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 Greiner, and this is Proof Over Precedent.
Welcome to another edition of Proof Over Precedent, the Access to Justice Lab's podcast series on all things access to justice and empirical legal studies related.
I'm your host today, Jim Greiner, and this is a podcast that I've been wanting to do since before there was Proof Over Crestant. These are two of my favorite people that I have with me today, Ben Barton and Stefanos Bebas. I'm going to have them introduce themselves in just a second, but the topic for today will begin with a paper that they co authored and published in 2011 called Triaging Appointed Council Funding and Pro Se Access to Justice actually published. The official publication date is 2012 in the Pennsylvania Law Review. And we'll include the citation and a link with both the podcast and the blog and Proof Over Precedent. So let's begin with you, Ben. Can you just remind everybody who you are?
[00:01:29] Speaker B: I can for sure. I'm Ben Barton. I'm a longtime professor at the University of Tennessee Winston College of Law. I started my career here in the clinical program.
I practiced in the clinical program, taught there for 12 years, including being director for four years. And I've since transitioned into what we call stand up teaching.
So I do criminal law, torts, legal ethics, and some other classes.
[00:01:52] Speaker A: You begin your career earlier than that. That was your teaching career, is that right?
[00:01:55] Speaker B: Correct? Yeah, totally. And I write generically. I Write in the A2J space, and I also do some empirical legal studies.
[00:02:03] Speaker A: Terrific.
And your honor, can you give us a brief introduction?
[00:02:06] Speaker B: Sure.
[00:02:07] Speaker C: I'm Stefanos Beavis. I was a longtime professor at the University of Pennsylvania Law School.
My specialty was criminal procedure and criminal justice, but I also directed the Penn Supreme Court Clinic and argued six cases before the Supreme Court.
And my first case there was Turner vs Rogers, which we might talk a little bit about.
And Professor Barton wrote an amicus brief in support of that and lightning struck. In 2017, I was nominated and confirmed to the third circuit. So I've been an appellate judge for a little bit more than eight years now here in Philadelphia.
[00:02:46] Speaker A: And you have a background before teaching as a prosecutor?
[00:02:49] Speaker C: That's Right. I was a big firm litigator. I was a prosecutor in Manhattan. I clerked on the 5th Circuit. I clerked for Justice Kennedy, and we
[00:02:59] Speaker A: met when you clerked the year before me on the 5th Circuit. Is that correct?
[00:03:04] Speaker C: That's right.
[00:03:04] Speaker B: Yep.
[00:03:05] Speaker A: For the honorable Patrick E. Higginbotham, who, by the way, this year, a little bit before we record this podcast, will be celebrating his 50th anniversary on the federal bench. So congratulations.
Super. So we're going to start out today with the article that y' all co authored in again, published in 2012 in the Pennsylvania Law Review.
And this is required reading from my civil procedure students and my Access to Justice seminar students. So everybody, if you've followed proof over precedent and you're listening to some of the student podcasts, all of them have read this article to begin with. And so this is obviously something that I think is an important article in the field of access to justice, again called triaging Appointing counsel, funding and pro se access to justice.
And then, your honor, tell me if I've got this wrong, but I believe that the article takes place in the context of a debate about how to try to achieve or improve at least access to justice in the United States, a debate among those who agree that there is a problem that requires action about whether we should try to solve it primarily by seeking a civil Gideon right, which is a phrase we'll have to unpackage, or whether we should seek it primarily through other measures and if so, what those other measures might look like. And that debate is occurring within the community. Does that sound fair? Let me just start with that, your honor. Go ahead.
[00:04:35] Speaker C: Let's back up. You know, as I said, I come at this from criminal procedure. And over the course of the 20th century, we moved from the right just to hire your own lawyers.
But in the over the middle third of the 20th century, the courts interpreted the Sixth Amendment to say, not just you can hire a lawyer, but if you can't afford one, one's going to be appointed for you.
Gideon versus Wainwright was the famed case that said in any felony case, you know, both reason and reflection, say you can't believe get a fair trial without having a lawyer to navigate the complexities of 20th century criminal procedure. So that right has been expanded further and further, first from the Scottsboro boys to any felony case, to any misdemeanor case with even a day in jail, to any case where someone even gets a suspended sentence. And so a lot of people look at that as the march of progress and say well, we've had more lawyers in criminal cases. Why don't we get them in high stakes civil cases, too? And indeed, there are a lot of civil cases where the stakes matter a lot. You're losing your parental rights, you're going to be jailed for not paying child support. Maybe you're going to be deported or removed from the country.
These are very important cases to people. And so for decades, a lot of people in the access to justice movement have seen as their goal the effort to get free lawyers beyond criminal cases, where you have the sixth Amendment to civil cases, possibly through the due process clause.
[00:06:12] Speaker A: Super. And you say a lot of people. It actually includes a lot of people whose names folks might recognize. For example, the American bar Association, the ABA in 2006, unanimously adopted a policy statement that reads. And I'm not going to read it all out. Resolve. The ABA encourages authorities to guarantee the right to counsel, legal counsel at public expense, the low income persons, and those categories of adversarial proceedings where basic human needs are at stake.
And then it goes on to define basic human needs as including shelter, sustenance, safety, health, or child custody.
And so this is the, purportedly, at least the association that represents lawyers all across the country taking a position on this topic.
