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Ch 1. Introduction
Background
As noted by a number of authors (e.g. Genn 1999; Pleasence, Buck, Balmer, O’Grady, Genn & Smith 2004b), the issues of access to justice and legal need permeate everyday life. They relate to common problems that people face as members of civil society in many aspects of their lives, such as problems with consumer products, debts, education, employment, health, housing, welfare benefits, divorce and child support. It has been argued that such problems should not only be the concern of lawyers but should be of general concern given that they relate broadly to basic physical and social well-being (Pleasence et al. 2004b).
The ubiquitous nature and pervasiveness of legal needs underline the importance of having a legal system that recognises and resolves these issues quickly and effectively. However, in order to evaluate the adequacy of existing legal services or new policies regarding legal services, a thorough understanding of the nature and number of legal problems people experience, and their reactions to these problems, is a prerequisite.
Empirical research concerning access to justice and legal need can be traced back to the 1930s in the United States. Since that time, such research has been conducted in many countries, including Australia, the United Kingdom, New Zealand, the Netherlands and Canada. However, prior to the 1990s, the study of legal needs proceeded largely in the absence of reliable quantitative data about the incidence of different types of legal needs, the strategies employed to address legal needs, the sources approached for assistance in relation to legal needs, and the extent to which legal needs are satisfactorily resolved. Furthermore, earlier quantitative studies tended to employ narrow definitions of legal needs or to focus predominantly on legal issues usually addressed by the formal legal process (Genn 1999; Pleasence et al. 2004b).
In the last decade or so, a number of significant large-scale survey studies measuring the incidence of, response to, and outcome of a wide range of legal needs were conducted overseas, notably in the United States (e.g. American Bar Association (ABA) 1994), the United Kingdom (e.g. Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b) and New Zealand (Maxwell, Smith, Shepherd & Morris 1999). In comparison to overseas, the quantitative study of legal needs in Australia has lagged behind. Although some survey studies into legal issues have been conducted in Australia (e.g. Cass & Sackville 1975; Fishwick 1992; Rush Social Research and John Walker Consulting Services (Rush) 1996; Rush Social Research Agency (Rush) 1999), large-scale surveys focusing on the incidence and response to a wide range of legal needs have not been conducted in recent years.
The broad aim of the present study was to provide a quantitative assessment of the legal needs of disadvantaged communities in New South Wales (NSW). This study was the most comprehensive quantitative investigation of legal needs undertaken in Australia for about 30 years. It involved conducting a legal needs survey of residents in six disadvantaged local government areas (LGAs) across NSW, including urban, provincial and rural/remote areas. Within these disadvantaged communities, the study examined:
- the incidence of legal issues
- individuals’ responses to legal issues, including the use of legal services
- satisfaction with any assistance received
- the outcome of legal issues
- satisfaction with the outcome of legal issues.
It is envisaged that the study will contribute to the factual base necessary to inform debate and policy choices concerning the legal needs of disadvantaged people in NSW. It has the potential not only to provide valuable information about existing legal services, but also to inform decisions about additional legal services that may be beneficial in the six regions examined. As stated by the Honourable Justice Ronald Sackville of the Federal Court of Australia:
What is needed for worthwhile policy development is empirical information about the types of problems encountered by disadvantaged people, how they perceive and address those problems and their degree of satisfaction with the outcomes. The Foundation’s research program addresses these issues and thereby provides a solid foundation for making worthwhile changes to the justice system (Law and Justice Foundation of NSW Bulletin, Autumn 2004, p. 4).
The literature review below concentrates on the major quantitative survey studies of legal needs conducted overseas and in Australia. Because these studies not only encompassed different jurisdictions, but also a number of other methodological differences, the review first outlines some of the major methodological differences and their likely impact on the results. The review then highlights the major findings with respect to the incidence of legal needs, the response to legal needs and the outcome of legal needs.
Methodology of legal needs studies
There has been a lack of harmonisation in the survey methodologies employed to measure legal needs around the world. This lack of international harmonisation severely limits the ability to compare the findings from different surveys. For example, it is difficult to reach firm conclusions about the relative incidence and resolution rates of legal issues in different countries, jurisdictions and populations. The types of methodological differences across survey studies of legal needs and their consequences for interpreting survey findings are discussed below.
Jurisdiction
The conduct of legal needs surveys in different countries means that legal needs are being assessed within different systems of law and different networks of legal services. The number and type of legal issues that people typically encounter in a given jurisdiction is likely to be influenced by the adequacy of that jurisdiction’s law in relation to different legal rights.
Similarly, people’s responses to legal issues, and the outcome of legal issues, are likely to be influenced by the mechanisms available for legal resolution. There are differences between jurisdictions in the types of legal services that are available (e.g. legal advice services, legal aid, courts, tribunals, dispute resolution agencies), and in the efficiency and effectiveness with which these services are able to resolve legal issues. There are also differences within jurisdictions in the extent to which effective non-legal resolution mechanisms are available.
The likely impact of jurisdictional differences on the incidence and handling of legal needs highlights the importance of measuring legal need within the context of each jurisdiction of interest—including within the Australian context.
Population type
The study of legal needs in different countries also means that inherent differences between populations may come into play. For example, there may be significant demographic, geographical, cultural and attitudinal differences that reflect different life circumstances and impact on the propensity to experience particular types of legal problems or to respond in particular ways to legal issues. Such differences between the populations studied reduce the comparability of survey findings.
A major difference between survey studies of legal needs is that some assess legal needs in general populations, whereas others address legal needs in disadvantaged populations. As will be detailed later, there is accumulating evidence that socioeconomic disadvantage is associated with an increased vulnerability to legal problems (e.g. Genn & Paterson 2001; Pleasence et al. 2004b), so higher incidence rates might be expected from studies examining disadvantaged rather than general population samples. Furthermore, disadvantage has been argued to affect access to justice once legal problems are experienced, through a variety of mechanisms, including direct exclusion, direct and indirect discrimination, non-equivalent legal rights, inability to enforce legal rights, ignorance of the law and legal processes, lack of communication skills, and lack of appropriate advocacy and support services (Schetzer, Mullins & Buonamano 2002). Thus, differences between general and disadvantaged populations might also be expected in the resolution of legal events.
Definition and measurement of disadvantage
It cannot be assumed that all studies examining the legal needs of disadvantaged populations are assessing similar populations. A variety of sociodemographic groups have been identified in the literature as being relatively more vulnerable to suffering disadvantage. These groups include women, young people, older people, Indigenous people, people from a non-English speaking or different cultural background, people with a disability, people with low or no income, people with a low level of education or literacy, people living in institutions (e.g. prisons, juvenile correction centres, immigration detention centres, nursing homes), and homosexual and transgender individuals (see Schetzer et al. 2002). The type and level of disadvantage experienced by these various sociodemographic groups may be different (Australian Bureau of Statistics (ABS) 2004c), and legal needs survey studies of disadvantaged populations do not necessarily assess the same mix of these groups.
Furthermore, there is a lack of consensus concerning the definition and measurement of socioeconomic disadvantage (see ABS 2004c; Ainley, Graetz, Long & Batten 1995; Harding, Lloyd & Greenwell 2001; Marks, McMillan, Jones & Ainley 2000). This lack of consensus restricts the comparability of legal needs surveys in different disadvantaged samples. In broad terms, socioeconomic disadvantage is construed as some sort of deprivation, hardship or inequality with regard to a person’s standard of living, well-being or other life opportunities or outcomes, resulting from the person’s social or economic status (ABS 2004c; Ainley et al. 1995; Marks et al. 2000).
Socioeconomic status and socioeconomic disadvantage are usually portrayed as multidimensional concepts. However, there is little consensus about the definitive set of indicators that should be used to measure the different dimensions of socioeconomic status or the various outcomes that indicate some aspect of socioeconomic disadvantage (see ABS 2004c; Ainley et al. 1995; Marks et al. 2000).1 While income, educational attainment and occupational status are usually seen as key components of socioeconomic status, and low levels of these variables are usually viewed as indicating socioeconomic disadvantage, there is little agreement about what other variables should be considered (ABS 2003b; Ainley et al. 1995). A wide range of variables have been inconsistently used across studies to measure socioeconomic disadvantage, including poor language proficiency, belonging to a minority ethnic group, Indigenous background, single-parent or blended family structure, family breakdown, poor health, poor housing, disadvantageous geographical location, residential mobility, crime victimisation and transport difficulties (see ABS 2003b, 2004c; Ainley et al. 1995; Marks et al. 2000; Vinson 1999).
