Reintroducing the Civil Justice Gap

What Is It? Why Does It Matter?

Anyone in the United States can face any number of social, cultural, and personal challenges in a given year. Maybe an individual is struggling to maintain her family’s home despite threats of eviction. Maybe a young professional has accumulated medical bills from an unexpected and persistent illness, leaving him unable to work to pay them off. Maybe a mother is trapped in a terrible domestic situation, penned in by violence. Maybe a disabled veteran has been kicked off much needed public services and is navigating the appeals process alone while managing physical hardship.

All these are vexing problems, ones that disproportionately burden Americans who have fewer resources, financially and socially. As life problems and the complicated and complex legal system become intertwined, the civil justice gap becomes most apparent. In any given year, Americans face more than 150 million new civil legal problems, and every year as many as 120 million of those problems go unaddressed.2 And as Rebecca Sandefur’s pathbreaking research finds, only 14 percent of civil justice problems are taken to a court or hearing body.3

Americans, low-income or otherwise, struggle to claim and secure benefits and protections fundamental to our very democracy. When their efforts fail, these troubling problems can become legal needs, impacting individuals and their families across all aspects of social and civic life. Someone might not realize that they qualify for public programs that address food or housing insecurity. Or a veteran may return home to civilian life and struggle to understand legal documents and procedures. Or a middle-class family can teeter toward homelessness when faced with medical bankruptcy, job loss, or domestic violence. Or a grandmother with custody may have difficulties ensuring that her grandchild with special needs can get a quality education with necessary resources. Problems that can be solved through a legal system arise between people, with the companies Americans work for, or with government entities that determine who receives public services. The civil justice gap arises when people need and cannot get help navigating documents, options, and procedures in civil, criminal, and administrative settings.
 

The Civil Justice Gap Affects Every American

Most interactions with legal systems do not involve cases that reach litigation. Nevertheless, sometimes, when other solutions such as mediation or alternative dispute resolution fail, these problems do end up in our court systems. That a social or personal problem has developed a legal dimension with a remedy in law is not always obvious, however. Yet, the outcomes of these legal interactions, whether litigated in a case or denied in an agency decision, have real impacts on the rights, services, and options Americans have available to them to navigate problems and pursue opportunities.

Law, legal systems, and lawyer services are usually not the first solution to which a person turns when life problems get so bad that they expose that person to legal risks and vulnerabilities. The affected individual may not know how to name their legal problem or be aware of local services available to them, or they may believe they cannot afford those services or think a lawyer can do nothing to help. The unfortunate result is that too many people do not seek help. They might ignore letters that lead to defaults on debt or uncontested evictions. They might miss opportunities to modify protection or welfare orders when employment and income change. They might needlessly accept an eviction record that will disqualify their family from housing vouchers or other assistance programs. Or they may let deadlines pass for public grants and support programs for local small businesses. With distressing regularity, individuals might not realize they should seek help until court documents or case information is delivered directly.

When people do seek legal help, they often find no affordable legal services. That remains true despite efforts by the Legal Services Corporation (LSC), the congressionally created nonprofit organization that has built a network of legal services providers across the country over its fifty years. LSC has funded grantees in every state and state equivalent, and has organized bar and individual lawyer efforts to render legal services pro bono. Because of chronic underfunding, there is still insufficient free legal assistance to meet the needs of all who qualify. Although no one knows the full scale of legal problems that go unaddressed, the vast majority of the people who seek assistance from legal aid organizations do not secure the legal help they need. LSC’s April 2022 Justice Gap Report, for example, found that three out of four low-income households eligible for free legal assistance had faced one or more civil legal problems in the preceding year.4 Most of these problems had serious effects on families’ household finances, housing, relationships, safety, jobs, or mental or physical health. Of those low-income individuals, 92 percent reported that they received no or inadequate legal assistance from a lawyer.5 And while low-income Americans are particularly vulnerable, individuals from nearly all socioeconomic levels encounter both civil legal problems as well as financial and practical barriers to favorable legal resolutions. Stagnant funding, over so many years, means LSC grantees are unable to provide any or enough help for 71 percent of the civil legal problems brought to their door—that’s an estimated 1.4 million problems low-income Americans seek help for over the course of a year that current resource and capacity levels cannot reach.6

