Access to justice in a recession

It’s time to try some unorthodox approaches

State government programs addressing issues of the poor or the lower-middle class face the iron law that resources are typically least plentiful when they are most needed.  The need for various human services becomes greater in times of economic distress, but the state revenues that fund such programs decrease due to the same economic forces. Gov. Deval Patrick is acutely aware of this, as he begins his second term with a projected state budget deficit of $1.5 billion looming.  

Nowhere is this iron law more true than in the broad set of challenges coming under the rubric of “access to justice.”  Many hearing this phrase assume that it refers to providing lawyers to poor people in court proceedings.  That is part of what the phrase refers to, and it is a part that suffers an unusually severe crunch during bad economic times. Indeed, with respect to criminal cases, in his 2012 budget plan, Gov. Patrick has proposed eliminating state contracting with private attorneys to represent indigent defendants and replacing them with 1,000 state-employed lawyers. Administration officials say the move would save up to $60 million annually. Advocates for the current system say legal representation for poor clients would suffer with state-employed public defenders who are overworked and underfunded. It’s hard to know off-hand who’s right; perhaps both. With regard to civil cases, though, a far less understood threat to legal aid budgets comes from an unlikely culprit: lowered interest rates that result from economic policy-makers attempting to restart the economy. 

The connection here is that a big chunk of legal aid funding comes from interest on accounts lawyers hold on behalf of their (non-indigent) clients.  Thus, lower interest rates mean less money to pay lawyers to do the things that typically need more doing during a recession:  filing applications for restraining orders on behalf of battered spouses whose marriages have suffered from economic stress; assisting tenants facing eviction from their apartments; helping borderline disabled persons to apply for social security disability benefits (benefits that they might not have needed to depend on in a better economy because employers were more willing/able to accommodate their disabilities); filing and litigating appeals of denials of unemployment claims within the Department of Unemployment Assistance; or contesting predatory lending practices associated with credit cards or consumer purchases.  And, sure enough, during the present recession, as demand for all of these services rose, funding for legal aid programs was decimated, with a triple-whammy of cuts in charitable giving, reductions in state funding, and the lower interest rates discussed above. For example, according to a recent article in the National Law Journal, interest on lawyers’ trust fund accounts generated $380 million nationally for legal aid groups in 2008, but that fell to $124 million in 2010, with some legal aid organizations now able to help only one in nine potentially eligible clients.

But access to justice is an issue faced by the lower and lower-middle class, not one suffered by programs or lawyers who would provide legal representation.  The answer, therefore, does not necessarily have to be lawyers, or even legal services.  Instead, the answer might be alterations in court or administrative systems to make them more understandable and accessible to persons without lawyers; it might be reforming the substantive law to make it less of a mystery, which it often is even to attorneys (notice that Congress went the other direction a few years ago with the Bankruptcy Code, which “reformed” the system into one a prominent scholar called a method of inflicting “death by a thousand paper cuts”); or it might be funding alternative approaches to providing legal assistance.

What can a governor do on this front?  Explore some unorthodox solutions.  Here’s one idea:  Dedicate a portion of funding going to access to justice programs for the longer term, and invest that portion in securities that substantially increase their payouts when interest rates fall.  The obvious idea here is to compensate for the damage on legal aid budgets by crashing interest rates as well as for the cuts to funding that tend to occur when interest rates are low (cuts made in the charitable giving and state government grants identified above).  Even the financial managers who helped get us into the current recession would know how to make such an investment prudently.

Here’s a second idea:  Look for possible models in the form of adjudicatory systems where lawyers or legal representation makes less of a difference in the outcomes.  The idea here is that if providing lawyers doesn’t make much of a difference in the outcomes of cases (however measured) in some adjudicatory system, the reason could be that the system is designed well in terms of accessibility to people without lawyers.  That in turn might be because the forms needed to navigate the system are simple; because the relevant law is understandable; or because the “judge” (in some cases this is an administrative law judge) takes the lead in terms of questioning witnesses and gathering documents.  Or other reasons.  The point is, look to see what “works,” where “works” means achieves similar outcomes regardless of representation.  Affecting outcomes isn’t the only function lawyers serve, but it’s a big enough part of mix to deserve a lot of attention.

