Article

Improving Access to Justice: Asian Journal of Legal Education

6(1–2) 83–90, 2019
Community-based Solutions © 2019 The West Bengal National
University of Juridical Sciences
Reprints and permissions:
[Link]/journals-permissions-india
DOI: 10.1177/2322005819855863
[Link]/home/ale

Fatos Selita1,2,3,4

Abstract
Inaccessibility to justice is a major issue internationally, and in some countries access to justice has
decreased in recent years. For example, the growth of inequality and decline of state support have
left access to justice in the UK and the USA in a worst state in decades. There is therefore an urgent
need to find solutions to protect peoples’ rights. This article outlines key issues of access to justice
and identifies a number of solutions from grassroots efforts to organizational changes. The article
highlights the importance of community-based solutions, such as mass pro bono contributions from
individuals, law service providers and other organizations. It also proposes, as a key solution, making
legal professions more representative of societies, and calls for law schools and legal regulators to
take the required steps. Another important contributor to improved access to justice is promotion of
pro bono work by all lawyers and law organizations at their own initiative. The article also discusses
enhancing existing law degrees with additional topics on access to justice, to help students gain an
objective picture of the realities of the legal system, and on individual differences, to benefit from
latest interdisciplinary science. Community-based solutions provide stability even in times of difficult
economic circumstances and political turbulence, and therefore are relevant to all societies.

Introduction
In recent years, in line with the high and raising inequality, access to justice has been at its worst state in
decades in some countries including the UK and the USA. For example, in the UK, most of the population
cannot afford the justice system.5 Studies over extended periods (including prior to the 2013 legal aid

1
  Department of Psychology, Goldsmiths, University of London, New Cross, London, UK.
2
  Department of Psychology, Tomsk State University (TSU), Lenina Avenue, Tomsk, Russia.
3
  Attorney and Counselor at Law, the State of New York.
4
  Barrister, England and Wales.
5
  Judiciary of England and Wales, The Lord Chief Justice’s Report 2015 33 (2015), [Link]
uploads/2016/01/lcj_report_2015-[Link]

Corresponding author:
Fatos Selita, Department of Psychology, Goldsmiths, University of London, New Cross, London, SE14 6NW, UK.
E-mail: ftselita@[Link]
84 Asian Journal of Legal Education 6(1–2)

reform) show that in family courts, over 80 percent of people are unrepresented6; and that 85 per cent of
county court defendants and 75 per cent of litigants in adoption cases are unrepresented.7 The numbers
increased even further following the April 2013 justice reforms, when the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 (LASPO) significantly reduced legal aid.8 In the USA, the numbers
of the unrepresented are similar. For example, the National Center for State Courts (NCSC) reported that
in more than 76 per cent of civil cases at least one party was unrepresented,9 as were around 90 per cent
of tenants facing eviction in New York City.10
Available free legal service is dwarfed by the existing need. It was as early as the 1600s when John
Cooke, the barrister who sacrificed his life by accepting the brief against Charles I, urged barristers to
work pro bono (free of charge) in 10 per cent of their cases.11 Around 400 years later, although a number
of charitable organizations provide free support, this accounts for only a fraction of what is needed. For
example, in the USA, the Center for American Progress reports that there is a ratio of around 1:6415 for
free legal services attorneys available and the number of low-income Americans who need one.12
Moreover, finding pro bono representation depends on a range of factors, such as fashionableness or
conservativeness of the case, and potential for bringing in business.13 In the UK, the proportion of
litigants in person is similar to that in the USA, and therefore the situation is likely to be similarly grave.
For example, a government-funded organization, Leasehold Advisory Service, which provides free legal
advice on landlord–tenant leasehold matters, offers a maximum of 15 minutes free advice.14 Considering
15 minutes are not sufficient to even outline the issues, especially for non-lawyers, this shows the current
grave situation in access to legal representation in the UK.
The unrepresented face a number of further disadvantages. There are numerous legislations and case
law that create a labyrinth, which can be navigated only by highly specialized lawyers—leaving out a
vast majority of people who cannot afford these lawyers. Prejudices, complexities in interpretations of
the law, inaccessibility to laws, unnecessary formalities and language obstacles are also common
barriers.15 Moreover, even for those who can afford the justice system, access to justice is impaired due
to the variation in the quality of representation. In the UK, for example, the quality of representation has
been found to vary widely.16 This inequality in access to justice comes with serious consequences for
individuals and societies.

