Justice for All? Why We Have an Access to Justice Gap in America—And What to Do About It

Engstroms at Stanford Law

Is legal representation in the U.S. only for the rich and corporations? That’s a question that we’ll explore in this episode of Stanford Legal with guests David and Nora Freeman Engstrom, two leading authorities on access to justice and the legal profession. They’ll explain the roots of the challenge, how unauthorized practice of law rules contribute to the problem, and how to address them. The Engstroms co-direct Stanford Law School’s Deborah L. Rhode Center on the Legal Profession, an academic center working to shape the future of legal services and access to the legal system. This episode delves into some alarming statistics, including the fact that in three-quarters of civil cases in state courts, at least one party is without a lawyer. This alone often leads to unjust outcomes in cases involving debt collection, evictions, family law, and other areas. And that is just part of the problem, as the Engstroms explain.   

Read the Q&A with Nora and David Freeman EngstromView all episodes

Transcript

Nora Freeman Engstrom: You can imagine a third choice, right? Like, I want some sort of lawyer lite. Just like when I have a sprained ankle, I don’t need to go to a full MD. I can go to a physician assistant or a nurse practitioner. Some problems are actually, you know, smaller and more easily addressed, and sometimes, you know, you might actually think that someone, you know, without a law degree is actually a better fit for the problem, but in the United States, we don’t have a third door. We don’t have another kind of option, and so I think that’s a huge part of the access to justice problem in the United States is that we’re just stuck either Cadillac counsel or go alone.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re available. Today, we’re going to be talking with my colleagues, David and Nora Freeman Engstrom, at the law school.

They’re professors and co-directors of the Deborah Rhode Center on the Legal Profession. They are an absolute powerhouse couple. Nora is an expert both on tort law and on legal ethics. She’s got far-ranging scholarship that explores the day-to-day operation of the tort system, including how that system interacts with alternative ways of compensating people who’ve been injured.

And David studies the design and implementation of litigation and regulatory regimes. His expertise runs to civil procedure, administrative law, law and technology, and empirical legal studies, and the two of them have just done an amazing amount of work across the board, but today, we’re going to focus on their work at the Rhode Center where they’re engaging law students and legal scholars across the country in studying the challenge of access to the legal system in the United States, and then trying to come up with possible solutions, which makes their scholarship particularly important because lots of people will identify problems and then just throw up their hands, but David and Nora’s work is both identifying the problems and then also thinking about innovative ways to solve them. Innovative ways that look both forwards and backwards in kind of where we find ourselves today, so David and Nora, welcome to Stanford Legal.

David Freeman Engstrom: Thank you, Pam.

Pam Karlan: So, I think maybe the place to start is, you know, on the one hand, people often think there are too many lawyers in the United States, but there’s this question of whether there’s actually enough legal services for people. Can you tell me a little bit about what you found in terms of people’s ability actually to get access to justice?

Nora Freeman Engstrom: In the United States today, people’s ability to get access to justice is actually pretty dismal, so in three-quarters of civil cases in state court, and recognized as much as often at Stanford, we think about federal cases, state court is where the action is for litigation. That’s where about 97 percent of cases are litigated, and in three-quarters of those cases, at least one side lacks a lawyer.

Sometimes, both sides lack a lawyer, but in three-quarters of cases, at least one side lacks a lawyer.

Pam Karlan: So what kind of cases are we talking about here where three-quarters of the people don’t have lawyers? What are the issues that are involved for folks?

David Freeman Engstrom: So these cases are, I think of them as low dollar, but highly consequential cases for at least some of the people concerned.

They tend to be debt collection actions, evictions, mortgage foreclosure actions, and lots and lots of family law. For instance, like child support enforcement actions, and there’s an enormous number of these cases. There’s, you know, Nora said 75 percent of filed civil cases, at least one side lacks a lawyer.

There are about 20 million filed civil cases in the state courts each year, so there are 15 million cases in the state courts, and because state courts are 97 percent of cases, that’s also a rough approximation in the American legal system as a whole. There are 15 million cases where at least one side lacks a lawyer.

