By Kelsea Jeon
The phrase “access to justice” has become increasingly popular in recent years. Not only is it commonly referred to by legal reformers and media outlets, it has also claimed its own place among governments globally. In the United States, 43 states have established commissions or committees devoted to the cause. One of the United Nations’ 17 goals for its 2030 agenda is devoted to providing “access to justice for all.” But what does the phrase actually mean?
This is not a new question. Over a decade ago, The Guardian published an article that captured varying interpretations of the term by leading jurists and academics. Legal historian Lawrence Friedman offered his views on the phrase at an American Bar Association symposium on access to justice. Yet this deserves resurfacing, if not only to bring attention to the importance of defining the issue. “Access to justice” continues to become a topic of interest in legal communities and legislatures, especially in light of how COVID-19 has been changing the legal landscape. From remote hearings and halted proceedings to increased attention to the legal issues facing low-income community members, the pandemic has illuminated the importance of a responsive civil justice system.
Some of the current bundle of reforms relating to “access to justice” include: providing low-income civil litigants representation by legal aid lawyers or advice from a lay lawyer; enhancing self-help services in courts for litigants to complete their own legal documents; or simplifying court procedures. Whether a governing body decides to proceed with providing civil litigants with a right to counsel or to invest in a court’s self-help procedures depends, in part, on how they define the problem. In this article, I offer some possible ways of interpreting the phrase “access to justice” and the implications of each of those iterations.
Access to a lawyer means that a litigant is capable of seeking guidance from a lawyer. This guidance could range from something as brief as a 15-minute consultation with an attorney to full representation in court. Those who believe that one must be a lawyer to navigate the law and legal proceedings may believe that the ability to seek redress for a legal matter hinges on one’s ability to seek counsel. Reformers, especially in the United States, have been pushing for a civil right to counsel for low-income litigants, influenced by the right to counsel in criminal proceedings. While critics of the civil right to counsel movement have urged that expanding such a right would open the floodgates to representation, advocates have clarified that the right to counsel would be limited to only certain low-income litigants with matters affecting “basic human needs, such as housing, health, domestic violence, civil incarceration, and child custody.”
If we adopt this perspective of access to justice, it is critical to note two things. First, access to a lawyer does not necessarily mean that every low-income litigant needs – or should have – access to full representation by counsel. Especially for those cases that are settled without court trials or hearings, it may be that litigants only need assistance demystifying legal jargon to better understand their rights and proper procedures. This brings me to my second point. For such cases where litigants need only brief consultation from an advisor, who should provide that advice? Does it have to be a formally trained lawyer? Or can a specially trained advisor without a legal degree, such as a court clerk, university student, or social worker provide such services? Perhaps access to a lawyer should be reimagined to mean access to a “lawyer”.
Access to information means that litigants can readily obtain knowledge about their rights, resources, and options. This information can come from a variety of sources. They can come from attorneys, advice workers, websites and brochures, or other informal channels, such as friends or family. Depending on the country and its rules around who may provide legal advice – in the UK, lay lawyers may provide legal advice; in the US, only lawyers may do so – the policies towards increasing access to information may vary. But the fact that lay lawyers have been providing information about individuals’ rights or advice on how to proceed when confronted with a legal matter suggests that perhaps restrictions around who may practice law – especially in the US – should be amended.
Another possible avenue to increase access to information could be to teach students about their civil rights in school. The United Nations has noted in Article 26 of the Universal Declaration of Human Rights that schools may be a channel to strengthen respect for human rights and fundamental freedoms. People have a right to know not only how their justice system works, but also what to do should they need to use it. This should not be knowledge reserved for only the repeat players in the legal system; if the goal is for litigants to be able to fairly seek redress, there should be no barriers to information.
Whether litigants obtain information about their rights and about procedures from advice workers or perhaps even educators, access to information requires that the information itself be written in such a way that the litigants themselves would be able to understand it. In the ideal world, litigants would not need intermediaries to understand their rights or court procedures. Administrators and legislators should look to simplifying language on court forms (to the extent that they retain their original meaning) and making websites more user-friendly.
Access to court refers to a litigant’s ability to have their fair day in court. The barriers associated with access to court can be both substantive and procedural. They can be substantive in that they may discourage or restrict litigants from pursuing certain types of cases to court. They can be procedural in that there could be burdensome costs or complicated procedures involved with bringing such matters to court that serve to inhibit litigants from filing claims in the first place.
If access to justice means access to court, reform may focus on identifying and eradicating the barriers that deter litigants from turning to the justice system for redress. This policy need not require structural change to court systems; rather, it could begin with changing the hours of a court’s help center to better meet the needs of the working-class community members or sending automated reminders to litigants notifying them of their upcoming appearances.
The line between these three conceptions of access to justice is blurry. One can achieve access to information via access to a lawyer. Access to information can also increase access to court. Perhaps the difficulty in defining access to justice has come from a desire to capture the phrase in positive terms. Instead of defining it through what it is – access to a lawyer, information, or court – maybe the best way to understand the concept is by defining it through what it is not. One way of doing this could be by asking the following questions: Can justice be achieved without a lawyer? Can it be achieved without information? Can it be achieved without going to court? These questions may help legal scholars, practitioners, and reformers illuminate not only the meaning of “access to justice” but also their broader visions for the justice system.