Furthermore, consensus is also lacking about what levels of the key indicators of socioeconomic status constitute disadvantage. In fact, there has even been protracted disagreement about the measurement of the single most widely used indicator of socioeconomic disadvantage, namely poverty (Harding et al. 2001; Saunders 2003). For example, the poverty line has been drawn at varying proportions of average or median incomes (Harding et al. 2001). In addition, poverty measures have been based on different units of income including personal, family and household income, and on different indicators of standard of living, including disposable income and disposable income after housing costs have been met (Harding et al. 2001). It has been readily demonstrated that estimates of the number of people in poverty are notoriously sensitive to the specific index used to measure poverty (Harding et al. 2001; Saunders 2003).
It has also been argued that the concept of poverty is too narrow as a framework for disadvantage, as exemplified by the frequent lack of overlap between measures of income poverty and a range of other indicators of social inequality (Arthurson & Jacobs 2003; Saunders 2003).
In recent years, there has been growing interest in the concept of social exclusion as a broader framework for understanding socioeconomic disadvantage (ABS 2004c; Saunders 2003). In general terms, social exclusion refers to a lack of participation in mainstream societal activities and a lack of access to standards of living, rights, goods and services enjoyed by the majority of society (Arthurson & Jacobs 2003). Although a precise, universally accepted definition of social exclusion has also remained elusive, it has been argued that the concept of social exclusion has considerable theoretical import (Arthurson & Jacobs 2003; Saunders 2003). Social exclusion is purported to highlight the multidimensional nature of disadvantage, including the range of causes of disadvantage, the different dimensions of society where disadvantage is manifest (e.g. social, economic, legal/political and cultural/moral dimensions) and the variety of outcomes that constitute exclusion. Social exclusion is also argued to focus attention on the dynamic nature of disadvantage, suggesting that disadvantage is not a static, permanent nor pervasive condition, but that people can move between inclusion and exclusion at different points in time and with respect to different aspects of their lives (Arthurson & Jacobs 2003; Saunders 2003). Furthermore, the notion of social exclusion has stimulated considerable debate about the extent to which disadvantaged individuals are responsible for their predicament versus the extent to which outside agents or societal structures shape the experience of inequality (Arthurson & Jacobs 2003; Saunders 2003).
Many past legal needs surveys conducted in disadvantaged samples have relied on some type of income-based measure of poverty or financial hardship as the single criterion for selecting interviewees (e.g. ABA 1994; Dale 2000; Rush 1999; Schulman, Ronca & Bucuvalas Inc. 2003; Spangenberg Group 1989; Task Force on Civil Equal Justice Funding (Task Force) 2003). However, as already noted, low income does not always correlate highly with other measures of disadvantage. Other studies have used multiple indicators to select disadvantaged areas from which to draw their sample (e.g. Cass & Sackville 1975), while still others have examined specific disadvantaged groups such as the homeless or those in temporary housing accommodation (e.g. Dale 2000; Pleasence et al. 2004b). The differences in the measurement of disadvantage need to be kept in mind when comparing the results of legal needs surveys conducted in different disadvantaged populations.
Measurement of legal needs
Differences in the measurement of legal needs across studies are also likely to influence the types of legal needs identified, the incidence rates obtained, the reported reactions to legal needs and the resolution rates obtained. For example, studies assessing legal needs have measured the incidence of legal events over reference periods of different lengths, used different types of survey methods, used different definitions of legal needs and measured various key variables in different ways. These are discussed in turn below.
Reference period
The reference periods used to measure the incidence and resolution of legal needs have varied from 12 months in some of the recent surveys in the United States (e.g. ABA 1994; Schulman et al. 2003) to five and a half years in the United Kingdom (Genn 1999; Genn & Paterson 2001) to the respondent’s lifetime (e.g. Curran 1977). Clearly, the longer the time period, the greater the opportunity for legal events to be experienced, and the greater the opportunity for events that are experienced to be resolved. Thus, other things being equal, longer reference periods tend to result in higher incidence and resolution rates.
It is also worth noting that there are different advantages and disadvantages associated with using reference periods of different lengths. A disadvantage of a short time period is that there is only limited opportunity to detect infrequently or seasonally occurring legal problem types (Pleasence et al. 2004b). However, there are also disadvantages to using long reference periods in retrospective surveys where individuals are asked to recall past events, such as past legal events. For example, longer reference periods for recall are associated with increased risk of inaccurate or decayed memory of events (e.g. Biemer, Groves, Lyberg, Mathiowetz & Sudman 1991; Rubin 1982; Sudman & Bradburn 1973).2
Survey method
The advantage of using the survey method to measure legal events is that it has the potential to measure both expressed and unexpressed legal need. That is, the survey method can be used to provide information not only about legal events that result in the use of legal services (expressed need), but also about legal events that do not result in legal service provision (unexpressed or latent need). For example, surveys can provide information on legal needs that are ignored and legal needs that are resolved outside the traditional sphere of legal services. As a result, compared with data on legal service use (e.g. Scott, Eyland, Gray, Zhou & Coumarelos 2004), survey data have the potential to provide a more comprehensive picture of legal need.
However, it is worth noting that surveys are subject to a variety of measurement errors and limitations which should be kept in mind when considering survey findings. For example, as already mentioned, retrospective surveys are subject to a variety of recall errors (Biemer et al. 1991; Sudman & Bradburn 1973). Surveys are also subject to various forms of response bias, such as the tendency to offer socially desirable answers to threatening or sensitive questions (e.g. Biemer et al. 1991; Oppenheim 1992; Presser, Rothgeb, Couper, Lessler, Martin, Martin & Singer 2004). Furthermore, the usefulness of survey findings depends on the appropriateness of factors such as survey design, sampling strategies and data collection strategies (e.g. Biemer et al. 1991; Oppenheim 1992; Scheaffer, Mendenhall & Ott 1986).
In terms of sampling strategies, it is worth noting that not all the surveys of legal needs used random probability sampling. The advantage of large-scale random sampling is that the findings obtained for the sample are generalisable to the population from which the sample was drawn. Findings of surveys using non-random sampling techniques should be treated more tentatively. It should be noted, however, that even if a sample is randomly drawn, a poor response rate can result in a biased sample. Some survey studies of legal needs report low response rates of below 50 per cent (e.g. Schulman et al. 2003; Task Force 2003), while others fail to report response rates (e.g. Cass & Sackville 1975; Dale 2000; National Consumer Council (NCC) 1995; Rush 1999; Spangenberg Group 1989). Furthermore, given that there is no standard way of computing response rate (Biemer & Lyberg 2003; Groves 1989), it is sometimes difficult to compare response rates across studies, particularly given that some studies fail to adequately explain how the reported response rates were calculated (e.g. Curran 1977).
In addition, past studies have used different modes of data collection. Some studies used telephone interviews while others used face-to-face interviews. Face-to-face interviews tend to be more conducive to establishing trust and rapport, and tend to provide greater opportunity for longer and more in-depth probing (Biemer et al. 1991). As a result, face-to-face interviews are likely to be more conducive to assessing a large number of legal needs. Telephone interviews have the advantage of being less labour intensive, and hence, less expensive (Biemer et al. 1991). It has also been suggested that the greater anonymity of the telephone interview compared with the face-to-face interview may improve reporting on sensitive topics (Biemer et al. 1991; Oppenheim 1992).
The unit of measurement has also varied across studies, with some studies examining the legal issues of individuals (e.g. Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b) and other studies examining legal issues within households (e.g. ABA 1994; Schulman et al. 2003). Examining problems faced by all members within a household rather than problems faced only by the individual being surveyed is likely to increase reported incidence rates.
Concept of legal needs
It is worth noting that the study of legal needs has largely been isolated from the study of the broader array of human needs that drive human behaviour. The broader concept of human needs, and the forces affecting the emergence and ultimate satisfaction of human needs, are well charted in other disciplines and guide much of the psychosocial literature on consumer behaviour, consumer satisfaction, services marketing and communications theory (e.g. Hanna 1980; Maslow 1970; Sheth, Mittal & Newman 1999). Although examining the concept of legal needs within the broader psychosocial context has the potential to deepen our understanding of legal needs and legal service provision, such an exercise is beyond the scope of the present study.
Within the socio-legal literature, there appears to be no consensus about the precise meaning of the term ‘legal needs’. This term is often used without explicit definition and is often used interchangeably with the term ‘access to justice’ (Schetzer et al. 2002). However, there is a tendency towards using ‘legal needs’ to refer to rights within the existing legal system, and using ‘access to justice’ more broadly to refer to the mechanisms for obtaining justice, either within the existing legal system or via reform to the existing legal system (Schetzer et al. 2002).
