JON T JOHNSEN

In this chapter I examine recent legal aid research and consider one aspect of this relationship. namely the research on ‘legal needs’. I focus on two problems applicable to all societies:

first the meaning and importance of legal needs research as part of a general strategy for legal services research but also for mapping premises for legal aid reform. I concentrate on a methodological question: Can we develop empirical notions of legal needs, or are all attempts at such a conceptualisation inherently normative?

Second, the possibility of developing a systematic approach to legal services research. I will try to describe the major mechanisms by which the legal services market influences legal aid schemes and relate legal needs’ studies to some general perspectives on legal services. I also describe some constitutive assumptions of legal aid research tacitly adopted by many studies because by making those assumptions explicit we might improve the quality of legal aid research.

Why is it important to revive and refine legal needs research? Why should we understand such studies in a broad context and recognise them as inseparable part of a research strategy aimed at mapping the major mechanisms of the legal services system? Legal services research has been closely linked to policy reform and especially policy designed to improve services to the poor. Such studies are linked to fundamental ideas about fair distribution of justice and equal protection before the law (Zemans 1983). Some reformists have looked upon legal aid itself as a political tool that might trigger reforms in several fields including housing, family, consumer issues, welfare and criminal justice. Others have looked upon citizens’ use of law as an important element of political participation in a democratic society (Zemans 1983). Providing legal services also means better access to welfare services for more people, which can diffuse dissatisfaction and political opposition that otherwise might develop into revolutionary movements (Garth 1980. 134-135).

However, legal services also influence the way welfare schemes actually work for the underprivileged. When politicians transform political interests and demands into law through their decision-making in elected assemblies, they also transform group interests into individual legal ‘positions’ of rights, claims or discretionary entitlements. The law usually leaves it to the citizens as individuals to enforce such positions through the legal and bureaucratic machinery (Zemans 1983). The common interests that make a political reform viable are then disbanded and the reform’s effectiveness then depends on the capacity of the entitled to utilise the law.

A paradox, therefore, emerges for welfare law. The intention is to help the poorest and diminish class and social differences, however, the welfare improvements depend on actual use. A few schemes have mechanisms for automatic implementation but most presuppose some sort of legal activity from the people with entitlements. If they lack the skills and drive to utilise their legal positions, such schemes become ineffective. As a result, welfare schemes tend to become least effective for groups that suffer most from poverty because legal skills are unevenly distributed within societies. This too often results in those groups’ political neutralisation (Johnsen 1980. 25-27).

Ineffective legal aid, therefore, opens the way for symbolic politics where politicians enact reforms that ideologically satisfy the needs of the poor but at the same time recognise they will become ineffective due to inadequate legal aid schemes. Legal needs research can of course play a critical role in uncovering such strategies.

If people are unable to assert their legal positions on their own, legal services become crucial to the effectiveness of all areas of law. For the poor, the quality of legal aid schemes therefore becomes paramount. As a result, knowledge about how people use their legal positions is important. We need to understand the factors that motivate both their use and non use of law.

However, we must distinguish between use and non use that matters to people, and those where people are indifferent. Legal need studies have aimed at this complex task. In particular the non use - often labelled un-met legal needs - became an important research issue in the sixties and seventies when many jurisdictions developed their legal aid schemes.

Unfortunately, when the expansion came to an end and many jurisdictions ‘downsized’ legal aid, the interest in legal needs studies also diminished. Methodological problems were also evident. It proved difficult to operationalise ‘legal needs’ in ways that produced reliable empirical studies using meaningful quantitative methods. Statistics on legal needs are of limited value in seeking reform if the concept itself appears controversial, the definitions used appear arbitrary, and different operationalisations produce widely varying results.

Still, none of these arguments cast serious doubt on the value of research when it produces reliable understanding of legal needs that reformers can use in shaping legal services and legal aid. When legal aid declines it is even more important that the problems that matter most are covered first. Therefore, good legal needs studies are as important to legal aid policy as ever and I believe it is possible to improve their methodology along the lines discussed later in this chapter.

Finally a word about my analytical approach in this chapter. Although I focus on studies of the legal needs of the poor, I think it is necessary to situate such studies in a broader context because the market mechanisms apply to all groups. Although all segments of society might benefit from legal services, lawyers as a profession mainly target the affluent. Poor people represent a less profitable market and governments therefore establish legal aid schemes to improve legal services to them. But without thorough insights into the way legal services work for those in an advantaged financial situation we cannot thoroughly understand the operation of legal aid to the poor, or their needs. My perspective therefore considers legal aid to the poor as part of the general mechanisms for delivering legal services.

The two major issues addressed in this chapter clearly imply criticism of existing legal aid research. Ideally, therefore, I would have liked to include a critical summary of some of the major studies. However, space does not allow for this apart from my analysis of the concept of legal needs, where I include a short evaluation of some major studies. When I propose my systematic approach, therefore, I mainly present my own views and leave it to the reader to apply them to existing and future research. While my arguments are adapted from my Norwegian book (Johnsen 1987), they have also been developed in response to research published over the last decade.

The foundation of my approach is the relationship between research and politics in the field of legal services. Some questions relate to challenges in the formation of legal aid policy and will receive attention below, while others are general and relate to the overall relationship between law and society research and policy. With one exception, I will not deal with the latter, but since legal aid research emphasises reform, it is appropriate to make a few brief remarks about the relationship between policy values, reform ideas and empirical theories about legal needs:

Policy Values. All reform strategies are founded on values about how society ought to function. Legal services and legal aid are no exception. In public debate we can find values that are held by a large part of society as well as those that are controversial and subject to conflicting interests. Empirical research cannot decide between such values. However, it ought to be aware of the dominant values relating to the formation of legal aid policy and attempt to shape its analysis to make it relevant to most of them. Although research cannot decide what values society ought to use in structuring legal aid, it can thoroughly map the existing values about legal services and identify areas of consensus and controversy. To undertake such a program, however, it is necessary to develop concepts that relate to existing perceptions of needs among politicians, professionals and the poor.

Problem Creating Mechanisms. All reform proposals are based on perceptions of reality that conflict with the reformer’s values. Such perceptions may or may not be accurate. One of the important tasks of empirical research is to provide reformers with a comprehensive and detailed picture of the legal needs and the actual operation of legal services. Of course nothing prevents research from producing reform models according to the values of the opposition groups. However, such models may have bleak prospects of being implemented.

