Did lawyers (unintentionally) sway the election?

Written By John E. Grant  |  Future of Law  |  0 Comments


The following is a post I made on Facebook shortly after the November 2016 election. It is something of a quick-take, but I think the ideas below—especially:

  1. The correlation between the Access to Justice/Access to Legal Services gap and the general sense that the country is on the wrong track, and
  2. The idea that Access to Justice is an Accessibility Problem, and Accessibility is a Design Problem—

are worth setting forth. I welcome any and all comments and criticisms to these thoughts, and you can see what others have said at the original Facebook link (which I’ve made public). I also hit on some of these topics at the October PDX Legal Hackers Meetup, which you can watch on YouTube.

November 10, 2016

I don’t often mix the professional with the personal on FB, but since so many people are inspired to action this week I’m going to make an exception. Lawyer friends, this is especially for you.

I was recently appointed to chair the Innovation Committee of the Oregon Bar, and our charge is to recommend ways to address the Access to Justice problem in our state (and, by extension, our country). For those who don’t follow such things, the size of the problem is staggering.

A 2016 ABA study estimates that “well over 100 Million Americans” experience a legal problem each year but have either no or incomplete access to the legal system to help address it. That’s at least 30% of the population. (For comparison, there were approximately 120M votes cast in this election). The substantial majority of those people are experiencing problems that threaten their Health, Safety, Shelter, Sustenance, or Custody of their children. Over 80% of family law cases in Oregon Courts involve one or both parties being unrepresented by a lawyer.

Then consider the recent Federal Reserve report that 49% Americans could not come up with $400 cash to deal with an emergency situation (that report was highlighted in a May 2016 Atlantic Magazine article–worth a read). As Sam Glover pointed out at the Stanford CodeX Futurelaw conference last spring, that doesn’t buy a lot of lawyer time, especially if your car needs a new battery too.

And a possible correlation: 60% of Americans believe the country is on the wrong track. Now I don’t have the data to show it, but it isn’t a stretch to assume that a significant portion of those people have experienced a legal threat to their health, safety, shelter, sustenance, or child custody but have not been able to fully access the legal justice system to protect their rights.

Rights that you cannot enforce are worthless.

While there is some charitable, state, and federal funding for helping low income Americans get legal help, the total federal apportionment is just $335M/year, less than the country spends on Halloween costumes for pets. Moreover, that help is generally only available to people making up to 125% of the federal poverty limit, yet studies show that the Access to Legal Services gap substantially affects people making up to (and even over) 400% of the poverty limit.

So what can we do?

One option is to do more pro bono work. If every one of Oregon’s approximately 16,000 lawyers took on just two pro bono matters a year, we’d be able to help 32,000 more people.

But here’s the problem: If the access to legal services gap in Oregon is approximately 1.2 Million people (30% of our ~4M population), then that amount of pro bono effort would solve just 2.5% of the need. And getting more lawyers to take on pro bono isn’t easy–those who are inclined to do pro bono are largely already doing it (over 80% of small firm attorneys or solos), so increasing the supply may involve substantial incremental cost.

Another would be more funding, but–aside from being a politically and economically challenging path–that avenue hits on the same numbers problem. If we can fund 10 new lawyers a year who can handle up to 250 matters apiece, by year 10 we’d be able to help an additional 25,000 people–or just 2% of the need (assuming the need doesn’t grow, and that there is no attrition from the program).

I’m not saying those solutions won’t help, but they’re not nearly enough.

Here’s the bigger challenge: The legal system is designed by lawyers for lawyers. We have designed it, through avenues both intentional and accidental, to meet our own needs and the needs of those clients who can afford us. I’m not saying that we’re not doing good work for those clients, but by designing the system for them (and ourselves) we have unintentionally excluded a significant percentage of the population.

Consider that lawyers may be simultaneously serving our clients well AND failing society at large.

Access to Justice (and Access to Legal Services) is an Accessibility problem. And Accessibility is a Design problem. We lawyers, who enjoy a self-regulated monopoly on providing legal services (free or paid), need to consciously re-design the system to be more accessible to non-lawyers.

And while that may feel like a move that threatens our own economic interests, consider this: Accessible Design studies consistently show that design improvements made to increase accessibility for highly challenged populations wind up creating improvements for everyone. If you’ve ever pushed a stroller up a wheelchair ramp or read closed captioning on a TV at the gym, you’ve seen that in action.

By re-designing the legal system to be more accessible to the most challenged people, we’ll make it easier to use for ourselves. That will, in turn, improve our efficiency, allow us to deliver better value to our clients, and allow us to take on more of those clients over time. Also, by increasing self-help for low-complexity matters, we can position ourselves to handle more complex (and thereby higher value) legal work.

If you’ve made it this far and want to be part of the solution, I encourage one or more of the following:

1) If you are in Oregon, send me your email address and I will add you to the Oregon Bar Legal Innovations Slack group. This is the official communications channel of our Innovations Committee but we also are inviting advisors and others to help build solutions to the problems we face. https://osbainnovation.slack.com/

2) If you are in the Portland area, join the Portland Legal Hackers Meetup to learn more about innovative solutions to legal problems faced by lawyers and clients alike. https://www.meetup.com/PDX-Legal-Hackers/

3) If you are outside that area, consider joining your bar’s innovations or futures committees or joining a local Legal Hackers chapter (the movement is global). https://legalhackers.org/

4) And if you are a practicing attorney looking for help developing ways to improve your own delivery of legal services, contact me to join the Agile Attorneys Worldwide Slack group, where we are exploring ways to harness the philosophies of Lean, Agile, and the Lean Startup to accelerate the delivery of legal services. https://agile-attorneys.slack.com/

There are three branches of government, and we lawyers control one of them. Regardless of how you feel about the current direction of the executive and the legislature, we can–we MUST–do what we can to improve access to, and the usability of, the judiciary. We are officers of the courts, and by extension the entire justice system, and we need to do our part.

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