In this New Thinking podcast, Raymond H. Brescia, associate professor of Law at Albany Law School, speaks with Aubrey Fox and Robert V. Wolf of the Center for Court Innovation about the role lawyers can play in addressing poverty and eviction, why New York City has been dramatically expanding funding to provide lawyers to respondents in Housing Court, debt collection cases as the next great issue for public interest attorneys, and how a good lawyer is like a patronus from a Harry Potter book. 

ROB WOLF: Hi. I’m Rob Wolf, Director of Communications at the Center for Court Innovation. Joining me today is Aubrey Fox, who was my colleague here at the Center for Court Innovation for about 15 years, where he helped set up a number of innovative programs that we run, including Bronx Community Solutions, and he is now helping out in various capacities as a consultant. Today, he and I are going to do a podcast together. Aubrey, let’s tell listeners who we’re speaking with today.

AUBREY FOX: We’re interviewing Ray Brescia, who is a Associate Law Professor at the Albany Law School.

WOLF: Why are we speaking with him?

FOX: Rob, as you know, the Center for Court Innovation is known for our work on criminal court programs and we operate criminal courts and partnership with the New York State Court system all over the city, but people may know a little less is that we also have some new experiments in the civil justice space.

WOLF: Specifically, civil refers obviously to noncriminal. That’s family, housing, that sort of thing?

FOX: Exactly. Two of the programs that we’re running now, one is called Poverty Justice Solutions, in which we assign recent law school graduates to nonprofit civil justice firms around the city, and they work mostly on housing court cases. We also have new program called Legal Hands, where we employ volunteers and train and equip them to give advice to people who are facing issues, in hopes that it can help them keep out of court in the first place.

WOLF: I know Poverty Justice Solutions is focused particularly on working with people who face evictions.

FOX: Yeah, I mean a lot of the nonprofit civil justice law firms in the city focus on eviction and housing court cases, and there’s an immediately obvious reason why. A lot of New Yorkers face issues with their housing, and we know now that there are some very direct links between housing and poverty. People who struggle to pay their rent, if they get evicted, there are all sorts of negative consequences that accrue from that. The city is paying a lot more attention to try and intervene, and at the very least provide legal representation to people who are facing eviction in housing court.

WOLF: It’s both a more humane approach, trying to prevent people from losing their homes, but there’s a practical aspect too, that it’s going to cost the city, and impact the quality of life for both the tenants and people who live in the city if they don’t prevent these evictions.

FOX: Yeah, I mean there’s one estimate just produced by the city council that you could save about $300 million dollars, the city that is could save about $300 million a year if it kept around 5,000 families out of shelters. It costs about $43,000 per family per year to put someone in a shelter. Obviously, if there is an appropriate way to keep them in the housing that they currently have, and thus keep them from going into a homeless shelter, then it would seem that everyone would be better off.

WOLF: I guess the rationale is that without representation, they may be losing their homes, their tenancy unfairly, because they don’t have the right advocate. Legally, if someone was articulating their position and their rights, they hopefully would be able to stay in their home.

FOX: Yeah, I mean the housing eviction cases are often very complicated, and sometimes the existing rules and laws aren’t applied because in this case, the defendant who’s facing eviction doesn’t know their rights, doesn’t have legal representation. It’s an issue that the city is really directly focused on, and as you say, not just because losing a house, your home is a huge personal crisis, but because the consequences of losing your home end up being faced by the city quite often.

WOLF: Well so let’s get Professor Brescia on the phone. Just so people understand, I’m actually in our office in Manhattan, you are in your special studio in New Jersey, also known as your home. Now we’re going to be joined by Professor Brescia, who we’re calling in his office.

FOX: In Albany.

WOLF: In Albany, there you go.

FOX: Yes, all right.

WOLF: Okay, let’s get him on the line. Ray Brescia, welcome to the podcast.

PROFESSOR RAY BRESCIA: Thank you very much, thanks for having me.

FOX: Ray, where we wanted to start was just to get you to tell us a little bit about how you got involved in public interest law.

BRESCIA: Well, it goes back to being a young person and being very concerned about politics and the world, and being very excited about things that were happening around me. I was a child of the 70’s, and so there was a lot of politics that went on in the 70’s. Some of my earliest memories were of the end of the Vietnam War, and then Nixon’s resignation. I just have always been interested, I think it comes from a family that’s very interested in political issues, and over the years as I was growing up, I realized that a lot of people about whom I was reading in the newspaper were lawyers and involved in the issues that I was interested in. That really sparked my interest in becoming a lawyer.

WOLF: You’ve been deeply involved now in the civil side of the law and civil justice, so you’ve observed recently how there’s been growing interest in civil justice. In fact, the city created recently an office of civil justice, and now there’s talk of what’s being referred to as “civil Gideon”, and Aubrey and I were curious, you know if you could maybe explain what civil Gideon means. Obviously Gideon refers to the 1963 Supreme Court decision that gives people right to counsel in criminal cases. What does that mean on the civil side?

