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Six Steps to Broader Impact

By John Bouman

Frontline legal services programs are grappling with the challenges of how to have greater impact and how to act affirmatively to solve problems that cause or perpetuate poverty or injustice. This is happening in all kinds of legal aid organizations, including those with limitations on permissible activities, such as organizations funded by the Legal Services Corporation (LSC) as well as organizations with similar limitations accompanying state funds.

How to have greater impact and act affirmatively is particularly significant in organizations that focus mostly on direct service and are subject to success metrics that call for maximizing client case encounters and dispositions. The funders that want the organizations to accomplish these success metrics, however, are also looking for “impact.”1 The organizations and their lawyers want this, too. They have the will to increase their impact while maintaining their volume of service. How is this managed? How does an organization operationalize turning “what comes through the door” into affirmative problem-solving action with broader impact?

Here I suggest ways to answer that operational question. For the most part, these ideas emerged in the course of two tours of duty on a consulting team for the National Legal Aid and Defender Association’s Strategic Advocacy for Lasting Results (SALR) project, one in a privately funded unrestricted setting in Chicago, and the other in an LSC-funded setting in New Mexico.2 The two SALR engagements have a mission to perform a high volume of direct service and a desire, also legitimately part of the mission, to do higher-impact affirmative work that finds root causes or broad-based solutions to the problems that multiple clients present. Both organizations were grappling with how to move into a new system that fostered this kind of mix of direct service and broader-based advocacy. The challenge was operational and management, not a problem of attitude or skills (although there was a clear understanding that skills training would probably be needed, too).

This transition from intake to impact can be broken down into manageable steps that are compatible with most direct-service practice models.

Exposure to this set of issues through the two SALR engagements was interesting. For me, long removed from daily direct representation, these engagements forced me to think critically about my own experience in legal services and challenged me to articulate what was useful in it to answer these operational questions. I worked for 21 years in an LSC-funded program in the era before the restrictions imposed in 1996. It was a program where direct service and broader advocacy both were successfully operationalized into the practice model. Recognizing potential impact issues in the flow of direct-service cases and turning them into higher-impact projects was a part of the culture; I was never challenged to think about how that came to be or what made it work.

It became clear that “recognizing potential impact issues in the flow of direct-service cases and turning them into higher-impact projects” is easier said than done and, in fact, can seem daunting, especially for an organization that has not yet institutionalized impact work. How does a garden variety welfare case turn magically into Goldberg v. Kelly?3 In fact, this transition from intake to impact can be broken down into manageable steps that are compatible with most direct-service practice models. Various models for a successful transition are found in many programs around the country.4 My suggestions, broken down into six steps, follow.

1. Identify Problems that Are Presented by Clients and Have Potential for Broad-Based Solutions

“Well, that’s obvious!” you might say, and you would be right. This article is meant to help organize conceptually obvious ideas into operational steps, not to project lightning bolts of new ideas! More important, the point of spelling out this step is to make sure it is not taken for granted as obvious or self-evident but is done as a conscious task in case-acceptance meetings.

What happens when situations such as the following ones emerge in case acceptance or other intake contexts?

If not done so already, questions about broader impact should be asked consistently, even routinely. In this way the attorneys get into the habit of seeing the flow of cases through that lens.

In each attorney’s and in the officewide experience, revealed in case-acceptance meetings, certain fact situations, problems, violations of rights, or roadblocks for clients occur repeatedly and virtually cry out for an overall solution that would eliminate a whole category of cases. Similarly some clients come in with the same problem experienced over and over again in their own lives. Some of those situations call for a proactive solution that goes to the root of the repetitive problems.

As the examples above suggest, the problems that are potentially the subjects of broad-based advocacy are not always the problems for which the clients initially seek representation. Sometimes the problem, as presented by the client, finds itself within one practice silo or specialty but may best be dealt with by another specialty or across specialties. Direct-service practitioners, particularly working as a group in case-acceptance meetings, can detect patterns and can assess the caseload against the background of current events in the community (e.g., headlines about the coal-burning power plant’s environmental impact) and from the perspective of multiple specialties.

The problems that are potentially the subjects of broad-based advocacy are not always the problems for which the clients initially seek representation.

Case-acceptance meetings are not the only way to identify impact issues. This also occurs through work with community-based leaders and organizers. Representing community-based organizations can be very helpful in recognizing and establishing an agenda of broader-impact work.5 The organizations will—they want to—bring the attorneys the issues they have identified themselves as matters of systemic importance to their members and leaders. Supporting the ability of community leaders to identify and act on their own agenda is a key component of good community lawyering.6 These relationships with community-based organizations, even if they are not technically clients and may never be organizational clients, are useful for identifying issues of importance to low-income clients. These relationships should include people and entities that have high-volume interactions with clients, such as health care providers, social workers, clergy, schools, and various types of business associations.

