When I was appointed to the Superior Court of the State of California for the County of Los Angeles (LASC) in 1995, my first assignment was a felony calendar court, a huge challenge for a lawyer whose legal practice had been “big firm” civil litigation. My reassignment to a courtroom hearing general jurisdiction civil cases a few years later was more familiar terrain. But it also put me in daily contact with colleagues in the same courthouse whose dockets confronted them with a new set of challenges gripping state courts nationwide: a rising tide of self-represented litigants (SRLs) with a profound need for the justice and protection only a court can provide but with few tools with which to navigate a complex system built by and for lawyers.

Soon after my reassignment to our main civil courthouse, I met a judicial colleague who, before his appointment to the bench, had served on the city council of a small city within the jurisdiction of the LASC. Over lunch in the judges’ lunchroom one day, the former council member began describing his vision for the future of justice in Los Angeles. He imagined a court system in which every community in Los Angeles would have a court-staffed kiosk where people could go to get advice about how to interact with the court in order to file, prosecute, or defend a civil lawsuit.

My judicial colleague’s vision was striking for someone still relatively new to the judicial role. In my mind at that time, courts could only be purely neutral institutions deciding cases brought forward by adversaries. How could the advantages of the adversary system of justice be maintained if the court was providing guidance to one side in litigation?

It turns out that my colleague who envisioned accessible advice for litigants was well ahead of his time. Many judges in the late 1990s took the view that, when pro per litigants (as they were then called) appeared before a judge or sought assistance from court staff, the only proper response was “I am not allowed to give you legal advice; I must treat both sides in a case the same way.”Footnote ¹ But fast forward two decades, a window that includes my term as Presiding Judge of the LASC, and it is clear that American courts have undergone a tectonic shift, even a transformation, in their approach to court-provided guidance and assistance to unrepresented parties. What historically was a pat statement that “the court cannot provide legal advice” has, by necessity, morphed into a more useful but still limited set of resources for unrepresented parties often drowning in legal complexity.

This chapter offers both a history and an assessment of court-annexed assistance for litigants who try to access the court system without counsel and a perspective on whether these efforts, enhanced by a growing menu of digital tools, might plausibly narrow the justice gap by providing these litigants with necessary assistance. At once a history lesson and an in-the-trenches look at a couple of decades of court reforms, my aim is to show how anxieties about judicial and court neutrality have given way to an array of reform options that are producing concrete lessons as the American legal system considers alternatives to conventional, lawyer-centered forms of legal help in a legal system with massive amounts of unmet civil legal need.

Section 5.1 begins with a short, high-level review of efforts by courts around the nation to help SRLs adrift in an ocean of procedure and legalese, gradually abandoning the preexisting view that it was improper to assist SRLs. Section 5.2 offers a more detailed account of LASC’s efforts, providing a more focused case study of the institutional and ideological challenges of SRL-focused reforms. Some of LASC’s efforts to leverage human and technological resources to provide guidance and assistance to SRLs worked well, and others were surprisingly ineffective. Section 5.3, the final section, proposes some “lessons learned” from court efforts to design and oversee self-help services. Those services necessarily fall short of full legal representation. Nevertheless, courts’ experiences using supervised nonlawyer resources and technology interfaces to assist SRLs may suggest paths to more cost-effective, high-volume legal services and provide ideas for reformers considering how to enhance access to justice.

5.1 Navigating the Adversary System without Counsel and the Rise of Court Self-Help Services

As early as the 1990s, judges and court administrators across the nation could see a collision coming. On the one hand, the American legal system was as committed as any in the world to adversarialism, the idea that legal systems work best when the parties – and, more specifically, their lawyers – proofs in a structured, forensic setting to a neutral and passive decision maker who resolves the dispute.Footnote ²

On the other hand, a rising tide of high-stakes but small-scale cases was beginning to flood court dockets: debt collections, evictions, home foreclosures, and child support enforcement actions, among others. These cases were posing particular challenges for judges and court administrators because they tended to pit an institutional plaintiff (a bank, debt buyer, corporate or municipal landlord, the government), nearly always represented by a lawyer, against an individual defendant, nearly always self-represented. In addition, in cases where family members turned to the courts to settle disputes, establish legal relationships, or provide protection (divorce proceedings, guardianship and conservatorship petitions, name change petitions, applications for domestic violence restraining orders), litigants increasingly attempted to navigate the legal system without counsel.

When litigants bring their disputes to court without legal representation, it substantially burdens court operations. Think of a family law proceeding. An SRL who has no idea what to do to solve a custody dispute comes to the courtroom to ask the courtroom clerk for guidance. This interrupts the clerk’s efforts to try to organize the court’s calendar for the next day. Or a litigant may not understand how to serve her papers, a concept that is not intuitive for most litigants. When the motion is called for hearing, the judge has to explain service of process and continue the motion, further clogging future calendars. As the number of SRLs increases, these delays multiply.

By the late 1990s, it had become clear that complacency was not a sustainable approach to this challenge. Until then, the phenomenon of “pro se litigation” had mostly been the subject of isolated inquiry by individual jurisdictions. Then, in 1998, an important conference – a joint effort of the American Judicature Society, the State Justice Institute, the Open Society Institute, and the American Bar Association – brought together judges and court administrators from across the nation to think through the details and dimensions of the dilemma.Footnote ³ SRLs were growing fast: Even in the 1990s SRLs were filing a high proportion of family law cases in California.Footnote ⁴ By 2015 crowded court calendars with substantial SRLs were the norm in family law and some civil courtrooms. A 2015 national survey concluded that lawyers represented both sides in only 24 percent of civil cases and that even in general jurisdiction civil cases only 46 percent of defendants were represented.Footnote ⁵ As the Judicial Council of California observed in its 2019 Benchguide for Handling Cases Involving Self-Represented Litigants, “[t]he traditional passive role for judges works well when well-prepared attorneys represent both parties to a dispute. It doesn’t work as well when there is a full calendar of self-represented litigants who are unfamiliar with court rules, processes and evidence while trying to present their cases.”Footnote ⁶

Self-help resources for SRLs initially were thought of as a coping mechanism for courts with crowded civil and family law calendars struggling to move cases forward.Footnote ⁷ As court self-help efforts matured, and as the number of SRLs coming to court grew, courts came to realize the tragedy starkly articulated in the 2016 Civil Justice Initiative report to the Conference of Chief Justices: “The idealized picture of an adversarial system in which both parties are represented by competent attorneys who can assert all legitimate claims and defenses is, more often than not, an illusion.”Footnote ⁸

Slowly but surely, courts began to experiment, within the limits required for courts to maintain their role as a neutral adjudicator of disputes. Initially, that meant courts providing books, brochures, and forms and online educational tools.Footnote ⁹ Subsequently, it became clear that pamphlets and forms alone could not adequately communicate the complexity of court proceedings and substantive legal requirements. Courts began putting substantial resources into self-help centers where SRLs could meet face-to-face with court personnel to seek help.Footnote ¹⁰ In the ten years between the mid-90s and mid-00s, some 150 self-help centers were established nationwide.Footnote ¹¹ While this required substantial investment of budget resources, scarce space in court facilities,Footnote ¹² and considerable management oversight, self-help centers became an integral part of many courts’ operations.Footnote ¹³ By 2019, California’s self-help centers were servicing more than one million court users each year.Footnote ¹⁴

In some quarters, these court efforts were controversial. Representatives of the establishment bar even argued that the existence of court-annexed self-help services discouraged use of attorneys.Footnote ¹⁵ Self-help services provided by courts ordinarily include notifying litigants of pro bono or low-cost options for representation.Footnote ¹⁶ But some courts apparently thought the primary goal of court-provided self-help resources should be urging litigants to seek attorney representation.Footnote ¹⁷ Today, however, it is undeniable that existing resources in the legal community have not been able to meet the needs of the litigants who do appear in court – to say nothing of those who have legal needs but do not even attempt to access the courts, or those who are sued but fail to appear.Footnote ¹⁸

Concededly, self-help services can never be the equivalent of legal representation. The necessity that courts maintain neutrality ultimately means that courts cannot recommend a strategy, draft and propound discovery or, challenge the opposing party’s factual representations.Footnote ¹⁹ To state the obvious, a court cannot become an adversary to the party opposing an SRL. However, even careful adherence to that maxim leaves ample room for court-provided and court-hosted services. Courts can provide education about law and procedure, assist in filling out forms with information provided by SRLs, access court records of a litigant’s case, and provide options based on the state of the litigated matter. The next section of this chapter offers a closer-in look at how one court – the court where I have had the privilege of serving for nearly thirty years – has attempted to serve the needs of SRLs while hewing to the adversarial fundamentals of the American legal system.

5.2 Efforts to Assist Self-Represented Litigants at LASC

LASC is the largest trial court in the country, serving one of the country’s most diverse populations. Its prominence and its long experience in providing self-help services to SRLs make it an ideal case study in what has worked well and what has fallen short despite careful design. As reformers in the public and private sectors search for cost-effective, high-volume legal services models or alternative representation models, they should be aware of what courts have learned from their efforts to provide self-help services. The discussion that follows describes and appraises some of the self-help services LASC has implemented or attempted in an effort to leverage human and electronic resources to assist litigants, including efforts to ensure that SRLs have access regardless of the language they speak or their language literacy.

5.3 Lessons Learned from LASC’s Self-Help Experience that May Be Transferable to Low-Cost Legal Representation

This section elaborates on what LASC has learned about leveraging resources to assist SRLs, how to address language access and language literacy, the central importance of early fact-gathering to legal assistance, and the possibility that procedural and substantive law reform can help to close the access-to-justice gap. These insights may be useful to reformers seeking to improve delivery of cost-effective representation to low-income litigants.

