Civil Court-Based Reforms

The Setting: This research examines the comparative advantages of online versus in-person appearances in sensitive cases for vulnerable litigants (Self-Represented Ls).

The Problem: The Problem: Research to understand the effect of widespread remote justice necessitated by the COVID-19 pandemic is scant, and particularly scant in the area of family law. What we know thus far, from two articles, both with severe methodological limits, is that litigants believed that online hearings hindered procedural justice as compared to in-person hearings.1 But litigants believed online proceedings improved their ability to attend hearings as compared to in-person proceedings. No studies assessed how remote appearances affected case outcomes. Within the context of these studies, issues of civility and safety are not addressed either. Neither study deployed a credible research design.

On a related front, research using sampling and qualitative analysis has attempted to understand the effects of different types of custody orders on children. Most of these studies occurred in the 1980s and 1990s, after a movement away from a presumption of primary or sole maternal custody.2 As such, arguably, we may have some knowledge of the preferred arrangement for children.

The Questions: But we do not know how methods of conducting hearings, which constitute the key decision points in the judicial process, affect or inhibit courts’ capacity to order preferred arrangements. It is easy to suspect that parental poverty poses challenges to reaching optimal court decisions. Perhaps online proceedings, which may lessen the formidable mental bandwidth, scheduling, and organizational challenges low-income parents face, are a partial solution. But, if we believe remote appearances hinder procedural justice, will the outcomes resulting from a more organized, more accessible hearing still be meaningful if litigants do not feel heard, and if that dissatisfaction translates to dissatisfaction with their orders? Again, we do not know, and we need to in order to promote better outcomes for families.

1 Elizabeth G. Thornburg, Observing Online courts: Lessons from the Pandemic, 54 Fam. Law. Q., 181, 198-199 (2020); Lynda B. Munro & Nicole M. Riel, Our Virtual Reality: Facing the Constitutional Dimensions of Virtual Family Court, 54 Fam. Law. Q., 245, 261 (2020).

2 See, Robert Bauserman, Child Adjustment in Joint-Custody versus Sole-Custody Arrangements: A Meta-Analytic Review, 16(1) J. of Fam. Psych. 91 (2002) (analyzing 21 studies).

The Study: We investigate via a randomized control trial the effect of online appearances, as compared to in-person appearances, in family law cases involving self-represented litigants (“SRLs”). This project will study procedural justice, civility, safety, and the meaningfulness of court rulings for the most vulnerable, and most common, class of parents: SRLs. We will randomly assign roughly 1500 cases over a one-year period to either appear remotely or in-person allowing us to compare the effects of each medium. We will follow cases for up to two years thereafter to learn time to disposition, meaningfulness of orders, and appearance rates. Incorporating a qualitative component we will observe metrics of procedural justice, civility, and litigant safety. The result will be the credible guidance courts need to make the critical choice of how to do business post-pandemic.

What We’ll Learn: This research will contribute two perspectives. It will examine whether SRLs in family court proceedings uniquely suffer when asked to participate in remote proceedings. It will also investigate whether online proceedings worsen, improve, or merely replicate the problems of in- person hearings with particular focus on issues of procedural justice, civility, and litigant safety.

Research Team: We partner with the Commissioners and the Self-Help Center of the Third District Court in Salt Lake County, Utah to field the operation. We conduct the evaluation in consultation with Emily LaGratta of LaGratta Consulting, LLC.

Resources:
Emily LaGratta, Renee Danser, D. James Greiner, “Litigant Empowerment Through Choice? Insights from an Ongoing Study of Remote versus In-Person Family Court Hearings,” Trends in State Courts, 2024

The Setting: 

What We’ll Learn:

Research Team:
Access to Justice Lab
Mothers Outreach Network

The Setting: This study builds on a pilot RCT in Boston, The Problem of Default, Part I, a partnership with the Volunteer Lawyer’s Project of the Boston Bar Association. That study demonstrated that sending mailings from a legal services provider to debt collection defendants encouraging them to answer lawsuits and to appear in court roughly doubled answer and appearance rates. Those letters included cartoons and “don’t-get-tricked” messaging. They incorporated the state of the art in adult communication, psychology, sociology, and behavioral economics. The envelopes also included three copies of an answer form with instructions as well as pre-addressed envelopes. One treatment condition even had stamps on the pre-addressed envelopes. The question was, how much of the increase in answer and appearance rates was due to particular aspects of these mailings, and how much would have occurred through the mailing of any kind of letter?

The Problem: Default rates in debt collection lawsuits are high, as high as 90% or more in some jurisdictions. Default may result in loss of winnable lawsuits, and it may undermine confidence in the judicial system because it prevents courts accustomed to adversarial adjudication from deciding cases on the merits. Court filings ordinarily include only the defendants’ snail mail addresses, limiting the ways through which to reach defendants.

