January 29, 2016 Articles

With Liberty and Justice—For Some

A look at the troubling statistics of, and possible solutions to, the nation's growing justice gap.

By Kyle Z. Varga

One of the 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 who have 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 and child support proceedings, and debt collections, only 20 percent of the legal needs of the poor are being met See, e.g.Florida State BarNew York City Bar, and Legal Services Corporation.

In 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.” 840 A.2d 114, 134 (Md. 2003). 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 by 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 ensuring 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 fewer than 1 civil legal aid lawyer per 10,000 citizens who are classified as poor (Attorney Access).
  • Forty percent of states do not have rules in place that allow court clerks and staff to help pro se litigants, and almost 50 percent of states do not have a system in place that allows judges to assist these individuals (Self-Representation).
  • Nearly 50 percent of all state court websites provide information only in English, over 30 percent of courts do not translate court forms into languages other than English, and 8 states do not ensure 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).
  • Fourteen percent of states do not require courts to use certified sign language interpreters, 16 percent of states allow judges to charge a deaf or hearing-impaired person for the cost of a sign language interpreter, and 30 percent 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. The following are some of the options:

  • Incubator programs: Many states have already implemented incubator programs and “modest means task forces” (See ABA Standing Comm. on the Delivery of Legal Servs., Incubator/Residency Programs). These initiatives generally involve 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 who participate; 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” (See ABA Standing Comm. on the Delivery of Legal Servs., Resources). 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 for 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 (New York City Bar, supra), MassachusettsTexas,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 involve trained nonlawyers who can assist pro se parties in navigating the justice system. 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 separties, and would be subject to regulation or oversight by a presiding body.
  • Legal technicians and navigators: These personnel are trained and licensed to provide, for a fee, limited legal support, such as explaining procedures and court forms and gathering facts and documents. 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 matters. Some states have already begun experimenting with advocates in a few of these settings.

New York City Bar Ass’n, Narrowing the “Justice Gap”: Roles for Nonlawyer Practitioners(June 2013).

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 who are in need and should therefore 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 navigate the American justice system. Each of these steps could represent incremental progress toward fulfilling our nation’s promise of justice for all.

Keywords: litigation, access to justice, justice gap, legal assistance, legal services, statistics, pro bono, pro se

Kyle Z. Varga founded KZV Law Firm and Traveling Esq. Blog.


Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).