Recently, I blogged about the planned NSF-funded Workshop on a research agenda for access to justice. I thought perhaps a few more thoughts are in order, this time on outcomes.
Lurking in justice system research is always the basic question — what outcomes do we care about. Even to say we care about results, efficiency and effectiveness really begs the question, since all assume a yardstick. Deciding that we want to increase how many clients win makes legal aid research easier, but it does nothing to help courts decide how they should invest in innovation. A win for the person who should not win, is hardly a win for society. And, how do you decide who “should” win?
Let me suggest a number of ways of thinking about this.
- Optimization of outcomes for individuals. This is the classic advocacy idea, make sure each party has the best possible chance. For legal aid, this provides an acceptable outcome measure. For courts only if you feel confident you can measure that each person’s chance is optimized, relative to other service models, not that the actual outcome is optimized (which could be done, after all, by reducing services to the opponent).
- Avoidance of a miscarriage of justice. I have called this the”Oh My God” standard, and advocated it as a measure of for courts. The idea is that there is a bad on appropriate outcomes, that most experts would agree about in any case, and that it is reasonably easy, from file review, to estimate whether the outcome meets that standard. Only testing can let us determine if we need to go back to the parties, or even investigate independently, to decide if the standard is met.
- Was court given opportunity to decide case on the merits? This is a measure that both courts and legal aid might agree on. It assesses the presentation of the case by both sides, and whether the decision-maker was given (or got through active engagement) the facts and law before them. It also assesses the extent to which prcedural barriers prevented a decision on the merits.
- Did the court decide the case on the facts and law? This is an extension of the above test, but also looks at the outcome, and does not necessarily score down procedural barriers, although many of us think it should. (It is a tighter test than the miscarriage of justice standard above, but easier than the one below.)
- Fairest outcome. This standard is unlike the one above, since it requires an assessment of the underlying fairness of the law. Courts are unlikely to want to participate in this process, although some access to justice commissions might find it within their purview.
- Fairness of social outcome. This is like the above, but includes the impact upon broader social measures of fairness, beyond the individual case.
It is hard, but important to sort these through.
Most of the access agenda assumes the fairness and appropriateness of at least substantive law (although not necessarily procedural) and that suggests that numbers 5 and 6 might not be consistent with that agenda for many players. How to articulate the broader agenda in terms acceptable to all players is a challenge for another day.