[00:07:03] Speaker B: Right.
[00:07:04] Speaker A: So, Ben, set the stage some more for us. There's. And part of this effort to try to achieve this idea of a civil Gideon. The idea of a civil Gideon. So a Gideon. Right. Like. Right. That would apply in civil cases at least. Civil cases involving basic human needs has been litigation in the federal courts to try to get a similar declaration. Is that correct?
[00:07:26] Speaker B: That is correct. First, I'll note just the irony of. You're kidding me. A trade association is like the answer to this problem is more of our trade members.
That's strange.
[00:07:34] Speaker A: How come?
[00:07:35] Speaker B: Do that.
[00:07:35] Speaker A: Forgive us more money. We'll solve the problem for you. Yes.
[00:07:37] Speaker B: Yeah. No, for sure.
[00:07:39] Speaker A: Right.
[00:07:39] Speaker B: Yeah. Well, Stefano, do you want to talk a little bit about Turner vs Rogers? Because that's actually where this all starts.
[00:07:44] Speaker C: Sure, sure. So we had a young man and a young woman. They were 19 and 17 when they were together briefly. They never got married, but they wound up having a child.
And so the mom, Rogers, was chasing the dad, Turner, for child support.
And in South Carolina, neither side gets a lawyer. And so the mom was suing for this. And the dad, over the course of years, he made an agreement to child support. He didn't pay. And then several months later, he's threatened with civil contempt. Pay up or you'll go to jail.
And over four occasions, he had paid up either right before or immediately after he was jailed. And then the fifth and sixth times he was threatened with this. He didn't kept building up more and more arrearages.
So there was litigation all the way up to the South Carolina Supreme Court. And the South Carolina Supreme Court said, sorry, you don't have a right to an appointed lawyer here in this case.
So Turner, represented by former Solicitor General Seth Waxman, filed a cert petition in the US Supreme Court saying, I've got a fundamental right before I'm thrown in jail to have a lawyer to defend my interests. Well, neither had the mother. Rogers had a lawyer, so I took up her case and opposed this case. The Supreme Court agreed to hear review, and there was a. A big division among state and federal courts about whether due process recognized a right like this. And so the Supreme Court heard the case in 2011, and counsel had to concede, of course, this wasn't a criminal case. It wasn't covered by the Sixth Amendment. But taking some of the language from some of these other cases, was arguing that fundamental fairness required that he should have a lawyer to represent his interests. And I, representing the mom, said, hey, it would be unfair to give a free lawyer to the dad and to tilt the playing field against me. I've been chasing him for eight years, and only when threatened did he. His feet were held to the fire did he pay up repeatedly. And so the US Government, represented by the Solicitor General's office, came in and offered the Supreme Court a compromise position, which said, well, we're not sure you actually need to give a free lawyer, as long as there are some substitute procedural safeguards that the clerk of court and the judge could provide to make sure that the dad knows what the issues are, that the judge asks some questions to make a record, and that that's reviewable on appeal. And ultimately, the Supreme Court, all nine justices of the Supreme Court, rejected the argument that due process required him to have a free lawyer. And five of the justices said, well, we think it is enough to have these substitute safeguards where, number one, the dad has to be warned that the issues could be addressed are, did you pay this money? And could you have paid it? Did you have the financial means? Because you can't lock someone up unless it's a means to get him to pay something that he can pay.
Secondly, that the judge engages in some questioning on the record to elicit what the father's financial means are, what his income and expenses are in order to form a basis for the finding that indeed he has not paid and yet he could pay this amount, that the judge make that findings on the record and that finally it's subject to review on appeals. Justice Breyer wrote the opinion for the court. And very importantly, in all the previous cases that had come close to like a civil right to counsel, culminating in a case versus Lassiter, the supreme court had spoken just glowingly about lawyers and how much they add to cases. But this is the first time that the court recognized that lawyers, first of all can slow cases down. They can make it take longer for custodial mothers who've been chasing non supporting fathers, colloquially sometimes called deadbeat dads. And so that there is a cost, a cost in terms of time as well as money for bringing lawyers into these cases and complicating them and slowing them down. And the other thing that the court recognized is the court bought an analogy that I had argued for, which was that at the beginning of a criminal case, we ask defendants to fill out a form before they get lawyers. And that form is to disclose how much money they make and what their expenses are to show that they can't afford counsel. And just as they have to show they can't afford counsel before they get a free lawyer.
So we argued, they can navigate the process of showing the court that they have or don't have the means to afford to pay the child support.
And justice Breyer's opinion balked that analogy between what we can expect people to navigate on their own, at least with the help of a judge asking some basic questions.
[00:13:18] Speaker B: Yeah. So then Stefanos reaches out to me, and I had previously written an article called against civil Gideon. And if you know this area of access to justice or poverty law, there weren't very many people who were lining up behind me against civil Gideon. But I was like, that's my actual belief. That was my belief then, it's my belief now.
And basically, as far as I'm concerned, you want to start with the first premise, which is that Gideon itself hasn't been super awesome. Criminal law, Criminal justice is everybody, please. And especially when you get down to the misdemeanor level, you're getting hardly any lawyer whatsoever. And it's underfunded. And I was like, what are the odds that they're going to fund landlord tenant lawyer better than they do a death penalty lawyer? The odds are low. So it's going to be underfunded. It's going to be a shell of itself.
