Some Initial Thoughts on The Offer of Representation Study — Designing a 100% Access System

Let me suggest that this study, regardless of, or perhaps because of, its controversial nature, will be looked back at as a critical event in the history of access to justice.  Context is, of course, all, not only in understanding the data reported in the study, but also in assessing its overall meaning and impact, and in discussing the future directions it should lead to.

For me, the key context is that this is a time in which there is a broad national consensus, at least among national constituency organizations, about what is needed to achieve access (court simplification and services, bar flexibility, and legal aid efficiency and resources), but also a lack of political will to move that consensus forward in the broader political arena.

Part of the lack of political will comes from a deep fear of financial consequences.  Whatever the intellectual achievements of the Civil Gideon movement, the fact remains that litigative efforts have largely failed.  Indeed, the oral argument in the Supreme Court last week on the civil contempt / child support counsel issue again illustrated the inevitable impact of financial concerns. (Transcript here).  E.g Transcript at 38 (“massive change.”)

I believe that we are only going to make truly significant progress on access to justice in these tough times (which are likely to go on for a long time, for state courts at least, given the changes in the structures of state budgets) is to convince decision makers that we can provide access to justice while controlling costs.  This is very hard to do, given the entitlement model that ground so much of the advocacy.

However, I see in this paper — as well as the discussion about it, and others that are in the pipeline, the beginning of the analysis that can give us the cost estimates, and the cost controls that will make access to justice politically unassailable.

To be concrete, my own view, having actually been an unemployment advocate in Massachusetts, before law school in the 1970s, and being familiar with the advaocy structures that have grown up, is that these results are best understood as the product of the (relatively) accessible nature of the agency, the high benefits win rate, the lack of experience with the system that second year law students suffer,  the fact that the non-treatment group so often got representation — which should surely have been better than that provided by students.  I should add that my own experience with the agency was that winning was not a matter of legal or forensic skill, but rather a matter of internalizing, and communicating to clients one simple cultural message “I want to work so hard it hurts”.  But most of all, I think that a large portion of these cases were doomed to win or lose, regardless of what kind of assistance they got.  In other words, representation of any quality might make less difference than it should — with one importance caveat.  Much of the impact of advocacy in this area depends on working with the ultimate UI claimant long before the claim is filed, and ideally long before the employment is terminated.

Why does this matter?  It matters because in a cost effect access to justice system, we need to find a way to provide resources only in cases in which they have a significant chance of making a significant difference, and even in those cases to provide only the cheapest help that will acheive that goal.

I think that this study highlights the ultimate possibility of making these determinations.  This is because we here see one form of treatment, delivered in one context, and we all agree, I think that we need to understand both the treatment and the context better to understand the meaning of the study.  This is the first piece of randomized mosaic that will ultimately produce a multi-dimensional picture of what makes and difference and when.  When we know that, we will be able to figure out what systems will allow us to decide who gets what in terms of help, and how such systems can be grounded on broadly legitimate factors.  In other words we need a triage system that has wide intellectual and political legitimacy, and that considers how to leverage recent innovations in court and bar services to minimize the number of situations that need the most expensive forms of access services.  The most interesting randomized studies of all will be those that compare different systems of triage, including both different criteria, and different decision-makers.  I would very much appreciate thoughts on how this work might be advanced.

Those interested in the possible scope of the access to justice consensus, including its relationship to triage, can read my recent judicature article here.  Those interested in parsing the recent Supreme Court argument  can look at my recent blog here.

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