By Eric Krebs, J.D. Candidate, Harvard Law School
Right-to-counsel programs for tenants facing eviction have spread rapidly across the country. The premise is straightforward: if tenants are at risk of losing their homes, and landlords usually have lawyers, then tenants should have lawyers too. But the empirical question is harder. Do lawyers actually prevent evictions? And if they do, is it because they win legal arguments in court, or because they help tenants navigate the broader system surrounding eviction?
In a recent episode of Proof Over Precedent, host and A2J Lab faculty director Jim Greiner discussed those questions with economists Aviv Caspi, a Research Lead at Stanford University’s Rhode Center and a Master of Legal Studies candidate at the University of Chicago Law School, and Charlie Rafkin, Assistant Professor of Economics at the University of British Columbia. Caspi and Rafkin are co-authors of a working paper, Legal Assistance for Evictions, which documents results from a randomized controlled trial in Memphis, Tennessee. Their paper provides a novel insight into “when and why and whether” lawyers make a difference in summary eviction proceedings.
Rafkin explained that the project arose as right-to-counsel programs were expanding in cities like New York, San Francisco, and Los Angeles, even though the evidence base remained limited. But as the authors noted, Shelby County, Tennessee—where Memphis is located—is a jurisdiction with landlord-friendly eviction law and relatively few tenant defenses. The Works, Inc., a Memphis housing and legal-aid nonprofit, served as the study’s implementation partner: it recruited eligible tenants facing eviction, administered the legal-assistance program, and provided or arranged lawyers whose availability was randomized through the study lottery. “There was no way that we could provide legal assistance to the thousands of tenants every month who are facing eviction in Memphis,” said Rafkin. “A lottery system would both be kind of equitable but [would] also offer the opportunity to do a very credible evaluation of this program.”
On average, Caspi and Rafkin found that lawyers had material effects on court outcomes: the paper finds that legal representation reduced court eviction judgments by 25 percentage points, or 37 percent. Lawyers also reduced the amount tenants owed in judgments, reduced writs, and extended case timelines.
But the central contribution of the paper is not simply that lawyers worked. It is that lawyers worked differently than many people might expect. The decisive mechanism was not primarily courtroom advocacy in the classic sense. Instead, lawyers were most effective when they could connect tenants to Memphis’s Emergency Rental and Utilities Assistance Program, or ERAP, a pandemic-era program that paid rental arrears and sometimes future rent. As Rafkin explains in the podcast, ERAP required documentation and landlord-tenant cooperation; Greiner notes that even a “standard” government benefits application can be a serious access-to-justice problem. “A standard government application program—I would call that a nightmare for most people,” said Greiner.
As the authors noted, lawyers helped tenants move through that process and helped use available rental assistance as a bargaining tool with landlords. Moreover, lawyers helped tenants obtain continuances during their eviction proceedings: by delaying case resolution, lawyers gave tenants more time to pursue rental assistance, negotiate with landlords, or prepare for a move. Caspi also noted that while lawyers demonstrated a larger impact than non-lawyers when helping tenants with the ERAP process, the specific amount of legal expertise necessary to yield such an effect is not certain. “Here’s unbundled legal assistance that can help tenants file for [a] continuance without a lawyer, and that might be a more efficient way,” said Caspi. “[We’re] not claiming that that the takeaway is you need full representation by any stretch, but that in our study there were legal roles going on in addition to these kind of form-filling-out administrator benefits roles.”
The effect of connecting tenants to rental support became especially clear because ERAP ended during the study. Before ERAP expired, lawyers substantially increased tenants’ chances of receiving rental assistance and reduced eviction judgments. After ERAP ended, the effect of lawyers on eviction judgments fell by 86 percent and became statistically “indistinguishable from zero.” The authors concluded that, in this setting, lawyers reduced evictions largely by leveraging public resources, not by winning contested legal defenses in court.
The paper uses that finding to reinterpret the broader right-to-counsel literature. Prior studies of eviction counsel have reached mixed conclusions, ranging from no effect to very large reductions in eviction. Caspi and Rafkin argue that much of that variation can be explained by differences in surrounding policy environments—especially whether lawyers were integrated with rental assistance or other out-of-court supports. In their meta-analysis, differences in rental assistance explain a substantial share of the variation across studies.
The paper then complicates the story further. Even when lawyers did not clearly change final housing outcomes, tenants still valued them highly. Using incentivized survey methods after ERAP had expired, the authors found that tenants were, on average, indifferent between receiving a lawyer and receiving about $690 in cash, with 43% preferring a lawyer to a cash payment. That valuation exceeded the program’s cost of providing lawyers. The authors tested whether those responses reflected confusion or unrealistic expectations and concluded that tenants’ valuations remained high even after accounting for those concerns.
Why? Tenants valued lawyers for reasons not fully captured by court data—delay, reduced stress, having an advocate, and having a voice in the legal process. In the podcast, Caspi emphasizes that policymakers must be clear about the goal of right-to-counsel programs. If the sole goal is preventing formal eviction judgments, then lawyers may need tools—rental assistance, stronger substantive defenses, or other bargaining leverage—to be effective. But if the goal is to support tenants through a destabilizing legal process, lawyers may provide substantial value even when they do not alter the ultimate judgment.
The upshot is that access to justice does not begin and end in the courtroom, and access to justice is determined by the entire institutional ecosystem of legal services—not just lawyers alone. “This really changed my perspective about how should we think about access to justice policy in general,” says Rafkin. “Access to justice policy doesn’t just hinge on lawyering in court, but rather relates to the kind of bundle of services both in court and out of court and spillovers across programs.”
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.