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Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016), available at SSRN.

The sociologist Rebecca Sandefur estimates that a staggering one in three members of the population experiences a civil justice problem every year. Recent reports consistently pronounce that a glut of newly minted lawyers is crowding an oversaturated market. Yet low- and moderate-income Americans are far more likely than not to attempt to protect important rights to housing, custody, financial security, and physical safety without the benefit of attorney assistance. A conservative estimate puts the number of unrepresented parties in the civil justice system at twelve or thirteen million. Gillian Hadfield and James Heine suggest that the inaccessibility of legal services leads nearly forty percent of Americans to “lump” their civil justice problems, or do nothing to solve them.

In light of these distressing statistics, two hot topics in access to justice have emerged in recent years. In one camp are those who promote the need for a right to counsel—a “civil Gideon”—in a broader range of civil cases. In a second camp are those who propose innovative models for the distribution of scarce attorney resources, including the delivery of “unbundled,” or brief, services in lieu of full representation, as well as the licensing of non-attorneys to handle routine legal matters.

One complication in evaluating the various proposals to increase access to legal services is that we lack the robust empirical data necessary to determine whether, and in what forms, attorney representation makes a difference. And that is where Colleen Shanahan, Anna Carpenter, and Alyx Mark’s outstanding article comes in.

While several previous studies have examined the binary question of whether the provision of attorney assistance impacts outcomes, these authors take the analysis further. Reviewing 1800 unemployment insurance cases in an independent and professionalized administrative court, they examine not just whether representation correlates to improved case outcomes, but also the significantly more complex question of how and why representation matters.

Relying on their significant data set, the authors find that representation is positively correlated with favorable outcomes. This finding is intuitively sound and corroborates much of the extant literature on attorney impact but, on its own, is more confirmatory than revelatory. The authors go further, however, exploring various aspects of attorney and lay representation that might account for improved outcomes. They unpack the case and litigant characteristics associated with a range of outcomes and suggest that two primary factors may influence whether representation makes a difference: balance of power between the parties and strategic expertise.

In the authors’ data set, the balance of power influenced how much benefit the parties derived from representation. When the parties lacked other types of power, representation produced the most significant effect on outcomes. For instance, represented claimants were awarded unemployment benefits at three times the rate of their unrepresented counterparts. By contrast, represented employers did not have a statistically significant advantage over unrepresented employers. The authors attribute this difference in representation outcomes to the social and economic power that claimants lack and employers enjoy. Their finding lends empirical heft to Marc Galanter’s theory that the “haves” often outperform the “have nots” in the legal system—even in the absence of representation—because of the knowledge and social power they bring to their legal matters.

The authors also develop the concept of “strategic expertise” and contend that it plays a role in effective representation. They define this as a representative’s ability to “connect formal training with situational understanding.” And they show that it is not simply representation that matters, but also how that representation is deployed. For example, attorneys are more likely to utilize procedural entitlements, such as witness disclosure and document production. And while we might expect this to correlate to more favorable outcomes, it does not always do so. Indeed, in a fascinating illustration of their theory of strategic expertise, the authors show that attorneys who presented evidence on behalf of a claimant fared less favorably than those who withheld documents and instructed their clients to remain silent. While it is common in a criminal trial for a defendant to refrain from testifying, the decision to withhold party evidence in a civil case—especially one held in an informal administrative tribunal—is not a matter of conventional wisdom. This is where strategic expertise comes into play. The attorney must take into account the claimant’s burden of proof, the signaling effect that introduction of evidence may have on the judge’s perception of relative case strengths, and the potential for backlash against zealous representation in a tribunal where the vast majority of claimants are unrepresented.

In tackling the question of why and how representation matters, the authors also uncover important data regarding the impact of assistance that falls short of full representation. In a surprising finding, they note that a substantial percentage of “represented” employers did not have representation at the administrative hearing itself. Presumably, this type of representation resembles the model of “unbundled” assistance, in which the representative offers advice or document preparation, but not the full panoply of attorney services. The authors demonstrate that such behind-the-scenes representation may not translate to favorable case outcomes. According to their data, employers nearly tripled their prospects of winning when they had full representation at the hearing. This suggests that “unbundled” services, a hotly debated proposal for improving access to justice, may deprive parties of the strategic expertise that traditional attorney assistance brings to the table.

Shanahan, Carpenter, and Mark’s data offer considerable opportunity for future analysis, and I most look forward to a fine-grained evaluation of the comparative advantages of attorney and non-attorney assistance. This study analyzed “representation” wholesale, although thirty-eight percent of represented employers were assisted by professional lay advocates, not lawyers. The authors promise to address the distinction in their next article, using a much larger data set and qualitative interviews. This new data may provide important clues as to when and how non-lawyers may be able to bring strategic expertise to the table and impact the balance of power. And it comes as Washington State pilots a controversial program to certify Limited License Legal Technicians to represent clients in certain circumstances.

Shanahan, Carpenter, and Mark’s article offers a window into the potential of evidence-based research on questions of access to justice. We are in an age of innovation with respect to the delivery of legal services to low- and moderate-income individuals. Full attorney representation is a rare luxury that few can access. To design effective and alternative models of service delivery, it is essential to understand the particular aspects of representation that are most critical to a case. This article effectively combines Shanahan and Carpenter’s firsthand experience in litigating unemployment insurance cases as clinical professors with Mark’s social science expertise. The authors should be applauded for advancing our understanding of representation in context and for producing excellent access-to-justice scholarship that is both theory-proving and theory-generating.

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Cite as: Jessica Steinberg, How and Why Representation Matters, JOTWELL (August 17, 2016) (reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016), available at SSRN),