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«Legal aid, accessible courts or legal information? Three access to justice strategies compared Maurits Barendrecht Tilburg University, Tilburg ...»

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TISCO WORKING PAPER SERIES ON CIVIL LAW AND

CONFLICT RESOLUTION SYSTEMS

Legal aid, accessible courts or legal

information?

Three access to justice strategies compared

Maurits Barendrecht

Tilburg University, Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution

Systems (TISCO), International Victimology Institute Tilburg (Intervict), Tilburg Law and Economics

Centre (Tilec); Hague Institute for the Internationalisation of Law (HiiL) j.m.barendrecht@uvt.nl TISCO Working Paper Series on Civil Law and Conflict Resolution Systems No. xxx/YYYY Month dd, YYYY, Version: 1.0 & 1 Tilburg University Legal Studies Working Paper No. xxx/YYYY This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://ssrn.com/abstract=XXX 2 Maurits Barendrecht Legal aid, accessible courts, or legal information?

Three access to justice strategies compared Abstract Access to justice can be enhanced in many ways, but what is the most effective way to do this, given limited resources? Three perspectives are used to compare access to justice policies: (1) costs and benefits, (2) transaction costs (diminishing market failure and government failure), and (3) legal empowerment (enhancing people’s control over their lives and their bargaining position). The analysis suggests that a legal information and education strategy should have a higher priority, because it empowers clients in their conflicts with others, but also increases the accountability of lawyers and judges. Improving access to (informal) procedures is important, although it is hard work for policy makers, who have to compensate for a lack of incentives on judges to deliver low cost and timely decisions of acceptable quality. Civil legal aid on an individual basis is a rather costly strategy.

Moreover, legal aid is less likely to create just outcomes on its own: a judge without a lawyer is more valuable than a lawyer without a judge.

3 Table of Contents I. THREE WAYS TO ENHANCE ACCESS TO JUSTICE

II. COST-EFFECTIVENESS

A. LEGAL AID

B. ACCESSIBLE COURT PROCEDURES

C. LEGAL INFORMATION

III. TRANSACTION COSTS: MARKET AND GOVERNMENT FAILURE

A. LEGAL AID

B. ACCESSIBLE COURT PROCEDURES

C. LEGAL INFORMATION

IV. EMPOWERMENT

A. LEGAL AID

B. ACCESSIBLE COURT PROCEDURES

C. LEGAL INFORMATION

V. DISCUSSION

VI. CONCLUSION

I. Three Ways to Enhance Access to Justice

Everywhere in the world, women need access to justice in case of a divorce. They may need to ensure child support from their husband, and probably a share in the property or some form of alimony. There may be domestic violence to deal with. For the children, it is important to continue the relationship with their father. Now what is the best way to spend €1000 of government money for these women and children? Should it be used to buy 10 hours of state of the art legal aid in divorce cases? Should the money go to 10 hours of services by a judge, in a modern, customer-friendly procedure before a formal or informal court? Or should the money be given to a text writer to work for 10 hours on informing women about their rights in a state of the art way?

Legal problems are the problems of everyday life (Pleasence, Buck et al. 2004; Currie 2007). They occur when people divorce, lose their jobs, migrate, die (inheritance), have an accident (personal injury), buy goods or services that do not work as expected, or see their business cooperation fail.

When people experience such a shock in their personal lives, they are likely to need access to justice. Their relationships to other people change and have to be redefined. Often they will be entitled to a share in property, to monetary compensation, or to another form of redress. Getting this redress can be complicated and costly.

In the access to justice literature, many waves and approaches to improve access to justice have been distinguished (Cappeletti and Garth 1978; Parker 1999; Anderson 2003; Moorhead and Sherr 2003; Rhode 2004; Bhabha 2007).

Three main strategies stood the test of time:

1. Individualized legal aid and legal advice (pro bono, subsidized legal services, public defender models);

2. Improving accessibility of individual or group procedures (at courts, in informal justice systems, in every day justice practices, or ADR);

3. Empowerment through legal needs related information (legal information, codification, public legal education, negotiation and conflict management skills) In this paper, these three strategies are compared. They complement each other, but also compete for resources. What do we know about their effectiveness, and their possible side-effects?

4 To that end, I will review the literature on access to justice using three theoretical perspectives. That is the only thing we can do, now that there is not yet a large body of empirical research on the effectiveness of access to justice strategies. We do not yet know what works. As a consequence, this research cannot be more than explorative in nature. Perhaps the best we can hope for is that this exercise helps to identify research issues that make access to justice policies more evidence based.





The first perspective is cost-effectiveness. The benefits for the users (decreased costs of access to justice and increased procedural justice/outcome justice) and the costs of the strategy for governments can be assessed. Secondly, the three strategies are studied from the perspective of transaction costs. Are these policies likely to remedy the market failure that make it difficult to obtain access to justice by relying on private legal services, or to compensate for the government failure that is likely to occur when the state provides dispute resolution mechanisms? Finally, the way these strategies are believed to contribute to empowerment of the beneficiaries is reviewed.

