Justice made to measure: NSW legal needs survey in disadvantaged areas ( 2006 ) Cite this report
Ch 1. Introduction
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:
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.