chevron-down Created with Sketch Beta.

Litigation Journal

Litigation Journal | Summer 2023: Legitimacy

Regaining Legitimacy in Our Legal System

John Lund and Deno Himonas

Summary

  • The legal system is in peril precisely because it isn’t working for the great majority.
  • Most people in our country handle their legal problems without lawyers due to cost or trust issues.
  • If our legal system doesn’t work for everyone, the day will come when it works for no one.
Regaining Legitimacy in Our Legal System
Nattakorn Maneerat via Getty Images

Jump to:

The legitimacy of our country’s legal system doesn’t turn on lawyers, judges, or centuries-old constitutional provisions. Quite the contrary, the U.S. legal system is legitimate only if the people say it is. If the people don’t accept the system, then the rule of law it enables is no more valid than the rule of King George. To be accepted, the legal system must work for the masses—those whose good opinion is a must.

But that good opinion is in much peril, like a car slipping toward a cliff on a bitter winter night. The legal system is in peril precisely because it isn’t working for the great majority. We have an adversarial system of justice in the United States. One designed with the presumption that everyone has a lawyer. And one with a complexity that challenges even the most gifted to navigate its alphabet soup without trained assistance. Have you tried to figure out Social Security or Medicare benefit options lately?

The reality, however, is that most people in our country handle their legal problems without lawyers. Many don’t trust lawyers or otherwise aren’t inclined to work with them, while others would like to but don’t have the funds to pay. Those of us in private practice know this anecdotally—from watching too many prospective clients’ faces fall at estimates of what it will cost them for representation. The result: The great majority represent themselves in court in civil matters. And they figure out their out-of-court legal issues without lawyers as well. Many others don’t even try to solve their own legal problems—they just give up.

If we lawyers are too expensive or too obtuse or too whatever to be worth it for the great majority of people, then why would they continue to support a system that assumes they have a lawyer advocating for them? What good are your rights if you have no way to meaningfully exercise them? Why continue to believe in the rule of law if you cannot get the benefit of that revered rule? Our legal system must be accessible and affordable because if it doesn’t work for everyone, the day will come when it works for no one.

Truth is we’re already well into that icy slide. For decades, lawyers have been the butt of countless jokes about greed, dishonesty, and lack of ethics. Unsurprisingly, trust in the judicial branch is also at a historic low.

The most compelling data point is the number of parties who are unrepresented in court. According to a 2021 study by the National Center for State Courts, only one in four civil litigants is represented by counsel. This means that 75 percent of the people who appear—in person or by Zoom—in courtrooms across the country, with a legal problem that has blossomed into a court case, have no lawyer, no guide, no advocate. Many of the cases are debt collection or eviction matters; to the person threatened with losing her home or her income, they’re just as important as your corporate client’s discovery dispute or motion for summary judgment. For those millions of people, the legal system’s bedrock premise of competent representation is a sham. It’s folly to think that such a deviation from the design will be tolerated for long.

The steady march toward a world where everything can be handled from a smartphone just brings us closer to the tipping point. Smartphones have transformed everything from human rights struggles in Iran to the way war is conducted in Ukraine. It’s no great leap to think that lawyers, as the only current operators of the legal system, will go the way of taxi drivers when the inevitable market forces combine with technology. The question is not whether the U.S. legal system needs to evolve to stay legitimate; the question is how and when that evolution will occur.

Why Should Lawyers Care?

Why should lawyers care? Why should the American Bar Association care? So long as law school graduates can continue to pull down handsome salaries from law firms, corporations, and governments, why should any of us in the legal world care?

We should care because our profession is tied inexorably to the future of the legal system. Lawyers cannot expect to keep their privileged position in the system if we can’t or don’t meet the needs of the public and instead leave the public to fashion other solutions. We should care because our profession proclaims a commitment to promoting justice. And we should care because the legitimacy of the system in which we practice our trade slips farther off that icy road every time a party goes it alone in court and comes out thinking the system is rigged because no one could explain to them what to do or why they lost.

Can this slide toward illegitimacy be reversed? Lawyers should hope so because we are all along for the ride. Can the legal system’s economics be reworked so that they are more responsive to the public? Perhaps. Surely, trying some different approaches to solving this fundamental problem should be a priority. Across the country, there have been various experiments to do just that.

Scientists test their ideas with experiments that generate data. They measure things. They collect information and make observations from their experiments. Their conclusions, usually subject to a rigorous peer review, are only as valid as the data that support them. Lawyers can hew to this model. We can allow experimentation to see if different ways of providing legal services will be safe and effective. We can collect data from those experiments and make evidence-based decisions about changes. After all, we require competent proof in our courtrooms. We can test professional innovations the same way. Some of us are already doing it.

