The future of legal representation
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This is Stanford Engineering's The Future of Everything, and I'm your host, Russ Altman. I thought it would be good to revisit the original intent of this show. In 2017, when we started, we wanted to create a forum to dive into and discuss the motivations and the research that my colleagues do across the campus in science, technology, engineering, medicine, and other topics.

Stanford University and all universities, for the most part, have a long history of doing important work that impacts the world. And it's a joy to share with you how this work is motivated by humans who are working hard to create a better future for everybody.

In that spirit, I hope you will walk away from every episode with a deeper understanding of the work that's in progress here and that you'll share it with your friends, family, neighbors, coworkers as well. In the civil side of the docket, there is no right to counsel. So there's not really a... Wow. Yes.

So there's no way to counsel. And the government or institutional actors can do a lot of things to you and you don't have a right to a lawyer to help you. So right now, in three quarters of cases in American courts, at least one side lacks a lawyer. And this is a really big deal. And it is what, you know, how our courts behave and how our courts are treating regular folks. ♪

This is Stafford Engineering's The Future of Everything, and I'm your host, Russ Altman. If you enjoy The Future of Everything, please remember to follow it in whatever app you're listening to right now. That way you'll always be alerted to new episodes and you'll never miss the future of anything.

Today, Nora Freeman-Angstrom will tell us that access to lawyers is a key problem throughout the United States, that sometimes three quarters of cases have only one lawyer in the room and the other party is not represented. It's the future of legal representation. Before we get started, please remember to follow this podcast, The Future of Everything, in whatever app you're listening to. That'll make sure that you're always alerted to new episodes.

So when we think about law cases, let's take civil cases, not criminal. In criminal cases, you are guaranteed to have a lawyer. Guess what? In civil cases, you are not. And so when we imagine two lawyers going at it in the law court, that's not always what happens. In fact, in a large fraction of cases, three quarters, in fact, one side doesn't have a lawyer. And guess what? You don't tend to win when you're up against a lawyer and you don't have one.

Well, Nora Freeman Angstrom is a professor of law at Stanford University and an expert on legal ethics, legal representation, and ensuring access to justice. She's going to tell us that there's a big problem in representation. It has historical roots. It causes unfair outcomes. Even when people know that the law is on their side, they sometimes, a lot of times, lose.

She's going to tell us what is happening to try to address this and why can't we have the equivalent of nurse practitioners for law. Nora, what led you to focus on legal representation and access to justice as a major portion of your scholarly work?

Well, I've long taught ethics at Stanford and part of ethics is you do think about the fact lawyers are supposed to be public citizens with a special responsibility for the quality of justice. So that had kind of been in the back of my mind and I've written some about how lawyers behave and how they sometimes misbehave.

But the real focus on access to justice started about four years ago. My mentor and very, very dear friend, Deborah Rohde, who is a giant in the legal world and at Stanford, passed away. And she had run a center in the legal profession at the law school. And I was asked to run that actually along with my husband, who is now the co-director.

And so we started running this center on the legal profession and that caused us to really focus in on how the legal profession is serving and sometimes not serving clients. And then I was just gripped by the sense that there's a real crisis here and I don't think there had been sufficient attention paid. Now, Deborah had been paying a lot of attention to it, but

But really thinking this is a crisis. And there are a lot of problems in the world, Russ, and we know that. But feeling like, gosh, this is a crisis that my profession made. So give me the dimensions of this crisis. Like this is kind of big news, and I might not have been aware of it. So how do we know, characterize the crisis for me, if you will? Yeah.

So it's, it is one of these, these things that is, I think it's a big deal, but it's the big deal that nobody's talking about. Right. I mean, and I realized the world is full of urgent issues to think about, but, but you know, picture us picture us,

A case, right? Picture a courthouse. What you're probably picturing is two lawyers and one sitting at counsel table and one's at a podium and they're talking to a jury. There's a judge there. This idea that civil cases are places where lawyers square off.