And insofar as you were going to spend that money or Those resources fix the underlying process and underlying law, simplify it, make it so that ordinary citizens can represent themselves rather than trying to keep it super complicated and adding a free lawyer to the mix. So that was how I got engaged in it and Stefan, we hit it off and I was like, there's a law review article here. And we finished the lawview article and then we went ahead and wrote a book.
And I was like, well, there's a book here too. And it was great. Like my all time professional pleasures. Like one of the great things I've done in my career was writing this book and doing this work. So the book is called Rebooting justice and it's an expanded version of the law of your article.
[00:14:48] Speaker C: So one thing that we came across in the course of litigating the case was there wasn't a lot of empirical evidence about this.
But in the course of the case, it appears that the US Government surveyed different state departments of social services to ask what was going on with child support enforcement and were they providing lawyers, et cetera. And some state courts had mandated that some of these places provide lawyers and some hadn't. And so what little data there were troubling for the give everyone lawyers thesis. As I recall, in Pennsylvania, some courts had said, provide lawyers, and yet in practice they weren't being provided. So a court can order it, but it didn't mean follow through.
In rural North Carolina, as I recall, there was what they call lawyer for a day programs. What that was a fancy way of saying was that there would be a lawyer standing up there, but you would meet your lawyer five minutes before your case was presented and you would tell your lawyer, you know, I got injured, it's hard out there, please give me more time to pay. And the lawyer would then turn around with no legal research, with no cases, and tell the court, your honor, he got injured. It's hard out there. Please give him more time to pay. So it's like there was a lawyer in name only.
And the other really interesting fact was in New Jersey, there was state court authority that said that they couldn't pursue child support civil contempt without providing a lawyer. And so the response in New Jersey was not, okay, we'll provide lawyers, but we're just going to stop enforcing child support orders with the threat of contempt. And so a whole bunch of the custodial, mainly moms, who were getting child support that way stopped having this tool. And there was, there was some empirical evidence that child support contempt is a powerful tool. It's one of the few Things that causes some of these non supporting, usually fathers who might be working off the books, who don't have assets you can seize. It's the only thing that makes a substantial fraction of them wind up paying up. So there was a real cost to the custodial moms who were chasing these dads for support.
[00:17:16] Speaker A: Terrific. So a huge amount there. That again, I wish we had hours and hours to unpack, but let's try to. I'm going to try to force myself to stick to the big picture. Okay. And first of all, I want to go back to the point that you mentioned, Ben, which is that at least in the view of some. And obviously you hold this view, as do I. I'll just disclose that Gideon itself has been at best a mixed bag in terms of its implementation.
And by the way you use the phrase. Your honor, lawyer for the day. One of the greatest regrets that I have in terms of how this scholarship has played out is the divide between people who study the civil justice system and the people who study the criminal justice system has inhibited the transfer of vocabulary across those two fields.
So that, for example, there's a failure to recognize that frequently what we have when we're implementing the criminal Gideon Wright is itself a lawyer for the day program that's in fact the. The dominant. For form of assistance that we give. The most frequent form of assistance that we give to people in the criminal context faced with serious incarceration.
We give them the five minutes before the hearing, the turnaround with no. With no legal research, except what happens to already be in the attorney's head. And then the. The. The parroting or the attempt to cross examine witnesses based on what the. What the client.
And it would be great if we could just all call that lawyer for the day and then we'd know that we have Gideon, criminal Gideon, lawyer for the day. But unfortunately that vocabulary is not transferred. So let's unpackage that a little bit just to give people an idea of that. There are, as I'll understate this, there are challenges in the implementation of criminal Gideon. Are there some horror stories or some statistics, Ben, that you could share with us, at least in general? I don't need you to quote the exact numbers, but lawyers who have been, you know, say, drunk or high or on their way to prison themselves as they're representing capital defendants, you want to say, your honor?
[00:19:21] Speaker C: Yeah. So this is at the top and the bottom of the spectrum. There are lawyers who are juggling a thousand or two thousand misdemeanors under A flat fee contract in a year, and which averages out to like, three minutes for misdemeanor, and none of them goes to trial. So, yes, you have somebody for a JJ with a JD but we've spread the resources so thin that the courts order this, but they don't make the legislature pony up money. And the legislature's not willing to order a massive program of free lawyers for all, especially in these least serious cases. That's the bottom of the ladder. And, Ben, why don't you talk about the top with the very serious cases?
[00:20:05] Speaker B: Oh, yeah, no, I mean, you have lawyers who sleep through trial, lawyers who show up at trial drunk, a lawyer who picks up a DUI on the way to trial and then appears at trial, and that's held to be sufficient lawyering for it. Yeah. And some of those are in capital cases, like super serious, Very, very, very poor.
[00:20:23] Speaker A: And again, for the vocabulary, that means the death penalties at issue, and that means the state is seeking the ability to kill the defendant.
[00:20:30] Speaker B: Yeah, yeah.
And in the article and in the book, we're very careful.
Gideon itself is fine. It's not like we're against having lawyers for people who are facing serious felonies. It's the expansion and the dilution of it. And it's basically like you take a serious right, and then you apply it to too many people and you underfund it, and then it stops being a serious right. Like, you start. You stop actually delivering the thing that you're supposed to be delivering because it's been diluted so much.
