Lack of access to justice is a big deal these days in the legal world. For criminal defendants, the 6th Amendment provides a right to counsel, but it says nothing about the quality of that counsel. There are lots of innocent poor people in prison as a consequence. Regular people in civil courts are almost on our own, since few of us can afford a lawyer who’s not working on contingency. This is a real problem in a democracy where government is expected to respond to the needs of the people.
The fact of the matter is that courts are not responding to the needs of regular people for real justice. Last year, for the first time ever, all 50 states were ranked on providing basic access to the court system, and the results were not good. The Justice Index found that for every lawyer serving poor people, 40 were available to serve those who could afford them. Half the states provided no guidance for how judges should assist pro se litigants, despite laws requiring that assistance. And too many states still charge for the use of certified foreign language and sign language interpreters. We’ve covered efforts to address these failures in Florida and New York, but there are similar efforts across the country.
I think the courts are looking at this all wrong, from the top down rather than from the bottom up. That is, despite the hype about fairness, they’re filtering the needs of the people through the needs of the profession and the courts. It’s sort of like upholstering a seat cushion with a hammer because that’s the only tool you have nearby.
As a new company, we’ve been studying up on the lean startup methodology, which is a process of guessing at a business model, testing it on customers, using the feedback to build a better product and business model, wash, rinse, repeat and scale. Syncing the product-market fit is the secret of success. But it starts with truly understanding the customer’s problem.
That’s what missing from all the new initiatives to provide access to justice: a misunderstanding of the customer’s problem. And yes, government and nonprofits should be just as focused on delivering value as those of us in the business sector. The only difference is that businesses must show a profit and don’t have to serve everyone. But every successful organization has to properly identify the needs of the customer.
By and large, those in the legal profession believe the problem faced by the typical civil litigant is an inability to afford a lawyer. That’s not the problem. The problem is that one needs a lawyer to have any hope of gaining access to justice. Those task force members and commissioners looking to improve access to justice should take advice from Steve Blank, the father of the lean startup movement, who tells entrepreneurs to “get out of the building” and go talk to potential customers about their pain points.
If judges and court staff would get out of chambers and courtrooms and talk to pro se litigants in the hallways, they’d have a much clearer sense of the problems they’re trying to solve. Based on our experience and those who’ve shared theirs, here’s some of what regular people want from the courts:
- a basic description of the way judges make decisions in each type of court;
- less intimidating formality and more casualness in the courtroom setting;
- pleading forms that describe settled (“black letter”) law in layman’s terms;
- easy access to law librarians and basic instruction on how to make the most of them; and
- advice from lawyers on an as-needed basis, with standard rates of pay and levels of service.
And for crying out loud, if you’re going to provide people’s courts (small claims, magistrates, etc), keep the lawyers out of them.
A judicial system that encouraged or offered these things would result in a much higher experience of justice, at a fraction of the cost of providing a lawyer for everyone. It would also go a long way to bridging the chasm between the courts and the people. All that’s lacking is knowledge of real customer needs, and perhaps the will to act on it.
