Talk Justice, an LSC Podcast: Lawyers’ Role in the Making and Undoing of the A2J Crisis
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WASHINGTON—Legal experts discuss their research into civil legal services and initiatives for addressing the access to justice crisis on the latest episode of LSC’s “Talk Justice” podcast, released today. Host Cat Moon is joined by Nora Freeman Engstrom, the Erest W. McFarland professor of law at Stanford Law School, and David Freeman Engstrom, the LSVF professor of law at Stanford Law School. Together, they serve as co-directors of Stanford’s Deborah L. Rhode Center on the Legal Profession.
The Rhode Center is partnering with Stanford’s Legal Design Lab and the Superior Court of Los Angeles County to collaboratively research, design and implement innovative, evidence-based approaches to improve access to justice for court users. The partnership was announced in January, and Professor David Engstrom says that they have recently finished the diagnostic phase of the project and have created a rich data set.
He lists several projects that will aim to reduce sky-high default judgement rates, help self-represented litigants self-sort into the types of legal help they want to engage, improve court documents and notices, and leverage automation and generative AI.
“We are still very much in conversation with the senior leadership as to which of these we're going to do and which we're going to do first, but it is really exciting and it kind of runs the gamut in terms of the ways that courts are thinking about right now [for] how they can better serve self-represented litigants,” he says.
While the Rhode Center considers the future of LA County courts, Professor Nora Engstrom has also been looking back on the history of unlicensed practice of law (UPL) rules. Forthcoming in the Yale Law Journal, a paper she has co-authored with her former student James Stone is titled, “Auto Clubs and the Lost Origins of the Access-to-Justice Crisis.”
“It starts with this kind of interesting finding that I had hit upon 15 years ago that I had read in an unpublished dissertation that had two pages devoted to these auto clubs that settled car wreck claims—and that struck me as strange because I belong to AAA and they do not settle car wreck claims, right?” she says.
Their research found that in the 1910s and 1920s, there were at least 1,100 auto clubs throughout the United States. They were popular and included wraparound criminal and civil legal services in the cost of membership. The lawyers the auto club employed would defend members against criminal charges, even through the appeals process or habeas proceedings. On the civil side, they served as both plaintiff’s counsel and defense counsel. Stone and Professor Nora Engstrom travelled around the country looking through archives for information on these services and what happened to them.
“What we found is in the 1930s under the shadow of the Great Depression lawyers decided to kill off the competition,” she says. “They just decided to do that and they decided to do it even while sometimes publicly saying that they were doing it because these entities were a threat to lawyers’ ‘wellbeing.’”
She explains that they could not find evidence that members were unhappy with the legal services they received from auto clubs, nor that anyone had been harmed by them. Instead, they found quotes from lawyers of the time that directly acknowledged that the goal was to do away with the competition and ensure a lawyer’s spot at “the banquet table, at which for centuries he has had a distinguished place.”
For Professor Nora Engstrom, looking backwards is an essential part of understanding how the current crisis in access to justice came to be. The auto clubs were not the only entities that once provided legal help. She explains that people used to go to banks to create their wills, neighborhood organizations could help fend off foreclosures, and unions would also help defend members’ rights in certain situations.
“All these organizations were employing lawyers, and it's all been erased for lawyer-motivated reasons,” she says. “I am so proud to be a lawyer…I think it is such a noble profession, but I do believe that we have an obligation to clean up our own mess—and this is our mess, and we have an obligation to clean it up.”
“We created this world, we've profited from this world, and now we have an obligation to change this world,” Professor Nora Engstrom continues.
Shifting back to the future, the discussion turns to the role of technology like generative AI in addressing the access to justice crisis. Both Engstroms are concerned about self-represented litigants getting lost in the “sea of junk”—a term coined by the National Center for State Courts to describe the abundance of bad legal information available online.
“Given the way the legal tech marketplace is evolving or not evolving, I wonder whether the private legal tech sector will ever be able to serve very many self-represented litigants,” Professor David Engstrom says. “The economic challenges are just so hard there: you have a group of people who might only need legal services once and who have a very limited ability to pay. I wonder if legal tech is going to be the answer, and I wonder just how much generative AI as applied by the legal tech industry is actually going to be able to ease the access to justice crisis where it's most acute.”
“I think Nora and I both think that courts might be the answer…especially when we're talking about that particular segment of the civil justice system where so many people go without representation and have a choice between a ‘sea of junk’ or a legal tech marketplace that may or may not ever really be robust,” he continues. “[Courts] also might be one of the few remaining authoritative sources of legal information within this very complicated ecosystem.”
Talk Justice episodes are available online and on Spotify, Apple and YouTube. The podcast is sponsored by LSC’s Leaders Council.