Author: Jeanne Charn


Turner v. Rogers

What a thoughtful and provocative discussion over the past few days on the issues raised by the Turner opinion. In my thinking about this issue, I associate myself particularly with Mike Millemann and others who see opportunities in the Court’s reasoning, particularly the notion that some type of assistance is due. People in court with family disputes make up the largest single category of users of free legal asisstance, not only in the United States but in all peer nations (most with legal aid programs significantly more generous than ours). Likely, this is in part due to the on-going nature of custody, child support and related issues. The circumstances of Mr. Turner, the child’s mother and the grandparent with custody are all too familiar to those of us who have worked providing legal services. The parties in many family cases are often “repeat players” and whether poor or well above poverty (moderate to middle income) few can routinely afford traditional full service lawyers — thus the dilemma recognized by the Court of requiring counsel for the parent in Mr. Turner’s position but leaving the custodial party(ies) to reperesnt themselves. A simple approach is state provided counsel for all parties but this would impose on states costs of assistance for many who are well above typical legal aid guidelines (125% of poverty). With a mandate for counsel in every case in which a party might be confined as a result of civil contempt, cash strapped states are likely to direct existing legal aid resources, particularly those provided at the state and local level (about two-thirds of the $1.5 billion available in 2010 for civil legal services), away from other matters where counsel may be a significant game changer – e.g. mortgage foreclosure, evictions, complex consumer matters, severe domestic violence cases. Moreover full service counsel in the sea of family cases that turn on relatively straight forward fact issues (such as ability to pay child support) may be more help than is needed to aid all involved in presenting their best case to the court. Adviceand information, unbundled service, lawyer of the day assistance, help from an experienced non-lawyer are all options that might assure basic fairness and fully meet the needs of all parties involved. As Joie Moses points out all too often the underlying issue in the sea of recurrent child support matters is poverty. Her reference to specialized courts is an intriguing example of a creative approach.

Anecdotal evidence abounds that alternative approaches to providing legal help can be effective. However, we don’t have much data and almost no good quality studies to validate these non-traditional though now fairly common forms of legal advice and assistance. As Jim Baillie’s post suggests, good quality empirical data and research is needed in order to make the best match between party needs and the wide range of legal assistance now available in many states. Turner adds to the urgency for such data and research. While the Court has not mandated counsel, a fair reading of the case is that it has mandated assistance appropriate to the matter at hand. We should take up the challenge not only to continue innovation in modes of service delivery but also to undertake a serious and rigorous examination of what works best in what types of cases. With such evidence we will be able to isolate and document the need for expert lawyer assistance in some (likely many) matters while providing effective help by other means where such help “works” for all parties.


More on Pet Notions

I write as a legal services lawyer and clinician who practiced in a neighborhood general law practice for low and moderate income people for over three decades and for twenty seven years directed a large clinical practice site at Harvard Law School.  The issue of case selection/triage, to which this paper is relevant, was always a challenge.   We had inklings that we needed more rigorous approaches and even had a socical scientist on staff for a few years but were never able to conceive and carry out a serious study, let alone one  as sophisticated as the G&P randomized trial.  I whole-heartedly welcome this effort and the  the authors challenge to engage in rigorous scrutiny of the actual workings of legal services delivery in the U. S.  Serious empirical work goes on as a matter of course in peer nations, all of which have been successful in obtaining and holding substantially greater resources than in the U. S.    I don’t assume a connection between the research programs and better funding (hasn’t been studied) but these programs know a lot more about what they are producing and have refined delivery approaches and policies based on what they have learned. 

Regarding the posts expressing concern that data and studies may be used improperly.  I agree with Richard Zorza that we can’t be sure this won’t occur , but I believe the risks are much greater if we continue  with virtually no serious effort to collect good outcome data, comparatively study different approahces to service delivery, develop productivity and efficiency standards as well as good measures of quality .   Because we don’t have even a decent data system, we cannot assure that we are making the best use of the resources available.  What if thousands more people could be effectively helped  if programs were more efficient, targeted resources  more effectively, and  leveraged expertise to maximize both cost and outcome effectiveness?  The result would be the same as  if we had substantially more resources. 

Having located myself firmly in the “we need more of just this sort of high quality research,” here are some  thoughts, in no particular order, about the value – I would say the necessity – of a bold, broad empirical scrutiny of “our fondest pet notions” about our work.  As I edit, I see the post is getting long, but I teach until 9 pm tonight, so may just have time to get this in before the symposium closes!

  • I am encouraged by evidence that claimants succeed via self-representation or with information or limited advice and assistance.  Advocacy resources can be directed to matters where advice/self-help is sub-optimal.  I remain attached to the early goals of client activation and empowerment and self-help may play a role – a possiblity for further study! 
  • I understand the offer/representation distinction in the study and recognize that win/lose at hearing is not the only measure of success but a study should be assessed on what it purports to measure not on everything it could have measured.  I support a broad and long term research agenda recognizing that good studies help us frame issues for further study. 
  • The issue of quality of  work  by HLAB students comes up in several posts.  My experience is that  well-supervised students can produce high quality work. and that we certainly should not understand supervised students as a proxy for less than good/high quality work.  We often juxtapose a “lawyer” against  a student or a lay advocate but bar admission by itself  does not assure quality.  A lawyer just admitted to the bar with little or no experience, practicing without supervision (entirely feasible in the U. S.) might be much less effective than an HLAB student or an experienced lay advocate .  In fact, a substantial UK study produced evidence that lay advocates did more high quality work than solicitors.  
  • My experience suggests that advocate  high expertise/experience  is decisive in the challenging or close call case – the ones “on the bubble” – that could go either way.  If we could reliably identify these matters (almost always a subset of those that go to hearing) we could allocate expert resources accordingly. We don’t want high expertise/high cost resources on less challenging cases – these are good for the rookies – and we don’t want rookies on the really hard cases unless teamed with an expert.  In other words, we need to leverage experts  and maximize use of students,  less experienced advocates, pro bonos who need training to achieve both outcome and cost effective service. 
  • On random case taking –  G&P make clear that r.c.t.s can incorporate screens for merit.  I find their response entirely persuasive on this issue.  However, aside from no merit (frivolous claims) which must always be declined, I believe that at some point we should test the assuptions underlying screening criteria which, I assume, are based on some conception of relative merit.   Can advocates acurately predict  relative merit?  Is the goal to screen out the strongest (don’t want to risk losing) or the weakest (too improbable to be worth the resources) or to take the middling cases?  Do screens fine line to this extent?  Is merit entirely a function of the legal strength of the claim or does it include some notion of the relative neediness of the  claimant?  I recognize the sincere convictions underlying screening criteria, but are these “pet notions” or can they be backed up by credible evidence  which, I think, brings us back to r.c.t.s. 
  • Further on the randomness of offers of representation in an r.c.t. as compared to the case screening and offer criteria in use in various programs – my experience suggests that we avoid confronting  significant randomness in the existing system.  Intake hours, days of service, periodic  closing of “intake” (and thus direct contact with those seeking service) shut people out of the intake stream regardless of merit however measured.  Because they are anonymous to the providers, the arbitrary denial  of any opportunity for assistance goes unremarked.