And again, these are really consequential cases. When you really step back and think about it for a second these cases all have a very particular feature. They overwhelmingly pit an institutional plaintiff, so for instance, a bank, a credit card company, a debt buyer, because the consumer credit industry has been securitized, a corporate landlord, a municipal housing authority, or some other government agency, all with a lawyer against an individual defendant without a lawyer.

Pam Karlan: One thing that this raises, I mean, and I think you’ve put your finger on it by talking about these are cases with an institutional plaintiff and an individual defendant is we’re not even counting in the cases in which people don’t have a lawyer, the cases where people don’t get to court in the first place, and those would be the flip side cases, right? With the individual plaintiff who has bought a defective, you know, bought a defective whatever, or the individual plaintiff who’s been defrauded out of some money or the like. Those would be the individual against the corporate defendant, and those aren’t even in your 80%, right?

So if you think about like disputes between people or disputes that affect average people, the percentage where somebody doesn’t have a lawyer is going to be even higher than your 80%, right?

Nora Freeman Engstrom: Yeah, so I think of it as a double layer calamity, and I think about this 15 out of 20 million cases, those are the tip of the iceberg. Those are the cases we see, so they’re kind of above the waterline because those are the cases that actually make it into court, and in those cases, as you point out, Pam, people are being acted against. People are not vindicating their rights. They’re trying to defend their rights, and they are often doing so really incompletely, which is to say they’re trying to defend themselves, pro se, or sometimes more often, it’s a default judgment because they never show up.

They can never figure out how to file that answer to even begin to defend their rights, but that’s, again, that’s the tip of the iceberg. Way below that is all these cases that never make it into court at all because they’re claims and rights that are never vindicated at all, and it’s exactly as you say. It’s the person who has an uninhabitable apartment but never seeks to vindicate rights towards habitable housing, or the person who’s jerked around by the insurance company and never gets the claim paid and just ultimately shrugs her shoulders and gives up, or the woman who’s being abused by her spouse and never gets that domestic violence restraining order that she needs, and the best evidence, it’s really hard, I think of these cases in some ways as the dog that doesn’t bark, and so it’s really hard to study them, but some of the best evidence suggests that’s around 86 percent of individuals’ legal problems and in what we call lumping it, which is to say nothing, kind of a shrugging of the shoulders and failing to vindicate one’s rights, so, again, it’s this double layer calamity is that when people are acted upon, they’re acting alone. They’re made to navigate what’s really a baffling legal system without any help at all, and then when they have problems where the legal system could help them, they’re totally thwarted, and they can’t find that lawyer to make their way into court.

Pam Karlan: So this, they can’t find a lawyer. Tell me a little bit about what the crisis is. Why can’t people get lawyers for these kinds of cases?

David Freeman Engstrom: So, the Stanford Law Review had a symposium last year on access to justice, and Nora and I wrote an introductory essay in that symposium that I guess I can commend to the listeners.

It’s titled “The Making of the A2J Crisis,” and in that essay, we really roll through all the different causes, and we, you know, we tour some of the usual suspects. We, you know, one thing that I think is really important to keep in mind, which is most people lack what, you know what, like Becky Sandifer, she’s a sociologist who’s the dean of access to justice studies, which she calls legal capacity.

Most Americans can’t, don’t even necessarily know that the problem that they have is a legal problem in the first place, and so I think that’s really important to keep in mind. They don’t even know that they should go to law or that they could resolve this by going to a court, but beyond that, there are a bunch of usual suspect explanations. You know, legal services are really expensive.

Like most Americans, anyone sort of middle class or below is priced out of the market for legal services that cost, on average, $300 an hour. There’s clearly not enough legal aid, right? So basically, government funded lawyers. There are restrictive rules that limit, you know, what types of legal services can be provided and by whom. I suspect we’ll talk about that later in the podcast, but beyond that, in our essay, we actually try to center two other explanations for all of this, and, you know, we start out by noting that, you know, poverty rates haven’t really changed so much in recent decades.