Before we apply these perspectives, the strategies have to be defined more precisely. Good legal aid may be better than mediocre courts or sloppy legal information. Strategies are dynamic: legal aid has developed from mere litigation assistance into the direction of counseling and negotiation help. In order to minimize these problems of comparability, I will focus on the strategy as it is currently applied by the top 30% of the profession, because that is where investments in access to justice are likely to go. There is no systematic review of these practices, showing what the best professionals in town are doing to help their clients. But based on the literature, and on best practices studied in developed legal systems, as well as in five developing countries, I come to the following

assumptions:

When talking about supporting individual legal aid, the state of the art seems to be that lawyers have the knowledge and skills to lead a client through negotiation and litigation in standard situations. In divorce cases, this will probably mean that the woman receives some form of counseling to sort out the problem and her ability to cope with it. Then the lawyer will approach the other party for an amicable solution, using a mix of advocacy, negotiation, and mediation skills. If no solution can be reached, the client will receive the necessary litigation support (Mather, McEwen et al. 2001).

If we talk about investing in access to courts, we focus on a modern, customer-friendly procedure before a formal or informal court. For a family court, it would mean that a woman can easily bring forward their case, using her own words for her legal needs, before a judge who will help the parties to settle a case, and will give a speedy decision if that does not work. The procedure and the rules of substantive law make it likely that solutions are practical and fit the interests of those involved.

When discussing informing the women about their rights, the state of the art way of providing information is certainly that it is presented in a form that is understandable for the clients without having to consult an expert (Buck, Pleasence et al. 2008). Moreover, the information is tailored to the problem at hand, arrives just in time (when needed to act upon) and is sufficient to cope with this problem, promoting self-reliance. So it will contain information about the process and about the likely outcomes, and offer a (limited) number of options (Lawler, Giddings et al. 2009). In case of a divorce, the package may entail information about how to cope with the divorce situation, legal information about what are normal outcomes for child support, custody, and property division, as well as the processes of negotiation and addressing a court, which is sufficient for a pro se litigant (Van Wormer 2007). There may even be some form of online dispute resolution help, that makes use of the advantages of online communication (Katsh 2007; Van Veenen 2010).

5 II. Cost-effectiveness The first perspective is that of cost-effectiveness. If money is spent on legal aid, better court procedures, or legal information, this will have effects on the lives of the clients. They may obtain monetary compensation, and other positive outcomes, such as a workable relationship with their exhusband. The way they are treated during the process may enhance their sense of justice being done.

More formally, we should investigate the effects on clients during the entire process from the first time they sought information or help, to the stage that they reach a final outcome. Such a path to justice will typically have the following stages: meeting, talking (communication and problem solving negotiation), sharing (distributive negotiation), deciding (by the parties themselves, or by a third party taking the decision for them), and stabilizing (making the expectations for the future relationship explicit and ensuring compliance).

The usual approach is to measure the effects of the interventions in terms of procedural justice and outcome justice (Gramatikov, Barendrecht et al. 2008). A further breakdown may be useful, but for the purpose of this article it is sufficient to use these two broad categories. Costs of access for clients can be assessed in term of out of pocket expenses, opportunity costs (time spent and loss of value during the process), as well as emotional costs. For governments, the costs are mostly the expenses for access to justice falling on the budget for the department of justice.

A. Legal aid Legal aid is usually given on a one lawyer to one client basis. Then,the calculation of the direct costs and benefits is rather straightforward. The costs are reflected in the hourly fee of the lawyer. In the Netherlands, the average amount of money paid to a legal aid lawyer is around €1000 per case, which is based on an average hourly fee of around €100, which are convenient numbers for a rough calculation. In the UK, the average amount paid out per case is a multiple of this. At the other end of the spectrum, there are the paralegal programs offered by NGO‟s in developing countries. Typical costs per case may be around $100 there (and several 100‟s of $ at purchasing power parity), assuming legal aid is given by a well trained paralegal. Much less has to be spent if support is given by a volunteer with a limited amount of training.

The direct benefits of legal aid consist of the added value that accrues to the client: money and assets recovered, the experience of procedural justice and outcome justice. Moreover, the client may save some costs, because the lawyer does work that the client would otherwise have to do herself.

Usually, the benefits for the clients will be higher than the costs of legal aid for the government, so there is a net gain here.

Civil legal aid will also have some indirect benefits. A recent literature review on legal aid in family cases reports that civil legal assistance can reduce the need for safety-net programs, re-arrests of juvenile offenders, the time children spend in foster care, the incidence of domestic violence, improve clients‟ health, and reduce the costs associated to eviction (Abel and Vignola 2009). Sometimes lawyers work for groups of clients, or they achieve a result that serves as a precedent for many other cases (public interest litigation). There will also be collateral costs: actions of legal aid providers will often impose legal costs on opponents. Some of the benefits accruing to the client will be a Pareto improvement, but successful legal aid efforts will often also result in a payment to the client that has a purely distributive effect, where the gain for the client corresponds to a loss for the opponent.

One problem with legal aid is that its effectiveness depends on the functioning of the broader legal system. Hazel Genn made this point in her Hamlyn lectures in relation to mediation, but it applies to legal aid as well: “Mediation without the credible threat of judicial determination is the sound of one hand clapping” (Genn 2008). A lawyer, just like a mediator, will usually not be able to reach a fair result for his client, if there is no judge who can impose such a result.

6 In a recent qualitative study regarding Oxfam Novib legal aid projects in 5 developing countries, we found strong evidence of this. Legal aid providers try to negotiate solutions in divorce cases, but the outcome depends on the effectiveness of a threat to pursue the case before a court or another neutral forum. According to the legal aid providers we interviewed in Egypt and Bangladesh, every man knows that it will be hard for his wife to obtain a court decision about child support and property and to enforce it. In negotiations, the men have the power. In Bangladesh, we even found widespread disappointment in litigation among poor women receiving legal aid.



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