Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans

Introduction I. The Micro View: Comparative Civil Legal Needs Surveys II. The Macro View: Comparative Legal Resources Conclusion INTRODUCTION Lawyers don't like numbers--as I often joke with my students, that's why they choose to go to law school. Kidding aside, however, the relative discomfort with numbers among lawyers individually adds up professionally to a slim empirical base on which to assess how well American lawyers are doing what they promise the public they will do: deliver legal services with competence and in the public interest. Even for the well-heeled client--the corporation that enjoys the services of our largest and most sophisticated firms, the ones to which the best and the brightest from our law schools flock--hard numbers on what legal services cost and what fraction of that cost is for real value are few and far between. For example, we have little systematic data on legal costs, and essentially none showing the relationship between expenditures and results. Assessing the legal landscape for the ordinary citizen who has sporadic contact with the legal profession is a game played mostly in the dark. What little data there is tends to be focused on the corporate legal services market which has money to spend on such information: hourly rates for the largest corporate law firms, for example, are now surveyed annually and published in the American Lawyer Magazine and National Law Journal. The American Intellectual Property Lawyers Association publishes data on the total cost of I.P. litigation. Proprietary studies by legal consultants such as Altman-Weil (recently absorbed by American Lawyer Media) and Hildebrandt International provide data that law firm managers and general counsel can use to assess their own management practices, billing rates and profitability. Even when these studies purport to investigate the cost of legal services for non-corporate clients--individuals in need of family law or employment representation for example--the data quality is significantly inferior. For example, the Altman-Weil survey for 2005 reports average hourly rates for partners in General Business based on responses from 567 lawyers; for Family partners the average is based on responses from 34 lawyers. (1) Labor-Management partner averages are based on 224 respondents; Labor-Union on 25. (2) That implies the margin of error on the averages reported for family lawyers or union-side labor lawyers is much bigger than that reported for lawyers providing general business advice or advising management. Systematic efforts to assess how well the legal markets and institutions that American lawyers (together with the judiciary) claim they have exclusive authority to structure, serve, and regulate are few and far between. In 1994, the American Bar Association ("ABA") released a study of the extent to which poor and moderate-income households experienced a legal need--defined as a problem that could be addressed by the legal system--and how often those with a legal need sought the assistance of a private practitioner or legal aid lawyer. (3) A proposal to update this study in 2005 was rejected as unnecessary and too expensive. (4) As a substitute, the Legal Services Corporation ("LSC") reviewed nine state studies of legal needs of the poor, documented the extent to which LSC-funded providers had to turn away requests for assistance, and calculated the number of legal aid attorneys in the country. (5) Also in 2005, the ABA published a study on pro bono work, which concluded that American lawyers on average provide thirty-nine hours a year of pro bono services to the poor. (6) That is a little over 2% of all legal effort. Not only are there few studies of the performance of the legal system for non-corporate clients (the distinction Mare Galanter draws between "natural" and "artificial" persons (7)), those that exist are almost uniformly focused on the delivery of legal services to the poor as a form of charity or welfare assistance. …