The Need
In their 2007 study Legal Services Corporation described a national “Justice Gap.” The study confirm(ed) “the existence of a major gap between the legal needs of low-income people and the legal help that they receive. … Only a very small percentage of the legal problems experienced by low-income people (one in five or less) are addressed with the assistance of either a private attorney (pro bono or paid) or a legal aid lawyer" (Documenting the Justice Gap in America, Legal Services Corporation, 2007).
A comparable study by Professor Greg Casey of UMC for Legal Services in Missouri found that more than 63,000 low-income households each year have at least one legal problem needing an attorney and more than 47,000 (75 percent) do not receive an attorney’s help. Note: The 47,000 does not count persons who where outside of Legal Services eligibility. The simple fact is there is a great need to address the problem of access to justice for many needy households.
The state of Indiana did a comprehensive study of the legal needs of the poor. They found, "The insufficient number of pro bono and public service attorneys representing the poor in comparison to the need for legal assistance was a theme throughout the responses to the various surveys, questionnaires, and focus groups making up the study" (Unequal Access to Justice).
The recent economic downturn has increased the need of the poor for legal help (Civil Legal Services: Low-Income Clients Have Nowhere to Turn Amid the Economic Crisis, Brennan Center for Justice 2010).
Statistics, while helpful, do not put a human face on those injured by lack of access to justice. As a judge, you know from your own experience in the courtroom each day the number of parties who are unable to afford legal representation and the problems this adds to their lives, the workload of the courts and the efficient administration of justice. For examples from real cases see "Who are the Needy?"
The person seeking but lacking access to justice is only the beginning of a chain of negative events for families, neighbors and society.
| The consequences of inadequate access to the courts affect not just the individuals directly involved, but also society as large. When families are evicted from their homes because they cannot obtain counsel in a housing proceeding, for example, their resultant homelessness costs taxpayers in the form of public services. In New York City, the average cost of sheltering a single homeless adult is $23,000 annually - far more than providing counsel to prevent an eviction. Medical and other costs rise, too, when individuals, particularly senior citizens, lose their homes because they lack access to a lawyer. When victims of domestic violence are unable to obtain help, the health care, criminal justice and social welfare systems bear the strain. Employers, too, suffer from decreased productivity and increased absenteeism. Many of these societal costs could be ameliorated if low-income individuals had access to counsel to assist them in resolving their legal problems. - Access to Justice: Opening the Courthouse Door, p. 6, David Udell and Rebekah Diller, Brennan Center for Justice at New York University School of Law (2007) |
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The pro se problem: The increasing number of pro se litigants is burdening the court system as well as worsening outcomes for the pro se litigants. This year the Coalition for Justice, an arm of the ABA that focuses on access to the courts, conducted a survey of about 1,000 judges. The judges were asked to compare representation in their courts in 2009 to representation in previous years. Sixty percent of judges said fewer parties had lawyers, while 3 percent said representation had increased. The rest said they saw no change.
Asked how the lack of representation affects the parties, 62 percent of all judges said the outcomes are worse for a litigant when he represents himself, while 3 percent said they were better. The rest said there was no impact. The judges who saw worse outcomes said the most common problems for pro se litigants are failure to present necessary evidence, procedural errors, ineffective witness examination and failure to object to evidence properly.
Announcing the survey results, ABA President Carolyn Lamm said that lack of representation causes problems for the rest of the court system by, among other things, consuming more of judges' time. "Parties not being represented in fact delays the proceedings in the court," Lamm said. "They slow down the ability of the court to hear cases" (ABA Announcement, July 15, 2010). Lawyers seeking trial settings and other court action find their cases delayed by the time taken with pro se litigants.
Pro se litigants create a "catch-22" for judges and clerks. If the litigant is doing something wrong, the court can do little to help since they cannot practice law and must be neutral. The result is a disgruntled litigant who often believes the court system failed him or her. In circuits where judges are elected, he or she is also a disgruntled voter. Being able to refer such litigants to a pro bono program solves the "catch-22" situation.
In short, the need is not only that of the low-income litigant but also of the judges, clerks and lawyers. More pro bono representation will benefit all.
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