Because of these barriers, effective access to the courts often depends upon legal representation.  Yet legal representation is unaffordable and, as a practical matter, unavailable to consumers in small stakes cases.  There is no right to legal representation in civil matters (as there is in criminal matters).  Unless the amount in controversy is enough to support contingent fee arrangements, the consumer must bear the costs of representation.  Sometimes, the amount in controversy may be dwarfed by the costs of such representation, making the costs of dispute resolution so high that the consumer is forced to “lump it.”  Moreover, most individuals simply cannot afford legal representation.  As noted in The 2020 Report,

“For many, legal representation is unaffordable.  Nationally, it is estimated that less than 20 percent of the legal needs of the poor are being met.  In California – based on Census Bureau estimates of poverty levels and American Bar Association estimates of unmet legal needs – it is estimated that only 15.2 percent of the legal needs of the poor were met in 1990.  More than 2 million legal problems went unaddressed.”  The 2020 Report, p. 64.

Legal representation for many consumers is provided by public interest clinics, many of which are funded by the Legal Services Corporation or state IOLTA funds, or are operated as part of a law school’s clinical program.  However, the funds available for such programs have never matched the need.  In recent years, Congress has slashed funding for federally supported legal service agencies.  IOLTA funds are threatened by recent court decisions holding that such programs may violate the Takings Clause.

According to recent surveys, a majority of Americans who have legal problems do not use the public court system to resolve their problems because of the perceived complexity and cost of the system and because of a distrust of players in the system.  Two-thirds of Americans say that the justice system is not affordable.  Eight-five percent of those Americans attribute excessive cost to attorneys, and fifty percent attribute excessive cost to complexity.  There is also widespread distrust of lawyers, who consistently rank near the bottom of professions in terms of public trust.  Access to justice is foreclosed as a practical matter by a system that emphasizes the resolution of problems or disputes through the assertion of legal rights, and then channels the assertion of those rights into a costly and complex court system that is designed for lawyers and not for unrepresented litigants.

This lack of access is particularly troublesome because consumers’ legal needs often relate to the basic necessities of life.  A study by New York’s Marrero Committee concluded that the poor often live in such desperate circumstances that

“[t]heir needs for legal services are not in any sense optional but rather deal with access to essentials of life: shelter, minimum levels of income and entitlements, unemployment compensation, disability allowances, child support, education, matrimonial relief, and health care.”  Committee to Improve the Availability of Legal Services, Final Report to the Chief Judge of the State of New York, 19 Hofstra Law Review 771 (1991).

A New Brand of Civil Justice Reform

Civil justice reform in the United States has generally focused on reducing cost and delay in court processes, primarily by encouraging judges to exercise greater control over the process and attorneys in the process.  This approach assumes that the underlying system – a system which emphasizes the assertion of legal rights – need not be changed in order to achieve substantial cost savings and delay reduction.

However, this approach to civil justice reform does very little or nothing for unrepresented litigants since this type of civil justice reform is still premised upon a traditional approach to resolving disputes (i.e., the assertion of legal rights).  Other countries have taken a different, more “market oriented” approach which reexamines the fundamental bases for resolving individual consumer cases (i.e., cases not involving a business litigant).  A market oriented approach seeks to understand what consumers really want from a dispute resolution system and to design a dispute resolution system from the ground up to satisfy consumer demand.

Substantial research supports the hypothesis that ordinary consumers want an effective and timely resolution of disputes in a procedurally satisfactory way.  A resolution that is strictly consistent with applicable rules of law is, in this view, less important than a resolution that is final, cost effective, and fair.

How Technology Can Facilitate Access

Five years ago, proposals for using technology to provide nearly universal public access to government institutions, such as the courts, were properly labeled as futuristic.  The basic telecommunications infrastructure was simply not in place.  That is no longer true.  In the last four years, we have seen quantum leaps forward in computer and communication technologies.  Desktop computers now have processing power and data storage capacity equivalent to that possessed by mainframe computers from as little as twenty years ago.  With the wholesale adoption of a windows-based environment, there is an increasing convergence in the look and feel of major software programs.  The combination of increased computing power, advances in data transmission, and attractive graphics interfaces resulted in an explosion of Internet use, whetting the public’s appetite for greater access to government information (an appetite that many government agencies are responding to with thousands of web sites) and conditioning the public to expect government to make efficient use of information technology.

The ability of technology to increase consumers’ access to the courts and other government agencies is a reality that is taking place today, not tomorrow, and the transformation is revolutionary.  As explained in the Smart Communities Guidebook--January 1997, p. 11 (International Center for Communications, San Diego State University):

“The effect of these technological changes on life and business in California’s communities can hardly be overstated.  With the roll-out of cable modems and other high-speed point-to-point telecommunications networks slated to begin in many communities early this year, it soon will be possible for every local government agency, every business, every educational institution, and every civic organization in a growing number of locations to communicate, directly and personally, with community residents in their homes and businesses--24 hours a day--over the ubiquitous television set.”

In only a few years time, the Internet will be available to anyone who owns a television set equipped with a smart box and connected to a cable service.  For those who do not purchase a smart box, public access will be available through sites established at public agencies such as libraries.  The infrastructure will be in place.  But in order to give the public and consumers greater access to the courts, we need to develop consumer-friendly portals to the courts.

Project Outline

The project will proceed in three phases:

(1) Redefining the objectives of judicial processes.

The objectives of the judicial process should match what consumers want and need, not what lawyers and judges want and need.  The system needs to be redefined from traditional adjudication (i.e., find the facts, determine the applicable law, apply the law to the facts, and come to conclusion) to a process designed to effectively resolve a dispute in a timely manner that satisfies the unrepresented parties.

(2) Re-engineering judicial processes in light of redefined objectives.

In light of the market-oriented objectives explored in (1), the project will examine selected areas of law where there are substantial numbers of self-represented individual litigants (e.g., small claims, landlord-tenant, and family law) in order to re-engineer those areas of law so that self-represented litigants can navigate the system to reach an effective, timely and satisfactory result.  The approach will be to build a system from the ground up, free from the constraints of the existing legal system, to satisfy the needs of the consumer.

(3) Creating technologically facilitated access systems.

Graphical user interfaces on the Internet will become the portal to the re-engineered system.  The project will sponsor the creation of demonstration sites in selected states to provide a basis for evaluating the project’s success.