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If orgs focus on national case placement, as a KPI proxy for representation, they may in fact be reducing the representation they are trying to promote“
The National Case Placement Model
(As always, I’m jumping straight into the weeds, as this blog is for advocates who already care.)
A collaborative law model – I’ll call it “national case placement” or “scalable case placement model,” for short – that is popular with national organizations includes these four primary components:
- Local identification of cases by site-specific litigators
- National placement of cases by the national organization
- Mentoring of local litigators by centrally located senior lawyers
- Case placement is used as a case metric
National case placement has the virtues of providing for the training of baby lawyers, who can get valuable reps within KYR, detention, and consultation settings. Baby lawyers have a person they can always turn to, at one number, to ask hard questions, and to become better lawyers.
Additionally, the scalable case placement model can be made relatively slim. By having a central administrator(s), and multiple project sites, lawyers can in theory reach more immigrants who can benefit from consultations.
From there, national placement of cases, almost universally via curated case overview boards that go out to pre-vetted organizations and trusted litigators, can theoretically scale representation. A more diverse set of cases on display, the theory holds, the more likely it is for cases to be placed with bigger law firms and pro bono litigators, each of them looking for a particular case chemistry that fits their particular skill sets.
There’s a Case Placement Paradox
A built-in problem with case placement models generally is familiar: clients who come into contact with an attorney during the KYR or intake process may be in need of immediate assistance owing to a quickly approaching hearing, may have immediate relief available, and, even after copious statements asserting that a KYR or an intake is just that, may expect that after doing an intake or KYR that they lawyer working with them will help them.
From the lawyer side the guilt of having to provide a referral case note for a client that the lawyer may be able to help immediately is often impossible to overcome. This is of course compounded by the national shortage of removal defense lawyers generally, and in recent years the burnout of otherwise dependable pro bono partners who are tired from three+ years of losses.
This built-in problem is not insurmountable, but if case placement is a metric for a national placement project then this problem can become a serious fail condition.
If a donor organization has received funding for this project and used case placement as a metric then it is contractually bound to deliver on that metric. But this means that the organization is then in tension with the lawyer on the ground, who though perhaps able, willing, and capable of immediately helping someone after or during a KYR session or intake, would hurt the results of the funding organizations project were they to proceed to do just that.
Creating a protocol that explicitly prevents the lawyer from taking on cases directly may seem like a good solution, as can other forms of incentives for particular lawyers to stick to just doing KYRs and intakes. And perhaps, were the national organization to have major success in placing cases, this could be a strategically wise move.
But the reality is that placing cases is difficult and a buyer’s market – meaning that major pro bono case clients, like the big firms, pick and choose the best and easiest cases, and they do so on their own schedule. In the meantime, cases that could be solved by the lawyer on the ground may sit and rot and in many cases may ultimately fall through the cracks.
The paradox then is that in some situations a case placement project can actually lead to less representation, and not only that, but it may actually lead to reduced representation in situations where the organization’s own lawyer may be able to immediately provide services.
Said even more simply, if orgs focus on national case placement, as a KPI proxy for representation, they may in fact be reducing the representation they are trying to promote.
Modifying the Case Placement Metric
The problem is that if case placement is a naked metric, meaning that it is a KPI regardless of project context, then a national case placement project can be stuck to a model that in some cases actually makes representation less likely for clients.
The obvious insight here is that if case placement being used as a KPI creates an inverse relationship between the KPI and the target outcome – representation – then case placement needs to be rethought as a KPI.
One thing we should think about is a blended, contextualized KPI that can include case placement but also account for the ultimate goal of representation.
Let’s Use Something Like PABR Instead
A proposal team might think of a metric called, hypothetically, Placement Above Baseline Representation (PABR).
The idea is that we know, more or less, the average number of cases one attorney can do in a year for the various types of removal defense forms of relief. Or at least, we can estimate it for each attorney. PABR would use this estimate as a baseline number of placements in a given geography, and would then define the success of a placement project as the number of cases placed above that number.
For example: Angela was hired by BigOrg as a fellow to work on a pilot in their Boise, Idaho pilot project. She’ll be working in a small faith-based pro-immigrant nonprofit. Her job will be to do KYRs in local jails, do intakes, and write up case notes for dissemination through a national network of pro bono advocates.
Angelina is a mid-level attorney, and she herself could, working on her own as a removal defense lawyer, do 25 individual hearings in a year, or 60 bond cases.
To do better than just Angelina could do in representing people, the BigOrg would have to place either more than 25 merits cases, or more than 60 bond cases. Anything else would be underperforming relative to Angelina herself.
Case placement as a metric without the baseline of what Angelina can actually do on her own in terms of representation is an empty stat, and potentially misleading one without context.
I’d say this is low hanging fruit.
I could not agree more that making PABR the KPI is critically important. If the chief problem that case placement models seek to overcome is a shortage of experienced litigators, taking some of those litigators out of the courtroom and allocating their time to facilitating placements with ultimately less experienced lawyers (at the expense of working cases themselves) is contrary to solving the problem of the litigator shortage. There is also an inherent resistance (for good reason) among newer lawyers to take on complex matters on their own. My observation has been that a “co-counseling” model where an experienced litigator bears primary responsibility for a case but has volunteer co-counsel to instruct and direct is much more fruitful, both because it allows the experts to call the shots and because it alleviates much of the apprehension newer attorneys have about taking on responsibility for someone’s life and freedom on their own. Finally, the decision to select one case over another involves complex calculations of the strategic value of the case versus the anticipated burden of litigating it, and presenting prospective volunteers with a “menu” of available pro bono cases for them to chose from eliminates the opportunity for strategic selection by experts.