Wednesday, June 17, 2009

Remodeling the Justice Gap

It's time to rethink how we bridge the gap between average americans and civil justice.

With the best will in the world, great genersity on the part of many people in the legal profession, and the investment of a lot of money, that gap has never been fully bridged. For example, in Washington State, it has been estimated for years that we need on the order of $25 million in funding to bridge the gap, yet funding has never reached half that. And in the current economic downturn, the gap grows larger while the resources shrink.

In business terms, our business model is not working well enough. This means that now is a good time to reconsider our project design. If what we are doing didn't solve the problem when our economy was flush with cash, it's not going to do so any time soon and, most likely, never can.

Therefore, we must change our business model. Our purpose is to close the justice gap.

What is the "Justice Gap"

The world is full of disputes. People have disagreements over land, rent, contracts, injuries and anything else you can think of. Our legal system tries to give people a place to work them out peacefully instead of a worse way.

Ideally, all legal disputes would be solved on the merits; each side would present their facts and match them to the law and the result would be fair (...although not necessarily to anyone's liking.) However, in practice, there is a big advantage in knowing how the rules work or even what they are. It's like any game; if you've never played before, you have a hard time winning if you're reading the rule book at the end of the round.

That's where lawyers and other legal professionals come in; their job is to know the rules and help everyone else work things out according to the rules. However, a great many people cannot afford legal professionals to help them, and as a result, their disputes may be resolved on a basis other than the merits.

The difference between the need of people for help in resolving their disputes under law and the resources available to do so. This is the Justice Gap.

Typically, the Justice Gap refers to civil matters, not criminal, since there is a constitutional requirement for legal help to criminal defendants. Whether that's adequate is another question.

Project Elements

  • Private law practice: By far the most common means is a free-enterprise system of legal professionals, offering their services for a fee, salary or some other arrangement;
  • Government (usually court-based) help: Courthouse facilitators and other employees offer some help, often very important in matters such as family law and protective orders;
  • Legal Aid groups: Organizations such as the Northwest Justice Project and Columbia Legal Services provide legal help; funding these is often a problem;
  • Pro Bono help: Many individuals and organizations provide free ("pro bono") help. A related concept is "Low Bono" - not free but at a discount to certain populations;
  • Charitable donations: Contributing cash and other resources help fund legal aid;
  • Resources helping people to help themselves: many resources support individuals in a civil legal conflict assist themselves, including standard forms, websites, some aspects of Public Legal Education, and so on;
  • Statutory Reform: Sometimes changing the law can make it easier for ordinary citizens to use it.


  • Scoping the Problem Itself: It is hard to calculate the amount of legal need. A study from the early 2000's set it at about 150 FTE (full-time equivalent lawyers). It seems likely that the need has increased with the increasing population and economic problems;
  • Resourcing Solutions: Much of Legal Aid is funding by IOLTA. This has never been an adequate source of funding; it has become grossly inadequate due to the economic downturn; and because it depends on inefficiencies in our banking system, it is destined never to be a sufficent sum of money
  • Private law practice: Costs money;
  • Government (usually court-based) help: Competes with every other government service; difficult to calculate ROI;
  • Legal Aid groups: Funding is a huge problem, especially in an economic downturn;
  • Pro Bono help: There just aren't enough available pro bono hours close the gap on its own; some administrative issues, e.g. malpractice coverage, training, matching clients with attorneys; getting appropriate help from other legal professionals, e.g. paralegals, legal secretaries; recruiting and managing volunteers;
  • Charitable donations: Competes with all other charitable needs;
  • Resources helping individuals help themselves: useful but limited;
  • Statutory Reform: Slow, difficult and frequently opposed by those who profit from the justice gap.
Summary: With the best will in the world, our current solutions to the justice gap cannot solve the problem.

This does not mean we should not continue with those efforts, and it definitely does not mean we should give up, but it does mean we need to look at some new ways of doing things.

Next Step
  • Re-model: Since we cannot succeed in closing justice gap by sticking with the current business model, we need a new business model.
  • Get Help: To get a new business model, we need people who are good at developing new business models. Any ideas as to who?
  • Stay Tuned: I'll add to this as I learn more. You comments are needed!

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