Law Without Lawyers: Access to Civil Justice and the Cost of Legal Services

BY EMERY G. LEE III, 69 U. Miami L. Rev. 499 (2015).

Introduction: Judge Jack Weinstein has been active on the issue of access to justice for low- and moderate-income persons for a very long time. As Suffolk County Attorney in the 1960s, for example, he led the movement to establish “Nassau County Legal Services, one of the first community legal services ‘storefronts’ in the nation.”He managed to secure funding for the organization from the Kennedy Administration,but the effort faced stiff opposition. Some opponents of the plan even attempted to have Weinstein disbarred.But he prevailed and kept his license, of course. As judge and then chief judge of the Eastern District of New York in the 1980s, he often spoke and published on this issue.In addition, he set in motion a process to establish a panel of lawyers to represent formerly self-represented persons on a voluntary basis, secured funds to support the Eastern District Pro Bono Panel and the Eastern District Civil Litigation Fund, and provided training for lawyers interested in representing low-income litigants.Much more could be said about his efforts on this front in the years since.

This Article will discuss access to justice as a function of the cost of civil litigation. Framing the issue in this way, justice as a function of cost, it is worth noting that justice and cost are two of the three goals referenced in Rule 1 of the Federal Rules of Civil Procedure, which states: “These rules . . . should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”The Federal Rules of Civil Procedure, in positing these three goals to guide the construal and administration of the rules, however, do not provide any framework or method for balancing the goals in the event that they conflict.And it is very likely that the goals clash in a significant percentage of cases. Once one concedes—as the Federal Rules of Civil Procedure do—that justice both costs money and takes time, but also that time is moneyand that delay detracts from justice, then the trade-offs among money, time, and justice become difficult to resolve. Indeed, it is likely that one can strive to achieve two of the goals but rarely all three at the same time. Thus, it is easy to imagine a rules regime in which there are speedy and inexpensive determinations of matters that are far from just. Or a rules regime in which there are speedy and just outcomes that are quite expensive. It is the third combination of the goals that is harder to imagine: inexpensive and just, but not speedy.

To the empirical researcher, the three goals of Rule 1 also present a measurement problem. One of the goals is ridiculously easy to measure; “speedy” must be closely related to disposition time, so it can be measured simply as time from filing to final resolution. Time to disposition is an important metric that the courts often use to gauge performance.Another of the goals, justice, is almost impossible to measure in an objective fashion, especially across a broad range of cases.That leaves a third goal that seems possible to measure—the cost of litigation. As anyone who has ever tried to study the cost of litigation will tell you, though, it is a very difficult thing to do well.For one thing, the ultimate information is in the hands of the parties to the litigation, and asking attorneys, although relatively common, has its limits. And the parties themselves may not actually know the total cost of the litigation in which they are involved.There is also disagreement among researchers whether to use dollars—or estimated dollars—or some other mea- sure of cost, such as attorney hours.

In 2009, my colleague Tom Willging and I released a report on attorney estimates of litigation costs in a large, nationwide sample of attorneys of record in recently closed cases in federal district court.We found, consistent with a long line of previous studies, that most cases in federal court have relatively modest costs.Plaintiffs’ attorneys reported median costs of $15,000, and defendants’ attorneys reported median costs of $20,000.Presenting these findings, Willging and I were consistently told that we had to be wrong, that litigation costs are much, much higher than that.Then, though, the New York Times cited our report for a different proposition: that the costs of litigation that we had reported were out-of-reach for most low- and moderate-income Americans:

Pursuing a civil action in federal court costs an average of $15,000, the Federal Judicial Center reported last year. Cases involving scientific evidence, like medical malpractice claims, often cost more than $100,000. Some people cannot afford to pursue claims; others are overwhelmed by corporate defendants with deeper pockets.

The same reported costs could be both too high and too low. Costs that would seem negligible to a corporate general counsel can present serious access to justice issues to low- and moderate-income Americans. Of course, this is a fact that we have known for a long time. As Bryant Garth pointed out in 1998:

The recent studies of civil discovery by the RAND Institute for Civil Justice and the Federal Judicial Center (“FJC”) establish beyond any reasonable doubt that we have two very distinct worlds of civil discovery. These worlds involve different kinds of cases, financial stakes, contentiousness, complexity and—although not the subject of these studies—probably even lawyers. The ordinary cases, which represent the overwhelming number, pass through the courts relatively cheaply with few discovery problems. The high-stakes, high- conflict cases, in contrast, raise many more problems . . . . It is there- fore essential to understand the distinction and to try to explain why it operates.

These “two very distinct worlds of civil discovery” actually present two separate problems. For the sake of simplicity, I will refer to these problems as the Little Guy’s problem and the Big Guy’s problem. Part II of this Article describes these problems in some detail. In sum, the Little Guy’s problem is the increasing cost of civil litigation; he is being priced out of the market for legal services. The Big Guy’s problem is too much information and, thus, too much discovery. Part III of the Article links the ongoing debates about litigation costs and discovery to a broader context. It is interesting that at the same time preparations for the 2010 Duke Conference were underway, the United States was embroiled in a much more visible controversy over costs—the cost of health care. But almost no one made the connection. I do so here, using an economic theory—Baumol’s cost disease—rarely referenced in legal literature. The cost disease, I argue, is at the heart of the Little Guy’s problem, but much less central to the Big Guy’s problem. This observation suggests that the solutions to the Little Guy’s and Big Guy’s problems must be different. The conclusion offers a few brief comments on potential solutions to the Little Guy’s problem. . . . Full Article.

Recommended Citation: Emery G. Lee III, Law Without Lawyers: Access to Civil Justice and the Cost of Legal Services, 69 U. Miami L. Rev. 499 (2015).

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