Justice Costs a Lawyer, and That Is Not an Accident

Suppose someone owes you a modest sum and will not pay. Or a landlord keeps a deposit he has no right to. Or a shop sold you something broken and refuses to take it back. You are in the right, the facts are simple, and the law, if you could reach it, is on your side. Now try to reach it.

The Toll Booth

The first thing you discover is that you cannot simply state your case to a judge. There are forms, and the forms have rules, and the rules are written in a language that is nearly English or nearly Hebrew but not quite. There are deadlines you did not know about. There is a fee. There is the question of which court, and getting it wrong costs you months.

So you consult a lawyer, and the lawyer tells you what the case is worth and what it will cost to pursue, and the two numbers are close enough that the rational move is to drop it. Most people drop it. The system has priced justice in small matters at slightly more than the matter is worth, and it did not do so by accident.

I want to be careful here, because there is an easy version of this complaint that blames lawyers as a class, and it is both unfair and wrong about the mechanism. Lawyers did not design the toll booth. They staff it. The question is who benefits from its being there.

Who Benefits

Two parties, and neither of them is the profession.

The first is anyone who is regularly on the wrong side of small claims: the landlord with forty flats, the retailer with a return policy that violates the law, the employer who shaves hours off the payslip. For each of these, the cost of being sued by one person is trivial and the cost of being sued by everyone they have wronged would be ruinous. A justice system that most victims cannot afford to use is, for them, a licence. They do not have to win the cases. They have to make sure the cases are never filed.

The second beneficiary is the state itself. Courts are run by the state and paid for by the state, and a court that everyone could use would be a court the state had to fund at many times its current size. The state does not want that. So it tolerates, and quietly maintains, a level of friction that keeps the docket manageable, and it calls the result efficiency. A person who gives up on a valid claim because the process defeated him does not appear in any statistic as a failure of justice. He appears as a case that was not brought.

Access to justice is expensive because the people who could make it cheap are the people who pay for it and the people who are sued under it.

Why the Profession Makes It Worse Without Meaning To

Lawyers are trained to think in the law's categories, and the law's categories are, as I have argued elsewhere, a narrow subset of what people recognise as right and wrong. This training has a consequence for access.

A lawyer looking at your simple case does not see a simple case. He sees jurisdiction, standing, limitation periods, the correct cause of action, the evidence that will be admissible and the evidence that will not. Every one of these is real, and every one of them is a reason the case is harder than you thought. He is not inventing obstacles. He is reporting the ones the system contains, and the system contains them because generations of his predecessors added them, each for a defensible reason.

The result is a profession that genuinely cannot see how the accumulation looks from outside. Ask a lawyer whether the system is accessible and he will tell you about legal aid and small-claims tracks. Ask the person who gave up on the deposit and you get a different answer, and the second answer is the one that measures the system.

The Sophistication Trap

There is a further problem, and it is the one that makes me pessimistic about reform from within.

The law rewards complexity. A more sophisticated argument beats a simpler one; a more elaborate procedure is harder to challenge than a plain one; a longer contract protects its drafter better than a short one. So every participant with resources has an incentive to make the game more complicated, and every complication is another step the person without resources cannot take.

This is not unique to law. But in law it has a special cost, because the whole point of the institution is that the person without resources should be able to win against the person with them when he is in the right. A legal system in which sophistication reliably beats merit has stopped being a justice system and become a market in which justice is one of the goods for sale.

What I Would Want

Not the abolition of lawyers, which is the fantasy version of this argument.

I would want the friction measured and published: how many people with valid claims below a certain size actually file, and how many give up, and why. That number is the accessibility of the system, and nobody currently reports it because nobody currently has to.

And I would want the parties who profit from the friction named as such, so that the next time a reform to simplify small claims is opposed on grounds of judicial workload or procedural safeguards, the public can see who is standing behind the objection. It is rarely the people whose deposits were taken.