While there is general agreement that actively seeking a legal resolution to a problem reflects the existence of some form of legal need, there is little consensus about what else indicates the existence of legal need. Some of the earlier studies used the narrow approach of focusing on legal problems typically taken to legal practitioners (e.g. Griffiths 1977; Royal Commission on Legal Services 1979). However, such studies have been criticised for being unable to provide information on legal issues that may be dealt with in other ways or that remain unresolved (Genn 1999). Furthermore, such a narrow approach does not acknowledge that, in some instances, failing to seek a legal resolution does not necessarily imply the absence of legal need, but may merely indicate:
- the individual’s lack of awareness that the issue is a legal one or that the issue has a potential legal resolution
- failings in the legal system (e.g. barriers to efficient, inexpensive legal resolution)
- the existence of other, non-legal means for resolution (Schetzer et al. 2002).
Genn (1999) adopts a more sophisticated approach that does not rely on respondents’ legal knowledge for the identification of legal problems. Genn’s (1999) study measures ‘justiciable events’ where a justiciable event is:
a matter … which raised legal issues, whether or not it was recognised by the respondent as being ‘legal’ and whether or not any action taken … involved … the civil justice system (p. 12).
The advantage of this approach is that it minimises the under-reporting of legal issues by allowing for the inclusion of legal issues that are handled outside the justice system, legal issues that are not always recognised as such, and legal issues that are ignored or remain unresolved.
Studies have also differed in terms of the number of legal problems they attempt to measure. Some studies assessed fewer than 30 legal needs or events (e.g. Cass & Sackville 1975; Curran 1977; Fishwick 1992), whereas others assessed 60 or more (e.g. ABA 1994; Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b). Not only do the number and type of legal issues examined vary, but the definitions of a given legal issue are not always the same. Furthermore, the types of legal issues included under categories with similar names are sometimes different.
Rush (1999) argued that many studies also tend to focus too narrowly on so-called civil legal issues and exclude criminal and family issues. They argue that civil, criminal and family legal issues should be measured and differentiated from one another because they tend to be related to different demographic profiles.
Clearly, the reported incidence and resolution rates are likely to be affected by the number, definition, type and range of legal needs examined. For example, reported incidence rates are likely to be increased by the inclusion of a broad rather than narrow range of legal needs, and by the inclusion of frequently occurring rather than relatively rare legal events. The inclusion of legal problems that are complicated or are difficult or time-consuming to resolve is likely to decrease reported resolution rates.
Measurement of other key variables
There also appears to be little consensus about the definition and measurement of other key variables that are often assessed by survey studies of legal needs, such as the response to legal needs, the outcome of legal needs, satisfaction with legal services and satisfaction with the outcome of legal needs. Again, such differences need to be considered when interpreting the findings of different studies.
While some studies focus on legal issues where individuals consult a legal practitioner or a particular type of legal service agency (e.g. Cass & Sackville 1975; Curran 1977; Dale 2000; Fishwick 1992; Rush 1999; Schulman et al. 2003), other studies more broadly examine both legal and non-legal sources of advice in response to legal issues (e.g. ABA 1994; Genn 1999; Genn & Paterson 2001; Law and Justice Foundation of NSW (LJF) 2003; Maxwell et al. 1999; Pleasence et al. 2004b).
Studies also differ in the particular outcomes of legal issues that they measure. For example, resolution via agreement between the parties, adjudication, legal proceedings, or abandonment have been inconsistently assessed across different studies (see ABA 1994; Genn 1999; LJF 2003; Maxwell et al. 1999; NCC 1995; Pleasence et al. 2004b).
There have also been differences between studies in how they measure individuals’ perceptions of legal assistance and outcomes. For example, while some studies have focused on the perceived satisfaction with the outcome of events (ABA 1994; Dale 2000; LJF 2003; Schulman et al. 2003; Task Force 2003), others have focused on the achievement of various objectives (Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b). The concept of satisfaction has been the focus of considerable attention in the psychosocial literature, where a diversity of definitions and measurements of satisfaction have emerged. While there is a lack of consensus about the precise meaning and measurement of satisfaction, there is some agreement that satisfaction is a complex response which is shaped by the fulfillment of individual needs as well as by the fulfillment of expectations about quality and fairness (Oliver 1997). It should be kept in mind that obtained satisfaction rates are likely to be influenced to some extent by the precise definitions and measurements of satisfaction used.
Summary of legal needs survey studies
Table 1.1 summarises the methodological features of the major recent legal needs survey studies, including whether a general or disadvantaged population sample was surveyed, the type of survey used, the number of legal issues assessed and the length of the reference period used. The main findings from these survey studies are reviewed below. The findings on the incidence of legal needs are presented first, followed by the findings on response to legal needs and then the findings on the outcome of legal needs.
Table 1.1: An overview of major legal needs surveys
| Study | Place and time of survey | Sample description | Data collection method | Legal issues and categories | Reference period |
| United States | |||||
| Curran (1977) | US
1973–1974 | w general population random sample
w 2064 adults 18+ years | interviews | 29 problems | lifetime |
| Spangenberg Group (1989)
(pilot for ABA 1994) | US (except Alaska, Hawaii) 1988 | w disadvantaged population random sample
w 500 low-income households | telephone interviews | 34 problems in
10 categories | 1 year |
| American Bar Association
(ABA 1994) | US
1993 | w general population random sample and disadvantaged population sample
w 3087 low- and moderate-income households | telephone and
in-person nterviews | 67 questions in
17 categories | 1 year |
| Dale (2000) | Oregon
1999–2000 | w disadvantaged population quota sample
w 1011 low- and moderate-income households | in-person interviews | 97 questions in
19 categories | 1 year |
| Schulman et al. (2003) | Massachusetts
2002 | w 2000 low-income households | telephone interviews | 104 situations in
14 categories | 1 year |
| Task Force on Civil Equal Justice Funding (Task Force 2003) | Washington state 2002–2003 | w disadvantaged population quota sample of 1333 low-income households in 15 demographic groups and
w disadvantaged population random sample of 810 low- & moderate-income households | in-person interviews
telephone interviews | 56 civil legal issues
in 17 categories | 1 year |
| United Kingdom | |||||
| National Consumer Council (NCC 1995) | England and Wales
1995 | w general population random sample
w 8358 people aged 16+ years | in-person interviews | 13 types of serious
civil dispute | 3 years |
| Genn (1999) | England and Wales
1997–1998 | w general population random sample
w 4125 adults 18+ years | in-person interviews | 60 events in
13 categories | 5.5 years |
| Genn and Paterson (2001) | Scotland
1998 | w general population random sample
w 2684 adults 18+ years | in-person interviews | 60 events in
13 categories | 5.5 years |
| Pleasence et al. (2004b) | England and Wales
2001 | w general population random sample
w 5611 adults 18+ years | in-person interviews | 78 problems in
18 categories | 3.5 years |
| New Zealand | |||||
| Maxwell et al. (1999) | New Zealand
1997 | w general population multi-stage stratified random probability sample
w 5431 people 15+ years | in-person interviews | 27 problems | 3 years |
| Australia | |||||
| Cass and Sackville (1975) | Sydney
1973 | w disadvantaged sample from 3 Sydney areas with high poverty indicators
w 548 adults 18+ years | in-person interviews | 24 civil and family issues
in 6 categories | 5 years |
| Fishwick (1992) | NSW
1990 | w general population random sample
w approx. 0.5% of NSW population 15+ years (0.5% of 4 480 800 persons) | in-person interviews | 11 legal events | 1 year |
| Rush Social Research
Agency (Rush 1999) | Australia
1998 | w disadvantaged population quota sample
w 2229 adults 18+ years from low-income households | telephone interviews | Commonwealth law matters | 2–3 years |
| Law and Justice Foundation of NSW (LJF 2003)
(pilot for present study) | Bega Valley LGA, NSW 2002 | w disadvantaged population random sample
w 306 people 15+ years from Bega Valley LGA | in-person and telephone interviews | 84 events in
17 categories | 1 year |
Incidence of legal events
United States surveys
The move away from narrowly focusing on issues dealt with by private lawyers began in the 1970s in the United States with Curran’s (1977) monumental study for the American Bar Association (ABA) and American Bar Foundation. The study involved a large-scale survey across the United States of a representative general population sample of 2064 adults. It examined the circumstances under which individuals sought the advice or assistance of lawyers, and attempted to identify the factors associated with seeking such advice or assistance. The survey asked participants whether they had experienced a wide range of legal issues over the course of their lifetime, including real property, employment, consumer matters, as well as problems with governmental agencies. They were also asked what they did about the legal issues they had experienced.
