Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Griner, and this is proof Over Precedent.
This week we're bringing you a student voice.
[00:00:37] Speaker B: Hi everyone. Welcome to the Access to Justice podcast.
[00:00:40] Speaker C: I'm leann and my name's Arushi.
[00:00:44] Speaker B: And today we are talking to Rachel about her blog post that she shared on the Access to Justice blog. And so, Rachel, would you mind introducing yourself?
[00:00:55] Speaker D: Hi, I'm Rachel. I'm a 1L at Harvard Law School. And a fun fact about me is that one of my favorite TV shows is 30 Rock.
[00:01:05] Speaker B: That's a great TV show. Mine's Parks and Rec.
[00:01:09] Speaker C: I would say that's a great TV show, but I have not watched it and my favorite one is probably Gossip Girl also.
[00:01:17] Speaker B: Fantastic television.
Rachel, we've read your blog post and hopefully our listeners have as well. But would you mind giving us a summary of the topic of your paper and just kind of the high level overview of what you studied and what you found out?
[00:01:33] Speaker C: Sure.
[00:01:34] Speaker D: Thanks so much for having me.
I read about pro se litigants being sanctioned for failing to comply with rules of civil procedure, both at the state and federal level.
And my initial assumption was that they failed to comply, perhaps because the rules are convoluted and not accessible to laymen, so that the issue was a matter of interpretation.
And I went in with that assumption looking for research that maybe would confirm that.
But I actually found the opposite or some suggestions that the opposite could be true.
So I was wondering, why are pro se litigants failing to comply with rules of civil procedure? If it's not about interpretation, what could some of the other barriers be?
And I found some indication that it could be deployability, which means the ability to use legal knowledge to your advantage in court.
It's not just about knowing the law, but also how you use it.
[00:02:46] Speaker C: Could you please tell us a little bit more about that first study you found that kind of shifted your understanding of the assumption you went into this project with?
[00:02:56] Speaker D: Yeah, so I found this law review article by Kevin Tobia testing ordinary meaning, where he conducted experiments, seeing how both laymen and legal professionals interpreted certain nouns.
And so they were.
He conducted two experiments, one with us judges and law students from Harvard, Yale, and Columbia, and another with an online sample of 200 people.
And he found that those two groups did not vary in the way that they interpreted certain nouns like vehicle.
And that was really interesting to me, because if that could suggest that perhaps there isn't a significant difference in how laymen like pro se litigants and legal professionals are interpreting rules of civil procedure, many of which are written in plain English, that it may suggest that. I mean, it's just a starting point to answer that broader question because he's just testing singular nouns.
But I think it's important because his methodology is highly replicable for researchers who want to test the differences or similarities in which laymen and legal professionals interpret certain phrases and rules.
So I suggest in my article, one way to kind of expand his study is having participants read something like, if you bring a vehicle to this park, you face a $10,000 fine, and then have those participants answer whether certain items are a vehicle in the context of that law.
And I thought it might be fun for us to sort of try that exercise here. Obviously, this is not a real experiment, but just for fun. So, Lian, do you want to be the judge? And Arushi, would you like to be a layman?
[00:05:06] Speaker B: Yeah, absolutely.
So as a judge, I think probably I'm thinking about the term vehicle in more of a cerebral fashion as to maybe it's something that someone uses for transportation, playing through scenarios like, is it something that just. Is it something with wheels? Is it something with an engine? Or can it be kind of anything traditionally used for movement?
And so I think that's pretty. A large category that probably a lot of things fall into.
[00:05:40] Speaker C: Yeah, that's really interesting that you say that, Leanne. I don't think I would have, as a layman, realized that things outside of those which have engines would be included. Because when I think of the word vehicle as a layman, I think of the cars that I see every day and trucks and buses, maybe.
[00:06:03] Speaker D: Yeah. And so that's. That's perfect. And I really love the way that you guys really fulfilled your roles. I think this is more of a substantive law question because it's discussing criminality, or I guess not criminality, civil sanction. But it would be interesting to see this more in a procedural rule. For example, you have to file on this certain date, because even things that seem maybe intuitive like that can also potentially have certain variations.
[00:06:38] Speaker B: That is really, really fascinating.
In your blog post, you talk a little bit more about how this can maybe be applied to pro se litigants in the second stage study that you bring up, self Help Reimagined, would you mind giving us a little bit of what that study is about and how it relates to your topic?
