Yesterday was the best of days, and it was the worst of days. I was a participant and presenter at the "Research Conference on Access to Civil Justice: Empirical Perspectives," which is an ambitious event organized by the indomitable Sam Estreicher, NYU law prof and co-director for the Opperman Institute of Judicial Administration.
The good part of the day was being surrounded by intelligence people of good will who want to empirically study, and ultimately improve, our various systems of civil justice, particularly for poor and working class individuals. The bleak (or sobering) portion of the day was coming to grips with (a) how few Americans can obtain the services of a lawyer to remedy serious wrongs, (b) how poorly the system often operates, even if you have a competent lawyer, and (c) how this process can foment profound misunderstandings, disappointment, and disengagement among the very people that the law is putatively supposed to protect.
Here is a quick thumbnail sketch of the key takeaways from each presentation (note these are my intepretations, not necessarily the views of the researchers):
- Gillian Hadfield (USC Law), "Assessment of Legal Needs": A large proportion of poor and middle-class Americans households (25 to 40%) with a perceived legal problem take no steps and contact no one; this is much higher than places like Scotland (3%), England & Wales (5%), and Slovakia (18%). The proportion of contact with lawyers is roughly the same in all these countries (20% to 30%), but third party providers and institutions seem to play a much larger role in achieving a resolution. One plausible reason for these patterns is that typical Americans are more likely to accept that the system cannot or will not provide them with relief.
- Laura Beth Neilsen (Northwestern Sociology/ABF), "Pro Se Claimants in Federal Court: An Empirical Analysis of Legal Representation in Employment Civil Rights Cases": Drawing upon a fabulous, large, multi-city dataset of federal employment discrimination cases, we learned that (a) employment discrimination claims are the most common type of civil claim in federal courts; (b) they are disproportionately filed pro se; (c) net of other factors, pro se are more likely to be dismissed; (d) even when a plaintiff wins (because of conduct that can shock the conscience) the process itself can exact a huge personal and emotional toll, which can exacerbate perceptions of discrimination and alienation among protected groups.
- Rafael Pardo (Seattle Law), "An Examination of Access to Chapter 7 Relief by Pro Se Debtors": After assembling a large sample of Chapter 7 bankruptcy cases covering a time period both before and after the 2005 federal bankruptcy reform (which heightened the law's complexity), we learned about the large proportion of pro se cases (~20%). In turn, Rafael used multi-regression analysis to show (a) that filing pro se is associated with a much higher level of case dismissals, (b) that the change in the law was not associated with heightened rates of dismissals generally, but (c) the interaction between pro-se and filing under the new BAPCPA statute did lead to higher dismissal rates. This raises the question of whether folks can afford to pay for the law's heightened complexity.
- Joy Radice (NYU Law), "Expanding Access to Civil Legal Services: Four Profiles of Legal Aid Organizations Serving Low-Income Communities": Roy used the case study method to develop commonalities and differences among four examples of legal aid to low-income communities. The presentation revealed the vagaries of depending upon the Corporation for Legal Services funding (including curtailment of professional discretion) and how threadbare these operations really are, often having affects on case selection. One exception to the general findings was a legal aid center staffed by Harvard Law students, which had the benefit of careful planning through an elite law school. But clinics staffed by law schools, no matter how outstanding, are not a template for the larger problem of lack of access. The emphasis in some organizations on litigation over ADR (especially meditation) was a little surprising, though I need to be careful about generalizing from case studies.
- Andrew Morriss (Illinois Law), "Clinical Legal Education: Evolution of Law School Clinical Programs": Andy discussed how clinics evolved out of (a) a perception among the bar that law graduates lacked adequate skills (sound familiar) and (b) huge infusions of Ford Foundation money in the 60s and 70s, which arguably was a tipping point in wider adoption of clinical programs. Andy created a typology of clinics and presented how they broke out by relative rank, with "impact" clinics most prevalent at high prestige schools. He also presented evidence that "impact" clinics as opposed to "access" clinics were part of larger project for clinicians to gain status relative to their tenure-track peers--a project that is pushing toward an elimination of the doctrinal/clinical distinction. Be that as it may, Andy suggests that access for the indigent--one of the original purposes of clinics--is itself becoming marginalized at many institutions.
- Jon Nash (Emory Law), "What Do Pro Bono Programs Do?": This presentation reviewed the plausible theoretical drivers for large law firm commitments to pro bono--e.g., training for associates, a recruitment tool, burnishing of brand, all of which could potentially redown to the bottomline. Drawing upon data from Law Firm Working Group, which has firm attributes and average pro bono hours per lawyer going back 15 years, there is weak positive support for the business case. When the data are disaggregated by firm HQ location, however, the a simple business story seems far less plausible. Going back to the access theme, the paper prompted the larger question of what types of pro bono these firms were doing. Publishing pro bono hours in The American Lawyer may itself be a driver of more pro bono work.
- Hon. Robert Katzmann (Second Circuit Court of Appeals) then delivered a final keynote address entitled "The Unmet Legal Needs of Immigrants: The Role of the Legal Profession." Judge Katzmann reported on the veritable flood of immigration appeals since the BIA moved toward more summary procedures to reduce its own glut of cases. More aggressive immigration enforcement in the post-9/11 world also may be a factor. Remarkably only 35% of immigrants in his court's docket have the benefit of legal counsel. In addition to be terrifying experience of being a poor indigent person in bureacratic government maze in a new country, the lack of representation can have disasterous personal consequences, including deportation and separation of families. Solutions to this serious lack of access problem--none of them easy or quick or entirely satisfying--were then discussed.
Today we have several more presentations from highly skilled empiricists. I am looking forward to the final plenary session, where we can discuss some action items.