“I don’t go to lawyers”
Professor Sara Sternberg Greene examines the inaction gap
While interviewing recipients of the Earned Income Tax Credit for her doctoral research in sociology, Professor Sara Sternberg Greene was surprised how many of her subjects had legal issues they were neglecting, even when free help was available. “Sometimes I would follow up and say, ‘Have you seen a lawyer?’ And it would always be, ‘No, no, I don’t go to lawyers,’” recalls Greene, an interdisciplinary scholar who joined the Duke Law faculty in August. Greene had encountered a similar dynamic several years prior as a student working in Yale Law School’s legal aid clinics. The clients often had to overcome a fear of the civil justice system before coming to the clinic for help to resolve a housing dispute or sue for benefits they were owed. “They were just very clearly very scared of lawyers and were there as an absolute last resort,” she says.
Many, many poor Americans, when they are experiencing civil justice problems, do nothing about them.— Professor Sara Sternberg Greene
Historically, access to justice scholarship has largely focused on the problem of too few lawyers serving the legal needs of too many low-income Americans. Studies show that legal aid agencies’ limited resources force them to turn away about half of all potential clients. But Greene has begun exploring a separate issue: why many who qualify for legal aid never seek it out. A 1994 study by the American Bar Association found that as many as three in four poor people fall into this category.
“Many, many poor Americans, when they are experiencing civil justice problems, do nothing about them,” she says. “It’s not a question of is there a lawyer available to them. It’s are they even going to contact a lawyer?”
Greene’s research, which is the subject of a forthcoming article, is one of the first attempts to understand this problem and why it is so prevalent, part of her larger scholarly agenda examining the relationship between law and inequality. Her experience working in legal aid clinics had shown her that legal problems that go unresolved often exacerbate the effects of poverty, an impression that was cemented as she completed a PhD in social policy and sociology at Harvard after practicing at a Boston law firm.
“There’s been research that shows that inaction perpetuates inequality and it’s not hard to figure out why that might be the case,” she says, giving as an example a mother who is evicted for complaining about code violations in her apartment and winds up in less adequate housing that causes her to lose her job or triggers action by a child-welfare agency. “There can often be this cascade where they have this civil justice problem and they don’t do anything about it and that leads to something else and it goes downhill from there.”
In 2007 and 2008, Greene and a research assistant conducted in-depth interviews with 97 residents of public housing in Cambridge, Mass. The questions focused on the residents’ experiences with civil justice issues and attitudes toward courts and lawyers. Almost immediately, she detected a pattern: Many interviewees confused or conflated the criminal and civil justice systems. They cited negative past experiences, such as a relative who received poor representation from a public defender, as a reason not to take a landlord or a spouse to court, even though doing so would involve different judges, different lawyers, and much lower stakes. Many took it as proof that it was pointless to pursue a legal claim if they couldn’t hire a high-priced lawyer, citing the 1995 acquittal of O.J. Simpson on charges of murdering his wife as proof that “money buys justice.”
“One woman thought that to get a divorce, she would have to talk to a public defender, or as she called them, a ‘public pretender,’” Greene says. “When they think about lawyers and court, it’s all bundled together. They think they might go in for a divorce and end up in jail.”
And it wasn’t just their experiences with the criminal justice system that discouraged them from taking action on a civil justice problem. Greene’s subjects recalled bad experiences with government agencies of all types, from administrative hearings to retain their public benefits to meetings with their child’s school principal, as leaving them feeling confused, fearful, or humiliated. If they could avoid that feeling again by ignoring their civil justice matters, they would.
“‘Worst day of my life,’” one woman said of a welfare hearing she attended, the memory of which would keep her from trying to resolve a civil legal problem, Greene writes in her draft article. “‘They were wrong. I’ll tell you that. I had all this documentation and papers and things with me, and no one cared.’”
Research has shown that experiences like those erode poor people’s trust in public institutions that exist to help them, particularly among racial minorities. Greene’s research found the same pattern: 75 percent of white respondents in her study said they trusted courts, compared to only 22 percent of the black subjects, a divide that is particularly noteworthy in light of the debate over racial disparity in the criminal justice system.
“What wasn’t before known in sociology is how much courts and the law are coupled into that institutional fear and that it’s not just that people don’t like welfare offices,” she says. “There isn’t a sense — particularly among African Americans — that because the law is focused on justice and there are actually these laws regulating it, things will go better.”
And this lack of trust in the civil justice system contributed to a third reason for inaction, what Greene calls a “narrative of self-sufficiency” on the part of many whom she interviewed. They perceived themselves to be the type of people who, faced with a problem, would take care of it themselves, not needing the assistance of lawyers and courts. They refused to be like “sue-happy” rich people who too often relied on others to resolve their issues, abusing the system.
Whether this is a genuine feeling, or a rationalization of the mistrust, fear, and helplessness that low-income Americans feel, Greene says it suggests simply increasing the supply of legal aid lawyers will not be enough to close the justice gap. Courts may need to provide many more opportunities for self-help or the resolution of issues outside of the courthouse. Legal help may need to be offered from within more institutions that are “safe,” such as churches, community centers, or doctors’ offices. Legal aid organizations may need to shift resources to increase their outreach to the poor.
“If people or their friends or family members have had some sort of positive experience with a lawyer, they are more likely to go to one,” Greene says. Christopher Winship, the Diker-Tishman Professor of Sociology at Harvard, says Greene is one of a small number of researchers studying the connection between these issues and poverty.
“Sociologists have studied the criminal justice system and its impact on inequality and the poor,” he says. “With the exception of employment and other related forms of discrimination, little to no attention has been paid the impact of the civil justice system. This is most surprising given that bankruptcy, foreclosures, and evictions, to name just a few, are clearly important in the lives of the poor. There are decades worth of research to be done here.”
Indeed, Greene hopes that her research will spur wider, national studies of inaction on civil justice issues and lead to greater attention to this dimension of the justice gap and not just the scarcity of available lawyers. She also hopes to extend her research into specific areas of civil law where the contours may be very different, such as bankruptcy and family law.
“There is much more research to be done,” Greene says. “The people who do not seek help are some of the hardest to find and sample, but they may be some of the neediest — the most isolated and the most powerless. We need to learn much more about them, and this is just a start.”