Monthly Archives: December 2016

Seeking Evidence: A Professor Looks for Empirical Proof to Improve Access to Justice

In this New Thinking podcast, Harvard Law School Professor James Greiner talks with Aubrey Fox about why he
launched the Access to Justice Lab, which has researched topics as varied as how to provide self-help materials to
defendants involved in civil debt collection cases to the effectiveness of commonly used pretrial assessment interview
tools in criminal court. Greiner also discusses what he sees as a strategy for improving the legal profession’s
openness to evidence-based thinking.

AUBREY FOX: So this is Aubrey Fox. I’m today’s
guest host for The New Thinking Podcast, which is the Center for Innovation’s podcast where we interview legal
experts and researchers. And I’m very fortunate to be joined today by Professor James Greiner, who is the William
Henry Bloomberg Professor of Law at Harvard University. Does this mean that you’re connected to our former Mayor

PROFESSOR JAMES GREINER: Actually, I think that, if I have it right, the Chair was
named after his father and he established it on his father’s behalf. It’s a rotating chair, so I have it
for another few months before it rotates to someone else. But that is the connection.

you’re not dining with Mayor Bloomberg on a regular basis?

GREINER: I haven’t had the
pleasure yet. I’m sure it’ll be terrific. I’m guessing he probably sets a good table, but I haven’t
had the pleasure yet.

FOX: Among many things, Jim, is the faculty director of something called
the Access to Justice Lab, which is a really exciting new initiative that he started where he’s trying to bring
evidence-based research to the study of criminal justice and civil justice. And so we want to talk to Jim today about
his work with the Access to Justice Lab and also some of his thinking about why it’s important to introduce
this evidence-based approach, and want to talk to him a little bit about some of the particular issues he’s

Jim, maybe where we’ll start is just to let you talk about how you got interested
in this area of criminal justice and civil justice, and tell us a little bit about your background.

Sure. So when I graduated from law school, I hadn’t taken any statistics courses or any sort of quantitative
courses in college or anything like that. I just wanted to be a regular practicing lawyer. So I did that for 3 years
for the Justice Department and then 3 years for a private law firm, a law firm called Jenner & Block in DC
and, at the time, I was litigating cases that involved some numbers. So, employment discrimination class actions,
litigation about the 2000 decennial census, whether you could use statistical techniques to try to correct for over-counts
and under-counts according to racial groups. I’d always been interested in social justice issues and criminal
law issues.

When I moved over to the private law firm, I did a couple of pro-bono cases that we
picked up. And basically, through the practice, redistricting was in the area I did, got interested in numbers and
what numbers and evidence-based thinking could bring to the table in terms of social justice issues. And so after
6 years as a practicing attorney, I left the practice of law for 5 years to get a PhD in statistics.

then when I got my PhD in Statistics I started researching in a bunch of areas, but the one I was having the most
fun with, really enjoying and the one that I thought I could potentially do some good with was access to justice
issues, more on the civil side than on the criminal side, but some on the criminal side also. So issues like, how
do you make law work and be accessible for folks who can’t afford to hire lawyers to interface with the legal
system. And on the criminal side, how can we make existing institutions perform what we want them to perform better.
How can we release more people who are not dangerous, how can we reduce the criminal footprint on communities and
still maintain a system of law and order, etc.

So those are the big-picture issues that I found
most interesting.   

FOX: So, having a statistician as a professor
of law. Is that an unusual development, or is that something that’s been going on for decades and decades?

GREINER: No, I think there are only 2 of us still in the legal academy that have stats degrees– stats PhDs.
I know the other person, unsurprisingly. But having someone as a law professor who knows, as we say, “how to
count”, that’s not all that unusual. It’s just folks typically have economics degrees or political
science degrees or something like that. But the hardcore statistics is what I really wanted to get invested in. And
the reason for that was I pretty much knew when I was going into the statistics program that I was a litigator through
and through. I was always going to be a litigator. I was going to care about courts and administrative agencies and
the practice of law at a person by person level.

And so I didn’t feel like I wanted to learn
a lot about the big-picture political science theory and big-picture economic theory that those folks do. And so
I just said let’s go straight into the heavy numbers.

FOX: And so tell us a little bit about
the Access to Justice Lab. What does it do, when did you get it started?

