The Impact of Counsel: an Analysis of Empirical Evidence

• Publication year: 2010
• Citation: Vol. 9 No. 1

§ Fall/ Winter 2010-#3. The Impact of Counsel: An Analysis of Empirical Evidence

Washington Seattle Journal For Social Justice
Volume 9, No. 1
Fall/ Winter 2010

The Impact of Counsel: An Analysis of Empirical Evidence

Rebecca L. Sandefur(fn1)

Introduction

In this article, I provide three lenses on empirical evidence about the American public's experience with civil justice problems: the depth of public experience, the scope of public experience, and the impact of counsel on public experience. The analysis of empirical evidence reveals a fundamental problem with traditional U.S. thinking and policy concerning access to justice: both are too narrowly focused on law and formal legal institutions. To move forward, we need both new understanding and new policies. New understanding comes from viewing justice problems from the public's perspective. New policies should include providing effective, accessible, nonlegal routes to solutions for common and significant civil justice problems; these routes will be a necessary complement to the traditional solution of more access to law.

The first two sections of this paper assess empirical evidence about how frequently Americans encounter civil justice problems and how these problems affect them and society at large. Millions of Americans are currently experiencing significant civil justice problems.(fn2) Such troubles are common and widespread, and their impact both on the people who experience them and the public as a whole can be deep and long lasting.(fn3) This article's third section reviews evidence about how lawyers affect public experience with civil justice problems, focusing particularly on how lawyer representation changes the outcomes of adjudicated civil cases. Most Americans' civil justice problems are never taken to lawyers for advice nor are they pursued in courts or tribunals.(fn4) When justice problems do become cases that are adjudicated, many people appear without attorneys.(fn5) When people are represented by attorneys, they are, on average, more likely to win in adjudication than are people who are unrepresented.(fn6) But how much more likely varies greatly; the observed difference in case outcomes between attorney-represented and unrepresented members of the public varies widely across different kinds of civil justice problems and different studies of lawyers' impact.(fn7) One factor that seems to shape variation in the magnitude of lawyers' impact is procedural complexity-the complexity of the documents and procedures necessary to pursue a justice problem as a court case appears to account for some of lawyers' effect on case outcomes.(fn8)

Taken together, these findings support some traditional calls for reform, but they also suggest innovative avenues through which the United States might expand access to justice. Observers have advocated perennially for greater access to law-more access to counsel and simplified procedures that would allow ordinary people to pursue civil cases without legal representation. These traditional routes to expanding access to justice are clearly indicated. However, they will not go far enough. The solution is not more of the same; it is, rather, something new entirely. Our typical ways of conceptualizing people's experiences with civil justice problems focus too narrowly on law. Stepping back to look at the whole canvas of public experience with civil justice problems reveals that we need not merely additional access to law, but also more creativity in thinking about access to justice.

I. The Depth of Civil Justice Problems' Impact

For many members of the American public, civil justice problems emerge "at the intersection of civil law and everyday adversity."(fn9) These problems can involve family relationships, work, money, insurance, pensions, wages, benefits, housing, and property-to name just a few areas of contemporary life. Though these different types of problems affect different aspects of peoples' lives and concern different kinds of relationships, they share a certain important quality: they are problems that have civil legal aspects, raise civil legal issues, and have consequences shaped by civil law, even though the people who experience them may never think of them as "legal" and may never attempt to use law to try to resolve them.(fn10) Such problems are both common, as I will describe in the next section,(fn11) and impactful, as I illustrate in this one.

A clear image of the depth of impact of civil justice problems is provided by allowing members of the public to speak for themselves about their own experiences. I tell a single story here, but it represents many. It comes from a series of focus groups that I conducted in two midsize cities in the Midwestern region of the United States during the autumns of 2005 and 2007. Participants in these groups were randomly selected to be invited to spend a couple of hours on a weeknight in a library or community center meeting room to discuss "problems facing American families today." The first exercise in the focus groups was to go around the room and ask each person to tell a story about a problem that he or she had experienced in any of a variety of different arenas including with housing, finances, bills, child support, divorce, and the like. The focus group facilitator and I made no mention of the fact that the study was about civil justice problems or law; we simply asked people to tell us about problems they were having.(fn12)

countless aspects of life in contemporary market democracies are shaped by civil law, so it will come as no surprise that a substantial proportion of everyday problems that people in the focus groups described were civil justice problems.(fn13) By this, I do not mean that people thought of these problems as "legal" problems-they typically did not-nor that these problems were necessarily best resolved through law. Rather, these problems raised civil legal issues, had civil legal aspects, and had consequences shaped by civil law, as the story I am about to recount illustrates.

This account was related by a woman in her mid-thirties. Though she earned too much to meet the means-tested requirements for Legal Services Corporation (LSC)-funded civil legal aid (an income less than 125 percent of the federal poverty level), her family's income was still low in relative terms-less than 80 percent of her county's median income.(fn14) As we sat in plastic chairs around a slightly sticky table in the small community center's classroom, drinking soda and eating cheese crackers and oatmeal cookies, this is the story that she told:

About five years ago, I used to pay insurance. I used to pay about $300 of insurance for my kids and then my kids weren't going to the doctor, so I decided I was going to take them off insurance and go on [Community Care, her state's insurance program for low-income children]. Well, right as I almost qualified for [Community Care], my thirteen-year-old got killed. So then, he didn't have no health insurance and neither did my fifteen-year old, who also got shot.

So then that leads back down here to collections and [the hospital] wants me to pay for it. And I keep telling them, "I'm not paying for that." So they want me to get a loan so that I can pay for it. So what I did was go back to the district attorney's office and see if the people who killed my son, pay for it. But since they're in prison, it's going to be on my credit forever. So that causes me a lot of pain because I can't even look at buying a house. Because they want me to pay for it and wait until the money trickles, you know, from here to thirty years. . . .

This is a particularly tragic account of experience with civil justice problems. It is not unique, however. As with many situations people described in the focus groups, here, an initial problem triggered a series of problems that would affect the lives of those involved for many years to come. Significant civil justice problems and the consequences they create are neither exceptional nor unusual.(fn15) Civil justice problems can have a wide-ranging and deep impact, not only on the people who experience them, but also on the societies in which these people live, both as illustrated above and as documented in research based on large, national population surveys.

Scholars working with the England and Wales Civil and Social Justice Surveys have found that people's experiences with civil justice problems can lead to physical health problems, mental health problems, the breakdown of family relationships, loss of housing, lost employment, and lost income-among other adverse consequences.(fn16) An initial civil justice problem can thus cascade into a shower of problems, some related to civil law and others not.(fn17)

The impact of civil justice problems is borne not only by the people who experience them but also by society at large. Research in the United Kingdom reveals that the adverse health consequences of civil justice problems can lead to increased public expenditures on the provision of medical services.(fn18) It also shows that lost employment as a consequence of civil justice problems can lead to increased expenditures on public benefits.(fn19) It further documents that, while some people who lose their housing as a result of civil justice problems are able to find new shelter, others are not and so must stay in temporary accommodation, some of which is publicly...