An office can also narrow the issues down by using client-needs surveys.7 Based on such a survey together with relevant data, an office might decide to narrow its intake to certain types of cases in a subject area where the office decides to make its biggest impact. For example, a legal services organization might decide to focus its intake appointments on access to jobs and workplace cases. This increases the impact of the high-volume direct-service work merely by the increased frequency of engagement by the lawyers. Broader-impact issues within that subject area will also surface when this six-step process is applied to the direct-service caseload that emerges from the preselected intake. The case flow of jobs and workplace issues, for example, might produce an impact project built around one particular employer’s wage-theft practices.

Another way to assess where to focus an office’s work to generate higher impact would involve mining the organization’s intake data for the frequency and intensity of issues.8

2. Brainstorm About Who Is Responsible and What Are Possible Approaches

Next, move toward a decision about whether to explore tackling a potential impact project. Take the example of a series of cases in which tenants with good technical defenses have lost their eviction cases and ask the same questions listed above:

If the first two questions are answered “yes,” then carve out time in the case-acceptance meeting for an initial brainstorm about the rest of the questions. A managing attorney might start the conversation along these lines:

We sure have been seeing a lot of these cases where people have perfectly good eviction defenses and still lose their cases. We have at least three where we gave pro se advice and the clients lost. We have posttrial motions in all three and several in recent weeks where the client came to us too late for a posttrial motion. People are wrongly being deprived of their housing, which is of critical importance. Is there some way we can address this so that it stops happening to so many people?

That amounts to a “yes” on the first two questions. The initial brainstorm that follows as to the other questions should center on two areas: a brief power analysis of the issue and a teasing out of possibilities for applicable strategies that warrant further research.

A “power analysis” involves assessing who or what is causing the problem to occur, and then examining who or what has control. This is a highly practical and action-oriented analysis; it is not philosophical or ideological. Who can solve the problem? What will cause them to exercise their power to fix the issue? A hierarchy may be involved. In the instance of the eviction court ignoring governing law, the trial court itself is causing the problem and has the power to stop making these mistakes. The entities with power over the judge, should he prove intractable, clearly include the appellate court. If it is a large urban system, a chief judge of the trial court might also be an avenue of influence over the trial judge. Further, a little deeper analysis, particularly where judges are elected, might reveal ways to exert media pressure on both the trial judge and the judge’s superiors.

The power analysis leads naturally to a discussion about how the office might be able to cause the person with power to exercise it to solve the problem. Several alternatives at least worthy of further research may emerge in the discussion. These will certainly involve standard legal research into the substantive issues and the procedural options. Other possibilities might also be involved and should be explored.

In the eviction example, the brainstorm might begin to specify that research will be needed on eviction law, with statutory citations, case law, local rules, and any known courtroom procedures. Issues of procedure may call for attention, such as motions to reconsider, ways to set up trial court proceedings to build a good record for appeal, appellate procedure, stays pending appeal, and the possibility of mandamus. The brainstorm should also identify other possible areas of inquiry: possible approaches to the chief judge, potential allies, successful advocacy examples from other jurisdictions or states, deeper refinement of the assumptions made in the initial power analysis, possibilities for a court watch, and media approaches.

3. “Research Action”: Decide Whether to Conduct One

After a reasonable period for the brainstorm, which should not unreasonably prolong case-acceptance meetings, decide whether to proceed, not with the project itself but with a “research action.”

A “research action” is a term from community organizing; the term recognizes and values the research necessary to inform and empower later decisions and actions.

A “research action” is a term from community organizing; the term recognizes and values the research necessary to inform and empower later decisions and actions.9 Calling it an “action” gives it the same stand-alone stature and value as other forms of action, such as a demonstration or a meeting with a public official or a lawsuit. In the legal aid context, recognizing a “research action” as a valuable expenditure of time and resources is key to making broad-impact work operational. Since the research action will take time away from direct case handling, the research action needs to be recognized and credited, preferably in the organizational software and formal outcome reporting, as well as in performance reviews.

In light of the research action, sometimes the right outcome will be a decision not to do anything further. This outcome does not mean that the research action was a waste of resources. Recognizing this possible outcome of research actions is an essential part of committing organizational resources to a realistic practice model that values broader impact. The temptation, and perhaps the current practice in some organizations, is to “count” only research work that preceded advocacy initiatives that were launched, not those that in the end were not launched. To incent properly the essential groundwork needed to develop a high-impact practice, the research action should be accorded its own stature in work plans and organizational accountability data.10

The decision whether to proceed includes considering whether one or more staff members are willing to volunteer or are appropriate to be assigned to conduct the research action. This, too, will vary with staffing and the size of an organization, but a team is preferable to an individual. Such a team may be drawn from more than one office location or from more than one legal aid organization.