The survey found that the mean number of problems experienced per respondent’s lifetime was 4.8. However, there was wide variation among respondents, with 1 per cent of respondents reporting more than 20 legal problems in their lifetime, and 8 per cent reporting no legal problems in their lifetime (Curran 1977). Curran found that the incidence of problems depended on the type of problem, with issues relating to torts (9%) and real property (9%) having the highest yearly incidence.
The Spangenberg Group (1989) conducted a telephone survey of 500 low-income households across the United States drawn from a list of randomly generated telephone numbers.3 This study was a pilot study for a large-scale survey reported by the ABA in 1994. The Spangenberg Group study examined the incidence of legal need in the preceding year and the extent to which respondents had received legal assistance for their legal needs. The survey was restricted to 10 categories of civil problems, consisting of 34 civil problems in all. The authors found that almost 43 per cent of the 500 households reported at least one civil legal problem during the past year, with each household reporting an average of 3.2 problems during that time.
The ABA (1994) study based on the Spangenberg Group (1989) pilot involved more than 3000 interviews among low- and moderate-income households across the United States.4 The study involved a general population sample randomly drawn from all households with telephones, a sample of additional low-income households and a sample of households without telephones. The study examined the incidence and prevalence of legal needs in the households during the calendar year 1992. The survey covered a broad range of 17 problem categories, including 67 situations in all, and extending to concerns about the community/regional environment and problems connected with small businesses. About half of the households surveyed reported experiencing one or more legal issues during 1992. The most common problems experienced related to housing, real property, personal finance and consumer issues.
Dale (2000) reports on a legal needs survey conducted in Oregon, which used similar questions to the ABA (1994) survey. The study surveyed individuals from 1011 low- and moderate-income households.5 Quota sampling was used to ensure that different sub-sections of the population living near the poverty level were adequately represented. Dale (2000) assessed the incidence of 19 categories of legal needs, comprising 97 different situations.6 The incidence of legal needs in the 12 months prior to the survey varied considerably by category type, with the following incidence rates being reported for each category: housing (32%), all discrimination (32%), public services (31%), family (27%), employment (27%), consumer (25%), health (21%), torts and insurance (20%), public benefits (19%), wills and estates (18%), immigration (10%), farm worker statutes (10%), utilities (9%), education (8%), elder abuse (7%), discrimination (5%), taxes (5%), institutional (5%) and Native American (4%).
More recently Schulman et al. (2003) report on a survey conducted in Massachusetts, which was also modelled on the ABA (1994) survey. The Schulman et al. survey assessed the legal needs of a representative state-wide sample of people eligible for legal aid. It involved telephone interviews with people from 1800 low-income households that were automatically eligible for legal aid and 200 other low-income households that were eligible for legal aid under certain circumstances.7 The survey examined a broad range of civil legal needs experienced by the households in the previous 12 months, assessing 104 specific situations which were collapsed into 30 categories and then further collapsed into 14 categories.8 The study found that, among households that were automatically eligible for legal aid, two in three reported some type of legal need during the previous 12 months, with the average number of legal needs per household being 2.4. The most frequently reported categories of legal problem were housing (26% of all legal problems), health (12%), municipal (12%), consumer (11%), public benefits (10%), employment (9%) and family (6%).
Another recent legal needs study drawing on the ABA (1994) survey was conducted in Washington state by the Task Force (2003). The study involved both a field survey of 1333 low-income households and a telephone survey of 810 low- and moderate-income households.9 While the telephone survey used random sampling, the field survey used quota sampling to survey 15 demographic groups that can be difficult to reach through telephone surveys, such as the homeless, people with a mental or physical disability, domestic abuse survivors, migrants and Native Americans. These demographic groups were identified for in-depth study because it was thought that they may have unique legal and access to justice problems based on their status or identity.
The first section of the field survey used by the Task Force (2003) measured the incidence of 56 different civil legal needs, while a supplementary section obtained in-depth information about the civil legal needs reported, such as actions taken, obstacles faced in accessing the justice system and the effectiveness of outcomes. The telephone survey also measured the incidence of civil legal needs, using virtually identical questions to those used in the field survey, but did not ask the supplementary questions. The field survey found that approximately 87 per cent of low-income households experienced one or more civil legal problems in the previous 12 months, while the corresponding proportion for the telephone survey was around three-quarters. The 56 different legal issues were grouped into 17 legal problem areas, and both the field and telephone surveys found that the most prevalent problem areas related to housing, family, consumer and employment issues (Task Force 2003).
United Kingdom surveys
In England and Wales, the NCC (1995) conducted a random sample survey of 8358 members of the general public aged 16 years or over. It examined the incidence of ‘serious disputes’ involving 13 types of civil problems during the previous three years, as well the use of legal and other services to resolve these disputes and the outcomes of these disputes.10 The NCC study estimated that 13 per cent of the population had suffered a serious dispute in the previous three years in relation to one or more of the 13 types of civil problems, with the most common disputes reported concerning damage to vehicles (18%), divorce (10%), personal injury (10%), unpaid debts (9%) and faulty goods (8%). However, as Genn (1999) notes, the relatively low incidence is likely to reflect the restriction of the inquiry to serious disputes. As a result of the survey’s narrow focus, no information was obtained on more common civil legal problems.
Among the most important of the recent survey studies on legal needs is Genn’s (1999) study conducted in England and Wales, and the parallel study conducted in Scotland (Genn & Paterson 2001). These studies involved
face-to-face screening surveys of random samples of the general population of adults aged 18 years or over (4125 adults in England and Wales, and 2684 adults in Scotland). Using a 5.5 year reference period, the screening surveys measured the incidence of justiciable events as defined earlier.11 Thirteen categories of justiciable events were examined, covering 60 different events.12 Follow-up face-to-face interviews were then conducted with the adults who reported a justiciable event in the screening surveys that they deemed to be ‘non-trivial’, that is, important enough to warrant some form of action. For all non-trivial justiciable events, the follow-up surveys collected details about any advice or assistance obtained, including the use and experience of legal processes, the objectives for taking action, and the outcomes achieved.
Genn (1999) found that about 40 per cent of screened respondents in England and Wales experienced one or more non-trivial justiciable events in the 5.5 year period. As would be expected, this rate was higher than the 13 per cent reported in the NCC (1995) study, which had a narrow focus (on serious disputes) and used a shorter reference period (three years). Genn (1999) also found that the incidence rates varied for the 13 categories of justiciable events examined: faulty goods and services (11%), money (9%), injuries/work-related health problems (8%), owning residential property (8%), living in rented accommodation (7%), employment (6%), relationships and family matters (6%), divorce (4%), children (3%), negligent medical treatment (2%), unfair treatment by police (1%), discrimination (1%) and immigration/nationality (under 1%).
Genn and Paterson (2001) reported that 26 per cent of the Scottish sample reported one or more justiciable events in the 5.5 year reference period. This incidence rate is lower than the 40 per cent reported by Genn (1999) in England and Wales, but still higher than the 13 per cent reported by the more narrowly focused study by the NCC (1995) in England and Wales. The different incidence rates for the linked studies led by Genn cannot be explained by different definitions of legal needs or different reference periods. One possible explanation is a real difference between the populations in their experience of justiciable events, resulting for example, from differences in demographic characteristics or life circumstances (Pleasence et al. 2004b). Another possible explanation is a difference between populations in their rates of reporting events, due for example, to different attitudes about what constitutes a non-trivial event (Genn & Paterson 2001).
Building on the methodology of Genn (1999) and Genn and Paterson (2001), Pleasence et al. (2004b) report on the first national periodic survey conducted by the Legal Services Research Centre (LSRC) in the United Kingdom. This survey adopts the same approach to identifying justiciable, non-trivial problems via a screening face-to-face interview and then following up any such events reported via a second face-to-face interview. However, the LSRC survey shifted the balance of questions away from rare events (such as the use of formal legal process) towards early stage decision making, and reduced the reference period from 5.5 to 3.5 years. The screening survey involved interviews with 5611 adults aged 18 years or over from a random selection of 3348 residential households in England and Wales, and measured 18 justiciable problem categories consisting of 78 different events.
The reported incidence of justiciable, non-trivial problems in the LSRC survey was 36 per cent, similar to Genn’s (1999) 40 per cent. Again, the incidence of different types of problems varied greatly, with consumer problems being reported by 13 per cent of respondents, but some other problems being reported by under 1 per cent of respondents (unfair treatment by police, homelessness, mental health and immigration). The incidence rates for the other problem types were: neighbours (8%), money and debt (8%), employment (6%), personal injury (4%), rented housing (4%), owned housing (2%), welfare benefits (2%), relationship breakdown (2%), divorce (2%), children (2%), clinical negligence (2%), domestic violence (2%) and discrimination (1%).