5.4 Conclusion

Court-provided self-help resources are by no means a panacea. But those interested in regulatory reform of the legal profession and those interested in cost-effective representation of litigants in areas of high-volume litigation may find the courts’ self-help experiences instructive.

Courts have learned to leverage resources to assist SRLs in a variety of ways. Rather than assigning one staff person to work with one SRL, LASC utilizes an effective education model. With this model, groups of litigants on both sides of certain case types can be helped simultaneously. The court also utilized AmeriCorps funding to create a JusticeCorps cadre of undergraduates and recent college graduates who supplement court self-help services. The pandemic provided a push to leverage the use of computers to assist SRLs who formerly were assumed to be unwilling or unable to use such technology.

Courts also recognize that language access requires more than just relying on Google Translate. LASC invested in a language line to serve court users at self-help and public counter locations. Nevertheless, written language translations may fail to provide for the needs of those who have limited literacy in their native language. Verbal guidance by an avatar or a voice-over provides for greater comprehension than written instructions alone, especially when unfamiliar concepts need to be explained. Use of visual symbols such as icons also provides more effective wayfinding through multilayered material.

LASC has had greater success interacting with SRLs when it can provide answers based on facts specific to the particular litigant’s circumstances rather than advice about a general area of law. Early assembly of facts relevant to a litigant’s legal problem is critical to more effective guidance and early case evaluation.

Not all seemingly well-designed self-help tools have worked. When courts or others develop tools to interact with individuals seeking help with a legal problem, it is important to involve prospective users in the design. Empirical evaluation of what works and what doesn’t is key to determining how to make a better tool to assist litigants.

Finally, it may be time to think differently about the interface between the law and the human experience of individuals. Instead of struggling to translate complex legal principles into concepts that nonlawyers can understand, and instead of acquiescing in the current expense of litigation, perhaps efforts should be directed to simplifying substantive law and tailoring procedure to the fair presentation and adjudication of less complex cases.

Civil access-to-justice reform pursued through a financially focused, stakeholder-informed approach can drive transformational change. We present a framework and set of techniques, which together we dub “civil justice engineering,” for developing effective, scalable policy and procedure for the expansion of civil access to justice informed by qualitative and quantitative data, financial analysis, program evaluation, and stakeholder engagement.

Our framework has been shaped by our work at Stout Risius Ross, LLC (Stout), a global, advisory firm specializing in corporate finance, accounting and transaction advisory, valuation, financial disputes, claims, and investigations. We serve a range of clients, from public corporations to privately held companies in numerous industries. Stout’s Transformative Change Consulting practice is a recognized leader in the civil legal aid community and has completed projects involving:

• ▪ Strategy consulting for issues relating to access to justice;

• ▪ Organizing/facilitating stakeholder listening sessions and focus groups;

• ▪ Managing transformative change projects and workflows;

• ▪ Operational consulting related to data systems and processes, organizational culture, and employee relations;

• ▪ Economic impact assessments and research for civil legal services initiatives;

• ▪ Nonprofit budget development, review, and recommendations;

• ▪ Cost–benefit and impact analyses for nonprofit initiatives and activities;

• ▪ Data-driven program evaluation and implementation; and

• ▪ Dispute consulting and damages analyses for low-income individuals and nonprofit organizations.

Stout has provided consulting services to more than forty jurisdictions across the country related to programs assisting people experiencing civil legal issues. In each of these jurisdictions, Stout seeks to understand the local civil justice system, how residents interact with it, and the spectrum of information, assistance, and civil legal resources available for residents – ranging from online legal information, guided interviews and forms, supervised nonlawyers, mediation, community dispute resolution centers, advice and counsel, extensive legal services, and other forms of assistance.

Stout is currently retained as the Independent Evaluator for eviction right to counsel (or access to counsel) programs in Cleveland, Connecticut, Maryland, and Milwaukee. It has conducted eviction right to counsel fiscal return on investment or cost analyses and independent expert reports for advocates, coalitions, bar associations, or government agencies in Baltimore, Broward County, Chattanooga, Delaware, Detroit, Los Angeles County and City, Miami-Dade County, Newark, New York City, New York (outside of New York City), Pennsylvania, Philadelphia, and South Carolina. Many of these engagements have contributed to landmark legislation being passed.

Following the release of Stout’s reports in Baltimore, New York City, Philadelphia, Delaware, and Detroit, eviction right to counsel legislation was enacted. In these engagements, Stout worked closely with funders/potential funders, legal services organizations, rental property owners, academics studying housing and eviction, government agencies and the continuum of care, nonprofits serving low-income residents, community organizers, and impacted residents.

Core to our approach is the idea that creating opportunity for change is as much about the analyses and engagement method as it is about the quantitative evaluation of a particular result. By engaging a broad range of local stakeholders, collecting and integrating quantitative and qualitative information, and seeking regular feedback as analyses are developed, civil justice engineering can be used to develop cost–benefit analyses and evaluation techniques that form the basis for collaboration and consensus, both prerequisites for meaningful and durable reforms that expand access to civil justice.

This chapter introduces the civil justice engineering framework and shows how it can further a wide range of access to civil justice initiatives, such as civil right to counsel, court efforts to assist self-represented litigants, an expanded role for nonlawyers or limited-license legal practitioners, effective utilization of brief services and advice programs, and justice initiatives to address racial inequity.

6.1 Situating Civil Justice Engineering

6.2 An Overview of the Civil Justice Engineering Framework: Complementing Advocacy and Stakeholder Engagement with Financial Analysis

For many jurisdictions, the development of a comprehensive, independent cost–benefit study has informed policymakers and other stakeholders about the potential costs and savings of providing the eviction right to counsel. The development of such studies utilized an innovative combination of academic scholarship and community and stakeholder feedback with the application of quantitative and financial analysis with qualitative context.

6.3 The Elements of Civil Justice Engineering

In our experience, local community stakeholders are typically highly aware of injustices and systemic barriers in their community. Instead of developing recommendations based on our impressions of what should be important to the community, we are guided by feedback from local stakeholders.

For example, in Oklahoma City, Legal Aid knew there were transportation barriers to access to justice, particularly for tenants in eviction proceedings. Public transit could be unreliable, and the bus schedules did not always align with the docket calls at court. Tenants would default in eviction cases because of transportation challenges. Legal aid developed data evaluation elements to measure the frequency of transportation issues shared by clients and are planning to use that data to advocate for changes to docket call times and bus schedules.Footnote ¹⁶

Consequently, the work of understanding program costs and potential fiscal impacts often starts at early stages of advocacy. At such stages, the comprehensive, inclusive, and intentional approach described below can inform many elements of advocacy beyond the cost of the proposed reform. It can serve to inform program design based on feedback from multiple stakeholders and can assist in developing coalition, collaboration, and opportunities for issue convergence.

Localization has been critical to propel policy reforms involving civil access to justice. While national trends or generalizable findings furnish insights, a variety of local perceptions, practices, procedures, and stakeholders often require that we uniquely consider the circumstances of each jurisdiction.

Localization also can increase local advocacy and prioritization, fostering accountability and investment within the community. With knowledge of their jurisdiction’s peculiarities, local policymakers and stakeholders are better equipped to advocate for and invest in policies that effectively cater to the needs of their constituents.

Detractors may posit that localization leads to excessive temporal and resource burdens; however, in our experience the opposite has been the case. National studies often fail to resonate with local communities and policymakers, leading to tepid support, dialogue, and development. Conversely, localized efforts serve as formidable catalysts for broader movements, effectively inspiring other communities to consider similar reforms.

This work needs to be informed by the views and perspectives of many stakeholders and will be inherently imperfect in measurement techniques – measurement techniques that will be centered on the development of reasonable, reliable, credible metrics but that will necessarily rely on a constellation of imperfect data, research, and qualitative feedback. Independence is an important factor, as findings and observations of this work are not motivated by a particular advocacy position. This can be an important consideration for policymakers interested in understanding the civil justice ecosystem and potential costs and fiscal impact of certain reforms.

Our efforts are to inform local efforts to pursue reform in an independentFootnote ¹⁷ manner. We rely on local communities to identify priorities for reform, and we seek to independently advise regarding the costs of implementation and the potential fiscal impacts of those reforms.

As we begin our work, we first, and continually, seek to understand the civil justice ecosystem impacted by the proposed reform. Civil legal issues, whether perceived by the individuals involved as “legal” or not, arise locally. They arise for an individual, a household, and a business owner. They arise in a local neighborhood, local community, city, and county, and with local stakeholders, local courts, and local support services. We are mindful that while our unique experience and expertise working with stakeholders in jurisdictions around the country may inform our work and our dialogue, we must begin our work listening to local stakeholders to understand the local ecosystem – both its history and its present.

Residents, business owners (such as rental property owners or lenders), legal services organizations, community organizers and advocates, attorneys, academic institutions, the courts, policymakers, and other community stakeholders are operating in an intricate, intertwined, and interdependent ecosystem.

We observe this interdependence and interconnectedness throughout our work and uniquely in each jurisdiction. For example, if we consider the eviction ecosystem, we must learn how rental property owners (and their counsel), tenants, courts, civil legal aid organizations, emergency rental assistance administrators, community-based organizations, and other public systems (e.g., emergency shelter, foster care, public schools, healthcare, transportation, police) interact with and upon one another, at what cost (financial and otherwise) and to which party.

We appreciate that we will never fully understand each local ecosystem we work in and certainly not to the extent of the local stakeholders we work with. For this reason, throughout our work, we remain open to continually learning about the ecosystem and ensuring, to the extent possible, that those insights and observations are intentionally incorporated in our quantitative and qualitative work. To achieve this, we utilize an immersive stakeholder engagement technique.