[00:06:59] Speaker D: Sure.
So it seems to me that self help Reimagined actually sort of builds upon this idea. This is my assumption that it sort of built upon the idea of this famous paper written by Mark Gallanter, why the haves come out ahead, Speculations on the limits of legal change. And and this is an article that a lot of law students have to read in civil procedure about one shotters versus repeat players. So one shotters, litigants who lack resources and familiarity with the law versus repeat players who are litigants who are well resourced and are frequently accessing the just justice system so they have a little more sophisticated understanding of how to use the rules to their advantage.
And his thesis is basically even if you're changing the rules of civil procedure, simplifying them to be more accessible to pro se litigants, one shotters like pro se litigants may still fall behind because it's not necessarily about substantive rule change, but how to use the rules to your advantage.
And if that sounded very abstract, I think self help can kind of explain more about what that means.
So in this paper these authors talk about how efforts to write self help material. So self help materials are things that are materials that pro se litigants are given usually by legal services to aid them in court proceedings. So efforts to write self help materials in plain English to simplify them will not address all the barriers that pro se litigants face.
And their research was based on observations of small claims, court proceedings and cognitive interviews with defendants. And they found that even when defendants did have a grasp on the law and certain legal arguments, they struggled to deploy that knowledge due to cognitive and emotional challenges. And that arose when they were interacting with a complex adversarial system. And I think that's sort of intuitive. If you're up against, I don't know, the government or a more well resourced plaintiff or even just an adversarial one shotter versus another one shotter.
I can imagine that you might feel fear, shame, guilt, hopelessness. Those are normal reactions. And that can affect someone's ability to, to advocate for themselves in court versus someone who's represented by a lawyer. You know, lawyers can get nervous too, but it's not the same. They have more training, they have more practice.
So what does this mean? This basically means that just translating self help materials to be simplified to make it easier for pro se litigants to interpret. That's not doing enough. We need to do more. Okay, so what can we do?
We can provide self help materials that provide positive affirmations to sort of deal with some of those emotions that people are feeling in the core system or showing how, how legal concepts interact in context. So illustrating relationships between concepts through easy to follow roadmaps and summaries and then also, you know, actually simplifying to some degree so you know, shifting towards commoditize law such as fill in the blank complaints.
[00:10:32] Speaker C: That's really interesting, Rachel. Thank you so much for sharing.
I was wondering if there were any other implications of these studies when you look at them together that you think about and any paths forward with these studies. I know you mentioned a few ideas you had, like for example, with that frame, first case, that first study, how you could talk about the interpretation of nouns in the context of different laws. But were there any other thoughts you had on how to think about this issue going forward?
[00:11:06] Speaker D: Yeah, so I can, I can think about or I can talk about some of the strengths that I found in both papers to sort of tie them together. So what's notable is that Toby is taking more of, I guess I think it's an empirical approach to this topic, whereas Greiner et al's paper is more qualitative. So I think that's really interesting. So Tovey's paper is great because his methodology, like I said, can be replicated by other researchers. So what exactly is that methodology? You're taking a group of legal professionals so that, you know, those people can be solicited through contacting them directly, advertising at law schools or in court systems.
And then for the layman, I believe he contacted those people through this online service that will give you a sample of people across the country. I need to fact check that, but that was my understanding. So that's something that, you know, researchers who are interested in this topic can do. And like the exercise that we went over, you can run vignette experiments, you can just test those groups, how they're interpreting different rules of civil procedure. So for example, we're in Massachusetts and if I'm trying to bring reform a court system, maybe housing court, that has a lot of representation of pro se litigants. Maybe I'll take the rules of civil procedure for housing court and then test those two groups interpretation of that rule.
And you know, you have to be very careful about how you go about this.
I'm just kind of going over like a simplified version of what that sort of experiment would look like. But I think that's a good way to take an empirical approach to studying interpretation.
And then, but I think that it's really important to also take a qualitative approach because it's also, you have to remember that it's also people that we're talking about and people are really going to have nuanced, individualized experiences. So, so I really like the fact that Greiner et al went to small claims court proceedings and had these interviews with defendants. And so I think researchers who want to do the empirical aspect of this can also, can also do this through interviews. So talking to pro se litigants, asking them how they're approaching these rules of civil procedure, asking them what, how they're getting their information, are they using things like artificial intelligence? I know that there are some rules on you're not allowed to use artificial intelligence, but trying to figure out like, how are they going about interpretations and in their own words, how are they interpreting certain laws?