And that's what I pictured. We see this on TV all the time. Totally. I mean, that's, you know, if you ask anybody to close their eyes and picture a case, you know, whether you're thinking of, you know, a few good men, whatever courthouse scene you're picturing, but that's what you're picturing. But that's wrong. That's actually not what cases look like in the United States today. What they look like in the United States today is one side. It's typically the plaintiff side.

who tends to be a big institutional actor, like a debt collection buyer or an institutional landlord, up against an individual

And the individual is very, very, very often unrepresented. So it's one side that is big and powerful and has a lawyer against an individual who is not represented at all. And just to state the obvious, they should be represented and they're not doing this willingly as a like, I'm going to represent myself type situation. Yeah.

Yeah, I mean, so there are a few things in what you just said to unpack. One is this should be represented. So you don't have a right to a lawyer in civil cases. So we all think of, you know, there's this case Gideon versus Wainwright that establishes a right to counsel in certain criminal cases. Actually, it's not all criminal cases, which even a lot of law students don't understand. It's only certain big criminal cases and for different parts of the criminal justice process, not the whole thing.

But that's the criminal side of the docket. In the civil side of the docket, there is no right to counsel.

So there's not really a-- - Wow. - Yeah, so there's no way to counsel. And the government or institutional actors can do a lot of things to you and you don't have a right to a lawyer to help you. So right now in three quarters of cases in American courts, at least one side lacks a lawyer. And this is a really big deal. And it is how our courts behave and how our courts are treating regular folks.

Right now, what our courts are doing, one lawyer or one judge said to me recently, she said, you know, Nora, what I do is I put on a black robe and I manufacture poverty. That's what I do.

Wow. So I guess we can also assume that the sides that have the lawyer are doing a lot of winning of cases. They're doing a lot of winning. They're doing very well on the winning front. And what they're doing is they're winning to do things like evict people from apartments, foreclose on homes, or they're bringing debt collection actions to say, hey, you didn't pay us. You know, you're supposed to pay us back.

And that leads to garnishment of wages. And what a garnishment of wages is, is, hey, I'm going to take some of your paycheck every couple of weeks or every month and I'm going to dock it. I'm going to take some out. And that goes directly to poverty, as you just said. That's why the judge said what they said. Yeah.

It goes directly to poverty. Now, how much freedom do the judges have? Like if the judge sees what might be a miscarriage of justice and we haven't even established whether these are miscarriages, but let's say in a case there, do the judge have any latitude to kind of be some sort of proxy lawyer for the person who doesn't have representation? It's a great question. So,

Traditionally in the United States, we have what's called an adversarial system of justice. We've built our court processes to have the clash, the few good men clash. The judge is supposed to be there, neutral, the referee who is not a player on the field, but is just there to call balls and strikes.

And so that's the way judges, it's been kind of driven into judges that that's how they're supposed to behave. They're just supposed to be there and to weigh the evidence as presented by the parties. And so recognize that works really well when you have two equally represented sides. Right, right. It's great, right?

But when you have one side that's really well represented and one side that isn't represented at all, that model doesn't work very well. So folks call it an institutional mismatch. We have this notion of the judicial role that presupposes a certain thing happening in front of the judge, and yet that thing

thing isn't happening in front of the judge. And yet the judge is still taking this adversarial role. So, so the judge, you know, some judges are really grappling with what to do because frankly, you know, the judges in this country tend to be incredibly dedicated, thoughtful public servants and the, they didn't go into this business. They could surely be making more money doing other things.

And they didn't go into, you know, to do what they do with their law degree in order to manufacture poverty. That doesn't feel right. Right.

Okay, so now I'm troubled. We got to the troubled portion of our discussion. Can a motivated, unrepresented individual get help on the internet? Can they do things to prepare to try to put up a defense? Is that just Pollyanna-ish, ridiculous idea from Russ? What are the options as you see it?

So first is this idea of just, you know, hey, y'all, just figure it out. Right. And there's some of that for sure. Although the legal information on the Internet isn't particularly good.

So the National Center for State Courts recently said self-represented individuals are, quote, drowning in a, quote, sea of junk. And that's because there's some good information out there. It's true. But there's a lot of not so good information out there. And it's really hard to figure out the difference. So that's one problem. Another problem is education.