This approach does not necessarily require us to be subject matter experts in eviction, consumer debt, immigration, guardianship, family law, or other matters of civil access to justice. Instead, we approach our work with curiosity and genuine intrigue about the local justice ecosystem and stakeholders – their history, roles, responsibilities, perceptions, experiences, challenges, current resource constraints; the fiscal impacts and constraints that change can have on them; and the overall capacity for change within a resource-constrained environment.

Intentional, inclusive stakeholder engagement creates the opportunity to continually learn about the ecosystem and to create a collaborative environment that establishes or renews connections among stakeholders. As our work progresses, the stakeholders with whom relationships have been built are continuously re-engaged to discuss emerging issues, review progress, and assess new opportunities and challenges.

Our engagement with stakeholders has included but is not limited to:

• ▪ Courts;

• ▪ Legal services providers;

• ▪ Rental property owners;

• ▪ Public housing authorities;

• ▪ Rental assistance providers;

• ▪ 2-1-1 and other community action call centers;

• ▪ Coordinated intake service organizations;

• ▪ Legal technology hosts and providers;

• ▪ Public libraries;

• ▪ Community organizers;

• ▪ Continuums of Care (CoC);

• ▪ Social benefit administrators;

• ▪ Employers;

• ▪ City, county, and state government agencies;

• ▪ Public education and higher education providers;

• ▪ Faith communities;

• ▪ Community-based organizations;

• ▪ Transportation providers;

• ▪ Hospitals and healthcare providers; and

• ▪ Homelessness service providers.

In focus groups or interviews, participants share their perspectives and lived experiences regarding the subject matter (e.g., clients or constituents facing eviction or housing instability), potential fiscal and personal impacts, identifying common themes across lived experiences, and considering how we may be able to quantify the costs and benefits of regulatory reform.

When considering with whom to engage, inclusivity and diversity is critical. Engaging with stakeholder groups that have varying experiences, roles, power, perspectives, and perceptions informs the understanding of potential fiscal impacts.

For example, civil legal aid organizations are able to share data and experiences regarding the experiences of their clients, their interactions with the courts and counterparties; and the personnel costs of delivering services (e.g., salaries and benefits). Government and social services agencies are often able to share how they are spending public dollars to respond to certain crises experienced by community members that could be reduced if certain reforms related to access to civil justice were implemented. For example, we have engaged with emergency shelter providers and Continuums of CareFootnote ¹⁸ throughout the country. In every jurisdiction with which we have engaged, these housing social safety net providers share that a portion of people experiencing homelessness and living in shelters have likely experienced eviction in the past and that the eviction contributed to their need for emergency shelter or other services. This draws a connection between eviction and expensive publicly funded social services, and the link is reinforced by research conducted across the country.Footnote ¹⁹

Stakeholders who may not support certain reforms should also be engaged to ensure a comprehensive understanding of potential fiscal impacts. We hear from rental property owners about the challenges they face in providing safe and stable housing, the difficulties accessing rental assistance programs as well as the courts, frustrations with the legal process, and the costs they incur from delays arising from disputes with tenants. We also hear about challenging relationships with their tenants and the rental property owner’s efforts to assist in reaching resolutions prior to eviction.

The breadth of this stakeholder engagement helps to prevent bias and demonstrates a commitment to an independent assessment of both opportunities and challenges. In addition, it often uncovers and illuminates new findings that can lead to more informed policy decisions and continued stakeholder collaboration.

For instance, it is not uncommon for there to be concerns among rental property owners and their lawyers regarding the impact that expanded access to lawyers for tenants may have. However, lawyers representing rental property owners also consistently indicate that they always prefer to work with a represented tenant rather than an unrepresented tenant and that when lawyers are involved on both sides it is more likely that effective outcomes for both parties can be reached, and often more expeditiously than with an unrepresented tenant, particularly in more complex cases. In some jurisdictions, rental property owners have been vocal supporters of eviction right to counsel programs, particularly when appreciating the complexity of the circumstances tenants are encountering, the ways in which lawyers for tenants are able to effectively resolve these matters, and openness to feedback and recommendations from the rental property owner community – but also seek complementary resources such as sustainable, efficient, and effective emergency rental assistance.

Further, the degree to which tenants facing eviction are experiencing substandard housing conditions is often underappreciated by policymakers but well-understood by courts, legal aid attorneys, and property owners/managers. This information asymmetry typically arises because of a previous lack of structured data collection regarding the presence of these substandard housing conditions. The importance of addressing this information asymmetry arose from initial stakeholder engagement, and its prevalence was understood after implementing revised data collection based on that feedback. As a result, we have found that 60 percent to 80 percent of eviction right to counsel clients in jurisdictions around the country report that they are experiencing at least one (and often many) defective conditions in their home.Footnote ²⁰ Figure 6.1’s data visualizations are examples of how structured data collection and analysis can inform policymakers and other stakeholders regarding complex circumstances clients can be experiencing and the impact legal representation can have when substantive legal issues are present.Footnote ²¹

Figure 6.1

Exemplar visualization of defective housing conditions.

Figure 6.1 Long description

The bar chart at the top shows that 59.2 percent of tenants, that is, 452 tenants, reported the presence of a defective condition in their housing, while 40.8 percent of tenants, that is 312 tenants, reported no defective condition. Below this, another horizontal bar chart titled, Number of Defective Conditions Per Client, indicates the distribution of the number of defective conditions reported by tenants ranging from one to nine. The most frequent number of defective conditions reported was one, at 30.3 percent, or 105 tenants. A third horizontal bar chart on the right, titled, Landlord Repair of Defective Conditions, shows that 56.1 percent of landlords did not fix the defective conditions, while 40.1 percent fixed some conditions, and 3.8 percent fixed all conditions to the tenant's satisfaction.

Moreover, in many jurisdictions with an eviction right to counsel, a minority of tenants facing eviction seek legal assistance – however, of those that do, 85 percent to 90 percent are involved in complex disputes with the rental property owner, face severe consequences, are at the lowest income levels,Footnote ²² and are likely to need social services if they are not able to achieve their housing goals.Footnote ²³ This finding has emphasized the importance of eviction right to counsel legislation to serve the most vulnerable but also has emphasized the need for additional forms of assistance and intervention to serve both rental property owners and tenants in other circumstances.

Policymakers and others often believe that the purpose of legal representation for tenants is to keep people in their homes. However, property owners, legal aid organizations, and community-based organizations often indicated that their tenants did not always want to stay in their homes. Rather, tenants sought legal assistance because their relationship with the rental property owner had often deteriorated beyond repair and the conditions of the homes were often unsafe. Based on this feedback, supplemental data was collected for clients of legal aid organizations to understand what the client’s goals were. This data revealed that 30 percent to 45 percent of clients (those facing eviction who sought legal assistance) did not want to stay in their homes.Footnote ²⁴ Figure 6.2 provides examples of visualizations showing whether the client wants to stay in their home, and the intersection of whether they want to stay and the presence of defective conditions.

Figure 6.2

Exemplar visualization of client preferences regarding housing options.

Figure 6.2 Long description

The leftmost chart shows that 55.7% of tenants wanted to stay in their homes, while 43.4% did not, and 0.9% had already vacated. The subsequent grouped bar charts are organized by year, from 2021 to 2023, and further segmented by the presence of defective conditions labeled, No Defective Conditions and Yes, Defective Conditions. Within each year and condition category, there are two bars representing whether tenants wanted to stay in their rental unit, indicated as Yes, or No. In 2021, among cases with no defective conditions, 79% wanted to stay and 21% did not. Conversely, among cases with defective conditions in 2021, 54% did not want to stay and 46% did. In 2022, for homes without defective conditions, 78% wanted to stay and 22% did not, while for those with defective conditions, 49% did not want to stay and 51% did. Finally, in 2023, among homes with no defective conditions, 81% wanted to stay and 19% did not, and for homes with defective conditions, 43% did not want to stay and 57% did. A legend at the bottom clarifies that the lighter bars represent, Yes, for wanting to stay, and the darker bars represent, No.

Eviction right to counsel programs and legislation can be critical elements of an ecosystem ensuring justice in rental housing disputes resulting in eviction filings. As we engage stakeholders, we consistently receive feedback about how eviction right to counsel programs provide an essential foundation for housing justice but that they should also be supplemented with other interventions. Many of those interventions are preventative in nature and could decrease the need for more costly interventions downstream. These should be considered complements to or integrated components of an eviction right to counsel. Interventions include sustained emergency rental assistance, mediation, prefiling connection to other social services, relocation assistance, improvements in the substantive landlord/tenant law (such as longer notice periods and just cause eviction protections), transportation assistance, and childcare assistance for in-person court appearances.

Understanding who is likely to access the services and for whom the services may be particularly impactful is important. People with civil legal needs are often experiencing a variety of circumstances and may need a range of services. In eviction right to counsel jurisdictions, we observe common characteristics of eviction right to counsel clients. Our evaluations of the eviction right to counsel programs in three jurisdictions found that tenants seeking representation often do so because they need assistance with the substantive legal issues of their case or potential defenses, or there are challenges within the household exacerbating the trauma of the eviction process. Tenants seeking legal representation in eviction right to counsel jurisdictions are also likely to disproportionately identify as female and African American or black compared to the jurisdiction’s overall population.Footnote ²⁵ Figure 6.3 shows comparative metrics for the gender and race of eviction right to counsel clients in Cleveland relative to Cleveland’s overall population.

Figure 6.3

Comparative demographic metrics for Cleveland right to counsel clients versus Cleveland’s overall population.

