The Public Welfare Foundation, American Bar Foundation and the National Center for State Courts have just released their report on the “Roles Beyond Lawyers” Navigators program in New York. Its finding of positive impacts from all three of the pilot projects that are part of this program is likely to be highly influential. (Disclosure: As reported on this blog, I have been deeply involved in many aspects of this program.)
As the Executive Summary and Recommendations puts it:
The need for such [roles beyond lawyers] innovations is clear. At the time this evaluation was conducted, approximately 90 percent of tenants facing eviction in New York City did not have a lawyer, while the vast majority of landlords did.3 Research from the National Center for State Courts shows that in 70 percent of non- domestic civil cases in urban counties, one party is unrepresented while the other has lawyer representation.4
The first comprehensive evaluation of programs providing assistance through staff or volunteers without full formal legal training provides important evidence that these initiatives can influence the experiences of unrepresented litigants in positive ways and can also shape the outcomes of court cases, including legal and real-life outcomes.
The so-called “navigators”, as described in the Report, “provide information, assist litigants in accessing and completing court-required simplified forms, attend settlement negotiations and accompany unrepresented litigants into the courtroom. If judges address direct factual questions to a Navigator, the Navigator is authorized to respond.”
In summary, the level and type of impact depends upon the training and supervision of the navigators. There are three separate projects within the overall program, each with different goals, characteristics and outcomes, as follows, quoting the Executive Summary and Recommendations:
- The Access to Justice Navigators Pilot Project is built around trained volunteer Navigators “for-the- day.” These Navigators assist unrepresented litigants in understanding and moving through nonpayment or debt collection proceedings. Access to Justice Navigators currently operate in a variety of housing courts and in consumer debt cases in civil court in New York City. Surveys of litigants revealed that litigants who received the help of any kind of Navigator were 56 percent more likely than unassisted litigants to say they were able to tell their side of the story.
- The Housing Court Answers Navigators Pilot Project involves trained volunteer Navigators “for- the-day,” operating in the Brooklyn Housing Court. These Navigators provide individualized assistance with tenants’ preparation of a legal document, the “answer” to the landlord’s petition for nonpayment of rent, in which the tenant responds to the petition by asserting defenses. Litigants assisted by Housing Court Answers Navigators asserted more than twice as many defenses as litigants who received no assistance. A review of case files reveals that tenants assisted by a Housing Court Answers Navigator were 87 percent more likely than unassisted tenants to have their defenses recognized and addressed by the court. For instance, judges ordered landlords to make needed repairs about 50 percent more often in Navigator-assisted cases.
- The University Settlement Navigators Pilot Project employs trained caseworkers who are employees of a nonprofit organization. These Navigators, operating in the Brooklyn Housing Court, are Navigators “for-the-duration,” working the case from initial appearance through resolution and beyond. This pilot project’s aim is to prevent evictions by providing both the in-court services that all Navigators are able to provide as well as an ongoing relationship with litigants in which the Navigator both accompanies the unrepresented litigant to all of the court activities related to her case and assists the tenant outside of court in connecting with benefits and services for which she may be eligible. In cases assisted by these University Settlement Navigators, zero percent of tenants experienced eviction from their homes by a marshal. By contrast, in recent years, one formal eviction occurs for about every 9 nonpayment cases filed citywide.
(I personally found it hard to sort out these different programs, and find this Table from the full Report helpful.)
While I strongly encourage readers to study both the Executive Summary and Recommendations and the Full Report, perhaps the most important language is from these general findings, again quoting:
- People without formal legal training can provide meaningful assistance and services to litigants who are not represented by a lawyer.
- These services can impact several kinds of outcomes, ranging from litigants’ understanding of court processes and empowerment to present their side of the case, to providing more relevant information to the decision-maker, to formal legal outcomes and the real-life outcomes experienced by assisted litigants and their families.
- The tasks Navigators are actually able to perform, and thus their impact, are influenced by the philosophy and attitude of the court in which the services are provided, including the attitudes of case processing staff and judges.
- Contributions of Navigators’ work to legal outcomes and real-life outcomes such as eviction prevention are likely similarly influenced by court environment and by the range of services and benefit programs available in the jurisdiction. The availability of such services and benefits to which Navigators can connect litigants is a major mechanism of Navigator impact. Some jurisdictions, such as New York City, have significantly more such resources than most.
- The impact of Roles Beyond Lawyers programs on legal outcomes can be greatly assisted by the availability and use of plain language, standardized legal forms, such as the Answer form, and of software programs (what in New York are called “DIY” programs) that help litigants prepare legal documents such as answers. Such programs have been developed for many jurisdictions, facilitating the replication of Roles Beyond Lawyers programs.
