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Access to Justice: From Crisis to Change


This article was originally published in the WA State Bar News.


In 2015, the Washington Civil Legal Needs Study reported that 76 percent of people with civil legal needs do not get legal help.[1] Of that 76 percent, 11 percent had tried to find legal help but were unsuccessful. Some of these people (nearly a third) said they could not afford to hire a lawyer. Others said they tried to reach out to a lawyer but either couldn't get through or their calls were not returned. And some people reported confusion over the information they were given. Even if a portion of these people simply have bad cases, that still leaves hundreds of thousands of Washingtonians without the legal support they are seeking every year. If they can’t afford help, that’s a problem. If they have a “bad case,” but no one will explain it to them in terms they can understand, that’s also a problem and one we can and should seek to address.


The access-to-justice crisis is not a bug; it’s a feature. We got here not by accident but by design. In the early days of the legal profession, the complexity of laws and procedures was intentionally designed to maintain control.[2] Legal professionals created intricate procedural rules and requirements that made it challenging for individuals without legal training to navigate the system. This exclusivity ensured that only those with resources and knowledge could effectively access and utilize the legal system. The legal profession’s role as a gatekeeper has persisted over time. Legal organizations and associations, using their outsized influence, often push back on changes that would make the system more accessible to the general public.


BARRIERS TO JUSTICE


People face numerous barriers when seeking access to the legal system. Court costs can be prohibitively expensive, deterring many from pursuing their cases. For instance, filing fees and other associated costs can quickly add up, making it financially unfeasible for many individuals to seek justice even if they avoid paying attorney fees. This financial burden is particularly heavy for historically and currently marginalized communities, in which individuals often lack the resources to afford court fees. While waivers can sometimes be requested, that can become yet another task thrust upon a person who is likely unfamiliar with the system and is already going through a crisis.


Procedural rules are often intricate and confusing, requiring specialized knowledge to navigate. The legal system is filled with complex terminology and procedural requirements that can be overwhelming for individuals without legal training. And the failure to understand a rule can have dire consequences. U.S. Supreme Court Justice Neil Gorsuch highlighted the consequences of “too much law” in a 2024 New York Times interview, noting that the average American cannot possibly keep up with all the rules that govern them and often lacks the means to hire a lawyer to help them navigate the complexity of the system.[3]


The time and physical presence requirements for court appearances can be burdensome, especially for those with limited resources or mobility issues. Many court proceedings require individuals to be physically present, which can be challenging for those who cannot take time off work, have caregiving responsibilities, or face transportation barriers. Additionally, the time-consuming nature of legal proceedings can deter individuals from pursuing their cases, as they may not have the flexibility to attend multiple court dates or wait for extended periods for their cases to be resolved.


These barriers are not just incidental; they are built into our system, making it difficult for anyone without a lawyer to effectively advocate for themselves. By design, the legal system often prioritizes procedural correctness over substantive justice, further perpetuating inequities.


PRO BONO CAN’T DO IT ALONE


I have a certificate on the wall of my office awarding me for pro bono work I did in law school; I’m pretty sure if you check the WSBA’s annual honor roll you’ll see I have exceeded 50 hours in every year of my practice. I say this not to extol my virtues—many lawyers do far more pro bono work than I do—but to offer context for my perspective. While pro bono work is crucial, it is not a comprehensive solution to the access-to-justice crisis our state faces.


Additionally, relying too heavily on pro bono efforts can even sometimes divert attention away from the broader structural issues at play. It offers a temporary remedy to an ongoing challenge, and we would benefit from focusing more on addressing the root causes that create the need for legal assistance in so many everyday situations.


There’s an apocryphal story of a kid on a beach throwing sea stars back into the ocean so they don’t dry out during a particularly low tide. Someone comes along and tells him that what he’s doing doesn’t matter because he can’t possibly save them all. “No,” he replies, “but it matters to the ones I save.” Pro bono work is a lifeline to those who receive support, and it can be deeply fulfilling. However, the U.S. is grappling with an access-to-justice crisis of such magnitude that it can be difficult to grasp its scope. And while pro bono efforts are often celebrated as a solution, they cannot carry the burden alone.