Testing Nontraditional Methods

For the past two years, the Utah Supreme Court has allowed the testing of nontraditional methods of providing legal services. It has done so through its Office of Legal Services Innovation. That office has received nearly 100 applications from lawyers and others seeking to provide legal services in ways that aren’t currently permitted under the rules of professional conduct. These applications include arrangements whereby lawyers share ownership of an entity with other professionals or with investors. There are proposals for non-lawyers to provide legal services in specific settings and for the use of software and technology to facilitate the provision of legal services and make them more affordable. Contrary to the fears of some Chicken Littles in the legal industry, these applicants aren’t the big tech companies or other corporate giants swooping in to crowd out the lawyers. They’re not even the large law firms. Of the nearly 100 applications received in just two and a half years, not one is from big law or big tech or big accounting, or big anything. These are intrepid innovators, willing to risk a lot to try to find a better way.

Each application has been assessed by the Office of Legal Services Innovation. Each application recommended by that office for authorization has then been thoughtfully assessed by the Utah Supreme Court. Only after that review and only subject to a series of conditions for authorizations, such as regular data reporting and proper disclosures, has any applicant been authorized to enter the market. Currently, there are 49 entities with authorizations to provide legal services. Each is subject to the specific terms of the court’s order granting that particular authorization. None of them is operating without lawyers involved in some way. Many of them have lawyer leaders working on ideas to provide affordable legal services that meet the needs of the public.

The authorized entities are providing services in a variety of areas, from estate planning to expungements to personal protection orders. In scientific speak, these are 49 experiments. Each is testing whether the legal system can be reworked to make it more responsive to the public. Data are flowing in from these experiments. Through December of 2022, in just 27 months of operation, the authorized entities have provided over 40,000 separate instances of legal services to about 24,000 separate clients. Every authorized entity is required to report any complaints it receives and must also make it possible for customers to make a complaint directly to the court’s Innovation Office. The court is looking specifically for any indication that these nontraditional methods of providing legal services cause harm to consumers. Overall, out of those thousands of services rendered and clients served, the total number of complaints is 14. Each of those complaints has been investigated and assessed by the office. This isn’t the unfettered lawlessness some fearmongers predicted; rather, it’s a carefully monitored laboratory.

The ratio of complaints to services rendered is very low. There has been only one harm-related complaint for every 5,395 services. That’s a number any law firm would be proud to tout. It is evidence that, as to the services provided so far, the recipients of those services think they’re worth it, think they’re legitimate. But rather than presume something about the results of these experiments, let’s look at the reports from a couple of the experiments to test our assumptions. And let’s look at these reports as scientists would, objectively and with an open mind.

Data Report 1: Protective Orders for Victims of Domestic Violence

The first set of data concerns non-lawyers advising victims of domestic violence on protective orders.

Hypothesis: Trained victim advocates already function within the court system. They assist victims of domestic violence, child abuse, sexual harassment, elder abuse, and stalking in becoming independent and escaping abuse, and they do so free of charge to the victims. They often aid victims in filling out the paperwork but are constrained in providing advice about what relief to seek, what information is most important to include, and specifically what a judge might be looking for. The victim advocates often attend the hearings of the victims they assist and become familiar with the judges and their reasoning for granting or denying an order. Thus, the victim advocates know what evidence is most important and how best to explain the situation in an application. The hypothesis is that such victim advocates can be trained to advise domestic violence victims about seeking protective orders or other civil relief from threats of harm, including giving otherwise prohibited legal advice about what to say in the application and how to say it.

Method/Procedure: A pro bono clinic’s lawyers trained experienced victim advocates who were already working with domestic violence victims to advise them about the facts and the law concerning protective orders and stalking injunctions. Once certified, the victim advocates advised clients only within this narrow scope. Each advocate had an experienced attorney available as an ongoing resource, but the advocate’s work was not supervised by the attorney.

Measurement and Assessment: Data as to the number of instances of service, the nature of the service, and the results obtained were provided by the pro bono clinic. Reports of any complaints were also provided by the pro bono clinic and collected by the overseeing authority.

Audits were conducted by independent attorneys. Two auditors from an approved audit panel with expertise in protective order practice separately audited 20 service files on a confidential basis. They rated the files for overall results, as well as for any consumer harms (such as improper identification of consumer rights), proper exercise of consumer rights, and the appropriateness of the services provided.

Results: Data gathered in the 12 months of operation indicate the victim advocates provided legal advice in 257 cases—246 in protective order matters and 11 in neglected or abused dependent matters. The vast majority of these cases (225) were closed during the period. No client fees were charged for any services.

Survey results further indicate there were no consumer complaints; there was no evidence of inappropriate legal services being provided and no evidence of a mismatch between services sought and services received.

Audits of 40 cases conducted by two auditors separately assessing 20 randomly selected files on a scale of 1 to 5 and on three criteria—overall results, correct identification of consumer rights, and proper exercise of those rights—produced ratings between 4.6 and 4.65. Auditors also provided eight comments that were shared with the pro bono clinic for response and for training purposes.