The lower reporting rates for the United Kingdom studies (e.g. Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b) than for the United States studies (e.g. ABA 1994; Schulman et al. 2003; Task Force 2003) cannot be due to the reference periods used because the United Kingdom studies used longer, not shorter, reference periods. However, a number of other methodological differences between surveys may have contributed to the different incidence rates. Firstly, some of the United States studies (e.g. ABA 1994; Schulman et al. 2003) included a broader range of problem categories than did the United Kingdom studies. Secondly, the United States studies measured problems faced by any person within a household, as opposed to problems faced only by the individual surveyed (Genn 1999; Pleasence et al. 2004b). A third possibility is that the United States studies were based on disadvantaged rather than general population samples.
New Zealand surveys
Maxwell et al. (1999) reported on a national survey conducted in New Zealand in 1997 by the Legal Services Board. Random probability sampling of the general population aged 15 years or over resulted in 5431 people being interviewed. Respondents were asked how often they had experienced 27 different legal problems, over the last three years, and over the last year. They were also asked how they resolved these problems, the barriers to resolution, and their degree of satisfaction with the outcome. This information was subsequently used to model needs profiles for individual districts. The study found that 51 per cent of the sample reported experiencing problems in the previous three years, with 41 per cent of the sample reporting problems in the previous year. Over half of those who reported experiencing a problem over the three years reported more than one problem. The most common problems related to consumer issues (15%), traffic accidents (11%), money owed to the respondent (7%) and disagreements with neighbours (7%). Pleasence et al. (2004b) argue that the higher incidence rate in the New Zealand study compared to their study is likely to be partly due to the broader range of problems included in the New Zealand study. Unlike the Pleasence et al. study, the New Zealand study included problems related to crime, violence, wills and disagreements with public bodies.
Australian surveys
In Australia, only a few relatively large-scale surveys of legal needs have been conducted, and a broadly focused large-scale survey has not been conducted in recent years. The first major legal needs survey was conducted by Cass and Sackville (1975) among disadvantaged communities. The study involved face-to-face interviews with 548 individuals aged 18 years or over in three Sydney LGAs (South Sydney, Botany, and Fairfield), which were identified by census data as areas with a high incidence of poverty indicators.13 The respondents were asked questions concerning 24 situations where legal assistance may have been beneficial. These situations were divided into six problem categories. It was found that 69 per cent of the sample reported experiencing at least one problem situation in the previous five years, with the incidence rates varying considerably for the six problem categories examined: accommodation (44%), accident (35%), consumer (21%), police (13%), money (12%) and family (9%). The overall incidence rate over a five-year period is considerably higher than the incidence rates reported a few decades later in the United Kingdom using similar reference periods (Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b). The difference cannot be attributed to the different range of problems covered because the United Kingdom studies covered broader ranges of problems. In part, the difference may be due to the more disadvantaged nature of the Cass and Sackville sample, although jurisdictional differences and time differences may also have contributed to the different incidence rates.
Fishwick (1992) reports on a legal needs survey conducted by the Australian Bureau of Statistics (ABS) in association with the Legal Aid Commission of NSW as an adjunct to the October 1990 ABS Labour Force Survey. The legal needs survey was based on a representative sample of the NSW population, resulting in interviews with approximately half a per cent of the NSW population aged 15 years or over.14 However, the survey had a relatively narrow focus, asking respondents whether they had experienced a relatively small number of predefined legal events (11) in the previous year. Fishwick (1992) reported that the majority of people surveyed (81%) had not experienced a legal event in the previous year. The most common event experienced was conveyancing followed by wills, damage and accidents. The relatively low incidence rate is likely to be due in part to the narrow range of legal events examined.
Rush (1996, 1999) conducted a series of studies for the Australian Government Attorney-General’s Legal Aid Branch. Part of this research involved a national telephone survey of the legal assistance needs of 2229 adults from low-income households using quota sampling.15 The survey assessed whether respondents were aware of the existence of legal assistance, their access to such assistance when needed, and the result of attempts to access such assistance. However, the survey had a narrow focus on legal needs for matters arising under Commonwealth law and did not examine legal needs for matters arising under state/territory law.16
Rush (1999) reported that 23 per cent of the low-income people surveyed experienced a need for legal assistance in relation to a Commonwealth matter over the past two to three years. This incidence rate is appreciably lower than Cass and Sackville’s (1975) incidence of 69 per cent over five years, but similar to Fishwick’s (1992) incidence of 19 per cent over one year. Compared with the Cass and Sackville study, the studies reported by both Fishwick and Rush covered a narrower range of legal issues. It should also be remembered that the three studies surveyed different populations. Cass and Sackville surveyed people from disadvantaged areas in Sydney, the study reported by Fishwick surveyed a general NSW sample and Rush surveyed an Australia-wide low-income sample.
In developing the survey reported on in the present monograph, a pilot version of the survey was conducted in 2002 in the Bega Valley LGA. The results of the pilot have been published (LJF 2003). The Bega Valley was in part selected for study because it had a relatively high score on an index of disadvantage (LJF 2003). The pilot survey drew a sample of 306 residents from randomly generated telephone numbers and assessed the incidence of 84 different legal events, which were categorised into 17 legal event groups. The pilot study found that about two-thirds of the respondents reported experiencing one or more legal events in the 12 months prior to the survey.
Incidence of multiple legal events
A reliable finding of large-scale survey studies of legal need is that legal events are not experienced randomly or in equal numbers across individuals. A significant proportion of individuals actually experience numerous legal events. Pleasence et al. (2004b) argue that experiencing justiciable problems has an additive effect, whereby the experience of justiciable problems itself increases the vulnerability to experiencing more such problems.
Another finding emerging from the more recent survey studies is that certain types of legal events tend to co-occur. Pleasence et al. (2004b), using hierarchical cluster and factor analysis, identified four main clusters of events: a family cluster (comprising domestic violence, divorce, relationship breakdown, children problems); a homelessness cluster (comprising rented housing, homelessness, unfair treatment by police, formal action against the respondent); a health and welfare cluster (comprising clinical negligence, mental health, immigration, welfare benefits); and an economic cluster (comprising consumer problems, money/debt, neighbours and employment problems).
Genn (1999) also found that family type problems tended to co-occur, and that some types of economic problems tended to co-occur. She reports associations among divorce, family matters and children problems. She also reports correlations between the following pairs of economic problems: money and employment, money and rented accommodation, consumer and owning property, and employment and owning property.
Pleasence et al. (2004b) argue that a number of factors are likely to contribute to the co-occurrence of particular types of legal events. For example, some legal events may act as triggers for other events, some types of legal events may arise from similar circumstances and some individuals may be vulnerable to experiencing more than one type of legal event.
Factors related to the incidence of legal events
As already noted above, some types of legal events tend to be experienced more frequently than others. A number of the more recent survey studies in the United States, United Kingdom and New Zealand (ABA 1994; Genn 1999; Genn & Paterson 2001; Maxwell et al. 1999; Pleasence et al. 2004b; Task Force 2003) found consumer problems to be amongst the most frequently experienced problems and immigration problems to be amongst the least frequently experienced. To some extent, the frequencies of different types of events reflect variations in the circumstances required for different types of events to occur (Pleasence et al. 2004b). The relatively high frequency of consumer problems is not surprising given that these problems arise from transactions involving goods and services, and such transactions are routine occurrences for most people. Similarly, the relatively low frequency of immigration problems is not surprising given that most individuals do not change their country of abode or their resident/citizen status.
There is also mounting empirical evidence showing that the experience of legal events is related to a range of social and demographic factors, including age, gender, disability, ethnicity and economic indicators. Some of these relationships suggest that socially or economically disadvantaged groups are particularly prone to experiencing legal events and have a high level of legal need.
Age has been reliably related to the incidence of legal events in a number of countries, including Australia (Fishwick 1992; LJF 2003), the United States (Dale 2000; Schulman et al. 2003) and the United Kingdom (Genn 1999; Pleasence et al. 2004b). Typically, younger people (e.g. in their 20s, 30s or 40s) are found to have higher reporting rates than older people (e.g. over 65 years).
