poor, unloved chucks / danielle_blue

December 16, 2016; ABA Journal

Lost in the busyness of the holidays and the anxious anticipation surrounding the incoming administration in D.C., many housing journalists failed to notice an important study of court navigators working in the New York City Housing Courts. While there was coverage of the study in New York City, the program and the study have implications far beyond Gotham. The two big takeaways from the study are that volunteer and non-legal professionals can be helpful to unrepresented tenants in housing court and that the bar and the courts (bastions of professional protections) seem ready to support this innovation.

Researchers Rebecca L. Sandefur of the American Bar Foundation and Thomas M. Clarke of the National Center for State Courts looked at how court navigators are deployed in three different pilot programs in the New York City court system. What all court navigators have in common is that they are trained and supervised individuals with no prior formal legal training. Navigators provide one-on-one assistance to unrepresented litigants in the City’s Housing and Consumer Courts: “Navigators provide information, assist litigants in accessing and completing court-required simplified forms, attend settlement negotiations and accompany unrepresented litigants into the courtroom.” The Public Welfare Foundation provided the funding for this study.

Here’s what the researchers found.

  1. People without formal legal training can provide meaningful assistance and services to litigants who are not represented by a lawyer.
  2. Navigator services can impact several kinds of outcomes including litigants’ understanding of court processes, empowering them to present their side of the case, and providing more relevant information to the judicial decision-maker.
  3. The actual tasks that navigators perform, and thus their impact, are influenced by the philosophy of the court and attitudes of staff and judges.
  4. Plain language, standardized legal forms can improve legal outcomes. Expanded use of software programs (what in New York are called “DIY” programs) can help litigants prepare legal documents such as answers and counterclaims.

Three different pilot programs were studied. Access to Justice is a program that is operated by the court system. Housing Court Answers and University Settlement are navigator programs operated by private nonprofit organizations. Each pilot program has slightly different goals and methods. Access to Justice and Housing Court Answers rely on non-legal volunteers who work “for the day” to assist unrepresented tenant defendants. University Settlement’s program assigns a trained caseworker to each defendant “for the duration” and that caseworker provides home stabilization services beyond the scope of the Court Navigator job descriptions. Law students, college undergraduates and “and other persons deemed appropriate” are eligible to be court navigator volunteers.

While not explicitly endorsing the findings of the study, the ABA Journal acknowledged the representation gap that exists between tenants and landlords in the NYC civil justice system.

The Navigators were set up to help deal with access-to-justice issues in New York City Housing and Civil Courts, where nearly 90 percent of litigants facing eviction go pro se while the vast majority of their landlords have attorneys.

The problem of the imbalance in representations has been an issue covered by NPQ in earlier articles. In his landmark study Evicted, Matthew Desmond identifies universal representation as one of two key recommendations to stop the downward spiral of millions of households that begins in eviction court.

What’s missing from this study of court navigators? The report is short on measurements of substantive outcomes (e.g., percentage of households not evicted as a result of intervention), focusing instead on process outcomes like “households which had their statements taken seriously.” The study authors acknowledge that future studies will require more rigorous evaluation of costs versus benefits: “Potential downsides of a standardized approach are likely to be outweighed by the benefits of being able to compare different innovations on their appropriateness, efficacy and sustainability.” A helpful evaluation that needs to be made would compare navigator services with real legal representation to see which is most cost effective. Hard data is required instead of feel-good outcomes like “substantial savings to society as well as reductions in hardship.”

Throughout the study report, the authors repeatedly note the need for judges and court staff to view navigators as an asset to the court. That may be a hard sell if the presence of navigators bogs down the docket with more hearings, paperwork, and contention. Appealing to professional ethics as justification for expanding the navigator programs won’t be sufficient to convince underfunded, understaffed court administrators to expand the navigator programs. Court officials will need to see direct benefits to their operations.

Despite the preliminary nature of the study, advocates may want to use the court navigator study to begin discussions among local bar and court officials. Legal service programs and nonprofit organizations that provide relocation assistance or rental rights advocacy could become thought-leaders by bringing these findings to the attention of local courts and bar associations. The month of May is when bar associations hold public events around legal justice issues. Prodding local bar associations to take up the findings of this study could expand the Law Day discussions through a broader community of practitioners and jurists. This year’s Law Day will focus on the 14th amendment. The Fourteenth Amendment with its guarantee of “due process” is a perfect fit with the navigator programs. The right of representation in criminal matters established by the Supreme Court decision in Gideon v. Wainwright rests on the rights in the Constitution’s 6th and 14th amendments. The use of court navigators just nudges that principle a skosh to address the need for some civil representation.—Spencer Wells