Podcast Summary: Amicus With Dahlia Lithwick

Episode: Lawyers, Who Needs 'Em?
Date: August 17, 2019
Host: Dahlia Lithwick
Guest: Rebecca Sandefur, Sociologist and Access to Justice Expert

Overview of the Episode

This episode addresses America's vast gap in civil legal justice, focusing on why so many Americans—especially those with low incomes—face crucial civil legal problems (like eviction, wage theft, or loss of custody) without legal assistance. Host Dahlia Lithwick interviews sociologist and MacArthur “Genius” grant recipient Rebecca Sandefur, whose research challenges the assumption that access to a lawyer is always the best or necessary solution for justice. The conversation explores the roots of the problem, rethinks the role of lawyers, and considers broader, innovative solutions to closing the justice gap.

Key Discussion Points and Insights

1. The Immensity of America’s Civil Justice Gap

• Magnitude: More than three quarters of state civil court cases today have at least one unrepresented party; 86% of civil legal problems of low-income Americans go without legal assistance ([00:31]).
• Invisible Crisis: Many civil justice problems never even make it to courts or lawyers—estimates suggest Americans experience between 100–150 million new civil justice problems annually ([03:12]).
• Types of Issues: Problems often involve fundamental needs (housing, employment, custody, benefits), with outcomes that can be catastrophic ([04:02]).

Quote:
“What's making it to the court system is the tip of a gigantic iceberg of civil justice experiences that Americans are having, most of which never make it to lawyers or to courts.”
– Rebecca Sandefur ([03:12])

2. Differences Between Civil and Criminal Justice

• No Right to Counsel: Unlike criminal defendants (who gained the right to a lawyer via Gideon v. Wainwright), there is no comparable right for civil litigants, except in a few pilot programs ([04:44], [16:31]).
• Legal Aid Shortfall: There is only one legal aid lawyer per 6,000 people eligible for their services ([04:44]).

3. Do Lawyers Make a Difference? Mixed Evidence

• Not Always Superior: Sometimes, lawyers help; sometimes, their presence makes no difference or can be a disadvantage, especially if the setting is more problem-solving than adversarial ([06:45]).
• Non-Lawyer Interventions: Paralegals, trained advocates, and even online divorce kits can offer as much or more benefit in certain common legal matters ([07:38]).

Quote:
“If you look across those studies, one thing you see is that sometimes lawyers do better than people on their own, but sometimes lawyers get too lawyerly... Sometimes that kind of person [not a lawyer] can be just as beneficial as a lawyer can.”
– Rebecca Sandefur ([06:45])

4. Barriers Beyond Cost: The Awareness Gap

• Cost Not Main Barrier: Contrary to assumptions, financial cost is often only the fifth or sixth most common reason people don’t seek help ([09:10]).
• Lack of Legal Framing: Most people see their problems as bad luck, God’s will, or normal misfortune—not as legal issues at all. Only 9–12% see a legal dimension ([09:10]).
• Information as a Solution: Massive public education (e.g., targeted advertising campaigns) and community outreach could help people identify when a legal remedy is available ([13:14]).

Quote:
“…a big barrier is people's understanding of these problems as things they could act on and that might benefit from some sort of legal intervention or advice.”
– Rebecca Sandefur ([09:10])

5. Social and Emotional Factors

• Stigma and Relationships: Sometimes people avoid the legal system out of shame or fear of damaging relationships, making it a rational choice to steer clear even when a legal remedy is possible ([15:06]).

6. Innovative and Non-Lawyer Solutions

• New York City Example: Programs used “navigators” (trained non-lawyers, like social workers) to help tenants navigate eviction proceedings, achieving impressive results (zero percent eviction for assisted tenants in a pilot year) ([19:37]).
• Integrated Models: Non-lawyers can effectively help with information, paperwork, and social support. Legal advice or formal representation is only needed for a subset of (more complex) cases ([19:37]).

Quote:
“That kind of pilot study and evaluation is very good proof of concept that you don't always need lawyers. Even once something becomes a court case.”
– Rebecca Sandefur ([19:37])

7. Regulatory Barriers: The Monopoly of Legal Advice

• US Restrictiveness: Only licensed lawyers can give legal advice in most U.S. jurisdictions, whereas countries like the UK allow anyone to provide legal advice ([27:48]).
• Advice Seekers’ Preferences: Even with free legal aid available in the UK, people often prefer advice services over direct access to lawyers ([27:48]).
• Consequences: The definition of the practice of law artificially limits access to assistance and innovation.

Quote:
“I did a little comparison... and in the UK... people preferred to go to the advice service. They were much more likely to turn to advice than to free law.”
– Rebecca Sandefur ([27:48])

8. The Role of Lawyers—and Needed Change

• Lawyers as a Barrier: The legal profession’s control over legal processes and resistance to change stymies innovation and broader access ([27:48], [31:07]).
• What Needs to Change: Regulation should open up legal advice to non-lawyers and for-profit firms, unleashing innovation and expanding affordable/accessible solutions ([34:26]).

Quote:
“…to change the way the practice of law is regulated. To open up the advice space and to open it up not just to social workers, but to for profit providers. And that would create this enormous area in which you could have really cool innovations…”
– Rebecca Sandefur ([34:26])

9. Focus on Outcomes, Not Process

• Rethinking Justice: Justice should not be defined by whether there was a court process or a lawyer, but whether the outcome comports with the law and society’s rules ([24:54], [35:11]).
• Accessible Justice: Many issues should be resolved outside of courts, provided outcomes are consistent with legal standards.

10. Limits of Legal Reform

• Markets and Inequality: Any new system will still reflect underlying social and economic inequality; the law alone cannot overcome structural disparities ([36:44]).

Memorable Quotes

• “What we should care about is the substance of the result that’s achieved.”
  – Rebecca Sandefur ([00:05], [35:11])
• “Most problems people don’t recognize as legal problems at all.”
  – Rebecca Sandefur ([09:10])
• “Even the best redesigned legal system could be much better than the one we have, but it's still going to be responsive to the major forces in society that all institutions are responsive to.”
  – Rebecca Sandefur ([36:44])

Important Timestamps and Segments

• [00:31–04:44]: Dahlia Lithwick sets the table on the civil justice gap; Sandefur outlines the scope of the problem.
• [06:45–09:10]: Evidence on whether lawyers matter, and data on what types of assistance are effective.
• [09:10–13:14]: Discussion of the awareness gap as the primary obstacle to justice.
• [16:31–19:37]: Experiments with “right to counsel” and innovative non-lawyer support roles.
• [24:54–27:48]: Recasting justice as about outcomes, not legal formalism; lawyers’ problematic monopoly.
• [31:07–34:26]: Historical roots of American legal profession restrictiveness; the need to regulate differently.
• [36:44]: Market forces, inequality, and the realistic limits of legal system reform.

Final Takeaways

• Reform must focus on outcomes, information access, and broader support, not merely increasing the number of lawyers.
• Changing regulation to allow more people and organizations (not just lawyers) to advise and support those with civil legal issues is crucial for justice.
• Public education, new service models, and better use of technology and non-lawyer advocates could revolutionize access to civil justice, especially for the most vulnerable.
• But economic inequality will always shape and constrain legal access, whatever reforms occur.

Guest attribution:
Rebecca Sandefur is a leading sociologist on justice inequality, recognized by a MacArthur Fellowship, and a principal editor of the recent Daedalus volume on civil justice.

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