Figure 6.3 Long description

The top chart focuses on gender, depicting the percentage of female and male individuals in both R T C-C clients and the general Cleveland population. For R T C-C clients, the percentage of females appears significantly higher than males. The Cleveland population demographics depict a slightly higher percentage of females compared to males. The bottom chart presents a comparison of race, including Black, White, and Other categories, across four groups, R T C-C clients, all Cleveland residents, renter households in the Cleveland-Elyria Metro area, and renter households in the Cleveland-Elyria Metro area below 100% of the federal poverty level. Among R T C-C clients, the percentage of individuals identifying as Black is notably higher, followed by White, with a small percentage identifying as Other. For all Cleveland residents, the percentage of Black individuals is the highest, followed by White, and then Other. Renter households in the Cleveland-Elyria Metro area depict a slightly higher percentage of White individuals followed by black, and other. Finally, renter households in the Cleveland-Elyria Metro area below 100% F P L indicate a slightly higher percentage of White compared to Black individuals, with a small percentage identifying as Other.

* All Cleveland Residents includes renters and homeowners. Renter household data is currently only available at the metro level (Cleveland-Elyria Metro), which includes five counties across northeast Ohio.

In several right to counsel jurisdictions where we have worked, attorneys representing tenants in eviction matters told us of instances in which they were assisting a tenant where the only issue (a relatively simple one) was the nonpayment of rent. In those attorneys’ opinions, the tenant would have been able to navigate the process with other forms of assistance. This does not take away from the impact and importance of an eviction right to counsel in these places but rather reinforces the importance of continued study and evaluation centered on the experiences of the parties involved and the circumstances they face.

Segmenting potential client populations based on circumstances and case characteristics provides insights into the effectiveness and fiscal sustainability of programs, interventions, and service levels. An impactful and informative finding from case and client segmentation analysis would be, for example, that 80 percent of clients who had case or personal circumstances indicating that brief legal services (legal information, advice, assistance connecting with another social service, or assistance negotiating a settlement) would be the form of effective assistance necessary for clients to achieve the goals for their case. This is significantly more meaningful than a broader, less nuanced, and contextualized finding than, for example, that 30 percent of all clients achieved their goals through the receipt of brief services.

The variety of unique circumstances people face results in uncertainties regarding the potential impact of service delivery – uncertainties regarding necessary services for a given situation, the cost and longevity of those services, and the short- and long-term fiscal impact. Precise calculations and quantifications for these situations may not always be feasible. Person-centered data is often inherently imperfect, but reasonable estimates can often be developed, particularly when accompanied with transparency regarding the sources of information, limitations of such estimates, and the methods of calculation.

For example, when analyzing the potential fiscal impact of housing instability, we often attempt to estimate the cost savings or redirection of public dollars that could be recognized if fewer people were to experience homelessness (sheltered or unsheltered) because of access to legal representation. There is a significant body of academic research indicating that a portion of people who are evicted will likely experience homelessness and that a subset of the people who experience homelessness will likely enter emergency shelter or require a different housing social safety net response (e.g., rapid rehousing, transitional housing, permanent supportive housing).Footnote ²⁶ In addition, local homelessness response providers may also publish reports or provide data demonstrating the intersection between eviction and shelter entry or other social service responses. We collect, review, and synthesize the data presented in academic studies, as well as local information, and compare it to data civil legal aid providers are collecting regarding where clients would go if they were evicted.

In our experience, the findings from academic studies are often consistent with the civil legal aid provider data and feedback from local social service providers. We leverage these sources of information to develop a quantitative estimate as to the percentage of people who would experience homelessness and likely require a housing social safety net response. We then seek feedback from local stakeholders to ensure the estimates we develop are consistent with their experiences. Once we have an estimate as to the percentage of people who would have likely experienced homelessness but-for legal representation, we review academic studies and local data regarding the annual cost of providing housing social safety net responses. When combined, the incremental number of people who likely avoided needing a housing social safety net response and the annual cost of the housing social safety net response can be used to develop a reasonable, quantitative estimate (informed by qualitative stakeholder feedback) of potential cost savings or opportunities for the redirection of public dollars.

Through stakeholder engagement, we learn about the availability of quantitative data and prior research that can contribute to analysis of implementation costs, as well as potential fiscal and other impacts.

Stakeholders can often share data they collect through the course of serving their constituents, can identify prior research or publications to inform further analysis, and can identify other stakeholders that may be able to assist in providing quantitative data elements. These same stakeholders then become essential in ensuring a reasonable interpretation and analysis of the data.

In our experience, data collected by local stakeholders often requires significant guidance to appropriately interpret. Examples of data we have received and reviewed include but are not limited to:

• ▪ Civil case filing and disposition data;

• ▪ Legal services provider de-identified case information;

• ▪ Homeless Management Information System (HMIS) data;

• ▪ 2-1-1 data;

• ▪ US Census data;

• ▪ Homelessness response data;

• ▪ Foster care entry and exit data;

• ▪ Student homelessness and enrollment data; and

• ▪ Legal services provider budget and financial data.

This engagement and review of data can also assist in identifying opportunities for expanded data collection and analysis. For example, Figure 6.4 presents data findings that assisted policymakers in understanding the volume of annual eviction filings in Cleveland, the defendant representation rate trend, and defendant representation rates by zip code.Footnote ²⁷ This type of visualized data assists in understanding how policy change can impact the total number of filings a jurisdiction is experiencing and identifying whether more residents are being represented through the eviction right to counsel program over time.

Figure 6.4

Eviction data visualizations.

Figure 6.4 Long description

The first chart, a column chart, shows the number of eviction cases filed annually from 2011 to 2023, excluding 2015. The trend indicates a general decrease in filings until 2021, with values dropping from 10,976 to 4274, then rising to 6352 in 2023. The second chart plots eviction filings with defendant representations by month. This chart shows a steep rise in the percentage of cases with represented defendants from January 2019 to April 2020, with values vacillating until they precipitously dropped from 16.4% in March 2023 to 9.0% in April 2023. The third chart is a horizontal bar chart that plots eviction filings by 20 zip-codes for eviction cases filed and for eviction cases where the defendant was represented, showing differences in representation rates between zip codes, with the highest rate at 18.0% and the lowest at 8.4%.

Complex ecosystems simply cannot be defined or fully understood by quantitative data and analysis alone. Further, many stakeholders will not have or will not be able to share quantitative data or data that could be used in robust quantitative analysis. However, many stakeholders can provide a wide range of qualitative feedback, insight, or materials that can be used to provide important history, context, and support for quantitative analysis. This information is essential to demonstrate a more fulsome appreciation for the local civil justice ecosystem. In addition, it provides the ability for stakeholders to contribute to the work, further enabling the development of coalition and the potential for issue convergence. Examples of information used in qualitative assessment and observation include but are not limited to:

• ▪ Social program budgets;

• ▪ Academic or other research previously conducted about the relevant civil justice ecosystem or matter type;

• ▪ Prior program evaluations relevant to the local civil justice ecosystem;

• ▪ Articles and investigative reporting about the relevant civil justice ecosystem; and

• ▪ Feedback provided in interviews and stakeholder focus groups or listening sessions.

Locally prepared research and the feedback from local stakeholders are complemented by relevant research from other jurisdictions to provide further support for local feedback and create pathways for further engagement.

The most prominent question we hear when working on projects related to civil access to justice reform is “What will it cost?”

As such, developing a reasonable, credible, and independent assessment of the expected costs of implementation is an essential element of our work. It is important to ensure such estimates reflect a sustainable model of service delivery consistent with the capacity necessary to provide the services, and the quality necessary to achieve the expected results. This often represents a paradigm shift for those providing the services in severely resource-constrained environments, where such services are necessarily extremely limited.

We have assisted jurisdictions with developing detailed program budgets for a variety of service delivery models. The budgeting exercise includes calculations for the expected number of clients served, estimated caseloads, sustainable personnel expenses (e.g., salaries and benefits for attorneys, paralegals, case managers, intake staff, navigators, and social workers), and program infrastructure (e.g., rent and utilities, office expenses, technology, furniture and equipment, licenses, and dues). The estimated implementation cost of the reform not only informs program and service delivery design but also how the reform may be implemented. Depending on the scale and scope of the reform, it may be appropriate to consider a phased-implementation timeline.

The cost of sustainable implementation provides an important foundation for the assessment of total funding needed but also provides the ability to assess how the potential fiscal and other impacts compare to the costs and availability of sustainable funding. Such measures are not fixed and static. Rather, the costs (and fiscal impacts) can vary if the program design changes. In some instances, program design can be optimized to minimize costs, maximize impact, and maintain the quality of service necessary to achieve programmatic expectations. In other instances, particularly when implementing transformative measures not previously implemented, it may be reasonable to expect cost efficiencies over time as the ecosystem adapts to a new or expanded model of service delivery.

The stakeholder engagement process will often reveal significant potential fiscal benefits to states, cities, counties, and municipalities from civil access to justice reform. This is further reinforced by a growing body of academic scholarship that has demonstrated the connections between housing instability or eviction, as well as other forms of trauma, that can give rise to social services responses.Footnote ²⁸ Civil access-to-justice reform can have wide-ranging impacts on the lives of individuals, families, neighborhoods, and communities. In our work, we will recognize, research, and discuss these potential impacts, but our quantitative analysis will primarily focus on the potential fiscal impacts that would accrue to the jurisdiction providing the funding for the program. In certain instances, we are mindful that fiscal benefits may accrue to the county or state (e.g., when we are analyzing the fiscal impact to a city) based on the nature of funding for certain social services.

For example, in several jurisdictions, such as Cleveland, we have observed that emergency response to homelessness (including the emergency shelter system), child welfare response, and the primary education system were all funded through the county. While policymakers in the city were interested in allocating funding for an eviction right to counsel and appreciated the holistic benefits that its residents would receive as well as importance of access to the justice system, the financial justification for it was more challenging because it was not providing the funding for social responses that would likely be most impacted.