Partly, but there's this other part of the problem. So what we've been talking about is, you know, folks who are getting hammered by an institutional landlord, right, or an institutional debt buyer. There's this other side that not everybody is in like a defensive crouch when it comes to law. Some people have rights. They're getting hammered.

in certain ways, and they want to do something to vindicate their right. So picture here a person who is entitled to overtime pay and is working overtime and isn't getting overtime pay, or a person who is getting abused by her spouse or partner and really needs a domestic violence restraining order.

or a person who had insurance and the insurance should cover what just happened, you know, to their home or to their car. And yet the insurance company is jerking them around. I just want to say these are important examples because in the case of like debt collection, as long as it's a real debt, then people might not have as much sympathy. And in the case of not paying your rent, but you've just given us three scenarios where, you know, the heart is like, okay, this is an injustice.

Yeah, it feels like an injustice, right? And I could go on and on. The person who has the order for spousal support and yet the person isn't, you know, so it's on and on where they actually law could help, right? And the law on the book says, hey, you're entitled to help here. Like you're entitled to overtime.

I'm not talking about somebody who isn't entitled to it. I'm talking about where the entitlement is there. So that's the other side of the access to justice crisis. So I think of it as this two-layer calamity. So there's the calamity we were just talking about at the beginning, the 75% figure, the folks who were in this kind of defensive posture and getting hammered by law and

and getting evicted from their apartment or their wages are being varnished. And are the lawyers just too expensive or not even available? They, yes. Yes, and. So even the lawyers,

The DOJ, US Attorney's Office in DC recently did a study. It's actually hard to figure out how much the lawyers cost, right? And what they found is a second year associate costs on the order, and this is a second year associate, which is to say someone who was in law school like 15 months ago.

charges upwards of $300 an hour. That's a lot of money, right? You think about all these surveys that say, well, people can't, 57% of Americans can't handle an unexpected $1,000 bill.

So lawyers are really, really expensive. There is legal aid out there. So there's this thing called the Legal Services Corporation and they fund legal aid offices. But they have been sounding the alarm for some time. What they say is we can only help lawyers.

half the people who come to us and need help and who qualify for help. The other half we turn away. And those are folks who are legitimately poor. So the idea is lawyers are...

are really expensive and our system of legal aid, there are just folks who are so dedicated, who are doing their absolute best and working day and night to try to help folks, but they don't have the capacity they need. Can non-lawyers help? Yeah. So that we've just come to a really big issue, which is to say that,

You know, my son, I'm going to start to say something and it's going to sound like it's a completely random aside. Oh, we love this. We love this. This is the future of everything. Yes. So you can include everything. All right. So my son was sick the other day. He was, he was, well, it was over the summer. He got sick. He was at a summer camp and he got sick on a Friday and he said, well, they told me that, you know, the, I could, whatever, the doctor's office doesn't open until Monday. And I said, well, that's, you know, that's a problem because I thought he had an ear infection.

And so I said, "Well, don't worry. Is there a CVS nearby?" And he said, "Yeah." And I said, "Okay, we'll take the bus to the CVS and go in." And there's a minute clinic there. I looked. He was in Rhode Island. So I looked, and there it is. It's just two miles away. And he went to the CVS minute clinic, and he got seen by a nurse practitioner. He got his prescription for his ear infection, and it was over in two hours.

We don't have anything like that in law. - There's no law practitioners. - There's no-- - Who are not lawyers. - Exactly. So in medicine, a lot of little things, like my son's ear infection, you don't need a brain surgeon to work on, right? You need someone with specialized training and expertise. You need someone who is available.

But you don't need someone who has the full four years of medical school and a three-year residency and you've been training absolutely everything to splint a sprained ankle or to look inside a kid's ear.

In fact, in the majority of states, nurse practitioners have full practice authority, which is to say they can diagnose, they can treat, they can prescribe without supervision by a doctor. So that's why this CVS Minute Clinic, it wasn't that this person that my son saw was being overseen by a doctor. No, it was just a skilled professional who was practicing within her zone of competence.

