Civil Court-Based Reforms

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

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.

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).

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.

Research: 

What We’ll Learn:

Research Team:
Access to Justice Lab
Mothers Outreach Network

Research: Almost every court system in the nation has an Alternative Dispute Resolution (ADR) program, and for most courts, at least some classes of litigants are compelled to use it before or during formal litigation. The most common forms of ADR are mediation and judicial settlement conference.

The present study is the first of any kind to evaluate rigorously all of the dimensions ADR proponents cite in advocating such programs. We conducted a randomized control trial in one setting: civil rights cases brought by inmates in one federal correctional facility in Nevada.

What We’ll Learn:

Research Team: Jim Greiner, Faculty Director, Access to Justice Lab; Professor of Law, Harvard Law School

Federal District Court in Nevada

Research: This research intended to learn whether a de-biasing jury instruction is effective at having jurors recognize their own implicit bias and overcome it during deliberation.

The majority of the literature points to the existence of juror bias, though there are certainly studies which either do not find effects or find that there is bias against white defendants. Mitchell et al. (2005), for example, conducted a meta-analysis and found a small but significant effect of racial bias on juror decisions. In another meta-analysis, Sweeney and Haney (1992) found that white mock-jurors give significantly longer sentences to white defendants than to black ones. Archival studies have also found that black defendants have higher conviction rates than white ones, that they tend to receive harsher sentences, and that they are more likely to be sentenced to death. Further, in a mock-juror study, Wuensch et al. (2002) found that jurors favored defendants of their in-group, particularly when victims were members of an outgroup. In his 2009 dissertation, Lytle also found that individuals display implicit bias against black defendants and that this bias reliably predicts conviction decisions.

However, some studies have found evidence contradicting these findings. In a review of past empirical research, Pfeifer (1990) came to the conclusion that there is little evidence supporting the existence of jurors’ racial bias and that many studies misinterpreted data leading to a false understanding of the state of bias. In another example, Elek and Agor (2014) failed to replicate past findings concerning racial bias and attributed this fact to jurors’ “spontaneous self-correction” in light of society’s recently egalitarian norms. Some have cited this kind of self-correction as a reason for these null effects, particularly in cases where race is salient. Shaw and Skolnick (1995) found in their study that there was an anti-White bias, which deliberation generally eliminated. Another theory suggests that studies which failed to find juror biases bear the mark of social dominance dynamics which obscure the racism at play.

There have been two empirical studies on the topic of jury instructions aimed at bias reduction, Ingriselli (2014) and Elek and Agor (2014).

What We Learned:

Research Team: Jim Greiner, Faculty Director, Access to Justice Lab; Professor of Law, Harvard Law School

Renee L. Danser, Associate Director of Research and Strategic Partnerships, Access to Justice Lab

Salt Lake City Justice Court (UT)

Resources:

Research: 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.

What We Learned:

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

Resources:

Research: Over four decades ago, the United States Supreme Court decided a trio of cases addressing the constitutionality of a court system’s imposition of filing fees without a corresponding in forma pauperis (“IFP”) process. These cases established that a court system could condition access to itself on a would-be litigant’s paying a mandatory (nonwaivable) filing fee, but that the due process clause demanded that courts waive the fee for indigent litigants in cases involving constitutional rights that could be effectuated only by resort to the courts. An example of a right within the exception was divorce, it being a feature of the United States legal system that when two spouses (even if childless and penniless) both affirmatively desire to exercise their constitutional right to terminate their marriage, one must sue the other in a court. The legal subject area in our study, divorce, is the same as that in the Supreme Court’s filing fee cases, and it remains the quintessential example of a constitutional right that can be effectuated
only by resort to the courts.

What if a court imposed other costs on mandatory “costs” on litigants in divorce cases? What if, effectively, a court system demanded that an indigent litigant find a lawyer in order to obtain a divorce?

Study Design: Our study randomized an individual seeking assistance to pursue a divorce to either an effort by a pro bono matching service to find a pro bono attorney to represent her (treated group) or a referral to existing self-help or low bono resources coupled with an offer to answer questions by telephone (control group). Our study partner was the provider of last resort for free legal services in our study site, Philadelphia County: it accepted intakes primarily via referrals from other organizations, and it required that service seekers exhaust all other options.

What We Learned:

Research Team: Jim Greiner, Faculty Director, Access to Justice Lab; Professor of 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:

D. James Greiner, Ellen Degnan, Thomas Ferriss, and Roseanna Sommers, “Using random assignment to measure court accessibility for low-income divorce seekers,” PNAS April 6, 2021 118 (14)