GREINER: We’re talking
in December of 2016. It’s only been in existence since July of 2016, and it is funded by a generous grant from
the Laura and John Arnold Foundation. The foundation itself cares about evidence-based thinking across a lot of different
spheres, and it funded the lab. And basically the lab has 2 overall missions. One is to produce useful, rigorous
evidence that would assist policy makers and judges and lawyers in what they do. Especially with respect, again,
to access to justice related to folks who can’t afford to hire lawyers to interface with the legal system for

And then the second overall purpose is to try to tear down the resistance to rigorous empirical
evidence, especially via the randomized control trials, or randomized field experiment, that resistance that exists
within the legal profession and within the judiciary.

I think that in law, especially with the
practice of law, we are in roughly where the medical profession was in about 1938 or 1940. Basically, we are beginning
to engage in the debate about whether our profession should be evidence-based in the way that medicine was engaging
in a debate about whether drugs and medical devices should have evidence behind them before they are allowed to be
sold to the public.

And there are many folks in law, on both the bench and the bar, who think
that randomization in law is unethical or is unnecessary. Unethical because randomization takes away the professional
judgment about who should get what, and unnecessary because we know that, as lawyers and judges, all of our professional
judgements are perfect, or very, very good and, therefore, we don’t really need to investigate them all that
much. And so the Access to Justice Lab’s second purpose is to try to suggest to folks that scientific-based
thinking and evidence really can bring a lot to the table and it may end up overturning accepted truths within the
bench and the bar.

FOX: I’m glad, in your comparison to the medical world, you didn’t
bring up leaches. So at least we’re… We’re 100 years ahead of where we could be.


FOX: And, just to follow up for a moment, I kind of want to get your sense of the state
of play on this because I understand that there may be resistance to RCTs, which are the most rigorous form of evidence-based
analysis and require dividing a control group from an experimental group and giving some people something that you
don’t give the control group. But there is a history of doing research into criminological issues. So it’s
not like you’re starting from square one. So I guess in this mix of some history and some resistance, where
would you say we are at the moment?

GREINER: I’d say more resistance than history with respect
to courts and judges and lawyers. So you’re absolutely right that there is a reasonably well developed literature
in the criminology field. And a good portion of it, not as much as many criminologists would like, but still a good
portion of it backed up by randomized studies to try to figure out whether, say, afterschool programs prevent people
from getting arrested, or whether certain types of treatment as a condition for probation are effective in preventing
recidivism. But if you notice in the 2 examples that I gave you, one of them is sort of prior to the involvement,
the intervention is prior to the involvement of the criminal justice system, and one of them is post sentencing,
sort of after the involvement of what we call the lawyer-based or court-based criminal justice system.

And so there has been substantially less in that portion of the criminal justice system where the lawyers
and the judges get involved to the point where, when a co-author and I try to catalog all of the randomized studies
that have been done in United States law, criminal or civil, that involved randomization of a decision that would
otherwise have been made by a judge or a lawyer, so it’s how we defined randomized studies in law. We’re
taking a decision that otherwise would’ve been made by a judge and a lawyer and randomizing it to find out whether
the decision is worthwhile or would be an effective style of treatment or something like that. We could only find
about 50 in the history of the United States, based upon all areas of law, all sorts of settings.

if you think about medicine starting from 1938 or 1940, the number would probably be uncountable, be tens of thousands
or hundreds of thousands of randomized studies that have involved replacing a judgment that would’ve otherwise
been made by a medical professional with randomization in order to figure out whether the treatment or the intervention
works. Whereas we could find fewer than 1 per year in law. So again, I absolutely agree with you. Criminology has
much more of a history. It’s a much more developed field. But they’re basically working in their rigorous
evidence prior to the formal legal system or after it in the lifetime of a particular defendant or person or crime.
And where we think the evidence really needs to be focused is, at least in terms of a new effort, we need to focus
on where there isn’t as much evidence right now, which is inside courts and law offices.

One of the reasons that I wanted to speak to you, Jim, was the Center for Court Innovation, while we’re known
more for our work on criminal court programs, we also have been developing a civil justice portfolio. And so I’m
curious to hear you talk about some of the work you’ve done on issues, and you’re continuing to do, like
debt collection and the assignment of council in housing court cases. And I guess the framework I have for my question
is, making the case for this kind of research may rest on finding kind of practical implications that flow from the
research. So I’m wondering if you can give us some examples of research you’re doing and what you see as
the things that a practitioner would immediately identify as, well that’s really interesting and useful.