Decide whether to proceed with the research action. Then set a deadline for the team to report back. Include the research action as a legitimate part of the team’s caseloads (which means that the organization recognizes that taking the time for the research action will mean taking less time for something else).

3(a). “Research Action”: Gather the Information

In the research action the task is to assemble the information necessary to decide whether and how to proceed with an impact project. The “information needed” consists of a much broader notion than traditional legal research, although the information surely includes that. This is because the goal is much more than nailing down the law.

Some of the required tasks follow.

flesh out or more fully understand the problem
In all of the examples of likely issues that could be identified in the flow of intake in Step 1, it may be necessary to landscape fully the problem that the clients’ cases exemplify but may not fully portray. For example, what are the dimensions of domestic violence among women receiving public benefits? How huge is the daily calendar of eviction cases that the judge faces each day and what kind of pressures are there to speed through the calendar?

complete or confirm the power analysis
Who can fix the problem? How can they be reached, pressured, influenced, persuaded, or forced to fix the problem?

identify the best practices or solutions
Research may reveal best practices or solutions implemented elsewhere.

learn about nonlegal strategies and tactics used around the country
Solutions or best practices may not always be built around litigation. Nonlegal strategies include creating alliances or coalitions, policy advocacy, media, messaging, and exerting economic pressure.

of course, do the legal research
Research the legal framework, procedural issues, avenues of possible attack, and possibilities for success in the courts. If there is potential affirmative litigation, then there is a menu of issues to address, including parties, cause of action, jurisdiction, venue, and initial discovery concerns.11

assess the costs
Determine or estimate the costs associated with various strategic approaches.

identify possible partners or cocounsel
On a preliminary basis, identify possible partners or cocounsel, particularly pro bono cocounsel in potential major litigation.12 Because major litigation almost always requires significant help from allies, this should be a routine consideration in a research action.

in restricted contexts, identify the approaches that are permissible
In restricted settings, determine which approaches the organization itself can undertake, which it may not undertake, and which allow for a partial role. I list this as one of the last tasks. In order to have a fully operational system for broader impact, an organization should be fully engaged in analyzing problems and solutions—not shunning them prior to the analysis because the first apparent solution might involve restricted work. If the result is to refer cases to another organization that is allowed to engage in the strategy to win the solution, that is a valuable expenditure of time and a good outcome.

The research then involves more than “going to the library” (computer-assisted or traditional). A lot can be accomplished by a meeting or phone call or e-mail exchange with veteran advocates within the organization, in allied groups, or in national backup centers. This is a major reason for cultivating relationships with leaders in the field, at backup centers and in other organizations. These leaders will be quick resources to jump-start this kind of research. An Internet search and literature review should be done. Some field work—interviews, investigations, title searches, picture taking, as well as meeting with community activists—could be very helpful. And don’t forget Clearinghouse Review articles (all the back issues are available to subscribers)!

3(b). “Research Action”: Break the Problem Down into Actionable Issues

Community organizers talk about “problems” and “issues.” Problems are global; they are the broad matters that irritate, engage, challenge or otherwise motivate people to take action. “Affordable housing,” the “foreclosure crisis,” and “racially disparate health outcomes” are examples of problems.

An important goal of the research action is to break the problem down into actionable “issues” (in organizer-speak).13 What are the actions that can be taken that are doable, winnable? The intent is not to stifle ambitious undertakings but to anchor the upcoming work in goals that can be accomplished (even ones that are quite ambitious and somewhat against the odds). The research on the “foreclosure crisis,” for example, will show a huge problem that is unlikely to yield in any comprehensive way to the efforts of lawyers in one legal aid office. However, the research may reveal a chance to partner with a local community organization to put together a deal with banks and public officials to rehabilitate and return to the market hundreds of currently boarded-up homes in the local neighborhood. That is a highly ambitious, yet actionable issue. It does not solve the big “problem,” but it makes worthy progress and benefits many clients.

In the context of legal services case acceptance, the problems identified for broader-impact work are often already expressed as actionable issues. An example is the eviction judge who does not follow the law. The solutions to that problem are actionable issues, such as appeals, court watch, and media, and several strategies may need to be undertaken simultaneously. In those cases, this step simply merges with Step 3(a).

