Eighty-six percent of low-income Americans do not get adequate legal help for their civil legal issues, according to a new study on the justice gap by the Legal Services Corporation. Eighty-six percent. Imagine if 86 percent of children did not get adequate education, or if 86 percent of those under the poverty line lacked suitable housing. It would be scandalous. Yet, when it comes to legal services, this astonishing justice gap is not only tolerated, it’s largely ignored.
First, some background. The report, The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans, analyzes data gathered by the 2017 Justice Gap Measurement Survey, described as “the first national household survey on the justice gap in over 20 years,” as well as an intake census of 2000 individuals conducted by 133 LSC-funded legal aid programs between March and April of this year. The Legal Services Corporation was created by Congress in 1974 and is the single largest funder of civil legal aid for low-income Americans.
The LSC defines low-income individuals as anyone making below 125 percent of the Federal Poverty Level, or an annual income of $30,750 or less for a family of four. That encompasses over 60 million Americans, including 17 million veterans, 11 million individuals with disabilities, and 6.4 million seniors.
The justice gap identified by the LSC report is staggering. Seventy-one percent of low-income Americans experienced at least one civil legal problem in the past year, yet the vast majority of them did not receive adequate legal assistance. A sizable minority, 24 percent, faced six or more civil legal issues.
Certain subgroups were more likely to experience legal issues, including some of the most vulnerable. Those with disabilities, families with children, and individuals in rural areas were all more likely have legal problems. Households with survivors of recent domestic abuse or sexual assualt were the most likely to experience civil legal issues; 97 percent had at least one such issue, 67 percent had six or more.
These weren’t trivial matters, either. Seventy percent of those surveyed said that their legal issues had “very much” or “severely” impacted their lives. They included foreclosures, custody battles, spousal abuse, access to needed benefits—the sorts of issues that can dramatically change one's life.
The legal issues facing low-income Americans were wide ranging:
Despite the prevalence of legal issues among this group, only one in five sought legal help for their problems. They were most likely to turn to legal professionals for clearly “legal” issues, like putting together a will for example, than they were for issues that might not be so obviously legal, such as healthcare billing disputes or making sure schools accomodated a child's learning disability.
Discovery as a Barrier to Justice
While there are many factors that contribute to the justice gap, cost remains a persistent one. Fourteen percent of those surveyed said they did not seek out legal assistance because of concerns about cost.
Those costs may not have involved extensive civil discovery—those surveyed most often sought out simple legal advice, rather than full representation in litigation—but discovery certainly raises access to justice concerns. When matters do progress to litigation, discovery costs can quickly become prohibitive, prohibitive enough to keep not just low-income Americans out of the legal system, but all but the most well-heeled individuals and organizations.
As Judge John M. Facciola of the U.S. District Court for the District of Columbia put it in an interview with Logikcull a few years back, “probably no greater challenge has been faced in terms of administration of justice in this country.”
The costs of discovery may, in the long run, drive an entire economic class out of the federal court for lack of means to engage. It's all well and good when monumental companies go after each other with their extraordinary resources, but if we get use to those big bills as being typical of what can be expected in cases involving electronic discovery, obviously those costs will overwhelm smaller cases involving smaller entities.
Certainly I am in despair over how the ordinary lawsuit between a single plaintiff and a moderate-sized corporation can possibly go forward unless we figure out a way to get the costs of discovery down and make them more manageable.
Moving Beyond Tolerating the Justice Gap -- To Exacerbating It
Judge Facciola has faith that some of these issues can be successfully addressed. “The solutions are ahead of us,” he explains. Solutions like changes in discovery technology and recent and forthcoming revisions to the Rules of Civil Procedure.
But when it comes to low-income Americans seeking help from legal aid organizations, things might get worse before they get better. The Legal Services Corporation may lose all its funding under the current administration.
“Without the LSC,” ABA President Linda A. Klein says, “courthouse doors will be closed to low income Americans with unmet legal needs.”