[00:20:58] Speaker C: Right. So one of the points is it's just not happening politically as much as we could wish for it. Another of the points is there is surprisingly little evidence with certainly not randomized controlled trials at the time. And what little evidence there was, we cited some stuff by Daryl Brown and Erica Hashimoto that, you know, there are cases where people who are pro se criminal defendants who have no lawyer might be doing about as well as those with lawyers. And we see people who fire their lawyers. Now, sometimes the people who fire their lawyers are mentally ill, and sometimes they're cranks for the political calls. But sometimes it might be the lawyer is not doing very much for the person. And we had, as Professor Greiner's own article show, we had surprisingly little evidence at the time that lawyers were adding value, certainly when added to cases across the board, as across the board. Right. Ben and I are not opposed to having lawyers in cases. We think there probably are some cases where we would triage lawyers to them, but we're skeptical both that you could make an across the board right work and that lawyers add significant value in every case, even if you set up the procedural system to be one that could work without lawyers. So that's the other wrinkle here.
So our hypothesis was, and perhaps Professor Greiner can talk more about it, that you can set up a system that requires lawyers to navigate it and make it really complex, such that non lawyers will fall afoul of it. Or you could set up a dispute resolution system along the lines of the way small claims court was set up or along the way, the lines of the way that Social Security disability hearings are set up.
That is designed to work without lawyers. And so that's a design choice. And it might be.
We need evidence that lawyers add value in a more adversarial proceduralized system and maybe don't add as much value in others. But it was just an article that was taken on faith by all the people in the clinical legal community for the longest time. And Ben and I were questioning how much we knew and how much basis there was for insisting that it's lawyers for everyone are bust.
[00:23:25] Speaker B: Yeah. We call it the more lawyers, more justice fallacy. Like, there's just no evidence for that whatsoever. And then you get to pick and choose it. But there's plenty of evidence to show that that's not the case.
And it's a rough argument, I think, for the civil Gideon people to be like, no, no, what we want to do is adopt the system in the criminal courts. That's. We actually named it after that. And you're like, that's what we're looking for.
That's your best hope is that we're going to have that system. Good luck with that.
[00:23:52] Speaker A: And actually, for what it's worth, many people on the side who say that we should try to adopt a Gideon, like, right. No longer use the Gideon language. They no longer. They now avoid saying civil Gideon.
They use the more cumbersome phrase civil right to counsel precisely because they acknowledge the fact that the experience with Gideon has been itself a mixed bag.
[00:24:17] Speaker B: Yeah. And I mean, a big part of that movement has been on the legislative side. And I won't speak for the judge, but as far as I'm concerned, that's fine. You know, you want to lobby a legislature and they want to spend the money. I think it's dumb. I'll just be frank. Like, I wouldn't spend the money on a bunch of lawyers in eviction cases. I would put the money into a pool. I'd help people pay their rent. That's how they're going to stay in their apartment. But dude, if a legislature wants to spend the money on that, that's completely fine with me. It's a totally different thing to have a court order it. And it's a different thing in two ways. One, they're going to order it but not fund it. And so then it's going to be underfunded and it's not going to work.
And second, insofar as they're ordering it, they're not doing what the legislature does where they're balancing competing priorities. They're just going to order this thing and then let it sit out there.
[00:25:01] Speaker C: Relatedly, I think Professor Greiner, you were absolutely right that criminal and civil don't cross fertilizer in the criminal space. Some of the most innovative defender's offices are places like Neighborhood Legal Services of Harlem. And what some of these places like them or PDS in Washington D.C. or the Bronx Defenders, often known for using some non lawyer paraprofessionals, using social workers and investigators and others to do the kind of thing that doesn't necessarily need to be done by a lawyer. And so let's say you're concerned that non English speakers are going to get disadvantaged in the system. It's a fair concern. Well, you might be able to address that with a translator. Okay, let's say you're concerned that juveniles are going to get railroaded. Well, we have guardians ad litem. We have other people who don't have to be lawyers to look out for their interests. So there's going to be a sliver of cases where there's something distinctively legal for a lawyer to do.
But you can use social workers and other paraprofessionals. Indeed, in many other countries they do. So part of the book is comparative.
And when you look at other countries, places like Latin America use these paraprofessionals called notarios. Notarios sometimes help with an employment contract or a lease or a will.
And in about 30% of cases, these paraprofessionals provide some assistance. In America, our licensing rules shut them down. So that same 30% pretty much winds up going without any help, often never brings suit in the first place. And so part of the point of the book is by insisting on lawyers are bust. Often you're going to get bust by having a broader approach to access to justice that allows things like maybe some pro sef help materials, we needed evidence on that.
Or maybe some paralegals or maybe translators or maybe Guardians, you could have a wider range of assistance. And some of it might need to be traditional lawyer assistance. And some of it might be, you know, at different stages you provide a lawyer for transactions. And some of it might be non lawyers, some of it might even be technology.
And now we're on the cusp of artificial intelligence, which, which could do a lot, certainly a lot more than we envisioned back in 2012.
[00:27:29] Speaker A: I think two points at this stage, just to make one very brief as a comment and then one as a broad question for you. And I have several more broad questions just to warn you. It's not like this is the last one. First comment is there is actually judicial support for this broader view about potentially changing the system, how injecting lawyers into the system can change it in non constructive ways, and et cetera. And one place that I can't resist highlighting is something, again I require of all that all my civil procedure students read. It's Justice Powell's concurrence in the 1980 case called VTEC versus Jones.