For those Americans not poor enough to qualify for scarce free legal help or whose issues cannot be taken because of resource constraints, the cost of obtaining private legal assistance is too steep for all but the wealthy or for larger corporations. Two-thirds of the U.S. population faced at least one legal issue from 2016 to 2020, according to the Justice Needs and Satisfaction study conducted by the Institute for the Advancement of the American Legal System (IAALS) and the Hague Institute for Innovation of Law.7 Civil justice problems affect every American at one time or another. Moreover, state requirements that a law degree and state license are prerequisites to offering any type of legal support limit participation in the robust workforce needed to address the justice crisis and chill programs that might otherwise furnish affordable or no-cost services when lawyers are not an option.

When no professional help is available, people are left on their own to navigate information, court documents and procedures not written in plain language or one they can understand, and the fallout from their legal issues. Moreover, while we think of justice as being administered within a system, in the federated form of government within the United States there are numerous systems of government, increasing the informational costs of understanding courts. At the least, in addition to the federal court system, each state court oversees multiple courthouses to serve its residents. California has 58 superior courts, one for each county—the Los Angeles Superior Court alone operates through 37 courthouses in the county’s 4,752 square miles.8 Data published of 47 states by the National Center for State Court’s Court Statistics Project show there are more than 2,000 such courts that might operate multiple courthouses, each with different rules, procedures, and resources to assist their patrons.9 While state courts, legal aid offices, bar associations, and nonprofit organizations do develop and offer “self-help” or “DIY” programs and free information for people representing themselves, these programs and solutions are unequally distributed and face the difficulties of working to scale across so many systems. Whether someone can find help depends on where they live. This often makes civil justice problems disproportionately more difficult for rural, immigrant, tribal, and other already vulnerable communities.
 

The Importance for a Functioning Constitutional Democracy

Civil justice ought not to be a luxury. It is a basic component of the rule of law, that idea that power will not be wielded arbitrarily, that it will be subordinated to well-defined laws, and that justice will be available equally to all. Given what is known about the civil justice gap and what it means for civil legal needs to go unmet, the access to justice problem is fundamentally an issue about the fair and equitable treatment of all individuals. In a nation founded on the rule of law, civil justice work gives its people the opportunity to claim those protections.10 A combination of state and federal legal systems, procedures, and assistance enables individuals to actualize those protections and liberties. A constitutional democracy that is operating under the rule of law can, in part, measure its commitment to civil rights and to equal justice by how successfully it opens the avenues of civil justice to all—in ways equitable, affordable, and accessible.

And yet, despite the urgency and importance of civil justice, Americans have no nationally recognized constitutional right to legal representation outside the criminal justice system.11 Many will recall television shows in which an officer informs individuals accused of a crime, “you have a right to an attorney, and if you cannot afford one, one will be provided to you at government expense.” This right, however, is limited to criminal matters. Americans have never had such a right in the civil justice system, where courts consider actions involving debts, including but not limited to bankruptcy, as well as evictions, family law, employment discrimination, tort liability, contracts, and countless other issues that arise in daily life. In approximately 75 percent of civil cases in this country, depending on the issue, at least one party is proceeding without a legal representative by their side.12 In many cases, both parties move forward without a lawyer.13 The absence of a right to counsel in civil matters is one reason the access to justice gap is so large. Of the 20 million civil cases filed in state courts each year, roughly two-thirds include a self-represented litigant. But that astonishing figure includes just the cases and litigants we can see. Beyond that lies the hidden crisis, consisting of millions more Americans experiencing legal problems but taking no legal action to protect their interests—or the up to 120 million legal problems that go unaddressed.14 Much of that scope relates to the adjudication of high-volume, high-stakes, low-dollar-value civil claims that arise in areas such as debt collection, evictions, home foreclosures, and child support.15

Individuals without legal assistance face numerous barriers as they try, alone, to negotiate private solutions, navigate administrative bureaucracies, or engage in arbitration or mediation to stay out of court. When these people go to court, they must navigate unfamiliar court systems and figure out their legal rights and responsibilities without experience or training to advocate in a process well known to lawyers and judges but as unfamiliar to most Americans as speaking a new language. Too often, Americans are their own lawyers in civil and administrative proceedings—without the benefit of a law degree or training.
 

