Randomization, Intake Systems, and Triage
Thanks to Jim and Cassandra for their carefully constructed study of the impact of an offer from the Harvard Legal Aid Bureau for representation before the Massachusetts Division of Unemployment Assistance, and to all of the participants in the symposium for their thoughtful contributions. What Difference Representation? continues to provoke much thought, and as others have noted, will have a great impact on the access to justice debate. I’d like to focus on the last question posed in the paper — where do we go from here? — and tie this in with questions about triage raised by Richard Zorza and questions about intake processes raised by Margaret Monsell. The discussion below is informed by my experience as a legal service provider in the asylum system, a legal arena that the authors note is strikingly different from the unemployment benefits appeals process described in the article.
My first point is that intake processes vary significantly between different service providers offering representation in similar and different areas of the law. In my experience selecting cases for the asylum clinics at Georgetown and Yale, for example, we declined only cases that were frivolous, and at least some intake folks (yours truly included) preferred to select the more difficult cases, believing that high-quality student representation could make the most difference in these cases. Surely other legal services providers select for the cases that are most likely to win, under different theories about the most effective use of resources. WDR does not discuss which approach HLAB takes in normal practice (that is, outside the randomization study). On page twenty, the study states that information on financial eligibility and “certain additional facts regarding the caller and the case” are put to the vote of HLAB’s intake committee. On what grounds does this committee vote to accept or reject a case? In other words, does HLAB normally seek the hard cases, the more straightforward cases, some combination, or does it not take the merits into account at all?
WDR randomized HLAB’s case intake for the purposes of its study in order to avoid the selection bias problems that have plagued prior studies of representation. But shouldn’t the prior intake model have some effect on how we should evaluate success? That is, if HLAB generally takes only the more difficult cases, shouldn’t the intake committee select a universe of such difficult cases, which are then to be randomized for study purposes? If the study doesn’t take that step, it seems that it’s not measuring exactly what the provider is offering. My guess is that this is not a significant problem in the HLAB study, but may present an obstacle in more complex cases, such as asylum cases.
That brings me to my third question, best left to those more empirically savvy. Is it possible to design a study that randomizes case selection for legal services providers that choose to take on the most difficult cases? On page seventy-four, the authors discuss other intake-related and technical obstacles to randomization in the affirmative asylum context, and like Margaret, I would add ethical issues to that list. If these could be overcome, or in a different context in which the legal services provider chooses the most challenging cases, is it possible to randomize intake? (Apologies to Jim and Cassandra; I see I’m late to the game in posting and that you’ve answered some of my questions already in your response to Margaret.)
Beyond questions of case design, the study would benefit from further description of the intake process performed by the Harvard Legal Aid Bureau so that this case study can be contrasted with future case studies. Ideally, the study would create a typology of factors pertinent to intake decisions and contrast HLAB with other Massachusetts DUA legal service providers in order to more fully understand the broader system in which HLAB functions. Such an approach might also help to answer Richard’s questions about how to perform triage.