Page 101 - Impact: Collected Essays on Expanding Access to Justice

Pro Pro Bono: volunteer Lawyers Are an essential Part of Access to Civil Justice
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Amy Barasch, esq.1
If access to justice is achieved through meaningful participation in the courts, then those of us who are officers of the court have a lot of work to do . By most accounts, some 80 percent of low- income litigants in our civil courts proceed without representation, and their legal outcomes suffer as a consequence .2 Not only do litigants face great harm – such as the loss of children, liberty and/ or housing -- but they learn that the courts are not a place of justice for all . It should be no surprise then that many low-income people eschew the courts when they have legal problems . The more our court system loses the trust of its citizens the less well it functions . In New York City, a place with more lawyers per capita than most, it is essential that the private bar’s contribution of pro bono services be leveraged to its full potential as part of the solution to closing the gap in access to justice . The key is in recognizing how to match the available talent to the need . If pro bono power is harnessed strategically it has the capacity not only to reduce the gap in access to justice, but to transform the public support for and understanding of the importance of access to civil legal services overall . In this essay I reflect on the ongoing gap in legal services for low-income civil litigants, and illustrate how the needs of the private sector can be matched with the needs of civil litigants in order to help individuals and the civil legal system as a whole .
I.The Persistent Need for Civil Legal services
There is no doubt that we are failing as a community in our provision of legal support to low- income litigants . Litigants need attorneys to protect their rights, and ensure that they fully understand the substantive and procedural law that applies to them . More and more research is being conducted to show how representation can have a dramatically positive effect for litigants . That positive effect goes beyond an improved case outcome, and can include improved health, economic security, and physical safety .3 The Legal Services Corporation (LSC) has been persistently vocal and convincing about the need for additional funding for legal services . The LSC has anticipated that to meet the need of those eligible for free legal services, the federal share
1 Amy Barasch, Esq., is the Executive Director of her Justice. I would like to thank Rachel Braunstein, Senior Policy Attorney at her Justice for her careful review of this paper, as well as the rest of the her Justice staff without whose work none of the successes described would be possible.
2 See, e.g., Task force To exPand access To ciVil legal serVs. in n.y., rePorT To The chief Judge of The sTaTe of new york 1-2 (2013), available at http://www.nycourts.gov/accesstojusticecommission/PDF/CLS-TaskForceReport_2013.pdf; legal serVs. corP., documenTing The JusTice gaP in america: The currenT unmeT ciVil legal needs of low-income americans 1 (2009), available at http://www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_ america_2009.pdf; A.B.A., legal needs and ciVil JusTice: a surVey of americans (1994), available at http://www. americanbar.org/content/dam/aba/migrated/legalservices/downloads/sclaid/legalneedstudy.authcheckdam.pdf. For a discussion of studies of need, see herbert M. Kritzer, Examining the Real Demand for Legal Services, 37 fordham urb. L. J. 255 (2010).
3 See, e.g., Jennifer s. rosenberg & denise a. grab, suPPorTing surViVors: The economic benefiTs of ProViding ciVil legal assisTance To surViVors of domesTic Violence (Institute for Policy Integrity 2015), available at http://policyintegrity. org/documents/SupportingSurvivors.pdf; Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 fordham urb. L. J. 37 (2010); David A. Lash, Finding the Next Big Idea to Fight Poverty, dialogue, Vol. 15, Issue 3 (Winter 2012), http://www.americanbar.org/ content/newsletter/publications/dialogue_home/dialogue_archive/ls_dial_wi12_probono1.html; Rebecca Sandefur, Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact, 80 am. soc. reV. 909 (2015); Russell Engler, When Does Representation Matter?, in beyond eliTe law: access To ciVil JusTice in america 71 (Samuel Estreicher & Joy Radice, eds., 2016).
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