30 Jan A Bartender, a Hairstylist and a Priest Walk into a Courtroom…
While there is a punchline to this story, we’re going to start with how lawyers serve — or fail to serve — the public.
The Legal Services Corporation’s 2022 study shows low-income Americans receive little to no help for 92% of their substantial civil legal problems. Most of us who are familiar with the judicial system intuitively know this (although we may not admit it to ourselves). We know that many of our fellow Coloradans are trying to “go it alone” without legal representation in disputes where the stakes can be tremendously high — often threatening a person’s job, family, home, reputation or life savings.
Pro Se Representation
We also know that it is not just low-income Coloradans who are trying to proceed pro se in complicated and high stakes legal matters. In fact, according to the Institute for the Advancement of the American Legal System at the University of Denver, across the country people are only seeking — or even considering — lawyers for help in 16% of civil justice situations, and 76% of civil cases in state courts involve at least one pro se party.
Some argue the solution to this problem is more lawyers, and there could be some truth to that. According to IAALS, half of the counties in Colorado have fewer than 25 attorneys and three counties have no attorneys at all. But in today’s digital age, we are more connected than ever. The fact that people are not even considering lawyers for the vast majority of civil legal problems would suggest simply pumping more lawyers into the profession isn’t the answer.
Pro Bono Representation
While I am a huge proponent of pro bono, more pro bono doesn’t seem to be the answer either. When I lived in Tennessee, I used to often train attorneys on the justice gap by explaining that even if every attorney in the entire country took one of Tennessee’s cases pro bono, the civil legal needs of indigent Tennesseans still would not be met. This is a staggering statistic, and it’s likely the same pattern is applicable throughout the nation, Colorado included.
Colorado has done great work through its partners in the access to justice space to build additional infrastructure to try to help bridge the gap. This includes expanding self-help centers and self-help forms, focusing on language access and plain language, fostering innovative thinking through support for justice-tech related projects and programs and more. For this, our state and Colorado’s legal profession should be extremely proud. But we can do more.
Lawyer Avoidance
Here’s the thing about lawyers: people generally aren’t thrilled when they need one. They don’t generally think “Hooray! I get to spend a bunch of time and money dealing with this legal issue that I’d prefer to ignore! This is great news!” Instead, people facing civil legal issues tend to do one of three things: they ignore the issue, they start Googling or they talk to someone they trust — and notably, this is usually not a lawyer.
Lawyers know each of the above actions is usually a recipe for disaster.
We all know of clients who have let a resolvable legal situation devolve into a problem that seems almost insurmountable. Or, sometimes worse, they’ve taken a variety of misguided steps in the wrong direction.
But let me remind you: this is human nature. We all do it to some degree. I do it when I have car trouble because I am not particularly fluent in car-speak, I’m worried I might get ripped off when I take my car in, I’m concerned that being without a car for a while will be a massive inconvenience, and I’m hopeful that when the engine light comes on in my car, it will just eventually go off on its own!
So I frantically read Reddit blogs and ignore my car trouble until I eventually reach out to someone I trust for advice – usually someone who is not a mechanic.
Similarly, people who are unfamiliar with the legal system or who may have had a bad experience with a lawyer in the past are exhibiting this avoidance behavior every day with legal issues.
Bartenders, Hairstylists and Priests
Here’s where bartenders, hairstylists and priests come in.
Unlike lawyers, these three professions have a reputation for being good listeners. From the get-go, they exude an air of comfort and familiarity that allows people to open up and share many more personal details of their lives than they might otherwise do with a perfect stranger. Is this because those particular professionals have become comfortable with interacting with new people every day? Or is it because people understand their hairstylist is unlikely to jump in and immediately take steps to solve their problems?
How is it these professions develop such trust and intimacy right at the outset, and why do people find themselves wanting to share their troubles with these folks, but not with lawyers?
Unfortunately, I do not have those answers. But it might behoove us as lawyers to pay careful attention to the “listening professions.” On a day-to-day basis, they are serving the very same people who may never walk through the front door of a law firm.
Ultimately the statistics are clear: The vast majority of people who need legal representation will never find a lawyer. As such, it is incumbent on the legal profession to listen, learn and try to figure out why. Only then will we bridge the legal services gap and create access to justice.
– Kimi deMent Dean is an associate attorney at BAM Family Law and is a Colorado Access to Justice Commission Committee member.