July 22, 2020

Annual 2020: ABA forecasts future of U.S. civil legal aid, public defense

When the American Bar Association established the Standing Committee on Legal Aid and Indigent Defendants 100 years ago, there was no right to counsel in criminal cases and all forms of legal aid were provided by a patchwork of charitable organizations scattered around the country. Though we have come far, substantial barriers to meaningful access to justice remain.

Technology, globalization and other forces are changing the ways in which legal services are being provided, and the process was fast-tracked by the COVID-19 pandemic. Lawyers, judges, prosecutors and other legal workers have learned that they can use technologies — video conferences, remote hearings, electronic filings, among them — to do their jobs in ways previously thought impossible.

So, what do the next 100 years hold for legal assistance in America?

“The truth is, it’s impossible to know. One hundred years is a very long time,’’ says Rebecca Sandefur, a law professor at Arizona State University and a panelist on the CLE showcase program, “What Will the Next 100 Years Hold for Access to Justice? The Future of Civil Legal Aid and Public Defense in America,” to be held Wednesday, July 29, from 12-1:30 p.m. at the ABA’s 2020 Virtual Annual Meeting.

Innovation on tap

Sandefur, who specializes in access-to-justice issues, believes that technology will lead progress.

“Lots of the simpler, clerical parts of legal practice will be automated, which will be more efficient, more consistent and reduce errors,” she predicts.

“A broader range of people will be authorized to practice parts of what is currently usually lawyers’ exclusive domain. I also hope that courts and lawyers will capitalize on the lessons they’ve learned about technology during the COVID-19-related shutdowns and make themselves more accessible and responsive – remotely, asynchronously, outside of normal business hours.”

Sandefur will be joined on the panel by Jeffrey Robinson, director of the ACLU’s Trone Center for Justice and Equality in New York; and co-moderators Lauren Sudeall, associate professor and founding faculty director of the Center of Access to Justice at Georgia State Law School in Atlanta; and Peter Edelman, professor at Georgetown University in Washington, D.C.

Sudeall, who focuses on access to civil and criminal courts, says it’s inevitable that technology and data-driven tools will increasingly play a role in access to justice going forward, but cautions that automation comes with risks.

“We should be wary of prioritizing efficiency over fairness,” she says. “Technological solutions risk alienating those who are unable to use technology effectively and — like many data-driven tools — may incorporate assumptions or biased elements of the system that harm racial minorities.”

Justice for all?

As shown with Black Lives Matter protests across the country sparked by George Floyd’s death, many Americans believe there isn’t equal justice for all. Can we get there in the next 100 years?

Sudeall isn’t sure. “Part of the reason for that is that the law is only capable of so much on its own; in many ways, the law facilitates and amplifies deeply rooted racial, economic and social inequalities. Achieving equal justice in its true form will require a multi-pronged approach, of which law and legal reform is just one piece.”

Sandefur says it can only become a reality if we can create measurable goals and assess progress toward them.

“We know justice is unequal in a general sense. But we lack basic facts about how it is unequal and who that affects,” she says. “In many ordinary cases in this country’s state and local courts, litigants are not represented by counsel. Whom does this work okay for, and for whom does it create further injustice? Until we can measure these facts about justice, we can’t know the true nature of the problem we confront, and we can’t assess whether our efforts to improve are making a difference.”

Sudeall says she can also see an increasing divide between what access to justice looks like in large, urban centers and more rural areas. She says many access-to-justice problems — for example, a dearth of lawyers and higher rates of pretrial incarceration — are already more common in rural areas.

“We’ve also seen — particularly in light of COVID — that lower-income and communities of color are hit hardest when our system fails. This is true for access to justice as well,” Sudeall says.

A way forward

But both Sandefur and Sudeall say there is time to fix the justice system.

Sudeall says to improve it we need to:

  • Recognize that the legal system is, for the most part, constructed by and for lawyers, yet most people who use it do not and will not ever have the assistance of a lawyer. We need to think about what the legal system looks and feels like from the perspective of those individuals and adapt the system so that it conforms to their needs and abilities, rather than unrealistically expecting them to adhere to what the system requires.
  • Meet people where they are not only in terms of abilities and knowledge, but physically. Rather than requiring people to seek out legal services and find a way to take advantage of them, we should embed services where people already go as part of their daily lives — in hospitals, schools, places of worship and community centers. This will increase awareness that such assistance exists and build trust and relationships critical to the effectiveness of such services.
  • Keep in mind that access to justice may look very different in different parts of the country, and not every solution will work in every place.

Sandefur offers these suggestions for improving the justice system:

  • Relax restrictions on the unauthorized practice of law in a way that focuses on consumer protection rather than protecting lawyers’ monopoly. Many people who are not licensed lawyers and computer programs could be providing valuable assistance to people facing life-changing justice problems.
  • Recognize that access to justice is not the experience of a procedure or the receipt of service, it is a substantive outcome. Whether someone achieves that outcome with a lawyer, with a nonlawyer, with a computer program or working on their own is not the point; the point is that the laws we have made to order these activities do in fact order them. Access to justice is the flip side of the rule of law.

“What Will the Next 100 Years Hold for Access to Justice? The Future of Civil Legal Aid and Public Defense in America” is sponsored by the  Standing Committee on Legal Aid and Indigent Defendants.