Service Delivery, Resource Allocation and Access to Justice: Greiner and Pattanayak and the Research Imperative

In this essay, we reflect on Jim Greiner and Cassandra Pattanayak’s provocative article reporting the results of a randomized controlled trial evaluating legal assistance to low-income clients at the Harvard Legal Aid Bureau. Studying the outcomes of appeals from initial denials of unemployment insurance benefit claims Greiner and Pattanayak asked, what difference does legal representation make? Their answer is that “an offer of HLAB representation had no statistically significant effect on the probability that a claimant would prevail, but that the offer did delay the adjudicatory process.” That is, not only was an offer of legal assistance immaterial to the case outcome, it may have harmed clients’ interests. The Greiner and Pattanayak findings challenge our intuition, experience and deeply-held professional belief that lawyer representation of indigent clients in civil matters is fundamental to the pursuit of justice. Our first reaction is that the study must have fatal conceptual or methodological flaws – the researchers studied the wrong thing in the wrong way. Even when we learn that the study is credible and well designed, we doubt that this kind of research is a worthwhile use of our time or money relative to serving needy clients. Finally, and perhaps most importantly, we worry that the published results will only serve as fodder for the decades-long political assault on legal services for the poor. If replicated across venues, however, studies like Greiner and Pattanayak’s can tell us a great deal about individual representation, program design and systemic access to justice questions. In fact, we cannot make genuine progress in any of these areas – much less marshal the case for more robust legal aid investments and the right to counsel in some civil cases – without better evidence of when, where and for whom representation makes a difference. Fortunately, developments in law schools, the professions and a growing demand for evidence-driven policymaking provide support, infrastructure and incentive for such research. For these reasons, we urge legal services lawyers and clinical law professors to collaborate in an expansive, empirical research agenda

Law School Clinics and the Untapped Potential of the Court Watch

This is a time of enormous creativity and innovation in civil access to justice. It is now widely recognized that scarcity is reality in the provision of legal services and that overburdened and technologically retrograde courts are struggling to meet the demands of case processing in a fair and efficient manner. Accompanying the proliferation of various interventions is a growing call for empirical research on civil access to justice. Recently, the idea that law school clinics might serve as sites or architects of a civil justice research agenda has been advanced. Building on these proposals, this Article suggests that “court watch” research, involving live field observation of court proceedings, may serve as an ideal point of entry for law school clinics to participate in the advancement of evidence-based civil justice policy. While most civil justice research focuses on the retrospective review of written decisions, numerous issues—including the conduct of judges, the challenges faced by unrepresented parties, and the disconnect between the law in action and the law on the books—can only be studied through contemporaneous observation of live hearings. Additionally, court watch research can yield important pedagogical benefits that serve law school clinics’ dual teaching-service mission. Accompanied by reflection and discussion, court watch research have the potential to expose law students to a broad swath of justice issues, acculturate students to the norms and habits of court actors, and introduce students to the study, design, and critique of institutional systems