GREINER: Absolutely. So I guess, two examples. And I don’t want to go on for too long, so stop me if
this turns into a monologue, but two examples with respect to financial distress work which you mentioned, the debt
collection work that you mentioned, one of the premises of that work is that there is just never going to be enough
money, there’s just never going to be enough of a social commitment to provide a lawyer at state expense for
every individual who can’t afford to hire a lawyer who has a legal problem. Even if we were to restrict that
set to people who are facing court adjudications that affect basic human needs by some definition, which is the ABA’s
proposed definition. It’s called the Civil Gideon Project, this idea that we can provide lawyers at state expense.
I just don’t think the resources are ever going to be there. Some smart economists have tried to calculate that
and it’s in billions upon billions of dollars would be needed.

With that in mind, it’s
probably going to take a battery of lots of different things to address the access to justice problems that we’re
having in United States society, and one of those things, one of those many things that we need, is going to be self-help.
How’re you going to make complex subjects accessible, complex procedures and complex principles accessible to
folks who can’t afford to hire lawyers for them so they can try to address legal problems they have on their

So the financial distress work that I’m doing is an attempt to try to say, well, if
what we need are self-help materials, and we need basically to educate people about how to solve their own problems,
what sorts of principles can we draw from non-law fields that would help us make self-help materials more effective,
or would we hypothesize that would make self-help materials more effective?

For instance, if we’re
trying to get people to a particular location at a particular time of day and on a particular date to do something
they would rather not do because they decide it’s good for them, how do we persuade people to do that?

Well, if you pose the question at that level of generality, you recognize that… Voting. Political scientists
study how you get people to vote on a particular day at a particular time. Public health officials study how to get
people out to take flu shots, or to get colonoscopies on a particular day. These are all studies that have been run.

But in law, our self-help materials don’t actually use any of the lessons from any of those other fields
about how to get people to a court date. We think that’s bad. We think that if good lessons are learned from
those fields, we should try them in law and see if they work.

Similarly, there’s an entire
field called adult education, or just education period, about how you communicate complex concepts to people who
need to be able to use them. But in law, our self-help materials don’t currently use the lessons from adult
education. And you can see that because if you read the legal self-help materials, they’re word-heavy. There’s
just lots and lots of text. Whereas adult education folks, or education folks generally are saying, no, no, no. You’ve
got to use images. So, in our case, we’re using cartoons.

And so, the idea there is to say,
let’s try to create the best possible self-help materials that, under the state of the art, we currently know
how to create using the lessons from all these different fields. But then, let’s don’t declare victory
there. Because maybe there’s something about law, or maybe there’s something about the way that we did
the self-help materials that would make them not effective, or maybe there’s something they’re not understanding.
Or maybe the best possible self-help materials are just not enough in a system that is so complex that self-help
is just not an option.

So we go test them. We go put them into the field and we do a randomized
experiment. In one randomized experiment, we might randomize people to either get self-help materials or an offer
of representation from an attorney. Or in another experiment, we randomize whether people get self-help materials
versus no further assistance. Our self-help materials versus existing self help materials which, in many cases, just
don’t exist.

So that’s one example. I’ve got another one but, again, I don’t
want to go on and on.

FOX: I’ll just cut in for a moment to say the research you’re
doing on self-help or pro se council is relevant to us because we run a program called Legal Hands, which essentially
employs volunteers who are not lawyers. So it’s a bit of a blended model. This is people who are physically
talking to a community member, so it’s not something that you go online to get self-help materials. But they’re
not lawyers. And it speaks to your general point which is, it may not be possible to have a lawyer for every person
on every case of relevance to them.

GREINER: Absolutely. I think what your program is doing is
mixing a partial service-based solution with a partial self-help so it might be a sort of guided self-help. Absolutely.
Again, I think part of the problem, one of the reasons why I find this field so much fun to operate in but also so
frustrating is that we just don’t have any evidence to suggest, to guide us as to when we need a partial service-based
solution, partial self-help, and what settings a total self-help solution is sufficient. Or maybe it’s not the
legal setting, maybe it’s the type of person. Which people can take care of it on their own if guided appropriately
either by self-help materials, or which ones are going to need some service along with it. So absolutely.

