Abundance

What does "abundance" look like for people facing legal problems?

Photo by Brad Switzer on Unsplash

I’ve been reading through the new Ezra Klein / Derek Thompson book Abundance, and while I don’t 100% agree with their vision, I’m probably at 90% agreement, and if that makes me a “Neoliberal” so be it. It’s a good book and you should read it.

An issue that the authors hammer on continuously is the tendency of left-of-center groups to favor process and proceduralism over achieving actual results. An example: nonprofit organizations that are supposed to build “affordable housing” to address homelessness end up spending far more money building far fewer housing units than private industry would because of requirements to use only certain types of labor, do more strenuous environmental impact studies, spend time on intensive grant reporting, etc. This all adds up to the nonprofit spinning their wheels on procedure and process rather than actually accomplishing their purpose - building housing units and put people in them.

Here at Team Do Something we’re more in favor of getting things done than procedure and purity tests. When we talk about AI in the non-profit legal services sector, there’s a great deal of concern over accuracy, the fairness/equity of the training data, and the environmental impact of individual AI responses than there is actual getting things done or trying things out with it.

An example: People in the nonprofit legal services sector are very concerned about things like having a chatbot commit the “unlicensed practice of law,” (UPL for short), by giving someone legal advice. This kind of concern is fine, but it shouldn’t stop us from trying new technology if it can help accomplish the mission, which should be helping people solve legal problems. There’s little stopping OpenAI or Google from just letting their AI models dispense legal advice freely to the public.

Another refrain I’ve heard is concern over the environmental impact of AI, which, and I don’t mean this to sound flippant, but everything has costs and tradeoffs. Are legal nonprofits more concerned about the environment, or concerned about helping people with their legal problems? I saw a good panel presentation earlier this week and pulled this quote:

“I care way more about the environmental impact of there being 100 million people in the US that have less than $200 in their bank account than I do about the differential cost of helping them with AI.”

Ben Jackson - COO of Upsolve

you can watch the panel presentation I pulled this quote from here.

This doesn’t mean that I think legal nonprofits should set the Amazon basin on fire to power a chatbot. But we should be understanding what our true purpose is, and gauge costs accordingly.

Those of you who know me, or know of me, hopefully know that I’m not the kind of person who posts things like “10 reasons AGI will disrupt legal” on LinkedIn. I’ll make abundantly clear, as I have in the past, that AI is not “The Solution” to all legal problems, but a tool in the access to justice toolbox. Other tools in that toolbox include things like paraprofessionals, streamlining court procedures, simplifying court forms, modernizing court technology, re-working laws to favor out of court resolution of disputes, and so forth. It aggravates me to see tools go unused in favor of maintaining scarcity.

Scarcity is the status quo

What we have now is the opposite of abundance - it’s scarcity. The worse part is that it’s an artificial scarcity built on the stranglehold the legal profession has on the practice of law, as well as the chronic unwillingness of lawyers to believe that other solutions could work if we just … let them. Take the Amicus brief a group of legal aid orgs filed against Upsolve, an online Chapter 11 bankruptcy tool, saying that only lawyers should be the ones to give even limited advice about bankruptcy as just one example. Is the goal here to get people help, or to make sure that only certain people can give help? Which is most important?

This excerpt from Stanford Law School’s Blueprint For Expanding Access to Justice in Los Angeles Superior Court’s Eviction Docket, about a court clerk addressing the needs of pro se people facing eviction, is telling:

But Cynthia [the clerk] feels like her hands are tied. When litigants ask her for a form but do not know the exact name or number, she hesitates. Even though she often knows the answer, she’s worried that she could be held liable for giving legal advice because she’s not a lawyer. When litigants ask for a referral to a legal aid organization, she again refrains from any specifics outside of services located at the courthouse. She hands over a flier with a long list of external help resources. But when litigants ask for more detail, she demurs, not wanting to overstep—even though she’s worked this desk for half a decade and is extremely knowledgeable.

(emphasis mine)

Lawyers all the way down

This is going to be a scorching hot take, so fair warning.

Lawyers insist on regulation or adding complexity as the solution to scarcity. In the legal aid context it’s “Civil Gideon,” named after the US Supreme Court case Gideon v. Wainwright, which guaranteed free legal representation to anyone in criminal court who could not afford a lawyer. Essentially this amounts to guaranteeing everyone in civil court - evictions, small claims cases, domestic violence injunction cases (which are different than the criminal cases), and so forth - a lawyer if they can’t afford to pay one.

There are several studies showing that giving people access to free lawyers in eviction court greatly improves outcomes for the people at risk of eviction. You can peruse one good one here. This is good, maybe even great, in limited and narrow instances. But I don’t think Civil Gideon is, in any way, the best solution to the national access to justice crisis. I think lawyers float the idea of free universal representation as a way of avoiding a harder discussion on UPL and reforming how the court system operates.

Let’s look at some numbers: In Florida, where I live, there were 849,455 civil cases filed in 2022, with the bulk of those (748,000ish) in either evictions or small claims court. In 2023, the total number of civil cases was 969,470, with 840,00ish in the small claims or evictions courts. You can view the statistics for 2024 here (567,003 cases filed in small claims court, 149,990 evictions filed).

Let’s make some wild assumptions. In each small claims and eviction case there’s a minimum of two parties: the plaintiff, usually the landlord or creditor, and the defendant, the person being evicted or not paying their bills. But in a lot of cases there’s multiple parties - roommates on the lease, joint signatories on a contract, etc. But here let’s assume just one defendant. Let’s also assume that only the defendant is entitled to a free lawyer.