So I think that could also shed some light.
And it's very likely that if a researcher did this, they would see that it's like self help reimagine found it's not just about interpretations. There's so many other things that are going on in the court system, not just interpretation, but you know, how they're, how they're viewing that specific rule in context.
And I think what, what would also be interesting but probably a little bit more difficult to study is finding pro se litigants who fail to comply with rules of civil procedure and ask them if they feel comfortable sharing, you know, off the record, like why, why did you fail to comply? And I'm sure there, there might be some legal difficulties with that because, you know, they don't want to be held liable for any of their statements. So I don't know exactly how a research would go about that. But my, my overall point is that I think both are really important when you're working with people because empirical studies provide more, you know, maybe accuracy and replicability. But I think that qualitative studies really show these like on the ground nuanced differences in how people are approaching the, the courts. And sorry, I'm rambling, but last, last point that I'll say is I think also with the qualitative research will show is that there may be variations among different proceedings. So how certain laymen interpret housing rules of civil procedure in a housing court might be different in another context.
[00:16:00] Speaker B: That is really fascinating. I love how you bring up the human element to accessing our justice system.
I think that's really fascinating work for us to read about and then to think about how we can expand on in the future. So thank you so much, Rachel, for sharing that with us.
[00:16:19] Speaker D: Thank you. And I'm just curious about your own experience in civil procedure. Like, how was interpretation for you? Did you feel, because, you know, we're becoming lawyers, but we're not lawyers yet, so did you feel that, you know, interpretation was easy or was it a learning curve for you?
[00:16:41] Speaker C: Yeah, I think there's such a huge learning curve, especially because there's just so many moving parts with the rules of civil procedure. And I actually remember us studying together in the beginning of the semester and you asking about when the time starts. So like, when the rules say, oh, you have 21 days to file, the answer from this moment. You asked a great question about, like, when do the 21 days start? Is it the day after? Is it the day of. Does the day end at midnight? Does it end at the time that.
Yeah, I'm rambling right now, but there's just so many moving parts. So I think as a law student, if I'm so confused about something that I've learned about for a semester, I can't under. I can't expect or can't understand how laymen and pro se litigants are expected to comply with these rules and are sanctioned if they don't. I think it's probably slightly unfair. But yeah, there's just so much work to be done. So this is a really exciting area. Thank you so much, Rachel.
[00:17:50] Speaker D: Thank you. Yeah, and I totally agree. And I remember we were sitting outside having that conversation and, and that's why I thought that we were. That I was going to come to that conclusion, that it was about interpretation. And I think it is still important to recognize that differences in interpretation are there, but then there's also a lot of other things going on. And I think the fact that some people have exposure to the law before law school can also help them understand some of these rules in context. So for example, you use like filing deadlines. Well, if you worked as a paralegal, maybe you understand like when the filing deadline is. So I just think the more exposure someone has to the legal system, which is usually not the case for, you know, one shotters, pro se litigants, they'll. They'll have a better.
They'll be able to comply with the rules of civil procedure Better.
Yes. Sorry, I'm rambling.
[00:18:48] Speaker B: No, I think that makes total sense because I also struggled with that as well when learning civil procedure, how all of the rules interacted together.
So I can't imagine how someone without any exposure to the legal system would navigate that. So thank you for sharing your important work with us, Rachel.
[00:19:07] Speaker C: And on that note, I think we.
[00:19:08] Speaker D: Will wrap this up.
[00:19:10] Speaker C: Thank you so much for listening to this podcast. Hope you stick around for other episodes.
[00:19:18] Speaker D: Thank you. Bye.
[00:19:20] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:19:45] Speaker C: So for us, we are defining recidivism in this study as future arrests.
Not future charges, future arrests. Because it is the arrest that brings a person to their first appearance, which is regardless of, you know, what happens, they will eventually come to that first appearance. We want to really look at arrests, but also the theory of change in the program that I just described is that educational component attempting to kind of.
[00:20:19] Speaker D: Address the issue of or help people.
[00:20:23] Speaker C: Navigate situations where arrest might actually be an outcome, but it doesn't have to be right.