FOX: Let’s hear your other example.

GREINER: Another example that comes to mind
is the problem of triage which is basically, whenever there is more of a particular type of case, or another way
to put it, more clients than you have the capacity to provide the highest level of assistance to. So in our particular
study that we’ve been trying to get underway and still in the planning stages for, this setting is victims of
domestic violence who come to a legal services provider and seeking assistance with obtaining civil protection orders
from courts, and the legal services provider has the capacity to assist in terms of providing full representation
to. Around 1/3 of the folks who come to it who are eligible for the help, income and asset eligible, and who are
actively seeking civil protection orders.

Now that by the way, that number, 1/3, would go down
substantially if the legal services provider did more outreach in the community. So we’ve looked in the court
systems where this LSP is operating and in fact a substantial number of people are already in the court system seeking
civil protection orders without council. And so you only see the tip of the iceberg, and you can’t even handle
the tip of the iceberg, in terms of providing full representation, the traditional attorney/client relationship to
these folks, much less the whole iceberg. So what do you do?

And it turns out that in medicine,
again, to use that analogy, there’s been lots of study about how to make these triage decisions. It’s both
an ethical question and an operational question. Ethically, what do you want to do when you’re in that sort
of scare situation, and that comes up both in medicine in terms of something like when you don’t have enough
organs for transplant, it comes up when you have Hurricane Katrina knocking out power in a hospital and you don’t
have enough evacuation capacity to get all of your patients out of your hospital. That was the subject of a recent
Radio Lab episode. So there’s an ethical dimension to that question.

There’s also an
operational dimension. Suppose what you wanted to do was to say, we should use these resources to save the most lives.
Or, in a civil protection order context, we should use these resources to try to get as many people as possible civil
protection orders because that’s what they’re for and that’s best for the community. How would you
do that? How would you go about doing that? And one way you would go about thinking about it, the way that the military
thinks about it when we’re talking about battlefield casualties is, you say, well try to distinguish people
into 3 groups. One is a group of people who are going to be able to succeed on their own. So in battlefield casualties,
these are going to be people who are going to survive the battlefield even if not assisted immediately. You don’t
provide immediate assistance to them. In the legal services provider, people who are going to be able to get civil
protection orders on their own, you don’t offer full representation to them.

For people who
are never going to be able to survive on the battlefield, or never going be able to get civil protection orders on
their own, even if given the full representation, you don’t give them full representation either, because it’s
not affecting the outcome.

The people you do give battlefield assistance to, or full representation
to, are the folks that you can change their outcome. If you give assistance, they’ll survive or they’ll
get the civil protection order. If you don’t give assistance, they won’t survive or they won’t get
the civil protection order.

So that’s one way to think about it. But if you want to do that,
you face the problem of, how do you go about distinguishing those people. Because a lot of study and a lot of different
settings, again, emergency room setting is one example, turns out that’s a very hard thing to do. To figure
out who you can actually change the outcomes for. So we’re pursuing a randomized experiment that’s designed
to try to add to our knowledge of how do you distinguish those folks. And most importantly, whether lawyers, given,
exercising professional judgment, can in fact predict which people really would benefit from the help.

FOX: And I guess what you’re talking about raises a big issue for me, which is, let’s give a concrete
example, in New York city they’re talking about investing potentially $200 million more a year in hiring lawyers
to represent people facing eviction in housing court. So there is actually more money now in areas of the law there
hasn’t been a lot of money in the past.

However, you’re no doubt correct that there
isn’t enough money to cover every case at every moment. And so I guess having an RCT or a research study is
great progress towards this habit of thinking in a kind of, I would use the term problem solving way. But how do
we get to more fundamental change? What’s the way to inculcate this way of thinking in a legal services organization
in a more fundamental fashion?

GREINER: It’s a really hard question and one that we’ve
been scratching our heads about in the Access to Justice Lab about. Because that’s our overall mission. One
way of thinking about this is, if the Access to Justice Lab is going to be one of the few institutions around the
country that’s going to be doing randomized studies in the law and we’re going to depend on those few institutions
to produce evidence, we should stop. We’re never going to be able to produce enough evidence. Even as a lab
and even as an institution, 1 or 2 institutions are never going to be able to do it. Just the same way one center,
Johns Hopkins can never produce enough randomized experiments in medicine to make progress in medicine possible.

