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.