Given the momentum building for comprehensive 100% access to justice that integrates a wide variety of components, it is hard to escape the conclusion that various forms of navigator program will soon become the norm as part of the 100% approach.
An important additional fact is that the evaluation used a general Framework for such evaluations, that I would highly recommend for broad use beyond this specific kind of evaluation. (SRLN comment on Framework here.) Indeed, forthcoming will be a parallel Report on the Washington State Limited License Legal Technicians program, using the same evaluation Framework.
So, what I would be doing right now to help to make this happen would depend on my role in the legal system.
As a Chief Justice or State Court Administrator, I would be stimulated by this Report to consider if it would be useful, as former Chief Justice Lippman did in New York, to establish a procedure for considering options such as those reported on here as part of my strategy for moving forward the 100% access resolution.
Were I a chief judge or administrator of a court, I would be similarly considering whether I might have the relationships and authority to issue a Standing Order (NY Administrative Order here) to launch such an experiment in my jurisdiction.
As a bar leader, I would be wondering how to explore the role of the bar in such an experiment (in Washington State, the Limited License Legal Technician program is regulated by the WSBA under delegated authority from the Washington Supreme Court ,) and also noting the support of the bar in New York for its program.
As a legal aid administrator or board member, I would already be exploring how the additional flexibility such an approach would give non-lawyer staff could be leveraged to increase coverage without extra resources, and looking into the court and social service partnerships that would support this.
As a law school dean, I would be looking into the possibility of also following the Washington state model, and taking to opportunity to play an educational role in this approach.
If I were part of a social service program, I would be hoping to expand what my staff could do, particularly in court.
And, finally, if I were a member of a state access to justice Commission, I would be moving urgently to make such a project, bringing together all of the above, a high priority as part of the 100% agenda.
Richard Zorza's Access to Justice Blog 
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Thanks for sharing this Richard. Great to get data and experiences that corroborates the experience in other states. In San Francisco, the Eviction Defense Collaborative in the early 2000s was led by a non attorney (Miguel Wooding)–who knew more about eviction defense that most attorneys and was a mentor to the tenant bar in the City, http://www.beyondchron.org/miguel-wooding-founder-and-executive-director-of-eviction-defense-collaborative-dies/. The EDC and the SF Bar probono program started the lawyer of the day project in 2003/2004–to address the disparities in representation similar to NY. The project is ongoing.
One of the things we need to move away is from the black and white perception that there are lawyers and there are non-attorneys. That world view and practice regulatory regime does not work in a world where there are different level of services that can be provided competently by a diverse group of providers. As this highlights, training and support are key to the quality of the services provided.
Lets start developing a language that reflects the concept that with legal problems there are multiple levels of assistance and that for some of those a competent attorney is needed, but for the diagnosis and triage before then, along the continuing there are levels of assistance that do not need to be provided by an attorney–and instead can be provided by a range of well trained staff, including students, paralegals, social service agency staff, volunteers from other professions or fields, etc. We need to stop thinking the world is lawyer and not lawyer. It is much more than that–so lets create the language and then ID the training and support these different tiers of service require–and build them and evaluate them.
In medicine they have done this across the field by diagnosis.For breast cancer you have the mammogram technicians that take the pictures, then you have the radiologist that reads the scan, if anything if found they have a cancer coordinator that works w/the person on the follow up and provides support explaining the next steps with the primary care doctor, then they have the surgeon if one or more biopsis show surgery is needed, the pathologist for any bio/samples studies, then the oncologist. The biopsis is done by a specialist–a radiologist who knows how to take samples and insert markers following the instructions of another specialist (surgeon or oncology or based on their own training in breast cancer). In addition there are cancer support groups that people can work with to support themselves in the process–so it is a full and well thought out continuum of care.
The patient does not walk in and talk to the oncologist first. That would be way too scary for the patient–and a waste of everyone’s time. That conversation is had once all the other routes have been followed (including surgery depending on the nature of the findings)–and there is a clear prognosis (level and type of cancer down to the cells and a removal of the tumor) and full treatment plan is needed that is long term.
In law, we should revisit our assumptions. How we create a similar continuum for the most common problems for the average American family? For poverty law? There are intermediary steps and services that can be provided by highly trained and experienced persons who do not necessarily need to be lawyers. Lets define those diagnostic tools, steps, triage steps, and define the training–and expand our range of services and continuum of services–using technology and advances in technology to support this process.
The challenges if for us attorneys to be very clear about what type of cases and results we need to see and at what stage, and to develop the training and support for the initial triage and diagnosis with other professions (social workers, mental health professionals, DV service providers, tenant advocates), always working to resolve the matter. Thanks to all who worked on and supported the evaluation and who had the vision to create this navigator project.