BRESCIA: On the civil side, it would mean the same thing in civil cases as you see in many criminal cases, not all criminal cases. Lower level offenses, you don’t have a right to counsel, but on the civil side, just like on the criminal side, when people talk about civil Gideon, they mean a right to counsel in cases where fundamental human rights are at stake, shelter, loss of benefits, things like that. If you look at sort of what the consequences are of not having counsel in a criminal case and in a civil case, in many of the more impactful civil cases, the outcome can be the same. Someone could be institutionalized, someone could be incarcerated, someone could be, you know their freedom could be restricted if they become homeless, if they have to move into a shelter.

If the consequences are similar in certain civil cases as they are in some criminal cases, then the importance of counsel is similar as well. I think a lot of people don’t understand, they think that there’s legal aid, and so people have a right to counsel in an eviction case, but they just don’t. The number of people in a place like housing court in New York, which evicts 25,000 families a year, low-income tenants who can’t afford an attorney, most of them do not have access to counsel, even though we do have phenomenal legal aid programs that can provide services to low-income people and to help them prevent eviction.

Short of the funding that recently came down from the city of New York, when I was practicing in housing court in New York City, a very small fraction of low-income tenants had counsel. That meant that they faced eviction without a lawyer, and eviction cases can be very complicated. I think what the de Blasio administration is doing and what city council is proposing is really going to expand access to justice in housing court, and hopefully in other settings as well, at least in New York City, to ensure that in really important cases on the civil side, like in the criminal side, people have access to a free lawyer.

WOLF: Let me just throw out some numbers too related to what you said. The office of civil justice said that in 2013, only 1% of tenants in New York City housing court were represented by attorneys, but they project that with their investment of, I think $100 million, the city’s investment in fiscal year 2017, 27% will be represented, one in four basically, of tenants will be represented. That would represent a dramatic shift, and would you anticipate that that would then dramatically change outcomes, you know fewer people would in fact be evicted and have to move into shelters and that sort of thing?

BRESCIA: Certainly. It’s going to do two primary things: One, it’s going to ensure that many thousands of tenants have a fighting shot in housing court. Once you do, if you have a fighting chance, most of the time a lawyer can make a huge difference in raising important defenses, negotiating viable solutions that don’t require the tenant losing his or her home, dismissing cases because the landlord’s case is weak. In the first instance, many tenants who, with representation, are going to avoid eviction, period, full stop.

I think a second consequence of the increased number of tenants with counsel is that landlords are going to bring fewer cases. A lot of landlords now don’t have to worry about their tenant being represented, and they can bring trumped-up cases, they can bring cases that are weak. They know at the end of the day, many tenants won’t even show up to fight the case because they think that there’s no hope in fighting the case, because they don’t have a lawyer, they don’t know their rights. Many move out when they get the eviction papers, or simply sit back not knowing what they’re supposed to do, and don’t defend themselves. I think landlords count on that for at least a percentage of cases, and if they know that tenants are going to be represented, not only are they only going to bring the strongest cases that they can, but they’re not going to bring the cases that they think they can get by on weak claims.

FOX: One thing I find really interesting is you have the city investing a lot more in this area, but I guess I’m curious about the context here. What do you think is driving this idea that we should take a second look at the relationship between poverty and housing? Is it driven mostly by practical conditions on the ground, is there an intellectual momentum that has developed that is starting to reframe these issues?

BRESCIA: I would like to think that there are two main drivers of seeing this issue as an access to justice issue, that is an issue that centers around the low-income people’s lack of access to a lawyer. One is moral, and it’s based in our fundamental belief that in our democratic system, people should have a right to defend themselves adequately in a court of law when legal claims are made against them, so that’s the moral case to be made for access to justice. I think more practically that there’s a fiscal case that can very easily be made for the investment of counsel.

Counsel in a housing case is usually provided by a nonprofit for roughly about $3,000 a case. They’re reimbursed for the number of cases that they handle for about $3,000 a case. A family that is evicted that goes through the shelter system costs the city about $30,000. If you can, by the provision of a lawyer, you can prevent that family from becoming homeless, you’re saving the city and the people of the city of New York and any other jurisdiction that takes this view, you’re saving them lots of money. There’s an absolute moral case, but also a practical fiscal case.

WOLF: It’s interesting that you say the lawyer only gets $3,000, which makes me think about the attractiveness of going into civil justice law for law students today. I mean, there is a trimmed down market on the corporate or the money-making side, so to speak, of the legal profession. Is it more attractive? Are you seeing a shift? Are more law students interested in civil justice, especially as there’s more interest and more need for lawyers, as there is at least a little more money to pay for them?

BRESCIA: I think a lot of people go to law school, a lot of law students go to law school because they want to make a difference, and they want to do work that is meaningful that makes a real difference in people’s lives. Too often, law school debt, practical reality, economic realities drive students away from those reasons that they went to law school to begin with. The more that funding is made available as the de Blasio administration is making such funding available for nonprofits to represent low-income tenants in housing court and hopefully in other settings, there’ll be more opportunities for students to get back to the reasons they went to law school in the first place.