How would we know what works and what doesn’t?  Here’s a third idea: Use the facts that far, far more people request of legal services than providers have the capacity to serve, as well as that court systems are flooded, as opportunities to try different ideas to find out what works.  Do what drug companies and the medical researchers have been doing for decades: conduct randomized experiments and measure outcomes.  In these very different sort of “trials,” a portion (say, half) of those taking part are assigned at random to the treatment being studied, while the rest (say, the other half) serve as controls and receive standard whatever minimal assistance they would receive under the current system.

In legal services, this could mean examining whether specialized foreclosure courts like those created to clear dockets in other states (which employ simplified procedures) adjudicate cases more efficiently and provide greater access to justice for tenants and former homeowners, or do they become machines captured by repeat players, i.e., lenders and their lawyers?  For that matter, do mediation programs such as that currently used in Massachusetts’ Northeast Housing Court (which covers Lynn and Lawrence, along with some surrounding areas) achieve just results for low-income persons at a faster pace, remembering that speedy resolution is often good for everyone?  If so, would similar programs work in other adjudicatory contexts?  Does the provision of services via lawyer-for-the-day programs, in which lawyers assist “clients” (there isn’t a traditional attorney-client relationship) on the dates of their court appearances only but not in between court dates, result in outcomes essentially identical to those realized when a litigant is given the benefit of a full attorney-client relationship?  These questions, along with dozens of others that go to the efficiency and accessibility of administrative and judicial systems, are answerable via gold-standard randomized experiments when there are more people that want some service (representation, or rapid access to the court system) than the system at present has the capacity to provide.  Indeed, one hopes that experiments of this kind were part of what California legislators had in mind when they passed a recent law increasing filing fees for certain types of litigation and dedicating the resulting $11 million-plus annually to funding and evaluating court- and representation-based projects designed to increase access to justice. 

One place to look here might be the system of mini-trials (called “first-level appeals”) run by the Massachusetts Department of Unemployment Assistance for unemployment benefits claimants and their former employers.  A graduate student and I recently ran a randomized trial to assess whether one legal services provider’s offers of representation affected outcomes in these mini-trials.  We found no effect on outcomes (other than an unwelcome delay in the proceedings).  From the point of view of designing a system so as to be accessible to litigants without representation, that’s a good thing.  Without more study, we don’t know whether we can generalized the results beyond the particular service provider (and its clientele) we studied, but in terms of looking for a well-run adjudicatory system that is accessible to people without legal representation, the Massachusetts DUA might be a place to start.

Meet the Author
Whatever a reforms a governor implements, he will have to work hard to make them stick.  Passing legislation, such as the recently enacted Act to Stabilize Neighborhoods providing protection to tenants in no-fault eviction cases, is nice.  But paper rights are only that; for the Act and other measures like it to have any effect (and we don’t yet know whether that effect will be for good or ill), the rights granted in these statutes must be enforced in day-to-day interactions between the people of the state and the justice system, broadly defined.  And rights aren’t enforced just because the governor and the Legislature say they exist.  Litigants have to press their rights before decision makers, and that raises all of the issues just discussed.  Pressing those rights may well require lawyers, or at least some form of legal representation, so that litigants can assert their newly created rights effectively and, in doing so, can educate the courts about new law.

Figuring out what works on access to justice will require unorthodox thinking, along with old-fashioned willingness to engage in trial and error.  The governor could provide welcome leadership on both.

D. James Greiner is an assistant professor of law at Harvard Law School.  He was a litigator in private practice and for the US Department of Justice before obtaining a PhD in statistics.  His current research includes examining access to justice issues through a quantitative lens, including by conducting randomized experiments on provision of legal assistance and on the effect of alternative dispute resolution methods.