PRESIDENT’S REPORT
THE JUSTICE GAP
James Donato
M
ore than five hundred years ago, a British
king set the gold standard of access to justice. In 1495, the Statute of Henry VII codified a right to counsel in civil matters for
poor litigants. The words are simple and direct: “[T]he Justices . . . shall assign to the same poor person or persons
counsel . . . which shall give their counsel, nothing taking
for the same; . . . and likewise the Justices shall appoint attorney and attorneys for the same poor person or persons.”
II Hen. VII, c. 12 (1495).
In this country, we are still struggling to catch
up to 1495. The United States Supreme
Court declares “Equal Justice Under Law”
above its doors. As Justice Lewis Powell
has stated, “It is fundamental that justice
should be the same, in substance and
availability, without regard to economic
status.” Other nations have ensured that
the content of these words has been
made concrete for all of their citizens by
providing the indigent with a right to
civil counsel involving basic needs
and rights, and the funding to pay
for it. We—in a country that rightly
regards equal justice and the rule of law as
the foundations of our freedom and the jewels of our republic—have not kept pace.
The equal justice gap we face is staggering. Observers
note that California has one lawyer for every 240 residents
but just one legal aid attorney for every 8,737 low-income
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individuals. Recent studies show that more than two-thirds
of the legal needs of California’s poor are unmet by legal aid
services of any kind. In some areas of California, 80 to 90
percent of plaintiffs and defendants in civil cases go to court
without a lawyer. We have developed an impressive network
of legal aid organizations and pro bono programs that represent the very best service our profession can offer. But the
fact is these services are overwhelmed by demand and wholly
inadequate to meet immediate needs. Most of our fellow residents with the fewest financial and personal resources
are left to handle serious proceedings involving children and families, housing, health, essential government benefits, and other fundamental
human needs with no legal counsel or assistance of any kind.
The cost of this crisis for litigants is
high. It will not surprise anyone reading this magazine to know that studies repeatedly show that parties
obtain consistently better results in
court with a lawyer than without
one. As the American Bar Association has noted, our adversarial system “assigns to the parties the
primary and costly responsibilities of finding the controlling legal
principles and uncovering the relevant
facts, following complex rules of evidence
and procedure and presenting the case in a
cogent fashion to the judge or jury.” Lawyers spend
entire careers developing these skills. How can we fairly
expect that justice will be done and optimal outcomes
PRESIDENT’S REPORT
reached when people with no training in the field—and
often little education at all—are thrust into court on their
own? Our own experience as legal professionals tells us
that those individuals are very unlikely to get the result
that justice should render. This imbalance is particularly
severe and troubling in cases where a corporation or government agency appears through a lawyer and a low-income person on the other side goes unrepresented.
There is also an institutional price. As California Chief
Justice Ronald George has stated, “if the motto ‘and justice for all’ becomes ‘and justice for those who can afford
it,’ we threaten the very underpinnings of our social contract.” We live in a time when public trust in judges, the
courts, and the rule of law is diminishing, particularly in
historically disadvantaged communities. Significant portions of our adult population cannot properly explain
basic concepts like the separation of powers or the role of
judges. The cornerstone of our democracy—trust and
confidence in our civic institutions—is weakened when
substantial numbers of low-income litigants believe that
the courts are accessible and provide justice only to people who can pay for a lawyer. Again as Chief Justice
George has noted, “every day the administration of justice is threatened . . . by the erosion of public confidence
caused by lack of access.”
“If the motto ‘and justice for all’ becomes
‘and justice for those who can afford it,’
we threaten the very underpinnings
of our social contract.”
California Chief Justice Ronald George
Despite the scope and gravity of the justice gap, it is a
fixable problem. A key part of the solution is providing
sufficient and stable public funding to ensure that low-
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 7
income residents have legal counsel in civil cases involving
fundamental needs and rights. The California Commission on Access to Justice recently estimated that the justice
gap in dollar terms is approximately $394 million. That
amount is “the gap between total resources available and
what it would take to truly meet the legal needs of California’s low-income community.” Before dismissing that
figure as an impossible-to-consider expense, particularly
in these hard economic times, put the amount in perspective. In fiscal year 2006–07, California spent more than
$40 billion on Medi-Cal coverage for low-income Californians. That expenditure represented over 17 percent of
the California state budget. In contrast, the amount of
funds needed to close the justice gap and ensure equal
justice for all low-income Californians is less than 1 percent of our annual Medi-Cal budget. Even if evaluated
purely on a financial basis, the cost of doing
justice for our disadvantaged residents is realistic
and affordable.
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The real challenge in solving the justice gap may be finding the political will to do it. The courts might uniformly
hold someday, as some scholars and advocates have argued,
that the state is obligated to ensure effective access to the
civil courts for low-income individuals through the provision of lawyers. Until that day comes, it is up to us to press
our legislators and executive officers to implement mandates and funding for civil representation to make equal
justice under law a reality.
James Donato, a partner in the San Francisco office of Cooley Godward Kronish LLP, practices in the firm’s litigation
department and focuses on antitrust litigation, advertising
and unfair competition cases, and contract and license disputes. He can be reached at [email protected].