Skip to content

D. James Greiner, Cassandra W. Pattanayak & Jonathan P. Hennessy, The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future 126 Harv. L. Rev. 903 (2013).

Abstract: We persuaded entities conducting two civil Gideon pilot programs to randomize which potential clients would receive offers of traditional attorney-client relationships from professional service provider staff attorneys and which would receive only limited (“unbundled”) assistance. In both pilot programs potential clients were defendants in housing eviction proceedings, and both programs were oversubscribed. In this Article, we report the results of one of these two resulting randomized control trials, which we label the “District Court Study,” after the type of the court in which it took place. In the District Court Study, almost all study-eligible eviction defendants received limited assistance in the form of help in filling out answer and discovery request forms, and most also attended an instructional session on the summary eviction process. After receiving this limited assistance, each member of a randomly selected treated group received an offer of a traditional attorney-client relationship from one of the legal services provider’s staff attorneys; each member of the corresponding randomly selected control group received no such offer. We compare outcomes for the treated (offered traditional representation from a service provider staff attorney) group versus the control (no such offer) group on a variety of dimensions, focusing primarily on possession of the unit, financial consequences of the litigation, and measures of court burden. At least for the clientele involved in this District Court Study, a clientele recruited and chosen by the service provider’s proactive, timely, specific, and selective outreach and intake system, an offer of full representation mattered. Approximately two thirds of defendants in the treated group, versus about one-third of defendants in the control group, retained possession of their units at the end of litigation. Using a highly conservative proxy for financial consequences, treated group defendants received payments or rent waivers worth a net of 9.4 months of rent per case, versus 1.9 months of rent per case in the control group. Both results were statistically significant. Meanwhile, although treated cases did take longer to reach judgment, the offer of representation caused no increase in court burden as measured by other, more salient metrics. Our results are interesting on a different dimension. A fundamental assumption of the adversary system is that the “right” answer will emerge from a process of contested facts and law in which both parties are represented by competent counsel. In our treated group, 86% of plaintiffs and 97% of defendants were represented. Under the aforementioned assumption, then, the outcomes in our treated group are a strong proxy for the “right” results in summary eviction cases, at least with respect to the class of potential clients involved in the study. The disparity in outcomes between our treated and control groups suggests that, with respect to the clientele in this study, the District Court summary eviction process did not produce the right results for control group defendants. This was true even though control group defendants received substantial (but limited) legal assistance, and even though the adjudicatory process included certain measures designed to promote access to justice, such as mediation and some judge-initiated questioning. Thus, the adjudicatory system did not provide full access to justice despite the best efforts of personnel within it. We discuss possible reasons for the magnitude of the differences between our treated and control groups. In particular, we highlight that our randomized design allows gold-standard inferences about how much an offer of full representation matters for potential clients who had already received substantial legal assistance. But we also highlight that our results may suggest that isolating a set of clients for whom limited representation is inadequate may require service provider investment in a proactive, timely, specific, and selective outreach and intake system. For these and other reasons, we caution against either overinterpretation and underinterpretation of this study. After reporting the results of the District Court Study, we offer thoughts as to the future of the study of the limited legal assistance programs and of legal services programs in general.