A Pragmatic and Pluralistic Approach

Expanding access to justice for all is imperative. Solutions must be creative. Innovators must be willing to explore new ideas and, if necessary, improve existing rules and structures to move toward a world in which “equal justice for all” is not merely a platitude but an achievable goal. Achieving Civil Justice provides a broad framework for new thinking about this enduring problem. Rather than provide a single recommendation, this report takes a pluralistic and pragmatic approach, relying on evidence-based, data-driven projects that have been or can be tested and that expand access to justice in some small or large way.

Successful projects and ideas are making a difference in the legal services ecosystem. As will be recounted in more detail later, some are pilots or proof-of-concept projects that have been undertaken with the blessing—and, on occasion, under the edict—of local state courts. Others were seeded by ingenious inventors and individuals who partnered with foundations or businesses. Still others are as yet only promising ideas, some emerging from innovative scholarship, both empirical and theoretical. These are showcased here in the hope that they may move forward at least as experiments. What all these developments share is that they are reliably grown from a local, focused undertaking and born from real experiences with the civil justice gap. They build on local knowledge, strategic assessments, methodical planning, and examined evidence. Even so, while these examples highlight local needs and ideas, they can and should suggest opportunities to create and expand similar efforts elsewhere.

This publication’s strategy is likewise pragmatic. It seeks to maximize the possibilities of garnering enthusiastic new support and pressing forward with constructive change. This approach is different from that tried by a long line of civil justice reformers who have sought to achieve comprehensive reform through major national changes, only to claim incremental but important improvements.16 Some claim that existing federal and state funding programs should be sufficient—yet Congress’s appropriations to LSC have not kept up with inflation or increasing legal needs, leaving legal aid organizations nationwide to ration help to low-income Americans eligible for free services.17 Others advocate for expanding other non-LSC federal programs to enable those funds to support legal aid services.18 Likewise, current levels of state funding continue to limit local adoption of new strategies and technology, and prevent expansion of services that could respond to rising needs surrounding debt, housing, and health crises.19 Many insist that practicing lawyers must simply deliver more pro bono legal services. Those who support this approach often call for new pro bono mandates on lawyers and law students.20 Some insist that law schools are too expensive, thereby incentivizing new lawyers to seek higher-paying jobs to pay off their own debts, and too focused on sending graduates into firms serving only the business sector.21 According to a national study of civil legal aid lawyers conducted by the American Bar Association in 2023, there are only 2.8 paid civil legal lawyers nationwide for every 10,000 people in poverty.22 Others active in the civil justice movement advocate specific court and regulatory reforms that could make a big difference, such as calls to modernize courts and access to them so that judges preside over the merits of a case rather than deficiencies in procedure.23 And they include calls to eliminate Rule 5.4, an American Bar Association (ABA) model rule that limits nonlawyers’ investments in law firms.24 Still others criticize the ABA and state bar associations for clinging to outmoded “unauthorized practice of law” rules that, well-intentioned or not, overregulate professional legal services to the point of preventing willing and capable nonlawyers from helping individuals with basic and specialized legal needs.25 Meanwhile, evidence-based research has illuminated the limits of projects primarily focused on training lawyers, rather than focusing on serving unmet legal needs. In response, many have called for training other trusted professionals and community volunteers, such as social workers, librarians, counselors, community leaders, educators, and everyday citizens, with the skills and knowledge needed to assist people navigating legal challenges.26

All these arguments are worthy of consideration but need not stop the flow of help to people who need it. Many, if not most, of the projects and ideas recounted in this report can be adapted and implemented in the present civil justice ecosystem, without any overhaul of existing regulations. This is important to emphasize: significant change can be achieved today, given resolve, more funding, and a pluralistic and pragmatic strategy.