They’ve stayed roughly constant. What has increased is economic precarity, right? So most American households can’t really weather any significant financial hit, and so when they get hit with health care bills that they can’t pay, they descend into poverty, or they’re in a position where they can’t pay their rent, or they can’t pay their credit card bill, and so that’s clearly produced this uptick in cases where people can’t get a lawyer, and, you know, something we didn’t know when we were laying out some of the kind of descriptive statistics is these cases overwhelming end in default judgments. They overwhelmingly end in default judgments because the defendant fails to show up because the defendant has no meaningful legal help.

Pam Karlan: And what’s the consequence of a default judgment?

David Freeman Engstrom: It’s wage garnishment. I mean, that’s what the debt collection industry is largely seeking. In an eviction case, of course, a default judgment leads to a, you know, a judgment of eviction, so, you know, possession goes to the, you know, owner of the property.

Pam Karlan: So they kick you out of your housing?

Nora Freeman Engstrom: Yeah, and I would say a couple other things, which is one is to recognize that all this is really bound up together, right? So once your wages are garnished, it sure is harder to pay rent, and if you’re not paying rent, then it sure is easy to get evicted, and it cuts the other way, too. Once you’re evicted, it’s really hard to keep your job and it’s hard to keep your family together, and so legal problems have a way of cascading on one another, and it can kind of take on a life of its own as our courts in many ways, and one way I think about our courts right now is our courts are existing to make middle class people poor and poor people poor, and when they’re manufacturing evictions and wage garnishments, that’s what they’re doing, but Pam, in your answer, in your question to us about why can’t people afford lawyers, David talked about a lot of things, and I think, what he talked about is right, but I think it’s in some ways there’s a simpler answer, which is, he did note, there’s a really good study from the U S attorney’s office, which looks at attorney’s fees, and he used this $300 an hour statistic, and that’s actually a statistic for a second year lawyer, so a second year baby lawyer, the average that they charge is around 300 bucks an hour, so 300 bucks for one hour of time, and then keep in mind that in a recent survey, 56 percent of Americans said they could not weather an 1,000 unexpected bill, so 300 bucks for a lawyer for one hour of time, and we know how little that is, and you don’t have $1,000 in your pocket.

Pam Karlan: So, for the kinds of cases that we’re talking about here with lawyers generally charged by the hour, or would they kind of set a flat fee or are, I mean, none of these cases that David’s talking about where you’re being sued are contingent fee cases, so this isn’t like the personal injury stuff that you studied, Nora, where people can get lawyers, even if they don’t start out with money.

Nora Freeman Engstrom: Yeah, that’s right, so these are hourly fee cases to a large extent, and so, you know, the reality is they’re unlawyered cases because they’re, it’s just a rare person who’s being evicted but can afford more than $300 an hour for a lawyer, and one thing that is interesting too is to note that I think the access to justice problems David and I are focused on are particularly acute in these areas where lawyers charge by the hour, but they’re not isolated to these areas, so a lot of people think, for example, well, personal injury, there’s no access to justice problem there because if you’re hurt, you can get a lawyer with a contingency fee, and that’s right if you’re a high wage earner and you’re really seriously injured, and it’s just not right if you are an elderly person or a child or someone, you know, a dead child, for example. The parents of a dead child, good luck getting a lawyer.

There are just lots of areas, even in personal injury, where the access to justice problems are actually quite acute.

David Freeman Engstrom: I’d love to say one more thing, which is, I think, you know, going back to the descriptive statistics that we started out with, I think it’s really important to keep in mind that the modal case, right now in the American legal system, the most numerous type of case is a debt collection action.

It’s a consumer credit debt collection action, and so how did that come to be? Like, how can that be the most numerous type of case in the American legal system? You look back 30, 40 years, torts, and, you know, these debt collection actions are contract actions, essentially. Torts and contract actions were essentially neck and neck on state court dockets.

Now, torts have largely fallen away for a variety of reasons we could talk about, and now contract claims and these debt collection claims are absolutely ascendant, and the question is like, what happened? And that’s something we go over quite a bit in our paper, and we talk about the role of technology in this, and I think it’s a really interesting part of all of this and something that you really need to understand to kind of have a full 360-degree view of the problem, so we talk about it in the paper as technologies affordances and asymmetries, so what do we mean by affordances? So the, you know, the debt collection industry has learned to leverage a lot of technology, a lot of like what you would call a robotic process automation. Like basically more and more efficient ways to build the complaints and the pleadings and everything else you need to, you know, to generate legal filings and then get them into court.

