Trial and Error: Lawyers and Nonlawyer Advocates

35 Pages Posted: 4 Sep 2015 Last revised: 23 Sep 2018

See all articles by Anna E. Carpenter

Anna E. Carpenter

The University of Utah S.J. Quinney College of Law

Alyx Mark

Wesleyan University Dept. of Government; American Bar Foundation; North Central College Dept. of Political Science

Colleen F. Shanahan

Columbia University - Law School

Date Written: October 8, 2015

Abstract

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements of representative effectiveness, we uncover new empirical insights: judges play a critical role in shaping nonlawyer legal expertise and nonlawyers develop expertise almost exclusively through “trial and error.” We find evidence that while experienced nonlawyers can help parties through their expertise with common court procedures and basic substantive legal concepts, they are not equipped to challenge judges on contested issues of substantive or procedural law in individual cases, advance novel legal claims, or to advocate for law reform on a broader scale. These findings have important implications for future access to justice research and program development.

Keywords: access, justice, empirical, study, law, advocate, representation, lawyer, expertise

Suggested Citation

Carpenter, Anna E. and Mark, Alyx and Shanahan, Colleen F., Trial and Error: Lawyers and Nonlawyer Advocates (October 8, 2015). Temple University Legal Studies Research Paper No. 2015-39. Available at SSRN: https://ssrn.com/abstract=2654858 or http://dx.doi.org/10.2139/ssrn.2654858

Anna E. Carpenter (Contact Author)

The University of Utah S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
84112 (Fax)

Alyx Mark

Wesleyan University Dept. of Government ( email )

United States

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

North Central College Dept. of Political Science ( email )

30 N Brainard St
Naperville, IL 60540
United States
6306375366 (Phone)

Colleen F. Shanahan

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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