Let’s assume that, because hopefully we’d make having a lawyer voluntary and not mandatory, only around half of people in eviction and small claims court choose to get one. Averaging 800,000 cases in small claims and evictions court, divided in half, would be 400,000, so 400,000 people / cases per year.

Let’s then say that each case takes, on average, 20 hours of billable lawyer time, at a market rate of $250 an hour. That’s 8 million hours of lawyer time (400,000 cases * 20 hours per case), which in money terms translates to about $2 billion annually in legal fees, in just Florida. These are gross oversimplifications, but I think it’s helpful to think about what Civil Gideon would actually mean in terms of money spent.

But obviously we won’t be doing that, at least in a sane universe. What we’d probably do is create a public defender-style system, where we underpay recent law grads who want “trial experience” and overload them with small claims cases, to the tune of millions of dollars in just salary for those lawyers, which does not include benefits, overhead, administration, office space, etc.

This also assumes we change nothing about court procedures to accommodate the sudden flood of lawyers. One thing about courts having a lot of people in the system without lawyers is that those lopsided cases can move very fast to resolution. Eviction and small claims court are good examples of this, where many people just never respond or show up to a hearing, and so the other side automatically wins. I am not saying this is a good or fair system, but it is pretty efficient for resolving cases. Lawyers getting involved adds complexity and time. Imagine how well, say, the property rental industry would function if the previously simple things they needed to do in court, like kick someone out for not paying rent, took months or years instead of a few weeks. I’m not saying the system we have now is fair, I’m saying it’s efficient, and in many ways our structural systems are accustomed to it as the default. Eventually we’d come up with new court procedures and processes that alleviate the complexity of added lawyers, but unwinding established court processes in favor of new ones would take years, and tens or hundreds of millions of dollars of government spending.

Yet lawyers insist on seeing “Civil Gideon” as some sort of panacea for all the ills we’ve caused through scarcity, instead of considering things like allowing non-lawyers to give even minimal legal advice. Lawyers’ answer to a scarcity of legal help is to create more regulations and slow down court procedures, not to allow people to go elsewhere for help. In a way, this is like saying that the solution to the housing affordability crisis is not more housing, it’s more realtors.

Lawyers would rather float an impracticable or impossible solution rather than give up an iota of control. It’s worth looking at the Stanford Eviction Docket report I quoted above and see what their recommendations are after doing an intensive review of the Los Angeles eviction court. It’s things like:

• Automate data capture from court documents and track litigants’ use of help services;

• Collect standardized outcomes (money, possession) for all cases

• Redesign the UD Notice and supplement with digital notices;

• Mandate Stipulated Judgment Form & Processes;

• Improve Language Access;

• Provide easier access to case files for legal aid groups;

• Implement an eviction diversion program with service partners;

• and so on

These are all process improvements - removing, not adding complexity to the system. Remove barriers to accessing information. Implement Online Dispute Resolution (ODR). Standardize data collection. One thing they don’t end up recommending is simply adding more lawyers to the mix.

From a New York Times piece published yesterday about how people without lawyers navigate the court system:

“We should change the underlying assumption,” says Ben Barton, a scholar at the University of Tennessee College of Law whose work focuses on people who represent themselves. “If we’re taking the time and money to change the system, why set up a self-help center so you can navigate a complicated system with a lot of rigmarole on the front end?” he asks. “Instead, try and put it together in a way that’s better for normal people.”

To be clear here, I’m not saying people shouldn’t have access to lawyers if they want one. I’m also not arguing with the studies that say having a lawyer benefits people in court. But more lawyers plus more complexity shouldn’t be the only choice.

Thinking about abundance

So what does an “abundance of legal services” look like? It certainly doesn’t mean an abundance of more lawyers. I’m pretty sure no one (well, besides law school deans) wants that. Maybe it would look like:

• A loosening up of the licensing rules to be more like what we see in medicine. Lawyers are fewer in number at at the top of the service pyramid. But below lawyers there’s lots and lots of things that can and should be done by para-professionals, like Certified Legal Planners, Paralegals, Legal Navigators, etc. (We’d need to do some work on titles here).

• Elimination of the “Legal Advice” distinction entirely, we’re thinking big here.

• A severe constriction on what it means to commit the crime of the unlicensed practice of law. We’d probably all agree that it should be the crime of unlicensed practice of law for a random person to open a “Law Office” and hold themselves out as having the expertise and training a lawyer has, and claim to their clients that they have a state law license when they don’t. We’d (hopefully) also agree that writing and publishing a book on how to avoid probate court when drafting a will would not be the unlicensed practice of law. Right now, the crime of UPL could apply to both those things.

• A radical re-thinking of how we resolve legal disputes, disfavoring complexity (lawyers) for the sake of complexity (lawyers), and favoring streamlined processes while protecting consumers’ rights. It’s doable! Imagine there’s no lawyers, it’s easy if you try.

• Legal and regulatory frameworks that allow systems like Courtroom5, Upsolve, Rasa, etc. to not just survive by tiptoeing around UPL restrictions, but to thrive by fully serving customers.

• Remove complexity from our court system - the answer to it being a system built by lawyers for lawyers is not to add more lawyers. It’s to rethink how that system works and what we can do to improve it in favor of everyone, not just lawyers, and not just defendants in eviction cases.

• Other things I’m not smart enough to come up with.

Abundance, at least to me, doesn’t look like more lawyers. What would abundance look like to you?