Although gender has not been reliably related to the overall incidence of legal events (e.g. Genn 1999; Genn & Paterson 2001; LJF 2003; Maxwell et al. 1999; NCC 1995; Pleasence et al. 2004b), gender differences have sometimes been found in the incidence of certain types of legal events. For example, Pleasence et al. (2004b) found higher rates of family and clinical negligence problems for females, and higher rates of unfair treatment by police for males. Fishwick (1992) reported that men were more likely to experience legal events relating to accidents and insurance, while women were more likely to experience family-related problems and disputes concerning housing, loans and government departments. The Task Force (2003) reported that women from low- and moderate-income households experience a disproportionate percentage of legal problems, especially on matters related to family law and domestic violence.
In terms of disability, Pleasence et al. (2004b) found higher reporting rates for persons in their general national sample who had a long-standing illness or disability. Dale (2000) found higher reporting rates for people who had a mental disability. The Task Force (2003) found that people with physical disabilities had relatively high rates of legal issues related to consumer, health, estates and trusts matters, while people with mental disabilities had relatively high rates of housing issues and issues related to municipal and public services. The LJF (2003) pilot study also found that people with a chronic illness or disability were relatively more likely than others to report legal events.
Relationships between ethnicity and the incidence of legal events have been reported in a few instances. In Australia, Fishwick (1992) reported that people of English speaking background were more likely than others to experience legal events, while Cass and Sackville (1975) found that Australian-born respondents were more likely than migrants to report multiple legal problems. However, in New Zealand, Maxwell et al. (1999) reported that Maoris had an increased incidence of legal problems compared with other ethnic groups. Although Pleasence et al. (2004b) did not find that the overall incidence of legal events was related to ethnicity, they did find that ethnicity predicted three of the 18 problem types that they examined, namely divorce, discrimination and immigration. The Task Force (2003) found that African Americans had higher than average rates of legal issues related to municipal and public services.
Although past research has reliably shown a relationship between economic indicators and the incidence of legal needs, the relationship appears to be complex and is not always in the same direction. In some studies, economic hardship is related to higher overall rates of legal events. For example, the first national LSRC survey in the United Kingdom found higher reporting rates for unemployed persons, persons on a very low income, lone parents and persons in rented or high-density housing (Buck, Pleasence, Balmer, O’Grady & Genn 2004; Pleasence et al. 2004b). Similarly, in the United States, Dale (2000) found a higher incidence of legal problems for homeless people, including problems with public services, housing, employment, family law, torts and insurance, public benefits, and disability-based discrimination.
In contrast, other studies have found that those with higher incomes or higher levels of education have higher overall incidence rates or have higher incidence rates for some types of legal issues (ABA 1994; Fishwick 1992; LJF 2003; Maxwell et al. 1999; Pleasence et al. 2004b; Task Force 2003). For example, the data from Maxwell et al. (1999) in New Zealand show that individuals with higher educational qualifications were more likely to report legal problems in a wide number of areas.17 Furthermore, although Pleasence et al. (2004b) found the highest overall incidence for those on the lowest incomes, they also found that people on very high incomes tended to have high reporting rates for particular types of problems, such as consumer problems, investment problems, owned housing problems and problems with builders and holidays. The Task Force (2003) found that low-income households were more likely to experience family and housing problems, while moderate-income households were more likely to experience problems related to employment and to estates and trusts.
Pleasence et al. (2004b) argue that, despite their findings for high-income earners, their results from the first national LSRC survey of the general population in the United Kingdom generally support the notion that socially excluded or disadvantaged groups are particularly vulnerable to experiencing legal events.
In addition to reporting on the large-scale LSRC survey of the general population in the United Kingdom, Pleasence et al. (2004b) also report on a ‘parallel’, smaller survey of 197 adults living in temporary accommodation in the United Kingdom. The temporary accommodation sample was considerably more disadvantaged than the general population sample on a number of socioeconomic indicators, having a higher rate of lone parents (30% versus 4%), a lower rate of employment (25% versus 60%) and a lower median income (£6000 versus £20 000 per annum). The conduct of this parallel temporary accommodation survey provides a unique opportunity to compare a disadvantaged sample against a general population sample using comparable measurement of legal needs in the same jurisdiction at the same point in time. Pleasence et al. (2004b) found that the temporary accommodation survey resulted in a much higher incidence rate than the general population survey (84% versus 36%), supporting the argument that disadvantaged groups are particularly vulnerable to experiencing legal events.
Response to legal events
A common finding of the major survey studies of legal needs is that a considerable proportion of those who report legal events do not seek any legal advice or assistance in an attempt to resolve these issues. Some attempt to deal with the matter themselves, while still others take no action at all.
In the United States, the Spangenberg Group (1989) found that legal assistance was sought for only about one-fifth of the civil legal problems experienced by low-income households. The ABA (1994) found that nearly three-quarters of the problem situations faced by low-income households, and about two-thirds of the problem situations faced by moderate-income households, did not find their way to the justice system, with the most common course of action for both types of households being to try to deal with the matter on their own. The low-income respondents in the Dale (2000) study did not obtain legal representation for their legal problems about four-fifths of the time: assistance was sought from legal aid attorneys about 10 per cent of the time and from private lawyers about 8 per cent of the time. The Task Force (2003) found that low-income households responding to the field survey faced 88 per cent of their problems without advice or representation from an attorney.
In the United Kingdom, Genn (1999) found that while 60 per cent of those with non-trivial justiciable problems in their general population national sample sought some outside advice, 35 per cent tried to deal with the matter themselves and 5 per cent took no action at all. Pleasence et al. (2004b) found that about half of their general population sample sought formal advice, 30 per cent attempted to handle their problems alone and the remaining 19 per cent did nothing.
In Australia, Cass and Sackville (1975) reported that their respondents from disadvantaged Sydney communities failed to seek legal advice in relation to a considerable number of matters where it was appropriate to seek such advice. For example, lawyers were consulted in only nine of the 43 work accident cases. Fishwick (1992) reported that 43 per cent of those with legal problems in their general NSW sample did not seek legal advice. Rush (1999) reported that about one-quarter of their low-income respondents who experienced a legal need under Commonwealth law in Australia failed to seek legal assistance. The LJF (2003) pilot study found that advice or assistance was sought by their disadvantaged community sample in response to 52 per cent of events, with a further 23 per cent of events being handled by the respondents themselves and the remaining 25 per cent resulting in no action at all.
The finding that people do not always take action for legal problems is in keeping with Felstiner, Abel and Sarat’s (1981) influential model of disputing behaviour. According to this model, before an individual decides to use formal legal dispute resolution in response to a legal event, the individual must first recognise the event as a problem, attribute blame to another person or body, have the consciousness of a legal remedy, and be prepared to seek such a remedy despite any perceived risks or negative consequences in doing so.
The reasons for inaction provided by the Felstiner et al. model are largely consistent with the empirical evidence. For example, common reasons cited in survey studies for not seeking advice include:
- the problem not being important or serious enough to warrant action, or the problem being resolved without the respondent needing to take action (e.g. LJF 2003; Pleasence et al. 2004b)
- the respondent not seeing the issue as legal, not knowing their legal rights, not realising there is a legal solution or not knowing where to go for assistance (e.g. Cass & Sackville 1975; Fishwick 1992; LJF 2003; Pleasence et al. 2004b; Task Force 2003)
- the cost of legal services or not knowing about the existence of legal aid schemes (Cass & Sackville 1975; Genn 1999; Rush 1999; Task Force 2003)
- the potential damage that action might cause, such as involvement in acrimony or damage to an ongoing relationship (Genn 1999; Pleasence et al. 2004b).
A number of authors have noted that, not surprisingly, the seriousness or importance of the problem is related to whether people take action and whether they seek formal legal advice or assistance (e.g. Genn 1999; Pleasence et al. 2004b). However, it is worth emphasising that the finding that considerable proportions of people with legal problems do not seek legal advice is not entirely a by-product of individuals ignoring trivial legal problems. For example, even though the Genn studies in the United Kingdom only asked respondents how they handled events that they deemed important enough to warrant action (Genn 1999, p. 13), they still found that significant proportions of people either took no action or attempted to deal with the matter themselves.
It is also worth noting that while the Felstiner et al. model provides a useful starting point for conceptualising responses to legal needs, it simplifies the complex interaction of factors that influence decisions to seek legal advice (Genn & Paterson 2001). One of the subtleties not covered by the model is that even when an individual is prepared to take action to resolve a legal event and is aware that there is a legal remedy, their preferred course of action may be a non-legal remedy, such as a self-help strategy or advice from non-legal sources. In particular, recent studies demonstrate the ‘very limited use made by the public of formal legal proceedings to resolve justiciable problems’ (Genn 1999, p. 177). Instead, individuals use a wide range of advice sources, including non-legal advisers such as family and friends, the local council, the police, trade unions or professional bodies, employers, health and welfare professionals, and insurance companies and claims agencies (Genn 1999; LJF 2003; Maxwell et al. 1999; Pleasence et al. 2004b; Scott et al. 2004).
