The following was contributed by Eric K. Schuller, President, The Alliance for Responsible Consumer Legal Funding (ARC).
As the United States Supreme Court begins a new term, the words carved above the entrance to the Supreme Court Building deserve renewed attention: “Equal Justice Under Law.”
Those four words have greeted generations of Americans approaching the nation’s highest court. But the circumstances surrounding their placement on the Supreme Court Building make them particularly meaningful today.
The phrase was selected for the new Supreme Court Building in 1932, at a time when the United States was in the depths of the Great Depression. Millions of Americans were confronting unemployment, lost savings, financial insecurity, and uncertainty about their futures.
Against that backdrop, the nation chose to place a simple but powerful promise above the entrance to its highest court: Equal Justice Under Law.
Nearly a century later, that principle remains just as important.
Justice should not depend on wealth, influence, or a person's ability to withstand the financial pressures that can accompany a legal claim. Yet for many Americans, access to the courthouse is only part of the challenge. They also need the financial ability to remain there long enough for the legal process to work.
For an injured consumer pursuing a legitimate legal claim, a case can take months or even years to resolve. During that time, everyday financial obligations do not stop. Rent and mortgage payments still come due. Utilities must be paid. Families need food. Cars need gas, and medical and other household expenses continue.
That financial pressure can have a very real effect on access to justice.
The Economic Side of Access to Justice
When we discuss access to justice, the conversation often focuses on access to attorneys and courts. Those are essential, but there is another component that receives far less attention:
Can an individual afford to wait for a fair resolution of a claim?
A well-funded defendant or insurance company may have the financial resources to withstand a lengthy legal process. An individual consumer often does not.
That imbalance matters.
A person facing mounting household expenses may feel compelled to accept a settlement earlier than he or she otherwise would, not because the settlement represents the appropriate value of the claim, but because the electric bill, rent payment, or grocery bill cannot wait.
Consumer Legal Funding can help address that imbalance.
Consumer Legal Funding provides consumers with funds for personal and household needs while a legal claim is pending. It does not finance the litigation itself. The funds are not provided to pay attorneys, expert witnesses, court costs, or other expenses associated with prosecuting the case.
Instead, the money helps consumers meet the ordinary costs of living while their attorneys handle their legal claims.
Importantly, Consumer Legal Funding is non-recourse. Repayment depends upon the consumer obtaining a recovery from the legal claim. If there is no recovery, the consumer does not repay the funding.
Justice Should Not Have a Financial Clock
The principle of “Equal Justice Under Law” does not mean that every litigant will receive the same outcome. Nor should it.
It means that our system should provide a fair opportunity for claims and defenses to be considered on their merits.
Financial hardship should not become an unofficial clock running against an injured consumer.
Imagine two individuals with equally valid claims. One has enough savings to support a family for two years while the case proceeds. The other lives paycheck to paycheck and, because of an injury, may be unable to work at full capacity.
Both individuals technically have access to the same courts. Both may have competent attorneys. Both are protected by the same laws.
But their practical ability to pursue justice can be very different.
If one can afford to wait while the other must accept an early settlement simply to keep a roof over the family's head, we should recognize that economic circumstances have affected their ability to allow the legal process to work.
Consumer Legal Funding cannot solve every financial challenge confronting an injured consumer. But for consumers who choose it, funding can provide something extraordinarily important: Time.
Time to allow their attorneys to do their jobs.
Time for the facts to be developed.
Time for negotiations to proceed.
And time to make decisions about a legal claim based upon the merits of the case rather than the immediate pressure of household bills.
Protecting Consumers While Preserving Choice
Responsible regulation has an important role to play.
Consumers should receive clear contracts and disclosures. They should understand the cost of a funding transaction. Attorneys should acknowledge that their clients have entered into these agreements. Funding companies should never control litigation strategy, direct attorneys, or interfere with settlement decisions.
Those protections strengthen the marketplace.
But regulation should protect consumer choice, not eliminate it.
Policies that make Consumer Legal Funding unavailable or economically impractical do not eliminate the financial hardship that caused a consumer to seek funding in the first place.
The rent is still due.
The utility company still expects payment.
Groceries still have to be purchased.
Removing an option is not the same as removing the need.
A Promise That Still Matters
There is something especially significant about the fact that “Equal Justice Under Law” was placed on the Supreme Court Building during one of the most economically difficult periods in American history.
In 1932, financial hardship was not an abstract concept. It was a reality confronting millions of American families.
Yet at precisely that moment, as the country struggled through an extraordinary financial crisis, those words were chosen for the entrance to an institution intended to represent the rule of law and equal justice.
That history should remind us of something important today.
Economic hardship and access to justice have never existed in separate worlds
A legal right may exist on paper, but exercising that right can become extraordinarily difficult when a person is simultaneously worried about paying the mortgage, keeping the electricity on, buying groceries, or putting gas in the car.
As the Supreme Court begins another term, Americans will once again watch the Justices consider questions involving constitutional rights, federal law, the authority of government, and the responsibilities of individuals and institutions.
The cases will differ. The legal questions will differ. And reasonable people will disagree about how many of those cases should be decided.
But the words above the Court remain constant: Equal Justice Under Law.
Nearly a century after those words were placed on the Supreme Court Building during a period of profound economic uncertainty, their message remains relevant.
Justice should not belong only to those who can afford to wait for it.
Consumer Legal Funding helps give individuals the financial breathing room to allow the legal process to work. It does not determine the outcome of a case. It does not finance the litigation. And it does not replace the attorney-client relationship.
It helps consumers address the realities of everyday life while their legal claims proceed.
That is why Consumer Legal Funding belongs in the broader access-to-justice conversation.
Because the promise carved above our nation's highest court should extend beyond the courthouse steps. The strength of a person's legal rights should not be determined by the size of their bank account.
Consumer Legal Funding: Funding Lives, Not Litigation.
A version of this commentary first appeared in The National Law Review.
