a seemingly simple issue that came up in the Homeless Project. The potential client was a recovering drug addict who had moved down from Cleveland and left his wife behind. After a few years in Knoxville without any contact, he decided to seek a divorce. He started at the local court clerk’s office by asking how to divorce someone in Ohio. The clerks refused to say whether to file in Tennessee or Ohio. They refused to explain how to serve a party in Ohio. They certainly did not explain which state’s laws would apply in Tennessee or how the laws might work out in a contested divorce. Nor should the clerks have answered all of those questions—they likely had no idea how to answer.
Online forms are not much help in these circumstances. The documents are for simple divorces. They do not apply to bumps in the road, even simple issues like a dispute in custody arrangements or different state locations.
And don’t think that this problem is limited to the homeless or the poor. Though Americans often think of access to justice as a problem of poverty, it afflicts the middle class too. Middle-class people have it worse, since they cannot use legal aid and are likelier to have some assets over which they can fight. A typical retainer for a contested divorce is $10,000 up front. Not many Americans can afford justice at that price.
Even in a market glutted with lawyers, it is still quite expensive to pay an individual lawyer to research a legal problem, let alone to pursue litigation or draft a legal document. Thus, both poor and middle-class Americans often must proceed without counsel or “lump it” by living with problems that courts could solve.
Where Are All the Lawyers?
In short, ordinary Americans cannot afford to hire a lawyer even for very serious and complicated problems, the problem is growing worse, and the system is poorly equipped to handle the resulting flood of pro se litigants. How can this be? The legal profession continues to grow faster than the population, adding more than 46,000 new law school graduates in 2013. It is puzzling that in the midst of the worst law recession since the Great Depression, access to justice remained deplorable. Where are all of these displaced lawyers and why are they not servicing this need?
First, roughly a quarter of lawyers are not in private practice, working directly for corporations or in government or a law school. Of those in private practice, the most lucrative and sought-after work is in representing or suing corporations. From the 1950s until 2008, large corporate law firms grew steadily in terms of number of lawyers, percentage of the profession, revenues, and profits. Virtually all large-firm work is for corporations or very wealthy individuals.14
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