Essential Facts about Civil Justice in the United States: What We Need to Know and How to Learn It
Introduction
Democracy requires and relies on a fair and equitable justice system that is accessible to the people it serves and provides equal justice under the law. When the justice system is closed to some, or treats them unfairly, public trust in justice suffers, and people are less likely to comply with the law.
A growing body of evidence, including two recent publications of the American Ƶ of Arts and Sciences,1 suggests that the United States faces a serious crisis known as the civil justice gap: the great difference between the number of Americans who need civil legal assistance and the very few who receive help of any kind.
Most justice problems do not end up in court. Disagreements between two parties, bureaucratic oversights, or simple mistakes in paperwork can sometimes be solved with a little expert guidance. But when civil problems end up in court and one or both parties are unrepresented by lawyers (often because they cannot afford or do not know where to find legal assistance), people can unknowingly give up important rights or inadvertently fail to meet their responsibilities under the law. The consequences for individuals, families, and communities can be disastrous.
The consequences for the justice system can also be serious, as it is often overwhelmed by the number of people trying to navigate complicated legal processes unassisted. Many court systems are not able to meet their statutory responsibilities to litigants, such as providing legally mandated language interpretation services to those who need them.2
Researchers have started to document the effects of the civil justice gap across U.S. communities. Available evidence suggests the problem is a threat not only to the people and communities who experience justice problems but to the promise of justice itself. Nevertheless, researchers have only a general understanding of the problem. They simply do not know enough about who faces civil justice issues, which issues they face, and what consequences these issues have for long-run outcomes. And the data that do exist are often inaccessible to researchers, policy-makers, and others who want to understand this problem so that they can work to solve it. In the absence of hard facts about the civil justice gap, attempts to address the problem have been scattershot and incomplete. Policy-makers and legal services providers struggle to formulate workable solutions because they do not even know which problems they are trying to solve.
For example, little is known about which justice issues become court cases and which do not. Once a justice issue becomes a court case, little is known about what happens (e.g., motions, orders to show cause), who participates (lawyers, nonlawyer advocates, the litigants themselves), for how long (case duration), what the legal outcomes are (judgment, dismissal, etc.), and how these in turn result in human consequences for the people and communities involved (loss of home, family security, sustenance). Courts and legal professionals do not always collect the data needed to answer these questions. Or they do not collect data in a way that can be shared and compared with data from other jurisdictions. And few have structured their privacy and confidentiality agreements in ways that allow them to protect the interests of those with the most at stake while safely sharing data with researchers and others.
Though the civil justice gap has persisted for decades, scholarly research on the issue has been relatively haphazard. Important studies have responded to the specific needs of the policy community or to the curiosity of individual scholars. But no clear research agenda has emerged. Nor have practitioners—lawyers, courts, legal clinics, and so on—organized themselves to advance the knowledge of the field. This white paper outlines a fundamental research agenda for an area in which studies are proliferating but are not yet connected and guided by a set of integrating questions. It also outlines practical steps for taking action on that agenda.
Endnotes
- 1American Ƶ of Arts and Sciences, Civil Justice for All (Cambridge, Mass.: American Ƶ of Arts and Sciences, 2020); and “Access to Justice,” æ岹ܲ 148 (1) (Winter 2019).
- 2American Ƶ of Arts and Sciences, Civil Justice for All, 22.
Methodology
The American Ƶ conceived this project in November 2015 during a conference that brought together a diverse group of federal and state judges, lawyers, legal scholars, legal aid providers, officials from each level of government, and business leaders concerned about the state of legal services for poor and low-income Americans. They gathered to explore the scope and consequences of inadequate access to civil justice for Americans who most need it.
Three related efforts grew out of the conference: the Winter 2019 issue of the Ƶ’s journal æ岹ܲ on “Access to Justice”; Civil Justice for All, a report that advances clear recommendation for closing the civil justice gap; and this blueprint for data collection.
In advance of the first meeting of this project, in June 2018, the project committee distributed an informal survey to courts, legal aid organizations, social service providers, law firms, and others—many of whom shared the questionnaire through their networks—asking them to help identify valuable and relevant data sets, including records from courts, unions, legal services providers, social worker associations, and housing authorities. The committee received 134 responses. And while the committee hoped to discover new pockets of as yet unrecognized data, concerns about the lack of information were strongly confirmed. Few organizations collect data about civil legal matters in the form, and with the kind of granularity and specificity, that would enable a serious discussion about the nature of the problem and possible remedies. Those that do collect the kind of data needed are hampered by red tape and outdated approaches to data privacy and other access issues. As a result of this early survey, the committee decided to divide into two working groups: one to identify the essential facts that should be collected about civil justice activity and entities who already hold that information or are well-placed to collect it; and one to develop a set of data access standards to help guide the use of civil justice data for research purposes.
In addition to the early survey, this report reflects 27 months of work by a panel of 20 experts on civil justice, representing both the worlds of policy and practice and the academic disciplines of law, sociology, and political science. It also draws on the findings of the committee—close to 100 participants—that wrote the Ƶ’s Civil Justice for All report.
Stakeholders
Many groups have a stake in this issue, including those who want to understand and improve the quality of justice in this country; those who want to investigate how the lives of individuals, families, and communities can be improved in the face of challenges like eviction, debt collection, family separation, aging, and illness; and those who want to support and experience America’s promise of equal justice under the law.
Researchers and policy-makers seek data to better understand the functioning of the civil justice system. For example, they want to know who is able to turn to the courts when they face justice problems and how court outcomes differ for people represented by counsel as opposed to those who are not. They also want to know whether civil justice outcomes differ based on litigant demographics such as race, gender, age, and income. In addition to understanding how courts operate, researchers are interested in linking civil justice data with other data sets to investigate the economic, demographic, and social antecedents of civil justice involvement and its downstream consequences for health, housing security, education, and economic security.
Courts require data to understand their operations, decide how to allocate their resources fairly across many urgent needs, identify patterns and trends of fairness and unfairness in the cases that come before them, and design and implement effective interventions to improve the quality of justice. They are interested in whether particular actors are frequent users of the courts, whether those actors are imposing excessive demands on the courts or on their adversaries, and whether certain litigants suffer from power imbalances in the courts. They are interested in assuring that their practices do not discriminate with respect to race, ethnicity, gender, disability, and other demographic dimensions and qualities of the litigant population. Courts want to know that their practices are effective in providing justice and that people with legal concerns are able to obtain the forms of relief that are uniquely available from courts. Finally, courts have an important stake in making the complexity of justice systems comprehensible to people who would otherwise know the courts only as opaque and intimidating institutions.
Legal services providers require civil justice data to reveal pockets and patterns of unmet legal needs and the presence of underlying systemic problems. They require these data to set priorities for the allocation of legal resources and to assess whether particular legal interventions make a difference in outcomes. Data are necessary to assess the quality of legal services and can help providers make the strongest case for sustaining and expanding financial support for their work.
The largest and most important constituency with a direct stake in the increased disclosure of civil justice data is the public. Data provide perspective on the quality of justice Americans receive and are especially important in this time of heightened concern about the rule of law and the treatment of vulnerable people in, and outside, the nation’s courts. Members of the public cannot understand what courts are actually doing, and the degree to which they are fair in their actions, without information about those activities. Organizations across the nonprofit sector that promote good government, social justice, racial justice, gender justice, economic justice, health justice, or other goals essential to the public all have an interest in information that helps illuminate problems, define solutions, and evaluate progress. Likewise, officials in all houses of government, journalists reporting on a multiplicity of fields, and leaders of law enforcement, among others, also need civil justice data to support their missions.