How do lawyers matter? Study explores the question for low-income litigants

For every 6,415 people in the United States who qualify for legal aid (income at or below 125 percent of the poverty line), there is one legal aid attorney, leaving about three-quarters of low-income civil litigants in the United States unrepresented and creating an increasingly prevalent situation that some call a “justice gap.”

A study at the University of Wisconsin–Madison that was recently awarded a two-year $300,000 grant by the National Science Foundation is exploring questions confronting the legal profession in its effort to improve access to justice for low-income unrepresented civil litigants.

The new study, undertaken by Tonya Brito, professor of law at the University of Wisconsin–Madison, and David Pate, associate professor in the Helen Bader School of Social Welfare at the University of Wisconsin-Milwaukee, both of whom are affiliates of the Institute for Research on Poverty (IRP), is in the third and final stage of an ongoing qualitative research project that examines and compares how attorney representation and more limited forms of legal assistance shape legal access for low-income civil litigants.

The study is especially timely as the recent recession hit indigent people hard, multiplying the civil problems they tend to face, such as home foreclosures, evictions, social security disputes and nonpayment of child support. The investigators focus on nonpayment of child support and their new study is informed in part by decades of research on child support conducted by IRP researchers, including Brito and Pate.

Civil incarceration is commonly used as a remedy to enforce child support orders against indigent noncustodial parents, many of whom lack attorney representation.

“During focus groups in the earlier stages of the study, child support attorneys confirmed that some low-income noncustodial parents experience a revolving prison door for indigent noncustodial fathers,” Pate says.

“Child support enforcement proceedings offer an interesting and complex setting for exploring contrasting legal assistance models,” Brito says. “The proceedings are often cyclical; obligors experience multiple enforcement hearings for the same child support debt.”

Michael Turner of South Carolina, for example, is a low-income father who has been civilly incarcerated on six separate occasions for the same unpaid child support debt. When he was sentenced to 12 months in jail for willful failure to pay child support, Turner appealed, asserting a constitutional right to counsel.

The Supreme Court, in Turner v. Rogers, held that the Due Process Clause does not require appointed counsel in child support enforcement proceedings. The court held that states must, at a minimum, provide unrepresented litigants with “substitute procedural safeguards” (an array of legal assistance measures falling short of full representation) to ensure that the litigants have meaningful access to the courts. In the court’s view, the safeguards would significantly reduce the risk of erroneous civil incarceration.

Scholars have criticized the Turner ruling because it lacks an empirical base. Access to justice proponents disagree regarding whether attorney representation is essential or whether more limited legal assistance interventions that empower self-representation suffice in cases such as that of Michael Turner.

Brito and Pate’s NSF study will help inform these questions. Brito is a legal scholar with significant expertise in the civil justice system generally and, more specifically, family court processes. As a graduate of Harvard Law School, Brito is trained in legal research and analysis methodologies.

Study co-investigator Pate brings a cross-disciplinary perspective and training to this project. Pate graduated from the UW–Madison School of Social Work with a doctorate in social welfare policy. As a race scholar, Pate brings an analytical perspective sensitive to the intersections between race, gender and class.

“This project exemplifies the real-world application of the work of Institute for Research on Poverty researchers and faculty affiliates here at the UW and across the country,” says IRP Director Lawrence Berger. “Professors Brito and Pate’s examination of how various legal assistance delivery models shape access to justice for low-income civil litigants will provide the empirical base necessary for creating evidence-based policy and intervention.”

An earlier stage of the Brito-Pate project was supported with seed funding from the Institute for Research on Poverty, made possible in part by a grant from the U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, which was awarded by the Substance Abuse and Mental Health Services Administration.

—Deborah Johnson