Another subtlety not explicitly addressed by the model is that some types of legal problems are more likely than others to result in action being taken generally, and in a legal remedy being sought more specifically. In particular, a number of studies have found that family-related problems and problems relating to wills, estates, conveyancing and property matters tend to be among the matters that are more likely to result in legal advice.
For example, in the United States, Curran (1977) found that estate planning and marital problems were the problems most frequently taken to lawyers for resolution in their general population sample. The Spangenberg Group (1989) reported that low-income persons were more likely to seek legal assistance for family and consumer problems than for medical, utility and public benefits problems. The ABA (1994) found that, for both low- and moderate-income households, the following types of legal needs were relatively unlikely to be brought into the civil justice system: community/regional, employment, housing/property, personal financial/consumer matters, and personal/economic injury matters.18 Schulman et al. (2003) found that legal experts were most used for assistance with advance directives, family domestic issues, elder abuse and government harassment. The Task Force (2003) found that attorney assistance was most likely to be sought for family, estates and trusts, consumer and public benefits issues.
Genn (1999) reported that, in her United Kingdom national sample, divorce, family and accidental injury matters were most commonly taken directly to solicitors, whereas the Citizens Advice Bureau was used most commonly as an initial advice source for consumer, money and employment problems. The first national LSRC survey (Pleasence et al. 2004b) in the United Kingdom found that in instances where action was taken, individuals were most likely to seek formal advice for divorce, homelessness, domestic violence and relationship breakdown problems, and least likely to seek formal advice for mental health, consumer and money/debt problems. Interestingly, Pleasence et al. (2004b) also found that reasons for inaction varied significantly by problem type.
In Australia, Cass and Sackville (1975) found that their disadvantaged community respondents tended to obtain legal advice in areas traditionally associated with lawyers in private practice, for example in the areas of conveyancing, family breakdown and accidents, but tended not to obtain legal advice for tenancy, consumer or hire-purchase problems. In their general NSW sample, Fishwick (1992) reported that legal advice was sought in the majority of conveyancing, wills and custody matters, but was seen as less appropriate in cases of accidents, insurance, government disputes and discrimination. It is also worth noting that the high rate of obtaining legal advice (i.e. 75%) in the Rush (1999) study, which examined Commonwealth law issues, may be partly related to the high preponderance of family law problems reported.
Barriers to seeking advice and assistance
A few studies have also identified a variety of barriers to obtaining advice, whether from a legal or non-legal source, once individuals have decided to obtain advice. These include seeking advice from a source that is unable to provide assistance, difficulty getting through on the telephone, difficulty getting an appointment or being kept waiting, the lack of local advice services, the cost of advice and psychological barriers (e.g. ABA 1994; Genn 1999; Genn & Paterson 2001; LJF 2003; MacDonald 2005; Maxwell et al. 1999; Pleasence et al. 2004b).
Factors related to response to legal events
Various sociodemographic characteristics have also been associated with seeking advice for legal problems in a number of studies. For example, whether or not advice is sought has been related to gender, age, ethnicity, economic indicators and education.
In the United States, the Task Force’s (2003) field survey of low-income households found that farm workers, the disabled, Native Americans, the institutionalised and the homeless were the demographic groups least likely to seek attorney assistance.
In the United Kingdom, Genn (1999) found that the likelihood of seeking advice for justiciable problems was relatively higher for women, for people aged 45 to 64 years, higher-income earners and persons with higher levels of education. Genn and Paterson (2001) reported that household income, employment status and the type of justiciable problem experienced were significantly associated with whether advice was obtained.
Pleasence et al. (2004b) report that, in their national LSRC sample, gender, ethnicity and economic indicators were related to individuals’ responses to legal events. More specifically, females and white respondents were more likely to take action and more likely to seek advice when action was taken. The relationship with economic indicators was more complex and not always in the same direction. Pleasence et al. (2004b) also found that those with higher academic qualifications were more likely to seek advice when they took action. Interestingly, respondents to the smaller-scale parallel survey of people living in temporary accommodation reported taking no action to deal with justiciable problems far more often than did respondents to the national survey (28% versus 19% of occasions). This difference between the comparable national and temporary accommodation surveys suggests that socioeconomic disadvantage may be associated with an increased tendency to ignore legal problems.
In Australia, Fishwick (1992) reported that males, young people, unemployed people and people living in more socioeconomically disadvantaged areas were least likely to seek advice. Cass and Sackville’s (1975) earlier Australian study found that non-British migrants were less likely to reach the office of a solicitor, and suggested that communication problems and lack of knowledge about legal rights and legal aid schemes may have contributed to this finding.
Resolution of legal events
The duration of legal problems appears to vary considerably. For example, Pleasence et al. (2004b) found that, of the concluded problems reported through the LSRC survey, 52 per cent had a duration of three months or less, 21 per cent had a duration of at least a year and 2 per cent had a duration of five years or more. Such a large variation suggests that, other things being equal, the resolution rates reported for legal problems by different studies will depend on the length of the reference period, with longer reference periods presenting greater opportunity for resolution.
However, the length of the reference period is clearly not the only factor affecting resolution rates. Genn (1999), using a 5.5 year reference period, reported that almost half of the reported problems had been resolved, whereas Pleasence et al. (2004b) and the LJF (2003) reported somewhat higher resolution rates (64% and 57%, respectively) despite using shorter reference periods (3.5 years and one year, respectively). Some of the factors associated with resolution rates are discussed below.
Factors related to the resolution of legal events
Not surprisingly, resolution rates have also been found to vary for different types of problems, even though different studies sometimes report different resolution rates for apparently similar problem types. For example, in the United Kingdom, Genn (1999) found that employment, neighbour and landlord problems had relatively low resolution rates while divorce/separation, money and consumer problems had relatively high resolution rates. In their national United Kingdom sample, Pleasence et al. (2004b) found that family-related problems (i.e. relationship breakdown, divorce, domestic violence, children), along with immigration and neighbour problems, tended to last longer than other problem types.
In the Bega Valley LGA in NSW, the LJF (2003) reported that personal injury, credit/debt, consumer, government, family, criminal and employment events were least likely to be resolved, while business, wills/estates, housing, domestic violence and motor vehicle events were most likely to be resolved.
In addition to problem type, the Genn (1999) and LJF (2003) studies also examined if other factors were associated with whether or not the event had come to a conclusion of some sort by the end of the reference period. Genn (1999) found that resolution was more likely to be achieved by younger adults (25–34 years) and less likely to be achieved by people aged 65 or over. She also found higher resolution rates for higher-income earners, persons with higher levels of education, persons who sought advice from a lawyer or law centre, defendants rather than plaintiffs, and persons who desired a money/property remedy. The LJF (2003) pilot study found higher resolution rates for non-Indigenous Australians compared with Indigenous Australians.19
Satisfactory outcome of legal events
A few of the more recent studies have examined individuals’ perceptions of the outcome of legal events, including satisfaction, fairness and achievement of objectives. The United Kingdom studies asked respondents to report whether their objectives in taking action to resolve legal problems had been met (Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b). These studies found that the objectives varied by problem type, but the most common objective by far, reported for about half the problems, was related to money or property, such as compensation for financial loss or property damage. Other objectives included work-related objectives, achieving divorce/separation, enforcing rights, punishing the other party or achieving a behaviour change/apology, preventing the problem recurring, and sorting out the problem.
Genn (1999) found that 41 per cent had completely achieved their main objective, 15 per cent had partly achieved it and 34 per cent had not achieved it.20 Comparable percentages (38, 15 and 38, respectively) were reported by Genn and Paterson (2001). Pleasence et al. (2004b) reported that almost three-quarters of respondents who took action secured at least some of their objectives, and just over half secured all their objectives.
The LJF (2003) pilot study asked about satisfaction with the outcome of resolved events and with the current status of other events. They found that a little over half were satisfied with the outcome or status of their legal events, a little over one-quarter were dissatisfied, and the remainder were neither satisfied nor dissatisfied.
Factors related to satisfactory outcome of legal events
A number of factors have been reported to be associated with whether or not the outcome of legal events is viewed as satisfactory, including the type of legal problem, the type of action taken or the type of advice sought, the method of resolution and various demographic characteristics.