The Questions: What combination of messaging, envelope design, letter content, and other aspects of mailings is most cost effective in inducing debt collection defendants to contest lawsuits?

The Study: The study, which occurs in courts in Utah, Maryland, and Massachusetts, randomizes aspects of mailings sent to debt collection defendants. Outcomes include mailing costs, answers rates (in courts that requires answers), and default rates.

What We’ll Learn: The study will produce knowledge on what combination of messaging, envelope design, letter content, and other aspects of mailings is most cost effective in inducing debt collection defendants to contest lawsuits.

Research Team:
D. James Greiner, Faculty Director, Access to Justice Lab; S. William Green Professor of Public Law, Harvard Law School
Matthew Stubenberg, Innovator in Residence, William S. Richardson School of Law at the University of Hawaii

Resources:
The Problem of Default, Part I
Self-Help, Reimagined, 92 Ind. L. J. 1120 (2017)

The Setting: This research investigated whether a de-biasing jury instruction is effective at having jurors recognize their own implicit bias and overcome it during deliberation. The Sixth Amendment of the U.S. Constitution and Article I, Section 12 of the Utah Constitution guarantee the right to an impartial jury for citizens of Utah. The Salt Lake Justice Court (“SLJC”) used debiasing jury instructions as one mechanism to deliver on this right. The SLJC used debiasing jury instructions when the judge determined their presence necessary either sua sponte or upon request of one or both parties to an action. The instruction is intended to ensure that each juror remains aware that they may hold implicit biases, to identify any such biases, and to ensure those biases do not enter the decision-making process. Some research suggests implicit biases are unconscious. Other research suggests that they are conscious and, as such, labeling them as “implicit” is a misnomer.

The A2J Lab worked with SLJC to develop and launch an evaluation of debiasing jury instructions using a randomized control trail (“RCT”)

The Problem: The literature presents contrary conclusions about the prevalence of bias in juries and jurors individually, as well as the composition metrics that suggest greater bias will exist. In the face of such contradictions, it may be difficult to identify debiasing interventions. The mechanism tested in this evaluation was a debiasing jury instruction. Research is inconclusive on the usefulness of a debiasing instruction vis-a-vis its stated purpose – to debias. Our literature review revealed no field RCTs, and thus conclusions are necessarily limited. Evaluations of the effects of jury instructions thus far used mock juries.

The Questions: This research investigates whether a debiasing jury instruction causes jurors to recognize their own implicit bias and overcome it during deliberation. It is a first of its kind study utilizing an RCT on actual juries, rather than mock juries.

The Study: Our study hoped to build on the existing inconclusive research about the effect of jury debiasing. We measured bias with the Implicit Association Test (“IAT”).

During the study, after prospective jurors completed the standard jury questionnaire, SLJC asked them to take the race IAT. Prospective jurors did so using court-provided iPads preloaded with the hyperlink to the baseline IAT. Empaneled jurors retook the same Race IAT after deliberation, again on court-provided iPads. The research team obtained access to the race IAT via a contract with Project Implicit. The research team discarded baseline race IAT data for jurors not empaneled.

Random assignment occurred after empanelment but before the commencement of the trial. According to the assignment, trials either receive the debiasing instruction (“Instruction Present Group”) or not (“Instruction Not Present Group”).

After rendering the verdict and completing the post-trial Race IAT, SLJC provided jurors with a debriefing statement explaining their participation in the study and how to opt out if they so choose.

What We Learned: The study was delayed by COVID-19 pandemic court closures. After courts reopened for trials, the study ran for about one year. However, the volume of trials post-reopening decreased from the volume pre-pandemic. The A2J Lab recommended closing the study after it became clear that no realistic time period would allow accumulation of a number of trials sufficient for substantive inference.

There were no statistically significant differences in change in IAT scores, trial verdicts, or deliberation time based on group, and IAT scores did not change significantly from pre- to post-trial. IAT scores bore no association with juror gender, race, or Juror Attitude Questionnaire responses. Providing jurors with instructions regarding implicit bias thus did not appear to affect their deliberations or the verdicts they ultimately deliver and does not appear to affect their IAT performance. However, the sample size was too small to generate casual evidence, and as such, these conclusions are really only examples of what an adequately powered study might produce as well as hypotheses for further research.

The study was under-enrolled and, ultimately because of that, the distribution of the instructions heavily skewed. Therefore, the research team makes no assignment of causation to findings but rather hypothesizes or suggests suspicions. The first of those suspicions is that the instructions alone may not debias a jury. The IAT scores pre- and post- show no change. However, in addition to the under-enrollment caveat, there may be others. First, the demographic analysis shows that the juries in this study were generally highly educated and mostly white. So, even if causal, results likely do not generalize to more diverse juries. Second, there may be a question about whether the IAT is the best measurement of bias. All of this taken together, additional research is needed, continuing with a randomized design, with a larger, more diverse sample and multiple methods of measuring bias, including using the IAT.

