In reading this blog and the American Bar Foundation in Access to Justice, recent report, and other literature, including health policy analysis, I think that as we call for more research about legal services, we need to be clear about what we mean by the term “research.”
A short great piece on this recently written by Prof. John Elliott of the Goldman School of Public Policy describes the policy approach to health care policy analysis succinctly.
In the legal nonprofit community web sorely need two types of research that have been neglected for too long:
a) Outcomes research—equivalent to what in public health care is done to evaluate health care education initiatives and clinical trials that ascertain how effective a particular intervention is and is very specific to a particular type of problem and intervention. For example, how does a particular intervention change the behavior of a person/population and how does that increase health indicators in a community? This may include also analogies to pharmaceutical research, or testing/intervention type research where those who develop the tools or the approach (vendors and physicians—surgeons and the like) set up control and placebo groups and test a particular intervention to see how that changes an outcome. In legal aid, would be akin to using a particular legal strategy and testing it to ascertain results and change the law—what Thurgood Marshall did so effectively and eventually led to Brown v. Board of Education. The questions would be more like how does filing a demurrer affect an eviction case? What effect does it have in the outcomes of a case to bring up constitutional claims in eviction defense case? What happens when motions for summary judgment are brought in non-payment of rent cases? Over time, from these discrete research, a profile of best practices would emerge—and as a community we would have a better understanding of what works in some jurisdictions and why, and what may not work, depending on local circumstances and resources.
This type of research is required to identify the baseline of care for well known legal problems—equivalent to what in health care became clinical guidelines, or standards or care, where eventually in a region, a well understood approach to certain type of treatment develops over time, with the services provided changing as the issue (disease) or the technology to treat the issue advances. This type of research is expensive. In health care it is regulated and has ethical requirements. The one problem of using the full health care analogy is that in the legal services, there is no equivalence to an industry (pharmaceutical, hospital, nursing home industries as examples) that generate millions or billions of dollars on sales of their products to low income communities that can support or fund this kind of research. Since the eventual beneficiaries are people who can’t pay for lawyers and programs that continue to undergo severe cuts in their budgets, in effect there is no market that can fund or demands innovation and improvement in approaches to the practice of law, as it exists in health care. This is seriously troubling. It means that there are few incentives to innovate and this is why the LSC TIG program is such a valuable project.
TIG is one of the few national programs that gives economic support to legal aid groups seeking to improve the access, outcomes and quality of services that low income persons receive by funding technology interventions. However, the TIG funding stream is focused on innovations—and thus all the evaluations are looking how a tech tool changed a practice or type of case.
b) Policy research. Thinking about this research leads me to the big elephant in the room. In the US currently, there is no independent non-partisan agency or commission charged with understanding the current status of legal services in the US and making recommendations to improve them. At the local level, local IOLTA Programs evaluate their local projects-so it is unlikely they will be trying to understand the state of legal services on a national basis. At the Federal level, we have the Legal Services Corporation, which administers funds to its programs and works with its grantees to ensure they provide services according to the LSC regulations.
The ABA is a professional organization with various committees producing reports and studies, but it is not required to report to Congress on the state of legal delivery services.
The NLADA is the collective voice of the legal aid and public community to decision makers. It pioneers access to justice at local and national levels and it is focused on excellence in the delivery of legal services. Yet its mandate is not to analyze and track changes to the US legal delivery system.
The DOJ is starting to become involved in the questions of access to justice. Its track record is short, and its ability to influence the market, or lack of market place, for free legal services remains unknown. Particularly without an allocation of funds to start creating financial incentives for change, convening and conversing will have limited impact on the closing of the justice gap. It is commendable that DOJ’s Access to Justice Initiative includes research as one of its core activities, however I believe that only an independent agency with an independent budget will be able to address the justice gap by doing clear, objective, and non partisan analysis.
What agency or group have the resources necessary and the mandate to keep tabs on the delivery of legal services to low income and vulnerable groups in an objective and non partisan way? How does Congress know in a holistic way how LSC programs, non-LSC programs, Iolta Funds and other federal revenue streams, and Pro Bono in kind donations create a quilt of legal delivery services and where the gaps are and what the trends are year by year? How does Congress know how technology is changing the practice of law and thus the practice of civil law, or access to courts? I posit to the readers of this group that there is no agency so charged. Everything is being done funder by funder, group by group.
Going back to the health care analogy, let’s take Medicare. Medicare is administered by CMS, just as LSC administers funds allocated by Congress to fund legal services.
CMS is a subagency of DHHS. LSC is an independent corporation created “for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.” In effect LSC is analogous to CMS.