Pam Karlan: Yeah, and then a lot of times it turns out their automation is itself pretty outrageous in the sense that they automate in ways that violate various parts of the Federal Debt Collection Practices Act and the like, but if you’re not lawyered up on the other side, you’re not going to be able to look at this thing and say, well, you failed to give me this kind of notice or that kind of notice, so your attempt to collect on this is void.

David Freeman Engstrom: Correct, and so, a big part of the access to justice crisis right now is the ability of debt collectors, and that can be originators of debt. That could be banks and credit card companies, but more often, about 60 percent of these cases are brought by debt buyers.

That is to say, they buy tranches of debt from the originators, and then they use all of this automation. They very smartly use technology to essentially assembly line these filings. That’s why it’s the most, it’s the modal case, the most numerous type of case. It’s the modal case and the most numerous type of case in the American legal system, so what about a technology’s asymmetries? Well, the problem here is that, while on the plaintiff’s side, these institutional plaintiffs have learned to use technology to assembly line filings, technology is not nearly as available to the individual defendants on the other side. Why? Well, that’s where the restrictive rules come in, so there are rules that say that there are real limits on what a software-driven provider of legal services can do. So anyway, in our paper, we say, look, the problem is affordances and asymmetries. The one side has very smartly tapped all of these technological efficiencies, and the other side does not have full access to any equivalent technological efficiencies.

Pam Karlan: Yeah, I mean, I want to explore this history a little bit with you because I know Nora, you’ve been focused on this as well. That we didn’t used to have this kind of problem, and we didn’t used to have kind of the restrictions we now have. They’re different than other countries where there are all sorts of people who provide legal services.

They’re different even than medical services now in the United States where you have nurse practitioners, and you have physicians assistants and the like, and so you’re not always, if you don’t need a high-powered doctor to be looking at you, there are other people, but in law, that hasn’t been true, and Nora, could you tell us a little bit about kind of how we ended up in this situation?

Because you’ve done a paper on something that I bet not a single one of our listeners knew about and is going to know about before you tell us, so tell us about your auto club paper.

Nora Freeman Engstrom: Cool, so first of all, we’ll say about, you know, the restrictions on law practice in the United States, and that is when we talk about how do we get to this really dismal spot where 75 percent of folks who make it into court, at least one side lacks a lawyer, part of the problem we were talking about well, lawyers are expensive and Pam, you just hit on this, which is to say lawyers are expensive and it’s the only game in town. I call this the two-door problem, which is if you have a legal problem, or you’re trying to defend your legal rights, and you’re going to make your way into court, you’ve got two choices in the United States. You can represent yourself. You can go pro se, or you can hire one of these very expensive lawyers. You’ve got two choices: choose. You can imagine a third choice, right? Like, I want some sort of lawyer lite. Just like when I have a sprained ankle, I don’t need to go to a full MD.

I can go to a physician assistant or a nurse practitioner. Some problems are actually, you know, smaller and more easily addressed, and sometimes, you might actually think that someone, you know, without a law degree is actually a better fit for the problem, but in the United States, we don’t have a third door.

We don’t have another kind of option, and so I think that’s a huge part of the access to justice problem in the United States is that we’re just stuck either Cadillac council or go alone.

Pam Karlan: Nora, we were talking, we were about to talk about the incredibly interesting history you’ve excavated of something called auto clubs and how they were a way of trying to deal with this question of how does the average person get some access to the law.

Nora Freeman Engstrom: Yeah, so I am just finishing this paper that I wrote with James Stone, who is a Stanford Law grad and last year was a fellow at the center, and we, he actually visited a bunch of different auto museums and archives as we tried to assemble this record. First, I’ll tell you a little bit about what auto clubs are and then why in the world are auto clubs related to this access to justice question, so auto clubs, you know, many listeners will be thinking, okay, well, I belong to the AAA. That’s an auto club, and actually, what we’re talking about is the AAA of the 1910s and 1920s, although it turns out back then, in addition to the roadside assistance that we have today, the triptychs that maybe some of us remember from our, you know, our childhoods, the auto clubs of yesteryear provided legal services, and actually lots of legal services, so you could go to your auto club if you were in a car accident and you thought the other person was at fault and they could represent you if you were the plaintiff or the defendant. Also, really surprisingly, I found this shocking: they would represent you even in criminal matters and provide criminal defense, including up to felonies and even habeas petitions.