Achieving Civil Justice is based on a vision that is fundamentally people-centered, recognizing that lawyers and judges must work in partnership with and be supported by a wide array of civic, nonprofit, business, and community leaders. This approach seeks to drive understanding, cooperation, and collaboration about the right-sized roles for each system actor, while acknowledging the essential participation of those being served. Enabling all Americans to have access to justice—truly scaling improvements and changes—will require a broader range of people working together, from many disciplines. This report argues that this vision is achievable, already being enacted in various places and projects, and is ready now for adaptation and replication.
 

A Guide to the Chapters that Follow

Achieving Civil Justice is designed for many audiences. The goal is to spark new conversations and inspire new thinking. The civil justice movement has focused on the urgency and magnitude of the crisis, and rightfully so. This report adds a collective framing for how civil justice progress can be achieved. It, and the examples it showcases, will jumpstart new conversations about what can be done to serve unmet legal needs. Connected, robust networks of professionals and organizations are collectively working toward a common vision. Actors include state supreme courts, bar associations, members of state and national legislatures, organizations of lawyers and other professionals who deal with law, and law schools. But they also include organizations of tenants, veterans, small business owners, intimate partner violence support groups, entrepreneurs, business leaders, advocates, technologists, and many more with an interest in expanding access to justice.

The efforts described here emphasize collaborative ways to not only develop but also scale projects and proposals. They will capture the interest of the widest possible group of stakeholders and encourage actionable steps to close the justice gap.

The first part of Achieving Civil Justice sketches the scope of the civil justice problem. The second part offers examples of efforts that are addressing the problem through research, experiments, and improvements to legal systems. As the second part describes in detail, commitments and initiatives across many institutions and organizations built the civil justice movement’s momentum, resulting in the strategies described in this document. Finally, the third part distills best practices from those experiences and ends with four actionable steps that new and interested organizations can take to put justice within reach of more Americans.

This report, of course, is not the end of the inquiry. As the legal landscape evolves, and as more people and organizations develop successful models, insights, and approaches to close the civil justice gap, more opportunities to collaborate and contribute will later emerge.

Justice for only those who can afford it is neither justice for all nor justice at all. If the justice system is to deliver on the faith America asks people to place in it and on the values it claims to preserve, greatly improved access to justice is an imperative.27

