Statistics and Law: The Unique Combination Providing Insights Into Barriers to Legal Participation

Dr. Jim Greiner is the Honorable S. William Green Professor of Public Law at Harvard Law School. Griener is also the faculty director of the Access to Justice Lab, which focuses its research on which societal barriers stand in the way of effective legal participation. This interview focuses on exploring the work of Professor Greiner with the Access to Justice Lab, diving into the reasons that so many families in the United States have restricted access to the legal system. Furthermore, Greiner discusses the main ways in which the legal system can adapt to provide increased access to justice.

The interview below was conducted in Spring 2023 and has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): Hi there, I’m Unnati, a writer for The HULR. We are the undergraduate organization on campus for students who are interested in law, and we are really excited to have you today. I was hoping you could start by telling us a little bit about what your background is, what you teach at HLS, and some of your areas of interest in law.

Professor Jim Greiner (JG): Sure, so my background is as a practicing lawyer first and foremost. I graduated from law school and I did what many graduates do — go to clerk for a year for a federal judge. This means that I just helped the judge write opinions to administer the court. Then, I practiced for three years for the Department of Justice and then three years for a private law firm before I went and got a PhD in statistics. The reason for the PhD was because I was encountering problems in my practice that I thought were very interesting and that I thought that quantitative empirical methods could shed light on those problems. Many of the problems relate to access to justice, and for a while many of them also related to anti-discrimination law. I got more and more interested in access to justice, which for me means both the civil side of our justice system (civil law refers to things like eviction, family law, divorce and restraining orders, debt collection, and government benefits), and also criminal law matters. I think many of the access to justice problems that are classified as access to justice, on the civil side, are also on the criminal side in the sense that it's just the interaction between a person who can't afford to hire a lawyer and the formal court system. And so for me, there's not much of a division between civil and criminal.

I'm interested in how human beings that can't afford to hire lawyers interact with the formal legal system, the court system, and administrative agencies, and how we could make that experience less awful than it is right now. It is pretty awful and many people avoid trying to remedy their legal problems with it because of how awful it is. They try virtually any other mechanism to resolve the problem before they turn to the formal legal system. So that's what I investigate. I primarily use quantitative methods, especially randomized control trials. This is the same kind that you would do to figure out whether a new drug or medical device works, meaning you figure out what your current practice is, you figure out what your new practice would be, and you randomly assign cases to one or the other. Then you follow everybody over time to see which condition is better. I use [randomized control trials] for criminal justice things like bail risk assessment instruments, record clearing, which people also call expungement, or clean slate, as well as civil things like how much of a difference a lawyer makes, mediation programs, dispute resolution, etc.

In terms of what I teach? It turns out that at a law school like Harvard, not all that many professors have either practiced law at all or for any significant period of time, or seen the inside of courtrooms on a regular basis. I have done both of those things. And so, I teach the rules that you use in civil litigation in court, which gets called civil procedure. And that's my primary primary area of teaching.

HULR: Awesome. I think that's a perfect transition into the Access to Justice lab. What seems to be very unique about the lab is the role that randomized control trials play, which is something I don't think we see in a lot of literature surrounding this topic right now. Could you talk more specifically about what the end goal of the Access to Justice lab is?

JG: What we do is we implement randomized control trials. We do that for more specific reasons and a more general reason. The more specific reason is that we want to generate knowledge about what works in different ways. Often, it's hard to say whether something like eliminating bail for low level crimes will “work” because the judgment about whether it works depends on value trade offs. So, take eliminating bail as an example for low level crimes. How much failure to appear, are you willing to tolerate, because perhaps, eliminating bail and thus reducing the amount of predisposition incarceration in a criminal justice system will reduce a certain amount of failure to appear? It also costs a lot of money and may impose a lot of human misery, but it also may reduce — temporarily at least — a certain amount of crime. So this involves trade offs. What we try to do is generate strong, credible, empirical evidence about what those trade offs are. How much human misery, how many split up families, how many lost jobs, what kind of lost income, how much of a hit you've taken in public health, etc. versus how much crime reduction, how much failure to appear, etc, so the policymakers can make more empirically informed choices.

