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Research Report: Legal Australia-Wide Survey: Legal need in Australia
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Legal Australia-Wide Survey: Legal need in Australia  ( 2012 )  Cite this report

1. Review of legal needs surveys



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Outcome of legal problems


Manner of finalisation

Legal needs surveys have persuasively shown that there is no ‘rush to law’ (ABA 1994; Genn 1999). Typically, under one-tenth of legal problems are finalised via formal court or tribunal proceedings. A similar minority of problems are finalised via formal dispute resolution, complaint or mediation processes (Consortium 1994; Coumarelos et al. 2006; Dignan 2006; Genn 1999; Genn & Paterson 2001; HKDOJ 2008; Ignite Research 2006; Maxwell et al. 1999; Murayama 2007; Pleasence 2006; van Velthoven & ter Voert 2004). Generally, the most common manner of finalisation is via agreement with the other party (Dignan 2006; Genn 1999; Genn & Paterson 2001; Ignite Research 2006; Maxwell et al. 1999; Pleasence 2006; van Velthoven & ter Voert 2004). Problems are also finalised via third-party intervention, by the problem resolving itself and by the respondent failing or ceasing to pursue the matter (Currie 2007b; Dignan 2006; Ignite Research 2006; Pleasence 2006).

The manner of finalisation depends on both the type of legal problem and the strategy adopted in response to the legal problem. In particular, family problems are relatively more likely to conclude via formal legal proceedings, while consumer problems are relatively more likely to conclude via agreement (Dignan 2006; Genn 1999; Genn & Paterson 2001; Ignite Research 2006; Maxwell et al. 1999; Pleasence 2006; van Velthoven & ter Voert 2004).(29) Furthermore, problems involving advice have the highest rates of finalisation via formal legal proceedings, whereas problems handled alone have the highest rates of finalisation via agreement (Pleasence 2006). These findings may partly reflect the use of legal proceedings for more serious problems (Pleasence 2006). For example, family problems tend to be serious and often involve seeking advice, whereas consumer problems tend be less serious and are often handled without advice.

Finalisation rate

The duration of legal problems varies considerably, with some problems being finalised quickly and others enduring for many years. Pleasence et al. (2006) estimated that about half of all legal problems last less than three months, about one-fifth last more than one year, and a few per cent last five years or longer. Thus, surveys using short reference periods of one year are likely to capture a sizeable proportion of legal problems that are still ongoing at the time of interview.

Studies have varied considerably in their measurement of legal problem finalisation. While some studies have measured the duration of finalised problems, others have assessed the proportion of problems that were finalised or resolved at the time of interview. The definition of ‘finalised’ or ‘resolved’ problems has also varied. Resolved or finalised problems sometimes include abandoned problems (e.g. Coumarelos et al. 2006) and at other times exclude abandoned problems, including only problems where an outcome has been reached via agreement, adjudication or decision (e.g. Currie 2007b; Genn 1999; van Velthoven & ter Voert 2004).

The duration of legal problems or their finalisation rate has been related to the nature of the problem, its severity, the strategy used in response to the problem and various demographic characteristics.

Finalisation rate and different types of legal problems

A legal problem’s severity influences how quickly it is finalised. Pleasence (2006) showed that several different measures of problem severity were related to problem duration. Problem type is another major determinant of problem duration, according to both regression and other analysis. In particular, family problems have been consistently found to have longer durations or lower finalisation rates (Coumarelos et al. 2006; Currie 2007b; Genn 1999; Ignite Research 2006; Pleasence 2006). Again, the severity of family problems may partly explain their persistence. A few studies have also found that problems regarding neighbours or welfare benefits have longer durations or lower finalisation rates (Currie 2007b; Dignan 2006; Genn 1999; Genn & Paterson 2001; Pleasence 2006).

Finalisation rate and strategy

The strategy used in response to a legal problem is another factor that is related to problem duration or finalisation rate. Regressions from a few studies showed lower resolution rates for legal problems where no action was taken (Coumarelos et al. 2006; Genn 1999).(30) These regressions also revealed higher resolution rates when respondents handled the legal problem alone than when they sought advice. Pleasence (2006) similarly found shorter durations for legal problems that were handled alone, without seeking advice. In addition, he found that legal problems endured for even longer when multiple advisers were used. It has been argued that this link between problem duration and strategy may reflect problem severity. People may handle legal problems alone when they are less serious, less complex or easier to resolve, but seek advice for more serious problems that are complex and difficult to resolve (Coumarelos et al. 2006; Pleasence 2006). Consistent with this reasoning, Pleasence (2006) showed that when problems concerned money, the likelihood of seeking advice increased as the monetary amount increased.