Reform Models. Reform analysis ought to provide alternatives to the existing system. An important research task is to develop models that promise to improve reality in line with prevailing values.

These three elements of reform analysis are interdependent, as shown in Figure 1:

Policy values

Attitudes towards legal aid reforms will depend on values, empirical understanding and the visions of reform models. A change in values might also change the attitude of reform. As mentioned above, influencing society’s values towards legal aid through empirical research is difficult. However, research might significantly alter influential groups empirical understanding of how the existing system works. Changes in perception might also change the attitude towards reform when values and reform models remain constant. Similarly, a change in the perception of reform models might change attitudes towards reform even if values and empirical understanding remain the same. If all legal aid reform models seem costly and ineffective, reform may be viewed negatively even if politicians regard the existing system as highly inadequate. However, if research documents a cheap and effective alternative model, it may trigger reforms.

There are many tasks for empirical research. They include plotting the gap between standards which have been set and the actual situation, as well as developing, analysing and evaluating different delivery models that may be effective in meeting needs. But policy making seldom presents as an either-or task, instead, compromises and priority decisions frequently occur. Research can therefore encourage more rational policy decisions by identifying the values and standards which, although different in their general framing, overlap and in practice. Research can also improve the prospects for evaluating the pros and cons of various reform models through applying different standards of ‘needs’. It can also present the opportunity for all relevant interest groups to assess the welfare benefits of the proposed strategies and estimate the resources necessary to implement them. Finally it can serve an important democratic function of identifying and highlighting the ‘hidden needs’ standards of deprived groups that lack the ability to channel their policy demands into public debate.

In the remainder of this chapter, however, I focus on the empirical corner of the triangle in Figure 1 rather than the reform models.

The legal needs literature is vast. Among the early, well known studies were Able-Smith, Zander, Brooke (1973) from the UK, Eskeland and Finne (1973) from Norway, Messier (1975) from Canada, Cass and Sackville (1975) from Australia, Schuyt, Gronendijk, Sloot (1976) from the Netherlands, and Curran (1977) from the US. Among recent studies are the Comprehensive Legal Needs Study (CLNS) conducted by the American Bar Association (see Cantril (1996) for references and a summary) and Blacksell, Economides, Watkins (1991) from the UK - although the latter try to avoid the term ‘legal needs’ in their analysis (see below).

As mentioned above, ‘legal needs’ studies try to find out when people might resort to using the law. But we must distinguish between two major meanings of ‘legal needs’. Sometimes we mean ‘needs’ that relate to substantive law, for example, better protection against violence, reduced taxation, more liberal social benefit regulations. An alternative interpretation, and the one I use in this chapter, is the ‘need’ for legal services that relates to an opportunity to utilise legal positions according to the law currently in force. The latter interpretation does not presuppose change in the substantive law, however, it does not in itself prevent normative interpretations. Statements about ‘legal needs’ might still imply that society has a duty to provide the service in question.

Several scholars have expressed scepticism about ‘legal needs’ research, including Marks (1977), Griffiths (1980), Zemans (1982), Campbell (1983), Paterson and Nelken (1984) who sum up the UK debate and Blacksell, Economides, Watkins (1991). The main objections concern the implicit assumption in this research that when we label something a legal ‘need’, we also presuppose that society must fulfil that need. Griffiths argued, for example, that legal needs research might serve three main ends. Such studies may be part of the implementation of legal services reforms. Second they might also try to answer questions about the necessity of such reforms. Third, they might be used as a vehicle for improving our general understanding of how law actually functions in a society (Griffiths 1980:20-30).

Griffiths does not object to research mapping the volume and extension of legal aid reforms which I highlighted in the model-development corner of Figure 1. However, he opposes the two other forms of research. He regards the empirical corner of the triangle as unviable because ‘legal needs’ necessarily refer to something different from actual use of legal services. The concept might relate, for example, to subjective experiences of need, or to judgements made by a third party. But ‘needs’ in this sense do not correspond to observable behaviour. We cannot, therefore, measure ‘needs’ by mapping demands for or actual prices of legal services:

‘...there is no such thing as an empirical need or no such thing as an empirical "legal problem" or empirical "legal services". These concepts are all ways of expressing judgements about how the world ought to be. To say that legal services should be made available to some groups in some situations because they have a need for such services, is merely to say they ought to have the services because they ought to use them’. (Griffiths 1980:30)

For Griffiths, legal needs research is inadequate to answer the value questions in legal aid policy. Merely by labelling a condition a ‘legal need’ we are implying that the need should be satisfied. He then argues that we do not rectify legal problems by legal services alone. Law merely constitutes one of several problem solving strategies available. Nor are lawyers the only professionals that can supply legal services. Legal needs research therefore implicitly favours one sort of problem solving over others without attempting actual comparisons. The research therefore legitimates legal services reforms without considering alternatives (Griffiths 1980:33-35).

Other researchers have advocated similar views. In their recent study, Blacksell Economides, Watkins (1991) refuse to apply a ‘legal needs’ concept, since using that language

‘...presuppose{s} that legal solutions are superior to any other in the resolution of conflict. Instead we prefer to think in the terms "territorial justice" and ‘legal contact’ (...) - and the opportunities of access - rather than imputing a priori values as to their use, or non use, by potential clients and claimants." (11)

Their main objection to the ‘needs’ concept, therefore, concerns its lack of political flexibility. Nevertheless, I think some sort of ‘legal need’ concept is necessary in legal services research and do not agree that such policy implications necessarily follow. A ‘legal needs’ concept can identify problems that appear solvable through the use of legal services without any presumption about obligations to deliver such services. If we conceptualise in this manner, however, we must distinguish sharply between the existence of legal needs and their fulfilment. The existence of legal needs might be subject to empirical research, while the question of fulfilment ultimately rests on value choices that we cannot address empirically. Ideologies about justice, fairness, rules of law, etc. determine answers to such questions. But what then is a more appropriate and empirically measurable definition of ‘legal needs’?

There are two essential features of an empirical definition of ‘legal needs’. First, the substance of the ‘need’, or the legal expertise, and second, the ‘need-condition’, that is, the human state the ‘need’ relates to.

Legal expertise means a person’s insights about the law and the legal system. We can distinguish between three major elements (Johnsen 1987:41-43).