The big picture reason for the lab is that we want to transform the field of law from its current state. We want to transition into an evidence based field. What I mean by an ‘evidence based field’ is a field that looks with suspicion and caution on the conclusions of the experience-based conclusions of experts. Experts, like legal practitioners and judges, who say this is what I see every day, and therefore I know it's true. Instead, the field could rely at least somewhat on scientifically generated evidence, especially from randomized control trials. I continue to believe that the legal system, perhaps the United States legal system, is uniquely hostile to evidence based thinking. [Instead], we privilege the role of lawyers and the statements of lawyers and we don't interrogate those statements. We don't think the way many other fields do, despite the fact that we have hundreds and hundreds of examples of places where those field experts were catastrophically wrong. And therefore, we should scientifically investigate their conclusions. [But right now], we don't do that at all. And I'd like to begin. That's sort of the big picture purpose: to try to persuade them; to try to see if we can bring the legal system kind of kicking and screaming into the 20th century. We'll worry about the 21st later, but we'll try for the 20th century right now.

HULR: That’s really interesting. Getting more into the specifics, what are some of the current projects your lab is working on? Are there multiple going at once? Is there one primary project happening right now?

JG: At any given time, there are a dozen or so going on. Maybe more depending on what size they are. So some of our larger projects, for example, are the investigation into whether criminal justice record querying, sometimes known as expungement, does what advocates for it say that it does. They say that it increases folks’ ability to get jobs or housing, and it reduces recidivism or crime. And the reason for that theory is that if you have a criminal record that an employer checks, you don't get a job. Or, if you have a criminal record and a prospective landlord checks it, you don't get the apartment that you want. Perhaps because of those things, or maybe independently, you're more likely to commit crime. And so we want to investigate whether that's true. And if it's not true, try to figure out why. We can't sit in a judge's chambers and say to a judge, well, here's 50 petitions for expungement, all of which meet the requirements of law. Randomly allocate 25 to get the expungement and 25 not. The judge can't do that. The judge is legally obligated to grant expungement to all 50 if they meet the requirements. What we do instead is, in some kind of crass sense, scientifically take advantage of the fact that it's extremely difficult to get expungements and there is a real scarcity of legal aid resources that help people get expungements. Meaning, very few people who approached legal aid organizations get legal aid help. And so we found a very strong study partner and a legal aid organization that had a practice of helping people get an expungement. We and the legal aid organization let the community know that it was going to be helping in this area and people could come. Sure enough, more people came asking for help than the legal aid organization could provide. And so, we randomly allocated some to get full traditional attorney client representation for their expungements and some to get self help materials that we helped construct. Everybody got more than they would have gotten had there been no study, but some got a full attorney client relationship and some got self help materials. Sure enough, people who got full representation succeeded in getting expungements at around 75% or so. And people who got self help materials succeeded in getting expungements at a rate of about 12% or so. By randomizing the legal aid, we effectively randomize the expungement, right? And then we can follow people over time and see whether the circumstances improve with surveys and with administrative records. So that's one example.

We have a similarly structured study right now going on in criminal justice risk assessment instruments, which are quantitative scoring systems that purport to classify people by the risk that they will fail to appear, be arrested for [committing a] new crime, or be arrested for new violent crime if you release them. People are arrested, then they go for a bail hearing. The question is, how much bail is going to be imposed? Or is the judge going to let the person go without requiring them to pay bail? The judge may receive a risk assessment instrument to help them to make that decision. What we do is we randomize whether the judge receives the risk assessment instrument or doesn't, and then we follow everybody over time and see which ones result in more or less failure to appear, criminal activity, and more.

On the civil side, we have studies into how much of a difference full representation versus self help materials makes in debt collection and bankruptcy. We also have our studies into whether self help materials of a certain type versus no self help materials of a certain type make a difference in civil guardianship proceedings (guardianship is what you use when you know a particular adult becomes incapacitated and unable to make their own decisions, and you also appoint a guardian to a child who, by definition is unable to make their own decisions).

So, those are just some examples of things. But again, there are typically somewhere between a dozen and 15 active studies going on and then four or five other ones in planning.

HULR: There seems to be a common theme in a lot of these studies of the difference between full representation and self help, which more broadly highlights the role of access to attorneys and good representation. Throughout your time studying this topic, why do you think access to representation has become such a prominent issue in the United States? Do you think this is a problem unique to the United States? Or is it something you're seeing across the world? And if it is unique, what factors in our legal system do you think have led us to have such a prominent issue?

