What can we learn if we assume Greiner and Pattanayak are right?
When legal aid providers read “What Difference Representation? Offers, Actual Use, and the Need for Randomization,” we immediately start to raise questions. Appropriately, we note that there’s a vast difference between a busy law student handling what may be their first case and a professional experienced legal aid lawyer. We note that, apparently, some significant number of the people randomly turned away by the Harvard law school clinic were then advised or represented by Greater Boston Legal Aid.
There is also a broader question, which I will explore in a subsequent post: What is the broader context for randomized study of the impact of legal aid — what kinds of things can we learn from randomized study, and what impact questions can’t be answered through randomization?
As others have written, Greiner and Pattanayak may not be right, or their conclusions may be overstated or unfounded. But legal aid providers can have important conversations that start here: “What if Greiner and Pattanayak are right?” What would it mean if Harvard law students offering representation to random low-income applicants for unemployment compensation are not increasing the number of people getting benefits, and may even be slowing down receipt of benefits for those who win?
Another way to ask this question is this: What does it mean that under some sets of circumstances, offers of legal aid don’t help people?
Here are my answers:
(1) Outreach, client-friendly intake, and supportive client services are crucial to maximizing impact of legal aid to the poor.
Of the low-income people who might seek help from the Harvard Legal Aid Bureau (which is a student clinic), or any of the professional legal-aid agencies, it is very likely that some people could handle their legal problem adequately or even well, without a law student (or lawyer).
On the other hand, there certainly is a large set of of people who cannot possibly handle their cases adequately on their own. There are many, many low-income people who cannot read or write or speak coherently, who live with severe mental health problems, whose only language is not supported in the relevant adjudicative setting, whose mental or physical health or destitution prevents them from being able even to appear at the adjudicative setting, or who face other barriers to successful litigation without representation.
Right or wrong, the Greiner and Pattanayak article reminds me that it is crucial for legal aid agencies to:
- Identify which, of the millions of low-income people in crisis, are least able to resolve their legal issues on their own (and yes, this is a question ripe for further study);
- Ensure that these “most-in-need” people know how to access our services (or that social service agency staff or others in contact with them know how to reach us);
- Ensure that our intake systems (intended to be “triage” systems) effectively identify the “most-in-need” clients
- Ensure that our services include, or are integrated with, support systems for clients who without support cannot take advantage of the legal help we are offering (people who, alone, cannot take advantage of our offers of help because they are afraid, confused, overwhelmed, or otherwise hard to serve).
(2) We need continued research, training and supervision to maximize use of best (most effective) practices.
The fact that Greiner and Pattanayak studied offers of services by law students provides a sharp reminder that there can be a wide range of effectiveness between different providers of legal help. Anyone who has watched a series of cases in court has seen that some lawyers have more impact on the judge than others. Similarly there is variance in how well lawyers organize their work, gather facts, research and present their cases.
In the world of elementary school teaching, the documenting and debating of best practices is well underway. Teach Like A Champion, by Doug Lemov, is an attempt to turn research into set of best practices for teachers. The criticisms of the research will be familiar, including questions about whether the research asked the right questions or included the right samples. But the fundamental effort is right — in any area of legal work, our effectiveness will be driven in part by whether we use the right strategies and techniques. The legal aid community works hard to deploy experience-based training towards best practices. But there has been only limited formal study comparing available techniques and strategies for serving clients. Perhaps further randomized or other outcome research can help us better identify the strategies and techniques that will maximize impact for our clients.
(3) Improving an adjudicative system can increase the number of people for whom we have little impact — and that’s a good outcome!
I have heard from colleagues in Massachusetts that some years back, the unemployment compensation system was complicated and near-impossible for non-lawyers to navigate. Reform efforts by lawyers at Greater Boston Legal Services, Massachusetts Law Reform and others took lessons learned from individual representation in the unemployment system and turned that into systems reform advocacy. Over the years, the system has become more and more accessible to people representing themselves, without a lawyer.
Efforts like this, in various areas of client legal need, have been repeated by legal aid programs across the country. We fervently hope that some people can achieve justice without a lawyer, because we know that the very limited number of legal aid lawyers in the country is inadequate to serve more than a fraction of those in need. Systems advocacy is an essential task, because its success will expand the number of people who truly can achieve equal justice without the offer of a lawyer.