Doctrinal knowledge or expertise in the normative content of the law

Application insights - expertise in researching, documenting and constructing legal meaningful facts

Tactical experience - expertise about the actual structure and functioning (a modus operandi) of the legal system and in forwarding claims to, and invoking actions from, that system.

This outline necessarily leaves several questions open. For example, what levels of knowledge are required? And how broad? Nor are the three elements exhaustive. What about communication and negotiation skills, empathy and ethics? Such skills and attributes might also significantly contribute to legal expertise. However, while other elements may be included it is difficult to envisage a viable definition of legal expertise with any of these three core elements missing.

What about the ‘need condition’? ‘Need’ in ordinary language points to some sort of lack of legal expertise - some state of deficit, desire or want. The ‘deficit’ concept implies a value statement that the existing situation is negative or unwanted in some sense. This deficit-concept can be developed further by considering its two meanings. First we can argue that legal aid will change the existing situation in a way that reduces the deficit, that it will result in a welfare improvement. Such statements are of course prognostic in character. That is, they presume that a specific type of result will occur if we supply a particular service. Such statements are also empirically testable.

Applying the second meaning, we can develop a normative concept, or value statement claiming someone ought to receive or possesses a legitimate demand for legal aid. This meaning implies statements of moral, political and legal character. Empirical methods are of limited use to such analysis but normative disciplines like law, ethics and religion might make some contribution in this area. Most of the criticism of legal needs research relates to attempts to define needs through normative value laden empirical research. Griffiths, for example, argues:

‘Thus the concept of need in legal needs research is based on an idea of the benefit of legal services that pretends objectivity, but which is in fact an extension to the whole population of lawyers’ idealised notions concerning the judgement of prudent members of the middle classes.’ (1980:35)

He argues that legal services research

‘should concern itself with the distribution of actual use of lawyers services, the difference that such services make to outcomes of various individual situations, and the costs and effects of various redistribution schemes’. (Griffiths 1980:36)

But Griffiths fails to see the potential of the first model of the concept of ‘legal needs’ described above, this approach works well in research that attempts to map "the differences legal services make to the outcome of various individual situations," and also in the study of the general welfare effects of such services.

If we focus on the first model, we still find several ambiguities, and considerable scope for discretionary choices. My aim here is, however, only to show that it is possible to construct a meaningful empirical concept about legal needs so we can view the indicators as a framework to develop and adjust according to the research tasks in question.

If we identify ‘welfare improvements’ in some form as the major indicator for ‘legal needs’ some questions arise: For example, should welfare improvements be substantial? Should even minor gains count, or do we only accept gains above a certain level? We must also keep in mind that empirical mapping of needs does not in itself result in a public obligation to respond to such needs. Researchers might identify standards of seriousness, for example, where measures prioritise particular needs using standards from the existing legal aid ideologies. And from a reform perspective it would be wise to map and describe ‘needs’ according to a range of different legal aid ideologies in a society. Such strategy might call for a needs concept that also incorporates minor welfare improvements. One example of this is the provision of legal advice to clarify specific legal questions which may be causing concern. We might subject our empirical findings to different tests of seriousness according to existing policy ideologies. Such tests might leave parts of the existing needs outside the scope of legal aid policy. However, this strategy is likely to introduce a more comprehensive picture of the prioritisation dilemmas than one that attempts to measure only the types of needs that policy makers want their schemes to cover. If studies only map needs according to dominant policy values, they will not show the problems that are not being addressed nor their welfare significance. As a result, such studies might conceal important needs from the policy debate.

When we use a broad definition of legal needs, we can also ask about the difference between legal needs and legal problems. Whenever the use of legal expertise might lead to improved welfare it is reasonable to talk about ‘legal problems’ as well as ‘needs’. If the person with the problem only uses her or his own legal knowledge to solve a question, we might label it a legal problem, but not a legal need since external expertise is superfluous. However, the difference is a matter of degree. Some legal problems might be solved by the problem holder, but with a less satisfactory outcome and more stress. ‘Legal needs’ are then the legal problems that the problem holder cannot solve effectively by his or her own means.

A problem holder might make their own assessment of needs for legal expertise using internal criteria of ‘legal needs’. Others, including members of the local community, welfare agencies, lawyers, legal aid bureaucrats or politicians, might also evaluate the problem applying external criteria. Of course, the content of both internal and external criteria might vary depending on how they formulate their concept of needs. Empirical studies are important in order to elucidate both internal and external criteria.

We can research the welfare effects in several ways. When people decide whether to see a lawyer, they make their ‘needs’ assessment from prognoses of what effect legal expertise might have on the problem. However, their evaluation might differ from the prognosis made by a legal expert. We might also assess the impact of assistance after an outcome has been recorded. Studies of outcomes may reveal that the welfare effects of expert assistance differ significantly from prognostic judgements.

It is also important to distinguish between legal needs and demand. A ‘demand’ presupposes that a problem holder actually asks for help. It also usually presupposes a ‘need’ - few people will ask for legal assistance unless they think it will be of some use. Problem holders usually assess their needs from their own understanding of the law, supported by their personal and informal network. However, they might miscalculate according to external definitions set by various professionals, for example politicians, lawyers or researchers.

The supply of legal expertise in society does not, however, correspond with the needs nor the demand. While we might accept that legal needs exist as long as any form of expert legal help might affect the problem, supply depends on how we organise legal services. But whether society has created a service that covers all such problems is a different question altogether. Therefore, in attempting to answer this question we must map both legal needs and demands which existing legal services do not respond to systematically.

Legal expertise can also be used to solve legal problems according to the law in force but also to press for law reform. Of course, the distinction is blurred in some respects. Pleadings for a court precedent are both an ‘according-to-law’ activity but also, if successful, an action that might change the law. Still it is useful to distinguish between needs that relate to assistance for utilising the present legal reality and those that suggest the need for new law.

As I explain in the next section, researchers have utilised different strategies when conducting legal needs studies.

As mentioned above, several projects in different countries have attempted to map legal needs. Most of them have used interviews in some form as their major data gathering tool. Scandinavian legal research, however, deviates from this pattern by primarily using action research methods. Interesting differences in methodology and in the empirical perceptions of legal needs emerge when using action research combined with interviews, as is the case in Scandinavia. In this section I outline and compare these two major approaches.