Legal aid organizations need to understand that the big problems are not off limits. It may become abundantly clear to an office that its clients are beset by one of these big problems, such as “racially disparate health outcomes.” That issue is not too big for a local legal services program if the problem is broken down into actionable issues (such as winning a new neighborhood clinic, fixing procedural problems with Medicaid enrollment, and improving public health outreach) that will have a broader impact than trying to solve the problem case by case.14

Legal aid organizations need to understand that the big problems are not off limits.
 

3(c). “Research Action”: Prepare the Approval Memo

The team doing the research action should prepare a memo to the supervisor or litigation director; the memo summarizes the research about the problem and the actionable issue(s). As to each of the initiatives or lines of work that the team proposes or suggests, the memo should specify as follows:

desired outcomes of the initiative
Examples of desired outcomes are “win appeals of eviction decisions,” “conduct court watch and publicize results,” and “win passage of statute clarifying tenants’ rights.” If passage of a statute on tenants’ rights is the only feasible solution to the problem and an organization has funding-related practice restrictions, then the organization may conclude that it will not proceed further and instead will make appropriate referrals.

the impact, if successful, on the rights and conditions of clients
This is a way to measure, in advance of a project, whether it will produce, if successful, sufficient impact to justify the investment of time and resources. It is also a way to measure and account for the success of a project after the project is concluded. In the eviction court example, the expected impact of filing appeals of eviction decisions might be not only winning the individual cases but also establishing strong stare decisis on the issues and causing the trial judge (and all trial judges in the jurisdiction) to stop making the mistakes, thereby resulting in dozens (hundreds?) fewer evictions every year. Or helping win the establishment of a new community clinic is expected to result in access to good primary care for thousands of neighborhood residents, and this in turn will improve their health outcomes, quality of life, and opportunity for upward mobility.

an assessment of the chances for success
An assessment of the chances for success should be a realistic take on the chances for winning in whole or in part. Most projects have their risks and chances for coming up short, but those projects may be worth undertaking if the chances for success are not frivolous and the potential outcome is worth the expenditure of staff and other resources. In the case of the eviction appeals, the chances for success can probably be weighed by an analysis of the law and precedents and perhaps the reputation of the court of appeals for straightforward decision making. In the example of the winning of a new community clinic, the chances for success can be weighed by reference to the experience others have had with similar projects, or to the track record of community-based allies, or to advice from outside experts obtained during the research action.

an estimate of the resources necessary, including any dollar amounts
This estimate should indicate, for example, the numbers of staff and their level of involvement, filing fees, discovery, and other costs. If the initiative is large scale, such as major litigation, the need for pro bono cocounsel should be identified.

suggested in-house team
The in-house team, especially if different from the team for the research action, should be suggested.

The memo is in the nature of a logic model for the initiative(s); it lays out the desired outcome, its impact if successful, chances for success, and resources to be devoted to the effort. It sets out the elements of a conscious decision to devote resources to a high-impact project.

4. Decide Whether to Give Approval to Proceed

Weighing the factors in the approval memo, the appropriate decision maker should make the decision about whether to proceed and assign staff to the task. This should be done without undue delay not only because of the client interests but also to respect the process and the attorneys involved in it. The approved work may involve a sequence of activities or a set of simultaneous strategies; for example, appeal the erroneous eviction court decisions while seeking a meeting with the chief judge and/or with a local reporter or editorial board. The approval memo should spell out any limits to the team’s authority to proceed without further approval on all fronts. For example, for each new appeal of the same issue or each U.S. Supreme Court petition if an appeal is lost, specify if separate approval is required.

In cases with outside cocounsel, especially pro bono counsel from the private bar, this is also the time for the organization’s management to give input on selecting the cocounsel. For example, this may be an opportunity for coordinating with management’s concerns about board member involvement or about fund-raising priorities (sometimes law firms will not support an organization financially unless they are engaged in pro bono work with the organization). Management may also be helpful in using its relationships with outside counsel to secure their participation and in negotiating cocounseling agreements and the like.

