The Future is Now 2.019: How April Faith-Slaker Uses Empirical Research to Solve Legal Problems

Interviewed by Kenny Matuszewski

On May 16, 2019, the @theBar blog was invited to attend 2Civility’s The Future is Now 2.019 Conference. This article continues the series of topics discussed during the conference.

@theBar: Where do you work and what do you practice?

April: I’m the Associate Director of Research Innovations at the Access to Justice Lab (the “A2J Lab), which is located at Harvard Law School. The A2J Lab conducts rigorous research to understand what kinds of legal interventions and practices are effective and achieve the outcomes they are intended to achieve. So, for example, consider full representation of individuals in eviction proceedings as a type of legal intervention; you might think about the intended outcomes as being not just about getting a lawyer into the courtroom with the litigant, but helping to keep the family in their home and reducing all the attendant personal disruptions that might ensue from an eviction (disruptions related to employment, education, child custody, etc.).

@theBar: Can you tell us a little bit more about the types of problems the Harvard University Access to Justice Lab solves?

April: We’re working on addressing a broad range of justice-related questions, in both the civil and criminal arenas. These questions can be anything from investigating what the barriers are for individuals engaging with the legal process in the first place (e.g., why are default judgments so pervasive? Why do people with legal problems often not bring them to a lawyer or to court?) to understanding what kinds of legal interventions are most effective.

For example, I’m working on a study right now to determine the effectiveness of employing social workers in public defender offices to assist clients with a range of legal and non-legal needs. We’ll be tracking outcomes like recidivism, employment and housing to examine the impact of social workers in this context. We’ll also be able to analyze the background and contextual variables to understand if there are types of cases or clients that may be more receptive to such services. This study will hopefully help us answer bigger questions about whether a holistic defense is effective and/or how to best allocate resources for holistic models.

Other studies that the A2J Lab is working on can be read about on our website: https://a2jlab.org/

@theBar: In your presentation at the 2Civility The Future is Now 2.019 conference, you discussed the iceberg problem and how it applies in civil legal matters. Can you explain this phenomenon?

April: As lawyers, we actually experience only a sliver of the legal problems that are experienced among the American population. This is based on the research of Rebecca Sandefur at the University of Illinois at Urbana-Champaign.[1] Her research has shown that each year, as many as half of American households experience civil legal problems. These are problems that can have a serious impact on their lives – they might lose their homes, their jobs, custody of their children, or access to critical benefits. The surprising thing is that most of these problems are never taken to lawyers or to courts. Generally, when Americans are asked about their experiences with these problems or situations, they often just don’t think of these problems as justice problems. And they tend to either try to solve the problem on their own or they do nothing at all.

This is important, certainly, because it means our civil justice system is only addressing problems for individuals who both identify their problem as legal in nature and reach out to the system for help. It is also important from a research perspective because it means that the legal profession’s experiences are really only based on a small sample of individuals. We, as a profession, actually know very little about the individuals who never reach out to the system or what would happen if the system’s resources were allocated differently.

Even within that tip of the iceberg, there is so much we don’t know about how the system works. We have some evidence that things aren’t working as well as we’d like and that the system itself may contribute to inequality. We see this in debt collection cases, where reported default rates range from 60-95%.[2] We see this in civil courts, where it is estimated that 3 out of 5 people go to court without a lawyer.[3] We know that legal aid organizations lack adequate funding and consequently turn away 50% of those who reach out for help.[4] Meanwhile, too many lawyers are unemployed and underemployed, have massive student loan debt, and are stretched too thin trying to cultivate their own practices to do pro bono[5] or provide reduced-fee services for low and moderate income clients.

@theBar: What is preventing lawyers and courts from solving the types of problems underneath the iceberg?

April: I’d say that the biggest barrier is that our profession tends to be very insular. That’s not by accident, it’s actually structural. The system itself is based on the idea of rules, norms, and precedent. In fact, lower courts tend to cite Supreme Court cases as authorities on factual subjects, rather than referencing the actual factual information or evidence about those topics.[6] This insular, self-referential theme is even pervasive in our ethics rules, guiding individual attorney behavior. For example, the ABA model rules ban the ownership of law firms by non-lawyers[7] and limit the involvement of non-lawyers in the delivery of legal services through rules about the unauthorized practice of law.[8]

There may be good reasons to maintain such structures, but I think this insularity percolates throughout the profession and has created a culture of insularity that unnecessarily goes beyond what the structure demands. The unfortunate, unintended consequence is that it is restricting the flow and adoption of new ideas from other fields.

But I also think there are innovative lawyers and courts out there actively working on chipping away at these problems. However, because the profession hasn’t exactly embraced research and evaluation, we don’t actually know which legal interventions work. So, what we’re seeing is potentially good ideas not being funded and replicated due to a lack of evidence about their effectiveness. Meanwhile, there may be other interventions that don’t actually work particularly well that have simply gained popularity. Research can help with this.

@theBar: You also mentioned that we could solve these problems by using an interdisciplinary approach. What could the legal profession learn from other professions, such as medicine, to solve its unique problems?