The interview studies in the sixties and the seventies focussed especially on mapping the respondent’s previous legal needs. The methodology used in these studies varied. Some attempted to map all of the respondents’ past needs, regardless of when they occurred (Curran 1977, Cass and Sackville 1973). Other focussed on a specific time span, asking about problems experienced during the last seven years (Abel-Smith, Zander, Brooke 1973) five years (Cass and Sackville 1973) and two years (Schuyt, Gronendijk, Sloot 1976). Others asked about the last legal problem experienced.

Some interview projects asked respondents to state all problems experienced during the chosen period, while others used checklists to cover selected, main types of problems, recording those thoroughly. Some used a combination of these techniques (Schuyt, Gronendijk, Sloot 1976, Cass and Sackville 1973), while others were limited to checklists (Curran 1977, Abel-Smith, Zander, Brooke 1973).

A range of differing interview techniques were also used. In some cases unstructured interviews were used to emphasise detail, while in others structured questionnaires were administered with strictly ordered questions. In some instances direct questions were asked about the legal problems experienced, while in other research the questions related to situations with a ‘high’ occurrence of legal problems and asked whether the respondent has experienced such problems. Still other studies used combinations of interview techniques.

Some projects have limited the mapping of problems only to those diagnosed by the respondent. Such an approach does not include problems where legal issues have not been identified by the respondent despite being relevant using external criteria. But other studies asked respondents if they had consulted a lawyer or another legal expert. Finally, Sykes (1969-70) enlisted six lawyers to evaluate the legal aspects of the described problems according to external criteria, while Schuyt, Gronendijk, Sloot (1976) used lawyers as interviewers supplementing the respondent’s diagnosis with external criteria.

Studies from the nineties adopted similar practices. Blacksell, Economides, Watkins (1991), for example, seem to have mapped their respondents’ own perception of a ‘legal need’ to mean the need for a consultation with a solicitor or an adviser in a Citizen Advice Bureau (213-14). But it does not appear that they systematically mapped or measured problems by external standards.

The American Bar Association’s CLNS developed a comprehensive questionnaire containing sixty-seven specific sets of circumstances and asked if anyone in the respondent’s household had experienced such situations during 1992. The project consulted ‘virtually all legal needs surveys (primarily at the state level) conducted over the last two decades’, and aimed at covering ‘a broad range of matters for which legal representation might be appropriate.’ When a positive response was received the interviewers asked further questions to clarify that a legal issue had been raised and to determine what course of action had been taken by the respondent. However, the project took care not to ask the respondents to determine the legal context of the situation. Nor did it ask if the household experienced the situation as serious. ‘Legal needs’ were determined by external criteria only and developed in consultation with a panel of experienced lawyers. Evaluation was based on whether the household might have benefited ‘from the assistance of a lawyer, a small claims court, or other forum within the civil justice system.’ The study therefore measured ‘the frequency with which circumstances occur in people’s lives, rather than the frequency with which people "want" legal help or think they may need it’ (Cantril 1996:1,35). The study cautions that a person’s ability to handle a difficult set of circumstances depends on a complex mix of personal, social, economic and environmental factors. Furthermore, it was not assumed that the help needed is either ’legal’, ‘non-legal’ or both (Cantril 1996:3).

By contrast, Scandinavian legal needs’ studies have used action research as the main methodology. for example, Eskeland and Finne (1973), Johnsen (1978), Lid (1980), Haugen and Vigerust (1992), and Sejr (1977). Johnsen (1989:255-74) also presents a general approach to, and analysis of methodology questions in action research.

The action research studies use legally competent interviewers who offer extensive assistance in mapping legal aspects of the respondents’ legal problems. They use interviewing techniques lawyers apply in counselling sessions with clients. In addition, they employ extensive check lists constructed from earlier experiences in delivering legal services to similar groups. These projects encourage respondents to go through their problems thoroughly before the interview. They are requested to present all problems which they think may benefit from an evaluation by a legally competent person. Respondents usually evaluate their needs for legal counselling only after the interviewers make their initial diagnosis of the problem.

The action research methodology evolved from the projects’ offer of legal assistance for all professionally identified problems. Therefore they evaluate the problems both according to the internal ‘legal needs’ criteria of the respondents and the external criteria of the project as applied by the professional conducting the survey. These studies usually label problems as ‘legal needs’ only when they pass both these standards.

Action research studies use the data produced through their own legal counselling and representation as the main source of analysis. But one of the differences with the interview studies is that they map the case stories thoroughly. Besides interviewing, such projects handle all problems that satisfy both internal and external criteria. This methodology produces a rich and precise source of material about the factual and legal structure of the problems and the behaviour of the legal machinery. The case handling data appear as the major source of information about legal needs. The interviews therefore function primarily as the detector of needs, not as the major source of information about their content.

When the problems have been mapped and handled, the projects typically evaluate the registered problems according to different prevailing ‘legal needs’ standards. They usually sort out the problems that pass the means and merits test of the judicare schemes and compare them with the ones that fall outside the schemes. They also apply various standards for needs’ seriousness proposed in reform debates in order to show the precise effects of alternative reform models.

What are the strengths and weaknesses of the two approaches? While the interview studies tend to produce more representative data, action research requires a legal services apparatus for handling the registered problems which is costly and complicated to establish. Developing national statistically representative samples is resource intensive. Action research also requires an extended data gathering period, since both the problem solving process and the outcome constitute major material for the research.

When studies essentially record legal problems and needs from the respondent’s own account, they map legal needs according to internal criteria. The respondent’s own perception of "a legal problem" and a "legal need" determine results. These projects do not systematically confront the respondents’ perception with other data. Attempts to evaluate what services may have been needed are problematic, particularly in cases where the respondent has not sought out legal advice. Internal criteria will differ between respondents and make any assessment of the services required difficult to gauge. However, when the respondent’s perception is supplemented with evaluations from legal experts the relevance of the research for reform purposes increases. These experts are likely to perform external evaluations according to set criteria and, as a result, systematise internal perceptions of ‘needs’ with a common standard.