Pam Karlan: And were these all connected to auto-related stuff or?

Nora Freeman Engstrom: So it was auto. It was essentially, you had a lawyer for all things auto.

Pam Karlan: So it’s kind of like auto insurance today that provides you with a defense counsel if you get sued in an automobile-related?

Nora Freeman Engstrom: Yep, so some of it we have now with auto insurance, but nothing today is anything like, you know, the criminal defense work that auto clubs would supply or like the plaintiff’s work that the auto clubs would supply.

Pam Karlan: So what happened?

Nora Freeman Engstrom: So, interestingly, so I was just talking about these laws that say, you can have Cadillac counsel, or you can represent yourself. Those are called unauthorized practice of law rules. It’s a crime in nearly every state for a non-lawyer to supply legal advice or assistance, and those laws actually have been around for a long time.

Auto clubs, it seems like, weren’t running afoul of those laws because the lawyers, there were actually lawyers in the clubs, and they were providing legal assistance, so you might be thinking, well, how is it a lawyer providing legal assistance going to run afoul of an unauthorized practice of law rule?

And what happened is in the 1920s and 30s, the organized bar, which had never had rules banning what was called the corporate practice of law, which is to say lawyers working for non law firms, developed this argument. They essentially just created it out of whole cloth that a lawyer, if the lawyer is not self- employed or employed at a law firm, the lawyer is engaged in the unauthorized practice of law, so they created this new rule to govern the profession that said it was dangerous for lawyers to work for anything but law firms. A lawyer’s relation to his client should be personal, and the responsibilities of the ABA should be direct, and so the ABA minted this new idea, which said it’s improper to have things like auto clubs where the lawyers were working for the club and providing legal services to people and they went around and with this new idea, this newly minted idea, they shut down the auto clubs in case after case, and what we show in the paper is it wasn’t, you know, this wasn’t kind of an altruistic move. It wasn’t a move because they were worried about consumer harm. All evidence suggests that the auto clubs were booming. The people were quite thrilled with the services that they received. Instead, the bar went on this campaign against the auto clubs and actually other corporate practice of law providers of the era.

Actually, during this era, it wasn’t just the auto clubs would provide, you know, legal assistance for all things auto. You could go into your neighborhood bank and get a will. There were homeowner’s associations that provided legal support against home foreclosures. There were lots of ways that folks were banding together for their legal needs.

The organized bar essentially declared war on all of this and, in rounds of litigation, shut it all down, and we argue as well that this happened in the 1930s, and we argue that it happened at a time when the organized bar was feeling under a lot of financial strain and they wanted to crush essentially competition, and they wanted to fortify their own well being and their own financial support.

Pam Karlan: So this is kind of like why today you can go to Costco, and there’s an, you know, eye doctor store in Costco, but you can’t go there and have your will done, or maybe you would have to have five wills done or something. They won’t do just one. They won’t do just one, or it’s got to be like a really big will, but I know you guys are looking at the effects of this today, the unauthorized practice of law, and one of the things that’s interesting, you guys have been involved in a bunch of experiments on how to essentially unwind this bind that Nora was talking about. Can you tell us a little bit about kind of how you’ve been thinking about that and some of the innovations that you’re now seeing?