And there he talks about Justice Powell, talks about how sometimes bringing a lawyer into the proceeding changes the nature of the proceeding in fundamentally non constructive ways. It formalizes it, it may slow it.
And I guess I've always found that that concurrence particularly interesting because of who Justice Powell was. As time marches on, knowledge of his history recedes, as happens to all forms of history and biography. But do either of y' all happen to have met Justice Powell before and happen to know
[00:28:48] Speaker B: Justice Powell? But I do know something about his background. It's my understanding he's the only school board member to ever serve as a justice on the Supreme Court.
[00:28:57] Speaker A: That's something I had no idea.
[00:28:59] Speaker B: That is true. I'm pretty sure that's true.
[00:29:01] Speaker A: Fantastic.
[00:29:01] Speaker C: He was also president of the American Bar Association. And so it's hard to imagine the president of the ABA today taking that
[00:29:08] Speaker A: position, taking the position again that the in 2006 the ABA took. Exactly. Anyway, former and a 30 year sort of member, president of the Virginia Bar. President, American Bar Association, 30 Year, Classic Lawyer's lawyer, you know, classic Virginia Southern gentleman, basically saying that in a case in which there had been an effort and four members of the court willing to say that there was a right to counsel in what was a non criminal context, it did involve a prisoner being transferred to a mental institution. So it had criminal odors, whiffs, but nevertheless it was a non criminal setting. He refused to provide the fifth vote that would have forced a right to counsel in that setting. I should say, because there weren't any proceedings that was part of the problem, but in that setting, and wrote a concurrence saying it's not always a great thing to bring lawyers into the mix.
So, anyway, I recommend that one. For people who are interested in reading some of the judicial statements on this. On this topic, the bigger picture question that I wanted to highlight for you is, and I can't resist this, the doctrinal move that the court made in Turner vs Rogers, which is the case where we started out the conversation in a prior case called Lassiter, which, again, your honor, you mentioned that earlier, which involved termination of parental rights. The court had said that the due process clause requires us to presume that there is no right to appointing counsel in a civil context unless the case involves a potential incarceration. And then we get to Turner and we hear the court saying, well, when we said that, we said something about when the case doesn't involve potential incarceration, but now that the case does, we find out that we don't presume counsel there either, which has always struck my students as a kind of obnoxious retreat to logical truths that, you know, if A, then B doesn't. Doesn't imply. If not A, then not B. That's not true. Right.
Nevertheless, the court then goes on in Turner vs Rogers to make them to. To link due process and access to justice at a constitutional level in a way that, to my knowledge, it had never done before. It basically say, says that there is a level at which the proceeding is so incomprehensible to the pro se litigant and the consequences are sufficiently serious to where state. You have a choice. You can provide counsel if you want to pay that money, or you can do something likely cheaper and easier.
[00:32:02] Speaker B: Right.
[00:32:03] Speaker A: And if you want to do that. Yeah, if you want to do that, then you can go that route. So, Ben, please, I was about to ask. Can you give me your reaction briefly?
[00:32:10] Speaker B: The original sin is Lassiter, because all of the appointed counsel cases are like, it's a fundamental right. We're taking away your freedom. Imagine if we were taking away your freedom, even one day, and then you're like, which would you rather do? Spend one day in jail or have your children taken from you?
[00:32:24] Speaker A: I asked that question to my civil procedure students every single year.
[00:32:28] Speaker B: I ask, except for it's not a hard question. Everybody knows the answer to that question. So Lassiter, based on their previous logic, should have come out the other way. But they were unwilling to do that. They weren't interested in doing that. So they made a distinction that. That didn't make any sense, which is like, it's only jail time. Then the way they get to jail time, they're like, oh, we didn't mean that. We didn't mean that either. And the fact of the matter is, if. If it came down to it, if they were forced to choose, they would overturn some of the previous ones that expanded. Gideon. I think that's. That's pretty obvious, but that's not going to happen. They're not called. I'm not even saying they should do that. They're not going to do that. What they're going to do instead is what my beloved colleague Brennan Denning calls retconning, where they just sort of like, change the past to try and explain the future as if that's the thing they did. So I totally agree with that.
[00:33:12] Speaker C: But I think another of the things here is the lesson of experience.
So, okay, in the early days, there was optimism, there was hope. And then the hope collided with reality, the reality of underfunding, the reality that they broadened the right and made it much more shallow in practice and that the. The funding had materialized and that it wasn't clear that the lawyers were leading to more justice. So I think it's a, you know, a more cautious era. And this is around the time that, you know, Professor Greiner starting to write some of these papers. And when you study these, like, okay, landlord tenant court. If you have a landlord tenant court set up with a lawyer for the landlord and no lawyer for the tenant, like, you might well get results that are skewed against the unrepresented tenant.
But you don't have to set up a system that way. And we haven't randomized or tested different systems and different lawyer arrangements. And it's not a fact of life or a fact of nature that we're going to have an adversarial system with complicated rules of evidence and procedure that presume a lawyer. So the bigger question here is an institutional design system, like, you can have a system. And again, Social Security disability is set up more like a European inquisitorial system where the administrative law judge knows the standard grounds on which somebody is.