Action research studies actively and consciously influence their respondent’s perception of needs. They generally register as needs all the problems that are actually dealt with. This usually implies a close link between the respondent’s internal needs criteria and the project’s external needs evaluation. Action research studies map the legal expert’s evaluation as well as the respondent’s and often the perception of the other party. Such studies record with considerable precision the relationship between the welfare problems experienced by the respondent and specific parts of the legal system’s regulations, organisation and case handling. In this way they parallel medical studies that map people’s health problems according to the worries they report compared to studies done by doctors who treat patients. In sum, action research produces a richer and more accurate picture of what legal assistance actually means to the respondents’ welfare than the interview studies.

Both interview studies and action research are, however, vulnerable to under reporting. When asked about past problems, people forget details. They are also likely to experience emotional barriers to reporting sensitive cases. So far surveys have usually measured problems experienced in the past, not the amount and structure of unsolved problems that presently exist. But we could expect people to be more concerned about their current problems than those in the past. Often they also have vague memories of, and are less willing to talk about past rather than current problems. In the interview study by Blacksell, Economides, Watkins, more than two thirds of the reported solicitor contacts had taken place during the last five years and more than one third during the last twelve months (1991:155-56). Taken at face value, a dramatic rise from 7% to 36% in the use of lawyers would have been expected during the last year. These findings suggest extensive under reporting from previous years. Asking about present problems, as the action research studies do, reduces under reporting. Offering legal services also reduces the barrier against reporting sensitive problems, since respondents might improve their welfare by participating.

By offering legal assistance, the action research studies have attempted to map the present unmet legal need - not previously experienced problems. They produce new information about the structure and content of the needs through their professional case handling. Action research therefore provides a broader basis for the evaluations of different policy options.

Some interview projects have measured respondents attitudes towards hypothetical legal problems presented to them. Such studies produce limited information about their respondents’ actual legal needs, since it is difficult to tell how frequently the hypothetical situations actually occur.

As mentioned, some studies only ask if the respondent has experienced situations where legal problems frequently occur. They ask whether the respondent has experienced divorce, bought a house, had a traffic accident, etc. (Curran 1977, Cantril 1996). However, none of these studies can guarantee they cover all situations with a high occurrence of legal problems. They consciously ignore all situations where they consider legal problems are less likely to occur. If we consider that legal problems are likely to occur in a range of situations not identified in these studies most of the legal needs might still go unnoticed.

Finally, research that limits its mapping to checklists of stipulated problems, obviously will not systematically register problems that fall outside the list. However, under reporting is a risk even in projects combining check lists with open questions about legal needs. Problems relevant to external needs criteria might fall outside the respondents understanding and remain undetected by the interviewer.

I have examined the academic viability of legal needs studies above because I think they are indispensable in developing a proper understanding of how the legal services system - legal aid included- actually cover the legal problems that people experience. I will now develop this argument by presenting a general framework for legal services and legal aid research that might help generate knowledge about legal services in a systematic fashion. Besides clarifying the usefulness of legal needs studies, a systemic approach might help develop empirical findings into more general assumptions or theories about the role of legal services and legal aid.

Western societies use the market as the main mechanism for distributing legal services. Markets function mainly according to the economic principles of supply and demand. Legal aid policy attempts to modify the market mechanism with the aim of making legal services available to the poorer part of the population (Abel 1985).

Legal aid policies which modify the market differ significantly between societies. In the Judicare system the public buy services from the private profession to assist the poor. In a Salaried legal aid system the public puts up separate service systems that deliver either free or affordable services to the poor. The dominance of the market in legal services also means that market mechanisms heavily influence the operation of both judicare and salaried legal aid.

However, western societies usually provide a legal counsellor, either free or at a greatly reduced cost, in serious criminal and other types of cases where there is a risk of loss of liberty. Such legal aid regulations eliminate the direct effects of supply and demand on the use of legal expertise in criminal cases. Nevertheless, market mechanisms have many indirect effects.

It is important to understand and analyse the need for legal services and legal aid in a broad social context because legal problems and legal needs are not static phenomenon. They arise, exist and disappear. We should therefore study them as elements in continually developing processes. This perspective is developed in Figure 2.

Figure 2: Legal Problem Processes

First the dynamics of social change are important factors in generating legal problems. For example: when agricultural families are transformed from a rural barter economy to an urban wage-earner and market oriented consumerism, the structure of their legal problems also changes, both in numbers and in content. When the main aim of the household’s production is to satisfy its own needs and the exchange of goods and services take place informally within the local community, law has a limited influence on peoples’ everyday life. However when production for the market becomes the main goal the meaning of law changes drastically. Market transactions become essential to people’s welfare. They also must sell their products on the market, and satisfy their consumer needs from these sales. For all transactions, they must comply with complicated legal regulations. If they lose their earning capacity, they must depend on private or public pensions and welfare schemes governed by complex legal rules rather than being able to draw on informal care and support.

Society’s attempt at governing or at least influencing such processes therefore become essential. Political institutions use the legal system as an important vehicle for handling social change. They issue a flow of provisions, containing market regulations, welfare reforms, property regulations, industrial statutes, and educational programs. Politicians also change bureaucratic and legal institutions and their powers to adapt to change. The structure and development of legal norms and legal institutions therefore contribute significantly to the production of legal problems.

Finally, individuals adapt to social and legal changes in many ways. These strategies also influence the production of legal problems since some adoption-strategies produce more legal problems than others. When, for example, a craftsman or a small farmer face new regulations about book keeping, they might just neglect the instructions, decide to cope with them on their own or hire an accountant to handle the book keeping material. The choice will probably significantly influence both the resulting number of legal problems and their legal content.

As Griffiths (1980) has demonstrated, resort to legal services is only one way of handling legal problems. We can distinguish between three major types of problem solving factors as shown in figure 2.

First, people handle numerous legal problems on their own. They buy and complain about consumer goods, transfer property, divorce and negotiate building licences without expert assistance. Sometimes they would have been better off if they had used external assistance but they achieve acceptable results in numerous cases. People’s own capacity to solve legal problems is obviously therefore an important problem solving factor. As mentioned above, we might argue about identifying as legal needs difficult problems handled alone without legal assistance. Leaving aside this issue, people’s own problem solving capacity constitutes one of the determining factors for identifying the amount of unmet legal needs in society.