FOX: We’ve talked mostly about housing court, but there are other types of civil legal cases. I just wonder if you want to bring up another example of the kind of case where a good attorney could really make a difference in the lives of somebody in a particular type of case.

BRESCIA: Well, you know there’s another area that’s gotten a lot of attention lately is consumer debt. Consumers, which are everybody, people, can mount up consumer debt from an old credit card, from an old cell phone bill, maybe they move, they don’t get the last bill, and penalties can accrue, and the consumer can face a lawsuit in court for a $200 bill with fines and penalties can quickly become something that escalates and grows into a two, three, $5,000 bill that the filing of a lawsuit against them alone will impact their credit score. They find that their wages are garnished, their bank accounts are frozen, they can’t pay their rent, they can’t buy things like medications or food.

Another area where lawyers can make a real difference, I mean it’s hard to say that fewer defendants get represented in consumer debt cases than in housing court cases, because in 1% of housing court cases, the tenant has representation, but it’s actually less than 1%, at least in New York City, according to research that the Urban Justice Center did years ago, less than 1% of tenants have representation. That can have a real impact on people’s lives, and can spiral into an eviction case if they can’t pay their rent, or a hospitalization if they can’t get medication to keep them out of the hospital.

That’s another area, and these are very straightforward cases, they’re often very strong defenses, that a pro se person, someone without a lawyer, doesn’t really know how to raise such defenses, but with a lawyer, that defendant can easily raise very strong defenses and often get the cases dismissed. Our experience has been, and lawyers who do this work, that the mere presence of a lawyer in a case is enough to get the plaintiff to simply withdraw the case, that they don’t want to fight it because they know that there are so many strong defenses that will be raised by a lawyer who is worth his or her salt. It’s like in Harry Potter, it’s like the character, you know they can call out their character that helps them defeat the evil beings, it’s not a Horcrux.

WOLF: Their patronus.

BRESCIA: Their patronus, exactly, thank you very much. You know it’s like a patronus, you can call forth your lawyer and the plaintiff just runs away.

WOLF: Well, it sounds like a situation that is also ripe for abuse then, that as you said with housing cases, if people bringing these consumer cases, these debt cases, knew a lawyer would be there, they’re less likely to even bring the case because they know that there maybe isn’t a lot of substance to it. I wonder, what about the Center for Court Innovation, in collaboration with several partners also has a program called Legal Hand, which basically gives advice to pro se litigants. They can go to a community walk-in storefront situation and get some advice, and I wonder, short of providing an attorney, and perhaps in some cases where an attorney, there isn’t enough money to give everyone an attorney yet, but at least giving them some legal advice, how useful is that, do you think? Does that also have a practical impact?

BRESCIA: I think it does. You have to do what we call in the legal services world “effective triage”. You have to identify cases where they’re relatively straightforward, where advice alone is enough to arm the tenant with the information, or whoever the party is, the party seeking the information, that it’s a straightforward case where simple information would be enough to prepare him or her to defend him or herself in court or in an administrative proceeding like a welfare hearing or the DMV, wherever it is. It depends on a number of factors, I think the first factor is the complexity of the case.

Is it a case where straightforward information that’s easy to understand is enough, so the person can defend his or her rights? Then it will depend also on two other things, I think, what’s at stake, and then the ability of the individual in the context he or she finds him or herself in, to use the information obtained effectively. Things that are, where there’s high risk, you know Warren Buffet doesn’t deal with issues, billion dollar deals without a lawyer, someone who’s facing an eviction or the loss of a child or the termination of welfare benefits, given what’s at stake, it’s very difficult to say to that person, although we do it every day, “You don’t get a lawyer.”

With what’s at stake, I think that’s another factor to think about because of the risk of loss of what’s at stake. Then, is this individual someone who can manage the case with a little bit of information, or is it someone because of disability or because of the complexity of the case, can’t handle the issue on his or her own? You sort of have to go through a series of questions to triage each case to determine, is this a case where a little bit of information is going to be enough so that person can protect his or her rights, or are there enough of these variables that say, “Wait a minute, this is a person who needs full representation.”?

WOLF: Well, thank you so much for taking the time to talk with Aubrey and me today.

BRESCIA: Thank you for having me.

FOX: Thanks Ray.

WOLF: We’ve been speaking with Ray Brescia, who’s an associate professor at Albany Law School, and he’s been speaking with us about trends in civil justice and some of the exciting things that have been happening here, particularly in New York City. To find out more about the Center for Court Innovation and some of our civil justice programs, and in fact all our programs, you can visit us at our website at www.courtinnovation.org. I am Rob Wolf, director of communications, and my cohost today is Aubrey, you want to say who you are again?

FOX: I’m Aubrey Fox, and I’m going to try to find a patronus after this interview’s over. They sound useful.

WOLF: Thanks everyone, and thanks for listening.