Informal, Inquisitorial, and Accurate: An Empirical Look at a Problem-Solving Housing Court

Substantive justice is often seen as elusive in courts dominated by low-income individuals. Complex court rules, coupled with pervasive lack of counsel, can make it difficult for the traditional adversary process to identify and redress legitimate grievances. This Article takes on the social problem of substandard housing and examines whether inquisitorial procedure has the potential to produce accurate outcomes in a tribunal dominated by the unrepresented. Relying on in-court observations of nearly 300 hearings, and a longitudinal review of nearly 75 cases, this Article surfaces the regularized procedures utilized by a purported “problem-solving” housing court, and theorizes that the inquisitorial features of judicially controlled investigation and enforcement may motivate landlords to repair substantiated housing code violations. This Article adds nuance to our understanding of informal justice by identifying the hidden procedural formalisms that may guide alternative decision-making processes. Furthermore, it evaluates the relationship of one iteration of experimental formalism to substantive justice, and suggests that inquisitorial procedures may be correlated with improved accuracy in case outcomes

A Theory of Civil Problem-Solving Courts

This article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated civil cases: rental housing and consumer debt. Three structural conditions in the civil courts—high-volume dockets, systemic lack of counsel, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil justice system predictably ineffective in combatting recurring social issues such as substandard housing and unscrupulous debt collection. The heart of the problem-solving theory in drug courts is the availability of an alternative remedy: treatment over prison. In civil courts, the remedy itself is not necessarily deficient; it is access to the remedy that is compromised. Relying on two years of field research in an experimental court, this Article demonstrates how core drug court principles, such as naming the purpose of the court as solving a social problem, interdisciplinary collaboration, and a strong judicial role, can be manipulated to address process failures in the civil justice system and reimagine the courts as proactive institutions responsible for the pursuit of socially beneficial outcomes. The Article also argues that a civil problem-solving theory survives many of the valid critiques levied against drug courts. In particular, drug courts have come under fire for playing a moralizing role and using compulsory treatment as a form of social control. A civil problem-solving court, however, would not exacerbate the negative impact of state power on already over-burdened groups. Instead, the targets of monitoring and behavior modification are the more powerful private actors to the litigation, such as property owners and debt buyers, who otherwise have been known to manipulate the courts—an instrument of the state—to evade their legal obligations and suppress individual rights

Adversary Breakdown and Judicial Role Confusion in “Small Case” Civil Justice

This Article calls attention to the breakdown of adversary procedure in a largely unexplored area of the civil justice system: the ordinary, twoparty case. The twenty-first century judge confronts an entirely new state of affairs in presiding over the average civil matter. In place of the adversarial party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice system have sparked role confusion among judges, who find it difficult to both maintain stony silence and reach merits-based decisions in the twelve million cases involving unrepresented parties. This Article contends that the adversary ideal is untenable in the lower civil courts. Appellate courts and ethics bodies have virtually ignored this problem, with the result that judges are left to improvise a solution. Indeed, it is now routine for judges to flout tradition and doctrine by concocting ad hoc and unregulated procedures that assist the unrepresented with fact development and issue creation. This Article argues that such efforts should be formalized and regularized through an affirmative duty on judges to develop the factual record in cases that arise in lower civil courts. In complex federal litigation, adversary norms have evolved, and the judicial role has been greatly enhanced to manage the unique pre- and post-trial needs of cases with numerous parties and high public impact. This Article argues for a parallel framework to enlarge the role of the judge in small, two-party civil cases. An affirmative duty may chafe against orthodox notions of the judge as a “passive arbiter,” but it would harmonize the disparate procedural practices already in use in the lower courts, and go a long way toward resurrecting the procedural values of accuracy, impartiality, party voice, and transparency in civil adjudication

Demand Side Reform in the Poor People’s Court

A crisis in civil justice has seized the lowest rungs of state court where the great majority of American justice is meted out. Nineteen million civil cases are filed each year in the so-called “poor people’s court,” and seventy to ninety-eight percent of those matters involve an unrepresented litigant who is typically low-income and often a member of a vulnerable population. This Article challenges the predominant scholarly view in favor of “supply side” remedies for improving access to justice—that is, remedies focused exclusively on supplying counsel to litigants, either through adoption of “civil Gideon,” a universal civil right to counsel, or through the provision of “unbundled,” or limited, legal services—arguing that such an approach is practically and conceptually unworkable. Courts and legislatures have rejected attempts to expand a civil right to counsel and initial data suggests that the delivery of limited legal services produces anemic, if any, improvements in substantive fairness for the unrepresented.This Article sets forth a vision of “demand side” procedural and judicial reform as an alternative, or complementary, theory of civil justice. Demand side reform would charge courts, rather than parties, with the duty to advance cases and develop legally relevant narratives, thereby focusing on institutional change that would strengthen due process for the great majority of litigants in the American justice system. This proposal builds upon the Supreme Court’s recent holding in Turner v. Rogers that “alternative procedural safeguards” must be implemented to ensure due process for civil contemnors, and offers unrepresented litigants a viable mechanism for dispute resolution that—unlike the supply side approach—does not perpetuate court processes requiring party initiative and expertise

