Active Judging and Access to Justice

“Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new theoretical framework: three dimensions of active judging. These dimensions capture a judge’s role in adjusting procedures, explaining law and process, and eliciting information. The study is based on a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth, qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample are active in some way, but judges’ practices vary in mean-ingful ways across the three dimensions. While all judges are willing to adjust procedures, they differ in whether and how they explain the law or elicit information. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law—burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate caselaw, a regulatory body, and one another. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests that consistency in active judging may require more substantial guidance than that available to judges in this court

Active Judging and Access to Justice

“Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about active judging. In response, this Article contributes new data and a new theoretical framework: three dimensions of active judging. These dimensions capture a judge’s role in adjusting procedures, explaining law and process, and eliciting information. The study is based on a District of Columbia administrative court where most parties are pro se and active judging is permitted and encouraged. Using in-depth, qualitative interviews with judges in this court, the study asks: Are the judges active? If so, how? Do views and practices vary across the judges? What factors shape and mediate those views and practices? Results reveal that all judges in the sample are active in some way, but judges’ practices vary in meaningful ways across the three dimensions. While all judges are willing to adjust procedures, they differ in whether and how they explain the law or elicit information. These variations are based on judges’ different views about the appropriate role of a judge in pro se matters, views that are mediated by substantive law—burdens of proof, in particular. The variations exist though the judges draw on shared sources of guidance on active judging: appellate caselaw, a regulatory body, and one another. This study suggests refinements to current thinking about active judging, offers new insights about the roles procedural rules and burdens of proof play in pro se litigation, and suggests that consistency in active judging may require more substantial guidance than that available to judges in this court

Simplified Courts Can\u27t Solve Inequality

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the legislative and executive branches\u27 failure to provide a social safety net in the face of rising inequality. The legal profession and judiciary must step back to question whether the courts should be the branch of government responsible for addressing socioeconomic needs on a case-by-case basis

Simplified Courts Can\u27t Solve Inequality

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the legislative and executive branches’ failure to provide a social safety net in the face of rising inequality. The legal profession and judiciary must step back to question whether the courts should be the branch of government responsible for addressing socioeconomic needs on a case-by-case basis

Can a Little Representation Be a Dangerous Thing?

Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases and our legal system develops devoid of law reform that reflects the needs of low- and middle-income litigants

Can a Little Representation Be a Dangerous Thing?

Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases, and our legal system develops devoid of law reform that reflects the needs of low- and middle-income litigants

Can a Little Representation Be a Dangerous Thing?

Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases and our legal system develops devoid of law reform that reflects the needs of low- and middle-income litigants

Lawyers, Power, and Strategic Expertise

The only sound in a courtroom is the hum of the ventilation system. It feels as if everyone in the room is holding their breath …. Litigants are uneasy in the courthouse, plaintiffs and defendants alike. They fidget. They keep their coats on. They clutch their sheaves of paper-rent receipts and summonses, leases and bills. You can always tell the lawyers, because they claim the front row, take off their jackets, lay out their files. It\u27s not just their ease with the language and the process that sets them apart. They dominate the space. This empirical study analyzes the experience of the parties described above, specifically the power, representation, and strategic expertise they bring to a dispute. Our analysis of these factors clarifies how representation may be a solution to the access to justice crisis. We find that a representative helps most parties most of the time. We also find that the other party\u27s representation and the representative\u27s strategic expertise are significant factors for understanding representation for civil litigants. This study analyzes a database of 1,700 unemployment insurance appeals in the District of Columbia over a two-year period, the broadest and deepest collection of data about representation in recent years. The analysis shows wide disparity in representation, with employers (the more powerful party to a dispute or the quintessential haves ) represented twice as often as claimants (the less powerful party or the have nots ), as well as a notable difference in parties\u27 use of procedures in hearings. Using difference-in-proportions tests, this Article examines the interaction of party power and representation and finds that represented parties have better case outcomes than unrepresented parties, though employers see less benefit from legal representation than claimants. In addition, the Article confirms the intuitive result that represented parties are more likely to use procedures than unrepresented parties. Yet, surprisingly, the Article finds that represented claimants who use certain evidentiary procedures have worse case outcomes than represented claimants who do not use those same procedures. We recommend that any policy solution to the country\u27s civil litigation crisis, whether it is a right to civil counsel, unbundled legal services, lay advocacy, or pro se court reform, must account for these factors. To achieve this goal, we call for a deeper understanding of representation in context

Lawyers, Power, and Strategic Expertise

This empirical study analyzes what the parties and lawyers described above experience – a party’s power, representation, and the strategic expertise they bring to a dispute. These factors clarify how representation may solve the access to justice crisis for low-income Americans. We find that a representative helps most parties most of the time, but the representation on the other side of the dispute and the representative’s strategic expertise are also significant factors for understanding representation for civil litigants. This study analyzes a database of 1,700 unemployment insurance appeals in the District of Columbia over a two-year period, the broadest and deepest collection of data about representation in recent years. The analysis shows wide disparity in representation, with employers (the more powerful party to a dispute or the quintessential “haves”) represented twice as often as claimants (the less powerful party or the “have nots”), as well as a notable difference in parties’ use of procedures in hearings. Using difference in proportions tests, this article examines the interaction of party power and representation and finds that represented parties have better case outcomes than unrepresented parties, though employers see less benefit from legal representation than claimants. In addition, the article confirms the intuitive result that represented parties are more likely to use procedures than unrepresented parties. Yet, surprisingly, the article finds that represented claimants who use certain evidentiary procedures have worse case outcomes than represented claimants who do not use those same procedures. We recommend that any policy solution to the country’s civil litigation crisis – whether it is a right to civil counsel, unbundled legal services, lay advocacy, or pro se court reform – must account for these factors. To achieve this goal, we call for a deeper understanding of representation in context