These fiscal impacts can be considered on a continuum of confidence based on the availability of data, research, feedback, and system characteristics. In our experience, certain fiscal impacts can be reasonably and credibly calculated based on academic scholarship, publicly available data and metrics, and data that is often (or could be) collected by civil legal services organizations or other local stakeholders. Other fiscal impacts cannot be reliably or credibly measured with the data and research available, although feedback from stakeholders and individuals with lived experiences indicates the impacts clearly exist.

As an example, the fiscal impacts associated with residents who experience homelessness and the direct costs of homelessness response and emergency shelter are often more easily quantified using local data and information. However, the impact to property values for neighborhoods experiencing high rates of eviction, or the long-term impacts to health and education for children who experience eviction and persistent housing instability, can be very difficult to measure due to the lack of research and information currently available (both locally and generally on such topics).

The unquantifiable impacts stakeholders describe should also be considered and recognized. The reality of fiscal impacts that cannot be credibly converted to a monetary scale should not be viewed as a limitation. Rather, they are a pathway for continued research and data collection. We have observed firsthand the value of robust, structured data collection in jurisdictions throughout the country that are endeavoring to demonstrate the costs and benefits of regulatory reform related to access to civil justice.

We often observe comprehensive cost–benefit analyses and potential fiscal impact quantifications contributing to the development of local issue convergence.Footnote ²⁹ Assessing issue convergence requires authentic engagement with a range of local community stakeholders. This engagement should also consider information requests, research, criticism, and questioning. An effective dialogue will require assessments of bias that may arise from the unique perspective and experience of stakeholders and a willingness to respectfully explore the potential for bias and how to interpret, understand, and apply the insights from stakeholder engagement. Through the course of developing this dialogue, we seek to identify common and aligned interests, experiences, and aspirations for change or innovation. We also identify areas of disagreement and concern. These are also valuable contributors to the dialogue and present opportunities to share such concerns from an independent perspective, creating a shared appreciation for the views of other stakeholders, including those who have traditionally been considered adversaries.

In certain instances, we have experienced providers of social services or legal assistance who are informed by their daily experiences but may not appreciate that those daily experiences are largely limited to serving those experiencing the most traumatic and destructive versions of certain civil legal issues or circumstances. In such circumstances, it can often be helpful to broaden the conversation and learn about the experience of system-impacted persons who experience the system differently and do not interact with certain social service or legal service programs. The engagement can then broaden the stakeholders involved and more widely inform the dialogue – with both, the opportunities for issue convergence can increase.

In other instances, for instance, rental property owners may initially oppose contemplated legislation that would expand access to legal representation for tenants. We have talked to dozens of rental property owners and their counsel across the country, and they often express concern that expanded access to legal representation may lead to expected delays in the eviction process due to the presence of a tenant’s attorney. They frequently describe these expected delays as potentially contributing to increases in rental arrears and lost rental income.

Rental property owners and their counsel are often accustomed to fast-moving eviction proceedings where tenants fail to appear at the eviction hearing. If they do appear, they are unlikely to be represented, and unlikely to have the necessary specialized knowledge of landlord–tenant law to represent themselves effectively.Footnote ³⁰ There are often similar concerns from the courts, which are also accustomed to expeditious eviction proceedings that do not require significant human or financial resources to adjudicate. Rental property owners also often expect that every tenant will seek legal assistance – regardless of the circumstances the client may be facing, the quality of housing, and the efforts by the landlord to try to provide time or assistance for the tenant.

However, our experience indicates an increased likelihood that cases can be resolved out of court and before the first hearing when both parties are represented, resulting in more efficient and effective case resolutions that has financial benefits for both parties (and the courts). Rental property owners’ counsel have shared that they prefer to negotiate and interact with another attorney rather than an unrepresented tenant because it serves their interest: securing an efficient and effective case resolution that often includes emergency rental assistance to pay the rental property owner the back rent owed or creating repayment plans that tenants can reasonably adhere to, thereby increasing the likelihood of a rental property owner being paid the amount of back rent owed.

Rental property owners have also shared with us that the financial cost of identifying, screening, and securing a new tenant is significant, as is the financial cost of preparing a property for re-rental, and vacancies before a new tenant is secured. Because of those costs, their preference is generally to keep a current tenant.

In addition, the ways that tenants respond to delinquency and the receipt of an eviction notice can vary significantly. Not every tenant seeks legal representation. Data collected from eviction right to counsel jurisdictions indicates that those who do seek legal representation are often experiencing a variety of complex issues – such as substandard housing conditions, substantive disputes with the rental property owner, verbal lease agreements, and may be facing severe consequences that could arise from an involuntary displacement.Footnote ³¹ It is possible that many of those who are not seeking legal representation or assistance perceive their circumstances to be largely economic (not legal) and may seek nonlegal forms of assistance. This can inform both communication strategies (to assist tenants in understanding the legal issues associated with eviction cases) as well as complementary services (such as mediation and rental assistance) that may assist with effectively resolving eviction cases when tenants do not seek legal assistance.

Policymakers are also a stakeholder group with financial interest in regulatory reform related to access to civil justice and therefore can be a party to issue convergence. In certain instances, a primary factor for some policymakers when considering a reform is the economics of the reform: what are the costs and benefits, what is the expected return on investment, and is this a fiscally responsible use of taxpayer dollars? We have developed robust cost–benefit analyses of enacted and contemplated eviction right to counsel legislation across the country to inform policymaker decision-making.

Even as issue convergence emerges as a possibility, we continue to embrace an iterative approach to the development of cost–benefit concepts, program design, and implementation considerations. Issue convergence requires continual efforts of genuine and authentic listening and engagement, and there are also often a significant number of unknowns in complex social ecosystems that require ongoing evaluation, assessment, and investigation. Iterative processes of engagement, design, development, implementation, and assessment (repeating) can ensure that an active dialogue is maintained, new insights and challenges are brought forward, and collaboration can continue to foster innovation.

Reform will often involve the development and implementation of programs and services not previously provided in a jurisdiction, and certainly not recently. As such, predicting how the civil justice ecosystem will respond and adapt will not be done with perfect precision.

While reasonable estimates can be developed, it is important to acknowledge the limitations of this work and identify the additional data collection, research, and collaboration that will enable the ecosystem to continually evaluate the impact of the reform and identify the complementary services that can further enhance the ecosystem in a financially viable and sustainable manner.

Elements of iterative assessment that can be particularly valuable and impactful include but are not limited to:

• ▪ Expanded data collection, analysis, and visualization;

• ▪ Integration of data sets from additional data sources;

• ▪ Advisory councils to continue to be informed by people with lived experiences;

• ▪ Stakeholder engagement and stakeholder working groups;

• ▪ Data-informed outreach using local, trusted messengers;

• ▪ Focus groups and surveys of people with lived experiences; and

• ▪ Consideration of the development of complementary or adjacent resources, programs, policies, or legislation.

A commitment to such iterative assessment, development, and implementation techniques can foster ecosystem collaboration and enhance the likelihood of sustained commitment to innovation by local stakeholders.

6.4 Conclusion

The development of a comprehensive, independent cost–benefit study intended to inform policymakers and other stakeholders about the potential costs of providing services intended to expand civil access to justice, as well as the fiscal impact and potential costs savings that could accrue through the passage and effective implementation of such reform, can be a transformative contribution to the dialogue and support necessary to enact and sustain such reform.

However, this work is as much about how such analyses are conducted as it is about the quantitative result. By leveraging academic scholarship, engaging a broad range of local stakeholders, genuinely and authentically listening to their perspectives, collecting and integrating both quantitative and qualitative information, and seeking regular feedback as analyses and observations are developed, such cost–benefit analyses form the basis for collaboration and consensus that can lead to issue convergence in support of expansion of access to civil justice.

This approach can inform the work of pursuing sustainable, scaled reform related to many efforts to improve access to civil justice, such as civil right to counsel initiatives, court efforts to assist self-represented litigants, expanding the role of nonlawyers or limited-license legal practitioners, effectively utilizing brief services and advice programs, or developing justice initiatives to address racial inequity. It is also important to acknowledge that other theories of change that are more narrowly constructed may also be successful at achieving discrete change and an improvement in access to civil justice.

In our experience, reform related to access to civil justice that is pursued through a financially focused, stakeholder-informed, research-supported approach can result in significant, transformational, and groundbreaking change in civil access to justice.

In the United States, access to legal representation in civil courts is constrained and inequitable. Most people who have justiciable civil legal problems cannot or do not obtain legal assistance.Footnote ¹ Americans living in and near poverty are disproportionately in need of civil legal protections. In 2022, 74 percent of low-income households experienced at least one civil legal problem, and 39 percent experienced five or more problems – including challenges with health care, housing, disability access, public benefits, domestic violence, and more.Footnote ² Despite grappling with such an extensive range of legal problems, low-income Americans lacked adequate help for 92 percent of them.Footnote ³

The “justice gap” – this rift between legal needs and legal assistance – is driven by both supply and demand. Concerns about the former have understandably dominated approaches to addressing civil legal inequality. Underfunding at the federal, state, and local levels restricts the supply of lawyers available to meet the needs of people facing civil legal problems. For example, legal organizations funded by the Legal Services Corporation – a core institution undergirding the US civil legal infrastructure – are unable to provide enough legal help for 71 percent of the legal problems brought to their doors.Footnote ⁴ Notwithstanding this underfunding, delivering access to legal advice or representation for low-income Americans has long been upheld as a crucial imperative. In 1970, Senator Walter Mondale dubbed legal services, “the most effective poverty program, dollar for dollar.”Footnote ⁵ Contemporary evidence supports Mondale’s contention. Access to civil legal representation can narrow health disparities, improve communication between public institutions and impoverished communities, and increase property values and wealth in black communities.Footnote ⁶

Recognizing these and other benefits, governments have invested in broadening access to legal services. Though the methods for achieving this end have been varied, most have emphasized the supply side of the justice gap: providing lawyers, legal information, and legal help.Footnote ⁷ This chapter begins with a discussion of such supply-side interventions, including (1) right to counsel, (2) legal technologies, and (3) the use of nonlawyers. Each of these has shown promise and attracted public resources. Each also confronts limitations that underscore the imperative of attending to the demand side of the justice gap.

