Can technology bridge the justice gap?

• Author: Moss, Melissa A.
• Position: Special Issue: Technology & the Practice of Law

There is no question that technology has changed, and will continue to change, the practice of law and the process of lawyering. But could technology help bridge the justice gap for those who cannot afford attorneys? The answer seems to be "yes, but...."

(One) major challenge facing the access to justice movement: a service-delivery model that leaves 80 percent of the legal needs of low-income Americans unmet and turns away half or more of the people who actively seek legal aid. Accepting that status quo as the inevitable result of inadequate funding is complacency. We have to do better. In light of the realities we face, we need to rethink the goal of the access to justice movement. Is it to provide full representation for every client in every case? That is not realistic, and pursuing that goal at the expense of other alternatives is letting the perfect be the enemy of the good. The fact is that some assistance is better than no assistance. (1)

In August 2015, the national Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA) passed a resolution affirming their support for the aspirational goal of 100 percent access to effective assistance for essential civil legal needs ... including: expanded self-help services to litigants, new or modified court rules and processes that facilitate access, discrete task representation by counsel, increased pro bono assistance, effective use of technology, increased availability of legal aid services, enhanced language access services, and triage models to match specific needs to the appropriate level of services. (2)

The Justice Gap in America (3)

When trying to measure the extent to which the American legal system is meeting the legal needs of the general population, we look to several different information sources: 1) studies of the legal needs of the general population; 2) studies of the legal needs of low-income persons; and 3) the prevalence of persons appearing in court without legal representation. These different approaches lead to estimates that from 14 percent to 29 percent of Americans with civil legal problems (including 25 percent of defendants in nonfamily civil cases filed in court) involve the services of lawyers to assist them. (4)

* The Legal Needs of Low- and Middle-Income Persons--In September 2005, the federal Legal Services Corporation issued a comprehensive report, "Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans." A 2009 report updated the 2005 justice gap report. State level studies confirmed there continues to be a major gap between the civil legal needs of low-income people and the legal help that they receive. (5) The Legal Services Corporation reports that legal services organizations nationwide have the resources to meet only 20 percent of the civil legal needs of persons eligible for services under LSC guidelines. (6) State and national legal needs assessments consistently show that at least one in four persons in poverty have a legal problem each year. (7)

The 2014 census estimate shows Florida with a population of 19,893,293 and a poverty rate of 16.3 percent. (8) If one out of four of the projected 3,242,606 Floridians living in poverty has a legal issue each year, then more than 800,000 low-income Floridians (9) had a legal issue in a year when The Florida Bar Foundation funded nonprofit legal aid and pro bono programs closed just over 80,000 cases.

Certainly there are many who are not poor enough to qualify for free civil legal aid who are also unable to afford an attorney. Compared to families living in poverty, families in the struggling lower-middle class are more likely to be headed by a married couple, to have a second adult worker, and to be headed by an individual with some college education. However, those in the struggling lower-middle class still face many of the same challenges as those in poverty. (10) The direct and indirect cost of employees' unmet legal needs are also felt by businesses everywhere. (11)

* Self-Represented Litigants--Courts across the country have not consistently recorded the representation status of litigants. In a presentation to The Florida Bar in 2013, (12) consultant Jordan Furlong of Edge Consulting estimated that Americans at all income levels today obtain help from lawyers with only 15 percent of their civil legal problems. He also noted some national and international statistics: 80 percent of divorce cases in Florida include at least one pro se litigant; 80 to 85 percent of legal consumers in California are self-represented; 88 percent of Canadians chose a nonlawyer option to resolve their justiciable issues; 84 percent of legal needs of United Kingdom small businesses were resolved without lawyers.

The Maricopa County Superior Court in Phoenix, Arizona, has tracked the representation status of family cases since the early 1990s.

Recent data shows that 60 percent of family cases in that court have no lawyers; 30 percent have a lawyer on one side; and 10 percent have lawyers on both sides. (13)

In 2013, more than 1.8 million litigants were not represented by counsel in civil proceedings in New York's state courts. In New York City, 91 percent of petitioners and 92 percent of respondents do not have lawyers in child support matters in family court; 99 percent of tenants are unrepresented in eviction proceedings. In New York state, 87 percent of petitioners and 86 percent of respondents do not have lawyers in child support matters in family court; 91 percent of tenants are unrepresented in eviction proceedings. (14)

Anecdotal reports from other parts of the country show that 85 percent of all family law cases have at least one self-represented party. In many courts, 90 percent of parties in domestic violence restraining order matters are unrepresented. (15)

The notion of a court-based legal self-help center to provide information and resources to those without full legal representation was launched in the early 1990s in Maricopa County (Phoenix) Arizona. Twenty years later, the American Bar Association identified approximately 500 self-help centers around the country, of which 222 responded to an online survey with the following results: Nearly 3.7 million people are served by self-help centers annually and are focused on services for persons of limited resources. Most believed their customers would benefit from limited-scope representation, though only 38 percent of the centers provide information about such services and only 15 percent indicate that their community has a limited-scope lawyer referral service panel. (16)

* Low-Income Americans Can Use...