Access to Justice: The Emerging Consensus and Some Questions and Implications

Article excerpt

An emerging consensus about how to solve the access to justice problem is laying the groundwork for dramatic progress in the next few years, notwithstanding the dire economic crisis facing federal, state, and local governments.

In the media there is often a fatalistic - if dramatic - attitude to the feasibility of solving the overall access to justice problem. Appalling statistics on access are combined with dramatic stories showing the dire consequences of lack of access and with news of new budget crises to paint a picture of an insoluble problem overwhelming heroic advocates. The story is all about the urgent need for more money, and all too rarely about the more comprehensive innovations that might transcend these dynamics.

But the good, and not often recognized, news is that there is now a broad emerging general operational consensus (used here in the sense of a "common basis for moving forward")1 within the relevant legal community - courts, bar, and legal aid - about the approaches needed for a comprehensive solution. The four key elements of the consensus - court simplification and sendees, bar flexibility, legal aid efficiency and availability, and systems of triage and assignment, are drawn from the practical challenges that the constituencies face in doing their jobs, from the experiments that each has shaped in an attempt to respond to those challenges, and from the work that the members of the constituencies have done to help each other in these experiments.

This practical general consensus is reflected in the perspectives of the national leadership of the main segments of the community as well as those of the access to justice commissions now in place by court order or similar process in about half the states. Of course, actual views vary within the different segments of the justice community. It is encouraging, however, that the clearest support for the elements of the consensus tends to come from the portion of the community most responsible for implementing the changes. It is from the courts, for example, that the focus on court reengineering has come.

That the elements of consensus have grown from shared experience is one reason that improvements in one part of the system support and multiply the effect of changes in other parts. For example, reducing costs of litigation by making changes in the courts means both that fewer people need counsel to obtain access and that the cost of access to counsel when needed is reduced.2 More generally one study found that up to $3 in court spending Were saved by expenditures on self-represented services.3

It is particularly encouraging that this consensus is becoming clear in the moment of opportunity created by the fact that, for the first time, there is an entity within the U.S. Department of Justice tasked with addressing access to justice problems,4 and that both the Legal Services Corporation and the State Justice Institute have new boards of directors Open to a common direction.

Overview of the consensus

While any attempt to summarize the highly complicated interplay of views of a wide range of interested stakeholders is risky at best, virtually all constituencies recognize that the solution to the access to justice crisis rests on achieving improvement in three areas- - although few have explicitly adopted all of them as a package, and almost all might differ with particular details.

Court simplification and services. Courts must become institutions that are easy-to-access, regardless of whether the litigant has a lawyer. This can be made possible by the reconsideration and simplification of how the court operates, and by the provision of informational access services and tools to those who must navigate its procedures.

Bar service innovation. The bar must, through the expansion of flexible services such as discrete task representation and pro bono, continue to become more cost effective and innovative in reaching and providing access services to both poor and middle income households. …