[00:34:43] Speaker A: You define that term. Inquisitorial. European inquisitorial system. Sorry. And then go on with your thought. I just want to make sure that people understand it. Yeah, okay.
[00:34:50] Speaker C: So America has an adversarial system. There are two boxers, they get into the ring, they fight by the Marquis of Queen Berry rules with no blows. Below the belt. And the ref is just a neutral. He stands off on the back, and then he calls which one wound up beating the other. But he's not helping either side make its case. An inquisitorial system, it gets a bad rap from the Spanish Inquisition, but it doesn't have to be anything like that. It just means the judge isn't sitting back.
The judge gets involved by asking some questions, probing each side, trying to help develop what is the possible evidence and questions on the plaintiff's side, what's the possible evidence in question on the defendant's side. So the way it works in disability proceedings, as I understand it, is there's a standard set of questions that they have to go through to figure out, is this person totally and permanently disabled or close enough to it? Can this person do meaningful work in this economy? What do the medical records tell us about what problems the person's had in the past and how long they're likely to last? And so they will go and subpoena the standard medical records. They will ask to get the standard sources of information before them, and then they'll match it up against a set of rules or regulations that tell them what kinds of abilities someone needs to have in order to hold down certain jobs. And ask the disabled or injured person, how are you feeling? What's your prognosis? What can and can't you do now? And so rather than putting it all on the plaintiff to make out all of that himself, the judge and the court clerk and others will go through some standard questions, and then they'll turn to the lawyer for the government and probe both sides on their own. So rather than the. The judge just sitting back and watching someone fumble and follow complicated lawyerized rules of evidence, the judge and the court clerk will. Will kind of dig in to help figure it out.
[00:36:55] Speaker A: Terrific. And so then could you. I know I interrupted you to get those explanations. You return. Could you get. Return to your broader point, which is that it is not as though it is inevitable, written in stone, that we have to have only an adversarial system in the United States for adjudication.
[00:37:11] Speaker C: So it is a choice whether to have an adversarial or an inquisitorial system. If you have an adversarial system, it's a choice whether to have fancy rules of evidence and procedure or not. So we have small claims courts that are adversarial, but they ban lawyers. We have traffic courts that are adversarial, but it's the policeman up against the motorist, and then we have inquisitorial courts that are the administrative law judge kind of digging in and asking questions and follow up questions and collecting the standard sources of information.
Right. So if we are going to have a fancy lawyerized system, then Gideon is right. Justice Black wrote, lawyers are necessities, not luxuries. But it's a choice to have a system like that. That choice is probably here to stay in the complicated the felony criminal cases, but it is not required for the civil cases. And we could remake those. There's no provision of the Bill of Rights that requires those to be adversarial in the way that parts of the bill's Bill of Rights have been interpreted to require an adversarial criminal system.
And so rather than saying let's get more and more lawyers in who just aren't materializing and aren't being funded, we could redesign swaths of civil procedure and case handling for landlord tenant court or debt collection proceedings, or eviction proceedings, or some kinds of uncontested divorces or child support. We could redesign them so they don't require lawyers in the first place.
And that's the way forward. Given the realities of what we've seen about how poorly the expansions of Gideon
[00:39:04] Speaker B: have worked civil system wise. There are a bunch of cases where you can just expect there to be lawyers on both sides. And these are just like business to business cases or large scale contract cases. And in fact most states have a jurisdictional limit. So you can actually tell where the cases that are going to have lawyers are and the cases that are not going to have lawyers are limit in
[00:39:26] Speaker A: terms of amount of controversy.
[00:39:27] Speaker B: Yeah, totally.
[00:39:28] Speaker A: Kind of money. Yes.
[00:39:29] Speaker B: Yeah, totally. So below that amount of money, pretty much there's not going to be a lot of lawyers who were engaged there. And this is Colleen Shanahan and Alex Marks and others call these lawyerless courts. So there are these courts where 50% or more of the cases, one side doesn't have a lawyer and frequently both sides don't have a lawyer. And yet a lot of those courts are run as adversarial courts. And part of the reason why is the judges are former lawyers and they practice as lawyers and that's the system they understand. So that's the system that they apply. But again, that's not the system that people expect or need or is going to work best for them. You talk to a person who walks into debt collection court or into eviction court, their closest understanding to what they're hoping is going to happen is Judge Judy. And Judge Judy actually runs an inquisitorial court. Right. She's the one who calls out the questions and does it. That's what they're expecting to see. They're certainly not expecting to show up and have to put their receipts for payment into evidence and document each step of the process the way you would, as if they had a lawyer. But frequently they're required to do that. They're not going to be expecting to make fancy legal arguments or call it under the name like a debt collection court. They don't understand that they're supposed to file an answer and the answer is supposed to object to each single part of it. And yet they are required to do that.
[00:40:43] Speaker C: Right. So but again that's a design choice. So the American Law Institute is this big important organization that tries to codify either what are prevailing practices or recommend best practices. And it has this big project right now about some of these high volume civil courts like landlord, tenant and like debt collection. And one thing that they're seriously discussing is well, what if you made the big plaintiff debt collectors attach to their complaint? Here's the evidence that this debt is in fact owed.
