Empirical study of legal services

The Boston Globe Ideas section today (December 23, 2012) has an interesting article about Harvard Professor James Greiner who is doing empirical studies on the efficacy of providing free legal services to poor people who otherwise would have no representation. It makes legal services attorneys and friends of legal services kind of nervous in a lot of ways. But he is actually a supporter of legal services. He just wants to be sure the money and services are going where they will do the most good.

Greiner's first research effort examined the clients of the Harvard Legal Aid Bureau who were represented in their unemployment insurance claims. His findings were reported in the Yale Law Journal, and discussed in the Yale Law Journal Online, "Service Delivery, Resource Allocation, and Access to Justice: Greiner and Pattanayak and the Research Imperative," by professors Jeffrey Selbin, Jeanne Charn, Anthony Alfieri & Stephen Wizner. Basically, his first study found that the clients were no better off, and had to wait longer for their cases to be resolved when they were represented by Harvard Legal Aid Bureau. Apparently, Greiner has gone on since this first study to examine the effects of legal assistance in other types of cases, and it varies, which is interesting. He has completed a study that showed that representation in eviction cases made it more likely that a client would prevail. Greiner has three other studies in process now: divorce, social security disability benefits, federal prisoners making civil rights complaints.

In all the discussion I saw in the Globe article and in the scholarly discussions in the Yale publications, one aspect I did not see touched on was whether representation of clients assisted the courts. I know from conversations I have had with court librarians that the courts get jammed up with self represented litigants. Judges who have to deal with cases involving self represented litigants end up spending much more time explaining civil procedure and rules, and generally offering assistance to them. It slows the entire law suit down and can make settlements much more difficult. Anything that can assist the self represented litigant to prepare better before getting to the court room would speed the process along, and help the courts. Not all self represented litigants are poor and unable to afford a lawyer. Some simply do not like or trust lawyers and prefer to handle their case by themselves. But whatever the reason they are self representing, they are at a disadvantage in terms of all the rules of procedure, and evidence that lawyers had to learn in law school. And there should be some way to offer assistance to the literate pro se litigant.

Massachusetts Top Judges Threaten to Shut Down 11 Courts Over Budget Cuts

The chief justice of the Massachusetts Supreme Judicial Court, Roderick Ireland and the chief justice for administration and management, Robert A. Mulligan, sent a strongly worded statement to Governor Deval Patrick. Seven justices of the Supreme Judicial Court joined in a letter requesting Governor Deval Patrick not to nominate any more judges because of the impact on the overstrained budget for support staff. And Mulligan sent a letter to Patrick as well.

There is also an archival website which includes a number of statements from the current and former chief justice and chief justice for administration and management or separately. Here is a statement from the previous chief justice, Margaret Marshall and Justice Mulligan on the fiscal year 2011 budget, protesting cuts and the attempted removal of the very troubled Probation Department from the judicial branch into the Executive. The Boston Globe reports from a copy that they have

“We make this request . . . with great reluctance and deep regret,’’ the justices wrote. “The people of Massachusetts deserve better. But the fiscal jeopardy into which the operation of the Trial Court has been placed demands extraordinary action.’’

(from the Globe article) This statement is remarkable in several points. First, Roderick Ireland is an appointment of Governor Patrick. And a number of the other signatories are as well, in a separate letter where seven justices of the top court requested a moratorium on naming new judicial appointments, because of the budget troubles. Second, the statements are coming at a point AFTER the budget is final, not when there is any time to negotiate. The letter explains that for each new judge appointed, the budget cuts would require the department to lay off 3 staff members in order to fund the judge's salary.

The governor's legal counsel pooh-poohed the statements, saying he is still receiving requests from trial court chief judges to fill vacancies, and that this is the sort of grand-standing that the courts have been doing for a long time. But over the last 3 years, the judiciary of Massachusetts has lost a total of $96 million, or almost 16 percent, of their funding. The trial court has lost 1,115 employees in four years, and more than 60 percent of the courts are staffed below the level necessary to ensure the prompt delivery of justice, the judges said. See this article gleaned from the State House News posted at Daily News Transcript,commenting on the governor's and legislators' hostile response to the justices' statements.

The Globe lists out the courts that are slated in the Justices' plan for closure. They plan to close the courthouses, lay off the employees and transfer the functions to the courts nearby. Legislators are alarmed by the plan because the courthouses are both economic engines in their communities and also places where legislators can exercise their powers of patronage. Some of the legislators have stated that the selection of courthouses seemed calculated to punish the decision-makers on the budget and judicial salaries. But the president of the Boston Bar Association, Donald R. Frederico, said the justices' concerns are legitimate, “They're just at the breaking point. At difficult economic times, a lot of programs and agencies have to be cut, but the courts have taken a disproportionately large share.”

As long ago as 2009, former chief justice Margaret Marshall made an eloquent and very public comment and plea about the crisis in state courts as their funding is being squeezed by the recession. See the NECN video. Margaret Marshall is a native of South Africa, and you may have to get used to her distinctive accent. But the video is well worth watching. She is a marvelous speaker and this is a powerful statement in this interview. She gave a talk first to the ABA, raising the issue. She has hard data about what kind of staffing is required to process each type of case, from national data. And she tells the interviewer that in 2009, they were at 80% capacity. The demand is rising as the recession continues, with more divorces, more child abuse, more loan defaults, etc. You can imagine how much more has happened in the 2 years since, as the budget has been slashed further.