Legal aid, accessible courts, or legal information? Three access to justice strategies compared
This important and interesting theoretical paper by Maurits Barendrecht from Tilburg University in the Netherlands was published in July 2010. The study explores three different strategies to enhance access to justice looking in turn at legal aid, accessible court procedures and legal information. To assess whether investment in any of these will improve access to justice, the author considers costs and benefits, transaction costs and legal empowerment.
The analysis suggests that a legal information and education strategy should have a higher priority, because it empowers clients in their conflicts with others and increases the accountability of lawyers and judges.
‘Legal information, and easy access to a neutral forum, are more cost effective, more likely to enhance self-reliance on the market for justice services, and more likely to lead to legal empowerment. Providing legal information can be done using large economies of scale even across borders. A judge without a lawyer is worth more than a lawyer with a judge, because many people will settle in the shadow of a court intervention.’
Investing in publicly available legal information can reduce the costs of legal aid and the costs of accessing procedures before a court or tribunal. Legal information is empowering for poor clients seeking access to justice, in their relationships to opponents, to lawyers and to judges. It helps clients to take control and can enhance their bargaining position.
The study refers to national and international reports and literature on accessing justice and has a useful list of relevant papers.
The analysis compares three strategies: individualised legal aid and legal advice, improving accessibility of individual or group procedures, such as court, and empowerment through legal needs related information.
Individualised legal aid and legal advice
The study looks at direct and indirect benefits. Whilst legal aid has a clear net gain to the client, this nevertheless relies on the effectiveness of the wider justice system. Without providing a neutral adjudication and enforcement mechanism as a back up, it will not lead to fair and just outcomes.
‘As a rule of thumb, pure legal aid may get you about half of what you are entitled to, if you have to negotiate in the shadow of a costly and/or lengthy procedure’.
It is also inevitably an expensive option as it serves one person at a time.
Improving accessibility of court procedures
The analysis suggests that investment in courts or tribunals is more effective if it is combined with simplifying court procedures, ‘that diminishes the need for a lawyer in order to reach a just outcome. It will also lower the costs for the client of obtaining help, so the costs of legal aid subsides can go down as well, even if some clients still need representation’.
Transaction costs - Market failure and Government failure
This analysis looks at what citizens might have difficulty finding in the market, and the subsequent role of the state in helping people to gain access to justice. The market for information goods is complicated; once produced, information tends to become a public good and can incur high upfront costs – these factors impact on the ability to make money from selling information – a clear instance of market failure in Barendrechts view. This positions legal information as a task for government, but crucially additional safeguards are necessary against government failure (either in terms of quality or scope).
'If governments should do things that it can do better than the market, legal information seems to be a good way to spend access to justice money on. If only there was a way to make governments perform this task well'.
Empowerment through legal needs related information
The ‘state of the art way’ of providing information is said to be the certainty that information is presented in a form that is understandable for clients without having to consult an expert (Buck, Pleasance et al.2008). In addition the information must be tailored to the problem at hand, arrive just in time (when needed to be acted upon) and sufficient to cope with the problem - promoting self-reliance. It will contain information about the process and about the likely outcomes and offer a (limited) number of options (Lawler, Giddings et al.2009).
Legal information and legal education seems to be a promising strategy, because the costs of distributing information have dropped and literacy and education levels have risen. Clients can use it to cope with their legal problems and when presented with the right type of information, a certain proportion of clients will be able to solve their problem in a satisfactory way.
The paper also highlights collateral benefits where clients transmit information to others or refer them to the right sources. However, the effectiveness of this depends on the type of information. The paper distinguishes four categories of information which translate into different possible economies of scale:
- General (international) knowledge - negotiation skills, preparing a case for court, putting pressure on people, good solutions and procedural justice norms.
- Country-specific knowledge
- Specific local knowledge
- Client and case specific knowledge.
General legal information can be delivered at low cost, but information becomes more expensive when information needs are specific. While legal information can reduce the costs for the client, it is no substitute for courts and other forums. ‘It will be most effective in combination with investments in accessible court procedures, either before a formal or an informal court’.
When considering empowerment, legal information can enhance the control over the situation that a client experiences. It reduces uncertainty and reduces the cost of searching for the right strategy. In developing countries it has been found that clients value information because it helps them to monitor opponents, helpers, lawyers and judges. Information can enhance people’s control over their lives and their bargaining position.
The paper suggests that monitoring and other mechanisms are needed to ensure that information fits clients’ needs.
‘Moreover information will not do the job on its own. Some additional personal advice and help will be necessary for non-standards cases, and for some unskilled people’.
Tilburg Institute for interdisciplinary studies of civil law and conflict resolution solutions (TISCO)
TISCO is a leading research institute based at Tilburg Law School in the Netherlands focusing on justice needs in civil law. They have a project dedicated to measuring access to justice and in 2010 published a handbook for measuring the costs and quality of access to justice (1.3 MB).
Maurits Barendrecht practiced law at a major Dutch law firm (1982-1997) and is professor of Private Law at Tilburg University since 1992. He studies dispute systems (legal procedures, negotiation processes, ADR, informal dispute mechanisms) from an interdisciplinary perspective. His work includes access to justice (measuring and assessment, and access to justice for the poor in developing countries).