The structure of the legal services system determines the amount and type of legal problems it solves. Which institutions legitimately belong to the ‘legal services system’ is a matter for debate. Strictly speaking, we might limit it to lawyers and public institutions with legally trained staff who deliver legal services as their main task. However, we might also include all institutions and persons that actually contribute to legal problem solving, like consumer offices, citizen advice bureaux, public administration, professionals including doctors, priests, architects, accountants, economists, as well as interest organisations, local community leaders, neighbours, friends and family. The effectiveness of the legal services system constitutes a second major factor in the amount of unmet legal need in society.

Legal problems can also disappear or be transformed into other types of problems without active attempts at legal problem solving. The passage of time makes some claims obselete. For example, an application for medical benefit becomes irrelevant if the claimant dies. We can label such processes as outdating factors. They obviously also influence the amount of unmet legal need.

Finally it is important to distinguish here between individual strategies that influence the problem-production or the general process, and problem solving techniques that presuppose that a legal problem has materialised. Of course an interrelationship exists. Accountants might also help by solving legal problems that appear from incomplete book keeping, and experience from such problem-solving might lead the client to adopt a different strategy in the future. For example, a small farmer might decide to hire an accountant instead of neglecting the book keeping regulations if they experience trouble with tax authorities. The major consideration behind a need for legal planning is the desire to avoid legal needs in the future by adopting the most appropriate strategy for prevention.

The model in Figure 2 combines these major elements. The upper part suggests factors that create legal problems, while the lower part shows major problem solving factors. These factors overlap to some extent. For example, urbanisation and changing gender roles interrelate. The effect of expert legal advice also depends on the client’s capacity to understand and communicate his problems. We might sometimes find it difficult to distinguish between passivity as an informed strategy and passivity due to legal ignorance, which constitute an outdating factor. However, research projects might refine such concepts when needed for empirical research.

The model suggests that legal questions arise in society due to a combination of complex social processes and society’s attempts at influencing them through law and legal institutions. Legal questions become legal problems at the point where it requires an effort for the problem holder to solve them, either by his or her own legal capacity or with assistance from the legal services. Unsolved legal problems constitute un-met legal needs until they become outdated legal problems. The un-met legal needs therefore appear as the difference between the effects of the problem creating and the problem solving factors.

The model has both a static and a dynamic interpretation. From a static perspective, it describes legal problems and unmet legal needs at a specific point in time. However, it also describes ongoing processes. Studying legal needs at a set point in time reveals an incomplete picture of the existing needs. It does not capture the legal needs’ turn over. Some legal problems are quickly outdated within weeks or months, while others might last for years if the holder is unable to solve it. Studies of legal problems and unmet legal needs over time, therefore, reveals the dynamics of the primary factors in the creation and resolution of legal problems. However, the existing studies have given limited emphasis to dynamic aspects.

Only a proportion of the legal problems existing in society result in unmet legal need. Numerous legal questions will be solved by problem holders either alone or with help from the legal services system.

One of the consequences of legal problems and unmet legal needs is that they produce detrimental welfare effects. They influence the welfare of numerous groups in society, including, the person with the problem, the problem holder’s family or his or her local community. They also impact on the effectiveness of law as governing and dispute resolving tools. Both legal problems and unmet legal needs act as barriers to the effectiveness of law as a means of achieving social goals.

The model assumes several feedback processes:

The social consequences of legal problems and unmet legal needs might impact on problem handling factors. New experiences with law and legal problems might lead individuals to adapt differently to the law in the future and to change their methods for handling legal problems. The legal services system might also change its operation due to feedback that suggests that available resources might be more effectively prioritised. If problem holders perceive the legal services system as ill equipped to handle problems, more of these problems might be channelled into other types of services.

The social impact of legal needs might also feed back upon society’s attempts to govern problem creating factors. If a legal regime produces huge unmet legal needs with detrimental welfare effects, governing bodies might find it appropriate to change the law to reduce problems. For example, in some countries, as divorce rates increased administrative schemes and ‘do-it-yourself’ packages replaced obligatory lawyer assisted, court based responses.

Legal needs do not always mediate between problem generation and problem handling. Processes may be scrutinised by both individuals and the legal services system resulting in the development of preventative measures to address anticipated legal problems. Alternatively, when society either enacts new law and regulations, or changes and renews legal institutions, the governing bodies might also anticipate the resulting legal needs and try to shape changes in a way that minimise them.

The model also allows for feed back processes between the different problem generating factors themselves. As I explained above, structural change, industrialisation and urbanisation are interdependent processes. similarly, problem handling processes are also inter related. If people’s own problem solving capacity increases, their need for legal services diminishes. On the other hand, if we improve legal services, problems which would otherwise have been either solved by individuals or become outdated may be identified as ‘legal problems’.

Whether the empirical assumptions that I derive from the model actually exist and to what degree, are matters for research. Vital parts of the model are still poorly researched and understood. Most research on problem handling factors focuses on the structure and operation of the legal services system and on legal services to the poor. Research has paid less attention to people’s own capacity to handle legal problems and effects of outdating factors. Neither have the welfare consequences and distributive effects of legal problems and unmet legal needs received enough attention. Studies of problem creating factors seem to concentrate on the occurrence and structure of the legal problems and needs, less on the social and political dynamics that form the problem creating processes. Research has also largely ignored the different feed back processes.

By studying legal need from a process perspective, we might develop a better understanding of its dynamics. Legal problems and legal needs appear and disappear in a continuous stream. Studies at a set point in time will reveal only an incomplete picture of the process. A range of complex factors generates legal problems and the problem-solving process is also complex. We might influence poor people’s handling of legal problems in several ways. These dynamics also form patterns of action that might be of value in a reform perspective. Legal aid appears as just one of many strategies for reducing legal needs for poor people.

We might also attempt to improve their own problem solving capacity; for example through better information, education and organising or improving support systems. We might also target problem creation, by adjusting regulations and bureaucratic practices or by teaching individuals and groups better prevention strategies.

I have suggested that the demand for legal services will differ from the un-met needs. Whether an unsolved problem leads to demand depends mainly on the problem holders’ evaluation of the problem and his or her attitudes towards seeking help. Two major factors that I label strain-off factors determine which needs actually result in demand.

First, we might ask to what extent people themselves perceive problems as legal and begin considering at all whether to seek legal assistance. Do they diagnose the legal aspects of their problems and to what extent? When a tenant receives an unforseen raise in the rent, for example, she might experience it as a pure economic problem or she might start to wonder whether the landlord has a legitimate legal claim. We might label this as a legal diagnosis strain-off factor.

