What’s access to justice for? Let’s get more philosophical. In a hurry. Part II

By D. James Greiner

In the previous post, I talked about how, if the goal of a legal aid organization’s debt collection litigation defense program is to prevent defendants from having to pay debts sued upon, then there might be a far cheaper way to go about fulfilling that goal, namely, by buying debts on the open market and forgiving them.  And I concluded the last post by saying that buying and forgiving debts feels wrong somehow.

Or maybe not wrong. Incomplete.

And I think it is incomplete.  But why?  It has to be because we think that in providing legal services to debt collection defendants, we’re doing something more than trying to kill a particular, alleged debt.  But what is that something more?  Remember, I want to measure things to see if they “work,” so I have to know what to measure.

Maybe, by defending against individual debt collection lawsuits, we’re trying to change how the court system handles debt collection cases.  OK, fine.  But if that’s what we’re trying to do, we have to ask, “Does the strategy of representing individual defendants in debt collection cases have any real hope of success?”  Can legal aid lawyers represent enough debt collection defendants to put a dent in the way courts handle these cases?  Maybe, maybe not. Perhaps more to the point:  if the idea here is to change the way courts handle debt collection cases, then the very first problem legal aid ought to tackle is not what happens to defendants who do show up to contest collection lawsuits, but rather the fact that (in some court systems) 90% of defendants don’t show up at all.  There’s little a litigator can do in an adversarial system when potential clients don’t agree to be represented and don’t show up to court.  Unless we fundamentally restructure the adversarial system (quite a job), the court will do what it has to do when a defendant doesn’t show, i.e., enter judgment for the plaintiff.  So if changing the system is the goal, then getting folks to court might be be the first focus of a legal aid debt collection program.

Getting folks to court could mean letter writing campaigns.  It might mean learning from junk mailing companies (who else studies how to induce people to open envelopes?).  It might mean enlisting psychologists to tell us how to get people to take action.  But wait, we might think.  That’s not law.  You don’t need law school for that.

And it isn’t law.

But it might be what’s needed to change the way courts handle debt collection cases, which was the point.  Meanwhile, it’s easy to think of ways to measure whether efforts to get defendants to contest debt collection cases are succeeding.

Also, if what we’re attempting to do is to change the way the court system handles debt collection defense, does it matter which potential clients we represent, when we’ll never have enough resources to represent them all?  If changing the court system is the goal, aren’t potential clients fungible?

So, do we need to spend money on intake and screening procedures in this area?

Maybe the point of providing debt collection litigation defense is to make clients feel better.  Perhaps we think that represented litigants feel better than unrepresented litigants.  That might be true, or it might not be.  We can certainly measure it with satisfaction surveys.  But before we do, we might ask, why do we care how litigants feel?  I don’t mean to sound callous, because I actually do care how litigants feel.

But why?

There are at least two reasons for why we care about how people feel about the legal system:  (1) their happiness matters and (2) if too many people lose faith in the legal system, they’ll start solving disputes with guns instead of lawsuits.

Fine.

But if the first one (increasing happiness) is what we’re after, is litigation defense the best way, or even a good way, to increase people’s happiness?  Maybe it is, maybe it isn’t, but we should find out.  That means more surveys, but surveys that focus on happiness levels.  And if the second one (faith in the legal system) is what we’re after, we need satisfaction surveys that are unlike anything I’ve ever seen in regular use before.

Maybe the point of debt collection litigation defense is to affirm the dignity of each individual, or to remind the court system (and thus the government) that behind each docket number is a human being worthy of respect.  I actually believe that, too.

But if what we’re after is affirming dignity and educating judges, again, does it matter which potential clients we represent, when we can’t represent them all?  Even more fundamentally, should we care about whether legal aid makes defendants more likely to win cases?  Or, for that matter, whether represented defendants win any cases at all?  I don’t think so, because if what we care about is affirming dignity and educating people in power, then those purposes are served by the representation itself, and the adjudicatory output of the cases doesn’t matter.  So, if these are the primary goals, we shouldn’t bother examining court files, or randomizing, or anything like that.

I don’t want to be Mr. Ollivander’s tape measure.  I want to measure something more useful than the length of the space between people’s nostrils.  So I have to get philosophical before I get statistical.

And so today’s message from your friendly neighborhood statistician is:  let’s get more philosophical.  In a hurry.