Inside Track: Empirics in Law: A Scientific Approach to Improving Access to Justice:

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  • Empirics in Law: A Scientific Approach to Improving Access to Justice

    The medical profession uses empirical data, often from randomized control trials, to make better decisions about health care. Can the legal profession do the same?

    Joe Forward

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    legal innovation

    Feb. 6, 2019 – Evidence is a cornerstone of the law. The accused cannot be convicted without evidence, and sufficient evidence must support civil claims. But when it comes to improving the justice system and access to justice, are we using good evidence?

    “Often, we come up with an idea and we just run with it,” said April Faith-Slaker, associate director of research innovations at Harvard Law School’s Access to Justice Lab (A2J Lab). “Sometimes that may work. But with an issue like access to justice, resources are extremely limited. We need to understand the best ways to use them.”

    Faith-Slaker, who graduated from U.W. Law School, is returning to the Badger State for the Wisconsin Equal Justice Conference, March 1, 2019, at Marquette Law School, where she’ll discuss the A2J Lab’s work on empirical research and data that justice system stakeholders can ultimately use to make informed decisions.

    “We are pushing for a transformation in the legal profession through rigorous research,” said Faith-Slaker, who is leading randomized control trials (RCTs) in multiple states.

    “There’s a real need for doing the research to figure out the best way to go about doing things,” she said. The A2J Lab, still relatively new, focuses on issues in the legal profession related to low-income and vulnerable populations, civil and criminal.

    Learning through Research

    For instance, Faith-Slaker is leading a RCT in Montana to explore whether the state’s legal system could benefit from using AmeriCorps – a federal community service program – to determine the kinds of work that can be conducted by nonlawyers.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    “We want to know if there is something specific about the training of lawyers such that nonlawyers cannot be a part of the system,” she said. “I suspect that there are pieces of the puzzle that can be picked off by other kinds of people besides lawyers.”

    The Montana RCT randomly assigns AmeriCorps members to parenting modification plan cases. Other subjects are directed to self-help materials. The RCT will uncover empirical evidence on the impact of using of AmeriCorps members as an intervention.

    “We are not comparing AmeriCorps members to attorneys,” Faith-Slaker noted. “But we want to explore the impact of adding an intervention – AmeriCorps workers – on helping people get their parenting modification plans as compared to just self-help materials.”

    Faith-Slaker notes that nonlawyer assistance can be controversial, and there’s the broader issue of rules and regulations that govern the practice of law in each state.

    In Washington State, for instance, limited license legal technicians (LLLTs) are licensed to advise and assist people in certain areas of law, including family law. Such licensed professionals could be viewed as competition for lawyers.

    Faith-Slaker says RCTs can provide more information about how lawyers and nonlawyers can coexist to improve access to justice by providing empirical data to drive discussions on interventions that could help more people with effective legal assistance in a system with limited resources.

    “It would vary by areas of law and by how well workers or volunteers are trained,” she said. “There are many caveats to research. But if you get enough of these kinds of studies on a particular topic, we can start moving towards answers to these questions.”

    Wisconsin Equal Justice Conference

    The Wisconsin Equal Justice Conference is a special CLE event sponsored by the State Bar of Wisconsin. It will be held at Marquette Law School, March 1, 2019 (8:30 a.m. to 4:30 p.m.).

    The  Equal Justice Conference brings together members from the private bar, public interest law, law schools, and others to share information on topics related to access to justice for low income Wisconsin residents. This year's conference will feature information on the outcomes and return on investment collected by a number of innovative legal aid projects in Wisconsin. It also includes a session on addressing implicit bias as public interest advocates.

    Review the schedule or register now

    Empirical Data in Wisconsin

    Other professions and disciplines use RCTs – which involve the study of clinical interventions and their effects on randomized groups of people – to measure and compare the outcomes. RCTs are most recognizable in medicine and health care.

    For instance, health care researchers have conducted RCTs to determine whether advanced practice nurses (nurse practitioners) can safely and effectively be used to alleviate primary care physician shortages, especially in rural areas.1 RCTs can also examine the effects of interventions, such as drugs, on randomized groups.2

    In the medical and health care world, RCTs are a subset of evidenced-based medicine (EBM), described as “the conscientious, explicit, judicious, and reasonable use of modern, best evidence in making decisions about the care of individual patients.”3

    Evidence-based decision-making (EBDM) is catching on in the legal world, especially in Wisconsin, which is currently partnering with the U.S. Department of Justice and the National Institute of Corrections on implementing EBDM tools at all stages of the criminal justice system. Wisconsin’s EBDM subcommittee oversees the project.

    The initiative aims to apply “empirical knowledge and research-supported principles to justice system decisions made at the case, agency and system level and seeks to equip criminal justice local and state policymakers with the information, processes, and tools that will result in measurable reductions of pretrial misconduct, post-conviction reoffending, and other forms of community harm resulting from crime.”

    While Wisconsin is a driving force in exploring how EBDM can improve the criminal justice system, such efforts do not specifically address civil access to justice.

    About April Faith-Slaker

    April Faith-Slaker

    April Faith-Slaker (U.W. 2007), is the associate director of research innovations at Harvard Law School’s Access to Justice Lab. She’s a researcher and attorney whose areas of focus have included pro bono legal services, the juvenile justice system and alternative dispute resolution. Prior to working at the A2J Lab, she served as Director of the Resource Center for Access to Justice Initiatives at the American Bar Association, where she worked to support the creation and expansion of state access to justice commissions.

    Civil Access to Justice

    From 2011 to 2015, there was no state funding for civil legal services. The 2015-17 and 2017-19 biennial budgets each included a $1 million allocation to the Wisconsin Trust Account Foundation (WisTAF) for civil legal services for victims of domestic violence and sexual abuse.