Law doesn't have anything like that. It is lawyer or bust when it comes to law. You can have a full on licensed lawyer who's been through law school and passed the bar, does continuing education, even for very simple things.

So why is that? Why is that? Because, you know, I'm a physician and I know medicine is highly regulated and and it's it's usually licensure and stuff is at the state level. And so I'm guessing that that CVS thing is a state level decision by Rhode Island to say we're going to allow nurse practitioners. I'm not sure about that.

But could states, could individual states say, wait a minute, we're going to allow non-law lawyer legal practitioners do the equivalent of the CVS thing? Yes, they could. And right now, actually, right now, as we speak, that's a huge fight that's happening. So, you know.

There might be some money involved. Let me guess. Oh, how long did you guess? So right now, it's lawyer or bust. And as we established, lawyers are really unavailable. They're super expensive. And folks, in part because of this shortage, are left to –

grapple with a system designed by lawyers for lawyers alone. So I call it a two door problem in law right now. You can have a full lawyer or you can go on your own. Wow. And that's, it's just like pick. Yep. Yep. There's just two options.

In medicine, as we just established, there is this third door. And not all doctors, as you can imagine, were super delighted by the idea of nurse practitioners and physician's assistants and giving them this very substantial practice authority, but it exists in the majority of states. And how exactly that happened in medicine is really interesting.

I'm co-editing an edited volume that will come out really soon. And there's a great chapter in there about how doctors resisted some and then the resistance was overcome when it comes to medicine. So yes, in law, we could do the same thing.

Right now, and I should say this is just an important piece too, of why don't you just like, okay, it's not allowed, but surely you can just learn some law and give some advice. It is a crime. It is a crime in nearly every state for a non-lawyer to give legal advice without a license.

In California, it's a misdemeanor. In some states, it is a felony. And when I say give legal advice, if I were a non-lawyer and I saw my neighbor parked too close to the fire hydrant outside our house, and I went outside and said, hey, just so you know, your car could be ticketed because you're parked too close to the fire hydrant. It's against the law to do that.

Wow. So that, and you're okay. Wow. So, so, so this might be happening all the time. And it's kind of, I guess it's kind of like an incidental use. We can't go after all these people, but if you started to do it, and especially I'm guessing it doesn't matter that you're paid or not. Like there's no distinction, even free legal advice. And I have to say, I mean, I, this is embarrassing, but I,

I think I was a lawyer and I thought, well, I'd heard of this law called unauthorized practice of law, but I kind of pictured that was like if you showed up in court and said, yes, your honor, I'm here to represent, and you weren't a lawyer, then that was unauthorized practice of law. But no, the state definitions of unauthorized practice of law are capacious definitions.

So they really do sweep in the stuff that I just, you know, the fire hydrant example. Now, which is not to say prosecutors are going after this, but it certainly chills anybody's effort to do anything helpful at scale. This is the Future of Everything with Russ Altman. We'll have more with Nora Freeman-Angstrom next.

Welcome back to the future of everything. I'm Russ Altman. I'm speaking with Nora Freeman-Angstrom from Stanford University. In the last segment, we were alerted to a problem in getting lawyers to help represent people, especially people who are at risk of major financial loss. But at the end, Nora, you mentioned that some states are changing this idea that you can only have lawyers helping people in these cases. So what's happening in those states?

Yeah. So this is, you know, I said that there's this two door problem, right? It's a lawyer or you're on your own. A number of states are saying, you know, we should have a third door, right? In medicine, we have nurse practitioners. How about in law, we have something equivalent. So, and this is just, you know, we talked about at the beginning that, you know, I've been thinking about this really carefully for only about five years and,

