The Legal Profession's Resistance To Evidence In Addressing Access To Justice
A Harvard law professor and his colleagues are trying to change this.
Every day in courtrooms across the United States, lawyers rely on evidence to make their cases. But when it comes to what works in serving clients or enhancing access to justice, lawyers and judges are stubbornly resistant to evidence-based research.
That, at least, is the premise underlying the Access to Justice Lab at Harvard Law School, where director and Harvard Law professor James Greiner and his staff are working to compile rigorous evidence of what works in law and what doesn’t, using randomized control trials.
“In no field is resistance to evidence-based thinking more ferocious than in United States legal practice,” says the lab’s mission statement. “… As a result, law currently recognizes only two sources of truth about what works and what doesn’t: (i) the pronouncements of legal elites, and (ii) each individual lawyer’s or judge’s own personal experience.”
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Harvard Law Professor James Greiner
In other words, the legal profession’s answer to empiricism is, “Trust me, I’m a professional, I don’t need no stinkin’ science.”
In this regard, the legal profession today is roughly where the medical profession was in the 1940s, when insurers began demanding evidence of the efficacy of procedures and drugs, Greiner said at a recent showcase of the Access to Justice Lab’s work.
Drug testing is a good example of why the “trust me” approach is unacceptable in medicine. Of all drugs that enter phase-one testing, only 10 percent make it to phase three.
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“But what do we do in law?” Jim Greiner asked. “We go from idea straight to the field. Why? Because we know. We’re professionals.”
In the history of the U.S. legal profession, just 50 randomized control trials (RCTs) have ever been conducted, according to research by Greiner and his staff. That means that virtually everything we do as lawyers and judges is unsupported by evidence. As but one example, Greiner pointed to mediation, where there are many different approaches and schools of thought, yet no one has ever empirically tested which are most effective.
“Our ignorance need not be permanent,” urged Greiner.
Another reason some in the legal profession resist evidence-based research is that it does not always produce the answer they want. Consider, for example, this question: Is a tenant in housing court better off receiving limited, lawyer-for-the-day assistance or full legal representation?
As lawyers, we needn’t think twice about the answer: Of course, full representation always trumps limited representation.
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Yet one of Greiner’s earliest and perhaps most-controversial studies found otherwise. In a study of tenants facing eviction in housing court, he found no appreciable difference in outcomes between tenants who received full legal representation and those who received limited LFTD assistance.
Greiner is the first to admit that there are any number of questions about that study. In fact, a companion study of tenants in a state district court (as opposed to a specialized housing court) found that those who received full legal representation fared significantly better than those who received only limited assistance.
But he’d also be the first to say, “This is exactly why we need more research, so we can know the answers about what works.”
Greiner’s work has raised particular concerns within the legal services community, where funding is always tenuous and has become only more so amid declines in IOLTA funding and an administration unfriendly to legal aid. There is justifiable fear that legal aid opponents will seize on unfavorable research to justify their arguments for further reducing funding.
Yet Steven Eppler-Epstein, executive director of Connecticut Legal Services (who also attended last week’s showcase at Harvard), argued in a 2013 Harvard Law Review article that the legal services community should support Greiner’s research:
In the long run, legal aid program’s investment in randomized study will not only improve services and help direct scarce resources, but will also build public support, because the willingness of the legal aid movement to question itself and change in response will demonstrate to the wider world that our work is, in the end, focused on doing the best we can to help very poor people, in often-desperate circumstances, to improve their lives.
Meanwhile, the Access to Justice Lab is carrying on its research in various areas. Currently, it is in the midst of four “signature” studies:
- Financial distress, a randomized control trial to understand the effectiveness of attorney representation, financial counseling, and self-help materials on important financial health outcomes.
- Default in debt collection cases, a study to determine why 95 percent or more of debt-collection defendants lose because they fail to show up to court and to find ways that legal services providers and courts can persuade individuals to participate in legal processes.
- Intimate partner violence, a study evaluating various levels of legal services provided to victims of domestic violence who seek civil protection orders, how those services affect court outcomes, and whether the process prevents further abuse.
- Pre-trial release, a study seeking to provide an accurate tool to distinguish criminal defendants according to the risk that they will engage in future misconduct.
To my mind, this work is extremely important, particularly in the context of providing legal help to the poor. Funds to support legal services are getting scarcer every year, even as the demand multiplies. The only sure way to make the best use of those limited funds is to study what works. We need to conduct much more research such as Greiner’s rather than allocate limited resources based on gut instincts.
One point Greiner made really resonated with me. We keep saying we are in a pro se crisis, but that so-called crisis has been going on for three decades. The fact is, he argued, we have a permanent resource crisis in legal services and, by ignoring empiricism, we are only perpetuating our ignorance of what works to address it.
Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at [email protected], and you can follow him on Twitter (@BobAmbrogi).
