“It’s not looking good,” Special Judge Geary Walke said as he listed the defendants from the day’s docket of assets cases. Most of the defendants were nowhere to be seen in the sixth floor courtroom of Oklahoma County’s District Court that morning, so their cases ended in default judgments. That means the court automatically ruled in favor of the party that showed up.
On that typical March morning, the docket revolved around evictions, debt and other cases involving assets. One of the defendants who did come to court didn’t bring bank records, despite a court order to do so.
The defendant, who declined an interview with Big If True, said in court that she didn’t bring the records because her account was closed. Walke explained that banks keep records for closed accounts, so she would still be able to get them. Furthermore, she was required to bring them because of the court order.
A possible punishment for not bringing the records, Walke claimed, was to be placed in jail indefinitely.
“You didn’t (bring the records), and this has already been continued once, so now you’re either in contempt of court, for which I can place you in jail – up to 180 days in county jail – or depending on whether it’s direct contempt, … that’s fine, too, but then I can hold you forever,” Walke said, “until you decide that you want out of jail by following the orders of the court.”
According to Oklahoma code, the maximum punishment for direct and indirect contempt includes a fine of up to $500 or up to six months in county jail – not “forever.” But the defendant in the case didn’t have an attorney, who could have pointed that out.
The defendant agreed to return that afternoon with the documents.
Across the country, a huge influx of individuals are representing themselves in civil courtrooms, which lack the criminal side’s right to counsel. Rather than pay exorbitant legal fees, litigants go it alone in civil cases that touch on intimate aspects of their lives, from divorces and child custody to financial matters that stem from poverty like eviction and debt.
Attorneys attend law school and then dedicate years to practicing their craft, while novices face a steep learning curve to reach justice in civil courts.
Del City, Oklahoma resident Alfreda Benford, who works in sales for a medical transport company, was shocked earlier this month when she received a summons from T&J Property Management claiming that she hadn’t paid her rent. Benford discovered the company had applied her check to another property where she’d lived a year and a half ago.
When she couldn’t get answers on the status of the case, she showed up in court even though her name wasn’t on the docket. That was when she found out the case had been dismissed.
“There’s no real direction to tell where you need to go or what happens if there’s a dispute, because this was a clear dispute,” Benford said. “I didn’t have any recourse of where to go or what to do, but to show up, so it’s time wasted, time off work.”
Data for courts can be hard to come by, but a study from the National Center for State Courts examined a sample of cases from 2012 to 2013 and found that at least one party – usually the defendant – didn’t have a lawyer in 76 percent of civil cases in state courts. That figure excludes family law cases that attorneys have said are also dominated by self-represented litigants.
Jim Sandman, president of the Legal Services Corporation, said his organization estimates that about 58.5 million people are financially eligible for services at legal aid programs that his organization funds. He described the large number of self-represented litigants as a problem that is largely hidden from the public.
“When other functions of government fail, often there’s a quick uprising and a very visible effort to take corrective action,” Sandman said. “How can it be that when our courts are in crisis with so many unrepresented people that nothing happens about it? I think it’s because the consequences of the crisis are on low-income people who don’t have the resources or the visibility to be able to call attention to the problem in a way that will get it fixed.”
While serving as a judge for 10 years in California Superior Court in San Diego, Lisa Foster saw a dramatic increase in the number of self-represented litigants, especially in family law. Foster, a co-director of the Fines and Fees Justice Center who previously led the Department of Justice’s Office for Access to Justice, said most cases in her court involved at least one party who was representing themselves.
“It’s complicated,” she said. “Even well-trained judges have a hard time explaining the law and making sure that self-represented litigants get the justice they’re entitled to if they are by themselves without any legal assistance.”
People representing themselves in civil issues face a barrage of challenges. Courtrooms are intimidating and legal documents are famously difficult for laypeople to understand. Attorneys admit that in some courts, clerks refuse to share basic information with people representing themselves, and as it is, legal procedures can be arcane and daunting. Without the training and expertise of a lawyer, advocating for one’s self in court can be an uphill battle.