And it's within five years, just coincidentally, that this action has totally taken off. So a number of states, including Alaska, Arizona, Colorado, Hawaii, Minnesota, New Hampshire, Oregon, Utah, and Washington have some way –

relaxed these unauthorized practice of law rules to let some more folks into the fold. Well, yeah. What dimensions does that take? Like how do you make that first step? Is it paralegals? Is it people who are working with lawyerly supervision? Like what are the models? And I'm guessing they might be very different across the different states. Yeah. So they're different across different states. So everywhere you can have

you can have a pair, like having a paralegal is not controversial. That's permitted in every state, but they can't,

practice law. And so it's both, they're both restricted in what they can do. Um, and they're also restricted that they have to be under this lawyer supervision. So, you know, again, going back to the CVS minute clinic, it wasn't that a nurse practitioner was there, uh, looking at my son's ear with a doctor looking over her shoulder. It's the full ability to do this without supervision. Um, and so that's what some States are allowing, uh,

And it is a mix of models. Right now, it is very much a moment of exploration and experimentation, which is to see what works. You know, there's this idea of community justice workers, which is to say, let's allow

our nonprofits, our legal aid organizations to have more non-lawyers helping people without direct supervision that we can be, that can be kind of a force multiplier essentially, but they're still being supervised by the nonprofit. And so there's this backstop to ensure quality control. So there's a lot of interesting thought and experimentation going on because everybody recognizes that they want

to be high, right? You don't want it to be, you know, okay, if you're rich, you get Cadillac Council. And if you're not rich, you get some sort of lawyer like,

We want to ensure that there are high-quality, responsible providers. And I think everybody recognizes that just like a nurse practitioner is never going to perform brain surgery, and we never want that, there are going to be things that you need a real lawyer for and that these trained, specialized, you know,

carefully regulated non-lawyers. No, it's really interesting because, you know, part of the training of the nurse practitioner is knowing and recognizing when they're dealing with something that's out of their jurisdiction. So it's a mixed metaphors.

And then they can say, you need to go to the ER or you need to do whatever. And so there is going to obviously it's just thinking about it. It seems like there's going to be a need for these legal folks, these non-lawyer legal folks to say, I just realized that this case is now out of the domain that I'm kind of credentialed to do. And then the problem is, I'm guessing that they need to be able to have the emergency room equivalent. And it's not clear if that exists. Yeah.

You're right, that kind of figuring out what kind of that triage model looks like and making sure that folks know exactly where the kind of boundaries of their competence lies. So we're in very early days of this, and at the same time, we want folks to be specialized

We want them to be trained, but we can't over-regulate the thing. So Washington State actually did this, kind of tried this a number of years ago with these

like licensed legal technicians. And what they did, it was a bit of a cautionary tale in that they regulate, like they made it so hard to become a licensed legal technician that it actually is like, well, if I'm going to work that hard to get that, I might as well just go to law school. Right.

I wanted to ask, has it always been like this? Is this like the last 250 years in the U.S.? Or did something change? What's the dynamic? So that was a question that really came to me a couple of years ago. It's like, huh, is this, you know, we just have such a view of when we look at the world to think, well, you know, it's always been this way. There's something, right? There's something baked in about this.

And so I started digging into the 1910s and 1920s. And I found something I found was startling, which is in the 1910s and 1920s, they did have a thing where if you weren't a lawyer, you couldn't provide legal advice.

But it was different insofar as right now we have this other rule we haven't talked about. We talked about unauthorized practice of law rules. There's this other rule that's called Model Rule 5.4D, which really rolls off the tongue. But what that rule says is if you're a lawyer, you have to work for yourself.

or maybe the government, or an organization owned by, funded by a lawyer. - Yeah, you made brief reference to this before. - Yeah, so you can't, for example, work at CVS, right? So you can't be somebody who is a trained professional but offering legal advice at, for example, CVS.

And so it was kind of like, well, you know, that's got to be baked into. Right. That's been part of the legal system since I've, you know. Yeah. Which part of the Constitution outlines that? Exactly. So in 1910 and 1920, that part of the rule book did not exist. And so you could go into your bank and get a will.

there were lawyers in banks writing wills for folks. And there were these things called auto clubs. It was right when the car was developing and the, you know, the, the model T is rolling off assembly lines. There were auto clubs around the country that were thriving. So it was kind of the triple a of yesterday and the triple a of yesterday was

you with the price of your membership got a lawyer for all things automobile for the cost of the membership you had a lawyer if you hurt somebody in a car if you were hurt in a car if you were arrested they actually would represent you throughout the criminal process we found cases where they would do habeas petitions um

So you, with the price of your membership, got a lawyer for all things legal. And then we found lots of other organizations that were doing similar things. So there were lawyers kind of embedded into life where folks had access to lawyers as part of other things.