So we have to start a movement. We have to get people to think this way and to demand this evidence. In
terms of the strategies we’re pursuing in the Access to Justice Lab, we’re, first of all, going to try
to produce studies and try to educate folks about, hey, this evidence from this study can be useful in your practice,
it can get you to think about ways other than the way you were thinking before, or ask new questions about what you
should be doing to be more effective.

We’re in the process of producing a short course so
that folks who, either want to do these studies as researchers or to form partnerships with researchers to get the
study done, so these field operators will know more about what’s required and how to do them. We will be doing
persuasion in terms of just appearing at conferences and giving speeches and talking to anyone who will listen to
us about why this is so critical and, quite frankly, we think that there’s an ethical duty to do these studies.

Because if you think about it in the civil protection order context, our view is that if we triaged more
effectively, more people would have civil protection orders than currently do with no additional injection of resources.
When you think about it that way, there may be an ethical duty to do these studies, as opposed to, oh, well they’re
just curiosities. We think ultimately that we’re going to need to persuade funders to demand evidence. Maybe
not demand the evidence, show it to me right now or I’ll cut your funding, rather say, if you don’t have
the evidence, I want you to, this is a funder speaking to a legal services provider, I want you to engage in an evidence
gathering study. And sure, I’ll fund your efforts, your services as long as you are gathering evidence about
whether those actually work.

FOX: Well, this is fascinating work. And thank you so much for agreeing
to speak with us. Again, I’m Aubrey Fox. I’m the guest host of the New Thinking Podcast for the Center
for Court Innovation and joined today by Professor James Greiner who’s a Professor of Law at Harvard University
and the Faculty Director of the Access to Justice Lab. They have a great website that you can go online and take
a look at some of the studies that they’re participating in. Thank you so much, Jim.

My pleasure, thanks for the opportunity. 


How Can Lawyers Help Address Poverty and Eviction? A Conversation with Law Professor Raymond Brescia

In this New Thinking podcast, Raymond H. Brescia, associate professor of Law at Albany Law School, speaks with
Aubrey Fox and Robert V. Wolf of the Center for Court Innovation about the role lawyers can play in addressing poverty
and eviction, why New York City has been dramatically expanding funding to provide lawyers to respondents in Housing
Court, debt collection cases as the next great issue for public interest attorneys, and how a good lawyer is like
a patronus from a Harry Potter book. 

ROB WOLF: Hi. I’m Rob Wolf, Director
of Communications at the Center for Court Innovation. Joining me today is Aubrey Fox, who was my colleague here at
the Center for Court Innovation for about 15 years, where he helped set up a number of innovative programs that we
run, including Bronx Community Solutions, and he is now helping out in various capacities as a consultant. Today,
he and I are going to do a podcast together. Aubrey, let’s tell listeners who we’re speaking with today.

AUBREY FOX: We’re interviewing Ray Brescia, who is a Associate Law Professor at the Albany Law School.

WOLF: Why are we speaking with him?

FOX: Rob, as you know, the Center for Court Innovation
is known for our work on criminal court programs and we operate criminal courts and partnership with the New York
State Court system all over the city, but people may know a little less is that we also have some new experiments
in the civil justice space.

WOLF: Specifically, civil refers obviously to noncriminal. That’s
family, housing, that sort of thing?

FOX: Exactly. Two of the programs that we’re running
now, one is called Poverty Justice Solutions, in which we assign recent law school graduates to nonprofit civil justice
firms around the city, and they work mostly on housing court cases. We also have new program called Legal Hands,
where we employ volunteers and train and equip them to give advice to people who are facing issues, in hopes that
it can help them keep out of court in the first place.

WOLF: I know Poverty Justice Solutions
is focused particularly on working with people who face evictions.

FOX: Yeah, I mean a lot of
the nonprofit civil justice law firms in the city focus on eviction and housing court cases, and there’s an
immediately obvious reason why. A lot of New Yorkers face issues with their housing, and we know now that there are
some very direct links between housing and poverty. People who struggle to pay their rent, if they get evicted, there
are all sorts of negative consequences that accrue from that. The city is paying a lot more attention to try and
intervene, and at the very least provide legal representation to people who are facing eviction in housing court.