JG: It's a good question, whether it's unique to the United States or especially bad in the United States. I'm just not qualified to answer that. My research is entirely within the United States, so I can't really speak to how much worse or better it is elsewhere. I do know though, that United States law is both procedurally and substantively enormously complex. And in my view, irrationally complex. In other words, the complexity in many cases serves no purpose at all, or at least in my view, serves a purpose that is not worth the cost of the complexity. We have a highly developed economy; our socioeconomic structure moves very fast. As a result, people have the capacity to inflict harm on each other very quickly. We have large, powerful entities in our economy that have the power to inflict harm on a great many people very fast. For example, say when Wells Fargo created hundreds of thousands of fake bank accounts. It wasn't very hard for it to do that, right? It just used its ability to create bank accounts and it created a lot of fake bank accounts. Or, another example is that we have a very active landlord tenant market in the United States with lots of people moving and we'd like the ability to move in and out. But what that means is we have lots of eviction issues, where people either can't pay rent or don't pay rent, or landlords abuse their positions and extort people out of things. So, we have a lot of legal issues, yet we are not willing as a society to fund the kind of enormous public investment that would be necessary to provide lawyers for all of these legal issues. In my view, we shouldn't have to make this investment though, because one of the major reasons why people become lawyers is because the legal system is unnecessarily complicated. If you simplify the court system, people might be able to get through it on their own in a much better way. And so, it’s a little bit rich for me when I hear judges talking about how we need more lawyers in the court system in order to help people that can't afford to hire them. To me, that's basically saying, “how are lawyers going to solve a problem that I created? I'm the judge and I administer a legal system and I could simplify it but that'd be too hard. So I'll just scream at the world for not providing enough lawyers.” Meanwhile, the lawyers, typically when representing clients, ask the court system for more complexity. They ask for distinctions among cases that are good for their clients and that's sort of their job. But at the same time, each time you create a distinction, you make it more complex. Again, I can't tell how much of that is unique to the United States or how much of that is just, you know, law in society. In general, we have a very complex legal system and the result is a very complex and fascinating society.

HULR: That makes sense. What do you see to be the most immediate practical change that could be implemented to try to solve this issue of lack of access? Trying to make the law less complex seems abstract, in a sense. Are there ways that you've seen this practically implemented?

JG: Yeah, I mean, I'd say two things. I'd like to be able to give better suggestions, but we don't have the empirical evidence for them. And that's exactly why the lab exists; to try to generate evidence. My hunch is, number one, remove certain types of things entirely from the formal legal system; there's just a lot of stuff that has no business being in court at all. To give you an example of this, there is precisely one contract that we have that people enter into that they cannot on their own, dispense with the contract. Even if they both agree that they will not have this contract anymore, we force them to sue each other in order to get rid of that contract. And that's called marriage. The resulting legal proceeding is a divorce. That's silly. To me, you're not serving any purpose by making it procedurally complex to get a divorce. Now, there are certain people who will say that people shouldn't be able to get divorces because you know, I'm pro marriage and I'm pro family. But even if you believe that, procedural complexity in the court system is not the way to achieve that aim, right? And so, that's one example of [where we need] to get certain types of things out of the court system entirely.

A second thing I would say is, think about whether certain types of procedural forms and steps along the way to resolution of the dispute are really necessary. There are certain types of lawsuits where you have to fill out a very complicated form to initiate a lawsuit — maybe simplify those forms. In certain types of lawsuits, if you get sued, you have to fill out an unnecessarily complicated form in order to respond to the lawsuit. Think about whether you need that at all. Then, when you get to the court system, think about whether you need to have the judge pretend to sit in an allegedly disinterested way, supposedly neutral and just listen passively, to the evidence that parties provide. Whereas in many legal systems around the world, a judge goes and finds the evidence, or asks the parties questions. Those are my suspicions of what would help. I don't think they would be silver bullets to solve all the problems, but they would be helpful.

HULR: I am also curious about viewing this issue from another perspective — one of someone who is looking to get access to help and may not have the resources to do so. I think the common notion is that the primary barrier to legal representation is always cost. Is that something that you've seen to be true? Are there other things that you believe are greater barriers that we may not be realizing?