    Other funding sources – such as Interest on Lawyer Trust Accounts (IOLTA), the annual Public Interest Legal Services fee that all lawyers pay to WisTAF, and the federal Legal Services Corporation (LSC) – fund the civil legal aid work of organizations in Wisconsin. Attorneys also help the cause through pro bono work. But the civil access to justice problem is still severe.

    A decade ago, the State Bar of Wisconsin reported that more than 500,000 indigent Wisconsin citizens faced at least one significant legal problem per year without legal assistance, and State Bar Pro Bono Program Manager Jeff Brown says it is still extremely challenging for most people to find legal assistance in 2019.

    “Incomes and civil legal aid funding simply aren't keeping pace with the cost of providing help to those who have basic legal problems that need to be addressed before they get worse,” Brown said.

    “Too many of our civil legal aid programs still triage the clients who come to them. They have to turn away more clients than they are able to serve simply because they lack adequate funding. A lot of new funding is targeted at specific issues or clients and can't be used to address emerging needs.”

    A 2013 report from the Wisconsin Access to Justice Commission noted that low-income individuals face serious legal problems without legal assistance in a wide range of areas, including domestic violence, elder abuse, evictions and landlord-tenant issues, foreclosures, family law, and government benefit programs.

    “The number of litigants who are not represented in family law matters is staggering, and most are not represented because they cannot afford a lawyer,” the report notes.

    In Sauk County, for instance, the litigants in 80 percent of the family law cases handled by one court commissioner were not represented. Aside from the challenges that self-litigants pose to the efficiency of the court system, obstacles erected within the legal system – such as fees or delays – may influence litigants to abandon their legal issue.

    The A2J Lab completed a RCT from 2011 to 2016 showing that people in Philadelphia County, Pennsylvania, were 87 percent more likely to achieve a divorce if they had legal representation. But for 85 percent of people, free legal help is not available.

    The study showed how a lack of self-help materials and other process barriers, such as waiting periods and unnecessary court requirements, impact people and outcomes.4

    In other areas, like eviction cases, an adequate defense often requires representation that people cannot afford. For low-income individuals, an eviction could mean homelessness, and can make it difficult to maintain or obtain a job or other housing. 

    The A2J Lab’s eviction project will explore “how well lawyers make decisions about whom to represent” and “whether outcomes with direct representation are measurably different from those where tenants only have access to self-help materials.”5

    The New Legal Empiricism

    Harvard’s A2J Lab, launched about two years ago, is the brainchild of Harvard Law School Professor D. James Greiner. He advocates for a “new legal empiricism” to harness the benefits of empirics to inform access to justice decisions.

    “The new legal empiricism … could transform the U.S. legal profession into an evidence-based field,” he wrote in a recent article, “The New Legal Empiricism & Its Application to Access-to-Justice Inquiries,” published recently in Deadalus.

    “New legal empiricism is simply strong empiricism, as developed and implemented over the past decades in fields outside of law, now finally applied to law,” Greiner noted.

    At the Wisconsin Equal Justice Conference, Faith-Slaker will provide more insight on Greiner’s vision for a new legal empiricism and how A2J Lab researchers like her are using RCTs collect to empirical data across the access to justice spectrum.

    “The legal profession’s process of uncovering truth is different,” she said. “In research, you come at it without an expected outcome or goal. You follow a scientific process to get to the result, which is hopefully truth or better knowledge about something.

    “In the legal profession, lawyers are trained to be adversarial. The outcome gets adjudicated by a process that is entirely different, that involves one side versus another side, making the best case they can with whatever information is out there.”

    Lawyers in the adversarial system are trained to use or dismiss research in service of the argument they are attempting to make. Law schools train students to think like lawyers. “It’s not a criticism, it’s just an institutional difference,” Faith-Slaker said.

    She said the medical profession is a great example of how rigorous research is used inform medical practice, as well as policies and programs in the health care system. Empirical studies, for instance, explore the barriers to accessing medical care.

    “The law lags behind,” Faith-Slaker said. “Legal education is not focused on empirics and there are reasons for that. We hope the legal profession will start embracing rigorous empirical research to inform changes in access to justice and other areas.”

    Of course, the validity of research depends on methodology. What RCT’s uncover in Michigan will be different in Wisconsin. And many studies will be required, continuously over decades, to examine the spectrum of access to justice and legal system issues.

    “When there is little empirical data, one study has the potential to blow things up as readers broadly generalize or misinterpret the findings,” Faith-Slaker said. “An empirical or scientific approach employs the proper methodology and allows the data to build.”

    Thus, when Faith-Slaker learns how AmeriCorps assistance can impact parent modification cases in Montana, or how community advocates compare to attorneys in helping Alaskans get food stamps, the body of access to justice data will grow.

    “Hopefully over time, the empirical data will grow and we will find new ways to approach the access to justice problem,” Faith-Slaker said. “But we are just beginning.”

    Endnotes

    1 Swan, M., Ferguson, S., Chang, A., Larson, E., Smaldone, A. (2015). Quality of Primary Care by Advanced Practice Nurses: A Systematic Review, International Journal for Quality in Health Care, 27(5).

    2 Stolberg, H., Norman, G., Trop, I. (2004). Randomized Control Trials, American Journal of Roentgenology 183(6).

    3 Sacket, D. (1997). Evidence-based Medicine, Seminars in Perinatology, 21(1).

    4 Degnan, E., Ferriss, T., Greiner, D.J., Sommers, R. (2018). Trapped in Marriage, available at SSRN: https://ssrn.com/abstract=3277900.

    5 Access to Justice Lab at Harvard Law School, Eviction Triage Project.




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