Conclusion: When properly trained and with ongoing access to an experienced attorney as a resource, experienced victim advocates can provide at least adequate and usually excellent legal advice to domestic violence victims about what information to provide and how to present an application for a protective order and other forms of civil relief from threats of harm.

Data Report 2: Estate Planning Services

The second data set concerns estate planning services offered by an entity with both lawyer and non-lawyer ownership that uses software and non-lawyers to provide legal services.

Hypothesis: Consumers already use various online platforms for help in getting tax and financial advice (e.g., TurboTax). Through properly built algorithms and with checks of inputted data against predefined standards, an online platform can be used to advise and assist consumers with the creation of an estate plan and other related documents. The start-up expense for such a platform is such that capital investors may be required to properly build out, market, and operate the platform. Lawyer owners can work with non-lawyer owners of the entity to ensure sufficient quality in the results of the platform.

Method/Procedure: An entity owned in part by lawyers and in part by non-lawyers built and operates an estate planning system. The system allows consumers to input pertinent data. The system uses analytics to apply that information and identify and prepare the documents the consumer needs. Those documents may be trusts, wills, powers of attorney, living wills, etc., as well as documents for estate plan funding and administration. The system constantly monitors the plan and assets to keep the estate plan in effect and up to date. There is lawyer involvement in developing the algorithms and in addressing any outlier issues that are not anticipated by the algorithms.

Measurement and Assessment: Data as to the number of instances of service, the nature of the service, cost, and the results obtained were provided by the entity. Reports of any complaints were provided by the entity and collected by the overseeing authority.

Audits were conducted by independent attorneys. Two auditors from an approved audit panel with expertise in estate planning separately audited 20 service files on a confidential basis. They rated the files for overall results, as well as for any consumer harms (such as improper identification of consumer rights), proper exercise of consumer rights, and the appropriateness of the services provided.

Results: In 21 months of operation, the entity provided legal advice in 1,090 cases. All the services were delivered by a software provider with lawyer involvement. The overall cost per consumer for a bundle of end-of-life planning documents was shown to be reasonable and in line with the typical cost for such services per consumer and per service.

Once again, there were no consumer complaints, no evidence of inappropriate legal services being provided, and no evidence of a mismatch between services sought and services received.

Two auditors separately assessed 20 randomly selected files on a scale of 1 to 5 and on five criteria—overall results, proper identification of consumer rights, proper exercise of those rights, necessity of purchase, and appropriateness of purchase. The cumulative ratings all were above the midpoint of the scale, ranging from a low of 3.55 for exercise of rights to a high of 4.2 for necessity of purchase.

Conclusion: An estate planning platform using algorithms can be built and operated by a company comprising attorneys and non-attorneys sharing costs and can provide properly priced estate planning services that are adequate or better and can do so without any indication of consumer harm, from either the business structure or the use of software to facilitate the services.

We Must Act Now

These results appear legitimate, and though they appear to show the hypotheses are valid, testing continues. In essence, there are 49 different test cases now under way in the Utah sandbox, each being followed closely by the court’s Innovation Office. Innovations being tested include ownership and investment models that are more flexible than the traditional American law firm, where only lawyers can have ownership interests and no outside investment is permitted. Other test cases are looking at whether people other than lawyers can safely do some legal advising and whether artificial intelligence can safely play a role. Results from these cases should be independently studied and objectively critiqued. It’s this sort of evidence-based dialogue that has led to advancements in many fields. There’s simply no reason to think that law is somehow different. After all, we are lawyers practicing a profession based on reason, not sorcerers spouting magic spells.

If we want to elevate the public’s opinion of our profession, if we want to successfully steer into the skid and avoid the cliff of illegitimacy, we must act, and we must act now. In recognition of this urgency, the Utah Supreme Court has thoughtfully crafted a daring approach to expanding access to legal services, one that is data-driven and consumer-focused.

While much study remains necessary, the initial results are promising. Perhaps most promising, and perhaps hardest for lawyers to accept, is that real people with real legal problems are getting real help and valid legal services from these innovative providers. Job seekers are getting their old criminal records expunged. Families are creating the correct end-of-life documents. Victims of domestic violence are obtaining protective orders and stalking injunctions. Debtors are being guided to workable resolutions with their creditors. In the words of one client of a Utah sandbox provider, who sought out and posted on the office’s complaint board about immigration help she received: “NOT A COMPLAINT. This just seems heaven sent and I just need confirmation it’s heaven sent.”

It isn’t that lawyers can’t work these minor miracles for people. It’s that there are too many people who need help and too few with the funds to pay what lawyers charge. So we can keep insisting on being the only ones who can steer the system until it slides off the edge. Or we can lead the exploration into safe ways to secure the system’s legitimacy by making it work for the public. Out in Utah, we’ve chosen the latter.