6
  Liz Trinder et al., Litigants in Person in Private Family Law Cases (2014), [Link]
publications/litigants-in-person-in-private-family-law-cases (863ec095-bd56–4e1f-9975-d01cdd7a3aed)/[Link]
7
  Richard Moorhead & Mark Sefton, Litigants in Person: Unrepresented Litigants in First Instance Proceedings (2005).
8
  Adrian A. S. Zuckerman, No Justice Without Lawyers: The Myth of an Inquisitorial Solution, 33 SSRN (2014), [Link]
[Link]/abstract<hig>=</hig>2503867
9
  National Center for State Courts, Landscape of Civil litigation in State Courts. Civil Justice Initiative (2013), [Link]
[Link]/~/media/Files/PDF/Research/[Link]
10
Rebecca L. Sandefur & Thomas Clarke, Roles beyond Lawyers: Summary, Recommendations and Research Report of an
Evaluation of the New York City Court Navigators Program and Its Three Pilot Projects (2016), [Link]
abstract<hig>=</hig>2949038
11
  Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (2006), [Link]
[Link]/9780099459194/Tyrannicide-Brief-Story-Man-who-0099459191/plp
12
  Center for American Progress, Civil Legal Aid by the Numbers (2011), [Link]
news/2011/08/09/10080/civil-legal-aid-by-the-numbers/
13
  Heather Mac Donald, What Good is Pro Bono? City Journal (2000), [Link]
[Link]
14
  Lease, What We Do the Leasehold Advisory Service, [Link]
15
  Fatos Selita, Unrepresented Litigants in Modern Courts: Ordeal by Combat, 6 Leg. Issues J. 35 (2018).
16
  Competition and Markets Authority, Legal Services Market Study. Final Report (2016), [Link]
[Link]/media/5887374d40f0b6593700001a/[Link]
Selita 85

Inequality as a Major Barrier to Access to Justice

The fundamental cause of inaccessibility to justice is inequality. It is now at its highest levels and growing
rapidly. Between 1988 and 2011, the top 1 per cent of the world’s population (-60 million people)
gained a higher percentage of income growth than the bottom 50 per cent put together, and own more
wealth than the rest of the planet (-6 billion people).17 In the USA, between 2009 and 2012 (following
an economic crisis), all income growth happened in the top 1 per cent of earners in 18 of the states; and
in New York and Connecticut, the top 1 per cent of earners attained average incomes more than 48 times
than that of the bottom 99 per cent.18 At a global level, it is estimated that over the next 20 years, 500
people will hand over USD 2.1 trillion to their heirs—a sum larger than the GDP of India.19
Inequality has been identified by the World Economic Forum as the most likely global risk to manifest
in the next 10 years.20 Inequality affects stress levels, health, education and social cohesion through
multiple pathways.21 For example, inequality, beyond poverty, affects children’s health and education
through a range of processes, including parental psychological and physical well-being, epigenetic
regulation, feelings of injustice and residential segregation.22
Specific to access to justice, unequal experience in dispute resolution has been shown to have health
consequences. The World Justice Project research on access to justice (1,020 adults) showed that in the
UK, 31 per cent of people with legal problems reported they suffered a stress-related or physical illness
as a result.23 Similar figures were shown for Canada and the USA.24 Inequality in access to justice
is propelled through different mechanisms, across different jurisdictions. For example, in the UK,
inaccessibility to justice may be exacerbated by the unrepresentativeness of the current legal force.
Figures show that the judiciary, which exerts huge power over society,25 is mainly composed of people
from the wealthy part of the population. The 2017 report by JUSTICE raises (for the third year) concerns
about demographic make-up of the judiciary in the UK. The report emphasizes that the judiciary is
dominated by white and privately educated men, and that despite 10 years of measures to improve
diversity, progress has remained stagnant. The report also points out that, in terms of diversity, the UK

