scholarly journals Underestimating the Unrepresented: Cognitive Biases Disadvantage Pro Se Litigants in Family Law Cases

2020 ◽  
Author(s):  
Kathryn Mary Kroeper ◽  
Victor David Quintanilla ◽  
Michael Frisby ◽  
Nedim Yel ◽  
Amy Applegate ◽  
...  
Keyword(s):  
Justice System ◽  
Cognitive Biases ◽  
The United States ◽  
Access To Justice ◽  
Randomized Experiments ◽  
Related Factors ◽  
Mere Presence ◽  
Dispute Resolution Mechanism ◽  
Civil Justice System ◽  
Wide Access

The majority of civil cases in the United States involve at least one pro se party—more often than not, at least one litigant is unrepresented by legal counsel. Despite efforts to provide pro se parties with information that decreases the procedural complexity of litigation, wide access to justice gaps persist between counseled and pro se litigants. We argue that, while helpful, information alone is not enough to close access-to-justice gaps, because the mere presence of counsel gives represented litigants a persuasive edge over pro se litigants in the eyes of legal officials. Two randomized experiments with civil court judges (Experiment 1) and attorney-mediators (Experiment 2), wherein only the presence of counsel varied (while other case-related factors were held constant), found that legal officials, on average, devalued the case merit of pro se litigants relative to otherwise identical counseled litigants. This case devaluation, in turn, shaped how legal officials expected pro se (vs. counseled) litigants to fare as they sought justice. Judges, attorneys, and mediators forecasted that pro se litigants would experience the civil justice system as less fair and less satisfying than counseled litigants, especially when the dispute resolution mechanism was trial (vs. mediation). These results suggest that perceptions of case merit are strongly influenced by a litigant’s counseled status. Comprehensive solutions to address access-to-justice gaps must consider ways to reduce legal officials’ biased perceptions of pro se litigants, so that they are not underestimated before their cases are even heard.

Referral fees – the business of access to justice

Legal Studies ◽  
2012 ◽  
Vol 32 (1) ◽  
pp. 109-131 ◽  
Author(s):  
Andrew Higgins
Keyword(s):  
Justice System ◽  
Public Funding ◽  
Legal Rights ◽  
Access To Justice ◽  
Legal Services ◽  
Civil Justice ◽  
Better Regulation ◽  
The Government ◽  
The Right ◽  
Civil Justice System

The paper examines the controversial issue of referral fees for personal injury claims. It looks at the function of referral fees in the civil justice system, their relationship to the guarantees of access to court and the right to seek legal assistance in ECHR Art 6, and the debate about promoting access to justice or a litigious society. It examines the experience of the referral fees market in England and Wales, where the costs of referrals have risen dramatically and there is concern that referrers are auctioning their customers to the highest bidder rather than helping them find competent lawyers. Sir Rupert Jackson recommended banning referral fees in his report on the costs of civil litigation, and the Government has announced it will implement this recommendation. The paper considers the potential effects of a ban on competition in the legal services market and its compatibility with UK and EU competition law. The paper argues that a combination of better regulation of the industry and proper regulation of costs rules is a better and more proportionate way of controlling legal costs and the quality of legal services than an outright ban. While referral fees have not delivered all the benefits one would expect from a for-profit independent referrals service, they can help people obtain information about their legal rights, and competent lawyers to enforce them. This service is particularly valuable given that the state has substantially cut public funding of the civil justice system in recent years.

scholarly journals The American medical liability system: An alliance between legal and medical professionals can promote patient safety and be cost effective

2013 ◽  
Vol 2 (3) ◽  
pp. 97
Author(s):  
Steven E. Pegalis
Keyword(s):  
Patient Safety ◽  
Justice System ◽  
Cost Effective ◽  
The United States ◽  
Medical Liability ◽  
Legal Rights ◽  
Medical Professionals ◽  
Civil Justice ◽  
Culture Of Safety ◽  
Civil Justice System

Objective: The aim of this paper is to evaluate a hypothesis premised on the idea that if medical leaders in the United States support an unfettered access for patients injured by medical error to the American civil justice system, that approach would improve patient safety and be cost effective. Method: An analysis of the relevant legal and medical literature. Results: Medical liability in the American civil justice system derived from traditional tort law is based on accountability. Reforms applied to medical liability cases urged by healthcare providers limit and in some cases eliminate legal rights of patients injured by healthcare error which rights exist for all others in non-medical cases. Yet medical liability cases have promoted a culture of safety. Information learned from medical liability cases has been used to make care safer with a reduced incidence of adverse outcomes and lower costs. A just culture of safety can limit provider emotional stress. Using the external pressures to reduce the incidence of law suits and promoting ethical mandates to be safer and disclose the truth can promote provider satisfaction. Conclusions: An alliance between legal and medical professionals on the common ground of respect for the due process legal rights of patients in the American system of justice and the need for accountability can make care safer and can be cost effective.

scholarly journals Litigiousness in Australia: Lessons from Comparative Law

2014 ◽  
Vol 18 (2) ◽  
pp. 271
Author(s):  
Leon Wolff
Keyword(s):  
Popular Culture ◽  
Justice System ◽  
Insurance Industry ◽  
Comparative Law ◽  
The United States ◽  
Future Research ◽  
Quantitative Studies ◽  
Civil Justice System ◽  
Policy Question ◽  
Scholarly Attention

How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention — the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.

scholarly journals A critical analysis of the inefficacy of Court-Annexed Mediation (CAM) in South Africa – lessons from Nigeria

2021 ◽  
Vol 46 (2) ◽  
pp. 25-54
Author(s):  
EC Muller ◽  
◽  
CL Nel
Keyword(s):  
South Africa ◽  
Dispute Resolution ◽  
South African ◽  
Justice System ◽  
Access To Justice ◽  
Civil Justice ◽  
Department Of Justice ◽  
Constitutional Development ◽  
Optimal Functioning ◽  
Civil Justice System

As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.