WOLF: It’s both a more humane approach, trying to prevent people from losing their homes, but there’s
a practical aspect too, that it’s going to cost the city, and impact the quality of life for both the tenants
and people who live in the city if they don’t prevent these evictions.

FOX: Yeah, I mean
there’s one estimate just produced by the city council that you could save about $300 million dollars, the city
that is could save about $300 million a year if it kept around 5,000 families out of shelters. It costs about $43,000
per family per year to put someone in a shelter. Obviously, if there is an appropriate way to keep them in the housing
that they currently have, and thus keep them from going into a homeless shelter, then it would seem that everyone
would be better off.

WOLF: I guess the rationale is that without representation, they may be losing
their homes, their tenancy unfairly, because they don’t have the right advocate. Legally, if someone was articulating
their position and their rights, they hopefully would be able to stay in their home.

FOX: Yeah,
I mean the housing eviction cases are often very complicated, and sometimes the existing rules and laws aren’t
applied because in this case, the defendant who’s facing eviction doesn’t know their rights, doesn’t
have legal representation. It’s an issue that the city is really directly focused on, and as you say, not just
because losing a house, your home is a huge personal crisis, but because the consequences of losing your home end
up being faced by the city quite often.

WOLF: Well so let’s get Professor Brescia on the
phone. Just so people understand, I’m actually in our office in Manhattan, you are in your special studio in
New Jersey, also known as your home. Now we’re going to be joined by Professor Brescia, who we’re calling
in his office.

FOX: In Albany.

WOLF: In Albany, there you go.

Yes, all right.

WOLF: Okay, let’s get him on the line. Ray Brescia, welcome to the podcast.

PROFESSOR RAY BRESCIA: Thank you very much, thanks for having me.

FOX: Ray, where we
wanted to start was just to get you to tell us a little bit about how you got involved in public interest law.

BRESCIA: Well, it goes back to being a young person and being very concerned about politics and the world,
and being very excited about things that were happening around me. I was a child of the 70’s, and so there was
a lot of politics that went on in the 70’s. Some of my earliest memories were of the end of the Vietnam War,
and then Nixon’s resignation. I just have always been interested, I think it comes from a family that’s
very interested in political issues, and over the years as I was growing up, I realized that a lot of people about
whom I was reading in the newspaper were lawyers and involved in the issues that I was interested in. That really
sparked my interest in becoming a lawyer.

WOLF: You’ve been deeply involved now in the civil
side of the law and civil justice, so you’ve observed recently how there’s been growing interest in civil
justice. In fact, the city created recently an office of civil justice, and now there’s talk of what’s
being referred to as “civil Gideon”, and Aubrey and I were curious, you know if you could maybe explain
what civil Gideon means. Obviously Gideon refers to the 1963 Supreme Court decision that gives people right to counsel
in criminal cases. What does that mean on the civil side?

BRESCIA: On the civil side, it would
mean the same thing in civil cases as you see in many criminal cases, not all criminal cases. Lower level offenses,
you don’t have a right to counsel, but on the civil side, just like on the criminal side, when people talk about
civil Gideon, they mean a right to counsel in cases where fundamental human rights are at stake, shelter, loss of
benefits, things like that. If you look at sort of what the consequences are of not having counsel in a criminal
case and in a civil case, in many of the more impactful civil cases, the outcome can be the same. Someone could be
institutionalized, someone could be incarcerated, someone could be, you know their freedom could be restricted if
they become homeless, if they have to move into a shelter.

If the consequences are similar in
certain civil cases as they are in some criminal cases, then the importance of counsel is similar as well. I think
a lot of people don’t understand, they think that there’s legal aid, and so people have a right to counsel
in an eviction case, but they just don’t. The number of people in a place like housing court in New York, which
evicts 25,000 families a year, low-income tenants who can’t afford an attorney, most of them do not have access
to counsel, even though we do have phenomenal legal aid programs that can provide services to low-income people and
to help them prevent eviction.

Short of the funding that recently came down from the city of New
York, when I was practicing in housing court in New York City, a very small fraction of low-income tenants had counsel.
That meant that they faced eviction without a lawyer, and eviction cases can be very complicated. I think what the
de Blasio administration is doing and what city council is proposing is really going to expand access to justice
in housing court, and hopefully in other settings as well, at least in New York City, to ensure that in really important
cases on the civil side, like in the criminal side, people have access to a free lawyer.

