Examining the real demand for legal services.

• Author: Kritzer, Herbert M.
• Position: 2008 ABA Section of Litigation Access to Justice Symposium

Introduction I. What Can We Figure Out Using Extant Studies? A. The Detroit Area Study B. American Bar Foundation Legal Needs Study C. The Civil Litigation Research Project Study D. Later Studies II. Implications A. The Need for a Baseline B. The Need for More Specific Justifications for Legal Assistance Conclusion INTRODUCTION

Over the last quarter century (through 2008), at least twenty-six states plus the District of Columbia have seen investigations of legal needs of low and/or modest income citizens. (1) Some of these investigations were undertaken at the initiative of state bars; some were undertaken by or at the request of each state's highest court; and some were undertaken by ad hoc groups concerned about access to justice. The findings are remarkably consistent: for the vast majority of legal problems or legal needs of low income households, and only slightly fewer of the needs of moderate income households, no one from the household obtained the advice or assistance of an attorney. In the words of the 2003 report on civil legal needs in Washington state, "[l]ow-income people face eighty-eight percent of their legal problems without help from an attorney." (2)

This is a shocking figure. It calls for a response. It calls for action. If only 15% of persons of low income get legal assistance when they have a legal problem, there must be a problem. It seems self-evident that the problem must be that the vast majority of persons of low income cannot afford to get the legal assistance that they need. It also seems self-evident that measures are needed to obtain legal assistance, normally taken to mean the services of an attorney (at least in the United States), (3) to literally the millions of people of low (and modest) income who do not have the resources to hire a lawyer. The legal profession needs to step up to the plate. The government (which really means the taxpayer) needs to step up to the plate. Law schools need to step up to the plate. The game is the affordability of legal services, or so we are told over and over by bar leaders, legal needs task forces, and prominent scholars. (4) But is affordability really the central issue?

Respondents in legal needs studies have often been asked why they did not obtain the assistance of a lawyer. Only a small minority specifically mention concerns about costs. For example, the American Bar Association Comprehensive Legal Needs Study ("ABA Study") found that only 16% of low-income respondents and 8% of moderate-income respondents cited "cost concerns." (5) The Washington state study found that 22% of its respondents "were worried about cost" in deciding not to obtain assistance. (6) The Oregon study found that only 11% of its respondents mentioned "worried about cost[s]" as among the reasons for not obtaining a lawyer's help. (7) Across the various studies, other factors, ranging from fatalism (e.g., "nothing could be done"), through self-help (e.g., "I was able to handle it myself"), to not recognizing the legal element of the problem or issue, tended to be mentioned more often than cost. What if the issue for most people, low income or otherwise, really is not cost? Or, what if cost is just as much an issue for those who could afford at least some legal assistance but choose to make a reasoned cost-benefit judgment? What if 85% of those in the top 20% income bracket are no more likely to turn to lawyers than are those in the bottom 20% bracket?

While the 85% figure (or whatever figure a particular legal needs study comes up with) is impressive, it is, as described in Darrell Huffs classic book, How to Lie with Statistics, "a semi-attached figure." (8) Specifically, against what are we to judge a particular statistic or figure? Huff gives the example: "Four times more fatalities occur at 7 p.m. than at 7 a.m." (9) The implication is that it is safer to be on the road at 7 a.m. than at 7 p.m. What is not stated, but you may have guessed, is that many more people are on the road at 7 p.m. than at 7 a.m., and it may well be that traffic is four times as heavy at 7 p.m. than at 7 a.m.

Eighty-five percent is impressive because of what amounts to an implicit base of comparison: everyone should always get legal assistance when a legal problem arises. We would never say that everyone should always get medical attention when a medical problem arises. We do not go to see a doctor (or nurse practitioner or physician's assistant) every time we have a cold or we stub--and possibly break--a toe ("take aspirin; it will heal by itself' is the usual response to the toe). We need to put the number of unmet legal needs of any particular group into perspective. A complication is that, as with medical or health needs, all unmet legal needs are not equal, and the nature of legal needs vary by a variety of demographic factors including income.

The earliest legal needs studies done in the United States tended to conduct surveys of the entire population rather than zeroing in on low or low and moderate income groups. (10) More recent studies have almost always surveyed only those falling into a single category labeled "low income" or into two categories, "low income" or "moderate income," including the 1994 ABA Study. (11) Importantly, the combination of "low" and "moderate" income accounted for approximately 80% of the population. That is, often only the top income quintile was excluded from the survey. (12) Including the top quintile would have had relatively little effect on the overall cost of the surveys (13) and the responses from the top quintile would provide a useful base of comparison. (14)

1. WHAT CAN WE FIGURE OUT USING EXTANT STUDIES?

   While common sense seems to say that income should be a major factor in the decision to use a lawyer, there are some U.S. studies from the 1960s and 1970s that call that common sense into question. Crucial in these studies is controlling for the type of legal problem involved. A variety of research has demonstrated that whether legal advice is sought depends very heavily on the nature of the problem at issue, (15) and the decision to seek legal assistance is part of that response. Some of the overall difference in lawyer use as a function of income reflects the different types of problems those with lower incomes frequently experience, as compared to those with higher incomes.

   1. The Detroit Area Study

      The first study providing useful information is part of a University of Michigan series of surveys known as the Detroit Area Studies. (16) Mayhew and Reiss drew on the 1967 Detroit Area Study to produce evidence that the major factor in decisions to seek legal assistance is the social context of the problem. (17) More specifically, it is the type of problem, not the characteristics of the person having the problem, that is the major predictor of lawyer seeking. (18) Figure 1 uses results reported by Mayhew and Reiss to illustrate this pattern, and to show that once you control for type of problem there is not a consistent pattern showing that income is related to using a lawyer. (19) For a number of types of problems, the highest income group was the most likely to employ a lawyer; however, most of those problems were such that a cost-benefit analysis would make the expenditure on a lawyer more likely for those with higher incomes (and hence more assets)...