Scholar argues that low-income litigants can benefit from self-help resources.
Not everyone loves lawyers.
And now, Harvard Law Professor Jeanne Charn argues that in some instances we might not even need them.
In a recent paper, Charn explores the “access to justice” issue, which concerns the ability of low-income and middle-income individuals to afford a lawyer when they face legal trouble. Charn contends that, rather than improving access to lawyers, the legal community should focus on empowering people to represent themselves in legal proceedings, removing the need for a lawyer in the first place.
To support her point, Charn highlights three studies by her Harvard colleague James Greiner, who examines how people fared in civil legal disputes where they either did or did not have a lawyer. Charn notes that in two of Greiner’s studies – the first involving a court proceeding to get unemployment insurance benefits, and the second involving eviction cases in housing court – people who represented themselves in the dispute fared just as well as those who had a lawyer. However, in the third study, which involved more complex legal disputes, people represented by a lawyer achieved better outcomes than those who represented themselves.
Charn says that the results of these studies should “challenge the bar’s deeply held belief that lawyers always add value.” For basic civil legal disputes, she contends, the legal community ought to focus on improving access to self-help resources rather than access to a lawyer.
Importantly, Charn does not argue that people ought to represent themselves in all legal situations. She recognizes that lawyers are necessary in disputes where the legal issues are inherently complex, such as in Greiner’s third study. Still, she advocates for an overall shift in approach. She says the legal community should embrace the findings of the first two studies and focus on helping low-income individuals represent themselves rather than helping them obtain a lawyer.
Charn’s approach contrasts with the traditional track taken by advocacy groups such as the Legal Services Corporation and the National Lawyers Guild. Groups such as these have called for significant increases in funding for lawyers who serve low-income clients, reducing law school tuition, and expanding law school loan forgiveness programs to increase the overall number of practicing lawyers. Some observers have even urged for a free court-appointed lawyer for everyone in a civil legal dispute.
Charn’s approach also differs from those who argue in favor of doing away with lawyers’ monopoly on legal services. According to prominent advocates such as former Chief Judge Jonathan Lippman of the New York Court of Appeals, non-lawyers like “court navigators” or “legal technicians” could provide basic legal services to low-income clients more affordably. As a parallel, they point to the medical profession, where nurse practitioners and physician assistants have been able to provide basic primary healthcare far more cheaply than doctors typically can.
On the other hand, Charn’s approach, which focuses on self-representation, requires neither an increase in lawyers nor an increase in non-lawyers who provide legal services to serve low-income individuals. She instead emphasizes four major changes to improve access to justice.
First, she argues for greater innovation and experimentation in legal services delivery, particularly through technology. She highlights the Legal Services Corporation’s Technology Initiative Grant program, which has funded projects such as a video game to help people learn how to represent themselves in court, a video-conferencing program for rural clients to reach lawyers residing in cities, and text message updates reminding people about court dates and legal deadlines.
Charn also calls for regional and state-wide integrated systems to achieve economies of scale in legal services delivery and quicken access to legal resources. Whereas today many legal access programs are organized on a local level, Charn maintains that resources would be allocated more efficiently and cost-effectively if services were organized at a broader geographic level.
Additionally, Charn calls on legal academics to focus on empirical research to understand which types of legal assistance are truly effective in achieving their desired outcomes. She urges lawyers and scholars to focus on evidence-based approaches to improving justice outcomes, rather than continuing to act based merely on long-held assumptions.
Finally, Charn encourages the legal community to reframe the “access to justice” issue from a lawyer-centric perspective to a consumer-based perspective. She asks the legal community to put themselves in their clients’ shoes – to simplify procedural rules, reform court administrative practices, and provide self-help tools to make it easier for people to represent themselves. With a more user-friendly legal system, she argues, low-income individuals will no longer be at such a disadvantage when navigating legal disputes.
With these changes, Charn envisions a future where access to civil “justice” is no longer always dependent on access to a lawyer. In Charn’s future, people would be able to achieve the outcomes they want by themselves for straightforward legal issues – no lawyers needed.
