By Kelsea Jeon
The claim I am making is seemingly paradoxical. Law is a technical discipline, one in which people undergo years of extensive formal training to practise. So how can nonlawyers – people who lack the formal certification that makes one a lawyer – be the future of civil law?
Before dismissing my argument as unrealistic, I would like to clarify that I am not arguing that nonlawyers should replace lawyers. Nor am I arguing that nonlawyers can be effective in all areas of civil law. Rather, I am talking about a very narrow subset of civil legal matters, ones that disproportionately affect indigent litigants unable to afford lawyers. Such legal issues include disputes concerning housing, money claims, and family matters. Whereas defendants in criminal cases have the right to legal assistance, there is no right to counsel in civil matters. And although pro bono organizations may provide lawyers to civil litigants unable to afford them, there are not enough resources to supply the millions of unrepresented litigants with a lawyer. This gap between available resources and the need for these resources is known as the justice gap. And I argue that the nonlawyers are one of the solutions to closing this gap for indigent litigants.
A nonlawyer is defined in the negative sense: simply, not a lawyer. But what makes a lawyer a lawyer? Most objectively, lawyers may be defined by their completion of the qualifying factors that enable them to practise law – be it a stamped certificate, a pupillage, or membership in a professional body. While these factors may define who may practise as a lawyer, do lawyers actually use all the skills involved in obtaining that qualification in their day-to-day practice? Scholars have noted the lack of research on this question, but have recognized that even those lacking the formal training of lawyers can provide effective assistance to those with civil legal matters.
Despite lacking formal legal training, nonlawyers can successfully do some of the work of lawyers. In studies concerning litigation about evictions, custody of children, and public benefits, nonlawyers have been found to be capable of being as competent as their lawyer counterparts. Of course, however, there are limits to what nonlawyers can do: they may struggle more than lawyers in helping clients with procedurally complex cases and lack the training to persuade judges on contested issues of law in individual cases. What is important to recognize, however, is that for many of the litigants who would use the services provided by nonlawyers, they are not weighing having a lawyer against having a nonlawyer. They are faced with the reality of having any form of legal assistance versus having none at all.
Prior to joining the Law Faculty as a research student, I served as a nonlawyer volunteer—formally known as a Court Navigator—in New York City’s civil and housing courts. Court Navigators provide one-on-one assistance to litigants without lawyers in court by explaining legal procedures, helping complete forms, making referrals, and guiding them around the courthouse. I mostly assisted tenants facing housing law matters, such as eviction notices or demands for rent, but I also helped small landlords seeking to begin such cases against their tenants.
What I observed during my two months as a Navigator was that many of the litigants struggled not to understand why they were in court, but what to do when they got there. If they had a hearing for 10:00 am that morning, where were they to go? Hearings usually occurred before the judge in a specific courtroom, but what if the postcard that informed the litigant of the court hearing failed to clarify where the litigant was supposed to go? It was not uncommon for many litigants stepping foot into the court building for the first time to gravitate towards the line they saw upon entering the building. Little did they know that just because they were in the building waiting in line to speak with the clerk, if they did not check in with the officer in their designated courtroom, they would often be a “no show” in the eyes of the court and get a default judgment. I spent much of my time as a Navigator directing litigants to their proper destination. One cannot have their fair shot at the justice system without first making it to the courtroom.
I recognize that there is a lot more nuance to resolving a civil legal matter than merely knowing where one has to go when arriving at the courthouse. But providing procedural guidance is only one of the many services that nonlawyers can provide. In the United States, there are 23 separate Navigator programs in 15 states. In the United Kingdom, the charity Support Through Court places nonlawyer volunteers in 23 courts in 17 different cities across England and Wales. Across both common law countries, the nonlawyer volunteers provide similar services: explaining how the court system works, sorting through paperwork, making referrals, and attending court hearings with clients. In surveys about aid through the Support Through Court program, an overwhelming proportion of responding litigants reported that the nonlawyer volunteer helped make the procedures clearer and helped the litigant feel better prepared.
Nonlawyer services are not the panacea for unrepresented litigants falling through the justice gap. But despite its limitations, it is a starting point in decoupling the misconception that access to justice requires access to counsel.
I am a believer in learning by doing. If you are still skeptical about how nonlawyers can make the civil justice system more accessible for unrepresented litigants, I urge you to try serving as a nonlawyer volunteer yourself. Reach out to your local Citizens Advice Bureau or Support Through Court branch and apply to be a volunteer. Even if you have never stepped foot in court before, the programs will fully train their volunteers. Depending on the role you wish to assume, you may receive training to assist litigants with specific legal matters or you may learn how to best accompany litigants in court. Join the thousands of nonlawyer volunteers who are on the frontline of the movement to close the justice gap.