Regular readers of this blog will not have been able to avoid the drumbeat of attention to the importance and potential of DOJ’s bringing NSF to the access to justice table. But, I have not as yet explicitly listed or discussed the current grants.
While the grants are described in academic terms, and while it sometimes takes work (at least for folks like me) to translate their significance into access to justice terms, they are going to make a big difference to the way we think and act. Specifically, they are likely to cast whole new lights on what happens when people, usually without lawyers, interact with a system that is still largely designed to assume the inclusion of lawyers in every process. When done, we are likely to think in much less narrow ways about how people think of and approach legal problems, and how the institutions can or can not respond. Given the range of innovations being studied, and not yet studied, taken together, these studies have a great potential for change.
Here, so far as I know them, are the grants (with the, perhaps, key sentence in bold):
The grant is described, in academic terms, in the abstract as follows:
We know very little about how those before the courts understand the assistance they get, or what difference it makes in outcomes. Since we do not understand when and where representation makes a difference in outcomes, we do not know a mechanism by which representation would shape legal proceedings and their outcomes. Observational studies that take the courts as sites for analysis cannot reveal outcomes over time nor can they assist in understanding what assistance or court proceedings mean to people, or how it matters in outcomes over time. This project will follow people brought before the courts in civil proceedings in two jurisdictions, each of which has different practices concerning provision of assistance. It thereby will link with broader analyses of how institutions ameliorate or contribute to inequalities experienced via public policy.
For those with an ATJ background, what is important about this study is that it meets these scholarly goals by looking at changes in two systems following Turner v. Rogers, one that provides, and one that goes not offer counsel. Obviously a lot that is practical and theoretical as well as practical to be learned. The principal investigators are Tonya Brito and David Pate at the University of Wisconsin. More on the project here.
According to the abstract:
After injuries and illness, people in the United States rely upon a variety of mechanisms for compensation. People combine private insurance, public insurance, and mechanisms within the civil justice system. Earlier scholarship found relationships between the area of law and the demographic characteristics of people and claims making. In recent years there has been very little empirical scholarship on how people make claims, yet there have been substantial transformations in both the demographic characteristics of the people of the United States and in the insurance and civil justice institutions in the United States. This project will analyze how people search for compensation for losses associated with injuries and illnesses and analyze the complementary roles of various compensation institutions. The project will rely upon a probability-based Internet panel. After an initial screen, the project will select a subsample to address injuries and compensation. A better understanding of how people make claims, which systems work and in what way, how that varies by demographic characteristics, and how people understand the compensation they receive is fundamental to understanding significant social and private spending in the United States.
Obviously choices between litigation and other systems have huge policy implictions, and this study should help put light on a area full of possible myths. The PIs are James Anderson and Nicholas Pace at RAND.
Despite doctrine that assumes to the contrary, the structure of the modern justice system rests on the assumption that individuals can both access and deploy the kind of legal knowledge that used to be the exclusive province of legal professionals. A great deal of research focuses on methods of providing access to professional legal knowledge. Little has focused on whether and how lay individuals can deploy such knowledge in, for example, litigating small claims court cases. This project will investigate whether and how lay individuals can deploy professional legal knowledge when questions of access to knowledge are eliminated. The project is innovative in evaluating the deployment of lay legal knowledge via a field experiment, a method that can illuminate causation and that has as yet been seldom used within legal sites. The project is also methodologically innovative in integrating insights from multiple disciplines concerning cognition and action into the deployment of legal advice. The field experiment consists of two comparisons: (i) a self-help assistance packet addressing the legal aspects of household legal problems versus an offer of representation from legal professionals, and (ii) a self-help packet covering good household management practices versus telephone or in-person household management counseling. The self-help packets will be mailed directly to lay individuals to eliminate the question of whether people had access to legal knowledge. By comparing the outcomes experienced by individuals randomized to the packets versus outcomes experienced by individuals randomized to professional and quasi-professional assistance, the investigators will discover whether and how lay individuals can deploy professional legal knowledge.
