A New Perspective on Legal Need and Legal Capability

This third volume of our PULS reporting builds on the accounts of problem experience and legal capability set out in the first two volumes. It presents the findings of new analyses of the relationships between both legal capability and demographics and:

• justiciable problem-solving behaviour
• whether people obtain the legal assistance they need
• legal need and unmet legal need
• satisfaction with the progress/outcome of efforts to resolve justiciable problems.

Legal capability is the knowledge, skills and attributes required to decide whether and how to use the law and legal processes. This report offers a unique analysis of the complex interplay between legal capability, legal problems, demographics and legal need. The investigation provides important new evidence of how legal capability affects justiciable problem resolution and the difference legal and other advice services can make.

The relationships between legal capability, justiciable problem-solving behaviour and experience set out in this report provides a rich resource of evidence for policy and practice. This includes understanding the disadvantages that follow from disparities in levels of relevant capabilities and the detriment this may entail.  

The volume explores how people’s skills in managing a legal problem, experience of the system, and what attitudes they have about the law can affect behaviour and outcomes, including how satisfied people are with the progress and resolution of the legal matters they face. The findings clearly demonstrate that legal capability matters.

This report yields further insights to suggest new directions for reform and enable public legal assistance services to best meet people’s needs.

The PULS developed and implemented several new measures of the knowledge, skill, confidence and attitude dimensions of legal capability.

To understand the skills and confidence that people brought to justiciable problems, we looked at:

• Perceived relevance of law – the extent to which people understood the law as relevant to common problems.
• General legal knowledge – the extent to which people knew the content of the law, across five common problem types.
• Practical legal literacy – the extent to which people had foundational skills for tasks, like dealing with forms and communicating verbally and in writing.
• Digital legal capability – whether people had done or could do some of the tasks required to deal with issues online.
• General legal confidence – people’s confidence in achieving a fair outcome they would be happy with when dealing with an escalating legal problem.

To understand the attitudes people brought to justiciable problems, we looked at:

• Narratives of law – how people perceive the law, such as something remote, something to actively resist, a game or as something they can practically use.  
• Inaccessibility of lawyers – the extent to which people viewed lawyers as inaccessible.
• Trust in lawyers – the extent to which people trusted lawyers.

We looked at various aspects of capability, both separately and together as composite outcomes to get a clear picture of what mattered most in justiciable problem experience, behaviour and resolution.

New concepts, new potential

The PULS brings a change in focus, part of an emerging, broader shift from a top-down court and lawyer-centred policy approach to a bottom-up person-centred approach to service delivery and reform.

The PULS shows a clear mismatch between legal service provision and the legal needs of the public.

Legal capability is a critical determinant of whether people get the help they need. Consequently, there is a real opportunity for legal capability to be operationalised within legal services, to better meet legal need, and potentially make more effective and efficient use of finite resources

Matching services to needs

The PULS shows that low levels of legal capability meant respondents not getting what they needed and difficulty extracting value from legal services, and the legal system more broadly.

To provide the best value, the justice system must mirror needs and capabilities, in order to meet diverse legal problem-solving behaviour and outcomes demonstrated by the PULS, and the legal capability of the whole community.

The PULS findings raise profound questions about how services are delivered, and clearly identifies legal capability as part of the answer.

The PULS shows that policy and practice concerns don’t end once someone obtains legal advice, and that there is more to learn about successfully meeting community legal need.  

The legal capability cycle - virtuous or vicious

The PULS has shown that justiciable problems sow the seeds for further problems, at great individual and social cost.

When faced with justiciable problems, respondents with higher levels of legal capability were better able to deal with problems themselves, obtain the support they needed, and achieve outcomes they were happy with.

Skills dictated success in recognising and accomplishing the tasks required for dispute resolution and deriving benefit from legal services. Positive attitudes then stemmed from positive experience, in turn informing future actions and interactions – a virtuous cycle.  

Conversely, people with lower skill levels, less confidence and more negative attitudes towards law and lawyers were less able to deal with problems themselves, obtain the support they needed, and achieve outcomes they were happy with.

Skills dictated actions and outcomes, and negative attitudes flowed from negative experiences, informing future actions and interactions – a vicious cycle.

Do no harm

Negative attitudes meant increased lawyer and court use. This may seem counterintuitive, but it is only part of the story. This does not mean negative attitudes increase desire to use lawyers or courts, rather that experience is contributing to attitudes.

Those with the most negative attitudes were more likely to have been involved in court or tribunal proceedings but often not as proactive participants.

Critically:

• positive attitudes were associated with people using the law, negative attitudes with people having the law used against them.
• positive attitudes with having legal needs met, negative attitudes with them going unmet.
• positive attitudes with good outcomes, negative attitudes with poor ones.

Respectful, transparent and accessible justice cannot be a luxury, they are the social glue that binds society.

Beyond disadvantage

PULS Volume 2 demonstrated that legal capability is linked to demographic characteristics.

Legal capability extends further, it transcends social and economic disadvantage. Legal capability and disadvantage are not the same and the effect of legal capability remained, with or without disadvantage.

This means that we are all at risk of not managing justiciable problems well, having unmet needs and getting poor outcomes. Consequently,   it’s imperative to encourage appropriate levels of support to all facing justiciable problems. This includes public legal assistance, private practice, process, and to services beyond the justice sector.  

Building capability

There is interest in promoting legal capability, to enable people to better recognise, understand and, when necessary, use law and legal processes. But what legal capabilities mattered most?

Interestingly, general legal knowledge had little bearing on strategy, outcomes, whether legal needs were met. This reinforces the idea that while there may be a place for targeted just in time intervention, it is hard to make a case for broad brush just in case legal education focussed on general legal knowledge.

What stood out was practical legal literacy. It appeared instrumental in better experience and outcomes. Yet, practical legal literacy is a basket of generic skills that no more falls within the remit of the legal sector to address than does public numeracy.  

This further emphasises the importance of designing public information, referral systems, forms, processes, structured interactions, general support and expert legal services to meet the needs of people at all capability levels.

Capability asymmetry

Addressing legal capability is vital to ensuring the fairness of the justice system and wider society.

The PULS shows that many inequalities in the experience and resolution of legal problems are best understood in capability terms. Capability asymmetries lie behind, reinforce and operate alongside demographic differences.

Asymmetrical skills lead people down different paths to justice, present different obstacles, impact the value of services and process and feed through to outcomes. They then bring about an asymmetry in attitudes.

Taking capability asymmetry seriously is a route to democratizing law. This means ensuring the justice system does not simply amplify existing capability and advantage.

It means shifting to more human-centred approaches that can change narratives. This opportunity extends to entire justice system; legal services, processes, outreach, referral, process innovation, architecture, form of assistance. All these together have the capacity to make justice more accessible and more equitable.

Challenges for policy and practice

The PULS Volume 3 provides a new perspective on legal need and legal capability. Change that benefits all has capability at its heart. This presents opportunities and challenges to regulators, policymakers and to service providers.

Regulators can reflect on capability in defining who can provide different types or levels of support, what standards are set, and what practice might be encouraged standards, encourages better practice.

For policymakers, findings point to potential in encouraging innovation and diversity of service provision, in a way which is more sensitive to needs and capabilities, with potential for new forms of delivery, as well as revision of existing systems.

For service providers, these findings illustrate the need to measure capability in practice, tailor accordingly, collect data to see if the response worked, and continue to refine.

Legal capability matters, it is a critical component of inequality of justice. If we seek equality of justice, then operationalising legal capability is key. If we seek change that benefits all, then capability must be at the heart of reform.