—Nathan L. Hecht, Chief Justice of the Supreme Court of Texas

Endnotes

• 2Martin Gramatikov, Rodrigo Núñez, Isabella Banks, et al., Justice Needs and Satisfaction (Institute for the Advancement of the American Legal System and Hague Institute for Innovation of Law, 2021).
• 3Rebecca L. Sandefur, “The Impact of Counsel: An Analysis of Empirical Evidence,” Seattle Journal for Social Justice 9 (1) (2010): 56–59. See also Rebecca L. Sandefur, Civil Legal Needs and Public Legal Understanding (American Bar Foundation and University of Illinois at Urbana-Champaign, 2015).
• 4Mary C. Slosar, The Justice Gap Report: The Unmet Civil Legal Needs of Low-Income Americans (Legal Services Corporation, 2022).
• 5Ibid.
• 6Ibid., 75.
• 7Gramatikov, Núñez, Banks, et al., Justice Needs and Satisfaction.
• 8Superior Court of California, Biennial Report 2021–2022 (Superior Court of California, County of Los Angeles, 2022).
• 9National Center for State Courts, “State Court Organization Data,” Court Statistics Project.
• 10Martha Minow, “Access to Justice,” American Journal of Law and Equality (2022): 293–311.
• 11Ibid., 295.
• 12Jessica K. Steinberg, “Adversary Breakdown and Judicial Role Confusion in ‘Small Case’ Civil Justice,” Brigham Young Law Review 2016 (3) (2017): 899–970 (noting the rise in “unrepresented majority” and other factors as contributors to the “breakdown of adversary procedure” in two-party civil cases).
• 13Nora Freeman Engstrom and David Freeman Engstrom, “The Making of the A2J Crisis,” Stanford Law Review 75 (2024): 146–165.
• 14Rebecca L. Sandefur, “What We Know and Need to Know About the Legal Needs of the Public,” South Carolina Law Review 67 (2016): 443, 446–448 (reviewing national surveys and reporting that there are “well over 100 million Americans living with civil justice problems” and that the majority take no formal legal action to address the problem).
• 15“High-Volume Civil Adjudication,” American Law Institute, 2024(archived March 31, 2024).
• 16For instance, there have regularly been calls for a “Civil Gideon,” referring to the Supreme Court decision declaring that the government must provide a lawyer for all criminal defendants—with the idea that the Supreme Court should hold that everyone in civil courts must have such a right as well. To date, campaigns for a civil right to counsel have been primarily locally driven, by city or county efforts within states, and only on specific issues like eviction. The National Coalition for a Civil Right to Counsel, a national campaign organization with the mission to expand the right to counsel in civil cases, has helped garner support for these changes, but much remains to be achieved before a national Civil Gideon can be realized. See “Our Work,” National Coalition for a Civil Right to Counsel.
• 17Legal Services Corporation, “Proposed House FY 2024 Budget Cut Would Impair Already Under-Resourced Legal Aid Programs,” press release, June 26, 2024. See also “Legal Aid Funding Data Arrays,” ABArray National Legal Aid Funding Data, American Bar Association (an online array of aggregate national civil legal aid funding data from 2003 to present time) (accessed July 28, 2024).
• 18National Legal Aid & Defenders Association, “Civil Legal Aid Initiative: Non-LSC Federal Resources,” Tools & Technical Assistance, NLADA.org (accessed July 28, 2024).
• 19Legal Services Corporation, “Balancing the Scales: State Efforts for Local Legal Aid Funding,” The PBIEye, Pro Bono Institute, May 22, 2024(highlighting several state efforts to complement and bolster federal civil legal aid funding through state-driven campaigns).
• 20See “Pro Bono Reporting,” American Bar Association (last updated May 23, 2024).
• 21Matt Reynolds, “Civil Legal Aid Lawyers Are Often the Last Line of Defense: Why Are There So Few of Them?” American Bar Association, April 1, 2024 (discussing the 2023 ABA Profile of the Legal Profession that revealed civil legal aid lawyers are in short supply in the United States and citing studies that point to low satisfaction with pay and workload and high cost of living compared to average legal aid compensation).
• 22American Bar Association, “ABA Profile of the Legal Profession 2023,” Civil Legal Aid (displaying a visual map of each state’s ratio of civil legal aid lawyer per 10,000 residents in poverty).
• 23Kathleen Cahill, “Why America’s Civil Courts Need Reform,” The Pew Charitable Trusts, September 9, 2021.
• 24Conrad J. Jacoby, “Practice Innovations: Non-Lawyer Ownership of Law Firms—Are Winds of Change Coming for Rule 5.4,” Thomson Reuters, March 29, 2022 (discussing approaches in Utah, Arizona, and California that have permitted entities not owned by lawyers to offer legal services to the public).
• 25Cayley Balser, Erin Weaver, Stacy Rupprecht Jane, et al., “Leveraging Unauthorized Practice of Law Reform to Advance Access to Justice,” Law Journal for Social Justice 18 (Fall 2023): 66–112.
• 26Rebecca L. Sandefur, Matthew Burnett, Lauren Sudeall, et al., Access to Justice Research as a Tool for Advancing Federal Priorities: Workshop Report (American Bar Foundation, 2024) (reporting on insights from a National Science Foundation–funded workshop that convened more than fifty researchers and federal agency staff to engage in a structured discussion of opportunities to increase access to civil justice through evidence-based policymaking).
• 27Nathan L. Hecht, “The Twilight Zone,” Dædalus 148 (1) (Winter 2019): 192.