The difficulty many Americans face in finding or affording legal representation has been called an access-to-justice crisis. What does that mean in practice? And what can be done to address it?

A recent episode of Stanford Legal broke down the issues with guests from Stanford Law School’s Deborah L. Rhode Center on the Legal Profession and the Legal Design Lab, which together released a groundbreaking report in April that outlines a blueprint for creating more innovative, modern, and accessible courts. The report marks a significant milestone in the unique partnership established in January 2024 between the Superior Court of Los Angeles County and Stanford Law School. 

Joining podcast host Professor Pam Karlan for this episode were David Freeman Engstrom, LSVF Professor in Law and the co-director of the Rhode Center; Margaret Hagan, executive director of the Legal Design Lab; and Daniel Bernal, associate director of research at the Rhode Center.

The following is a shortened and edited version of the full podcast transcript, which can be found here.

Pam Karlan: Can you start by explaining what is meant by an access-to-justice crisis? 

David Freeman Engstrom: A good starting point is a bracing statistic: the best evidence says that in roughly 75 percent of the 20 million civil cases filed in American courts each year at least one side lacks a lawyer. And these are really consequential cases. They tend to be evictions and debt collection actions and home foreclosures, as well as certain types of family law matters. 

And if you look beneath the hood of these cases, you can see a couple of features that help round out the account of what we think of as the access crisis in American courts.These cases tend to pit an institutional plaintiff—a bank, a credit card company, corporate landlord, maybe the government, always with a lawyer—against an individual defendant without a lawyer. They also tend to end in default judgments, where the defendant has failed to show up.  

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Pam Karlan: In cases where people actually are represented, I assume they win a lot more often than in the cases where they’re not. Do you have a sense of the magnitude of the difference that having a lawyer makes?

David Freeman Engstrom: The magnitude of the difference is significant. As you can imagine, it varies a lot by jurisdiction and case type, so we don’t have a precise number. But yes, having counsel makes it much more likely that you’ll win your case, that you’ll be able to vindicate your rights to some extent, or that you’ll be able to reach a beneficial settlement with the other side.

Pam Karlan: Is the issue here the cost of lawyers or that people don’t understand how to get a lawyer? 

David Freeman Engstrom: In a lot of instances, Americans don’t even know that their problem is a legal one in the first place. In the academic literature this is described as a failure of legal capacity. But obviously the bigger problem is that most Americans, even surprisingly far up the socioeconomic ladder, are simply priced out of the market for legal services. Lawyers tend to cost something like $300 an hour, and with the meter running, that adds up very quickly. Even Americans you would think of as having fairly significant means simply can’t afford legal representation.

Pam Karlan: The upshot is that then there will be a court order requiring people to, for example, pay more child support than they can afford or evicting them from their house. Or there might be a default judgment on medical debt that then allows the garnishment of wages, correct?

David Freeman Engstrom: Correct. Once one of these institutional plaintiffs has a default judgment in hand, they can execute on that judgment. And with a no-show defendant who might have some kind of a meritorious counterclaim or defense, that’s a problem of fundamental fairness.

Pam Karlan: To what extent is all of this a result of the requirement that if you want to be represented by anybody in one of these proceedings, you have to have an actual licensed lawyer, as opposed to a paralegal, for example? 

Margaret Hagan: So many people try to request legal aid lawyers—the free service that, if you qualify for, you might get access to. But because of the licensure requirement, the legal aid groups simply can’t serve the huge need. There are just not enough licensed lawyers in legal aid jobs to handle the line of people who want that help. Over the past 20 years, there has been a fair amount of investment in terms of putting more informational tools online, but legal aid can often do little to help people with these forms without the involvement of a lawyer. They’re concerned about unauthorized practice of law issues. Informational guidance only goes so far. People are still overwhelmed. It’s hard for them to do a lot of complicated tasks like filling in a form in a time crunch, or parsing through very formal legal language.