17
  Oxfam International, An Economy for the 1% | Oxfam International (2016), [Link] Deborah Hardoon,
An Economy For The 99%: It’s Time to Build a Human Economy That Benefits Everyone, Not Just the Privileged Few 48
(2017).
18
  Estelle Sommeiller & Mark Price, The Increasingly Unequal States of America: Income Inequality by State, 1917 to 2012
(2015), [Link]
19
  Hardoon, supra note 13.
20
  World Economic Forum, Global risks 2012. (2012).
21
  Fatos Selita & Yulia Kovas, Genes and Gini: What Inequality Means for Heritability, J. Biosoc. Sci. 1–30 (2018); County Health
Rankings and Roadmaps, 2015 Key Findings Report (2015), [Link]/content/dam/farm/reports/reports/2015/rwjf418649
22
  Bruce A. Ryan & Gerald R. Adams, Family Relationships and Children’s School Achievement: Data from the National
Longitudinal Survey of Children and Youth (1998); R. G. Wilkinson & K. E. Pickett, The Spirit Level: Why Greater Equality
Makes Societies Stronger. (2009); Greg J. Duncan & Richard J. Murnane, Rising Inequality in Family Incomes and Children’s
Educational Outcomes, 2 RSF Russell Sage Found. J. Soc. Sci. 142–158 (2016); Selita & Kovas, supra note 17.
23
  World Justice Project, Global Insights on Access to Justice (2018), [Link]
documents/WJP_Access-Justice_April_2018_Online.pdf
24
  Jon Robins, The Justice Gap Revisited, New Law J. (2018), [Link]
25
  Judicial Studies Board, Diversity, Communication and Representation. Equal Treatment Bench Book 2009 (2009), www.
[Link]; Civil Justice Council, Access to Justice for Litigants in Person (or Self-Represented Litigants): A Report and
Series of Recommendations to the Lord Chancellor And to the Lord Chief Justice (2011), [Link]
uploads/2014/05/[Link]
86 Asian Journal of Legal Education 6(1–2)

remains significantly worse than other European and common law jurisdictions.26 A situation where
lawyers are generally from significantly different percentiles of socio-economic status (SES) distribution
to those whom they represent creates a disconnect in values, knowledge and experiences between
lawyers and their clients.
For example, people are unlikely to view existing legal salaries and fees as appropriate. At the English
Bar, the lower-end barristers’ fees are around £300 per hour. Moreover, hours accumulate even for small
cases. For example, fees reached over £50,000 in landlords’ legal costs for a simple service charge case
in the first-tier tribunal.27 In contrast, the national average hourly rate in the UK is £14 per hour,28 and the
average household income is £593 per week.29 Furthermore, in 2008/2009 for 13.5 million people, the
household incomes were around £119 per week for single adults, £206 per week for a couple with no
dependent children and £288 per week for a couple with two dependent children.30 This clearly
demonstrates the gulf between what is affordable and reasonable for the majority of the population. This
situation can lead to miscommunication and discontent on both sides. People, being represented and
judged by those far removed from the realities of their lives, are likely to experience greater stress and
uncertainty.
More accessible services are provided by more representative workforce, including academics, whose
training is similar in length and cost to that of lawyers. For example, professorial hourly teaching rate
(Grade 9) is around £40 per hour. This is paradoxical considering legal services are a necessity for all
people, whereas, paying for higher education is a choice and an investment, potentially leading to better
employment and higher income. Currently, we are in a situation where access to justice is in a similar
category to luxury services, such as cosmetic surgery and designer fashion. The legal system, therefore,
has to be organized differently—in a more egalitarian way—including becoming more representative of
the society it represents. Not doing so comes with serious consequences for society.

