How race determines access to legal representation

A form of institutional and interpersonal racism, people of color are far less likely to obtain legal representation due to these factors, according to Rights on Trial:

Their search for lawyers: inadequate information and networks, a lack of trust in the legal profession, and high cost (including fees for initial assessments). Payment for attorneys falls into three categories:

Contigency fee, paying the bulk only if a client prevails, and contingency fee plus, an upfront fee designed to screen serious clients or an hourly fee added to funds from the award if the case prevails.

Crucial factors to make economic sense: potential damages, which excludes low wage earners given their average annual earnings; potential to win, which often requires smoking gun evidence; minimal work in case of loss.

Hourly fee, guaranteeing payment regardless of outcome.

Crucial factors to make economic sense: clients understanding the unpredictability of recovery; clients with money. It’s a backup plan for those who can’t convince contingency lawyers to accept their cases.

Pro bono and informal representation. Some lawyers prefer clients with strong cases who have public interest goals and aren’t money-driven. Many operate quietly and without advertising for business, so they’re hard to find.

Lawyers’ selection of clients: prejudice through questions of credibility, merit, demeanor, and ability to pay (or racist code that degrades targets). To take on a discrimination case (which lawyers say they take a small fraction of and are highly selective with), lawyers have to make a cost-benefit analysis. They need to perceive workplace discrimination, plaintiff’s seriousness about pursuing a case, and that the plaintiff and claim can withstand the trial since likelihood of a successful outcome isn’t high — so who can quickly sell a compelling story, who can establish credibility in court, who’s prepared, and who can read discouraging assessments as tests of commitment rather than rejection.

Through implicit bias, attorneys may reproduce the class and racial biases these targets perceive at work. For example, the preference for preparedness might disadvantage those with less education, less access to resources and opportunities, and less general knowledge about law and the legal process — all affecting presentation styles.

Unmeritorious cases do not seem to be the main reason that people of color are less likely to have lawyers. The reason is the highly selective process — with implicit bias — that ultimately results in only about "10% of people inquiring about cases becoming clients," according to the authors.

So groups most affected by discrimination may be the least likely to have the resources to mount effective challenges in court with representation — ironic considering that the legal system better serves non-minority groups.

Photo by Iñaki del Olmo.

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