Access to Justice
As I've touched on before, most Utahns (and Americans) really only have access to two branches of government -- the executive and legislative. Though we have outlawed financial barriers that interfere with citizens' participatory rights to those two branches (e.g., poll taxes), access to the judicial branch is severely limited because of cost. Rather than having a meaningful opportunity to assert and defend rights, most people encounter the civil justice system only when some better-heeled Utahn (or American) or business wants to use the system's machinery to grind them into powder.
Access to justice is too expense, because we've made the system so complex (in a Quixotic quest for perfection). The average person can't navigate it. However, we have cruelly limited the pool of people who can help the average person navigate that complex system. By law, only lawyers can help. Economics 101 teaches that limiting the pool of suppliers in such a way inflates cost. So, by limiting the supplier pool, we have placed help (and access to civil justice) beyond the reach of most Utahns (and Americans).
A key to improving access to justice, therefore, is to broaden the pool of service providers. Let non-lawyer specialists provide law-related services in more areas. We have done this successfully for tax law (accountants) and real estate conveyancing (real estate and title agents). Consumers and the economy have benefited. Why not do it in more areas?
Though it is more detailed than I have time to write or you have interest to read, I have -- shall we say -- "bumped up against" the bar association and the courts to expand the pool of providers. In somewhat disjointed movements, the legislature, the courts and the bar have lit upon an experiment to allow non-lawyers to provide representation in small claims courts. For example, a father could help a daughter or an experienced neighbor could help a nervous friend. I think we'll see the system work better. I'm pleased that Justice Durham signed the Order in June allowing the experiment to move forward.
While I believe the courts and the leaders of the bar do want to improve access to justice, I simply think we are not looking hard enough at the right tool for the job -- the marketplace.
Access to justice is too expense, because we've made the system so complex (in a Quixotic quest for perfection). The average person can't navigate it. However, we have cruelly limited the pool of people who can help the average person navigate that complex system. By law, only lawyers can help. Economics 101 teaches that limiting the pool of suppliers in such a way inflates cost. So, by limiting the supplier pool, we have placed help (and access to civil justice) beyond the reach of most Utahns (and Americans).
A key to improving access to justice, therefore, is to broaden the pool of service providers. Let non-lawyer specialists provide law-related services in more areas. We have done this successfully for tax law (accountants) and real estate conveyancing (real estate and title agents). Consumers and the economy have benefited. Why not do it in more areas?
Though it is more detailed than I have time to write or you have interest to read, I have -- shall we say -- "bumped up against" the bar association and the courts to expand the pool of providers. In somewhat disjointed movements, the legislature, the courts and the bar have lit upon an experiment to allow non-lawyers to provide representation in small claims courts. For example, a father could help a daughter or an experienced neighbor could help a nervous friend. I think we'll see the system work better. I'm pleased that Justice Durham signed the Order in June allowing the experiment to move forward.
While I believe the courts and the leaders of the bar do want to improve access to justice, I simply think we are not looking hard enough at the right tool for the job -- the marketplace.
posted by steve u. at 7/10/2005
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3 Comments:
I bet we lawyers would not enjoy the monopoly we have were it not the case that those who write the laws giving us such a monopoly have always been, by and large, lawyers.
As you identify, the situation is wholly a creature of legislative bodies (commencing in earnest with the Great Depresssion). Why have legislatures conferred so much power over so much turf to one profession?
Yes, part of it is lawyers grabbing what they can (as plainly shown by some lawyers' unfiltered comments to me that their bottom lines are what matter above all else). But, the more I study this issue, the more I believe it is the product of a profession trying to do good, believing that only lawyers can do the job properly. But, with lawyers being so powerful in the political arena (as you mention, most legislators used to be lawyers -- that is changing now), the debate moved too far in their favor. It has led to an unhealthy policy position -- that people are better to surrender their rights, if they can't afford an attorney, than they would be to go to someone else (maybe smarter, wiser, more-experienced) who might be able to help.
I'm enjoying working with good people on this issue. And I think we'll improve as a society. A big hurdle we need to get past on this issue is that this will weaken the legal profession. Nonsense. Good lawyers will always have special skills that people who can pay for will pay for. It is the bad lawyers that competition would urge elsewhere.
Amen, I couldn't agree with your stance more on this issue! I think this same sort of thinking ought to be applied to medical field as well (see my post in the Medical Perscription Drug comments).
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