This work could play a major role in our understanding of the effectiveness of self-help materials and processes, and thus of the ways we build diagnostic and triage systems, and thus of the costing of overall need. The PI is Lois Lupica at the University of Southern Maine. This is a collaborative grant, and Jim Greiner of Harvard is also involved as a PI under this linked grant.
The abstract explains:
The decision of the US Supreme Court in Turner v. Rogers (2011) has prompted consideration of the role of judges in cases in which a party, or parties, are not represented by counsel. In Turner, the Court held that judges in child support cases have a specific duty to ensure that judicial processes are fair to parents who are not represented by counsel. Turner has given rise to debate about how judges can fulfill the duty to ensure that judicial processes are fair to parties without counsel while at the same fulfilling the duty to apply the law neutrally to all parties. The question has considerable currency. In communities across the country, state courts are inundated by millions of people unable to afford private counsel and unable to secure the limited free services made available by the civil legal aid bar. Communities are therefore weighing a range of options to helping to assure the fair resolution of cases for people without lawyers. Many states have modified their respective codes of judicial conduct, or have developed other guidance for judges, to provide that a judge may take steps to ensure that judicial processes are fair to unrepresented parties without violating the judge’s duty to apply the law neutrally to all parties. Yet, how these changes will be realized on the ground is a complicated matter. Two studies carried out by this project will examine different aspects of the question of whether and how judges can fulfill their duty to ensure that judicial processes are fair to unrepresented parties while at the same fulfilling their duty to ensure that the law is applied neutrally to all parties. The research findings are expected to advance theory on procedural justice and inform practice and policy on judicial education.
The methodology will be two controlled studies. One will be of the impact of judicial education on this topic, and one of the impact of education of litigants on their perception of procedural fairness. Obviously a critical test of many of the approaches that many of s have been designing and advocating. The PIs are Larry Heuer and
Steven Penrod at Columbia/Barnard. David Udell is involved.
The study focuses on a core set of commonly experienced problems surrounding issues such as personal finances, housing and family relationships. These problems are carefully selected to be those that have civil legal aspects, raise civil legal issues, and have consequences shaped by civil law. The study has three components: (1) The Public Survey, an in-person survey of a representative sample of adult residents of the study city inquiring about the incidence of the selected problems, responses to such problems, and how such problems affect the people who experience them; (2) The Provider Survey, a survey of both legal and non-legal organizations and programs that may provide people with information or advice about, or services for, civil justice problems; (3) The In-depth Interview Study, a series of in-depth follow-up interviews with a subsample of respondents to the Public Survey.
The study draws on a theoretical approach that conceptualizes civil justice as a social institution. Understood in this way, civil justice concerns how justice problems actually get handled and resolved (or not). Formal law constitutes certain problems as “justiciable,” as having legal aspects, raising legal issues, having consequences defined in law, and being eligible for formal legal actions. The experiences people have with these problems constitute civil justice as a social institution: the regular practices though which people characteristically respond to civil justice problems and the experiences they have when they engage in those different practices. Conceptualizing civil justice as a social institution directs attention to the wide range of ways that people respond to their justice problems, the variety of resources they may draw upon, and the broader impacts of law on people’s lives.
By going much deeper than the standard “marketing” legal needs study, this research wil give a much more powerful picture of the problems people face, how they see them, what resources they need and call on. As such it will help make sure that access strategies on the ground reflect these realities, rather than the legal profession’s view of what is needed and should be done. It may blow away lawyers assumptions about how non-lawyers see their problems, and the paths to solutions. Rebecca Sandefur of ABF and the University of Illinois is the PI.
This partnership of researchers and practitioners is very important. Lets all make sure we contribute to and sustain it. If you think it happened by accident, read Karen Lash’s recent blog post describing the history. Leadership and hard work.