Friday, November 27, 2009

SWAGging Pro Bono: The Ten-Percent Solution

A biologist for whom I wrote some FORTRAN code, way back in my undergraduate Work-Study years, told me what we had to do when we didn't have some key bit of data.
"Just SWAG it for now," he said, "As long as we state our assumptions, we can get some work done right away, and that'll tell us where we have holes to fill in."

What does SWAG mean? I asked.

"Scientific Wild-Assed Guess".
The really interesting problems in life are those where you don't start with all the information you need. For example, my biologist boss needed to know the speed at which certain bugs at certain life stages (the "naiad instar" stages) swam when they left the muck at the bottom of a pond to the surface, where it shed its skin and flew away. The speed and the depth of the pond determined the length of time the bug was exposed to hungry fish, a matter of concern to bug and scientist alike.

We didn't know how fast those naiads swam, and we didn't want to hold up everything while some hapless grad student was put on the problem, so we SWAGged it at a meter a minute and moved on. The scientists were able to get some insights even when operating with estimates, and when they got actual numbers, they plugged them into the model and roared on. It was fun and useful!

Today's experiment is in a related field. Instead of a watery gap between the bottom and the top of a lake, which our frisky naiad seeks to navigate without getting eaten, we have a Justice Gap between the resources available and the resources needed to keep our fellow citizens from meeting an unfair fate in our justice system. Estimating what share of that gap can be assigned to pro bono, what share to legal aid, and so forth is absolutely necessary to effective planning, but it's also like figuring out how fast that little bug can swim. We need some graduate students with stopwatches and hipwaders, but until then, we have to SWAG it and ... who knows? ... maybe something will make it to the surface and take wing.

The Need

The Justice Gap is the difference between resources available to persons with a civil legal need, and the resources necessary to ensure a just resolution of that need. The numbers below are for Washington State, 2008.
  • Percent of low-income people that needed and got legal services: 20%
    Source: Alliance For Equal Justice;
  • Percent of low-income people that needed but didn't get legal services: 80%
    Source: Calculation from the above 
  • Number of low-income people that went without legal services: 650000
    Source: Alliance For Equal Justice
  • Number of low-income people needing legal services: 812500
    Source: Calculation from the above
  • Number of low-income people that needed and got legal services: 162500
    Source: Calculation from the above.
No SWAGging so far ... give us time ...

Pro Bono's Share

In gross, we can figure out the absolute maximum reasonable number of lower-income persons who can be helped via pro bono by counting how many people are in the pool of legal professionals who might reasonably take on some cases, and multiplying by the number of cases they might take on each year.


(All figures: Washington State, November 2009)
  • Active Status: 28312
  • Emeritus Status: 139. These are, by definition, doing pro bono work already but we might squeeze a little more out of them.
  • Inactive Status: 4219. Some of these have expressed interest in pro bono service. At present, the path for this is to change to Emeritus status. Since Emeritus is only about 3% of the pool of (Emeritus+Inactive) it seems reasonable to think that an active recruiting campaign, focussed on each inactive attorney's interests, may be fruitful, although the maximum conversion rate would be only SWAG. 
  • Military Status: 11. While this pool is small, I know of a few who may be interested in pro bono service on a time-available basis.
  • Suspended Status: 2126. This pool seems a stretch, but for the sake of completeness should be considered. Comparing the number of disbarments per year to the current pool of suspendeds, it seems likely that most suspended will return to active status upon fulfillment of fee or CLE requirements. However, it seems equally likely that they will be replaced by a comparable number of newly suspended members. Thus, for estimation purposes, Suspended should be ignored. This means about 8% of WSBA's potentially active members may be ineligible for pro bono service by reason of suspension at any particular time, which is is something to ponder.
Maximum Pool of Washington State Lawyers that might do pro bono (Active, Emeritus, Inactive, Military): 32549 

Others (See Notes for derivation)

  • Law Students 1896 
  • Law Faculty 203
  • Paralegals 8000 
  • Other Legal Services Professionals, e.g. legal secretaries (pure SWAG)
Pool of Other-Than-Lawyer Legal Services Professionals that might do Pro Bono: 10199

What Share of Closing the Justice Gap Might Pro Bono Take?