Ultimately, even if the instruction simply does not fulfill its intended mission – to debias the jury – it may serve another useful purpose – to instill trust in the judicial system by serving as a values statement and a commitment to fairness.

Research Team:
D. James Greiner, Faculty Director, Access to Justice Lab; S. William Green Professor of Public Law, Harvard Law School
Renee L. Danser, Associate Director of Research and Strategic Partnerships, Access to Justice Lab
Salt Lake Justice Court (UT)

Resources:
Remote Testimonial Fact Finding, Danser RL, Greiner DJ, Guo E, Koulton E., In: Engstrom DF, ed. Legal Tech and the Future of Civil Justice. Cambridge University Press; 2023:93-111.

The Setting: The intervention offers counsel at first appearance for all offenses or not, selected by random assignment, in two counties in Texas.  If, by random assignment, counsel is present at first appearance, counsel will engage in initial client contact prior to the formal court appearance. During this time the attorney will engage in typical attorney-client behavior, studying case details and interviewing the defendant prior to representing the defendant during first appearance.  If a defendant is randomly assigned to the status quo, they proceed with no counsel at their first appearance.

The Problem: Despite the potential for pretrial incarceration, most states do not supply an attorney to advocate for a defendant’s release at this “first appearance.”[1] There is a presumption of innocence pretrial, and that presumption requires special circumstances for detention. Yet, without the assistance of counsel, defendants are ill-equipped to challenge the prospect of their own detention.[2] Thus, when considered alongside the idea that the first appearance amounts to a “trial-like confrontation,”[3] a growing chorus of legal scholarship contends that the first appearance is crucial to the integrity of an individual’s defense.[4] While the United States Supreme Court has not yet recognized a constitutional right to CAFA, specifically,[5] there is a growing sentiment that such counsel should be considered among Sixth Amendment guarantees. Following Gideon v. Wainwright[6] and its progeny indicating, inter alia, that the right to counsel extends to criminal proceedings in which a defendant faces a loss of freedom,[7] legal scholars argue that the potential for pre-trial detention is just such a loss of freedom. The theory runs that there is a risk of pre-trial detention, a loss of freedom, at the first appearance and thus this confrontation fits squarely within the directive of Gideon and Argersinger. Although systematic, rigorous analysis of the effects of CAFA is rare, some evidence regarding these programs exists.[8] While these extant studies are valuable, there is little causal evidence regarding the effects of CAFA. 

The Questions:

1. Does CAFA have an impact on bail and pretrial release conditions and decisions? Specifically, do defendants with CAFA exhibit higher rates of personal recognizance bonds and lower bond amounts than defendants without?  

2. For those who are released pre-trial, do defendants with CAFA exhibit lower FTA rates than those without such representation? 

3. Does CAFA impact case disposition, sentencing, or pre- or post-trial recidivism? 

4. Does CAFA have an effect on arrestees’ attitudes toward the legal system?  

5. Finally, what is the cost-benefit ratio for jurisdictions interested in piloting this program? 

The Study: The availability of counsel was randomized by days conditional over weeks. In other words, the days for which counsel was present during a given seven-day period was randomly varied across weeks – this protocol was necessary to ensure that systematic variance in criminological or judicial behaviors associated with certain weekdays was randomly distributed. This resulted in treating roughly half of all new cases during the enrollment period.

What We Learned: Our findings show that the defense counsel’s impact on defendant outcomes is mixed. In both jurisdictions, defense counsel lowers the bond amount a defendant must pay to be released, but defense counsel only affects the type of the bond in one county (changing it from financial to non-financial). Attorneys do not make own (or personal) recognizance release more likely, and are successful in affecting the days to release in only one jurisdiction, with those effects on the mild side. Meanwhile, bond conditions increased in both number and severity in one jurisdiction but not in the other. Across both jurisdictions, there is no impact on recidivism, failure to appear (only measured in one jurisdiction), and disposition outcomes for defendants.

Overall, we conclude that attorneys had an impact on bond amounts, but depending on the jurisdiction may or may not impact bond type and release conditions and outcomes for defendants. These findings provide evidence that the impact of CAFA is (i) more limited than suggested in previous studies with less credible designs, and (ii) contingent on jurisdictional factors that are as yet poorly understood. We see our study as a step toward a better understanding of the role defense counsel plays at magistration, but given the contrary results we observe, more research is needed.

Research Team: The A2J Lab partnered with the Public Policy Research Institute at Texas A&M University to conduct the evaluation which occurred in two jurisdictions in Texas.

