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Author: David Udell

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Known Unknowns, What Turner Suggests About the Need for a Justice Index

Among the facts brightly if indirectly illuminated in Turner v. Rogers by the Supreme Court’s analysis of the relationship between the “right to counsel” and “alternative safeguards,” is that so little is known about the status of unrepresented persons in our state courts and about the assistance available to help them.  So little is known about what is necessary to assure “fundamental fairness” in our justice system.

What we do know is that society has been asking legal services programs, indigent defense programs, and the courts to do more with less. Demand for their services is up (foreclosures, evictions, domestic violence disputes, commercial matters, criminal prosecutions, have increased) while revenue to finance their services is down (forcing layoffs of staff, reductions in court hours, even suspensions of civil jury trials).

In this environment, data and best practices are needed to drive the funding and policy debates, but we don’t know even such basic things as:

–the number of people unrepresented in civil proceedings, and the number unrepresented when the other side is represented or when the other side is an entity of government.
–the nature and scope of services available to people who are unrepresented and whether those services are effective.
–the number of people receiving criminal convictions (pleading “time served”) without having received the right to counsel due under Gideon.
–the numbers that would tell us other important things (such as whether people are receiving needed waivers of court fees or needed interpreters).

The stakes are too high to allow us to go forward without such information.  Line-drawing that relies heavily on ideas about how things are supposed to work, as opposed to how they actually work, can impose real hardship.  Safeguards that are less protective than representation by counsel may prove valuable, but should not be assumed into existence or presumed valuable.

At the National Center for Access to Justice at Cardozo Law School we are building partnerships with courts and communities to develop a Justice Index and Representation Index – new systems that can make such information readily available via the internet.  Of course, work is needed to create capacity both to track the information and to present it. But it is important to do this. Establishing access to relevant data and best practices, comparable over time and across jurisdictions, will highlight areas for reform, help to educate the public about the important roles of the courts, legal services and indigent defense services in our society, and help to realize the promise of “fundamental fairness.”

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What Difference Presentation?

David Udell is the Executive Director of the National Center for Access to Justice and a Visiting Professor from Practice at Cardozo Law School.

In my line of work, I have seen many efforts in the political realm to shut down civil legal services for the poor, and have continually worked to combat such efforts.  In 1996, when the Gingrich Congress barred federally funded legal services lawyers from bringing class actions on behalf of the poor, I left Legal Services for the Elderly in order to finish a lawsuit on behalf of widows and widowers who were suing to compel the United States Treasury to fix its practices for replacing stolen Social Security payments.  When I later moved to the Brennan Center for Justice, I helped bring a lawsuit against the rules that barred legal services lawyers from participating in such class actions, I filed another lawsuit against similar rules that barred law school clinic students from bringing environmental justice cases in Louisiana, and I built a Justice Program at the Brennan Center dedicated to countering such attacks on the poor and on their lawyers.

In their March 3, 2011 draft report, What Difference Representation? Offers, Actual Use, and the Need for Randomization (“the Study”), authors D. James Greiner & Cassandra Wolos Pattanyak are right about the importance of developing a solid evidence base – one founded on methodologies that include randomization – to establish what works in ensuring access to justice for people with civil legal cases. They are right again that in the absence of such evidence, both the legal aid community and its critics are accustomed to relying on less solid data.  And they are smart to “caution against both over- and under-generalization of these study results.”  But, unfortunately, the bare exhortation to avoid over- and under-generalization is not sufficient in the highly politicized context of legal services.

While the authors obviously do not have any obligation to arrive at a particular result, they can be expected to recognize a need to avoid statements that have a high probability to mislead, especially in light of the likely inability of much of the Study’s audience to understand the authors’ methodology and findings.  In fact, because of the Study’s novelty and appearance in a non-scientific journal, it will be relied on to analyze situations where it doesn’t apply, and by people who have no background in social science research, plus it will be given disproportionate weight because so few comparable studies exist to judge it against.  It is these factors, in combination with the politicization of legal services, that make it crucial that the authors’ assertions, particularly in the sections most likely to be seen by lay readers (the title and the abstract), do not extend beyond what the findings justify.

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