Since the 1990s, a rising number of Americans have represented themselves in civil courts, inflating the demand for legal aid programs and attorneys who provide pro bono services.
In many courts across the country, the public also has access to self-help centers that guide people through civil court cases, like divorces.
As many courthouses have been closed during the pandemic, some self-help programs have shut down shop, as well. Others have shifted services online or to hotlines, prompting some judges and attorneys to wonder if the health crisis could inadvertently increase access to these resources.
“They’re often viewed as additions to the core court operations, sort of an enhancement, and I would argue … it is not an enhancement,” said the Self-Represented Litigation Network’s Katherine Alteneder. “It is absolutely the core function of courts to figure out how to provide self-help services so the public can engage in the justice system.”
Civil cases tend to fall under one of two umbrellas, the first being family law, including divorce, child custody and protective orders.
The other umbrella covers contract disputes, such as evictions, foreclosures and debt.
Cases involving debt and evictions are dominated by people defending themselves against a landlord or company armed with an attorney.
Jeff Daybell, an access to justice staff attorney for the Utah State Bar, said Utah eviction law is “heavy-handed” against tenants, who are often ordered to pay their landlords’ attorney fees as part of judgments to resolve the case, even if they don’t have lawyers themselves.
“The tenants are rarely represented, because honestly if they could have afforded an attorney, they probably would have paid the rent and avoided the eviction, so that’s kind of where that catch-22 is,” Daybell said.
A 2017 study from Legal Services Corporation, which funds legal aid programs, found that 71 percent of low-income households had experienced a civil legal problem in the past year. The majority – 86 percent – received inadequate legal help or none at all, the report said.
In-person and online self-help centers work to bridge the gap beyond legal aid programs and pro bono counsel.
The centers offer a range of services, from instructional videos and access to easy-to-understand forms to more hands-on assistance. Some programs have paid staff members or volunteer attorneys available to answer questions or hold legal clinics.
Legal aid programs also may have self-help elements. For example, Southeast Louisiana Legal Services developed sample letters and emails tenants can use to request payment plans or other negotiations from landlords during the pandemic.
Looking forward, courts are expected to take on a greater number of cases connected to skyrocketing unemployment and economic instability. Down the road, judges and attorneys predict higher numbers of debt collection cases, evictions, foreclosures and bankruptcies.
Alteneder believes this demonstrates why self-help centers should receive greater resources.
“When we consider the expansion of legal needs that are just going on as a result of both the public health crisis and the economic crisis, the courts couldn’t meet that self-represented need beforehand,” Alteneder said. “So, for me, those expanded resources include really intentional funding – by government leaders – of self-help centers.
“That is the primary resource for self-represented litigants, and without it, they are not going to be able to avail themselves of the justice system.”
Danielle Hirsch, a principal court management consultant for the National Center for State Courts, thinks the pandemic created an opening for court systems to find ways to make it easier for people to represent themselves.
“Just the volume of courts that are exploring remote hearings, appearances and processes now versus three months ago is an amazing flip, and it represents an opportunity for people to handle their court matters more efficiently,” Hirsch said. “I think there are lots of opportunities where technology or innovation can make the system better than it was before.”
But that innovation would take money at a time when the pandemic will likely leave its mark on state court budgets.
“A lot of the potential solutions that courts are implementing in this moment – technological innovations, retraining staff – those all take resources,” Hirsch said. “Thinking about how to implement these reforms and keep the court systems operating in a way that meets the needs of the citizenry is going to be an issue long-term, and it’s not one I think we have an answer to yet.”
Michigan Supreme Court Chief Justice Bridget Mary McCormack wants to see courts experiment with new ways to provide resources to people representing themselves, whether it’s through court staffing, more lawyers offering pro bono assistance, online self-help programs or resource hubs at public places like libraries or the YMCA.
“There are so many other people who have life-or-death needs,” McCormack said. “They can’t afford a lawyer, and what kind of legal system leaves them without the tools to be able to have their voices heard in our courtrooms?”
Case in point: Debt collection
In some states, courthouses are beginning to open their doors after months of closure, creating a rush of filings – and potentially, backlogs and other logistic issues.
McCormack said that Michigan courts aren’t currently dealing with backlogs, “but that doesn’t account for the slew of new cases that we’re going to see once people can start filing those cases. And there will be a tremendous increase in debt collection cases.”
Debt collection lawsuits are already the most common type of civil case in many courts. The number of debt collection suits doubled from 1993 to 2013, according to a recent study from the Pew Charitable Trusts.