The English Legal System

2019 ◽  
Author(s):  
Alisdair Gillespie ◽  
Siobhan Weare
Keyword(s):  
Legal System ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Judicial Independence ◽  
Civil Litigation ◽  
Access To Justice ◽  
Legal Aid ◽  
Police Powers ◽  
System P ◽  
Civil Justice System

The English Legal System presents the main areas of the legal system and encourages a critique of the wider aspects of how law is made and reformed. The book is structured in five parts. Part I looks at the sources of law including domestic and international sources. Part II looks at the courts and the practitioners. It considers the structure of the courts and tribunals, judges and judicial independence, and the legal professions. Part III examines the criminal justice system. It begins by looking at police powers and the decision to charge and prosecute a suspect. It describes issues related to lay justice, trials, and criminal appeals, including access to justice and legal aid. The next part is about the civil justice system. It looks at civil litigation, remedies, appeals and alternative dispute resolution, as well as the funding of civil litigation. The final part looks to the future.

Epilogue

Laura Nader ◽  
2020 ◽  
pp. 347-350
Author(s):  
Laura Nader
Keyword(s):  
United States ◽  
Dispute Resolution ◽  
Justice System ◽  
The United States ◽  
Civil Justice ◽  
New States ◽  
Court Proceedings ◽  
The 1960S ◽  
Justice Movements ◽  
Civil Justice System

This chapter reviews letters about what have been happening in America over the past sixty years as the Ivory Tower slowly erodes. It elaborates the importance of language in the early 1960s for the understanding of kinship and court users in a bilingual town and for any sophisticated understanding of the style of court proceedings, which is later dubbed as “harmony ideology.” It also discusses the author's interest in Zapotec law that expanded to a comparative interest in dispute resolution movements worldwide after the demise of colonialism and the founding of new states. The chapter describes the movement in the United States to address the failings of the civil justice system. It talks about the push to change the civil justice system in the United States that is referred to as Alternative Dispute Resolution, which is a political movement against the social justice movements of the 1960s.

Access to Justice for Immigrants Who are Victimized: The Perspectives of Police and Prosecutors

2001 ◽  
Vol 12 (3) ◽  
pp. 183-196 ◽  
Author(s):  
Robert C. Davis ◽  
Edna Erez ◽  
Nancy Avitabile
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Law Enforcement ◽  
Criminal Justice System ◽  
Justice System ◽  
Survey Methodology ◽  
The United States ◽  
Access To Justice ◽  
Police Chiefs ◽  
The Past

The increased diversity of the U.S. population poses special challenges to the criminal justice system. High levels of immigration to the United States within the past decade require that law enforcement and court organizations understand the concerns of crime victims who are recent immigrants, and facilitate meaningful access to the justice system. Employing survey methodology, this research describes the barriers that immigrants encounter in accessing justice, as they emerged from the responses of police chiefs and prosecutors in the 50 largest cities of the United States. Criminal justice officials believe that failure to report crimes and to cooperate in their prosecution is a significant problem, especially for domestic violence offenses. The results suggest that many metropolitan areas have made some efforts to promote participation of immigrant victims in the criminal justice system. But far more needs to be done to ensure access to justice for this growing segment of society.

Racial Justice and Criminal Justice

2018 ◽  
Author(s):  
Andrew Valls
Keyword(s):  
Criminal Justice ◽  
African Americans ◽  
Criminal Justice System ◽  
Justice System ◽  
Racial Inequality ◽  
Racial Bias ◽  
The United States ◽  
Black Communities ◽  
Racial Justice ◽  
Black Neighborhoods

The criminal justice system in the United States both reflects racial inequality in the broader society and contributes to it. The overrepresentation of African Americans among those in prison is a result of both the conditions in poor black neighborhoods and racial bias in the criminal justice system. The American system of criminal justice today is excessively punitive, when compared to previous periods and to other countries, and its harsh treatment disproportionately harms African Americans. In addition, those released from prison face a number of obstacles to housing, employment, and other prerequisites of decent life, and the concentration of prisoners and ex-prisoners in black communities does much to perpetuate racial inequality.

scholarly journals Mercy towards decarceration: Examining the legal constraints on early release from prison

Incarceration ◽  
2020 ◽  
Vol 2 (1) ◽  
pp. 263266632097780
Author(s):  
Alexandra Cox ◽  
Dwayne Betts
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Family Members ◽  
The United States ◽  
Early Release ◽  
The Us ◽  
Legal Constraints ◽  
Release From Prison

There are close to seven million people under correctional supervision in the United States, both in prison and in the community. The US criminal justice system is widely regarded as an inherently unmerciful institution by scholars and policymakers but also by people who have spent time in prison and their family members; it is deeply punitive, racist, expansive and damaging in its reach. In this article, we probe the meanings of mercy for the institution of parole.

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