Finalisation rate, demographics and disadvantage

A few regression analyses have shown a relationship between age and the finalisation or resolution rate of legal problems. Coumarelos et al. (2006) reported that 55–64 year olds had the lowest resolution rate in absolute terms, and Genn (1999) similarly found that respondents aged 45–54 or over 65 years had lower resolution rates.

Some studies have found a relationship between disadvantage and the resolution rate of legal problems. However, this relationship has not been heavily researched, and the results have been somewhat inconsistent. Genn’s (1999) regression analysis indicated that low resolution rates were linked to low education levels and low income. Using other analyses, a few studies have similarly reported a relationship between low resolution rates and low education levels, low income, unpaid work or welfare benefits (Maxwell et al. 1999; van Velthoven & ter Voert 2004). In contrast, disability was the only indicator of disadvantage linked to low resolution rates in the regression by Coumarelos et al. (2006) and demographic factors did not predict resolution rates in the regression by Genn and Paterson (2001).(31) Thus, the link between disadvantage and legal problem resolution is less well established than the associations of disadvantage with legal problem prevalence and the strategies used in response to legal problems.

Satisfactory outcome

Surveys have used various measures to examine the outcomes of legal problems. Most US surveys and the recent Australian and Northern Ireland surveys examined respondents’ satisfaction with the outcomes of legal problems (Coumarelos et al. 2006; Dignan 2006; LSC 2009). The UK and Dutch surveys asked whether respondents had secured their objectives, such as objectives related to money, property, employment, enforcing rights, punishing the other party and obtaining an apology from the other party (Genn 1999; Genn & Paterson 2001; Pleasence 2006; Pleasence et al. 2004c; van Velthoven & ter Voert 2004). The UK surveys also asked whether the outcomes were fair, as did the Canadian surveys (Currie 2007b; Genn 1999; Genn & Paterson 2001; Pleasence 2006). Survey measures of satisfactory outcomes rely on respondents’ perceptions and may not always be accurate. Their accuracy depends on whether respondents have realistic expectations about the probable outcomes, based on their legal knowledge and the extent to which they are fully informed about their legal rights and the available remedies.

Most usually, surveys have reported that the majority of respondents perceive the outcomes of legal problems as being satisfactory (Coumarelos et al. 2006; Currie 2007b; Dignan 2006; Genn 1999). However, some US surveys have reported that less than half of their disadvantaged respondents were satisfied with the outcomes of their legal problems (Dale 2005, 2007; GKA 2008; Task Force 2003).

Satisfactory outcome and different types of legal problems

Typically, the nature of the legal problem has been reported to influence the outcomes achieved (Coumarelos et al. 2006; Currie 2007b; Genn 1999; Genn & Paterson 2001). However, the specific types of legal problems associated with particular outcomes have been inconsistent across studies. In the UK, Genn (1999) and Genn and Paterson (2001) conducted regressions on both achieving objectives and perceived fairness of outcomes, with somewhat different results. Genn (1999) found that problem type strongly predicted achievement of objectives, but not perceived fairness of outcome. Divorce, employment, landlord and neighbours problems had lower rates of achieving objectives, while accidental injury, consumer, tribunal matters and work-related ill health had higher rates. Only employment problems were linked to (lower) perceived fairness. In contrast, Genn and Paterson (2001) found that problem type predicted perceived fairness of outcome, but not achievement of objectives. Divorce, employment, landlord and owned property problems had lower rates of perceived fairness, while consumer and neighbour problems had higher rates.

In Australia, a regression analysis by Coumarelos et al. (2006) revealed lower odds of satisfaction with outcomes for business, consumer, general crime and government problems, and higher odds for accident/injury and wills/estates problems.

Other analyses have also shown outcome to vary by the type of legal problem. In Canada, Currie (2007b) found lower rates of perceived fairness for the outcomes of discrimination and police action problems, and higher rates for debt, disability pension, immigration, powers of attorney, relationship breakdown, threat of legal action and wills problems. In New Zealand, Maxwell et al. (1999) found higher rates of satisfaction with the outcomes of property, separation/divorce and wills matters, and lower rates for debt problems. Some US surveys found higher rates of satisfaction with the outcomes of consumer, family and wills and estates problems, and lower rates for benefits, employment and immigration problems (ABA 1994; Dale 2005, 2007; GKA 2006, 2008; LSNJ 2009; Schulman 2003, 2007).

