GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2011

Status

Accepted

Abstract

In the United States today, an estimated eighty percent of the legal needs of the poor go unmet. The Supreme Court has repeatedly identified access to the courts as a fundamental constitutional right, but a lack of affordable legal counsel has shattered the promise of this right for low-income individuals. There is widespread consensus that this “justice gap” between rich and poor litigants threatens the credibility of the justice system, undermines public confidence in the law, and distorts the accuracy of judicial decision-making.

The provision of “unbundled” legal aid has been this decade’s response to the severe shortage of lawyers available to represent poor litigants. Hailed as an innovation in the delivery of legal services, “unbundling” is a piecemeal lawyering model in which a lawyer provides assistance with a discrete legal task only and does not perform the full range of services expected from traditional legal representation. Many courts, government agencies, and lawyers for the poor have championed unbundling as a solution to the chronic under-enforcement of rights faced by those who cannot afford counsel. This support is based on a belief that granting some legal aid to a broad swath of the indigent population will create greater access to justice than a model that provides full representation to a small fraction of low-income litigants and zero representation to the remainder.

Despite proliferation of unbundled legal services programs across the nation, the threshold question of the efficacy of unbundled legal aid has not been the focus of significant attention by scholars and practitioners. Very little is known about how unbundled aid affects clients and cases, and whether it advances justice - however one might define it - for low-income litigants. This paper reports on the results of an empirical study designed and implemented to test the impact of two specific forms of unbundled legal aid on the case outcomes of indigent litigants. The study tracks outcomes for nearly 100 tenants facing eviction in a single California trial court, all of whom received “unbundled” help drafting a responsive pleading, and half of whom also received one-time assistance negotiating with their landlords at pre-trial settlement conferences. Case results achieved by the tenants who received unbundled legal aid are compared to more than 300 tenants who received no legal assistance at all and to twenty tenants who received full representation. As measured by substantive case outcomes, the study concludes that the success of this particular unbundled legal services program was quite limited. Although the study design did not include a randomization scheme, with the result that the impact of the delivery model was more difficult to isolate and measure, the findings nonetheless suggest that the unbundled service model might not provide benefit to all assisted clients in all circumstances, as has been presumed, and make clear the need for rigorous evaluation of the model if we aim to understand where - if at all - rendering less than the “full bundle” of assistance can maximize favorable outcomes for indigent litigants. The paper concludes by discussing the limitations of the study, identifying future research needs, and, in light of the findings, proposing potential models for assisting the rising tide of pro se litigants struggling to advance their cases without lawyer representation. The data culled from this study provide additional insight into whether the provision of unbundled aid supports the development of a more effective system of distributive justice that uncouples financial status from the ability to protect one's basic rights.

GW Paper Series

GWU Legal Studies Research Paper No. 594; GWU Law School Public Law Research Paper No. 594

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