Between access to counsel and access to justice: a psychological perspective.

• Author: Zimerman, Nourit
• Position: 2008 ABA Section of Litigation Access to Justice Symposium

Introduction I. Background: Unrepresented Litigants in a Lawyer-Dominated Environment II. The Subjective Experience of Litigants: Empirical Findings to Date A. Procedural Justice Criteria: Voice, Representation, and Participation B. Voice in Direct and Indirect Participation C. Does it Matter to People if They Have a Lawyer and in What Ways? D. Does it Matter if People are Denied Access to a Lawyer? Conclusion A. The Denial of Access to the Courts B. The Psychology of Representation C. Potential Changes in the Legal System INTRODUCTION

"Access to justice" is a broad term that can be defined in different ways. In this volume alone we find different contributions which present different views of access to justice, and different answers to central normative questions concerning access to justice, such as how much access is appropriate, access to what exactly or access by whom. The movement to increase access to justice has likewise taken different directions, including the development of less formal forms of dispute resolution, simplification of legal processes, and the progress of in-court assistance to unrepresented litigants. Yet, traditionally, and for the most part, increasing access to justice has been related to increased access to legal counsel. (1) Having access to representation by an attorney is considered a central means to increase individuals' access to justice, i.e., access to legal institutions or to legal solutions to their problems. The ABA's current proposal to institutionalize a right to counsel in certain civil cases continues this traditional movement. It offers to deal with access problems by making legal services more accessible for greater parts of society and by framing access to counsel as an entitlement in more types of cases.

This paper is written as part of the discussion around the Bar's proposal. (2) This conversation, we believe, presents an important opportunity to use empirical knowledge in order to revisit and explore anew some of the basic assumptions and features of the American legal system--features that are reflected in the proposal itself. In particular, we wish to focus on the equation between access to counsel and access to justice and the realities and difficulties faced by laypeople within the legal process.

The primary purpose of this paper is to explore a psychological perspective on some of the issues concerning access to justice in civil litigation. This is an attempt to present what the existing literature, as well as additional suggested research, can and should teach us about the psychological aspects of the access challenge in civil litigation and about the needs concerning the expansion of the right to counsel to civil cases. Hopefully, the psychological point of view will enrich the discussion around the bar's proposal by focusing on the subjective experiences of represented and unrepresented litigants within the legal system. We will present a discussion that is based on needs rather than rights, on the subjective perceptions of individuals rather than objective, and normative evaluations concerning the value of representation. We are interested in the way individuals perceive the concept of "access", and to what degree they actually feel they have gained, or been denied, access to justice and under which specific circumstances. The values we will discuss are those procedural values that individuals identify with legal procedures that are fair and satisfactory. Public views, we believe, are one factor that needs to be considered when thinking about policy change.

The bar's proposal is obviously an important step towards increasing many individuals' access to legal representation and to the courts. This is particularly essential in view of the centrality of professionals in the American system--a centrality that disadvantages pro se litigants within the court system. Yet, we will try to go beyond these obvious observations to provide a thicker understanding of the mixed psychological values that are attached to representation, direct participation or access to justice more generally.

Looking into the pro se phenomenon, this paper will explore the lessons that can be learned from the experiences of the many individuals representing themselves in the American legal system today. These lessons apply not only to the needs of this specific group (which is the target of the bar's reform), but may illustrate more generally the centrality of lawyers in the American legal system, and how the advice of counsel, or lack thereof, influences those operating within the court system.

Pragmatically speaking, looking at the bar's proposal, it is the group that is currently denied access to lawyers, but which would have them under the proposed reform that is of the greatest interest here. We can ask how the experiences and evaluations of this group would change if their access to lawyers improved. The change might involve a greater likelihood that they would bring their problems to court and also the possibility that, in court, their experiences and outcomes would be different. For example, these experiences might be more positive because of the support of a professional attorney or, the representation by an attorney might carry some psychological drawbacks since it requires one to give up on the opportunity for direct participation.

Our interest in this paper will go beyond this specific group of self-represented litigants to try to understand better the procedural values that matter to people and how they are related to having or not having professional legal representation. We would distinguish several questions: The first is whether, and in what ways, having a lawyer or not having a lawyer influences the experiences of lay people operating within the legal system, their evaluations of the process and the system, and of the outcomes obtained by them. Reading the procedural justice literature we will ask how representation, or the lack thereof, is related to the procedural aspects identified by individuals as fair and just.

The second question is whether, and to what degree, having or being denied access to counsel influences one's decision to take a problem into court (in cases in which a person might have either a legitimate legal claim or a frivolous claim).

The third question is whether feeling that one is denied access to a lawyer and/or to court due to the inability to have legal representation has an influence upon non-lawyers. What are the consequences when people feel that they are unable to obtain access to counsel? Do people who have access to counsel necessarily use counsel, and how do people feel when they have access to counsel but decide not to use it?

And finally, irrespective of why people do not have counsel, what can we say about the pro se experience and what can we learn from the ways in which non-lawyers and legal actors interact within the legal system.

In the first part of the paper we will present and discuss the legal background and legal challenges presented by the pro se phenomenon, the centrality of lawyers, and the connection between access to counsel and access to justice in the American legal system. The second part is devoted to a review and analysis of the empirical work on the questions we presented above. We then close with some conclusions drawn from the existing data as well as a proposal for additional research.

1. BACKGROUND: UNREPRESENTED LITIGANTS IN A LAWYER-DOMINATED ENVIRONMENT

   The American legal system relies heavily on the representation of litigants by lawyers in court procedures. Even more than other western legal systems, the American system is lawyer-dominated. (3) At the heart of its procedures, it posits the lawyer, (4) a professional trained to bring her client's voice and interests before the court. Within this legal scheme, lawyers serve both litigants and the system. They serve the litigants by bringing legal expertise and case management experience to bear on a particular case. They therefore provide a professional service that is believed to significantly increase the chances of winning in a system that treats dispute resolution in an adversarial setting in which the best litigator wins. (5) At the same time, the work of lawyers serves the basic structure of the adversary system, (6) allowing judges to preserve a passive role and sparing them the potential complexities of dealing with unprofessional litigants who are not invested in long-term relations with other legal actors that motivate people to adhere to rules of appropriate conduct when dealing with legal authorities.

   The American legal system ascribes great importance to the right of individuals to participate in legal procedures, and to have their "day in court." (7) Yet, as lawyers develop a greater role in the system, the legal process becomes more professionalized and complex and, when the procedural design assumes representation, the ability of individuals to actually proceed successfully without an attorney, or to directly participate when they do have an attorney, diminishes.

   From here follows the equation between access to counsel and access to justice: being represented by an attorney is considered a central requirement for meaningful access to the American justice system. Moreover, representation by a lawyer in itself has gradually been thought of as an essential aspect of due process rights and the right of participation in legal procedures. As noted by the Supreme Court, "'[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." (8) Therefore, while the ideal of participation in legal proceedings can be interpreted and implemented in different ways, (9) this position reflects the way in which the traditional, and dominant, view ended up interpreting it as being truly achieved only through representation by a professional.

   In reality though, despite the centrality...