We don’t have a full picture of how these cases play out in courtrooms across the country. According to the Pew study, most states don’t report any information on debt collection cases – not even how many were filed.
But with the data that is available, Pew found that from 2010 to 2019, less that 10 percent of defendants, or those being sued, had attorneys in debt collection lawsuits. Those with lawyers were more likely to win the case or reach a settlement.
Those sued often don’t respond to debt collection lawsuits at all. When defendants don’t appear in court, their cases end in default judgments, which mean the court ruled in favor of the party that showed up. Pew’s report said that during the last decade, 70 percent of debt collection lawsuits were resolved with default judgments in favor of the plaintiff, or the party who is suing.
Consequences of a judgment may include wage garnishment or the collection of assets. Some people don’t find out about a lawsuit against them until their wages are garnished.
Erika Rickard, a Pew Charitable Trusts project director focused on the civil legal system, said defendants may not do anything about a suit if the debt has changed hands because they don’t recognize the name of the company suing them.
“When you receive something in the mail from a company that you’ve never heard of, would you be inclined to think that is a legitimate court case that you had to respond to?” Rickard said.
Defendants representing themselves might not realize the facts are in their favor to challenge the lawsuit.
Legal aid attorneys specializing in debt collection lawsuits told Big If True they have seen a range of issues with these kinds of cases. Some of their clients were sued multiple times for the same debt or sued for debts they never owed. Sometimes the company suing doesn’t actually own the debt and can’t legally take court action.
In some cases, the statute of limitations has run out, which also means the plaintiff can’t sue for the debt.
“The court doesn’t review that independently,” Rickard said. “It’s up to the consumer to raise that as a defense, and as we describe in the report, with any absence of procedural information provided directly to consumers about that kind of right, they’re far less likely to raise that kind of defense if they don’t have an attorney.”
Courts: Remote, open and in between
How civil courts are operating during the pandemic has varied widely from state to state – and sometimes from county to county.
For instance, Colleen Cotter, executive director of the Legal Aid Society of Cleveland, said the approach of Ohio courts has run the gamut. Some have continued holding in-person hearings with few social-distancing protections, and some require temperatures to be taken before entering courthouses. Others limit the crowd size in the court by asking people to sit in their cars until they’re called.
Before the pandemic, many civil courtrooms relied on docket calls, where dozens of cases are listed by date, time and judge. During docket calls, parties from each case gather in often crowded courtrooms, waiting for their names to be called.
“Obviously, you can’t do that and have any sort of social distancing, so the courts are going to need to figure out how to replace that in a way that’s safe for everybody,” Cotter said.
Before the pandemic, half of the clients at Southeast Louisiana Legal Services’ New Orleans office were walk-ins. Moving to remote services may work for some clients, but others may not be able to afford the internet or a cellphone.
“For those reasons, vulnerable people that cannot access services digitally or even though the telephone, certain people are really at a disadvantage now for services because of the way we’re having to work post-covid,” said Laura Tuggle, who heads Southeast Louisiana Legal Services.
Tuggle’s organization is working with a community network that includes nonprofits, businesses and churches to spread the word that legal aid services are available even with closed offices.
Moving hearings online presents issues, too. After the Texas Office of Court Administration gave judges the ability to hold remote hearings, some participants began running out of cellphone minutes, Alteneder said.
“The digital-divide issue is a little more nuanced now,” she said. “It used to just really be, ‘Do you have a computer? Do you have a phone?’ Now it’s, ‘Well, how much computer? How much phone do you have?’ And I think the answer is people have a lot less than we think.”
Meanwhile, with court budget cuts in the air, Fines and Fees Justice Center Co-Director Lisa Foster believes judges’ ability to waive filing fees for low-income people may be impacted, an issue that came up during the Great Recession when she served as a California Superior Court judge.
“We started getting emails from the administration during the recession saying, ‘You should only be granting these in extreme cases. You shouldn’t be just routinely granting them,’ because the court needed the money,” Foster said. “Many of us resisted and said, ‘We don’t really care if the court needs the money. If we think the person deserves a fee waiver, we’re going to give them a fee waiver.’”
As an example, Foster mentioned that those just above the poverty level may find it challenging to pay filing fees that can cost hundreds of dollars.
For most states, the poverty guideline for one person is set at $12,760, which is less than the annual income from a full-time, job earning a minimum wage of $7.25 per hour.
This is the second story in a two-part series examining how legal aid and self-help centers at civil courts have been impacted by the pandemic. Read the first part here.
Contact Big If True editor Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Twitter.
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