Traditional Attorney-Client

Research:

What We Hope to Learn:

Research Team:
Access to Justice Lab
DC Legal Aid
Philadelphia Legal Aid

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)

Research:
Residential displacement can disrupt a host of life activities and undoubtedly takes an emotional toll on tenants and their families. To mitigate those impacts, we need to know more about how tenants find themselves as defendants in summary eviction proceedings, the role that lawyers play in stopping or delaying those proceedings, and whether existing legal solutions address the problems of eviction as we understand them.

The Questions:
How well do lawyers allocate the scarce resource of their time? Does legal representation yield improved outcomes for those facing eviction?

The Study: 
With its field partners, the A2J Lab has designed a double-randomized study. This RCT will investigate (1) how well lawyers make decisions about whom to represent; and (2) whether outcomes with direct representation are measurably different from those where tenants only have access to self-help materials. After staff attorneys conduct intake and make provisional representation decisions, the A2J Lab will randomize each potential client into one of two groups (the first level of randomization). In the first group, the attorney’s decision will be followed; in the second group, another random decision will replace the attorney’s. Among that second group, a computer-based randomizer will “decide” whether the potential client receives an offer of representation or self-help materials (the second level of randomization).

What We Hoped to Learn: 
This RCT design was intended to help identify which eviction defendants’ outcomes truly depend on representation, whether those outcomes are continuances, stays of execution, or even possession of the apartment. It also was intended to reveal whether the offer of direct representation increases the probability of success relative to receiving the self-help packet. Considering the larger social impact of eviction, this study was expected to include non-adjudicatory outcomes measures such as the incidence of homelessness, unemployment, and adverse health effects, among other individual welfare consequences.

Research Team:
Access to Justice Lab
Rhode Island Center for Justice
Roger Williams University School of Law
New Mexico Legal Aid
University of New Mexico School of Law