Between Access to Counsel and Access to Justice: A Psychological Perspective

By Zimerman, Nourit; Tyler, Tom R. | Fordham Urban Law Journal, February 2010 | Go to article overview

Between Access to Counsel and Access to Justice: A Psychological Perspective


Zimerman, Nourit, Tyler, Tom R., Fordham Urban Law Journal


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. …

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