{"id":1684,"date":"2015-03-27T11:04:02","date_gmt":"2015-03-27T15:04:02","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1684"},"modified":"2015-03-27T11:04:02","modified_gmt":"2015-03-27T15:04:02","slug":"whats-access-to-justice-for-lets-get-more-philosophical-in-a-hurry-part-ii","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2015\/03\/27\/whats-access-to-justice-for-lets-get-more-philosophical-in-a-hurry-part-ii\/","title":{"rendered":"What\u2019s access to justice for? Let\u2019s get more philosophical. In a hurry. Part II"},"content":{"rendered":"

By D. James Greiner<\/em><\/p>\n

In the previous post, I talked about how, if the goal of a legal aid organization\u2019s 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.\u00a0 And I concluded the last post by saying that buying and forgiving debts feels wrong somehow.<\/p>\n

Or maybe not wrong. Incomplete.<\/p>\n

And I think it is incomplete.\u00a0 But why?\u00a0 It has to be because we think that in providing legal services to debt collection defendants, we\u2019re doing something more than trying to kill a particular, alleged debt.\u00a0 But what is that something more?\u00a0 Remember, I want to measure things to see if they \u201cwork,\u201d so I have to know what to measure.<\/p>\n

Maybe, by defending against individual debt collection lawsuits, we\u2019re trying to change how the court system handles debt collection cases.\u00a0 OK, fine.\u00a0 But if that\u2019s what we\u2019re trying to do, we have to ask, \u201cDoes the strategy of representing individual defendants in debt collection cases have any real hope of success?\u201d\u00a0 Can legal aid lawyers represent enough debt collection defendants to put a dent in the way courts handle these cases?\u00a0 Maybe, maybe not. Perhaps more to the point:\u00a0 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\u2019t show up at all.\u00a0 There\u2019s little a litigator can do in an adversarial system when potential clients don\u2019t agree to be represented and don\u2019t show up to court.\u00a0 Unless we fundamentally restructure the adversarial system (quite a job), the court will do what it has to do when a defendant doesn\u2019t show, i.e.<\/em>, enter judgment for the plaintiff.\u00a0 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.<\/p>\n

Getting folks to court could mean letter writing campaigns.\u00a0 It might mean learning from junk mailing companies (who else studies how to induce people to open envelopes?).\u00a0 It might mean enlisting psychologists to tell us how to get people to take action.\u00a0 But wait, we might think.\u00a0 That\u2019s not law.\u00a0 You don\u2019t need law school for that.<\/p>\n

And it isn\u2019t law.<\/p>\n

But it might be what\u2019s needed to change the way courts handle debt collection cases, which was the point.\u00a0 Meanwhile, it\u2019s easy to think of ways to measure whether efforts to get defendants to contest debt collection cases are succeeding.<\/p>\n

Also, if what we\u2019re 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\u2019ll never have enough resources to represent them all?\u00a0 If changing the court system is the goal, aren\u2019t potential clients fungible?<\/p>\n

So, do we need to spend money on intake and screening procedures in this area?<\/p>\n

Maybe the point of providing debt collection litigation defense is to make clients feel better.\u00a0 Perhaps we think that represented litigants feel better than unrepresented litigants.\u00a0 That might be true, or it might not be.\u00a0 We can certainly measure it with satisfaction surveys.\u00a0 But before we do, we might ask, why do we care how litigants feel?\u00a0 I don\u2019t mean to sound callous, because I actually do care how litigants feel.<\/p>\n

But why?<\/p>\n

There are at least two reasons for why we care about how people feel about the legal system:\u00a0 (1) their happiness matters and (2) if too many people lose faith in the legal system, they\u2019ll start solving disputes with guns instead of lawsuits.<\/p>\n

Fine.<\/p>\n

But if the first one (increasing happiness) is what we\u2019re after, is litigation defense the best way, or even a good way, to increase people\u2019s happiness?\u00a0 Maybe it is, maybe it isn\u2019t, but we should find out.\u00a0 That means more surveys, but surveys that focus on happiness levels. \u00a0And if the second one (faith in the legal system) is what we\u2019re after, we need satisfaction surveys that are unlike anything I\u2019ve ever seen in regular use before.<\/p>\n

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.\u00a0 I actually believe that, too.<\/p>\n

But if what we\u2019re after is affirming dignity and educating judges, again, does it matter which potential clients we represent, when we can\u2019t represent them all?\u00a0 Even more fundamentally, should we care about whether legal aid makes defendants more likely to win cases?\u00a0 Or, for that matter, whether represented defendants win any cases at all?\u00a0 I don\u2019t 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\u2019t matter.\u00a0 So, if these are the primary goals, we shouldn\u2019t bother examining court files, or randomizing, or anything like that.<\/p>\n

I don\u2019t want to be Mr. Ollivander\u2019s tape measure.\u00a0 I want to measure something more useful than the length of the space between people\u2019s nostrils.\u00a0 So I have to get philosophical before I get statistical.<\/p>\n

And so today\u2019s message from your friendly neighborhood statistician is:\u00a0 let\u2019s get more philosophical.\u00a0 In a hurry.<\/p>\n","protected":false},"excerpt":{"rendered":"

By D. James Greiner In the previous post, I talked about how, if the goal of a legal aid organization\u2019s […]<\/p>\n","protected":false},"author":3,"featured_media":1651,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[105,171],"class_list":["post-1684","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-blog","tag-legal-services","tag-statistics"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/lpr\/wp-content\/uploads\/sites\/89\/2015\/03\/file000704919536.jpg","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-ra","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1684","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1684"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1684\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media\/1651"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1684"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1684"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1684"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}