The variation between studies in the types of legal problems with satisfactory outcomes may partly be due to differences in the measurement of satisfactory outcomes and the coverage of different types of legal problems. Legal problem groupings may also be too broad to reveal reliable relationships.

Satisfactory outcome and strategy

There is considerable evidence that the strategy used in response to a legal problem influences the outcome. Studies have reported poorer outcomes when people take no action or fail to seek advice (ABA 1994; Coumarelos et al. 2006; Currie 2007b; Dale 2009; Dignan 2006; Maxwell et al. 1999; Miller & Srivastava 2002). For example, using regression analysis, Coumarelos et al. (2006) found the lowest rates of satisfaction with the outcomes of legal problems when respondents took no action (69%). They also found higher satisfaction with the outcomes when respondents handled the problem alone (85%) than when they sought help (81%). Pleasence (2006) similarly showed that different strategies in response to legal problems can produce different outcomes. Respondents who obtained advice or handled problems alone had higher rates of securing objectives than those who had tried but failed to obtain advice. Legal aid recipients were also more likely than others who obtained advice to secure their objectives in the 2001 CSJS, although this finding was not significant in 2004.

Regression analysis by Genn and Paterson (2001) found that the strategies used in response to legal problems were not related to the outcomes achieved.(32) However, Genn’s (1999) regression findings showed that people who sought advice from a lawyer were more likely to perceive the outcomes of their legal problems as fair but less likely to achieve their objectives. Although Genn did not provide an explanation for this result, it is possible that legal problems taken to lawyers tend to be more serious, making it harder to meet objectives. Lawyers may also provide people with more realistic expectations about the likely outcome, resulting in higher levels of perceived fairness.

Using other analyses, many of the US surveys also examined the relationship between the strategies adopted by respondents in response to legal problems and the outcomes they reported. Typically, respondents were more likely to report that the outcome was fair or that they were satisfied with the outcome when they consulted a lawyer than when they took another action or did nothing (e.g. ABA 1994; AFLSE 2007; CEALS 2001; Dale 2000, 2007, 2009; LSNJ 2009; Miller & Srivastava 2002). Some US studies have also found much higher rates of dissatisfaction with the outcome — more than double — when legal help was sought but not obtained (81%) as opposed to when legal help was actually obtained (35–39%; Dale 2005; Task Force 2003).

Satisfactory outcome, demographics and disadvantage

The few regression analyses that have examined the relationship of demographic factors to the outcomes of legal problems have produced inconsistent findings (Coumarelos et al. 2006; Genn 1999; Genn & Paterson 2001). Coumarelos et al. (2006) found that none of the demographic characteristics examined were significant predictors of satisfaction with the outcomes of legal problems, whereas the nature of the problem and the action strategy were both significant.

In the UK, Genn’s (1999) regression results indicated that employment status, gender and income were related both to achieving objectives and to perceived fairness of outcomes, whereas age, education and social class were related only to achieving objectives. Furthermore, the direction of the relationship for gender was inconsistent, with women being less likely to achieve objectives but more likely to perceive outcomes as fair. The direction of the relationship for employment status was also inconsistent. Similar regressions by Genn and Paterson (2001) resulted in none of the demographic variables being significant.(33)

Using other types of analyses, a few US studies have found lower rates of satisfaction with the outcomes of legal problems for respondents on lower incomes (ABA 1994; LSNJ 2009).

Thus, the evidence suggests that the nature of legal problems and the strategies used in response to legal problems, rather than demographic characteristics or disadvantage, are the main determinants of the outcomes achieved for legal problems. Any variation in the outcomes of legal problems between demographic groups may largely be explained in terms of the nature of the legal problems they face (e.g. the severity of their problems) and their responses to these problems.