David Freeman Engstrom: So there is currently a movement afoot in the United States across many states to relax the usual rules that say that only lawyers can practice law. That’s UPL, as Nora described it, and also that only lawyers can own law firms, and in the modern day, that’s called rule 5.4 is what, it’s actually the prohibition on fee sharing, and there’s a really interesting movement afoot to relax those rules, to try to open up a space for non lawyer alternative legal services providers. That can include what I refer to sometimes as human non-lawyers, so these would be, you know, along the lines of a nurse practitioner, a physician assistant, as Nora noted earlier, but it could also include non-human non-lawyers, i.e., software-driven models of legal provision, and this is like such an important moment. I think the success or failure of this movement to open up this space for new types of legal services, delivery models, is really going to shape the future of the civil justice system. It’s certainly going to shape the future of the legal profession, and so we’ve been really heavily involved in that. We have advised multiple Supreme Courts at the Rhode Center, state Supreme Courts, on how to responsibly relax those rules, and we’ve also done what we think is some really neat empirical work looking at the first, what has happened in the first two states that did this, and they are, interestingly, Utah and Arizona. In both states, there was a relaxation, a liberalization of these rules to create a little more space for non-lawyer legal services providers, and so we’re really proud of some of the work we’ve done to try to understand, okay, so what happens when you relax those rules?

What types of innovation might present?

Pam Karlan: So what does happen when you relax those rules, and what kinds of innovations does it present?

Nora Freeman Engstrom: First, I just want to tie this to the auto club piece because, essentially, there are two ways you can look at it, so the big question is, what happens if you relax rule 5.4? That’s the rule that says lawyers have to practice in law firms or as solo practitioners. They can’t work for things like auto clubs, so as David noted, a couple of states have recently done it, so you can look to those states to see what happens when you relax 5.4. Another thing you can do is look back in history and say what happened before 5.4. And so that’s, it’s essentially all of the same project as what we’re doing, so to look at Arizona and Utah today, or to look prior to the rules of invention in the 1920s with the auto club piece and that’s really important because the ABA has said that we shouldn’t relax the rule until reformers compile sufficient evidence that the move won’t cause harm, so one of the things we’re trying to do at the Rhode Center is to look to see, you know, can we do that? Can we show that you can relax 5.4 and the sky doesn’t fall? So that’s part of the auto club piece, and now, so what happened, David, in Arizona and Utah?

Pam Karlan: Yeah. What’s happening now?

David Freeman Engstrom: Well, so lots of innovation, so we did a study 2 years in.

We thought that was enough time to actually, you know, actually get some kind of a bead on what happens when you relax these rules. We’re going to do another version of it this summer because we’re now four years out, but you see lots of interesting new service delivery models.

Law firms have started to develop tiered legal services, so, for instance, like a purely software-based DIY, do-it-yourself tier at the bottom. At the middle, something that involves maybe a paralegal or a paraprofessional, again nurse practitioner, physician assistant model, and then at the top, full rep by a lawyer.

Law companies, so we call them. Law companies like LegalZoom, who because of UPL rules, are currently limited to what we call document assembly. That is to say, filling out forms that a small business might need to, you know, might need to file to, you know, to do what it does. LegalZoom is using this relaxation to hire lawyers to supplement those document assembly services, so interestingly, they’re actually hiring real lawyers to deliver legal services that they can’t currently do because those lawyers can’t work for a corporate-owned enterprise for rule 5.4. A lot of non law companies that just provide like immigration services can now layer in some legal services, so they can provide, you know, sort of more wraparound services that they couldn’t do.

Pam Karlan: So is some of that, for example, giving people like briefs and memoranda they can kind of customize and use in their cases. Is that some of what’s going on? Or how to file a complaint? Here’s a complaint.

David Freeman Engstrom: Sure.

Pam Karlan: How to get your stuff here.

David Freeman Engstrom: Yep. How to, you know, and another, I guess, one more I was going to mention because this is maybe closer to what you were describing just now.

There are lots of purely software-based services, so there’s a company in Utah that helps people achieve a criminal expungement, like an expungement of their criminal record in a purely software-based way, so it’s just a very robust user-friendly platform that, you know, allows someone to take the steps they need to do and interface with the, you know, the government system to get that expungement, so there’s all sorts of really interesting innovation there, and, you know, it’s only two years in. The problem in Utah, of course, is that it’s called a sandbox. It’s an experimental space where you can essentially apply to get access to the sandbox and come in and provide legal services in a way that would normally be prohibited under those usual rules, and because it’s been cast as a temporary thing, it’s possible that you know, there are plenty of entrepreneurs out there who have ideas on great new ways to deliver legal services that could help out the millions of people who currently go without any real, meaningful legal help. You know, they’re surely entrepreneurs who aren’t about to put, you know, blood, sweat, and tears into a project that could, you know, become illegal in, you know, in just a few more years, if that experiment were to fall away.

