The Pro Bono Wire
September 22, 2012
In late July CPBO Director Eve Runyon and I were invited to participate for the first time in the meeting of the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA). That meeting was both productive (see the article on the CCJ/COSCA action on in-house pro bono rules in this issue of The Wire) and instructive. In addition to making presentations to the CCJ/COSCA Professionalism and Access Committees, Eve and I attended the meeting’s plenary sessions. We were particularly struck by two highly informative panels: one on drug courts and the second on pre-trial diversion.
What stood out about these programs was the growing and sophisticated use of evidence-based research to improve court and diversionary functions. The panel on drug courts included judges and court personnel, as well as expert researchers, reporting on what works and what doesn’t work among the growing number of alternative court processes established to effectively address drug-related crimes. As the result of careful empirical research, the speakers provided credible, fact-based information on both the key elements of successful drug courts, including counterintuitive data on the profile of defendants who should be diverted to these courts. That research enabled them to identify the type of diagnosis, triage, protocols, and treatment that are essential to success and to determine why some drug courts (labeled by the researchers as “drug courts in name only”) were not working. They were also able to clearly and forcefully demonstrate the value and impact of drug courts, including lower recidivism rates and cost savings.
The second panel, focused on pre-trial diversion programs, bail options, and the like, was led by New York Chief Judge Jonathan Lippman, who is a passionate, forward-looking leader in the criminal justice arena and applies those same traits to his support for access to justice and civil legal services. This panel focused on best practices in pre-trial procedures –practices that reduce flight risk and promote public safety without unnecessarily incarcerating defendants awaiting trial. Again, testing and research have enabled the courts to fine-tune their determinations regarding pre-trial imprisonment to reduce costs and avoid unnecessary burdens on defendants. Judge Lippman was particularly strong in his concern about the prevalence of the commercial bail bond system which condemns the poor to prison before trial.
I came away from the CCJ/COSCA conference with heightened respect for the leaders of our state courts – increasingly critical partners in pursuing access to justice – but also with a serious case of “research envy.”
All too often in the civil legal services and pro bono worlds we simply rely on our sense of what works and anecdotal information, rather than rigorous and evidence-based research on what strategies, fora, and approaches work best for which low-income clients. With so many low-income families facing foreclosure, can we identify with any degree of confidence and evidence of outcomes, which approaches – mediation, litigation, negotiation – work best for which types of homeowners? As the number of bankruptcies grows, have we analyzed the outcomes of these cases to identify the most effective steps and protocols? At a time when more and more people come to court without a lawyer, have we examined the different models of pro se/self-representation and their usefulness for various matters such as landlord/tenant versus small claims?
Sadly, the answer is that, with some notable exceptions, we have not. This is due in part to lack of resources. Unlike the criminal justice area, in which the Department of Justice and other players have consistently supported evidence-based research, the research capacity in the civil justice area is extremely limited and often uncoordinated. Lack of resources, however, is not the sole reason that we do not have the research tools we need to provide the most effective assistance to our clients. Anxiety and skepticism about evaluation, evidence-based research, metrics, and outcomes measurement are widespread in the civil justice community. Many believe that our work is too nuanced, localized, and specialized to permit meaningful research. Many fear that research will reveal the imperfections and shortcomings of the current delivery systems, further impacting in a negative way already inadequate funding and support. For the sake of our clients and the integrity of our justice system, we have to face those fears and follow the example of our colleagues in the criminal justice system. We have to ask the hard questions that inform the better way. At PBI, we are focusing our efforts on helping law firms and legal departments take a long, hard, thoughtful, and empirical look at their pro bono programs so that we can all make the best use of those increasingly important but finite resources to help clients. I hope that the entire access to justice community will join us in this vitally important endeavor.
*denotes a Signatory to the Law Firm Pro Bono Challenge®
**denotes a Signatory to the Corporate Pro Bono ChallengeSM