Today’s NewsMaker Interview is with Rebecca Sandefur, one of the co-authors of the recent American Bar Foundation study of access to justice. Becky has changed the whole debate, with a long-overdue collection of data that forces us to confront the unfairness and lack of coordination in the whole system. This is my favorite take away quote: “At the national level and within most states, civil legal assistance is organized much like a body without a brain.” As well as describing the just published study and its implications, Becky describes the next stage of her work, a Community needs and Services Study.
But the work raises many questions. So here goes:
Zorza: Can you tell us a little of how this study came to be, and how the ABF got involved?
Sandefur: The study grew out of conversations between leadership of the Legal Services Corporation, staff from the Access to Justice program at the Department of Justice, and the American Bar Foundation. DOJ and LSC recognized that there is a great deal of useful, helpful, essential information about the workings of the US civil justice system that we just don’t have. They consulted the ABF for ideas about types of information to look for and how. The ABF has a long tradition of research on access to justice, and was seeking to reinvigorate it. Last year, the ABF started a new research initiative on access to justice, which they brought me in from Stanford to lead. The Access Across America report is the first project of that new research initiative.
Zorza: I note that LSC and Friends of LSC also provided funding. What was their interest?
Sandefur: I think they were interested in facilitating a non-partisan, constructive, big-picture look at how civil legal assistance is provided in the United States, and how the LSC fits in. The LSC is obviously a central player in civil legal assistance in the US. It is a major funder, supporting programs in every state, and it models practices that affect the field as a whole.
Zorza: You have data on types of service delivery used, funding systems, coordination, eligibility, and unbundled regulation. How did you manage to collect such a broad range of data?
Sandefur: The short answer is that we looked everywhere. Various committees of the ABA and the NLADA had produced reports about discrete parts of the broader access picture – for example, reports on the founding of access commissions, or the state of unbundling rules, or the existence of organized civil pro bono programs. Projects researching clinical legal education had collected information about clients served in law school clinics. Scholars had written dissertations and articles about the regulation of non-lawyer legal services providers. Programs that support innovations in civil legal assistance had put together directories and listings of specific types of providers, like advice hotlines or court-based self-help centers. And programs describe themselves and their work in various publications on the internet and in print. We drew on all of these sources of information about what is happening in civil legal assistance in the US today, and we supplemented it with surveys of key informants in the states – people who worked for state administrative offices of the courts, staff at IOLTA programs, and staff on access to justice commissions.
The project was very lucky in having a staff of three superb research assistants and a fantastic data collection manager, my co-author Aaron Smyth, now a PhD student at UC-Berkeley. We worked for about a year on the report, including 8 months of data collection. This energetic information search allowed us to put together a more holistic picture than we’ve had before. But, to anticipate your next question, there’s a lot we still don’t know.
Zorza: Can I ask what you see as the biggest gap here? What would you have liked to collect in addition, and do you think you will be able to do so in the future?
Sandefur: There are two big gaps. One has to do with what services are actually produced, and the other has to do with how they are consumed or match up to the needs of the populations to whom they are offered.
In the report, we identified 11 different ways of producing civil legal assistance services (e.g., salaried law offices, Judicare programs, staffed court-based self-help programs, medical-legal partnerships, hotlines, etc.), but even within a single type of program, there are many different ways that services actually get produced, and these different models affect what people actually receive. Programs make choices about what areas of law to target. Most programs are not omnibus programs serving all the substantive areas of law in which eligible populations might experience justice problems. Instead, programs select service priority areas, like fair housing, or evictions, or domestic violence, or federal benefits, or debt. Within those service priorities, programs produce services in a variety of ways that affect what clients can receive. For example, some programs rely heavily on group workshops and seldom or never provide representation, while others provide one-on-one service to clients and may provide full representation. Programs also differ in the ways that they use non-lawyer staff to produce services. These staff can be incorporated in traditional models, as when certified paralegals work under the supervision of fully-qualified attorneys. Or, nonlawyers can be involved in very innovative models, like California’s JusticeCorps, where college students, under the supervision of qualified attorneys, work in internships where they are trained to assist self-represented litigants in handling the paperwork for pursuing court actions.
It would be wonderful to know more detail about what specific services are being provided and how they are produced. The only way to get this kind of detail would be to survey providers about the services they deliver and how they produce them.
The other big gap is knowledge about how the services being offered match up to what state and local populations want or need or are able to use. In the Access report, we were able to get at this question only in very limited ways. For example, some programs in some resource-strapped states have moved to web-based provision because the internet is a cheaper way of dealing with a widely dispersed population. By examining rates of internet access and literacy, we were able to discover that some of the states that have moved to web-based provision are states with the highest rates of illiteracy and the lowest rates of internet access. This is a potential problem, as using existing web-based services requires access to a computer and a fair degree of literacy, typically in English. But, it’s only a potential problem – as long as some programs in these states also provide other means for people to connect with services (for example, the phone), people who can’t read and don’t have access to computers may still be able to connect with services. The larger point that this example illustrates is that we have very little information that allows us to match up the justice problems people are having and their capacity for handling them with the services actually available to those people on the ground. Getting this information would require us to survey not only providers about what they are providing, but the population about what their justice problems are and their capacities for resolving them in different kinds of ways.
