UNDERSTANDING THE QUESTION OF WHEN DOES REPRESENTATION MATTER

While a great deal of literature attempts to address the question of the importance of representation by lawyers in civil matters, the question framed that way masks the key Access to Justice concerns. Judges routinely report that they believe litigants are better off with lawyers, obtaining worse outcomes when they appear without counsel; many judges have further identified the burdens on the legal system that flow from the pro se litigants. As a result, guidance for judges often counsels judges to warn litigants of the perils of self-representation. Legal services lawyers staunchly believe that their clients are better off with representation. Opposing lawyers not only report that the absence of representation can have an adverse impact on the represented parties, but are generally prohibited by the ethical rules from giving advice to unrepresented parties, other than the advice to obtain counsel.

The most common reason that litigants appear without counsel in civil matters is that they cannot afford a lawyer. While the concept of “unbundled” legal services offers the promise of providing choice to clients to retain lawyers for only those tasks for which they needed a lawyer's expertise, the evolution of unbundling is two stories: a story about clients with resources, for whom choice might be a reality, and a story about clients with few to no resources for whom the choice is to receive unbundled help or no help at all.

In the Access to Justice context, therefore, the questions involving the importance of representation become more contextual than absolute. An inescapable reality embedded in the question is a scarcity of resources. Given that there are insufficient resources to provide full representation to all litigants in a given context, when should resources be allocated to full representation and when might lesser forms of assistance suffice? The reality of scarcity is essential in understanding the empirical work regarding representation.