The Middle Cases
Part 1 in a Four-Part Series on Rethinking Access to Justice.
In 1876, the German Legal Aid Society—later The Legal Aid Society—was founded in New York to help low-income German immigrants navigate a legal system designed by and for lawyers. It handled 212 cases in its first year, laying the groundwork for America’s legal aid tradition. Today, hundreds of legal aid organizations serve indigent clients, assuming that anyone not classified as indigent can secure their own legal representation.
Recently, the Institute for the Advancement of the American Legal System (IAALS) recognized that not only indigent clients, but also middle-class Americans, encounter an overly complex legal system. In response, IAALS launched the Above the Line Network (ATLN) to address the challenges faced by those who cannot easily afford legal services but are not poor enough to qualify for aid.
These initiatives indicate that the current classification of legal disputes often relies on the litigant’s economic status:
Indigent Clients: Unable to afford any legal services.
Middle Class: Able to pay some legal fees but often under serious financial strain.
Wealthy: Generally able to pay for comprehensive legal representation without significant hardship.
This article argues that categorizing legal disputes by the litigant’s economic class is flawed. Instead, a more accurate classification should consider a variety of factors, including the nature and scale of the dispute, the existence of fee-shifting provisions, and the availability of alternative funding arrangements.
A Complex Legal System and Payment Methods
The legal system’s complexity is well documented. Litigants must either master substantial legal knowledge or pay a professional who already has it. Attorneys are usually compensated in one of three ways:
Charity:
Attorney fees are covered by donations, government funding, or voluntary pro bono work. This option is reserved mostly for indigent clients or case types where no other payment model is possible.Contingency:
The lawyer is paid only if the client obtains a favorable settlement or judgment, taking a percentage of the recovery—commonly 30%, 40%, or more. Where fee-shifting statutes exist, attorneys may gain a court-awarded fee in addition to their percentage.Hourly Fees (Including Third-Party Financing):
The attorney is paid per hour of work. Payment can come directly from the client or via a third-party litigation financier who assumes risks similar to a contingency attorney.
These models mean that even an indigent client with a strong claim may secure representation on contingency or through financing, while a non-indigent client with a weak or low-value claim might still find no feasible way to hire a lawyer.
Examples of “Middle Cases”
Bob’s Remodeling Dispute:
Bob paid $35,000 extra when a contractor abandoned a kitchen remodel. Suing for breach of contract could cost $50,000–$100,000, with no fee-shifting provision. Even if Bob wins, he risks a net loss. His economic class is irrelevant; this lawsuit is simply not cost-effective if a lawyer is hired.
Steve’s Slip-and-Fall:
Steve’s minor injuries resulted in $2,000 in medical bills, and he wants an additional $5,000 for pain and suffering. His state’s small-claims limit is $3,500, so no attorney will take the case on contingency. Legal aid generally doesn’t handle personal injury claims, leaving him without representation even if he’s indigent.
Mary’s Custody Modification:
Mary and her ex-husband share similar financial resources, so fee shifting doesn’t apply. Mary doesn’t qualify for legal aid coverage, and paying attorney fees out of pocket could jeopardize Mary’s children’s education funds. Whether middle class or relatively well-off, her case remains both expensive and unappealing for contingency lawyers.
Property Owner vs. Caltrans:
Caltrans installed a fence along a property line without permission. The owner’s only option is to sue to safeguard his rights, but taking on an agency of a state that is the 8th largest economy in the world could cost hundreds of thousands of dollars—an insurmountable sum for most.
Defining the Middle Cases
These scenarios demonstrate legal disputes in which the costs of traditional representation—whether contingency or hourly—cannot be justified. They are “middle cases” because they fall outside current legal assistance frameworks:
They do not qualify for charity-based legal aid.
They are typically too low in value or too risky for contingency.
They are not practical for self-funding through hourly fees.
Formally, middle cases are those in which financing full representation makes little financial sense, irrespective of whether payment comes from the litigant, an attorney, or a third-party funder.
Conclusion
“Middle cases” highlight the pressing need to reexamine how we classify and address legal disputes. Rather than focusing solely on a litigant’s economic status, we must take into account factors like claim value, procedural complexity, and feasible fee arrangements. Only by accurately identifying the problem can we create effective solutions that bridge the gap—ensuring that people of all income levels have access to the legal help they need.