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Law360 (June 7, 2020, 8:02 PM EDT )
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| Rebecca Rapp |
A huge justice gap existed well before COVID-19 — with over 80% of people at or near the poverty line having at least one unmet legal need. COVID-19 widened the gap.
COVID-19 disrupted the ability of legal aid providers to serve those who needed help before the pandemic. It also created a whole new set of legal needs — and people who need but cannot afford legal help — with its tremendous impact on people's families, jobs, health and school.
Even amid the COVID-19 crisis, however, there is reason for hope. Crisis brings opportunity. This is true with COVID-19. The legal community just needs to harness the opportunity COVID-19 presents for enhancing and expanding legal aid.
The blueprint is not in a law review article. It instead lies in lessons from the distribution of a children's movie: "Trolls World Tour."
Universal Studios spent tens of millions of dollars promoting "Trolls World Tour" for its planned April release. Then COVID-19 hit, emptying theaters. Rather than losing its promotional investment, Universal Studios departed from its traditional model of releasing movies exclusively in theaters and distributed "Trolls World Tour" through a premium video-on-demand platform. The pivot worked. "Trolls World Tour" earned nearly $100 million within weeks.
Universal Studios had considered releasing movies through the video-on-demand platform before. COVID-19 provided the chance — the catalyst — it needed. It broke free from the inertia of "that's just how things are done" for the digital debut. Universal Studios plans to continue experimenting with its delivery model after the pandemic ends.
The legal community has been equally entrenched in a traditional delivery model. In-person meetings and hearings, wet signatures, notary stamps, and paper filings have been the norm. The legal services distribution model is full of inefficiencies — inefficiencies that impede legal aid attorneys' ability to serve clients efficiently (if at all) and undermine the ability of potential clients — with limited transportation, inflexible work schedules, and extensive childcare or household responsibilities — to get help.
The legal community has adapted to continue operating during the pandemic. Attorneys are meeting with clients remotely. Legal aid organizations are using social media to connect with potential clients. Bar associations have expanded legal helplines. And courts are holding hearings via videoconference and updated original-document, wet-signature, and notarization requirements.
Such adaptations are great. But, to eliminate the justice gap, short-term adaptation is not enough. Sustained evolution is needed. The legal community needs to build on the momentum COVID-19 sparked. It needs to figure out how to use the adaptations — advancements — necessitated by the pandemic to permanently improve the legal services delivery model by, for example:
1. Enabling legal aid attorneys to provide more legal help.
There is a tremendous shortage of full-time legal aid attorneys, and legal aid organizations end up turning away vastly more people than they can help. This supply problem is compounded by the traditional legal services delivery model — which requires that legal aid attorneys spend much of their time on logistics like driving to meetings, getting documents notarized, and sitting in court waiting for hearings to begin who-knows-when in the midst of busy court dockets.
The ability to do such work remotely from a single location, just as is being done now during the pandemic, creates efficiencies and frees legal aid attorneys to devote more of their time to their highest-value use — actually providing clients legal advice and help.
2. Creating new pro bono opportunities for the private bar.
The remote processes being used during the pandemic also have the potential of creating new pro bono opportunities. There are many private-bar attorneys who cannot (or will not) commit to the out-of-office time needed to staff a half-day clinic or represent someone at a hearing (that may or may not start on time).
The possibilities of seeing a pro bono client over a lunchtime Zoom meeting, reviewing and exchanging documents with a client remotely, or attending a hearing via videoconference for just the amount of time it is going on all support the possibility of pro bono opportunities that are easier to define (and say yes to).
3. Removing barriers that keep people from accessing the justice system.
Increasing the availability of legal aid is needed to close the justice gap. But it is not enough. Many people face transportation, childcare, work or other circumstances that impede (or entirely prevent) them from getting legal help; and people with some of the biggest logistical hurdles are also likely to face some of the biggest legal needs.
Being able to get legal help or attend a hearing from home, a local library or social services facility, or a car in a work parking lot could significantly reduce such barriers, allowing a new group of people to access the justice system. This is true everywhere, but perhaps especially so in rural areas where the nearest attorney (let alone one who provides free help) could be many miles away.
For optimal evolution, however, the legal services community cannot only focus on successful adaptations. Just as important as capitalizing on what has worked during the pandemic will be learning from the treasure trove of lessons on what has not. Two lessons stand out as particularly critical.
First, consideration must be given to people who have not been able to access legal help or the justice system remotely. A comprehensive look at all the limitations people face needs to be made, but common barriers to remote access include a lack of internet and an inability to identify legal issues or to figure out how to get legal help.
Partnering with libraries, health care providers, schools and other organizations — which have connections to potential clients, technical infrastructure, and the ability to spot legal issues and make referrals — is particularly critical in ensuring that such people are not left behind (even more than they already have been).
Second, legal aid is not a one-size-fits-all model. The adaptations being made in the pandemic's wake are no doubt better suited for some types of legal issues and matters than others. The legal community should consider a triage model, aimed at right-sizing and appropriately tailoring services so that (tremendously) scarce legal aid resources can be deployed as efficiently and effectively as possible.
Just imagine a world in which legal help is as easy to access as "Trolls World Tour" has been. The opportunity is there. The seeds of innovation have been planted. The legal community just needs to take advantage of it.
Given COVID-19's severe impact on people's lives, and the increase it has caused in legal issues and the people who need legal help, this is not an opportunity that the legal community — or society — should waste.
Rebecca Rapp is general counsel and chief privacy officer at Ascendium Education Group and a former judge on the Dane County Circuit Court in Wisconsin.
"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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