What a thoughtful and provocative discussion over the past few days on the issues raised by the Turner opinion. In my thinking about this issue, I associate myself particularly with Mike Millemann and others who see opportunities in the Court’s reasoning, particularly the notion that some type of assistance is due. People in court with family disputes make up the largest single category of users of free legal asisstance, not only in the United States but in all peer nations (most with legal aid programs significantly more generous than ours). Likely, this is in part due to the on-going nature of custody, child support and related issues. The circumstances of Mr. Turner, the child’s mother and the grandparent with custody are all too familiar to those of us who have worked providing legal services. The parties in many family cases are often “repeat players” and whether poor or well above poverty (moderate to middle income) few can routinely afford traditional full service lawyers — thus the dilemma recognized by the Court of requiring counsel for the parent in Mr. Turner’s position but leaving the custodial party(ies) to reperesnt themselves. A simple approach is state provided counsel for all parties but this would impose on states costs of assistance for many who are well above typical legal aid guidelines (125% of poverty). With a mandate for counsel in every case in which a party might be confined as a result of civil contempt, cash strapped states are likely to direct existing legal aid resources, particularly those provided at the state and local level (about two-thirds of the $1.5 billion available in 2010 for civil legal services), away from other matters where counsel may be a significant game changer – e.g. mortgage foreclosure, evictions, complex consumer matters, severe domestic violence cases. Moreover full service counsel in the sea of family cases that turn on relatively straight forward fact issues (such as ability to pay child support) may be more help than is needed to aid all involved in presenting their best case to the court. Adviceand information, unbundled service, lawyer of the day assistance, help from an experienced non-lawyer are all options that might assure basic fairness and fully meet the needs of all parties involved. As Joie Moses points out all too often the underlying issue in the sea of recurrent child support matters is poverty. Her reference to specialized courts is an intriguing example of a creative approach.
Anecdotal evidence abounds that alternative approaches to providing legal help can be effective. However, we don’t have much data and almost no good quality studies to validate these non-traditional though now fairly common forms of legal advice and assistance. As Jim Baillie’s post suggests, good quality empirical data and research is needed in order to make the best match between party needs and the wide range of legal assistance now available in many states. Turner adds to the urgency for such data and research. While the Court has not mandated counsel, a fair reading of the case is that it has mandated assistance appropriate to the matter at hand. We should take up the challenge not only to continue innovation in modes of service delivery but also to undertake a serious and rigorous examination of what works best in what types of cases. With such evidence we will be able to isolate and document the need for expert lawyer assistance in some (likely many) matters while providing effective help by other means where such help “works” for all parties.