Pam Karlan: How would the people that would be the beneficiaries of all this find out that there are now these opportunities? I mean, is it mostly through advertising? Is the state making some effort to do this? When you go to the courthouse, does somebody say to you, you know, there’s this help available? How do people find out about that?

David Freeman Engstrom: The one theory of why these reforms might work or might do some good is that if, it’s that you’re empowering well-capitalized entities to actually advertise their services in a way that lawyers just don’t. I mean, there is plenty of lawyer advertising, but maybe not for, you know, for some of the services we’re talking about here.

So, you know, one of the theories of why this reform might work is you get these big entities, and they can actually cut through that problem of a lack of legal capacity that we talked about right at the top, right? The fact that most Americans don’t necessarily even know that their problem is legal at all, and so, again, if you get enough legal zooms into these ecosystems, into this marketplace, then maybe that actually helps to educate the average American that not only do they have a civil legal problem, but there’s also a low-cost solution that’s available to them.

Pam Karlan: Yeah, I just, it’s just so interesting. If you think about the technology also, I guess the last piece of technology in some ways, and you’ve alluded to this, is the change in the technology, you know, AI and the like. It used to be when we were all practicing law, if you needed to figure out what happened to your client, you had to sit there and ask them questions.

There wasn’t a mechanism to get the story out of them other than you’re spending this 300. I mean, when we were doing it was less than $300 an hour, but $300 an hour time.

David Freeman Engstrom: That is, you are absolutely right, Pam. That is the great promise of generative AI. When I think about what generative AI could do for, you know, in this part of the legal system, where there’s so many people who go without meaningful legal help, I think of it in terms of translation and mapping generative AI more so than any past technology, including earlier, less potent versions of AI can translate back and forth between legal ease, and plain English or plain language, and obviously if you want to serve people directly in a kind of direct to consumer way, you absolutely have to be able to do that. You have to be able to translate back and forth. The other thing that generative AI brings to the table I refer to as mapping, and that is the ability to take a plain language description of a legal problem that someone is experiencing, so think of a chat GPT window and someone just sort of typing in a plain language description of their problem. Can take that description, map it to what we would call a legal ontology, right? Understand what the sort of the possible actions and outcomes would be, and then come back to the individual, the self-represented litigant, the person who otherwise will go without meaningful legal help with some kind of a roadmap for what to do next, and that’s the real promise, and also, frankly, the peril. There’s, the generative AI makes these tools much easier to create, and so that’s all that started a really important conversation, I think, about how do we ensure that these tools are, you know, are high quality and trustworthy.

Pam Karlan: Yeah, I mean, that’s so much of what we try to teach the students in law school, right, is a client does not come in and say, I have a section 1983 problem, but they come in and they say, this is what the police officer did to me, or this is how I was fired from my job, and it’s your job as a lawyer to do that mapping, and so it’s really exciting to think that that could be scaled up so that everybody could get in some sense, some of the benefits that we get that our students can provide when they go out into the world to practice. I just want to say one last thing here, which is Nora has been responsible for also changing the way we orient our students here, and one of the things that I know she did at the last orientation and we’re doing again is to have faculty members come in and say, here’s how the scholarship I do in the real, is affecting people’s lives in the real world, and I think there’s no better example of that at Stanford than the work David and Nora, that you guys have been doing at the Rhode Center, which is not just making a difference in the world, but making a difference in the world as both of you said, with regard to this high volume litigation that touches almost every, almost every part of American society, so I’m super excited about what you’re doing. You’ve got to promise to come back and talk more about this. This is Stanford Legal, and if you’re enjoying the show, I hope you’ll tell a friend, and please leave us a rating or review on your favorite podcast app. It’ll help us to improve and it will get new listeners to discover the show.

I’m Pam Karlan. See you next time.