Pam Karlan: It is striking just how different this is from what would happen if you were accused of a crime. If you’re accused of a crime, you have a constitutional right to a lawyer for virtually every kind of case. And if you can’t afford a lawyer, the government provides you with one. And in civil cases, the consequences might actually be far worse than the consequences of a criminal case. A criminal misdemeanor charge might well have fewer repercussions than, say, a case that might result in you losing your home.

Margaret Hagan: We’ve seen a lot of right-to-counsel movements around evictions spring up over the past 10 years, but there’s still a funding issue about who’s actually going to pay for lawyers, even if the city council or a county or a state mandates that everyone facing eviction should have a lawyer. It’s a tall order to get enough actual lawyers in the system to do that.

Pam Karlan: I want to turn to the partnership that you all have developed with the Los Angeles County Superior Court. Can you tell us a little bit about how that court runs and how you became involved with them?

Daniel Bernal: The Superior Court of Los Angeles is the largest trial court in the country. There are 36 courthouses that serve a population of over 10 million in a jurisdiction that includes 88 cities and 140 unincorporated areas. So, this is just a huge organization. There are over 550 judicial officers and 4,600 employees. It is larger than the entire appellate court system of the federal judiciary, by about double, maybe triple. There are 1.2 million cases filed each year in that court. The court offers interpretation services in over 200 different languages. 

David Freeman Engstrom: Like so many good things in life, this project was a mix of careful relationship building and happenstance. A few years ago, Margaret and I, and also Mark Chandler, who’s a terrific SLS alum who served as longtime general counsel at Cisco, we started working with about a half dozen states to help them rethink their technology systems to make courts more accessible, a project we named the Filing Fairness Project.

One of the states we worked with at the time was Texas and it had a rockstar chief court administrator named David Slayton. David eventually moved to LA and we kept talking and then I gave a speech at the California Judges Association and had a really great exchange with LA’s then-presiding Judge Sam Jessner. So within a few weeks we were laying plans for this collaboration to try to help the court work better. It’s a really unique, first-of-its-kind collaboration between a major court system and a major research university.

They’ve asked us to help them rethink how they handle their high-volume dockets, especially docket-dominating cases like eviction, debt, and certain types of family law. They also asked us to help them to think in particular about the digital pathways that they’ve built over time, or that they’re building, to better serve self-represented litigants within the system.

Margaret Hagan: Yes. We don’t usually think of courts as hotbeds of innovation. They’re big, traditional institutions upholding the rule of law, but tech and innovation perhaps are not central. But I think we’re increasingly seeing courts, especially under leaders like David Slayton and the presiding judges in LA, really prioritizing and focusing on how technology can augment or automate or otherwise improve operations in the backend and services to the public. So, it’s interesting to see this kind of key change, and it’s been brewing over the past few decades of developing better websites, better case management systems, more data capacity.

Pam Karlan: You just published a major report on the eviction dockets in the Los Angeles Superior Court system. What are the eviction cases like, and how did you research this?

Daniel Bernal: Over the past year we conducted both quantitative and qualitative analysis of almost 150,000 eviction cases through a data-sharing agreement that gave our research team access to the court data as research contractors. We supplemented this by conducting more than 100 hours of interviews, six different focus groups with court staff and community stakeholders, and evaluating these court hosted digital self-help tools.

We are trying to understand this lived experience of litigants experiencing eviction in Los Angeles, and the court staff and the service providers who help them to navigate their case. We had a lot of students help us. And the picture that emerged was an eviction process that moves very rapidly and involves low rates of participation. We found about 57 percent of tenants did not answer their case and therefore many of those went to the default judgment process. And we found that tenants, as they jump into this process, have to navigate this really complex landscape because, as we mentioned before, LA is huge. Some of the 88 cities in the region have special protections for tenants, but not all. 

Pam Karlan: So, if you had the technology of your dreams, how would it deal with that problem?