  • Maximum Pool of Legal Services Professionals that (With Unreasonably Optimistic Assumptions) Might do Pro Bono: 42741
  • The entire unmet need might be satisfied by pro bono work if each member of the pool took, in addition to their current pro bono efforts, the cases of 15 people a year (650000/42741)
  • If each member of the pool took the cases of 1.5 persons a year, that would represent about 10% of the existing gap, enabling a small quip in our title (42741x 1.5 = 64,111 or 10% of 650000).

Legal Aid's Share

We can think of several reasons why Staffed Legal Aid programs are absolutely necessary.
  • Even if we had enough raw pro bono hours to close the justice gap, infrastructure in support of those hours is very significant. Organizing, training, matching, and so forth takes time and, perhaps of greater important, organizational memory that simply is not maintained by volunteers.
  • Anyway, we don't have enough raw pro bono hours to close the justice gap (unless the assumptions above are way low.)
  • Paid staff signifies a recognition by our State that the Justice Gap is a serious enough issue that we're going to invest resources in it. It may be analogized to fire protection; Volunteer Fire Departments are important but not enough to provide comprehensive fire protection.
It's beyond the scope of this post to contemplate how much of the Justice Gap should be closed by Legal Aid organizations, but since there's at the very least a symbiotic relationship between Legal Aid and Pro Bono, it's hard to think about one without thinking about the other.

Assuming that the pro bono efforts could be increased to absorb an additional 10% of the Justice Gap, and that legal aid organizations were increased enough to make that pro bono effort effective, we're left with 90% of the gap left. In round numbers, that is 72% of the entire Justice Gap (90% of the 80% of unmet need. Assuming that it was during our Legal Aid systems' best-funded years that the 20% of the Gap was closed, it seems unlikely that the 72% will be closed by Legal Aid alone.

Something Else Is Needed.

Something Else's Share

The nature of the "Something Else" that is needed to close the Justice Gap is not entirely clear to me. I'm hoping someone smarter than I can figure it out.

One thing seem obvious: it needs to be something that enables the needy community to serve itself, since there will never be enough people from outside that community to serve them.

Running with that assumption:

One method might be to enable the community to develop its own, local experts, from within the community, who can handle some types of cases. An expansion of the Law Clerk program might allow communities to support members while they learn professional skills, then return to their community to serve without the crushing burden of debt. A large number of veterans might find it rewarding to use their limited GI Bill benefits to develop a career in community service law - but only if they were actively recruited to do so.

A complementary approach may be to make the legal system itself more efficient, perhaps using technology to help with the most common matters.

No doubt a dozen other strategies might be employed. There's plenty of opportunity to experiment.

Notes and Assumptions

  • Washington State: The data in this note specifically refers to Washington State, since it's the jurisdiction I'm most familiar with. I don't have anything to suggest it is atypical of our United States.
  • Lawyer Counts all come from the Washington State Bar Association's lawyer directory. The "Status" selector includes several statuses that are useful for other purposes, but unlikely to yield pro bono help, e.g. Deceased. (Software developers will enjoy that page's disclaimer: "Some results may appear unusual, but they are consistent within the program logic.")
  • Law Faculty Counts
  • Law Student Counts
  • Paralegal Counts: Courtesy Brian Haberly of the Washington State Paralegal Association; he is not responsible for any abuse I may have made of the number. Obviously paralegals represent a huge growth opportunity for Closing the Justice Gap efforts but institutional barriers make joint lawyer/paralegal programs rare.
  • Unit-of-Data Issues: Some figures are in terms of number of people needing help, some are in number of cases (which could include multiple people), some are in terms of hours of pro bono worked or needed.
  • What Is The Goal: Successful programs get that way by defining a strategic goal, making it known to all, and unsentimentally figuring out what it takes to get there. If you don't have the resources to make the goal, then you need either a different approach or a different goal. The only really worthwhile goal of pro bono is to be part of a joint effort to close the Justice Gap. If we don't have the resources to close the Justice Gap by conventional means, then it's time to play some Moneyball!
  • Let's UnSWAG!  You'll have noticed some data issues above, and no doubt there are some structural issues as well. Any help you can give would be gratefully received. Are we not teammates?  

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