The number of self-represented litigants first began to rise in the 1990s, but during the last 10 years, individuals without attorneys began to flood courthouses in unprecedented numbers. As the Great Recession fueled the rise of poverty and debt, states and counties made draconian cuts to court budgets across the country, leading the number of self-represented litigants to peak in recent years without dropping back down to pre-recession levels.
Civil cases may get less attention than criminal cases, but they often involve issues that directly impact a person’s well-being, such as evictions or protective orders. In certain types of cases, like those involving evictions and debt, it’s common for the plaintiff to have an attorney, while the defendant goes into court alone.
“When a person without a lawyer has to navigate the legal system, what they confront is a system that was created by lawyers, for lawyers, on the assumption that everyone has a lawyer,” Sandman said. “It’s a system that works pretty well if you have a lawyer, and not well at all if you don’t.”
In the cases from the National Center for State Courts’ study, about 3 in 4 were resolved within 372 days. In general, the cases didn’t meet the center’s time standards for resolving cases.
“These things are taking lots and lots of time, and … the point here is self-represented litigants want their cases completed fairly, justly and in an expeditious fashion, and the courts simply aren’t providing that in many instances,” said Bill Raftery, a senior analyst for the National Center for State Courts.
Civil cases tend to fall in two areas – family law and contract cases. Family court includes things like divorce, child custody and protective orders.
The contract side deals with a large swath of cases that revolve around breaches of contracts, usually in situations where an individual owes another person or an organization money. Courts organize them differently, but these civil cases include evictions, debt and foreclosures.
Small claims courts began to pop up around the country decades ago as a way for everyday people to resolve low-cost disputes with other everyday people. Over time, however, companies and individuals with ample resources began to pour into small claims courts.
“What’s happened is that plaintiffs’ attorneys have found that small claims courts are also an awesome, low-cost, easier, faster way for them to get what they want in low-dollar contract cases,” said Anna Carpenter, an associate law professor at the University of Tulsa and a member of the Oklahoma Access to Justice Commission. “And so, small claims courts have actually been, in some ways, taken over by plaintiff’s attorneys in consumer debt.”
Many states lack data on civil court cases, but analysis from the Oklahoma Policy Institute shows across a sample of 13 counties in the state, the most common small claims case involved loan debt. For Oklahoma and Tulsa counties, home to the state’s two largest cities, the most common type of small claims case is eviction.
It might seem obvious, but having an attorney is a huge predictor of how litigants will fare in court.
“When you have someone who does have a lawyer versus someone who doesn’t, it can be a real David versus Goliath situation,” said Tiffany Graves, an attorney in Jackson, Mississippi who oversees pro bono programs for the Bradley law firm.
Individuals without attorneys are less likely to succeed in civil cases involving debt collection and evictions, which leaves the writing on the wall in places like Oklahoma’s Tulsa County, where the majority of defendants in civil cases don’t have an attorney, according to the Oklahoma Policy Institute.
“So, it’s just a complete mismatch of resources,” said Ryan Gentzler, the director of Oklahoma Policy Institute’s Open Justice Oklahoma program. “If you’re getting evicted, there’s very little chance that you have enough money to hire a lawyer, so that just means that there’s very little check on what’s going on in the system. There’s nobody telling someone what their rights are, what they can do to fight it.”
In Garfield, Oklahoma and Tulsa counties, about half of eviction filings result in a default judgment, according to the Oklahoma Policy Institute. Default judgments are the most common way that cases are disposed in civil courts across the country.
“Those big corporations, they don’t even have to do anything but file the suit,” Carpenter said.
Advocates for increased access to justice note one recurring issue – that many people don’t realize that court could hold the solution to their problems.
“Someone who’s getting evicted, they may not even try to go to court because they think, ‘Well, I didn’t pay the rent this month,’ and not realize if they’re living in substandard housing they may have an ability to offset some of that rent based on the conditions of their home,” Foster said.
Another struggle for low-income litigants is filing fees, which can vary by the type of case, by court and by state. For some perspective, Oklahoma County’s District Court charges about $220 to file a civil claim under $10,000. Cases typically have an initial filing fee, followed by additional fees that depend on the type of document filed. These fees add up, posing a barrier that could block working class and impoverished people from pursuing legal action even when they have a credible case.