Let me just throw out some numbers too related to what you said. The office of civil justice said that in 2013, only
1% of tenants in New York City housing court were represented by attorneys, but they project that with their investment
of, I think $100 million, the city’s investment in fiscal year 2017, 27% will be represented, one in four basically,
of tenants will be represented. That would represent a dramatic shift, and would you anticipate that that would then
dramatically change outcomes, you know fewer people would in fact be evicted and have to move into shelters and that
sort of thing?

BRESCIA: Certainly. It’s going to do two primary things: One, it’s going
to ensure that many thousands of tenants have a fighting shot in housing court. Once you do, if you have a fighting
chance, most of the time a lawyer can make a huge difference in raising important defenses, negotiating viable solutions
that don’t require the tenant losing his or her home, dismissing cases because the landlord’s case is weak.
In the first instance, many tenants who, with representation, are going to avoid eviction, period, full stop.

I think a second consequence of the increased number of tenants with counsel is that landlords are going
to bring fewer cases. A lot of landlords now don’t have to worry about their tenant being represented, and they
can bring trumped-up cases, they can bring cases that are weak. They know at the end of the day, many tenants won’t
even show up to fight the case because they think that there’s no hope in fighting the case, because they don’t
have a lawyer, they don’t know their rights. Many move out when they get the eviction papers, or simply sit
back not knowing what they’re supposed to do, and don’t defend themselves. I think landlords count on that
for at least a percentage of cases, and if they know that tenants are going to be represented, not only are they
only going to bring the strongest cases that they can, but they’re not going to bring the cases that they think
they can get by on weak claims.

FOX: One thing I find really interesting is you have the city
investing a lot more in this area, but I guess I’m curious about the context here. What do you think is driving
this idea that we should take a second look at the relationship between poverty and housing? Is it driven mostly
by practical conditions on the ground, is there an intellectual momentum that has developed that is starting to reframe
these issues?

BRESCIA: I would like to think that there are two main drivers of seeing this issue
as an access to justice issue, that is an issue that centers around the low-income people’s lack of access to
a lawyer. One is moral, and it’s based in our fundamental belief that in our democratic system, people should
have a right to defend themselves adequately in a court of law when legal claims are made against them, so that’s
the moral case to be made for access to justice. I think more practically that there’s a fiscal case that can
very easily be made for the investment of counsel.

Counsel in a housing case is usually provided
by a nonprofit for roughly about $3,000 a case. They’re reimbursed for the number of cases that they handle
for about $3,000 a case. A family that is evicted that goes through the shelter system costs the city about $30,000.
If you can, by the provision of a lawyer, you can prevent that family from becoming homeless, you’re saving
the city and the people of the city of New York and any other jurisdiction that takes this view, you’re saving
them lots of money. There’s an absolute moral case, but also a practical fiscal case.

It’s interesting that you say the lawyer only gets $3,000, which makes me think about the attractiveness of
going into civil justice law for law students today. I mean, there is a trimmed down market on the corporate or the
money-making side, so to speak, of the legal profession. Is it more attractive? Are you seeing a shift? Are more
law students interested in civil justice, especially as there’s more interest and more need for lawyers, as
there is at least a little more money to pay for them?

BRESCIA: I think a lot of people go to
law school, a lot of law students go to law school because they want to make a difference, and they want to do work
that is meaningful that makes a real difference in people’s lives. Too often, law school debt, practical reality,
economic realities drive students away from those reasons that they went to law school to begin with. The more that
funding is made available as the de Blasio administration is making such funding available for nonprofits to represent
low-income tenants in housing court and hopefully in other settings, there’ll be more opportunities for students
to get back to the reasons they went to law school in the first place.

FOX: We’ve talked
mostly about housing court, but there are other types of civil legal cases. I just wonder if you want to bring up
another example of the kind of case where a good attorney could really make a difference in the lives of somebody
in a particular type of case.

BRESCIA: Well, you know there’s another area that’s gotten
a lot of attention lately is consumer debt. Consumers, which are everybody, people, can mount up consumer debt from
an old credit card, from an old cell phone bill, maybe they move, they don’t get the last bill, and penalties
can accrue, and the consumer can face a lawsuit in court for a $200 bill with fines and penalties can quickly become
something that escalates and grows into a two, three, $5,000 bill that the filing of a lawsuit against them alone
will impact their credit score. They find that their wages are garnished, their bank accounts are frozen, they can’t
pay their rent, they can’t buy things like medications or food.