Right. So, yeah. So what happened? So the bar, it turns out 1930s were, um, not a time when a lot of money was sloshing around, right? The great depression lawyers were feeling the pinch like everybody else. And they looked around and decided that they did not like the competition essentially. And they decimated it. Um, so, uh,

I have a piece that came out this fall with a former student called Auto Clubs and the Lost Origins of the Access to Justice Crisis. And what we trace, and it was actually, it was a really fun project that my co-author,

former student, James Stone, went around the country to archives and auto museums. Oh, this is super fun. Yeah. And you can also see why somebody like Henry Ford would have supported this because he needed to sell cars. And if that was a big concern, if he could allay that fear, he could sell more cars. Totally. So actually, Auto Club started as this, trying to encourage people that Auto Club, that

automobiles were not just a rich man's toy. But then once Americans were like, we are in, we want, we own cars. Car ownership by 1928 was extremely broad in the United States. So there was this sense of like, well, we got to give people confidence that it's going to work, that if they get into trouble...

with driving, we're going to have their back. And actually, AutoClubs did other things too. They did do the AAA stuff of roadside assistance. They also lobbied for, because at the time, I mean, we had roads that were set up for horses and all of a sudden we needed them to set up for cars. So we needed all sorts of speed limits and jurisdictional lines and things like that. So AutoClubs did all of that too. But what I think is so fascinating is that we can then, if we squint, we can envision this

Different world. Yeah. A past where you could have gone into CVS and gotten not just your ears looked at, but also like, you know. An oil change. Yeah. I need to think about, you know, my name change. I need to think about.

this adoption I'm trying to do. This is fantastic. And so, and we could go on, but I just, we only have a minute or so left. And I want to ask you about AI. And because you said before that it's a mess, that when people go on the internet, I believe you said sea of junk. And I want to know if AI is included there now, or if that's a ray of hope that it actually might not be so junky. I know that

I'm positive, and I'm sure you know this, that people are typing legal questions into ChatGPT. There's no doubt in anybody's mind because I know that they're doing that for medicine. They're doing that for everything. What's your take on the likelihood that that stuff will be useful and will empower people, perhaps in the context of these other innovations, such as what the states are doing and going back to the AAA days? So...

I mean, you know, I'm sure other folks know that AI is only as good as the data it's trained on, right? And right now, the data that can be trained on is not very good. And so AI is not very good. But there is a ray of hope here. And that is there is an entity in all this that we haven't talked very much about that it turns out knows law really well.

And that entity is courts. And so when I said that courts, you know, nobody likes to put on a black robe and manufacture poverty. They also look around and look at the rather dismal state of affairs and they're thinking hard about how can we help them.

And so something else that gives me hope is LA Superior Court. So LA Superior Court, they adjudicate three times more cases per year than all federal courts combined. Unbelievable, right? The biggest court system in the world. And they have looked at the situation and they are

see that it's a terrible, terrible problem. And they are thinking hard about, we have access to information. Right now the information that's publicly available is bad.

but we could help people. So they do have information that would be useful? Oh, for sure. For sure. And they can curate and sift through the bad information and figure out what is good and what is bad. And so we are working with them. We at the Rohde Center in the legal profession are working with them to try to improve things, including by designing AI tools. So I don't think, you know, the AI kind of

AI that sifts through what's on the internet is not going to be good anytime soon. But there is this possibility that we curated information from trusted intermediaries can essentially see junk and be a life preserver out of it. And so I do think if more courts are like LA, that gives me a lot of reason for optimism.

Thanks to Nora Freeman-Angstrom. That was the future of legal representation. Thank you for tuning into this episode. Don't forget, we have more than 250 episodes in our back catalogs. And so you can spend all day listening to me talk to interesting people about their work.

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