Access to Justice Issues Are Common

Say you are terminated from your employment. Your salary had been $100,000 annually. You believe the termination was wrongful. You’re ready to fight.

You call a few attorneys. Most tell you that they only represent employers in employment matters. You forge ahead. Finally, you find one who represents workers. He asks for a consultation fee of $400 an hour to evaluate your case. You reluctantly agree. (You’re worried. Finding a new job may take a while. You have a mortgage, private school tuition, and other bills. They leave you with no disposable income despite your 6-figure salary.)

After the consultation, the lawyer says you have a case but he requires $20,000 retainer to proceed. He adds that if you win, he may be able to get the court to force your employer to reimburse your legal fees. You have about $30,000 in your 6-month emergency fund. This is a lot more than most Americans, but your sudden unemployment is an emergency! You need that money to keep your lights on. So, you prioritize your monthly expenses over this extraordinary legal expense, equaling 20% of your usual annual income. You make the sobering decision not to pursue your legal rights.

That’s an access to justice problem. A lack of availability of affordable legal services is, as far as you’re concerned, the same as if no legal services were available at all.

What is Access to Justice?

The term “access to justice” means the ability of any person, regardless of income, to use the legal system or legal services to advocate for themselves or for their civil legal interests. The World Justice Project estimates that there are 5 billion people who have unmet justice needs globally.

Of course, your situation is not one that the legal system is trying to address as we grapple with the access to justice crisis in the United States. The U.S. legal profession considers access to justice a problem that is limited to low-income people.

While there is some unmet need in this income bracket, there are resources available to accommodate low-income people.  They can receive free civil legal services through legal aid societies and other nonprofit legal service providers. Thus, the people with the greatest difficulty procuring legal services are those too well-off to qualify for pro bono legal services yet not well-off enough to pay. They don’t have enough disposable income to address their legal issues.

Are Lawyers to Blame?

It is tempting to blame the greedy lawyer who requires a $20,000 retainer. But is he really a bad guy? Practicing law is his job. He incurred 6-figures in student loan debt to become a lawyer. He has many expenses. Office rent is a major expense. He must pay his staff salaries and benefits. To find paying clients, he must incur marketing and sales expenses. Plus, he has overhead expenses. All these costs are in addition to the same personal expenses that the prospective client has.

To resolve the newly unemployed workers case, the lawyer would need to invest months of labor. Plus, the former employer can guess the terminated worker’s financial situation. A jobless individual cannot fight as long as a well-funded employer. Besides, an insurance company likely is paying the employer’s lawyer. Therefore, the company can afford to delay.

So, is it fair to ask the worker’s lawyer to engage in protracted litigation without a fee adequate for him to keep his lights on? Stated differently, while society benefits if wrongful terminations do not occur, should an individual attorney or law firm be asked to foot the bill to ensure fairness in the workplace?

Who Should Pay?

This issue of who should pay to correct consumer and societal injustices is at the core of the access to justice problem. Should the government pay? There are state and federal governmental agencies tasked with addressing civil legal issues. However, even governmental resources are finite. Thus, governments prioritize systemic violations impacting many people over seemingly individual injustices.

Should charities pay? Charities receive their money from wealthy people whose generosity is not unlimited. Legal charities compete with many other important causes: climate change, animal rights, veterans’ issues, higher education, and so on. Therefore, they are under pressure to deliver results on a large scale. So, they prioritize cases in much the same way that the government does, favoring provable systemic harm over cases that harm only a few.

So, if the government isn’t going to pay, and legal charities aren’t going to pay, and lawyers and legal firms cannot afford to pay, that leaves the private sector. We must find a way to make the delivery of civil legal services to the middle class profitable.

Filling the Gap

In the past two decades, non-lawyer providers of legal services have emerged providing legal forms to assist individuals in representing themselves in legal matters. Judges also have begun to provide some guidance to unrepresented individuals appearing before them in court.

But are these real solutions? Judges are supposed to be neutral deciders of legal disputes.

Further, even though laypersons believe that lawyering is easy and that they are familiar with the legal system, it is not, and they are not. There are so many nuances in the law. Even attorneys spend significant time researching and preparing their arguments for consideration by the court. Attorneys think through transactions carefully to minimize legal consequences that are unintended by the parties to the deal.

Laypersons cannot reasonably be expected to learn legal procedure. They don’t have the software to study substantive law in order to represent themselves in court. Nonlawyers cannot be expected to identify potential legal issues and draft enforceable legal language. They have jobs of their own, after all.

Working Together to Find a Solution

To improve access to justice, the profession must first acknowledge that access to justice is not only a poor people’s problem. It is a middle-class problem and a societal problem. For the most part, lawyers are not greedy, and clients are not cheap. We simply are struggling, as a society, to find an affordable and profitable solution to the access to justice crisis.

But the solution cannot be driven solely by lawyers and then foisted upon the public. Both lawyers and the public must have a voice in crafting a solution. Here at Sales for Lawyers, we’re doing our part. We train lawyers who are likely to serve middle-income communities. Still, the public needs to be vocal about its needs. The state Bars need to acknowledge that access to justice isn’t solely about the poor.

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