Pro bono work can make significant inroads in addressing this access-to-justice problem, but there simply aren’t enough lawyers or hours in the day to fulfill all of these legal needs. If 76 percent of people with civil legal needs are not finding legal help, that means less than one-quarter of people with civil legal needs are getting the help they need from the current workforce of attorneys. In the act of serving that 24 percent of civil legal needs that are actually met, lawyers are working an average of more than 50 hours a week.[4] Let’s assume the remaining 76 percent of civil legal needs in Washington are simple cases that can be resolved in a third as much time as is spent on the cases lawyers take (likely an absurd assumption). To meet the barest minimum of legal demand, we would have to either double the number of lawyers in our country or expect every lawyer to work more than 100 hours a week, half of it for free. Pro bono is great, but it should not be looked to as the solution to our access-to-justice crisis. It will never come close.


EMERGING SOLUTIONS


Our modern court system is built by lawyers for lawyers, yet up to 80 or 90 percent of people who enter a courtroom do so unrepresented.[5] While I do think people would always be better off with the help of a lawyer, there are a lot of legal issues that are so common and easy that a lawyer should be a superfluous bonus rather than a key outcome determinant. Thankfully there are examples of how we can design systems differently to better serve legal consumers.


Modria is an online dispute resolution platform that efficiently handles a wide range of cases, making legal processes more accessible and cost-effective. The Civil Resolution Tribunal in British Columbia is an online tribunal that resolves small claims and strata property disputes through a user-friendly, human-centered design approach. Here at home, GR 40 created Washington’s Informal Family Law Trials, which allow family law parties to opt out of traditional evidence and procedure rules, simplifying the process and making it more accessible for self-represented individuals.


These systems are shining examples of prioritizing the needs of legal consumers, making it easier for them to resolve their issues without the need for a lawyer. There are many common legal issues that really should be built to exclude rather than include lawyers. For example, property damage insurance claims, social security, and simple wills are a few areas where the process could be simplified to the point where legal representation is not necessary.


WHAT CAN WE DO?


The first, and for some of us, the hardest step is to just get on board. If you want to be a part of the solution to the access-to-justice crisis, acknowledge that pro bono work can’t be the only path forward. Many legal consumers do need lawyers. But everyone needs a system that doesn’t discriminate against them if they can’t afford one. The second step is to go after that 76 percent of civil legal needs (or even just the 11 percent who are actively looking for help) by redesigning your services to fit their market needs. Forrest Carlson built Washington Wills[6] to help consumers make a simple will for themselves for free. Megan Zavieh built an online course to teach her clients how to represent themselves.[7] Erin Levine built an entire system for divorce proceedings that enabled consumers to choose what best suits them from a variety of service levels.[8] ZAF Legal offers free personal injury services assisted by AI.[9] Some of these examples were created within the existing legal framework. Some used regulatory reforms similar to the entity regulation pilot program that was recently approved in Washington.


Finally and most importantly, support changes to our system that make the law and legal services more accessible to all. If you’re helping write legislation or court rules, make sure the text is written in plain language. Help courts experiment with remote proceedings even if you don’t mind going to the courthouse. And when you find yourself doing pro bono work, as I hope you will, ask yourself what about our system led that person to your office in the first place, and whether it has to be that way for the next person.


endnotes

[2] Nora Freeman Engstrom and James Stone, “Auto Clubs and the Lost Origins of the Access to Justice Crisis,” The Yale Law Journal 134 (2024), available at www.yalelawjournal.org/feature/auto-clubs-and-the-lost-origins-of-theaccess-to-justice-crisis.

[3] David French, "Neil Gorsuch Has a Few Thoughts About America Today," The New York Times, Aug. 4, 2024, available at www.nytimes.com/2024/08/04/opinion/neil-gorsuchsupreme-

court.html.

[5] Jessica Steinberg, “Demand Side Reform in the Poor People’s Court,” Connecticut Law Review 47 (2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2613648.

 
 
 

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