In terms of the type of legal event, Genn (1999) found that respondents were more likely to report achieving their main objectives for accidental injury, work-related ill health, consumer and tribunal matters. Genn and Paterson (2001) reported that the main objective was most likely to be achieved for divorce and separation problems. The LJF (2003) pilot study examined satisfaction with the current status of legal events across both events that had been resolved at the time of the survey and those that were ongoing. They found that participants were most satisfied with the status of wills/estates, personal injury and motor vehicle events, and least satisfied with the status of credit/debt, business, consumer, criminal law, employment, government, domestic violence, human rights and health events.
A number of studies have found that taking action, or taking a certain type of action, is associated with higher levels of satisfaction. For example, in the United States, the ABA (1994) found that both low- and moderate-income households were more likely to be satisfied with the ultimate resolution of a matter if they had engaged the civil justice system. Dale (2000) found that about three-quarters of those who did not obtain legal representation were dissatisfied with the outcome, whereas about three-quarters of those who obtained legal representation were satisfied with the outcome. The Task Force (2003) found low-income respondents were satisfied with the outcomes of only 26 per cent of all their legal problems, but were satisfied with the outcomes of 61 per cent of the legal problems where attorney assistance was used. Schulman et al. (2003) similarly reported that using private lawyers or legal aid organisations tended to result in high levels of satisfaction with the eventual outcome.
In the United Kingdom, Genn (1999) found that respondents were more likely to perceive the outcome as fair if they sought advice from a solicitor or law centre. While Pleasence et al. (2004b) did not find a significant difference in the rate at which objectives were met between those who obtained legal advice and those who did not, they note that these two groups were not comparable in terms of the types of problems they faced. However, they did find that respondents whose advice was funded by legal aid were more likely than others who obtained advice to secure some or all of their objectives.
In Australia, the LJF (2003) pilot study examined satisfaction with the current status of legal events at the time of the survey according to whether the respondent took no action to resolve the event, handled the event alone or sought help from a legal or non-legal adviser. They found no significant difference in the rate of satisfaction with the current status of the event for those who took no action and those who sought help from a legal or non-legal adviser. However, compared with participants who sought help (from a legal or non-legal adviser), those who handled the event alone were significantly more likely to be satisfied with the status of their legal events at the time of the survey.21
In terms of manner of resolution, in the United Kingdom, Genn (1999) found that respondents were more likely to report achieving their main objectives for cases finalised by agreement between parties rather than for cases finalised by court or ombudsman’s decision. There was, however, no difference in the ratings of fairness of outcome for these two types of cases. Genn and Paterson (2001), however, found higher rates of perceived fairness for cases finalised by agreement rather than by adjudicated decision.
In terms of sociodemographic characteristics, in the United Kingdom Genn (1999) found gender, age, social class, education, employment status and income were related to whether or not the main objectives were achieved. The most important of these demographic factors was age, with younger respondents being more likely than average to report doing so. Genn also found that gender, employment status and income were associated with whether or not the outcome was perceived as fair. In particular, men were less likely than women to perceive the outcome as fair, as were high-income earners compared with low-income earners.
The ABA (1994) study in the United States reported higher levels of satisfaction with the outcome among moderate-income households (54%) than among low-income households (38%).
In Australia, the LJF (2003) found that rates of satisfaction with the status of legal events at the time of the survey were associated with ethnicity and education. Rates of satisfaction were higher for persons born in an English speaking country compared with those born in a non-English speaking country, and for persons with lower levels of education compared with university graduates.
Summary of research on legal events
Since the 1970s, major quantitative survey studies of legal needs have been conducted in different jurisdictions, both in Australia and overseas, covering both general and disadvantaged populations. These studies have differed in their definition and measurement of legal needs and in the type of survey method they employed. Not surprisingly, these diverse studies have reported varying incidence rates, varying rates of taking action and seeking legal advice, varying resolution rates and varying degrees of satisfaction with the outcome of legal events.
Nonetheless, some common patterns have emerged from these survey studies. Overall incidence rates appear to be affected by the measurement period used, the range of legal issues examined, and the population sampled. The studies consistently show that incidence rates vary for different types of legal issues, and it is argued that, to some extent, this variation reflects variation in the frequency of the circumstances required for different types of events to occur (e.g. Pleasence et al. 2004b). There is also considerable empirical evidence that legal issues are not experienced randomly within populations, but rather are associated with a range of sociodemographic variables including age, disability, economic indicators, gender and ethnicity. It has been argued that such associations indicate that socially disadvantaged groups are among the groups who are particularly vulnerable to experiencing legal events (e.g. Pleasence et al. 2004b).
Another reliable finding of the major survey studies is that considerable proportions of people who experience non-trivial legal issues either take no action to resolve these issues or attempt to deal with the issues on their own, without seeking advice. Furthermore, the more recent studies consistently show that when advice is sought, it is by no means restricted to formal legal advice. A wide range of non-legal advice sources are also used (e.g. Genn 1999; LJF 2003; Maxwell et al. 1999; Pleasence et al. 2004b). Recent empirical evidence also indicates that responses vary according to the type of legal issue and according to sociodemographic characteristics such as gender, age, ethnicity, economic indicators and education (ABA 1994; Cass & Sackville 1975; Curran 1977; Fishwick 1992; Genn 1999; Genn & Paterson 2001; LJF 2003; Pleasence et al. 2004b; Schulman et al. 2003; Spangenberg Group 1989).
Similarly to incidence rates, resolution rates also appear to be particularly affected by the range of legal issues assessed and the measurement period used. Studies again show variation for different types of legal issues, suggesting that some types of legal issues appear to be more difficult to resolve (Genn 1999; LJF 2003; Pleasence et al. 2004b). A few studies also report that sociodemographic characteristics of individuals are associated with the resolution of legal events (Genn 1999; LJF 2003).
Satisfaction with the outcome of legal events also appears be related to the type of legal event experienced (Genn 1999; Genn & Paterson 2001; LJF 2003). Further, a few studies have reported that the perceived outcome of legal events appears to be associated with the type of action taken or the type of advice sought, the method of resolution and a number of sociodemographic characteristics (ABA 1994; Dale 2000; Genn 1999; Genn & Paterson 2001; LJF 2003; NCC 1995; Pleasence et al. 2004b; Schulman et al. 2003).
Status of research on legal events in Australia
As detailed earlier, a large-scale survey measuring the incidence of a broad range of legal events has not been conducted in Austraian in recent years. The Cass and Sackville (1975) study was conducted 30 years ago and restricted to Sydney, the study reported by Fishwick (1992) examined a set of only 11 legal events and the Rush (1999) study was narrowly focused on Commonwealth legal issues.
Furthermore, since the Cass and Sackville (1975) study, the legal service provision landscape in Australia has changed quite dramatically, including the development of state-funded legal aid schemes and the establishment of an extensive network of community legal services.22 There have also been significant changes in the law, such as the introduction of the Family Law Act 1975.
The appropriate targeting of legal services in any given jurisdiction requires a comprehensive understanding of the number and type of legal events people experience, what people do when faced with legal events, what legal services are available, how people use the existing legal services and what they think about any assistance they receive. Given the lack of recent comprehensive surveys of legal need and the significant changes in legal service provision over the last few decades, there is clearly a need for an up-to-date assessment of the incidence, handling and outcome of a broad range of legal events in Australian jurisdictions. This need is further underlined by the fact that existing studies demonstrate that the incidence, handling and outcome of legal events are not fixed, but vary across jurisdictions and populations.
Structure of the present report
Chapter 2 outlines the aims and methodology of the present survey study of legal needs.
Chapters 3 to 8 detail the results of the present study. Chapter 3 examines the incidence of legal events, outlining the number and types of legal events experienced, the co-occurrence of legal events, and the sociodemographic factors associated with experiencing different types of legal events. Chapter 4 examines the response to legal events, outlining the reasons why people take no action to deal with some problems, and the factors associated with seeking help. Chapter 5 describes the sources of help that people use for different types of legal events, the type of assistance received and the barriers to receiving assistance. Chapter 6 examines the level of satisfaction with the assistance received for legal events and the factors related to satisfaction with assistance. Chapter 7 examines the outcome of legal events, presenting information on the resolution rates for different types of events and the factors associated with resolution. Chapter 8 presents data on the level of satisfaction with the outcome of different types of legal events and the factors related to satisfaction with outcome.
Chapter 9 examines the implications of the findings in terms of the nature of legal need and access to justice within the disadvantaged communities surveyed, while Chapter 10 discusses the implications of the findings for a multidimensional approach to legal service provision, which includes several concurrent strategies and allows for the tailoring of legal services to the varying needs of different individuals.