Here is the date on which this was taken out such that the court can look to see is this beyond the statute of limitations? How about just requiring some basic information exchange up front, requiring proof that the defendant got proper service of the complaint and knows about these things. There's a series of these recurring issues that you could just design the system around if you just accept the reality that at least one side in these cases is not going to have a lawyer. Rather than expecting them to go through the formal exchange of documents that we call discovery. That's going to happen in a six figure commercial contract, a breach of contract lawsuit.
[00:42:02] Speaker A: Terrific. All right, I'm going to force myself to be limited to limit myself here to two more questions. Okay.
Although I have about 14 times 10. But anyway, so just two more questions again to limit my, my demands on yalls time and to limit the length of the podcast. Okay, first thing I want to get your reaction to the way that I see at least the evidence emerging on some of these non lawyer solutions, including some of the design solutions that we've mentioned. And I would, I want to suggest that the evidence so far on some of them at least is really bad.
It's quite poor as to their effectiveness and depressing in really discouraging ways. And I myself have becoming increasingly discouraged on this.
[00:42:49] Speaker C: This help materials, right? That just giving people some materials doesn't appear to do that much. It was a nice idea, but now it's been tested.
[00:43:00] Speaker A: My question though about big picture question is, is the problem with the self help materials or is the problem, going back to your point, your honor, with the setting in which those self help materials are attempting to operate. In other words, if you're telling people that they have to get up a cliff, they're going to need an elevator. Right? But if and if you give them a cane, which is the self help materials to get them up the cliff, it's not going to do anything. But if you lower the cliff and install a ramp, then maybe the cane will actually help them get up the cliff. But let me just summarize the state of the evidence before we get that. As of now, at least the way I read the evidence, and lots of people disagree with this, but at least the way I read the evidence and what I read is the randomized control trials and the very, very strong qualitative evidence that people like Becky Sandifer and Colleen Shanahan and Alex Marx that you mentioned, Ben, scholars like that, the very, very, very strong qualitative evidence that those folks gather. Right. The way I read it right now is that so far there is precisely no service type intervention in the civil context that has any evidence to suggest that it works short of a full traditional attorney client relationship. And the full traditional attorney client relationship does not work all the time.
It does not improve even the legal outcomes all the time, much less the socioeconomic outcomes that gave rise to the legal outcomes.
That doesn't mean that we know everything. Far from it. There are a lot of things that we have never tested via randomized trials that we could or via the really, really strong qualitative evidence among them lawyer for the day programs, which is what you mentioned earlier, your honor, but let me just get your reaction to that, because that's a sobering fact. That's a. And it's quite depressing. I'm finding it. I mean, including, by the way, self help materials that my lab has developed so far, we can see no evidence that anything that we've developed after spending years trying to do it correctly.
You know, in convol, you know, in channeling communication theory, psychology, behavioral economics, sociology, et cetera, we haven't been able to get it to work either. And I'm just curious what your reactions are to that. Your honor, you want to lead off?
[00:45:11] Speaker C: You are all at a book symposium for Colleen Shanahan, my colleague at Penn. And one of the important things to note is she had a bunch of anecdotes from judges who were well meaning, but they were in traditional courts where they were trying to help the plaintiff, non lawyer, introduce a piece of evidence.
But we were still expecting that this person is to follow these rules of evidence we teach students in law school mark it and then identify it, and then authenticate it, and then offer it into evidence, you're helping the person with the cane scale the cliff face.
What these studies have not been testing is something that was just nascent when we wrote the book rebooting justice, published in 2012, which is the online alternatives, the use of it.
So if you go on ebay, there's a dispute resolution process that was designed from the ground up to work for $20 chipped vases. It starts with two stages that have no human involvement. Each side states its own position, and then they make offers that are automatically exchanged between the parties. 90% of cases get resolved without any human intervention. And the parties report that they are happier and more likely to come back to ebay without them than people who didn't have a dispute. Which is shocking.
Right? So if you design a system from the ground up using it, if you design electronic kiosks that have that query a person to walk them through every step of what you need to do to make a claim or make out a defense, maybe you could design something from the ground up that would work. But what's clear is trying to retcon something onto an existing system designed for lawyers is not enough. And we wrote this well before the advent of AI, and I have to say, a lot of judges are reflexively anti AI because hallucinations are a real problem. But I see tremendous hope here for some of the AI tools that are already better than a fraction of the lawyers who appear before me. I think it's a matter of designing a system around using AI to walk people through what we expect, rather than expecting that they will just perform like conventional lawyers.
[00:47:42] Speaker B: I'll say something to expand first on the depressing part. So I'm doing a qualitative study of debt collection courts this summer. One in a city court, Knox county, and one in a rural court, county, Tennessee. And so I've gotten really in depth on the data on the debt collection collection stuff. And really depressingly, the actual change in substantive law doesn't seem to really matter very much.
Like, even in California, where they're like, oh yes, you must provide the data that we're suggesting you much must provide. It's super spotty by county, whether the default rate goes down or whether the amount that's collected changes at all, which is you're like wait, you're telling me that even if we change the substantive law it doesn't matter.
But I think this actually supports what the judge just said. It's the, there's like this socio legal thing that's happening inside this black box of these courts. And first instructing non lawyers, what it's going to be like is not going to help. That does not fix the thing that's happening inside this box. And then weirdly, even changing the underlying law doesn't change it very much because it depends on the behavior of the judges and the people inside that closed community.