Resources:
George Naugal, Bethany Patterson, Renee Danser, D. James Greiner, “The Causal Impact of Counsel at First Appearance: Evidence from Two Randomized Control Trials,” IZA Institute of Labor Economics, Discussion Paper No. 17712, February 2025

The Setting: There are two ways to view this project. First, the ability to get married, and to get divorced, are both fundamental federal constitutional rights in the United States. But only the latter requires a lawsuit: marriage is the only contract that the contracting parties cannot dissolve on their own. The requirement that courts be involved in a divorce raises the possibility of access to justice problems for individuals who cannot afford to hire lawyers. Some state or local bar associations run services that attempt to match lawyers seeking certain kinds of pro bono matters (e.g., such as divorce) with clients who have that type of problem (e.g., needing a divorce). There has never been a credible assessment of whether this kind of pro bono matching program improves access to justice for low-income individuals with any legal problem, including divorce.

The second way to conceptualize this research focuses on using RCTs as measuring tools. All court systems have certain procedures, paperwork requirements, informational requirements, and more. All courts have pro se litigants attempting to navigate the system without a lawyer. No one has ever proposed a way to measure, quantitatively, whether a court system is accessible to its pro se litigants.

The Problem: This study addressed two problems. First, until this study, we did not know whether state or local bar association pro bono matching services were effective at providing access to justice to low-income individuals. Second, until this study, no one had ever proposed or implemented a quantitative way to measure the pro se accessibility of a court system.

Questions: This research investigates two questions. First, how effective are pro bono matching services at providing access to justice for no-asset, no-income, no-custody, no-protection-order, no-alimony, no-child-support, and no-spousal support divorces? Are lawyers even necessary in this setting, which consists entirely of providing relevant paperwork? Second, how can we measure the pro se accessibility of a court system?

The Study: This study focused on the Philly VIP’s pro bono matching service. During the enrollment period (early 2010s), low-income Philadelphians with divorce matters called Philly VIP to request a match to a pro bono attorney for assistance in obtaining divorces. Philly VIP was the provider of last resort for these cases: no other free legal services provider at this time handled simple divorce matters. The study population consisted of 311 Philadelphians randomized either to a Philly VIP attempt to match them to a pro bono attorney or to no such attempt. Subsequent analysis revealed that, overwhelmingly, study participants sought simple divorces and nothing else. No opposing spouse contested the divorce. There were no child custody, child support, spousal support, alimony, or domestic violence matters, and only a vanishingly small fraction of participants had either assets or income streams for division. In all participants’ cases combined, there were no live hearings, four contested motions filed, and one contested court ruling. In other words, the process of obtaining divorces was wholly and entirely a matter of providing the right paperwork at the right time. 

In addition, the A2J Lab proposed to define a court system as pro se accessible if an RCT revealed that the court’s adjudicatory outputs were “roughly the same” (a definition that required further elaboration) for litigants with lawyers versus litigants without lawyers. Thus, this study also demonstrated how an RCT with a traditional attorney-client relationship involved in one of its treatment conditions can serve as a measuring stick for the pro se accessibility of a court system, in this case the Philadelphia County divorce system in the early 2010s. 

What We Learned: Even though these divorce matters, with a tiny number of exceptions, entirely of providing the right paperwork to the court system at the right time, the Philly VIP pro bono matching service made an enormous difference. Study participants randomized to a Philly VIP attempt to match them to a pro bono attorney achieved divorces in Philadelphia County at approximately four times the rate of participants randomized to no such attempted match. If one includes divorces obtained in other Pennsylvania counties, the Philly-VIP attempted match group achieved divorces at twice the rate of the no-attempted-match group. These enormous differences in success rates provided quantitative evidence that at this time, the Philadelphia County divorce system was not pro se accessible. Subsequent investigation suggested that the reason for this pro se inaccessibility was likely the procedures applicable in this court at this time, which for example included a requirement that a pro se divorce seeker (i) file a paper called a “Praecipe To Transmit the Record to the Prothonotary” and (ii) find and use a typewriter to fill out a particular form. 

Research Team: 
D. James Greiner, Faculty Director, Access to Justice Lab; S. William Green Professor of Public Law, Harvard Law School
Roseanna Sommers, Assistant Professor of Law University of Michigan
Ellen Degnan, Senior Staff Attorney, Southern Poverty Law Center
Thomas Ferriss, Staff Data Scientist, Google
Philadelphia VIP

Resources:
Published version of the study: D. James Greiner, Ellen Degnan, Thomas Ferriss, and Rosenna Sommers, “Using random assignment to measure court accessibility for low-income divorce seekers,” PNAS April 6, 2021 118 (14)

Longer, unpublished writeup of the study: SRLN writeup of the study

Report of the study in The Atlantic