maneuver even as an English speaker.  Non-English speakers can encounter significant additional problems when these forms are not available in their native language, and must be completed in English.
  • Student Programs: Some states also encourage the participation of law school students and undergraduate volunteers, under the supervision of a licensed attorney (see, e.g., New York, supra, Massachusetts, Texas, California).

Additional Recommendations
In addition, the New York City Bar recommends some solutions that have yet to gain widespread support, but are being experimented with in varying degrees around the country.  Most of these roles involve trained non-lawyers who can assist pro se parties in navigating the justice system. The publication by the New York City Bar offers these examples:

  • Courtroom Aides: These individuals would assist with limited proceedings in judicial and administrative hearings. They would be paid by the court, not the pro se parties, and would be subject to regulation and/or oversight by a presiding body.
  • Legal Technicians/Navigators: These personnel are trained and licensed to provide limited legal support for a fee –explaining procedures and court forms, gathering facts and documents, etc. However, they are not allowed to assist in actual hearings.  These types of roles are presently being explored in both Washington and New York State.
  • Court Advocates: These individuals could confirm that pleadings meet certain minimum standards, and help explain legal terms and concepts. These advocates could be used in cases such as: debt collection, immigration, landlord-tenant disputes, foreclosure, family law, administrative proceedings, and social security benefits.  Some states have already begun experimenting with advocates in a few of these settings.

In the End
Proactive measures by all parties involved in the American legal system are necessary to help close the justice gap.  States and their courts would benefit from using an assortment of the above solutions, in addition to developing other remedies to address their particular situations.  Attorneys have an obligation to help those that are in need and should strive to increase access to the legal system, including by donating their time and expertise where possible.  Furthermore, everyone must work to ensure that individuals who are in need are informed about and have access to resources that are already available, so that they can use all of the tools at their disposal to successfully navigate the American justice system.  Each of these steps could represent incremental progress towards fulfilling our nation’s promise of Justice for All.
With Liberty, and Justice for Some
Author Biography:
Kyle Z. Varga is the founding attorney of the KZV Law Firm and the Traveling Esq. Blog.  KZV Law offers services that include domestic and international business solutions, creative alternative dispute resolution, strategic estate planning, and tenacious judgment collection in the greater California Bay Area.  Mr. Varga has an array of legal experiences ranging from in-house counsel to independent auditing to civil litigation.  He enjoys practicing law using modern technologies to meet his clients’ various interests and informing the public through his blog Traveling Esq. Mr. Varga strives to continuously learn and challenge himself, and hopes to reach out to inspire others to do the same.