The possibilities are endless! There are lots of different ideas and models in other fields that we could think about applying within the legal profession. Other fields have certainly grappled with the problem of getting services efficiently and effectively to a range of populations. The medical profession has worked on the issue of getting services to rural communities. What could we learn about the medical profession’s use of video conferencing or engaging community health workers?  The education system has worked on reducing inequalities by improving access to schools. What about providing legal aid vouchers to low-income individuals, effectively shifting prioritization out of the hands of legal aid lawyers and into the hands of the client population? The technology sector also seems to come up with new ideas every day. What would it take to move some of the paper-based law firms into the digital age?

The A2J Lab has been working to incorporate some ideas from other disciplines to better design self-help materials and to evaluate their effectiveness. Self-help materials and court notices designed by lawyers tend to not be super accessible to the average American. The Lab has worked to integrate lessons from other fields, such as adult education, psychology, economics, and public health to re-conceptualize the design and delivery of materials for unrepresented individuals[9].

Certainly, there are lots of ideas that might be worth considering and incorporating, but we need to test them out. We certainly shouldn’t assume that an idea that works in one field will work in the legal field.

@theBar: One of the current projects in the Access to Justice Lab is using virtual reality to train pro bono attorneys and simulate courtroom experiences. Can you tell us a little more about this project?

April: I can’t take credit for this one! This is a project my wonderful colleague, Matthew Stubenberg, is handling. He’s working on developing a number of tech-based interventions and testing them out in the field. I’m really excited to see the results of this particular study because based on research I conducted while I was at the American Bar Association,[10] one of the major barriers to attorneys doing pro bono is a sense that they lack the necessary skills or experience. Part of this picture is a lack of comfort with the courtroom process, and this VR project could be part of the solution.

@theBar: What role do bar associations play in this research?

April: The A2J Lab conducts all of its research “in the field.” What this means is that we partner with courts, legal aid organizations, public defenders, and the private bar to do studies in real-world settings. Our field partners are consequently a really important part of any of these studies.

In terms of the role bar associations might play in a movement to bring research to the legal profession, I can imagine a number of possibilities. Bar associations that develop CLEs and other training materials can work to educate the profession about research. This could include education on research methods, how to read and understand research findings, and where to find the latest relevant research findings. Don’t get me wrong, I don’t think it is entirely on lawyers to do this work of communicating and translating research to practice. I think researchers also need to do a better job doing the relevant research and communicating it to the legal profession.

Bar associations might also play a more active role in developing partnerships with researchers to help facilitate more of a dialogue. This dialogue is necessary both to help get researchers interested in conducting the research that we need in this field and to sensitize lawyers to the need for evaluating legal interventions.

@theBar: Are newer attorneys able to get involved in this type of research? If so, how can they participate?

April: Certainly! The A2J Lab looks to the field both for promising new legal interventions to evaluate and for partnerships to conduct the research itself. But, also, we aren’t the only ones doing empirical research in this arena. I’d encourage attorneys to check with other universities they are connected to in order to determine whether there are other research projects happening in this arena. I also wonder if alumni groups might get involved in these efforts as well – whether by organizing funding for relevant research or just helping to get the word out about the need for such research.

@theBar: Do you have any last pieces of advice for young lawyers?

April: Well, I’d say that young lawyers should not assume that the way the law has been operating for the past 200 years is the best way for things to be done. I’m looking to the new lawyers to bring in fresh ideas and help shake things up. Oh, but let’s make sure to evaluate those ideas first 😉

[1] See http://www.americanbarfoundation.org/uploads/cms/documents/sandefur_-_civil_legal_needs_and_public_legal_understanding_handout.pdf

[2] https://www.ftc.gov/reports/repairing-broken-system-protecting-consumers-debt-collection-litigation

[3] https://www.srln.org/

[4] https://www.lsc.gov/media-center/publications/2017-justice-gap-report

[5]https://www.americanbar.org/content/dam/aba/administrative/probono_public_service/ls_pb_supporting_justice_iv_final.authcheckdam.pdf

[6] See Allison Orr Larsen, Factual Precedents. University of Pennsylvania Law Review, Vol. 162, No. 1 (December 2013), pp 59-115.

[7]https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_4_professional_independence_of_a_lawyer/

[8]https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_5_unauthorized_practice_of_law_multijurisdictional_practice_of_law/

[9] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2633032

[10]https://www.americanbar.org/content/dam/aba/administrative/probono_public_service/ls_pb_supporting_justice_iv_final.authcheckdam.pdf

About April:

April Faith-Slaker is the Associate Director of Research Innovations at the Harvard Access to Justice Lab, where she conducts rigorous evaluation of legal interventions in both the civil and criminal arenas. She previously served as the Director of the ABA Resource Center for Access to Justice Initiatives, working to facilitate the Access to Justice Commission movement. She has conducted program evaluation and empirical research in the legal aid setting (Legal Aid of Nebraska), policy research in the non-profit setting (American Bar Association), and rigorous research in the university setting (University of Nebraska, Northwestern University, Harvard Law School). She also served as the managing editor of the Political and Legal Anthropology Review from 2007-2016.

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