The more I am involved with discussions about possible access to justice innovations, the more I am struck that often those in favor and those against are really talking across each other because they are assessing the utility and value of against two different yardsticks. I offer some thoughts that may help clarify things
Let me suggest that the skeptics in fact are asking the question: “Would this innovation be as good as a lawyer?’
The advocates are asking the question: “Would this innovation be better than nothing?”
In the more sophisticated versions of the discussion the skeptics then admit that some things do not need a lawyer, but that most do, and they continue to ask the question in lawyer-centric terms. The advocates, of which I am one, admit that some things will require a lawyer, talk about triage, and then emphasize the benefits for those who would otherwise get nothing.
So the question becomes how do we realistically and practically develop a scale of comparison.
The usual current approach is to develop a theory of triage by which one identifies those things that do not need a lawyer, and then design a service that will meet a particular cluster of services to meet the intermediate need. But maybe in the real world that process, useful as it is, does not always resolve the dispute because it requires the drawing of too bright lines, and assumes that benefits of assistance are full or zero.
Let me suggest therefore a different algorithm. What, in a world in which most people in need of access services still get nothing, is the point at which an intermediate cost service which gets only intermediate results, is better because sufficiently more people can get those intermediate benefits that would get the full benefits of traditional full services?
To give a concrete example, suppose expanded non-lawyer services, which hypothetically might cost half of a full lawyer, would result in more than half the return in value of additional tenancy compared to that obtained by a full lawyer. Would that be the tipping point, or would it need much more? And, if so, how much more?And why?
Or to put it another way, to how many people are you willing to say, we will give you no help, because we want to give someone else better help. As was sometimes said to those who complained about the potential for “McJustice,” to how many hungry people are you willing to refuse even hamburgers, on the grounds that its better to serve steak to a few.
In such a cost benefit analysis, those innovations that have a marginal cost of almost nothing, such as well organized volunteer navigator type programs or online document assembly programs, obviously score much better than higher cost innovations. This is probably why very low cost innovations can be accepted even when there is a consensus that they may not be as effective as full representation, while less-super-cheap alternatives are often expected to demonstrate, even before testing, that they are just as good as full lawyer intervention, regardless of relative cost.
Obviously, these are not questions that would be asked in a world of limitless resources. And the greatest fear is that by asking them we could exclude the possibility of obtaining the full benefit for all. But, on the other hand, by failing to ask them, we may be condemning ourselves to ineffectiveness. If we knew the impact of spreading around the benefits, we might be able to make better arguments for raising the standards. Perhaps this is the lesson of last week’s New York quality of criminal counsel settlement, in which the state committed to significant investments in quality, and sufficient mechanisms to promote and monitor their implementation.
I welcome debate and different perspectives on these very difficult questions.
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You have clearly articulated the same issue that those of us who come to A2J from the mediation perspective have faced for many years. Is it better to have a relatively fewer number of people get full representation in court or a larger number be able to resolve their disputes through mediation? I think the answer lies in developing paths that disputants can take to prepare for and follow up after mediation. It is not an either/or question, but a system design question.
If Justice is a public good–then we should be borrowing from the theory and practice of public goods policy. This would allow us to talk more about equilibrium and balance, and concepts such as pareto optimality. What would be the pareto optimal allocation of resources to reach the best solution here? Has anyone done this type of analysis? I know that sometimes the pareto optimal solution is not the one that is expected–but knowing what it is or could be, would help push this dialogue further, because the premise could be that the solution would not leave anyone worse of.
A couple other framing thoughts for our world of scarce resources:
1) It takes leadership resources to work towards more lawyers for poor people. It also takes leadership resources to build non-lawyer or leveraged ATJ initiatives. My gut sense is that sometimes these efforts are compatible, but sometimes we have to make a difficult choice: you may not be able to be in the room with a new funding source and a new pro bono partner at the same time, and either effort could reasonably call on 200% of a legal aid leader’s time.
2) It is important that efforts to establish ATJ initiatives keep in mind the world of scarce resources. We should be strategic and smart in assessing how much impact an ATJ initiative will have, compared to the start-up and running costs (costs almost always meaning limited leadership resources and limited staff time). We should recognize that the hours that legal aid lawyers are spending in ongoing support for pro bono lawyers are hours they are not representing clients. In Connecticut, we are excited about promising experiments with pro bono projects that we help start, but then can run with limited ongoing support — essentially convincing a law firm to adopt a poverty law practice area and helping them train up for that, with the expectation that the law firm lawyers who start the project could train and support the next generation of firm participants.
And one response: in 30 years I have never seen an ATJ effort with “a marginal cost of almost nothing.” Every ATJ effort requires development and consensus building, usually a cost of very significant numbers of hours from bar, legal aid, and court staff. But if you mean that the ongoing costs of some projects is marginal, and that might make them more attractive — that may be true. But given limited time from key leadership groups to develop new projects, I still think it important to spend that time on high-impact projects.
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