Another area where lawyers
can make a real difference, I mean it’s hard to say that fewer defendants get represented in consumer debt cases
than in housing court cases, because in 1% of housing court cases, the tenant has representation, but it’s actually
less than 1%, at least in New York City, according to research that the Urban Justice Center did years ago, less
than 1% of tenants have representation. That can have a real impact on people’s lives, and can spiral into an
eviction case if they can’t pay their rent, or a hospitalization if they can’t get medication to keep them
out of the hospital.

That’s another area, and these are very straightforward cases, they’re
often very strong defenses, that a pro se person, someone without a lawyer, doesn’t really know how to raise
such defenses, but with a lawyer, that defendant can easily raise very strong defenses and often get the cases dismissed.
Our experience has been, and lawyers who do this work, that the mere presence of a lawyer in a case is enough to
get the plaintiff to simply withdraw the case, that they don’t want to fight it because they know that there
are so many strong defenses that will be raised by a lawyer who is worth his or her salt. It’s like in Harry
Potter, it’s like the character, you know they can call out their character that helps them defeat the evil
beings, it’s not a Horcrux.

WOLF: Their patronus.

BRESCIA: Their patronus,
exactly, thank you very much. You know it’s like a patronus, you can call forth your lawyer and the plaintiff
just runs away.

WOLF: Well, it sounds like a situation that is also ripe for abuse then, that
as you said with housing cases, if people bringing these consumer cases, these debt cases, knew a lawyer would be
there, they’re less likely to even bring the case because they know that there maybe isn’t a lot of substance
to it. I wonder, what about the Center for Court Innovation, in collaboration with several partners also has a program
called Legal Hand, which basically gives advice to pro se litigants. They can go to a community walk-in storefront
situation and get some advice, and I wonder, short of providing an attorney, and perhaps in some cases where an attorney,
there isn’t enough money to give everyone an attorney yet, but at least giving them some legal advice, how useful
is that, do you think? Does that also have a practical impact?

BRESCIA: I think it does. You have
to do what we call in the legal services world “effective triage”. You have to identify cases where they’re
relatively straightforward, where advice alone is enough to arm the tenant with the information, or whoever the party
is, the party seeking the information, that it’s a straightforward case where simple information would be enough
to prepare him or her to defend him or herself in court or in an administrative proceeding like a welfare hearing
or the DMV, wherever it is. It depends on a number of factors, I think the first factor is the complexity of the

Is it a case where straightforward information that’s easy to understand is enough,
so the person can defend his or her rights? Then it will depend also on two other things, I think, what’s at
stake, and then the ability of the individual in the context he or she finds him or herself in, to use the information
obtained effectively. Things that are, where there’s high risk, you know Warren Buffet doesn’t deal with
issues, billion dollar deals without a lawyer, someone who’s facing an eviction or the loss of a child or the
termination of welfare benefits, given what’s at stake, it’s very difficult to say to that person, although
we do it every day, “You don’t get a lawyer.”

With what’s at stake, I think
that’s another factor to think about because of the risk of loss of what’s at stake. Then, is this individual
someone who can manage the case with a little bit of information, or is it someone because of disability or because
of the complexity of the case, can’t handle the issue on his or her own? You sort of have to go through a series
of questions to triage each case to determine, is this a case where a little bit of information is going to be enough
so that person can protect his or her rights, or are there enough of these variables that say, “Wait a minute,
this is a person who needs full representation.”?

WOLF: Well, thank you so much for taking
the time to talk with Aubrey and me today.

BRESCIA: Thank you for having me.

Thanks Ray.

WOLF: We’ve been speaking with Ray Brescia, who’s an associate professor
at Albany Law School, and he’s been speaking with us about trends in civil justice and some of the exciting
things that have been happening here, particularly in New York City. To find out more about the Center for Court
Innovation and some of our civil justice programs, and in fact all our programs, you can visit us at our website
at I am Rob Wolf, director of communications, and my cohost today is Aubrey, you want to
say who you are again?

FOX: I’m Aubrey Fox, and I’m going to try to find a patronus
after this interview’s over. They sound useful.

WOLF: Thanks everyone, and thanks for listening.