Second, when people experience a legal problem according to internal criteria, they must somehow decide whether to use legal services. If they try to make rational choices, they must weigh possible positive welfare consequences of seeking legal assistance against negative ones. That is, they make a legal services calculation. These mechanisms are added to the model in Figure 3:

first I examine the strain-off effects of the legal diagnosis. It is important to distinguish between internal and external definitions of legal needs. In order to become a legal problem the person with the problem must recognise its potential legal nature. People’s capability to make a reliable assessment of their own legal problems therefore impacts on their demand for legal services and legal aid.

We can divide the required diagnostic skills into two major components. To what extent

do people perceive their problems as having legal aspects?

are they aware of existing legal services institutions and legal aid schemes?

However, problems that are legal according to an external definition, may not appear as such to problem holders themselves. It is reasonable to assume that professionals will label many problems as ‘legal’ that the individuals themselves do not perceive as such due to lack of legal competence or differences in the definition of legal problems. If so it is unlikely they will consider handling them by legal means. For example, if people are unaware of the complaint procedures against administrative decision making, they might regard a refusal of an application as an unjust fact of life, not as a problem that might have a legal remedy.

Of the problems perceived as legal, we must assume that problem holders will regard many as ‘unsolvable’. Such a diagnosis seems adequate if they cannot gain any welfare improvements from applying legal insights. However, the problem holder might also misjudge both the legal prospects and the legal services available. Problems that would have profited from legal strategies might become labelled as legally unsolvable, due to insufficient legal diagnosis. ‘Not legal’ and ‘unsolvable’ problems will become subject to outdating factors and might disappear over time. The problem holder might also resort to non legal problem solving techniques.

We might expect problem holders to separate solvable problems into two categories: those solvable with legal assistance and those solvable by the problem holder herself. Of course, problem holders might misjudge their legal service diagnosis as well. They might misjudge both their own problem solving capacity and the complexity of the problem. They might also regard problems as ‘solvable’ without sufficient reason. Misjudging might lead to strategies that ultimately fail and produce losses or unwarranted claims for legal services.

If legal need research only maps those problems that people themselves diagnose as legal, we will miss all problems that people would label legal if they had access to an expert opinion. Similarly, there are problems that respondents label legal, but would have labelled non-legal had they had such access. The less legally educated the respondents are the greater the risk for such misconceptions. The danger of misjudging, therefore, appears highest for the poor.

Problems that appear solvable according to a legal diagnosis also undergo further evaluation. Rational problem holders will try to predict the consequences of taking legal action. The problem holder might record both possible positive and negative welfare effects. We cannot expect them to put efforts into solving problems or seeking legal assistance unless their calculations show that the advantages of taking some sort of action outweigh the disadvantages. An evaluation of positive and negative factors that include welfare gains and losses will take place. I do not pretend to identify an exhaustive list of possible factors in a legal services calculation, but rather point to some main examples:

Welfare losses are expenses of various kind, like lawyer fees, documentation expenditures, loss of income, travel costs and costs to the opposing party. Lost time is also common. Legal problem solving consumes time whether it is assisted or not. The problem holder must consider the questions, strategies and argumentation thoroughly and often include arguments with an opposing party. If assisted, they must spend time on counselling sessions with the counsellor.

Handling legal problems also means stress. Uncertainty, both about the outcome and about the process itself, are common. Being involved in legal quarrels compromises the self image of many people. A social stigma is often attached to legal problems and the problem holder might risk social or economic sanctions from the opposing party. By resorting to law, conflicts might escalate, and non-legal opportunities for problem solving might be lost.

Welfare gains include improvements of all sorts. They might result from new acquisitions and from the prevention of losses, for example, by successfully defeating a claim for compensation. Economic gains will often appear as a major motive for taking legal action. However, cases about child custody, libel and items dealing with sentimental and emotional issues will also bear on other welfare values. Welfare gains might also result from legal planning. To construct a building will result in some costs in the short run, but over time become important to the welfare benefactors. Although legal counselling might not lead to specific gains or losses, eliminating uncertainty may in itself be a significant relief. Legal action might also offer the opportunity to sanction an opposing party.

People will carry out their calculations according to the individual characteristics of the problem in question and with a varying number of legal services institutions in mind. We might expect them to consider each institution separately. The local lawyer, an advice bureau, a consumer office etc. will all impact differently on the calculation (Mayhew and Reiss 1696:309-18, Mayhew 1975:401-06). They will make a calculation using the understanding and information they actually possess about the legal structure and complexity of the problem in question, their own capacity to solve it and the character and availability of legal services. If their understanding is inadequate, miscalculations and misconceptions will occur. We might experience demand for help in hopeless or irrelevant cases and lack of demand in relevant and important cases. Of course, considerable uncertainty is likely to be attached to evaluation of the different factors in the calculation.

Strain-off factors therefore influence demand. The problem holder’s legal diagnosis determines whether he will become aware of a legal problem at all. If not, we cannot expect demand for legal services to occur. We might regard them as a potential demand for legal services that might surface if the problem holder’s perception of them changes. Their legal services calculation might lead problem holders to conclude that they will not profit from legal services even when needs exist. Such problems might also become channelled into other types of problem solving or end up as ‘unsolvable’problems. Only when the problem holder diagnoses the problem as legal and thinks the use of legal services profitable, can we expect demand for legal services to occur.

Legal aid will also influence the legal services calculation. If a problem holder qualifies for legal aid, this might alter the cost incentive significantly. Also the calculation of the legal aid eligibility must be made from the problem holder’s actual understanding of the coverage of the schemes. If knowledge is poor, miscalculations will occur. However, if problem holders find it worthwhile to consult an advice service, such misconceptions are likely to be corrected.

It is important to recognise strain off factors in legal aid research. If we use actual demand to register legal needs, we will miss all problems that are not brought to the legal service system. People only channel a very limited number of the legal problems they experience to legal services. We also build a very incomplete picture if we rely wholly on the problems that appear legal according to the problem holders’ internal criteria as several legal needs studies have done. In addition we might expect internal criteria to vary significantly between problem holders. We register their perception of legal problems instead of the problems that would profit from legal expertise.

