married until the divorce becomes uncontested, or simply stay married for good. Why? Because the process is so complicated that it requires a lawyer to navigate, and there are simply no lawyers they can afford. In some cases, that might be salutary: choosing not to sue a neighbor over a property dispute, for example, might save money and improve relations, and unhappy couples are sometimes better off working out their differences instead of divorcing. Many of these problems, however, are more like needed divorces or changes to child custody arrangements. People who cannot afford lawyers to solve these problems suffer real hardships.
There is plenty of evidence of an access-to-justice problem. Two empirical studies suggest that poor and middle-class Americans suffer these problems frequently. The most comprehensive such study is the American Bar Association’s 1994 study Legal Needs and Civil Justice, which canvassed both low- and moderate-income Americans. (“Low income” meant 125% of the poverty line and below, and “moderate income” meant the middle three-fifths—from 20th to 80th percentile—of households). About half of all households had at least one unmet legal need during 1992 (excluding desires for standalone legal advice), but nearly three-quarters of the low-income households’ problems and two-thirds of the moderate-income households’ problems were never brought to the civil justice system.
Professor Gillian Hadfield compared this study to studies of legal needs around the world. Americans were about as likely to have a legal need and about as likely to use a lawyer to solve those problems as citizens of other countries, but were far more likely to “lump it.” Citizens in England, Wales, Scotland, and Slovakia got advice from non-lawyers much more often, apparently filling the gap.2 Almost a third of Americans lumped it in the 1994 survey, compared with under 5% in the U.K. and 18% in Slovakia. Hadfield concludes:
These studies suggest that the U.S. legal system plays a significantly smaller role in providing a key component of what law provides—ordered means of resolving problems and disputes—than either comparable advanced market democracies or countries still in the early stages of establishing the basic institutions of democratic governance and a market economy.3
The World Justice Project’s (WJP) 2014 version of the Rule of Law index further demonstrates that the United States lags behind other industrialized countries in access to justice. The WJP surveyed or interviewed more than 100,000 citizens and legal experts in ninety-nine countries; it found that the United States fell in the bottom half of the high-income countries on their aggregate measure of the rule of law and was a staggering 25th out of thirty wealthy countries on the civil-justice measure.4
Other studies, focusing solely on poor Americans, have found even greater unmet need. The most recent comprehensive study is a 2009 report by the Legal Services Corporation (LSC), which presents three different measures of unmet need.5
First, the report found that, because LSC lacked enough money, it had to reject almost a million cases per year—just over half of all eligible clients. These numbers do not include people who were denied services by non-LSC-funded programs and those who did not seek legal help at all. They also do not include potential clients who were ineligible under the stringent poverty guidelines (generally set at 125% of the federal poverty line), that is, middle- and lower-middle-class people. Lastly, the number of clients “served” by LSC programs includes people who received partial or unbundled services or limited advice, such as a five-minute telephone call, a brief chat at a help desk, or a do-it-yourself manual. In Chicago, for example, these “brief services” make up 80% of the clients counted as served.6
Second, the report amalgamated data from studies of seven states—Alabama, Georgia, Nevada, New Jersey, Utah, Virginia, and Wisconsin. These studies show that low-income households have as many as three different legal needs a year, and that fewer than one in five of those needs is addressed with the help of a private or legal aid lawyer. Even using a stringent definition of “legal need,” a large majority of serious legal problems are not addressed with the help of a lawyer.
Third, LSC compared the number of lawyers providing services to the poor (whether or not they worked for LSC) with the number of private attorneys. Nationally there is one attorney for every 6,415 poor people and one private attorney providing personal legal services for every 429 people in the general population. The number of private attorneys per capita is somewhat misleading, however, since a good number of those lawyers work primarily for corporations and businesses.
Other studies report similar findings. For example, a 2008 study in Washington, DC, found that: (1) 97% of tenants who go to court as defendants in a dispute with their landlords (typically in eviction proceedings) are not represented, (2) 98% of domestic violence victims and respondents are unrepresented, and (3) 98% of respondents were unrepresented in paternity and child-support cases. In Texas, only 20% to 25% of eligible poor litigants are represented in court. That rate actually sounds high given this ratio: There is roughly one legal aid lawyer for every 11,000 income-eligible Texans.7
Professor Gillian Hadfield offers an alternative measure of legal services for the poor and middle class.8 She divided the total amount of money individuals (as opposed to corporations) spent on legal services by the average hourly rate for small firm and solo practitioners and then again by the U.S. population. In 1990, Americans bought an average of 1.6 hours of legal services per person for the year, or 4.15 hours per household. By 2012, the number had declined 30%, to 1.3 hours per person or 3.0 hours per household. Spread out by legal problems rather than households, the numbers are even starker: In 1990, American households were able to use roughly 4 hours of legal time, on average, to address a legal problem. By 2012, that amount had shrunk to 1 hour and 30 minutes. Even if you double these rough averages, they cannot cover most legal problems. Most Americans cannot afford to hire a lawyer, even for serious legal problems like divorce, criminal defense, or foreclosure.9
Further evidence is the flood of pro se litigation in American courts, frequently over very important and complicated issues.10 The rate of self-representation has been growing and spreading into more serious legal disputes since at least 1998, and it has accelerated since 2008.11 A great number of American courts have tipped over to having a majority of the cases feature at least one pro se party. Examples include courts that handle evictions, family law, debt collection, and child support.
The Cost of Private Help
So why do people with legal problems, especially middle-class people, forgo hiring private lawyers? Every town has firms that advertise $500 divorces. These teaser rates, however, are only for simple divorces. As a Knoxville private attorney’s website explains:
Attorney’s fees will vary based on the individual attorney and the complexity of the divorce. An uncontested divorce with nothing left to work out, no real property, and no minor children will cost anywhere from $150-$1500 depending on the attorney. In a contested divorce, it is more difficult to estimate fees because of the uncertainty of how much work will need to be done on the case. Most attorneys bill by the hour on contested matters and will usually require a retainer up front.12
A contested divorce is like a home in the Hamptons: If you have to ask how much it will cost, you probably cannot afford it.
How about a pro bono lawyer, a private-firm lawyer volunteering for free as a public service? As noted below, pro bono work is fairly limited, especially in family law. Few lawyers have the expertise needed to handle a contested or complicated divorce, and the ones with the expertise are small-firm and solo practitioners struggling to make ends meet. Nor is divorce work particularly fun or sexy, making it a low priority for lawyers volunteering their time.
So maybe file pro se? American judges and clerk’s offices are notoriously impatient with pro se litigants.13 Clerk’s offices are frequently told not to give any legal advice to pro se litigants. Many have been told that if they