Current Attempts to Improve Access to Justice

Some steps are being taken towards improving representativeness of the legal workforce. For example,
the Inns of Court have announced plans to improve diversity at the Bar by conducting ‘activities directed
at encouraging those from non-traditional backgrounds to come to the Bar’.31 Another measure for
improving access to the profession, introduced by the Bar Standards Board (BSB) as part of its Equality
and Diversity Strategy 2017–2019, is the equality objective to ‘improve our understanding of the diverse
experiences of students training for the Bar’ which entails to ‘undertake targeted research to understand
the experiences of students with the following protected characteristics: black and ethnic minority
(BME), women, disabled and, in addition, those from lower socioeconomic backgrounds’ and to ‘use the

26
  Justice, Increasing Judicial Diversity Is Vital to a Fairer Justice System: A Justice Working Party Gives Its Recommendations
Justice (2017), [Link]
27
  Selita, supra note 11.
28
  Statista, Full-Time Average Hourly Wage 2006–2018 | UK Statistic Statista, [Link]
median-hourly-earnings-for-full-time-employees-in-the-uk-since-2006/
29
  Department for Work and Pensions, Households Below Average Income: An analysis of the UK Income Distribution:
1994/95–2015/16 (2016), [Link]
091/households-below-average-income-1994–1995–2015–[Link]
30
  Department for Work and Pensions, Income Distribution [Link] (2018), [Link]
work-pay-and-benefits/pay-and-income/income-distribution/latest
31
  The Honourable Society of the Middle Temple, A Message from the Treasurer: Access to the Bar (2017).
Selita 87

research findings to inform decisions for Future Bar Training (FBT)’; to ‘produce and publish findings
of the research’; as well as ‘[p]roduce a report and work with providers to identify and influence best
practice’.32 However, these measures are unlikely to improve access significantly because student
experience is not the main barrier. The number of people from ‘non-traditional backgrounds’ successfully
completing the Bar Professional Training Course and Called to the Bar is already high, despite high fees
(e.g., over £18,000 for a nine-months bar professional training course). In fact, an almost equal number
of BME and white are Called to the Bar. For example, in 2017, the numbers of those Called to the Bar
were 561 and 585 BME and white, respectively.33
However, the situation changes drastically at the final stage of attempting to join the Bar. Upon being
Called to the Bar, barristers are faced with the biggest barrier to access to the profession—entry to pupillage,
the only stage of training for which no payment is required. Although the system presents an image that
access to this stage is based on merit, the unquantifiable and non-transparent selection processes is fraught
with inherent biases (e.g., towards selecting a candidate similar to oneself)34 and conscious and unconscious
resistance to change. This is clearly reflected in the fact that 80 per cent fewer BME than white get a
pupillage. Those unable to enter the final stage of training can repeat the same process for up to six years,
but with no clear guidance as to what exactly is required to succeed in gaining entry.
Other legal systems provide more equal access to the profession through using quantifiable entry
criteria, such as the state bar entry in the USA. However, such meritocratic procedure needs to be
combined with greater socio-economic equality to achieve a truly equal access. In highly unequal
societies, the diversity of the legal profession is hindered by lack of early educational opportunity and
inaccessible health care.35 For example, in the USA, the income ratio between high- and low-income
families grew from 5:1 in 1970 to 11:1 in 2013.36 This was accompanied by a similar increase in
educational investment gap, from 5:1 in 1972 to 9:1 in 2007.37 These increases in income and educational
investment gaps were paralleled by a growing educational achievement gap of around 50 per cent.38 Such
inequality in educational opportunity prevents many from entering even the early stages of legal training.
The situation is similar in other desirable professions. For example, in the UK, 80 per cent of students
accepted by medical schools are from high SES, with around 34 per cent living in the most affluent tenth
of postcodes, and around 5 per cent in the least affluent tenth.39 Furthermore, 50 per cent of secondary
schools had never had a pupil apply to medical school.40