According to market theory, both demand and supply have different elasticity. If supply is elastic, it will adapt to demand, if it is inelastic, demand must adapt. But what factors influence the supply of legal services? My two previous models describe mechanisms that determine demand. Supply will depend on the structure and capacity of the legal services system. In Figure 4 I identify several factors that are important in determining the elasticity of the system.

Fig 4: Factors Influencing the Capacity of legal Services and Legal Aid

Figure 4 suggests that the number of legal experts in a society influence the capacity of the legal services system. This number depends on the turnover in the legal profession and is strongly influenced by the output of legal education. Several factors determine this figure including the general demand for higher education, the number and capacity of law schools, and the competition from other professions.

Although law schools constitute a main input factor for the amount of legal expertise in society, they are not the only one. As the model suggests, there are other ways to gain legal expertise, although it is usually more specialised and limited. Other professionals might gain limited legal expertise as part of their training. Doctors learn about the social insurance and medical benefits system, socialworkers about social benefits, accountants about accounting regulations and tax law, estate agents about property transfer regulations, and architects about zoning laws. On the job training also qualifies for legal advice services. Several countries have separate education for para legals. However, monopoly regulations that favour university trained lawyers are likely to hamper the development of alternative legal services institutions (see Abel and Lewis (1988-89) for extensive documentation and discussion of lawyer monopolies in different jurisdictions).

Not all legal experts service the public as legal advisers. In many countries, business, interest organisations and public administrators employ many jurists or lawyers. Some also work in the courts or in police and prosecutions and some find non legal jobs. The structure of the labour market for legally trained professionals therefore influences the capacity of the legal services system. As I mentioned above, monopoly regulations might restrict supply from non legal professions and from jurists with the same training (Johnsen 1994:331).

The market mechanism obviously impacts on the distribution of lawyers between legal services and other jobs. The job with the best income prospects will attract most recruits. However, increased numbers entering the profession might decrease income making alternatives more attractive. On average, private practice pays better than salaried jobs in most countries. Particularly experienced and skilled lawyers will earn more in private practice than in salaried jobs.

The main factors that determine the capacity of the supply of legal services appear inflexible to shift in demands, at least in the short term. The professional monopolies, formal or informal, that exist in most countries also result in a permanent state of supply deficit, especially to the economic weak. For poor people who depend on legal aid, additional barriers exist.

Judicare schemes usually pay less than the market price, some much less. Those commissions generally appear less economically attractive to private practitioners than market clients. The supply of judicare therefore largely depends on their capacity after they have met the demand from paying clients. Of course, the supply also depends on the grants governments are willing to allocate to legal aid. Traditionally, judicare schemes are open in the sense that no limit exists on the number of certificates that the legal aid authorities will issue. The fee level and the eligibility criteria are the main vehicles to control lawyer use and thereby costs (Johnsen 1994:324-35). The recent development of contracting means new ways for governments to influence the capacity and quality of legal aid schemes.

Salaried legal aid offices compete for lawyers with other legal jobs outside and within private practice. Both the wages paid by other employers and the earning prospects of becoming a self-employed lawyer will impact significantly on the wage level and grants necessary to hire a sufficient amount of qualified staff. For lawyers in salaried offices, the comparison to the income level in private practice is especially related, since few obstacles exist to crossing over. Like judicare, the capacity of salaried legal aid depends on government’s willingness to pay. Charity might also contribute.

The model assumes that the supply of legal services impacts on people’s legal services calculations. It seems meaningless to ask for legal services if no offer exists. This observation also has implications for legal aid. If access is limited and the service poor, problem holders might decide not to use them even when they think they qualify. Demand tends to conform to supply.

We cannot believe that the existing legal needs among the poor is a major factor in shaping legal services or legal aid. The market mechanisms point at the balance between lawyers’ capacity and paid commissions as the major determining factor for the supply of legal aid. But it is difficult to envision legal needs of the poor influencing this balance.

Therefore, we cannot interpret the needs from demand nor supply. If we try, we might conceal the need that is present and miss the opportunity to map the mechanism that actually determines how poor people handle their legal problems and important prospects for improvements.

Legal needs research and legal aid policy

I have outlined an empirical approach to legal need research and discussed some of the methodology challenges for such research. I have criticised previous studies and tried to show that we can improve legal needs research. My discussion has already implied several substantiating arguments for conducting legal needs research according to the principles I have proposed. We might add others as well.

With Zemans (1983) I think that access to legal services is linked to fundamental ideas of justice and political participation in democratic societies. However, the meaning of legal aid for poor people as a means for political emancipation is controversial. Only within criminal legal aid has a broad consensus on minimum standards developed. Civil legal aid appears vulnerable to shifts both in the economy and political ideology. The schemes become unreliable both as problem-solving tools for the poor and as alternative employment fields for lawyers.

We know that the resources available to legal aid are limited and that budgets are presently being reduced in many jurisdictions. Many schemes face severe cuts and some termination. All informed people know that the needs are vast and the existing supply highly insufficient. Does it make sense to study and document needs if it appears obvious that they cannot be met?

Judicare schemes use a major share of their resources on criminal legal aid and family and matrimonial matters. Most legal need studies show that those problems only constitute a limited share of the unmet needs. Housing, debts, social benefits, compensation and consumer matters seldom receive comparable attention. In terms of effectiveness, to get the most out of each legal aid dollar spent, the prioritising of cases and problem areas often seems irrational.

In times of decline it seems as sensible as ever to steer legal aid towards problems that produce the highest welfare gains. Although research cannot decide the underlying value questions about what sort of needs to cover and to what extent, most politicians emphasise effective use of resources when they have made their choices. They want as much legal aid or welfare gains as possible for the money spent.

Such rationality presupposes an intimate understanding of the existing needs. Without thorough legal needs research, it becomes difficult to make rational priority decisions about how to structure legal aid within a set resource limit. For proponents of improved legal aid, documenting weaknesses in the existing system by pointing to serious un-met needs seems imperative.

Research that points to demand or actual use as the benchmark for organising and prioritising legal aid, might mask important needs and legitimise insufficient systems and unfair allocations of the services available. Convincing legal needs research might alter the politicians’ perception of the needs and the dynamics of the existing legal aid system. If we apply a systemic perspective, we might also identify alternate ways of covering legal needs that do not prioritise legal aid for individuals. We might, for example, gain more from allocating more resources to such strategies as advice centres, legal education campaigns, improved public legal education and law reform work.