This kind of research, that pairs a study of the full range of service providers with a study of the public and its justice problems, has never been done before. But, we’re about to give it a try. With funding from the National Science Foundation and the American Bar Foundation, I’ll be heading up a new project, the “Community Needs and Services Study,” a community-sited, multi-method study, that investigates simultaneously public experience with civil justice problems and the legal and non-legal resources available to assist people in responding to them. In addition to producing basic social scientific knowledge, it’s my hope that this study will help us to do at least a couple of things: (1) to identify some indicia of community needs that are cheaper to collect than a full-scale population survey. These could be used by programs, funders and Access to Justice Commissions in thinking about priorities; and (2) to document instances of creativity and resourcefulness in service delivery and problem-solving that can become models informing how we move forward.
Zorza: What do you think is your most important finding?
Sandefur: The most striking finding of the Access report is the absence of coordination in access to civil justice. There’s no real “system” here, not at the national level, and not at the level of states, and often not even within specific communities.
The lack of coordination creates situations in which there can be redundancies in the services offered, substantive gaps in the services offered, and potentially expensive inefficiencies in how services are delivered. Currently, civil legal assistance is provided in a way that creates arbitrary distributions of access across and within states. The absence of effective coordination also generally means that there are few mechanisms for using information about what specific communities or groups need to inform what providers actually provide. From the perspective of the public, the clients of civil legal assistance, the resources and services available to assist them with their justice problems are a function not of their needs but of where they happen to live.
Zorza: At the risk of asking you to get ahead of yourself, what do you think are the policy implications of that finding?
Sandefur: Providers and funders need to work together to develop some mechanisms of coordinating their work. There are many different potential models for doing this, and there’s no reason to think that there is “one best model” that every state should use. Providers understandably want to maintain their autonomy. There are many ways to cooperate and collaborate in the identification of service priorities and the provision of services that would still allow individual programs to continue to do what they do best.
For example, each state access commission could set a goal that every county or area in its state has at least one provider serving each of the basic human needs that were identified by the ABA in its call for access to counsel (e.g., shelter, care of dependents). The specific, concrete arrangements that ensured that every area had at least some coverage for the range of basic needs could be different in different places. The people best able to develop effective coordination at a state or local level are people who understand conditions at that level. Coordination will mean some give and take between providers and with funders, but these stakeholders can negotiate this give and take in the way that makes sense for them and for the needs of their service populations.
Zorza: One of the most impressive parts of your study is that is includes individual reports for all the states and DC. Was there any state that stood out in terms of the range of its solutions and commitment?
Sandefur: One of the striking things, to me, is that there are states where civil legal assistance is relatively well-funded, and states where programs are quite innovative in terms of how services are provided and how people can access services, yet there is often no relationship between these two factors. Sometimes innovation seems to be driven by financial necessity; at other times, seemingly expensive innovations develop even when resources are tight; at yet other times, innovation seems to be supported by an active A2J community that is also successful in raising funds. But there are also well-resourced states that are pretty traditional in what they offer and in how they offer it. For example, no state actually has a civil legal assistance system, in the sense of an integrated network that includes all providers; but, some states are developing such systems. Nevertheless, the states that are most actively coordinating civil legal aid services are not necessarily states that have adopted other innovations, like court-based self-help.
Zorza: Going back to the issue of fragmentation, do you see any trends that are overcoming that problem, and do you have any thoughts on why this situation has persisted so long?
Sandefur: Fragmentation persists as a legacy of an unfortunate history. The many different programs and funding sources that have developed over the past 40 years did so in part as a creative response to attacks on the Legal Services Corporation and its grantees. Providers or small groups of providers acted on their own to try to sustain or develop services in specific geographic places. So the “system” that we see today is the output of a lot of independent acts of creativity and resilience.
We are just beginning to develop structures, like Access to Justice Commissions, that can help facilitate all these independent creative actors in coordinating with one another. Among some providers, there is resistance to coordinating, and that resistance is also a legacy of civil legal aid’s troubled past, as providers understandably want to protect their autonomy.
State Access to Justice Commissions don’t usually have powers of the purse, nor can they usually compel anyone to do something, but — when they include creative, thoughtful, energetic representatives of the major stakeholders and have some resources to do their work — they can influence A2J stakeholders, they can accomplish important information sharing, and they can help bring people together to identify and solve problems.
Zorza: On a different topic, I notice that you were able to identify states that provided self-help services in the courts. However, maybe in a broader sense the study is incomplete in that you were not able to include other efforts that states are making to make courts more accessible, thus reducing the need for services to obtain access. Any thoughts?