After outlining the limits of supply-side approaches, this chapter turns to the drivers of demand. Most fundamentally, civil legal needs are a product of political processes. Demand for legal help is propelled by a politics of scarcity, inequality, and welfare state retrenchment.Footnote ⁸ Addressing the demand side of the “justice gap” therefore requires the redistribution and reconfiguration of power in American political life. Supply-side approaches to civil legal inequality do not sufficiently account for power. Bringing power to the foreground complements and usefully balances the prevailing preoccupation with increasing the supply of legal resources.

Moving beyond a supply-side emphasis on civil legal systems and toward a demand-side attentiveness to power dynamics within political systems opens a broader horizon of possibilities for change. A demand-side approach posits that when legal interventions lay the groundwork for collective action and facilitate the exercise of power, they can mitigate the demands that necessitate access to justice in the first place. By drawing on in-depth interviews with organized tenants and key examples of legal interventions that catalyze political action, this chapter makes the case that power should be a core concern for anyone seeking to redress civil legal inequality.

7.1 Supply-Side Approaches: Right to Counsel

To motivate the case for a demand-side focus on power, it’s worth considering some of the most salient supply-side approaches. Right to counsel (RTC) is foremost among them. In cities as wide ranging as New York, San Francisco, Boulder, Minneapolis, Kansas City, and Philadelphia, legislators, judges, community organizations, and denizens have fought for, and won, increased funds for free or low-cost legal counsel in civil proceedings.Footnote ⁹

These RTC policies take numerous forms. Some are means-tested, and others universal. Some pertain specifically to legal representation in eviction proceedings; a few are broader.Footnote ¹⁰ Some RTC policies come to fruition through legislative action, others via judicial decisions, still others by executive action.Footnote ¹¹ The common thread that runs through all RTC efforts is a mandate to increase the supply of lawyers available to represent or advise people with civil legal needs.

RTC policies can be very effective. In 2017, New York City enacted “Intro 214-B,” a pathbreaking expansion of civil legal access.Footnote ¹² Intro 214-B was intended to provide legal counsel for low-income tenants facing eviction. Prior to the passage of this legislation, roughly 1 percent of New York City tenants were represented by an attorney in eviction cases.Footnote ¹³ Within five years (by the fourth quarter of 2022), 63 percent of tenants in eviction court received legal assistance.Footnote ¹⁴ Among that group, 78 percent were able to remain in their homes.Footnote ¹⁵

Intro 214-B is just one example of the profound benefits of legal representation for low-income Americans. Nevertheless, even this pivotal RTC legislation has proven insufficient to meet the demand for legal services.Footnote ¹⁶ Sharp increases in eviction filings in the aftermath of the pandemic were met with a floundering civil legal infrastructure that could not meet the bar set by Intro 214-B. Legal services providers in New York City estimate that they would need roughly $461 million dollars per year to fairly execute current contracts for legal services as well as cover anticipated cases.Footnote ¹⁷ At present, New York City provides $110 million in funding, falling far short of the target.Footnote ¹⁸ Despite having a historic RTC law on the books, New York City Mayor Eric Adams has hesitated to bridge this gap.Footnote ¹⁹

Funding deficits are only one challenge facing RTC. As widely touted as Intro 2014-B has been, beneficiaries of the law sometimes do not know that they have access to free legal representation, do not understand how to obtain such representation, or are alienated from the legal system altogether. Even proponents and implementers of RTC acknowledge its complexity, difficulty, and cost. Adriene Holder, chief attorney for civil practice at the New York Legal Aid Society, aptly admitted to a NYC reporter that “Right to Counsel is in its infancy stages. … [E]veryone wants us to run and twirl but we’re barely out of the crawling stage. So, people need to understand that we’re going to need to continue to refine how this work is done, but we need resources to do it.”Footnote ²⁰

As an attorney, Holder articulates the problem as one of resources, accentuating the supply side of the justice gap. However, it’s clear that many people at the racial and economic margins of society face problems that are technically “legal” but cannot ultimately be resolved through legal processes. For example, there were 69,440 residential eviction petitions filed in NYC between July 1, 2021, and June 30, 2022.Footnote ²¹ Among those eviction filings, 54,806 (about 79 percent) were for nonpayment of rent.Footnote ²² Though there are legitimate legal issues that prompt nonpayment of rent (e.g., withholding rent due to substandard conditions), a common reason for doing so is not having the money to pay. This holds true for a broad spectrum of civil legal problems that are fundamentally rooted in economic and political systems that do not provide denizens with sufficient material resources to meet basic needs.Footnote ²³ Legal services providers are inundated by cases because they deal with the fallout from such structural deficits. Colleen Shanahan and colleagues make this point as follows.

Economic and political structures engender, maintain, and deepen the deluge of inequalities that are flooding civil legal institutions.Footnote ²⁵ Public policies enable housing insecurity, low and stagnating wages, predatory consumer practices, constrained access to public benefits, wage theft, and many other processes that induce precarity.Footnote ²⁶ The civil legal system shoulders the resulting burdens, despite not being designed to do so. Colleen Shanahan and her coauthors trenchantly capture this dilemma:

In such a context, demand for legal services soars. Right to counsel expansions are meant to mitigate this, and they are an indispensable tool for doing so. However, when deployed solely as a supply-side instrument, RTC has little bearing on larger political-economic conditions. It helps people to (perhaps) survive the “brutal needs” that emerge from structural inequality but does not disrupt or transform that inequality.Footnote ²⁸ This is a basic limitation of supply-side solutions.

7.2 Supply-Side Limits: Legal Technologies

RTC is only one of numerous supply-side approaches. Legal technologies have also been hailed as a route to democratizing access to legal resources.Footnote ²⁹ Rapid developments in machine learning and web-based capacities have engendered optimism around the hope that the justice gap can be bridged via low-cost, highly accessible technology-assisted legal service delivery.Footnote ³⁰ More than a decade ago, the Legal Services Corporation declared technology “a powerful tool in narrowing the justice gap” and offered recommendations for technological pathways to facilitating access to justice.Footnote ³¹ Some legal scholars have viewed the “great disruption” sparked by swiftly emerging artificial or machine intelligence as a process that will undermine the monopoly of lawyers and “provide benefit to society and clients as legal services become more transparent and affordable to consumers, and access to justice thereby becomes more widely available.”Footnote ³²

Notwithstanding such confident predictions, there are reasons to be skeptical about the equalizing effects of technological innovations.Footnote ³³ Successfully leveraging technology to bridge civil legal gaps will be contingent on whether people with legal needs can access the internet, have adequate digital literacy, or have the capacity to adequately articulate their needs when required.Footnote ³⁴

Even further, legal technology cannot circumvent economic and social inequalities. Under some conditions, technology even has the potential to exacerbate disparities, for example, by creating a “two-tiered system” where low-income communities are “stuck with inferior AI-driven assistance.”Footnote ³⁵ All things considered, technology holds both promise and peril for civil legal inequality. This makes overreliance on expanding access via supply-side technological innovation an insufficient response to the justice gap.

7.3 Supply-Side Limits: The Use of Nonlawyers

The use of nonlawyers is another supply-side approach to addressing unmet legal need. Historically, the legal profession in the United States has had relatively high barriers to entry and widespread modes of “self-regulation” that limit who can legally practice law and under what conditions.Footnote ³⁶ Lawyers must graduate from an accredited law school, pass the bar exam (in most states), obtain a (state specific) license to practice law, and more.Footnote ³⁷ These and other regulations are meant to ensure the integrity of legal practice. But they also limit the supply of lawyers and increase their cost. In the context of high demand, this system creates a challenging context for those seeking access to civil legal resources.Footnote ³⁸

One solution is to increase the supply of practitioners who can address civil legal problems by allowing nonlawyers to practice law in some capacity.Footnote ³⁹ For example, in 2014 New York City piloted several programs aimed at leveraging nonlawyer legal expertise to meet civil legal needs. One such program deployed legal navigators to assist self-represented litigants in housing court.Footnote ⁴⁰ These navigators were permitted to perform a wide range of tasks, including substantive responsibilities like answering judges’ questions regarding the facts of the case.Footnote ⁴¹

Similar efforts have gone even further. In 2012, the Washington Supreme Court passed a rule paving the way for a new category of legal practitioner: Limited License Legal Technicians (LLLTs). Washington thus ushered in “the profession’s first paraprofessional licensing scheme that allows nonlawyers to provide legal advice without the supervision of a lawyer.”Footnote ⁴² These and other models for expanding the scope of who can provide legal services are encouraging but difficult to sustain. The Washington state program, for example, was sunset in 2023, with no new LLLT licenses being issued thereafter.Footnote ⁴³ Though that program gained national recognition and the (fleeting) endorsement of the Washington State Bar Association, it floundered when the composition of bar’s board and the state court changed.Footnote ⁴⁴ Even more broadly, unauthorized practice of law (UPL) regulations across the country prohibit nonlawyers in varied and substantial ways.Footnote ⁴⁵

Though RTC, legal technologies, and nonlawyer assistance are innovative and important means of tackling civil legal inequality, an exclusive focus on supply-side solutions places a ceiling on the possibilities for transforming the justice landscape. A turn to the demand side – through an emphasis on political power – opens a different horizon of prospects.

