If we don't get civil Gideon: trying to make the best of the civil-justice market.

• Author: Rowe, Thomas D., Jr.
• Position: 2008 ABA Section of Litigation Access to Justice Symposium

Several years ago I served as board president of the Legal Services Corporation affiliate for Durham and some neighboring North Carolina counties. Before going to a national conference of legal-services providers for the indigent, I noticed on the program a panel about market approaches; out of interests both academic and practical, I signed up. But for reasons unknown to me that was the only panel, or one of very few, that got scrubbed.

During my service it became clear to me how unlikely it is, I would guess even with a more liberal President and Congress, that leading sources of civil legal services for those unable to afford them--such as public subsidy, pro bono, and law-school clinics--will ever fill more than a modest or moderate fraction of the perceived needs. (1) Much of my academic work has treated various aspects of civil-justice reform, often dealing with attorney-fee shifting (2) and more broadly with civil-litigation incentives. (3) This symposium lets me try, by drawing on my experiences with legal services and prior scholarly work, to broaden my focus and consider what market oriented or market-regulation approaches might be most practical and helpful in trying to satisfy unmet civil legal-service needs (4)--and to think about how much it appears that such approaches may be able to succeed in doing so. To the extent that they likely cannot, that raises the urgency of pursuing the likes of civil-Gideon efforts (5) and public-subsidy increases.

I come from this angle not because of an ideological commitment to market approaches, nor am I suggesting unmixed reliance on the market. Indeed, I'd favor more public funding for, and pro bono provision of, civil legal services for the needy. (6) Rather, I start from the premise, accepted with some reluctance, that we are not likely to come close to filling the gaps, much less adopt a quite different approach for civil legal services-say, a broad civil version of Gideon v. Wainwright (7)--like the sometimes-advocated single payer for medical care that would radically alter the calculus. We therefore face a situation with characteristics like those that the Nobel-winning economist Kenneth Arrow identified several decades ago as distinguishing medical care from many other markets, which seem to apply as well to the civil-legal-services sector: service demand that is (sometimes) irregular and unpredictable; service supply influenced not just by buyers' wishes but by suppliers' professional judgment of clients' needs, along with frequent informational asymmetry between provider and client about needs for, and likely consequences of, legal services; and limits, from educational and licensing requirements, on market entry of providers. (8)

This background sets the stage for an inquiry into ways of trying to make the best of the civil-justice market to move toward optimal access to civil justice for all. "Optimal," of course, is a key modifier and is not the same as "maximum," for other values and factors including sheer costs in a setting of finite-resource tradeoffs call for attention. Also significant is the need for screening of weak claims and defenses: whatever the emphases of access proponents and litigation-explosion alarmists, both weak nuisance claims that are brought for their settlement value and their perhaps too-often-overlooked flip side--obdurate defense against meritorious claims--strike me as legitimate concerns. So does the need to try to protect consumers of legal services from exploitation and incompetence. We also cannot overlook the factors of concerns for professionalism and the abiding existence of a considerable degree of self-regulation by the bar.

Three final preliminary points are the limits on how much new ground I can break; the importance of disaggregating the types of unmet needs for civil legal services; and the distinction between litigation and transactional needs. First, the market-oriented approaches that hold some promise have received considerable discussion in existing literature, on which I draw without purporting to add much. The main function of this essay can thus be bringing together in one place, and highlighting, the leading possibilities. Second, as to disaggregating types of unmet needs: the moderate-sized damage claim that is not worth a lawyer pursuing for a contingent percentage fee is one thing, and may respond to a fee-shifting measure that would give little or no help, say, to an indigent parent not near going to court yet but seeking school-accommodation measures or medicine for a learning-disabled or asthmatic child, or to someone in early stages of a landlord-tenant dispute over housing conditions. Such distinctions can clarify whether various kinds of unmet legal needs seem more or less amenable to market-oriented approaches--and to the extent that they may not be, the possible need to push for greater public funding.

Third, as for the litigation-transactional difference, of course the focus of this symposium is on access to legal representation in civil litigation. Still, it seems useful to address both aspects. Measures that may help with both, or primarily on the transactional side, are likely to be efficiency improvements that lower the cost of legal services, such as nonlawyer representation, "unbundled" legal services that involve less than full lawyer participation and partial self-representation, and Web-based legal information or computerized expert systems. For litigation--in civil court cases and in administrative proceedings--fee-shifting policy changes might offer considerable help, particularly but not exclusively on the plaintiffs' side. (9) The obstacles to the market-oriented changes needed to assure greater access may be mainly political (as they are with greater public funding), in that resistance to the likes of primarily one-way pro-prevailing-plaintiff fee shifting would probably be substantial. Further, market-oriented approaches requiring legislation would likely require changes primarily in state law, meaning that a single federal law could not do the trick even if Congress were favorably inclined.

One starting point, for both...