32
  Bar Standards Board, BSB Equality and Diversity Strategy 2017–19 13 (2018), [Link]
media/1819877/bsb_equality_and_diversity_strategy_2017_in_12pt_for_website.pdf
33
  Bar Standards Board, Called to the Bar and Tenancy Statistics, [Link]
research-and-statistics/statistics/called-to-the-bar-statistics/
34
  I.E. Dror, B.M. McCormack & J. Epstein, Cognitive Bias and Its Impact on Expert Witnesses and the Court, 54 Judges’ J. 5–12
(2016); J. Ehrlinger, W.O. Readinger & B. Kim, Decision-making and Cognitive Biases, in Encyclopedia of Mental Health 5–12
(2016), [Link]
35
  Selita & Kovas, supra note 17.
36
  Sean F. Reardon, The Widening Income Achievement Gap, 70 Educ. Leadersh. 10–16 (2013).
37
  Sabino Kornrich & Frank Furstenberg, Investing in Children: Changes in Parental Spending on Children, 1972–2007, 50
Demography 1–23 (2013).
38
  Sean F. Reardon, The Widening Academic Achievement Gap Between the Rich and the Poor: New Evidence and Possible
Explanations, in Whither Opportunity 91–116 (Greg J. Duncan & Richard J. Murnane eds., 2011); Greg J. Duncan & Richard
Murnane, Whither Opportunity? Rising Inequality, Schools, and Children’s Life Chances (2011).
39
  Kathryn Steven et al., Fair Access to Medicine? Retrospective Analysis of UK Medical Schools Application Data 2009–2012
Using Three Measures of Socioeconomic Status, 16 BMC Med. Educ. 11 (2016).
40
  Severin Carrell, Students from Wealthy Backgrounds Dominate Medical Schools, 22 January 2016, [Link]
com/society/2016/jan/22/medical-school-students-wealthy-backgrounds
88 Asian Journal of Legal Education 6(1–2)

A pessimistic view would be that only an equal society with meritocratic criteria for entry into the
profession can provide equal access to justice to its citizens. However, even before major societal
changes occur, small adjustments to the system and grassroots movements can lead to significant positive
outcomes.

Community-based Solutions to Improving Access to Justice

Equality in access to justice can be improved in a number of ways, including through increasing
representativeness of the legal workforce, and through pro bono contributions. Improving represen-
tativeness would require different steps in different legal systems. In the UK, a major step towards
improving representativeness would be to make the qualification criteria quantifiable and objective. This
would require action by the legal regulators (Bar Standards Board and Solicitors Regulation Authority).
However, representativeness can be improved even without the support of the regulators. Law firms and
chambers can introduce standard entry tests for pupillage and training contract, instead of current
subjective criteria (e.g., interview). Firms/chambers can unite into a network (including national) that
offers pupillage/training contracts on the same standardized assessment criteria. High quality standards
will be maintained through the accepted probationary employment process. This seemingly small step
would lead to a significantly more meritocratic qualification system, and therefore a system more
representative of society—ultimately reducing the divide between lawyers and clients and instilling
greater trust in the justice system.
Apart from such system changes, continuous pro bono contributions by all lawyers and organizations
can make a difference in improving access to justice. For example, a contribution of two hours per week
from every practising solicitor and barrister in England and Wales would total to approximately 17
million hours of free legal advice per year available to those in need. Organizations/businesses have an
even greater power due to resources available to them. For example, law firms/chambers of 10 or more
lawyers could establish pro bono departments. Pro bono contributions raise awareness and inspire people
to engage in pro bono work. Today, already a number of non-government and charitable organizations
provide pro bono support to those who cannot afford the legal system. In the UK, these include Citizens
Advice, Free Representation Unit, Law Centres Network and university law clinics. Similarly, in the
USA, there are a significant number of pro bono legal service providers located in different states.41
Another step towards improving access to justice is enhancing existing law degrees with additional
topics. First, a module on access to justice can help students gain an objective picture of the realities of
the legal system. Currently, to do that one needs to conduct extensive research, including on statistics,
barriers and court practices—something law students and graduates are unlikely to undertake. Moreover,
little information is openly available in relation to lower courts, with information easiest to obtain in
relation to higher courts. This is paradoxical, because nearly all cases end in first-tier/lowest courts.
For example, around 95 per cent of criminal cases are completed in magistrates’ court.42 Introduction of
a module that covers the realities of the legal profession will help students to make more informed
decisions about their careers.