Sandefur: You’re absolutely right. It goes back to the level of detail that this study was able to capture. Courts are doing all kinds of things to try to make themselves more accessible to lay people who are pursuing problems without representation: for example, providing judges with training in how to deal with self-represented litigants; helping court clerks to understand the kinds of information that they can give to the public without shading over into giving advice; developing plain language forms and other documents; changing or simplifying court rules; working with law librarians to make information more accessible to the lay public; publishing court forms and other documents in multiple languages.
We know generally that these kinds of things are happening and we have reports on examples of them, but we don’t know how common they are or what their distribution is around the country. While we have some case studies, we also don’t know in a systematic way how much money these innovations cost to create and run and how those costs compare to the direct and indirect savings that may be created when courts implement these programs. The only way to get at this kind of detail would be to actually survey key informants in a sample or census of the nation’s state and municipal courts, and to do some careful, systematic analysis of costs and budgets. That would be a very big, but also a very valuable, undertaking.
Zorza: If you were on an access to justice commission, how would you use this Report?
Sandefur: One of the things that the report does is to identify dimensions of the access to justice infrastructure: delivery models; funding sources; coordination mechanisms; the public’s means of connecting with services; rules about how legal services can be provided. Commissions can use this framework as a tool for their own planning and priority setting. The report provides an overview of what exists in each state today, which is information that isn’t necessarily generally known. It has been striking how often stakeholders haven’t known that specific kinds of programs currently exist in their states. It’s not that they don’t care or aren’t interested; it’s that they’ve in the past had no way of finding out this information unless they happened to have heard about it by chance. The Access report provides a baseline account of what’s out there today.
Access commissions can also use the Access report as a template for conducting mapping exercises in their own states. At the back of the report, there’s a methodological appendix that explains how we collected the data. States would have the advantage of being able to collect more fine-grained information than we were able to for the nation as a whole.
Within a state, what would be revealed in a county-by-county or community-by-community map is the existing infrastructure of access to civil justice in the state. It’s valuable to know what this is both as a tool for advocating for funding and as a tool for understanding how potential changes may affect access. These changes could include good changes, like new money for new programs, experimental changes, like setting new service priorities and seeing what happens, and bad changes, like funding cuts.
Zorza: If you were a leader in a state without an access commission, how would you use it?
Sandefur: The activity of doing such a report can be a way to gather together stakeholders to begin to build leadership for access to justice in a state.
Zorza: And, what if you were a bar or legal aid leader?
Sandefur: Because it captures some of the tremendous diversity of models that have developed in recent years, the national mapping exercise can provide ideas about new programs that people may want to try out.
It also provides information about sources of funding that may not be widely known and that may be of interest (see the methodological appendix of the Access report). Finally, it’s a tool for identifying potential partners within your state to start to build coordination systems from the ground up.
Zorza: Any other thoughts on how folks can spread the word and encourage the working through of the implications of this study?
Sandefur: Start talking with each other about what you want civil legal assistance to look like in your state or community! The Access report documents a set of findings and identifies selected implications. Stakeholders and the public need to start talking though the available facts and making decisions about what they want to do about them. Typically in these conversations, we highlight the fact that we need more resources to support civil legal assistance, but that’s not enough. Of course we need more resources. We also need to think about how we can do the most we can with what we have. And we need to think together about what we want our priorities to be.
For example, the ABA has identified a set of justice problems as affecting core human needs, including shelter, sustenance, and care of dependents. The lack of coordination documented in the Access report contributes to an arbitrary and unequal distribution of services for these core human needs. We need to have conversations about whether or not we think this is a problem, and what, if anything, we want to do about it.
Neither the diagnosis nor the treatment is obvious. The landscape of available civil legal assistance services reflects the actions of both funders and providers. Funders, of which the LSC is one, have their own priorities, and often want to support specific kinds of activities. Within the context of funding constraints, providers make decisions about what services to produce.
If we decided that it was important to ensure that every county or area had services for the ABA’s core set of needs, achieving this would require that at least some providers reconsider their service priorities and coordinate their activities with other providers. It would also likely require that at least some funders be educated about the public’s civil legal needs. For many funders, their priorities are developed in consultation with other stakeholders. We should be thinking about ways to facilitate more of these consultations around access to justice issues.
I hope that stakeholders in each state will talk together and in concrete terms about what they want their state’s civil legal assistance “system” to do.
Zorza: Finally, what’s next? How do you see this research direction moving?
Sandefur: I mentioned earlier the Community Needs and Services Study. I’d like to emphasize that the Access report is a living document. We welcome suggestions, additions, comments and corrections. We hope that the report can be updated and improved and serve as a resource into the future.
Zorza: Thanks so much. You work and your help with this interview are much appreciated.
Sandefur: Richard, this was a pleasure. Thank you for all you do to support, encourage and invigorate the communities working for access to justice!