7.4 Why Power Is Pivotal

Power is a complex notion that has been widely theorized in terms of its various faces, forms, and dimensions. For the purposes of this chapter, I define power broadly as the capacity to influence the conditions that shape one’s life and community.Footnote ⁴⁶ Political power is specifically the capacity to wield influence through the state and other critical political actors (e.g., employers, landlords) as a means of changing the conditions that shape one’s life and community.Footnote ⁴⁷ The people and communities with the most inadequate access to civil legal resources – those who are economically and racially marginalized, struggling to survive onslaughts of deprivation and predation in their daily lives – are the very people who often lack political power. Such a dearth of power enables the circumstances that create civil legal problems. So long as power imbalances facilitate material inequities (as is the norm), legal needs (demand) will likely outpace the ability to meet them (supply).

To make concrete the relationships between power and legal need, consider Quiana, a young mother interviewed as a part of a larger research project.Footnote ⁴⁸ After a local code enforcement officer found lead paint in Quiana’s home, she tested her four children for lead exposure. Quiana then found out that three of her children had borderline high levels of lead, while her fourth and youngest child – a three-year-old boy – had severely high levels. Despite urging from public health officials, Quiana could not afford to relocate. She was unemployed and far down a long waiting list of people eligible to receive section 8 vouchers. Moreover, there was a dearth of affordable rental units in her city. The local department of health fined Quiana’s landlord and ordered him to abate the lead, but he did not. When Quiana sought a lawyer to help her address the lead issue, she could not find one. Her local legal services organization focused mostly on eviction cases. They did not have the capacity to take on lead cases.

With her fear and frustration over the situation growing, Quiana stopped paying rent. Her landlord then promptly initiated eviction proceedings. She returned to legal services and only then was able to get an attorney to represent her in housing court. As a result, she was able to temporarily fend off eviction.

Despite receiving civil legal assistance for (some of) her legal problems, Quiana remains in a precarious, unsafe housing situation with an unaccountable landlord looking for a reason to kick her out. Given these circumstances, it would be unsurprising if additional legal problems emerged in her life. Quiana’s most fundamental problems, however, are not legal. The primary reasons for her predicament are political-economic: inadequate regulation of predatory landlords, insufficient availability of affordable housing, and an underfunded and ill-equipped housing voucher program. All these issues are the result of political choices that reflect (among other things) the inability of Quiana and people in communities like hers to influence policy to their benefit.

Quiana recognized the problem of power at the core of her dilemma. Facing the double dangers of poisoning and displacement she confessed,

Though Quiana lived in a city experiencing an enduringly severe crisis of lead poisoning within impoverished communities of color, she was not part of any concerted effort to pressure public officials to address the lead issue or to build safe, affordable housing. By her own account, Quiana lacked the power to change the circumstances that produced her legal problems. Though she did not live in a city with a “right to counsel” in eviction court, it’s unlikely that the outcome of her situation would have been different if she had (given that she did have representation in her eviction case). It’s similarly implausible to suppose that having access to current advanced legal technology or a nonlawyer legal practitioner would have fundamentally altered Quiana’s circumstances. And even if one of these supply-side interventions would have proved effective in Quiana’s case, they would do little to change the (similar) conditions faced by many of her neighbors.

On the other hand, when tenants like Quiana organize collectively to exercise power in the face of the inequities that structure their lives, possibilities for more fundamental change emerge.Footnote ⁴⁹ When lawyers and legal institutions go beyond providing access to legal services and toward facilitating collective organizing, people like Quiana are enabled to build power that can alter the conditions that profoundly constrain their life chances.

7.5 How Power Can Mitigate Legal Need

To make the case for critically assessing supply-side legal interventions through the lens of power, we must clarify precisely why power is so vital for mitigating legal need. This chapter describes three ways that political organizing to build power can change the conditions that lead to legal problems:

1. (1) Organizing can help to avoid problems that could have generated legal needs.

2. (2) Organizing can address problems (through nonlegal means) that generate legal needs.

3. (3) Organizing can affect policy change to alter conditions underlying legal problems.

Below, I give examples from in-depth qualitative interviews with sixty-seven tenants who organized collectively, each of which illustrates how these mechanisms work to mitigate legal needs.

7.6 Demand-Side Legal Interventions

Given the limits of the supply-side provision of legal services and the promise of building power through political organizing, it is tempting to underestimate the continued importance of civil legal infrastructure and resources. However, eschewing legal interventions in the current political economy risks doing great harm because many people would suffer more acute deprivation in the absence of legal protections. Further still, spurning legal tactics misses a potentially imperative opportunity to use the law as a means of forging countervailing power.Footnote ⁵¹ In this view, a strategic and complementary mix of supply and demand approaches is optimal.

What do demand-side legal interventions look like? All the attention given to supply has obscured the prospects for moving beyond accessing justice and toward wielding power.Footnote ⁵² Though an exhaustive accounting of those prospects is beyond the scope of this chapter, the remaining sections surface two examples that point in the direction of this fundamentally important shift: (1) using supply-side policies like RTC and use of nonlawyers as a path to power and (2) leveraging legal protections to support political organizing.

A puzzle hangs over legal tech: Why isn’t there more of it, particularly the sort that helps ordinary people?

Conditions have long seemed ripe for a legal tech renaissance. While there remains debate about where to assign blame for the justice gap, its magnitude is undeniable. A parade of “legal needs” surveys in recent decades shows that a hundred million or more Americans experience one or more civil justice problems each year yet receive no help in resolving them.Footnote ¹ Take this decades-long crisis of immense, unmet civil legal need and add in rapid advances in technology, especially artificial intelligence (AI), and one would expect a robust “direct-to-consumer” (DTC) legal tech sector that provides affordable, tech-enabled solutions to fill the justice gap.

And yet, investment in DTC legal tech – just one measure of an industry’s health and potential – has languished compared to lawyer-driven software applications, such as Harvey or Casetext. Beyond LegalZoom and RocketLawyer, DTC legal tech is a footnote in a market dominated by law firms and corporate buyers.Footnote ² And investment in DTC legal tech is a pittance compared to “fintech.” Think here of Robinhood, a commission-free stock trading tool that has received a hefty $6 billion in funding,Footnote ³ more than ten times even LegalZoom.Footnote ⁴ Becky Sandefur, the dean of access-to-justice scholars,Footnote ⁵ concluded in a 2019 report that legal tech tools serving “non-lawyers” are “restricted and limited” in functionality and “only partly match the types of justice problems most commonly reported by Americans.”Footnote ⁶ A more recent report from Duke University reached the same conclusion: “justice tech”Footnote ⁷ has struggled to overcome “system barriers.”Footnote ⁸ As one “justice tech” founder recounted, “I had a big dream and I knew it would be hard, but I had no idea.”Footnote ⁹

So why hasn’t a robust DTC legal tech market emerged? At least three explanations have so far dominated the debate. The first (and most common) blames restrictive rules that say that only lawyers can practice law (i.e., prohibitions on “unauthorized practice of law,” or UPL) or own law firms (i.e., Rule 5.4’s bar on fee-sharing).Footnote ¹⁰ The former limits functionality, consigning DTC legal tech tools to form-filling and “document assembly,” thus providing only limited help to those in need. The latter bar DTC providers that are not fully lawyer-owned – like LegalZoom – from employing lawyers to supplement their tech-based services. A second prominent theory is insufficiently potent technology: Automated tools, even sophisticated AI-based ones, cannot perform the all-important translational work – cutting through legalese and explaining options and outcomes in plain language – that is necessary when serving unsophisticated lay clients.Footnote ¹¹ While not a problem for legal tech directed at lawyers, it’s a major hurdle for tools that aim to serve people who need actionable advice in clear, understandable, and bite-sized forms. A third explanation focuses on courts’ technology systems: Looking across some 14,000 court jurisdictions in the United States, one sees a checkerboard of technology and data infrastructures. The resulting technological Babel makes impossible the scale necessary to induce tech providers to invest time and capital in developing and then maintaining robust, user-friendly systems that serve customers with very limited ability to pay.

This chapter argues that undergirding each of these explanations is a deeper and potentially intractable problem. Though barriers such as restrictive rules, weak tech, or the court technology checkerboard are commonly invoked, they fail to account for the limited scale and longevity of most DTC legal tech. The better explanation for anemic legal tech – or at least a core component of a complete one – is the uniquely challenging market economics of providing low- and medium-income Americans with legal services. Facing already narrow margins, DTC legal tech is locked in an unwinnable race to attract and retain customers who only need their services once – and, worse, may not realize they need them at all. Lowering other barriers – say, by lifting the lawyer’s monopoly, or leveraging newly potent forms of generative AI – might give DTC legal tech room to breathe, but doing so cannot alone solve the underlying problem: To build sustainable models, DTC legal tech needs passive income streams and enterprise-level customers.

That conclusion, withering as it is, is crucial to thinking about the future of legal services and access to justice. For instance, it is possible that “regulatory reform” advocates have it wrong, at least as to technology-based legal services. If liberalized legal services rules are unlikely to yield a flowering of DTC legal tech anytime soon, then perhaps the access-to-justice movement should be investing its limited capital, both political and real, in efforts to build out human-centered models of legal services delivery, such as the community justice worker movement.Footnote ¹² By extension, perhaps legal tech entrepreneurs should focus on devising tools that extend the reach of the human providers, beleaguered and overwhelmed, that already dot the civil justice landscape. Even more bracing, perhaps legal tech developers should be creating tools that serve courts, not self-represented litigants.

As we note below, courts in the coming years will face a “make or buy” choice. “Make” means court-connected, court-hosted systems, including court portals, remote hearings, online dispute resolution (ODR), digital self-help, or e-filing, whereas “buy” means courts structuring themselves, particularly their technology and data systems, to be more accessible to intermediaries, especially DTC legal tech providers, who serve self-represented litigants. Make and buy require very different infrastructures, and it’s not at all obvious that courts, perennially underfunded, have the money to do even one, let alone both. But if DTC legal tech is doomed, and budget-constrained courts must choose, then “make” – taxpayer-financed, “public option” legal tech – may be the wiser investment.