Informal, Inquisitorial, and Accurate: An Empirical Look at a Problem-Solving Housing Court

Substantive justice is often seen as elusive in courts dominated by low-income individuals. Complex court rules, coupled with pervasive lack of counsel, can make it difficult for the traditional adversary process to identify and redress legitimate grievances. This Article takes on the social problem of substandard housing and examines whether inquisitorial procedure has the potential to produce accurate outcomes in a tribunal dominated by the unrepresented. Relying on in-court observations of nearly 300 hearings, and a longitudinal review of nearly 75 cases, this Article surfaces the regularized procedures utilized by a purported “problem-solving” housing court, and theorizes that the inquisitorial features of judicially controlled investigation and enforcement may motivate landlords to repair substantiated housing code violations. This Article adds nuance to our understanding of informal justice by identifying the hidden procedural formalisms that may guide alternative decision-making processes. Furthermore, it evaluates the relationship of one iteration of experimental formalism to substantive justice, and suggests that inquisitorial procedures may be correlated with improved accuracy in case outcomes

Adversary Breakdown and Judicial Role Confusion In “Small Case” Civil Justice

This Article calls attention to the breakdown of adversary procedure in a largely unexplored area of the civil justice system: the ordinary, two-party case. The twenty-first century judge confronts an entirely new state of affairs in presiding over the average civil matter. In place of the adversarial party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice system have sparked role confusion among judges, who find it difficult to both maintain stony silence and also reach merits-based decisions in the twelve million cases involving unrepresented parties. This Article contends that the adversary ideal is untenable in the lower civil courts. Appellate courts and ethics bodies have virtually ignored this problem, with the result that judges are left to improvise a solution. Indeed it is now routine for judges to flout tradition and doctrine by concocting ad hoc and unregulated procedures that assist the unrepresented with fact development and issue creation. This Article argues that such efforts should be formalized and regularized through an affirmative duty on judges to develop the factual record in cases that arise in the lower civil courts. In complex federal litigation, adversary norms have evolved and the judicial role has been greatly enhanced to manage the unique pre- and post-trial needs of cases with numerous parties and high public impact. This Article argues for a parallel framework to enlarge the role of the judge in small, two-party civil cases. An affirmative duty may chafe against orthodox notions of the judge as “passive arbiter,” but it would harmonize the disparate procedural practices already in use in the lower courts and go a long way towards resurrecting the procedural values of accuracy, impartiality, party voice, and transparency in civil adjudication

In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services

In the United States today, an estimated eighty percent of the legal needs of the poor go unmet. The Supreme Court has repeatedly identified access to the courts as a fundamental constitutional right, but a lack of affordable legal counsel has shattered the promise of this right for low-income individuals. There is widespread consensus that this “justice gap” between rich and poor litigants threatens the credibility of the justice system, undermines public confidence in the law, and distorts the accuracy of judicial decision-making. The provision of “unbundled” legal aid has been this decade’s response to the severe shortage of lawyers available to represent poor litigants. Hailed as an innovation in the delivery of legal services, “unbundling” is a piecemeal lawyering model in which a lawyer provides assistance with a discrete legal task only and does not perform the full range of services expected from traditional legal representation. Many courts, government agencies, and lawyers for the poor have championed unbundling as a solution to the chronic under-enforcement of rights faced by those who cannot afford counsel. This support is based on a belief that granting some legal aid to a broad swath of the indigent population will create greater access to justice than a model that provides full representation to a small fraction of low-income litigants and zero representation to the remainder. Despite proliferation of unbundled legal services programs across the nation, the threshold question of the efficacy of unbundled legal aid has not been the focus of significant attention by scholars and practitioners. Very little is known about how unbundled aid affects clients and cases, and whether it advances justice - however one might define it - for low-income litigants. This paper reports on the results of an empirical study designed and implemented to test the impact of two specific forms of unbundled legal aid on the case outcomes of indigent litigants. The study tracks outcomes for nearly 100 tenants facing eviction in a single California trial court, all of whom received “unbundled” help drafting a responsive pleading, and half of whom also received one-time assistance negotiating with their landlords at pre-trial settlement conferences. Case results achieved by the tenants who received unbundled legal aid are compared to more than 300 tenants who received no legal assistance at all and to twenty tenants who received full representation. As measured by substantive case outcomes, the study concludes that the success of this particular unbundled legal services program was quite limited. Although the study design did not include a randomization scheme, with the result that the impact of the delivery model was more difficult to isolate and measure, the findings nonetheless suggest that the unbundled service model might not provide benefit to all assisted clients in all circumstances, as has been presumed, and make clear the need for rigorous evaluation of the model if we aim to understand where - if at all - rendering less than the “full bundle” of assistance can maximize favorable outcomes for indigent litigants. The paper concludes by discussing the limitations of the study, identifying future research needs, and, in light of the findings, proposing potential models for assisting the rising tide of pro se litigants struggling to advance their cases without lawyer representation. The data culled from this study provide additional insight into whether the provision of unbundled aid supports the development of a more effective system of distributive justice that uncouples financial status from the ability to protect one\u27s basic rights