41
  See list at US Department of Justice, List of Pro Bono Legal Service Providers (2015), [Link]
pro-bono-legal-service-providers
42
  Courts and Tribunals Judiciary, Magistrates’ Court (2019), [Link]
court/magistrates-court/; Blake Morrison, Judgment Day, 4 April 2002, [Link]
andprobation
Selita 89

Second, law curriculum can be enhanced with a module on the origins of individual differences. Recent
findings from biology, genetics, neuroscience, sociology, psychology and other disciplines have provided
great insights into the origins of differences among people.43 Awareness of the complex interacting gene-
environment processes is a powerful tool for lawyers/judges. It can help in finding personalized approaches
to clients; taking into account learning disabilities, mental health problems and behavioural issues;
conducting meaningful self-evaluation, including sources of irritation and burnout; and avoiding widespread
attribution of errors, memory flaws, incorrect assumptions and harsh judgements.
One other powerful resource for change is the contribution of university-based and national student
associations. Many such associations exist across the word.44 Their work includes supporting aspiring
lawyers from diverse backgrounds, organizing careers events and providing publication opportunities.
Appendix provides details of work by one such organization—the UK Law and Society Association
(UKLSA)—as an example of activities designed to improve access to justice. If such efforts became
widespread, the current inefficiencies of the legal system would be widely recognized and the pressing
need for change would be felt amongst aspiring lawyers, the future workforce. This would lead to a point
of no return where significant changes would be necessary to satisfy the sense of justice and equality in
this new force. The majority of aspiring lawyers report as primary motivation their wish to do justice
(UKLSA Annual Equalities Conferences Polls). Grassroots movements foster inspiration for the best
aspects of the legal profession—providing justice for all—rather than simply following financially
satisfying careers. Combined effort of all stakeholders in the justice system could lead to significant
improvements in access to justice, long before greater economic equality is achieved.

Conclusions
Greater access to justice comes with immense benefits for societies, including improving social cohesion
and people’s well-being. While perfectly equal societies are neither possible nor desirable/fair,45 the
current level of inequality violates all principles of fairness and morality. The associated desperate state
of access to justice requires urgent action. Recent state budget cuts place restrictions on the required
major restructuring of the existing justice systems. However, if individuals and communities show
commitment to equality, governments would be encouraged to increase efforts to improve equality in
access to justice. Community-based solutions include changing of recruitment ethos by networks of
like-minded firms that are committed to increasing equality, widespread pro bono work by individual
lawyers and law businesses, and support offered by non-profit organizations.

43
  Behavioural Genetics for Education (Yulia Kovas, Sergey Malykh & Darya Gaysina eds., 2016); Eva Krapohl et al., The High
Heritability of Educational Achievement Reflects Many Genetically Influenced Traits, Not Just Intelligence, 111 Proc. Natl. Acad.
Sci. 15273–15278 (2014); Kaili Rimfeld et al., Genetics Affects Choice of Academic Subjects As Well As Achievement, 6 Sci. Rep.
26373 (2016); S. Selzam et al., Predicting Educational Achievement from DNA, 22 Mol. Psychiatry 267–272 (2017); Kaili
Rimfeld et al., Phenotypic and Genetic Evidence for a Unifactorial Structure of Spatial Abilities, 114 Proc. Natl. Acad. Sci.
2777–2782 (2017); Margherita Malanchini et al., The Genetic and Environmental Aetiology of Spatial, Mathematics and General
Anxiety, 7 Sci. Rep. 42218 (2017); Selita and Kovas, supra note 17.
44
  See lists for the USA and the UK: [Link], Worldwide directory of Law Schools: Schools of Law by country, [Link]
[Link]/[Link]; [Link], Student Law Societies, [Link]
LawSocieties
45
  Christina Starmans, Mark Sheskin & Paul Bloom, Why People Prefer Unequal Societies, 1 Nat. Hum. Behav. (2017), http://
[Link]/articles/s41562–017–0082
90 Asian Journal of Legal Education 6(1–2)

Declaration of Conflicting Interest

The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of
this article.

Funding
The author received no financial support for the research, authorship and/or publication of this article.

Appendix: Examples of Pro Bono Activities Provided by a National Association