Lawyers Need to Experience Court from the Self-Represented Litigant Perspective
[This article first appeared at Lawyerist.com]
Eviction court really, really sucks.
This past summer I had the opportunity to sit and observe eviction court in a major US city from a tenant’s perspective. What I saw made me feel dismayed and embarrassed.
Dismayed because I saw a lot of ugly things. I saw a clerk yell at a man with limited English skills just for not understanding directions and a judge fail to explain the consequences of an order to a self-represented litigant when asking if she understood the order. I saw a counsel table packed with chummy white lawyers in suits, a bench that seated white judges and their white clerks, and a gallery full of people of color. The imbalance was palpable.
Embarrassed because in all my time practicing law, I never bothered to sit in court and feel what it’s like in the shoes of a self-represented litigant. The few times I was in state court, I marched up to counsel table in my suit and important papers tucked under my arm and laughed and hung out with my lawyer peers. While I was busy feeling super-important, the real participants in the system sat in the gallery feeling overwhelmed and afraid. I thought I practiced with empathy and care for my clients. In retrospect, there were too many times when I did not.
The Court Experience
When I and my team design solutions to legal problems, one of the first things we typically do is to map the existing “user journey” — dumb jargon for the steps a person needs to go through to achieve a desired outcome.
In the context of housing court for a pro se defendant, the desired outcome is to get through the process with as little cost and as good an outcome as possible. But the odds are stacked against achieving that goal.
The experience of going to court for those who cannot afford lawyers (and even sometimes if they do) is horrendous. (I know this will not be news to many of you reading this.) The current steps a self-represented defendant in housing court must take in this particular city (although I’m certain it’s similar in all other major US cities) are:
- Know how to read and understand English, or have a translator. Everything at the court was in English, and only English. There were no Spanish-language translations for any of the signs or notices, and no translators anywhere to be found, despite a number of limited-English speakers. I saw a man who had very limited English walk into court and be yelled at (yes, I mean yelled, as in loud, aggressive shouting), by a clerk who was annoyed that the man didn’t figure out that he needed to get his case number from the wall outside. The man clearly had no idea what the clerk was saying to him. I also saw a judge call a litigant up the bench to sign a consented-to order. This litigant spoke no English and had a very young relative with him to help translate, but who knows if he got it right.
- Get time off work, if applicable.
- Get child care, if applicable, or plan to bring your child with you.
- Prepare all the materials you need to defend yourself, and figure out how to print or copy the materials.
- Navigate your way to a large, intimidating high-rise building downtown. It feels more like you’re entering a fancy place of business than a court of law, and I’m honestly not sure which is more intimidating for a low-income individual who doesn’t often go downtown.
- Get through security screening.
- Figure out what floor to go to. Once you get through the line, there’s no one there to help you figure out where to go.
- Find your number on a wall. In this court, when you find your floor, you next had to find a wall that had your case number on it. If you managed to get that far, then you needed to figure out what courtroom to go to.
- Show up in the right courtroom at the right time.
- Wait (and if you couldn’t find child care, wait with your kids).
- Talk to the landlord’s lawyer, who is likely in a suit, is likely white, and try to understand the settlement he’s proposing and try not to get screwed. If you manage to agree to terms of a settlement, you then need to try to understand what is written into the consent agreement. It’s helpful if you understand issues like sealing of records so that you know what to ask for.
- If you don’t come to a settlement agreement with the landlord, attempt to put on a defense in court. (I’m not even going to go into what all of this entails because that’s a whole other article. Let’s just say it ain’t pretty.)
- At no time during this entire process is there a single touch point with someone from the court who is there to help you. Not one.
Lawyers Need This Experience
I’m no stranger to the courtroom. I was a litigator for eight years, working primarily in federal court. I had some exposure to state court for pro bono matters and other minor issues, but for the most part, I was in federal court, a forum that I found to be respectful to all litigants. I also found the judges to be very concerned about transparency and public perception of the court. The clerks were incredibly helpful and friendly to everyone coming through the door. But — I never saw an unrepresented litigant in federal court during my entire time practicing.
I didn’t realize how skewed my experience was.
This needs to be part of every student’s training. Yes, I sat in on hearings as a law student, but it was always with the lens of learning how to practice law, never with the explicit intent to understand the barriers facing low-income Americans in the justice system. That lens is critical.
The hard work that lays ahead must involve a change in behaviors, systems, and attitudes, and it has to start with the individuals of privilege (lawyers and judges) in the system. If we have more lawyers that understand the experience and empathize with self-represented litigants, we can start to transform the bar into advocates for those that get lost in the system or need help navigating through it. Maybe then we can start to effect real systemic change, but I’m not holding my breath on that one for now. Given what I saw, the system is too flawed to be open for any real change in the short-term — this has to be a long game.
We do a lot of work around access to justice through self-help in this country, but it doesn’t mean much if it all dies at the courthouse door.