CMS produces many great reports, and research-however the task of updating congress once a year on the state of services to the elderly under the Medicare program falls to MedPAC. Twice a year, MedPac releases a report that describes the health care system as it relates to seniors, looking at quality, costs, and access as the main focus. The reports provide a holistic yearly review of the state of the health care system as it affects those over age 65, and provide policy recommendations. It also produces multiple reports at the request of Congress, and it comments on legislative changes proposed by CMS.
If those recommendations go through, then CMS works with MedPac on the policy recommendations that eventually are published in the Congressional Federal Record for public comment, and then become the regulations that all those providers who are reimbursed by Medicare.
In our legal delivery system for low income and those who can not afford lawyers, we don’t have the equivalent of MedPac—and we sorely need one.
A group like MedPac would require an independent charter and budget to enable it to recruit good economics and legal delivery system experts, as well as experienced policy analysts and tackle such a huge and necessary task. It would need to have guaranteed access to aggregate data collected by local and federal funders (data feeds), and it would need a stable funding stream, so that the quality and focus of their analysis does not vary year by year. How much would be necessary to fund such an independent agency? It would probably require about $3 Million dollars to get it started, and then as its staffing needs are well understood the budget could go up to $5 Million. The hard part would not be the funding , the real hard part would be to get all the players to agree on the need for such an independent body and help them come to consensus that the creation of such an entity would not be a threat to their independent voices or initiatives. In addition, many other non-profits have a “research niche” in legal services, and many other private consulting groups also have a stake. All of these groups would have to come together—that is very hard…but hopefully not impossible. The next hard part would be who owns or controls that group? Here again, I would posit that it should be independent and not be controlled by DOJ, ABA, LSC, NLADA, NCSC or any other non profit in the research/delivery arena. Instead it should be its own entity, with a board made of representatives from various sectors (pro bono, LSC funding, non-LSC funded groups, NLADA, LSC, ABA, legal tech groups, law school clinical public interest staff, legal outcomes experts, civil rights experts, etc etc). (Dislcosure: Before attending law school and after graduate school I worked at ProPAC as a health care analyst, which was a precursor to MedPAC ProPAC (Prospective Payment Assessment Commission), was merged with the Physician Payment Review Board and became MedPAC.
The ABA report I mentioned above gives us a glimpse of what such a group could do, with stable and secure funding, year by year. It is the first comprehensive report that I have seen that looks beyond one funding/resource stream. I put this under “policy report” and is very encouraging to see this come out. I did not see in the report an estimate of how much pro bono projects contribute in terms of dollar equivalents to the delivery of legal services. However, here, it may sense to not include pro bono in kind contributions in terms of hours donated, given that the hourly rate for legal aid staff is significantly below the hourly rate for private attorneys and until there is some better understanding of what it costs to provide legal services and pay legal aid attorneys a salary that is commensurate with their training and accountability/responsibility.
The report answers many of the questions I have been searching for. For example, we need to know, what percentage of GDP is spent in legal services. What percentage is spent on legal services to the poor and special populations (elderly, disabled, etc)? What are the funding sources (LSC, state legislatures, counties, Pro Bono contributions, IOLTA, etc)? These are covered in the report, and it is not good news.
These are the next set of questions that we need to answer in the policy arena: What is the rate of growth of legal services expenditures? What is the cost increase in legal services for the poor per year? Are these cost increases below or above inflation? If above inflation—what are the factors? For example, in health care we know that about 16% of the GDP equivalent is spent in health care services. We also know that the pace of inflation in medical costs has outpaced inflation for a long time. In addition, we know that developments in technology, the aging of the population and that the salaries of medical professionals are all factors that drive costs up. What is this analysis in legal services delivery look like? I have not come across it—not in a comprehensive way, that looks at this state by state (or by Federal Region) and then over the national average. We may need to build a “basket” of legal goods that we use to index legal aid expenditures and rates of index—similar to what Medicare does to adjust its payment rates—using its geographic cost index.
I am encouraged to see the additional brain trust and experience in the research front in various places, including Chuck Greenfield joining the NLADA as blogged here by Richard, and also Laura Abel joining the National Center for Access to Justice, and the work they are doing on the Justice Index.
I hope that eventually we can move beyond the disparities of geography or location in the delivery of legal services (and also language capacity of a region or office) as highlighted by the ABA Foundation report. Legal services and access to justice should not be rationed out by location. After all we all are equal under the law regardless of where we live. Research (outcomes and policy based) and understanding of how new delivery tools can help us level the playing field are key to the future of our democracy.
Lets continue the discussion on how to best approach the research challenges we face, and look at the elephant in the room and find out if there is a way to fill that gap so that then we fill the justice gap—there may other analogies outside of health care that could also be models or examples to follow. Let’s continue sharing and dissecting reports both on the outcomes front and then the policy front.