We develop these ideas using a mix of theory and evidence. The first section below reviews the “usual suspects” – three common explanations for anemic DTC legal tech. The next section sets forth our market- and business-centered theory, thus building a fuller account of the challenges facing DTC legal tech. A third section reports our research, including interviews, with six DTC legal tech providers, chosen to reflect a cross-section of the current market landscape, and then maps them to the full set of “barrier” theories. A final section considers the implications of a DTC legal tech sector that may never get fully off the ground.

A few orienting notes on scope: First, our inquiry focuses on DTC legal tech providers: client-facing providers that use technology to deliver legal services. We thus bracket legal tech tools that instead automate law practice via a “technology assist”Footnote ¹³ to lawyers and legal workers.Footnote ¹⁴ Moreover, we focus on legal tech providers that offer actual legal services, defined broadly as “help with a justiciable issue.”Footnote ¹⁵ As such, we exclude story-telling tools, reminder tools, and digital signature tools which, while client-facing, do not provide a legal service; we also exclude “legal marketplaces,” which merely connect consumers to an (often traditional) legal services provider.Footnote ¹⁶ Finally, we include DTC legal tech providers whose end users are individuals and/or small businesses, but not lawyers or large corporations. In so doing, we employ a broader definition of “consumer” than previous studies.Footnote ¹⁷ By defining consumers to include small businesses in addition to individuals, we focus on tools within the so-called PeopleLaw segment of the legal services industry, as distinct from corporate-facing BigLaw or legal aid.Footnote ¹⁸ In serving ordinary individuals and not organizational clients, PeopleLaw sits at the cusp of the justice gap: individuals and businesses who do not qualify for legal aid but who also cannot afford traditional legal services.

8.1 The Usual Suspects: “Barrier” Theories

Three explanations have dominated the debate about anemic “justice tech.” Each, however, raises hard questions about where the real problem lies. This section reviews each explanation to set the stage for our own market- and business-focused account of why DTC legal tech has languished.

8.2 A New Take: Market Barriers to Robust DTC Legal Tech

What else might explain anemic legal tech? This section develops an alternative, market-based theory focused on legal tech providers as businesses – and, very often, startups – and the shape of the markets they seek to serve. To flesh out its particulars, it draws on theory and industry analogues to propose a three-step, market-based explanation: Legal tech lacks a sustainable customer base because (i) limited customer demand and (ii) high customer-acquisition costs produce (iii) an acute “lifetime value trap.” The rest of this section elaborates on each of these challenges.

PeopleLaw – the market that DTC legal tech is best positioned to serve – has been flooded with lawyers for decades,Footnote ³⁵ yet it remains notorious for its lack of profitability.Footnote ³⁶ The vast majority of PeopleLaw is bespoke and labor-intensive, and there isn’t much room to lower prices when the average solo practitioner already earns less than $60,000 (and may be facing significant law school debt).Footnote ³⁷ And while legal tech has often served those priced out of traditional PeopleLaw, that market likely cannot sustain the scale necessary for a tech startup to grow, particularly where legal tech providers typically face stiff competition to attract individual customers.Footnote ³⁸

With the ever-increasing cost of digital marketing, including the rising ticket price of search engine optimization (SEO), legal tech must dramatically increase the dollar value of each client to break even, let alone turn a profit. While this problem may be addressed by building a steady base of loyal, returning customers, demand in PeopleLaw is hardly consistent: Customers are less likely to need another divorce than they are a replacement pair of their favorite brand-named sneakers. To solve this problem, other consumer services segments – health tech and platform tech – have redefined the customer: Instead of individual users, they serve enterprises that come with big-ticket contracts and reliable revenue. But there is no clear enterprise customer, at least not yet, for legal tech to tap into.

8.3 The Barriers in Operation: Case Studies in Legal Tech

This section puts data on what, to this point, has been mostly open-ended theorizing about the workings of the legal tech marketplace. We do so by running the various theories – both the “usual suspects” and our new, market-based way of thinking – through a select set of legal tech providers, as summarized in Table 8.1.Footnote ⁶² These legal tech offerings represent a rough cross-section of the nascent DTC industry in terms of each entity’s services type (from online software wizards that generate ready-to-file legal documents to legal advice from humans), the subject-matter area of those services, the entity’s organizational structure, its fee structure (including its for-profit or nonprofit status and its sources of revenue), and its geographic scope. Taken together, these companies offer an ideal workbench to explore how the different possible explanations for the industry’s anemic status operate and intersect across different segments of the market. They also make plain our central thesis, as summarized in Figure 8.1. While conventional explanations for anemic DTC legal tech – restrictive lawyer rules, weak AI, and the jurisdiction-by-jurisdiction technology checkerboard – might explain languishing legal tech as to some subset of DTC providers, only our market-based theory can fully explain lagging legal tech across the board.

Table 8.1Six case studies of legal tech providers

Table 8.1 Long description

The table summarizes the work of 6 case study subjects in column 1, followed by the scope, structure, 3 legal services namely, document assembly, legal advice, and attorney-client matching, and 4 fee structures namely, one-time customer transaction, ongoing customer subscription, attorney referral fees, and grants or individual donations, from left to right in order.

The work summary for the 6 case study subjects are as follows.

• Hello Divorce. Generates and files divorce documents for clients and connects clients with lawyers at its sister firm, Levine Law.

• Atticus. A legal marketplace that performs client intake and connects users with vetted outside lawyers, focused on social security and disability.

• Tenant Power Toolkit. Generates and files documents for tenants facing eviction in California with a focus on the L A courts.

• Legal Zoom offers document production, filing, and legal advice for small business owners and solo proprietors.

• Upsolve generates but does not file Chapter 7 bankruptcy documents.

• SixFifty is a SaaS company that offers employers platform-level employment and privacy solutions with one-off document assembly available on their website.

The data for the 3 legal services and 4 fee structures are represented in tick marks signifying that a particular column is checked for a legal tech provider. The following are the data for the scope, structure, the 3 legal services, and the 4 fee structures in order, from left to right for the 6 legal tech providers.

• Hello Divorce, multi state, dual entity, all columns checked except for one-time customer transaction fees and grand or individual donation.

• Atticus, national, dual entity, only attorney-client matching and attorney referral fees are checked.

• Tenant Power Toolkit, C A, stand-alone, only document-assembly and grant or individual donation are checked.

• Legal Zoom, national, stand-alone, all except attorney-client matching and grand or individual donations are checked.

• Upsolve, national, stand-alone, only documents assembly, attorney referral fees, and grants or individual donation are checked.

• SixFifty, national, wholly owned subsidiary of Wilson Sonsini, all except attorney referral fees and grant or individual donation are checked.

Figure 8.1

Impact: degree to which a barrier restricts scale.

Figure 8.1 Long description

The table compares the degree to which 4 different barriers namely,Restrictive Rules, Weak A I, The Checkerboard Problem, and the Lifetime Value Trap, impact 6 legal tech companies’ ability to scale. There are 3 impact degrees. A black circle indicates that the barrier has a significant and negative effect on the provider such that lifting the barrier would enable the provider to scale, grow, or otherwise offer better services to their clients; a gray circle indicates that the barrier limits scalability or profitability in minor ways; a white circle indicates that the barrier has no or minimal impact.

• For Hello Divorce, restrictive Rules, The Checkerboard Problem, and the Lifetime Value Trap, are black circles, and Weak A I is a white circle.

• For Atticus, Weak A I and the Checkerboard Problem are white circles; Restrictive Rules is a grey circle, and the lifetime value trap is a black circle

• For the Tenant Power Toolkit, Restrictive Rules is a white circle, weak A I and the Lifetime Value Trap are grey circles, and the checkerboard problem is a black circle.

• For Legal Zoom, restrictive rules and the lifetime value trap are black circles, Weak A I is a white circle, the checkerboard problem is a grey circle.

• For Upsolve, Weak A I, the Checkerboard Problem, and the Lifetime Trap are grey circles, and restrictive rules is a white circle.

• For SixFifty, the Lifetime Value Trap is a black circle, and Restrictive Rules, Weak A I, and the Checkerboard Problem are white circles.

A black circle indicates that the barrier has a significant and negative effect on the provider such that lifting the barrier would enable the provider to scale, grow, or otherwise offer better services to their clients; a gray circle indicates that the barrier limits scalability or profitability in minor ways; a white circle indicates that the barrier has no or minimal impact.

8.4 Implications

To this point, we have identified and tested an alternative, market-based theory for lagging DTC legal tech that provides a fuller, industry-spanning explanation than the standard arguments around restrictive rules, weak AI, or the court technology checkerboard. This section builds out some of the implications of our findings for the future of legal services and access to justice. Two loom largest. First, the structural challenges facing DTC legal tech hold important lessons for current “regulatory reform” efforts, and they may even tip the scales away from liberalization strategies that aim to foster a robust, competitive legal tech marketplace. Second, market-based barriers to a robust DTC legal tech ecosystem may have fundamental implications for how courts should see their role, and build out their own technology and data infrastuctures, as the civil justice system enters its next chapter.

8.5 Conclusion

This chapter has squarely asked the question that has long hung over legal tech: Why has DTC legal tech that serves individuals and small businesses directly not risen up amidst massive unmet civil legal needs? Our answer is a disheartening one: Inclusive legal tech may never materialize, at least not at a scale that can more than dent the problem of access to justice, because of the uniquely challenging market economics of serving ordinary people. But there is power in that recognition, for it can push us to consider what other measures might be necessary to make the civil justice system more open and fairer for all.