JG: I don’t know about “greater” barriers, but there's a spectacular piece of scholarship that hardly anybody in the field knows about, and it's called the importance of doing nothing. And it turns out for the overwhelming majority of people who have a problem that the civil legal system purports to provide a solution for, do nothing. They don't do anything to resolve the problem. And the last thing they do is they go to the court system. So, the first thing you might want to think about is, how do you persuade people that the court system should be a means of resolution? And, you know, certain people will say, wait a minute, Greiner. You're really saying we need more lawsuits? Well, kinda, yeah, in some circumstances. We do need more lawsuits, because peoples’ lives are less fulfilling and more miserable than they would be if the court system were an effective way for them to go.

In addition, other barriers include things like how do you find help if you want certain kinds of help? If you recognize that something is a legal problem, where do you go to get help? And one of the issues is underfunding of civil legal aid systems generally. We see that the civil legal aid providers retreat to their offices so there’s a screening process that people have to work their way through in order to get to talk to a legal or a lawyer or a paralegal. You have to have a fair amount of social capital and knowledge of the way the world works and you have to have a lot of stamina to get through. Maybe in some cases, we've documented four separate interviews before you talk to somebody that's going to actually help. It’s not like on the first phone call somebody is available. There's a reason why legal aid organizations do that— because they're understaffed. Some people will call them and they'll say, I have a summary eviction problem, and the answer is we don't have a housing practice. On the other hand,say this place does do family law. If you do have a family with an issue, they’ll have a first interview that will determine all kinds of eligibility criteria — like how much money they make. And then you have a secondary interview that says, well, now tell me the nature of your problem. Then you have a third interview that says, well, now here are the things that I can do for you, for you to start to solve that problem. And then the fourth interview comes in and you sign the retainer agreement. And only then does somebody actually begin to take action. And again, I can see why they're doing it because they're trying to triage the resources of bringing the lawyer in for stuff that only the lawyer can do. But in the meantime, it's exhausting. Right? For somebody to go through all of that they have to speak English well. And, you may have to go through multiple legal aid organizations to get to the right one. These are in some sense, all funding issues. As a result of specialization, I think there's a lot more to it than just, “I can't afford to hire a lawyer.” One of the things that folks who are opposed to legal aid point out, which I think is true, is that if you give people money, they rarely spend it on hiring lawyers to solve their legal problems. They have other priorities first. In that sense, you know, lack of money is not a problem, rather, it is that the legal system is just so unpleasant.

HULR: That is fascinating. I never thought that we would need to convince people that the legal system is the right way to go before even considering things like cost or the access to lawyers.

JG: And again, I think a legal system wants to present itself as a way of solving problems. I do know enough about the world to be able to look around the world and see what happens when a population loses faith in the rule of law. They no longer use law as a method of dispute resolution. The legal system probably needs to be the way to resolve disputes, and it needs its judgments. Its resolutions to disputes need to stick even for people who think those resolutions are wrong. Or if I lose a case, I still have to be willing to abide by the decision even if I think that decision is wrong. And that's a real trick for a legal system to pull off because it requires faith in an overall fairness of the legal system and in the structure of government that sits behind it.

HULR: So, for students who want to get involved in the type of work you guys are doing at the lab, or similar initiatives, what is the best way you recommend getting involved?

JG: Absolutely. Students can be involved in the lab, which is again, a particular angle — it's not just empirical studies — it's field research, specifically randomized trials. This sort of scientifically based thinking is not for everybody because among other things, that means that we don't do any advocacy. We don't go out and advocate among policymakers for change. We hardly ever express our opinions on issues because if we do, we think people would question our credibility when we're investigating something. So for people that want to take this sort of strictly scientific approach, trying to stay as neutral as you can on policy issues and just give information, it's easy. You just email me and at any given point, I have lots and lots of students doing work, and getting introduced to the lab, and sort of seeing what it does.

HULR: It’s very encouraging to hear that there are multiple different avenues for approaching law research. I think similar to what you were saying, it's very interesting to hear how there are other types of research being done which seem to be becoming more influential and pushing forth a much more scientific approach to this field of study. Well, with that, I really appreciate your time this afternoon, thank you for these amazing insights!