Rachel Wang, Oct 12, 2021
A spotlight on Hugh McDonald’s law review piece “Assessing A2J”
Hugh McDonald published Assessing Access to Justice: How Much ‘Legal’ Do People Need and How Can We Know? in the UC Irvine Law Review earlier this year.The article helps us operationalize two terms that we use in legal design & policymaking: access to justice and legal capability.
It’s a useful read for those working on legal design, tech, and research efforts to make the justice system more equitable and human-centered. I have summarized some of the key points here — and encourage you to read the whole article.
‘Access to Justice’ is the goal of much of our work in legal reform and design. In practice, access to justice would exist if a person is able to use the legal system to resolve their problems around family, home, work, housing, money, and personal security.
There would be ‘access to justice’ if a person knows the legal system exists, if they’re able to understand how to use it, and they’re able to use it without high burdens, costs, or other barriers. It would be procedurally just (transparent, straightforward, and respectful) and substantively just (producing a fair outcome for the problem or dispute).
Most of our work focuses on increasing access to justice — and dealing with all the barriers to it. Why aren’t people able to use the legal system to solve their problems? And how do we make it easier to know about it and use it?
This is where the notion of Legal Capability is so key to Access to Justice efforts.
McDonald defines the term ‘Legal Capability’ as the personal characteristics or competencies required to effectively and purposefully function in the legal sphere, including purposeful use of law and legal institutions. It encapsulates the ability to perceive potentially justiciable issues, access or obtain appropriate legal information and assistance, apply the law to their circumstances, assess available options, and take appropriate steps to assert and defend rights.
What does Legal Capability look like?
Following this, Pleasence, Balmer, and others have established a way to operationalize legal capability along a few ability markers. If someone has Legal Capability, then they should be able to perform these actions:
- Issue-Spotting: the ability to ‘perceive and characterize’ the legal,
- Help-Seeking: the ability to ‘seek and obtain appropriate help or assistance,’ and
- Help-Using: the ability to apply and use help or assistance.
What makes a person have Legal Capability?
To actually accomplish these legal capability tasks, McDonald goes through the literature to find the concrete factors that go into whether a person can or cannot do them. These Legal Capability factors include:
- Knowledge, about the law, rights, obligations, assistance, information, and processes,
- Skills, like around recognition of issues, “information literacy,” “communication,” decision-making, problem-solving, and “digital literacy”,
- Behavioral attributes, including “self-awareness,” “persistence,” “confidence,” and “attitudes”, and
- Resources, including money, time, social capital, availability of services, and simple processes.
Researchers can be measuring legal capability as a part of measuring access to justice. This could be before & after a new intervention. Does your policy, tech, or design increase people’s legal capability? Does it make them more knowledgeable, skillful, confident, or resourceful?
What are the data sources we can use to define the state of Access to Justice?
In the article, McDonald highlights 3 main sources of empirical information to assess whether access to justice exists in a jurisdiction, and to what degree.
These 3 are legal needs surveys, administrative and operational justice system data, and evaluative studies.
Legal needs surveys evaluate the public understanding of law and legal needs, while investigating knowledge, attitudes, experiences, and handling of justiciable problems from the bottom-up perspective of those who face them, rather than from the top-down perspective of justice system professionals and institutions.
Administrative and Operational justice system data encompass the wide range of information about justice institutions, operations, and users. For example, legal matter type, party type, level of legal assistance, legal representation status, number of pending matters, filing fees received and waived, staffing, use of interpreters, matter duration, case backlogs, adjournments, mediations, finalizations, file integrity, disposal method and stage, matter outcome, final orders, and expenditure are some measures that may be available from justice system administrative and operational data.
Lastly, evaluative studies examine what ‘works,’ of course keeping in mind that defining desired outcomes is an inherently political task and that views as to ‘success’ are likely to be contested.
In all three of these empirical sources, McDonald highlights that research can look at outcomes recorded in these data sources, across several domains. These can help us get a better profile of whether legal capability and access to justice exist:
- Outcomes for the client (e.g., impact on clients’ legal matters, impact on broader client outcomes, impact on client experiences, etc.)
- Outcomes for the program (e.g., impact on service appropriateness, etc.)
- Organizational outcomes (e.g., impact on sustainability and cost, etc.)
- Outcomes for systems (e.g., impact on justice system operations, effectiveness, and efficiency etc.).
- We need to be tracking down what’s happening in these four different outcome areas, using a creative mix of data. Even if Legal Needs Surveys are the most established source, we as a research community can dive into the other two.
A2J Research and Design needs
McDonald calls out a short list of things that we can be working on, in the access to justice community. This includes things for researchers, practitioners, designers, and technologists.
- Measurement of new interventions’ impact: More effective measures of the impact of advice and the cost/benefit of services
- Defining ‘what works’: More evaluative information to identify ‘what works’ in respect of policy responses in the field of civil justice and how legal need can better be addressed through policy interventions
- How people actually deal with legal/life problems: More specific information relating to the problem-solving behavior of individuals
- New designs to communicate complex legal info: Understanding of how information can be effectively communicated to those with civil justice problems
- New designs to brand/communicate legal help: Effective ways to communicate “the value of seeking legal help”
- Different designs for different audience demographics: Data on what options to address access to justice needs are acceptable for different client groups
What can A2J Researchers be working on?
Given this, McDonald suggests options worth further research and development:
- Development of legal capability indicators. Such indicators might be based on a combination of sociodemographic measures but must be able to be easily deployed in operational and frontline service contexts.
- Improved ability to capture legal matter and user complexity. This metric is particularly important for gauging the effectiveness and cost-effectiveness of different legal assistance service models.
- Additional demographic measures of justice institution users. More information about what types of people do, and do not, make use of formal dispute resolution processes is needed to routinely monitor and gauge their use.
- Follow-up methods and measures to gauge user experience and outcomes. In many other sectors it is now common to routinely follow-up on service provision to find out about users’ experiences and outcomes. Routine following of unbundled legal assistance service could help determine, for example, if the service met user needs, was helpful, and why or why not. This action would be one way to learn more about user experience and outcomes and could also potentially improve data concerning factors affecting user ability to make effective use of unbundled legal assistance services. Concern about burdens of additional data collection could be mitigated by randomly following up with a small proportion of users. The cost of not doing so includes the provision of unbundled legal assistance that, at best, risks potentially providing services that are inappropriate and ill-matched to user legal need and capability, and thus potentially waste scarce resources, and at worst, undermine access to justice, confidence in the justice system, and rule of law.
Surveys and Scales to use in A2J research
McDonald offers several existing surveys and scales from which to draw inspiration for future instruments:
- OECD and Open Society Foundation’s recent guidance on legal needs surveys and access to justice note several limits of legal need surveys
- General Legal Confidence Scale — Pleasance and Balmer
- Victoria Law Foundation’s Community Perceptions of Law Survey
- Victoria Law Foundation’s forthcoming Public Understanding of Law Survey (PULS)