5. Build the Strategy for Each Initiative

With the team in place, build and carry out the strategy for the initiative. That is beyond my scope here. The strategy includes steps such as completing the power analysis, external organizing and building of allies, developing media strategies, conducting research, acquiring client stories (plaintiffs), and gathering model pleadings and briefs. Training staff and allies for individual representation if that’s part of the plan (e.g., to build the right kind of trial record to set up appeals), is necessary. Deciding whether to take appeals, if it is a stare decisis campaign, devising approaches to defendants or policymakers for agreed resolutions, and more, are involved.15

6. Evaluate Each Research Action

One of the things we often fail to do is to take some time to learn from our experience. We should look back at it, react to it, critique it, and especially mine it for lessons and future adaptations. This is particularly crucial when adopting something new. Success is not guaranteed, predictions are not always right, good-faith mistakes happen all the time, and successes are sometimes quite surprising. The important goal is to evaluate and learn. Take a moment to examine what went right, what went wrong, what could be done better, and what other lessons (good or bad) were learned.16

The impact advocacy should of course be evaluated in due time. Here, however, I am talking about evaluating the first four steps of this process, through the decision whether or not to proceed with the advocacy; the decision is based on the research action. As soon as possible after the decision in Step 4, the relevant group (practice group, case-acceptance group, or whatever group originated the process in Step 1) should evaluate the decision. A team leader should ask each participant to summarize feelings about it and reactions to it. Then an honest exchange about what worked and what did not, what could improve and how to fine-tune should follow. This not only helps improve the process and the group’s understanding but also may increase buy-in and a sense of teamwork in developing the process for impact work. Although not a magic cure-all, this is a way for the group to operationalize the work to achieve broader impact for the clients.17

John Bouman
President

Sargent Shriver National Center on Poverty Law
50 E. Washington St. Suite 500
Chicago, IL 60602
312.368.2671
johnbouman@povertylaw.org

1 E.g., see generally Legal Services Corporation, Performance Criteria (2007). See id. at 20 (Performance Area Three, Criterion 1(c): “the program maximizes the use of its resources and achieves in its representation and work the greatest possible benefits and systemic solutions for other low-income people who may face similar legal problems, and for the eligible population as a whole”). See also American Bar Association, Standards for the Provision of Civil Legal Aid, passim (2006).

2 See National Legal Aid and Defender Association, Strategic Advocacy for Lasting Results (SALR) (2014) (“SALR provides confidential, peer-based assistance to legal services programs to help them develop or expand their capacity to achieve broad-based results and, in particular, to achieve lasting, systemic change for clients and low-income communities.”). The SALR project had two rounds of consulting in 2012 and 2013, and further work is being considered.

3 Goldberg v. Kelly, 397 U.S. 254 (1970). Kelly had complained at intake that his caseworker had arbitrarily cut off his welfare payment, a situation confronted in thousands of intake interviews every day in legal services.

4 See, e.g., all of the articles in the Spring 2011 issue of the Management Information Exchange’s MIE Journal (vol. 25, no. 1).

5 Working with community-based groups can also be uniquely impactful, beyond what attorneys can do on their own. See my The Power of Working with Community Organizations: The Illinois FamilyCare Campaign— Effective Results Through Collaboration, 38 Clearinghouse Review 583 (Jan.–Feb. 2005).

6 The Sargent Shriver National Center on Poverty Law’s Community Lawyering training program is an excellent resource for the information and skills needed for community lawyering.

7 In fact, this is expected of LSC-funded organizations (see Legal Services Corporation, supra note 1 (Performance Area One, Criterion 1)).

8 Id.

9 See generally Edward T. Chambers, Roots for Radicals 80–90 (2003). Chambers was the successor to Saul Alinsky in leading the Industrial Areas Foundation, a pioneering community organizing leader and training provider.

10 The frequency with which research actions fail to lead to actual high-impact initiatives is not irrelevant. It should be used in evaluating the case-acceptance “brainstorm” and whether the brainstorm can be improved. This is one of the functions of the commitment to evaluation and constant improvement that I suggest in Step 6 of this process.

11 This is laid out systematically in the Shriver Center’s Affirmative Litigation Training and accompanying materials.

12 Greg Bass & Jocelyn Larkin, Affirmatively Litigating: Cocounseling with Private Law Firms on Major Litigation, 42 Clearinghouse Review 605 (March–April 2009).

13 Chambers, supra note 9, at 83–84.

14 For some examples of different types of impact work in the legal aid context, see my “Expanding Horizons”: Thoughts on Agenda Setting and a Full Advocacy Toolbox for Legal Services, 43 Clearinghouse Review 534 (March–April 2010). For strategies on racially disparate outcomes, see Pursuing Racial Justice in the 21st Century, 47 Clearinghouse Review 135–262 (Sept.–Oct. 2013) (special issue).

15 For federal litigation tips, see Federal Practice Manual ch. 1 (2013) (Preparing for Litigation).

16 Chambers, supra note 9, at 87 (“Evaluations are our school of higher learning. No undigested happenings allowed…. This is where growth goes on and judgments are adjusted.”).

17 Id. (“[Evaluation] generates social knowledge. And it keeps us from believing our own propaganda.”).

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