Lawyers striking a deal? Making Dutch legal aid sustainable

Lawyers striking a deal? Making Dutch legal aid sustainable 13 November 2013

Lawyers went on strike in Amsterdam wearing their gowns on the street and not in the courtroom. One lawyer even appeared in a “rain gown” arguing he needed protection against chilly proposals from the Dutch government. On Thursday 21 November 2013, parliament will vote on the budget, so the debate on reforms in the legal aid system in the Netherlands is heating up, as it has in the UK and in France.

A vision is needed

Current government proposals cut expenditure, raise contributions and restrict access to legal aid for consumer and landlord/tenant cases. One of the criticisms is that the proposals do not analyse the effects on access to justice. On October 29th, the Senate passed a resolution stating that the current government proposals lack a coherent vision. The senators want the government to show how access to court and legal assistance will be guaranteed in the future. No irreversible steps before then.

With a few days left for compromise, it is worth looking at the proposals and at alternative cost savings (which the legal aid lawyers failed to produce thus far, although the government coalition invited them to do so).

We at HiiL have been involved in research regarding legal aid reform for many years, in the Netherlands and abroad. In 2012, we published reports on the role of mediation and on trends in access to justice worldwide. More research is in the pipeline. We also contributed to the vision of the Dutch legal aid board on reform and innovation, which is generally seen as realistic and focused on the real needs of users of legal aid. Most ideas below, especially those about divorce, come from this document.

The experts and research found that legal aid plays different roles in different categories of cases. For high profile criminal cases, for help to the marginalised, for divorce and for consumer cases, the setting is completely different. So a vision is best developed for each of the most common and urgent justiciable problems. Each justice supply chain is made up of very different types of suppliers and needs to cater for different needs, with clients having different skills.

Moreover, costs are a function of procedure. Courts, lawyers, prosecutors, experts, plaintiffs and defendants each need to spend more time if the procedure is more complex. So cutting costs can best be done by looking at procedures, innovating them and cutting out unproductive elements.

Criminal cases requiring more than 24 hours of lawyer work


What triggered the strike, is the cut in the hourly fee of the criminal defense lawyers from €104 to €70. A number of high profile members of the criminal defense bar went on screen to strongly oppose this. They claim this will ruin their practice. On the other hand the State Secretary of Security and Justice Mr Fred Teeven claims their current fees ruin his budget. That is true. Expenditure on high cost criminal cases increased from €28 million in 2007 to €42 million in 2012. This is a 75% increase that can hardly be explained by an increase in crime. This is now eating up 10% of the entire legal aid budget. Cutting salaries by one third is broadly seen as unfair though, and even lawyers attract quite some sympathy when they go on strike for such an issue.

What can be done instead?

  • France and Belgium have a capped budget. The remuneration per hour of each individual lawyer depends on the amount of hours claimed by all lawyers. Legal aid lawyers hear after the year ended how much they have earned per hour. The more hours claimed by lawyers, the less they get per hour. The budget for complex criminal cases could be set and remain stable at €30m, for example.
  • Hourly fees are out of fashion. Legal aid remuneration, and legal services to individuals in general, now tend to be paid as a fixed fee, stimulating lawyers to work efficiently and to cut their own operational costs. Lawyers can thus compensate losses from high cost cases with gains from low cost cases. For murder cases, for cases involving multiple defendants, and for sexual violence matters, the fees could be set at fixed levels, perhaps up to several €10,000s. 
  • Criminal procedure may also be up for procedural reform. Many judges complain about the time they have to spend on procedural issues, instead of going to the heart of the matter. As in other countries, Dutch criminal defense lawyers tend to bring up many procedural issues, each with little probability of being successful, whereas prosecutors may submit many dvds filled with evidence. A court procedure could limit the number of issues that can be raised, or governments could limit the number of in-court petitions that will be paid for by legal aid. It would then be left to the lawyer to spend more time on the case pro bono if necessary.

Divorce


Divorce is still highly adversarial. In 2011, the budget for divorce or separation cases was about 17% of the total expenses for legal aid. Innovation can be very beneficial here, both to discourage couples to engage in endless and sometimes disastrous divorce battles, and to reduce legal costs.

There is an increasing supply of valuable services for divorcees: websites with information and advice, online dispute resolution platforms, financial planning, debt restructuring, many forms of mediation, parenting planning, children coaching, legal expenses insurance and fixed fee divorce lawyering, often of a collaborative nature. Divorce lawyers often have a big stake in these new services. They feel they can bring more value to their clients than by going to courts that require them to submit claims and come up with defences, so they are likely to be open to new arrangements.

  • According to statistics provided by the Dutch judiciary, each of the 35,000 separations now leads to 4 separate court procedures. Integrating all issues into one procedure before one judge, with the option to come back for adjustments later, would lead to huge cost savings for everyone involved. An online divorce platform can serve these cases, supporting negotiation, mediation and adjudication by a judge if needed.
  • Legal aid (and court assistance) for separation can be given in the form of ‘vouchers’, worth perhaps €3000 per couple, with an own contribution depending on family income. The clients can then choose how to spend this: on traditional lawyers, mediators, judges or other (accredited) legal services which can add more value. Such a voucher system may lead to important savings on the around €100m the Dutch government spends on divorce litigation. 
  • There could be other ways to stimulate the use of services that make divorce less adversarial. Involving mediators and financial planners could enhance the number of out of court settlements and thus lower legal aid expenditure.

Consumer cases


In 2011, 19,720 clients in consumer cases were given legal aid, which was worth 5% of the legal aid budget. The proposal of the government is to exclude these cases from legal aid.

  • These cases can be dealt with by online platforms (as eBay and Marktplaats have shown). On such platforms, the complainant goes through a diagnosis and legal advice phase, then moves to assisted negotiation, mediation, and if all else fails, adjudication. Very few cases go that far, most are settled at an early stage. Some people may need assistance and this can be delivered by lawyers, but also by other helping professions.
  • For consumer cases, legal expenses insurers offer coverage, but also fixed fee products, as do several law firms. The government can consider to integrate these schemes into legal aid services.
  • Consumer cases are sometimes connected. A procedure and legal aid for efficiently handling mass claims can lead to more savings.
  • Mediation and other forms of out of court settlement could be encouraged as well. Those are not yet available with regard to every type of problem.
  • The procedure before the first instance could be made less and facilitate a speedy outcome.

Lawyers looking at these options may feel that they will make them lose their privileged position. But as we have shown, many lawyers are looking ahead, innovating their own services, finding new ways to add more value to the lives of their clients. That can be the basis for an agreement reflecting a sound vision on access to justice, going beyond next year’s budget.

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This blog was co-written by Maurits Barendrecht, Henk Jan Scholten, Ruby Schrader and Marzena Wrzesinska,