Daniel Bernal: I don’t think we’re at the point of a technology of our dreams, but we do have some technology that is in process. In Los Angeles, 95 percent of debtors do not show up or file an answer for their debt collection case. These cases mostly involve debt buyers and a lot of credit card debt. Imagine then that you’re a court clerk, or you’re a research attorney in Los Angeles Superior Court. For every case that involves a debt buyer—someone who has purchased the debt from the original seller of the debt, the Rosenthal Fair Debt Collection Practices Act requires a plaintiff’s complaint to include some key allegations that put the defendant on notice that this is a legitimate debt. Allegations like when the debt was incurred, how much is owed, when the debt was last paid, etc. If the debt defendant doesn’t respond and the plaintiff files for a default judgment, the Act further requires them to attach business records and a sworn declaration that is sufficient to prove these allegations.

The Act clarifies that “no default or other judgment may be entered against the debtor unless . . . .” So it’s very rigid. These things must be done or you cannot enter default judgment. But if a research attorney or a clerk wants to verify this today, they have to do it manually. They check for all the allegations in the complaint. They locate the declaration. They cross-reference the allegation against the evidence. This is very hard. I know because I’ve been working with a team of law students to do it over the last several months. The declarations are lengthy. They attach multiple credit card statements, for example, and bills of sale which often have spreadsheets attached, sometimes with data running vertically down the page.

On average, it took our team about a half hour to do every default judgment. Those time costs make this kind of rigorous human review just impractical at scale. The court staff has to process as many as 30,000 of these cases every year in Los Angeles County, and at 30 minutes a pop, that is just not going to happen.

We think that AI can help. We’re building a default system, an AI decision support tool that clerks and research attorneys can consult when entering a clerk judgment or issuing a recommendation to a judge.  

Pam Karlan: There are also things you are doing to try to make it easier for the unrepresented litigants, in particular the 75 percent that David talked about earlier, to handle their cases and to get their rights vindicated. Could you tell us a little bit about that?

Margaret Hagan: Litigants tend to come to the court as a first “port of call” after they get that scary document served on them or in the mail. They’re coming to the court building to try to figure out what they can do and what their rights are. But the problem inside the court building is court staff have these duties of neutrality and not to give legal advice. So they’re coming up to the clerk’s office, to the self-help office, to the bailiffs in the hallway, to court staff members and saying, “I got this notice. What can I do? Is there anyone that can help me?” So they are really looking for some service or some tool in that short 10-day window they have after getting an eviction lawsuit served on them for help.

If we look at it from the staff member point of view, they want to help. They see these people who are stressed out, who are doing their best, but they don’t know who to send them to because LA, as we keep noting, is huge and complicated, and that includes what service providers actually can help you. It will depend on where your property is located. What your income level is, what language you speak. There are all kinds of different legal aid and community organizations that help different tenants and the court staff members don’t have that up-to-date list of where to send a given tenant or litigant for someone that will actually be able to help them and not turn them away.

This is where we’re using a new, exciting application of AI, which is to give a tool to the court staff, but also to the users on the website where we can ask a handful of pretty straightforward questions about whether you do actually have a case in LA, what the status of that case is, where you live, what language you speak, and then give you a curated list of organizations that are likely to be a good match for you. No guarantees that you’ll be able to get served by them, but instead of what happens right now, which is someone saying, “I don’t know, I’m sorry, I can’t help.” Or maybe giving you a flyer with a laundry list of 40 organizations you could possibly call.

Pam Karlan: Is it possible to also tell people on the summonses that a tool like this exists?

Margaret Hagan: You’ve read our mind. We’ve been working with the court on what they send to people. They send a notice after a lawsuit has been filed to the defendant to really reinforce what’s happening and tell them about services. We are helping the court redesign the approach, to be more plain language, actionable, and empowering, and give that handoff from that piece of paper to the digital tool.

Pam Karlan: This is tremendously exciting work, and I really look forward to having you back on the podcast again to tell us about the next stage of this, because this is going to make such a difference in real people’s lives.