I take hope and you'll know this way better than I will, Jim, but the court navigator stuff like there's been some good showings on that and there's been some good showings on non lawyers in unemployment hearings and things of that nature.
You aren't convinced?
[00:49:09] Speaker A: Not yet. Not yet. I haven't seen it randomized and I haven't seen the kind of real solid qualitative workup that would convince me yet. I mean I've seen some efforts, but not the kind of exhaustive qualitative workup that I would, that I would say is close enough to an RCT to get me there. But you know, that's neat. That's me.
Let me ask my last question. I promise it is my last, if for no other reason than time.
And that is, is part of this mix admitting to ourselves and swallowing hard and, and being really depressed about the fact that there's only so much we're going to be able to do. And I want to, I want to phrase that question as pointedly as I can.
When y' all wrote your article in response to Turner and it was again the Triage Appointed Council Triaging Appointed counsel Funding and proceed Access to justice published in 2012 in Pennsylvania law Review, there was a response and the response by John Pollock for the National Coalition for Civil Right to Counsel. Again, by the way, avoiding that civil Gideon language.
[00:50:10] Speaker B: Yeah.
[00:50:10] Speaker A: And I'm hoping that at some point I'll be able to invite John and have him on because he's a, he's a critical voice and highly articulate for a different view here. And Michael of all places, the American Bar association.
Their response was a paper called it's not triage if the patient bleeds out. And again, I'm going to try to get John and Michael or at least one of them on the podcast. But my question for you all is isn't that exactly what triage is that that triage is a decision in a limited resource circumstances in which some people are going to bleed out and there are going to be some people that we fundamentally cannot help, either in terms of an access to justice sense or in terms of, depending on what you call it, a justice sense or a legal outcome.
Because there's just nothing we can do for them. Perhaps it's too late by the time they're justice involved, or perhaps the substantive law gives them no option, or at least a class of people in general no option. And again, there's a, there's an outstanding piece of field work, an RCT going to be featured in Proof Over Precedent, going up actually before this podcast will go up by some economists in Tennessee, focusing in Tennessee about how lawyers could make a difference in civil summary eviction cases, but only if they could get their clients onto a rent assistance program.
And then as soon as the rent assistance money ran out, Tennessee law was so hostile to tenants on nonpayment of rent that they had no defenses and lawyers couldn't do any good. So I guess big picture again, let me just ask the question.
Isn't triage exactly a decision of letting certain patients bleed out?
That may be really, really horrible, but isn't that what we're all arguing here is that some patients have to bleed out?
[00:52:09] Speaker B: If it's okay, I'm going to say things that are more aggressive than a sitting federal judge will say. So I'll go first on this one.
The first thing I'll note is you could be against triage. That doesn't mean you're not doing it like current system is right now, letting people bleed out every day thoughtlessly, not on purpose as a back end thing. Almost as if it's. They're like, oh, and this is why we need more funding. You're like, that's not, that's not an answer to this. The more funding train is not going to arrive. So letting all of these people flush out of this broken system is not helping anyone. At a minimum, admit you're doing triage and do it thoughtfully. Think about it structurally and say this is why we're making the choices we're making. Not making a choice doesn't fix the problem. It makes the problem worse, in my opinion. And then the second thing I'll notice note about it is it is true the interventions that we have, it's not 100% clear which ones are going to work and which ones are not going to work. I challenge those folks and anybody listening. Here you go. Find out whatever court it is in your. Your town that collects debts. And you go down and watch it and you tell me whether you think that's a just system. We are surrounded by low hanging fruit in this system. Like, the debt collection thing is so grossly inadequate, unfair. It's a screw job. Do you know why 60% of people default don't show up? Because why would they show up? Because when they show up, they get no justice anyways. Like, the system itself is so broken that it sustains itself.
[00:53:41] Speaker A: I wish 40% of people would show up, by the way. At least in some of the courts where we're working, it's more like 5% totally.
[00:53:47] Speaker B: And then. And then like part of the qualitative thing I'm gonna do is why are they not showing up? But I have a strong suspicion the reason I'm not showing up is like, why?
Why would you show up?
[00:53:56] Speaker A: Your Honor, you get the last word.
[00:53:58] Speaker C: All right. I think just as a forest fire sometimes clears the way and fertilizes the soil for new growths, I think that recognizing the failures that the Access to Justice Labs studies are documenting paves the way for change. And I see entrepreneurs experimenting with online dispute resolution. I see policy entrepreneurs at some of these groups that are willing to fund studies into alternatives. I think it's an exciting time to look at how to harness this computing power to build something better from the ground up. Just as we've had Uber and Lyft with very different models from existing taxi companies, I think that we could have a different approach to doing justice in many of these civil cases that will probably deliver a lot more at lower cost than what isn't working right now.
[00:55:05] Speaker A: Ben Barton, Stefanos Beavis, I'm so grateful and so appreciative that y' all have taken the time to do this podcast again. One I wanted to do since before there was an Access to Justice Lab, Even so, for more than a decade.
Very grateful y' all have taken the time and thanks so much for being on Proof Over Precedent. 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.
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Here's a sneak preview of what we'll bring you next week.
[00:55:48] Speaker B: In civil courts, there is no universal access to attorneys. So what that means is that roughly 76% of state civil trials involve one or more pro se party.
And so what this means is that courts need to adapt to pro se litigation rather than the other way around. And there is where active judging comes in.
