Samuel Estreicher

Collaborative Technology Improves Access to Justice

Online dispute resolution (ODR) systems have the potential to resolve cases before they end up in court, reducing costs for litigants and easing the burden of court caseloads. We have limited experience with ODR in the United States, but other countries have found ODR to be helpful even for people without attorneys. In this chapter, Michael Wolf describes international ODR systems and reviews studies that show benefits to unrepresented parties. An ODR mediator can use this technology to conduct intake, gather preliminary documents, and engage parties in a structured online negotiation, making ADR more accessible and affordable to lowand moderate-income Americans.

The Effect of Contingent Fees and Statutory Fee-Shifting

Contingent-fee and statutory fee-shifting provisions shift costs away from the client and to the back end of the litigation. David Nolls analysis suggests that even with these arrangements, only a limited number of attorneys are willing and able to finance plaintiff-side litigation. The result is that the demand for legal assistance in cases with fee-shifting devices exceeds the supply of lawyers who handle these cases. Noll concludes that alternative payment arrangements that place the burden of costs on the lawyer will not solve the affordability problem. Litigation is time-consuming, and the complexity of American law and importance of understanding court procedure place pro se litigants at a demonstrable disadvantage to counseled parties. But, for the victim of a legal injury, the cost of representation may be so high that the only viable way to assert a claim is to proceed pro se. The high cost of legal services therefore can lead to a denial of justice in a very practical sense. Though an individual is formally entitled to a remedy, the cost of claiming makes obtaining one impossible. Such access-preclusive costs result in part from two norms governing attorney fees in the United States: the “American” rule of attorney fees, whereby litigants are responsible for their own attorney fees, and the practice of charging for legal services on an hourly basis. It is therefore unsurprising that legal policymakers have attempted to expand court access by authorizing departures from those norms. “No win no fee” contingent-fee agreements and statutory fee-shifting provisions both modify the timing of payment for legal services; instead of being paid as services are rendered, an attorney is paid upon obtaining a recovery. In the case of fee-shifting provisions, ultimate responsibility for the cost of legal services is also transferred to the losing defendant. But what effect do these ameliorative mechanisms have on the basic problem of access-preclusive costs? Do they ensure that individuals with meritorious claims are able to make use of the civil justice system? In one sense the answer is easy. Domestic relations disputes, for instance, make up a significant proportion of Americans’ legal problems, but the coverage of fee-shifting statutes in this context is sporadic, and ethical rules generally prohibit contingency fees paid to outcomes such as a divorce.

Beyond Elite Law: Access to Civil Justice in America

Are Americans making under

When Does Representation Matter

50,000 a year compelled to navigate the legal system on their own, simply give up because they cannot afford lawyers? We know anecdotally that Americans of median or lower income generally do without legal representation or resort to a sector of the legal profession that – because of the sheer volume of claims, inadequate training, and other causes – provides deficient representation and advice. This book poses the question: Whether we can at the current level of resources, both public and private, better address the legal needs of all Americans?.

Facilitating Homemade Wills

1 Professor of Law and Director of Clinical Programs, New England Law | Boston. This work was supported by a stipend from the Board of Trustees of New England Law, Boston. 2 Report to the Chief Judge of the State of New York, 15-18 (November 2010) hereinafter “NY Report I”), available at http://www.nycourts.gov/ip/access-civil-legal-services/PDF/CLS-TaskForceREPORT.pdf; Report to the Chief Judge of the State of New York, 19-21 (November 2011) hereinafter “NY Report II”), available at http://www.nycourts.gov/ip/access-civil-legal-services/PDF/CLS-2011TaskForceREPORT_web.pdf Report to the Chief Judge of the State of New York, 15-16 (November 2012)(hereinafter “NY Report III”), available at http://www.nycourts.gov/ip/access-civil-legal-services/PDF/CLS-TaskForceREPORT_Nov-2012.pdf; Judges’ Views of Pro Se Litigants’ Effect on Courts, 40 CLEARINGHOUSE REVIEW 228 (July-August 2006). 3 Id. 4 See, e.g. The Massachusetts Court System, Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, http://www.mass.gov/courts/judguidelinescivhearingstoc.html (last visited September 30, 2013). 5 See, e.g., Clare Pastore, California’s Sargent Shriver Civil Counsel Act Tests Impact of More Assistance for LowIncome Litigants, 47 CLEARINGHOUSE REVIEW 97, 106 (July-August 2013)(“Several [legal services lawyers] mentioned the frustration of seeing substantial time and funding resources going to prove what they felt was obviousthat providing counsel to indigent clients makes a difference”). 6 See, e.g., NY Report I, supra note ___, at 18-20. 7 American Bar Association’s Model Rules of Professional Conduct (MRPC), Rule 4.3, available at http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/