The study from the National Center for State Courts found that 3 in 4 judgments were for less than $5,200, meaning it wouldn’t be cost-effective to hire an attorney. With low judgments at play, court fees can impact whether or not someone files a case. For instance, for an individual suing to recover $400, a filing fee of $250 would cut into the net amount they could get from the case.
“You may be able to recover that $250 at the end, … but you may not, depending on the state, depending on the circumstances,” Raftery said. “So it becomes potentially cost-prohibitive to have these huge civil filing fees just to initiate the case.”
Litigants in every state can request that the court waive filing fees if they can’t afford them, but those who qualify may not know that, since many courts don’t mention that option in fee schedules that lay out the cost to file each type of document. Exacerbating the issue, Foster said that she faced pressure as a judge to only approve applications for those who met federal poverty guidelines.
Social service advocates argue that the poverty definition is outdated and set too low, effectively excluding many who face intense financial hardships. For most states, the poverty guideline for one person is set at $12,490, which lands about $2,600 below what a full-time worker would earn in a year at minimum wage before taxes.
Foster referred to a Federal Reserve report that found about 40 percent of adults can’t afford an unexpected expense of $400, making their ability to cover hundred-dollar civil filing fees a stretch.
“I think sometimes it’s hard for many people to imagine that coming up with $200 is a hard thing to do, but the reality of many people’s lives is that there is no room in their budget,” Foster said. “And what that does is it lets people be exploited.”
Advocates for improved access to the civil justice system involve lawyers taking on the problem by working pro bono or offering sliding scale services. Some attorneys also offer “unbundled” services, where a lawyer handles a portion of case, such as appearing in court or preparing a legal document.
Perhaps the most cited solution, though, are self-help centers that offer a range of services beginning with access to easy-to-understand forms for common situations like filing for divorce. Some programs have paid staff members and volunteer attorneys on hand to answer litigants’ questions.
Basic resources include forms in plain English, answers to frequently asked questions, instructional videos and checklists to guide litigants through common cases.
Katherine Alteneder, executive director of the Self-Represented Litigation Network, pioneered the country’s first virtual self-help center in 2001 in Alaska. Focused on family law, the Alaska Court System’s program used a model that included a hotline manned by two non-attorney staff members. The center built its resources as people asked for them, going on to create hundreds of family law forms and other documents filled with information that they made available online.
“If everything is just in a statute book on the shelf, that might be good for lawyers, but it’s not good for the layperson,” Alteneder said. “We need to do a little more.”
Self-help centers do have their opponents, though. Graves said that one of her biggest challenges when she served as executive director of the Mississippi Access to Justice Commission was pushback from members of the private bar against providing self-help resources. Attorneys expressed concerns that some legal matters are too complex for people to handle on their own, which Graves agreed applies to complicated cases, such as medical malpractice.
Some bar members also argued that self-help centers take business away from lawyers, especially those who work in low-population areas with a small pool of potential clients.
“That bothers me, because in most instances, these folks are reaching out to members of the private bar, being turned away because they can’t afford them, and not being offered any alternative payment arrangements,” Graves said. “So then, they’re calling legal aid organizations, which are at capacity (and) can’t help them, or they’re presenting with a legal issue that’s outside the capacity of a legal aid organization, so they’re on their own.”
A major change, like hiring staff for self-help centers, takes money, though. So does funding Legal Aid lawyers and investing in technology so litigants can get the information they need.
“Running the justice system is a fundamental, basic, elementary responsibility of government, and it’s got to be funded,” Sandman said. “You can say the courts should do it, but if legislatures aren’t going to fund the courts to do it, it’s not going to happen.”
At the same time, Alteneder argued that many steps to make courts more accessible don’t actually cost anything, like improving case management and making staff more available to guide litigants to the information they need.
“I think the biggest barrier ultimately is that commitment to case management, because you have to just do it differently,” she said. “Courts are so under-resourced that that’s completely overwhelming to do.”
Contact Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Facebook and Twitter.
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