Outcome and legal capability

The recent analyses of CSJS data by Balmer et al. (2010) suggested that respondents’ legal knowledge can influence the outcomes they achieve for their legal problems. For respondents who obtained advice, knowledge of legal rights made little difference to securing objectives. In contrast, for respondents who handled problems alone, legal knowledge resulted in securing objectives more often. A similar picture was apparent when respondents were asked whether they regretted the strategy they had adopted in response to legal problems. Again, a lack of legal knowledge made little difference to regret among those who had obtained advice but was linked to higher levels of regret among those who had handled problems alone, did nothing or tried but failed to obtain advice. Balmer et al. concluded that obtaining help from an adviser with suitable expertise negates the importance of individuals having legal knowledge themselves. However, people’s legal knowledge appears to be a critical factor in determining the outcomes of legal problems for all other strategies, with far superior outcomes being achieved by respondents with legal knowledge in these cases.

Outcome and policy

The finding that ignoring legal problems results in poorer outcomes underlines the importance of empowering people to act to resolve their legal problems. This finding adds further weight to the argument that legal information and education strategies could play a critical role in mobilising people to resolve their legal problems, by helping them to identify their legal rights and to locate relevant advice services.

The finding that many people who handle their legal problems themselves achieve satisfactory outcomes suggests that promoting self-help legal strategies may be effective for some sections of the community. In fact, there has been a trend towards ‘unbundling’ legal services into discrete components so that clients can choose self-help strategies for tasks they can easily handle alone but still obtain legal assistance for other, more difficult tasks (cf. Giddings & Robertson 2003b). However, the evidence suggests that self-help strategies are not suitable in all situations. Their utility depends on both the nature of the legal tasks and the legal capability of the individual (cf. ABA SCDLS 2002; Balmer et al. 2010; Barendrecht 2011; Giddings & Robertson 2001, 2002, 2003a, 2003b; Hunter, Banks & Giddings 2007, 2009; Lawler, Giddings & Robertson 2009; MacDermott 2003; Shirvington 2003). Non-routine legal tasks involving the exercise of substantial discretions are not well suited to self-help (Barendrecht 2011; Giddings & Robertson 2003b; Lawler et al. 2009). Furthermore, it has been argued that self-help strategies should not be seen as stand-alone services that can universally replace other legal services and can always provide complete solutions. Rather, self-help may sometimes be more effective as a component of a suite of legal services or as a supplement to other legal services (see Giddings & Robertson 2001, 2003a; Hunter et al. 2009; Lawler et al. 2009).

Self-help strategies also appear to be more viable options for people with high levels of legal capability, such as more educated, articulate people. Disadvantaged people often fall outside this group (Balmer et al. 2010; Giddings & Robertson 2003b; Hunter et al. 2007, 2009; Lawler et al. 2009). In particular, self-help strategies may be ill-suited for people with poor legal knowledge, people with limited literacy, language and communication skills, and people with multiple or complex legal problems (Genn & Paterson 2001; Lawler et al. 2009; Scott 2000).

Nonetheless, given that people who handle legal problems alone achieve superior outcomes if they have good legal knowledge, the use of targeted initiatives to increase this capability within relevant groups has been proposed (Balmer et al. 2010). People with high legal capability may benefit from ‘state-of-the-art’ legal information and education initiatives which further enhance their ability to solve their problems alone (Balmer et al. 2010; Barendrecht 2011). However, such initiatives may be of little value to people with low legal capability. Initiatives that signpost advice services may be far more relevant for these people, especially given that expert advice appears to negate the effect of poor legal knowledge and may be critical for some low-skilled people (Balmer et al. 2010; Barendrecht 2011). Improved coordination among legal and non-legal services is also likely to assist people with capacity issues to locate relevant advice efficiently and avoid referral fatigue (Pleasence 2006).

29. Another consistent finding is that personal injury problems tend to be finalised as a result of the respondent failing to pursue the matter or deciding not to pursue the matter further (Dignan 2006; Pleasence 2006; van Velthoven & ter Voert 2004).

30. Van Velthoven and ter Voert (2004) similarly reported lower resolution rates when no action was taken.

31. However, Genn and Paterson (2001) noted that this regression result may have been due to the small numbers, given that bivariate analysis revealed a link between low educational attainment and low resolution.

32. The authors noted that the small sample size for Scotland may have contributed to fewer significant results for Scotland than for England and Wales.

33. As noted earlier, the authors suggested that small numbers may have militated against significant findings.

  


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Coumarelos, C, Macourt, D, People, J, MacDonald, HM, Wei, Z, Iriana, R & Ramsey, S 2012, Legal Australia-Wide Survey: legal need in Australia, Law and Justice Foundation of NSW, Sydney