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The Legal System Is Failing

We Just Need to Acknowledge That
· Access to Justice

By Natalie Anne Knowlton

The Refreshing Sound Of Failure

At the annual Legal Services Corporation (LSC) Innovations in Technology Conference last week, the dismal state of the legal system was front and center in conference discussions. This isn’t particularly surprising given the unique perspective of the legal aid community — a community that, by its very existence, draws attention to the inaccessibility that permeates our justice system.

Pointed and passionate, and unabashedly radicalized, LSC President Jim Sandman spoke of the problem in no uncertain terms.

“The system is failing. Failing. We just need to acknowledge that.”

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It wasn’t a hard sell for me. (He had me at “hello.”)

It also wasn’t the first time I’ve heard President Sandman or others say something to this effect. And the reality of the message is, of course, infuriating. But the public and no-frills acknowledgement of the state in which we find ourselves, by leaders in the legal community, is nothing but refreshing.

The Honest Truth About Our Collective Failure

Finally. We can be honest. With one another, and ourselves. In public.

For many years, I’ve tiptoed around this acknowledgement, trying to be diplomatic about the message. I’ve been a bit more outspoken in the last two years, but coming out of the LSC conference, the flood gates are officially off their hinges.

Not only can and should we be honest about the total collapse of the legal system for all but a very small subset of the population, we can and should also be honest about the validity of some of the proposals that have been put forth for pulling the legal system out of its orbital decay.

Peddle your pro bono suggestion somewhere else

Coming out of the Innovations in Technology Conference, I finally feel like I have the permission to laugh next to Jim Sandman and others when someone suggests that increasing pro bono hours is the way to bridge the justice gap.

During our closing panel at ITC on regulatory reform, President Sandman cited Gillian Hadfield’s estimate that every licensed lawyer in this country would need to do 180 hours of pro bono work to give one hour of assistance to every household for each legal problem they face.

Yeah. Right.

Oregon attorney John Grant did the math for his state.

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Source: Twitter @JEGrant3

“Imagine telling a new lawyer with $300K in student loan debt that they have to spend three weeks a year working for free,” says Grant.

Yeah. Right.

Pro bono assistance undoubtedly helps some people, but it is not and never will be a scalable solution to the problems we are facing.

We are stuck with the funding we have

I don’t dispute the very clear fact that legal aid lawyers would benefit from more financial capacity. In this respect, these providers are much like their low-income clients: they do a damn good job with little to no resources.

Yet I have never entertained the argument that our justice problems would be solved by more funding. And now I finally feel just a bit less alone in this space. My opposition to the increased funding argument is based on moral outrage at the thought of asking taxpayers to pump more money into a taxpayer-funded justice system that structurally doesn’t work for them.

“More” is not the solution

The real reason that the current justice system is crumbling underneath its own weight is not because it isn’t adequately funded; it’s because the structures and processes of our justice system, rooted in hundreds (and hundreds) of years of history, are simply not equipped for us today.

And this is why more of what we have today isn’t going to get us very far into creating the justice system of the future.

When A Solution Would Cause More Problems

There was a moment during the audience discussion of our closing regulatory panel that really drove this scalability problem home for me.

Over the years, I have spent so much time and energy singularly focused on the fact that a majority of people in our state civil and family courts don’t have legal help that I honestly hadn’t given much thought to what would happen if they all of a sudden did. And here I thought the former scenario was frightening….

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Source: Best Movie Ever

In the best-case scenario, we’d hope that those currently unrepresented litigants would leverage their newfound sources of legal help to obtain a just outcome.

But what I think would happen realistically is a whole lot of nothing, because the current system would likely grind to a quick halt with longer case processing times and intractable delay. We are already fighting issues of delay and over-processing in our justice system — and attorneys are the ones highlighting this issue, so we can’t dismiss these complaints on the basis of unrealistic litigant expectations or ignorance of the system.

There is a perception (and it’s just plain wrong in some instances) that cases involving unrepresented persons take longer than those in which both parties have attorneys. While certain events in the life of a case may be more efficient when an attorney is engaged, studies do suggest that civil cases with attorneys on both sides take longer overall.

There are several reasons for this, one of which is that attorneys actually take advantage of the procedural mechanisms available to them throughout the case. Unrepresented litigants don’t (because they can’t). I won’t even get into theorizing about what would happen to caseloads if current default rates (which are high in cases with unrepresented litigants) dropped dramatically due to attorney involvement.

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Source: Pixabay via Free-Photos / 9091 images

Now imagine, that in addition to our existing caseload being staffed with attorneys on both sides, that the latent legal market was suddenly activated to its fullest potential. How would current court structures process this influx of disputes?

I don’t think they could (not well at least) and for many, an “eventually just” outcome is not a just outcome at all.

What I’m trying to say, then, is that the great irony of our collective bemoaning of the great many people who cannot afford legal help or who do not know they have a legal issue in the first instance is that if endless legal resources would be available tomorrow, we’d only be facing new challenges of access to justice. And I’m not convinced we’d be in a much different position than we find ourselves in now.

The 1700s Live On In 2020

Our current model of person-to-person interaction, in-person event to in-person event, conference room to court room case processing simply does not scale well. And I question to what degree the current structures of our justice system were meant to do so.

Can you think of anything that existed in the 1700s (or earlier) that functions well and efficiently today, apart from Uranium and the capacity for humans to be jerks to one another?

And I’m not talking about things like “democracy” or “human rights.” Those are concepts, social values. I’m not talking about getting rid of the rule of law or getting rid of state-sanctioned and enforceable dispute resolution. I’m talking about the structures and services through which these core values of justice are implemented.

It’s difficult to create any kind of structure or service with staying power hundreds of years into the future. Just think about the challenges of creating a legal system to serve people 300 years from now. We don’t even know if we’ll be living here anymore, and who knows what kind of government Elon Musk wants to establish on Mars?

To suggest that we don’t need serious, foundational restructuring of a justice system that is hundreds of years old is putting a lot of faith into a small group of human beings who, by definition, turned their back on a dysfunctional system hundreds of years ago in order to establish an entirely new one. We know for a fact that the Founders didn’t stick around to languish in systems that they viewed as critically flawed. They left! They built new ones!

They’d probably be rolling over in their graves if they could see us sitting on our asses doing — if we’re honest — little to nothing about the crumbling of an entire branch of government.

We Didn’t Start The Fire

No single person or organization is responsible for the breakdown of our legal system. Certain stakeholders seem to take this kind of system criticism personally, but the reality is that our society simply outgrew the system.

But while we might not have broken it, we do own it, and it’s our collective responsibility now to do something about it.

Talking at conferences and ranting on Medium isn’t going to move the needle far when it comes to creating a system that responds to our present needs and has the potential to scale (even if for just a little while) to meet our future needs. But for once, I’m actually satisfied with having a simple conversation about the issue, because being honest and acknowledging reality is the first step toward us moving quickly to actually doing something about it.

Disclaimer: These are my views and do not represent those of my organization or any of our partners. I am solely responsible for my trouble making.

Natalie Anne Knowlton is a co-organizer of Denver Legal Hackers.

Follow Natalie on Twitter:@natalalleycat