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.

Limited Representation--An Idea Whose Time Has Come?

This New York Times editorial, written by New Hampshire Chief Justice John T. Broderick, Jr. and California Chief Justice Ronald M. George, makes a cogent argument for closing the "justice gap" by unbundling legal services. Observing that many litigants can no longer afford legal representation, the two justices voice their support for so-called limited scope representation which allows attorneys to "take only part of a case, a cost-saving practice ... that, with proper ethical safeguards, is responsive to new realities." Limited scope representation is the subject of ABA Model Rule of Professional Conduct 1.2, adopted by forty-one states, which provides that "A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." The ABA Section of Litigation recently released the report of the Modest Means Task Force, which concluded that the time was ripe to move ahead with this initiative. The alternative is that many litigants will have no representation whatsoever. As Chief Justices Broderick and George conclude,

... [F]or those whose only option is to go it alone, at least some limited, affordable time witn a lawyer is a valuable option we should all encourage.

In fact, we belileve that limited-scope-representation rules will allow lawyers--especially sole practitioners--to service people who might otherwise have never sought legal assistance. We also believe that carefully drafted ethical rules allowing laywers to handle part of a case give the legal profession an opportunity to help the courts address the ever-growing number of litigants who cross our thresholds. This cause has special relevance now as state courts are faced with serious cutbacks in finacing, forcing some to close their doors one day a week or a month, lay off front-line staff members and delay jury trials. None of this bodes well for the judicial system or for those seeking to vindicate their rights through the courts, whether they have a lawyer or not.

We need members of the legal profession to join with us ... in meeting this challenge by making unbundled legal services and other innovative solutions--like self-help Web sites, online assistance programs and court self-help centers--work for all who need them.