Page 29 - Delaware Lawyer - Summer 2019

of litigants denying offers of representa- tion or seeking other representation, the percentage of avoidable evictions linked to offering civil legal aid to the defen- dant population is at least 44 percent. In the New York study, the actual potential impact was likely higher than 44 percent since only judges perceived to treat pro se litigants were accepted into the study. The lower floor of avoidable evictions in Delaware via universal defendant repre- sentation attempts would likely be 2,426. More Help, Less Harm
As estimated in Figure 1, many Dela- wareans have civil justice issues. A minor- ity receive legal assistance to resolve their civil legal needs. Engaging with legal help results in positive outcomes for thousands of lower income people in the state. How- ever, many people either do not receive adequate legal help — in large part be- cause many people do nothing to address their civil justice issue — or do not recog- nize their problems as legal. Inadequate help from legal providers has consequenc- es. It is likely that several times more lower income Delawareans are harmed by lacking adequate counsel than who are helped by receiving legal help (Figure 1). Court processes are also harmed by the pro se epidemic. Delaware is above average in the United States with regard to access to civil justice, but the United States has an inaccessible/unaffordable system rela- tive to comparable countries. By increas- ing the number of people who receive adequate legal help, thousands of social issues, such as evictions and violence, could be addressed each year in the state, thereby better addressing the problems of people, communities and society.19
Instead of asking how much justice we can afford, we should be asking how much justice we can afford to forego.20 Civil justice must be judged from a sys- tem lens. The current system has social roots and consequences. It is possible to improve the civil justice system. Com- pared to other countries, the U.S. civil justice system is not accessible nor afford- able. In Delaware that means: 1) there are many preventable evictions and PFA dismissals each year; 2) judges are trying
Instead of asking how much justice we can afford, we should be asking how much justice we can afford
to forego.
to decide on impactful social problems of unrepresented litigants in an adversarial system that simultaneously assumes liti- gant representation and judge neutrality; 3) social and economic stability is de- creased among citizens; and 4) the posi- tive social returns of investing in civil jus- tice are foregone.21 Legal representation reduces the risk of inequitable civil justice outcomes and prevents the cascade of im- pacts linked to those unjust outcomes.
NOTES
1. Alexander, M. (2012). The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The New Press
2. Desmond, M. (2015). Unaffordable America: Poverty, Housing, and Eviction. https://www.irp.wisc.edu/publications/ fastfocus/pdfs/FF22-2015.pdf
3. World Justice Project (2019). Rule of Law Index. Washington, D.C.
4. Justice Index (2016). Findings. https://justiceindex.org/2016-findings/ findings/#site-navigation
5. American Bar Association (1994). Legal needs and civil justice: A survey of Americans. Chicago, IL: Consortium on Legal Services and the Public.
6. Civil Legal Needs Study Update Committee (2015). Civil legal needs study update. Olympia, WA: Washington State Supreme Court.
7. Sandefur, R. (2014). Accessing justice in the contemporary USA: Findings from the Community Needs and Services Study. American Bar Foundation.
8. Teufel, J., Pelletiers, W. & Gallo,
M. (2018). Civil legal needs assessment, Northeastern Pennsylvania: Research brief.
9. Sandefur, R. (2014). Accessing justice
in the contemporary USA: Findings from the Community Needs and Services Study. American Bar Foundation.
10. Legal Services Corporation. (2017). The justice gap: Measuring the unmet civil legal needs of low-income Americans.
11. Greiner, J. D., & Pattanayak, C.
W. (2012). Randomized Evaluation in
Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?. The Yale Law Journal, 121, 2118-2214.
12. Shanahan, C.F. & Carpenter, A.E. (2019). Simplified Courts Can’t Solve Inequality. Access to Justice. https://www. amacad.org/publication/simplified-courts- cant-solve-inequality
Note that unrepresented people with civil justice issues may not self-represent since they may not participate in legal proceedings (for example, a subset of default judgments) or may not recognize their issues as legal in origin.
13. Fisher, F.A. (2019). Why Judges Support Civil Legal Aid. Access to Justice. https:// www.amacad.org/publication/why-judges- support-civil-legal-aid
14. The assumption was that the majority of people in the comparison group
(not represented by CLASI) were likely unrepresented or self-represented.
15. Sandefur, R. (2010). The Impact of Counsel: An Analysis of Empirical Evidence. Seattle Journal for Social Justice, 9,56- 59.
16. Murphy, J. C. (2003). Engaging with the state: The growing reliance on lawyers and judges to protect battered women. Journal of Gender, Social Policy, & the Law, 11, 499-521.
17. Eviction Lab (2017). Map & Data. https://evictionlab.org/ map/#/2016?geography=states
18. Seron, C., Frankel, M., Van Ryzin,
G., and Kovath, J. (2001). The impact of legal counsel on outcomes for poor tenants in New York City’s Housing Court: Results of a randomized experiment. Law & Society Review, 35, 419-434.
19. Task Force on Justice (2019). Justice for All. New York: Center on International Cooperation.
20. A rephrasing of a question raised by Professor Dame Hazel Genn (2009) in Judging Civil Justice. The full quote was “The question is how much formal justice do we need to ensure that the common law can be refreshed, that legal risk can be minimised and that disputes can be rapidly resolved when they arise? Or, to put it another way, how much justice can we afford to forego?
I do not believe at the moment that anyone is even considering that question, let alone framing policy that would achieve those ends.”
21. Recent social return on investment analyses in Delaware and around the country support positive economic benefits of investing in civil legal aid.
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