Law School Clinics and the Untapped Potential of the Court Watch

This is a time of enormous creativity and innovation in civil access to justice. It is now widely recognized that scarcity is reality in the provision of legal services and that overburdened and technologically retrograde courts are struggling to meet the demands of case processing in a fair and efficient manner. Accompanying the proliferation of various interventions is a growing call for empirical research on civil access to justice. Recently, the idea that law school clinics might serve as sites or architects of a civil justice research agenda has been advanced. Building on these proposals, this Article suggests that “court watch” research, involving live field observation of court proceedings, may serve as an ideal point of entry for law school clinics to participate in the advancement of evidence-based civil justice policy. While most civil justice research focuses on the retrospective review of written decisions, numerous issues—including the conduct of judges, the challenges faced by unrepresented parties, and the disconnect between the law in action and the law on the books—can only be studied through contemporaneous observation of live hearings. Additionally, court watch research can yield important pedagogical benefits that serve law school clinics’ dual teaching-service mission. Accompanied by reflection and discussion, court watch research have the potential to expose law students to a broad swath of justice issues, acculturate students to the norms and habits of court actors, and introduce students to the study, design, and critique of institutional systems

Adversary Breakdown and Judicial Role Confusion in “Small Case” Civil Justice

This Article calls attention to the breakdown of adversary procedure in a largely unexplored area of the civil justice system: the ordinary, twoparty case. The twenty-first century judge confronts an entirely new state of affairs in presiding over the average civil matter. In place of the adversarial party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice system have sparked role confusion among judges, who find it difficult to both maintain stony silence and reach merits-based decisions in the twelve million cases involving unrepresented parties. This Article contends that the adversary ideal is untenable in the lower civil courts. Appellate courts and ethics bodies have virtually ignored this problem, with the result that judges are left to improvise a solution. Indeed, it is now routine for judges to flout tradition and doctrine by concocting ad hoc and unregulated procedures that assist the unrepresented with fact development and issue creation. This Article argues that such efforts should be formalized and regularized through an affirmative duty on judges to develop the factual record in cases that arise in lower civil courts. In complex federal litigation, adversary norms have evolved, and the judicial role has been greatly enhanced to manage the unique pre- and post-trial needs of cases with numerous parties and high public impact. This Article argues for a parallel framework to enlarge the role of the judge in small, two-party civil cases. An affirmative duty may chafe against orthodox notions of the judge as a “passive arbiter,” but it would harmonize the disparate procedural practices already in use in the lower courts, and go a long way toward resurrecting the procedural values of accuracy, impartiality, party voice, and transparency in civil adjudication

In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services

In the United States today, an estimated eighty percent of the legal needs of the poor go unmet. The Supreme Court has repeatedly identified access to the courts as a fundamental constitutional right, but a lack of affordable legal counsel has shattered the promise of this right for low-income individuals. There is widespread consensus that this “justice gap” between rich and poor litigants threatens the credibility of the justice system, undermines public confidence in the law, and distorts the accuracy of judicial decision-making. The provision of “unbundled” legal aid has been this decade’s response to the severe shortage of lawyers available to represent poor litigants. Hailed as an innovation in the delivery of legal services, “unbundling” is a piecemeal lawyering model in which a lawyer provides assistance with a discrete legal task only and does not perform the full range of services expected from traditional legal representation. Many courts, government agencies, and lawyers for the poor have championed unbundling as a solution to the chronic under-enforcement of rights faced by those who cannot afford counsel. This support is based on a belief that granting some legal aid to a broad swath of the indigent population will create greater access to justice than a model that provides full representation to a small fraction of low-income litigants and zero representation to the remainder. Despite proliferation of unbundled legal services programs across the nation, the threshold question of the efficacy of unbundled legal aid has not been the focus of significant attention by scholars and practitioners. Very little is known about how unbundled aid affects clients and cases, and whether it advances justice - however one might define it - for low-income litigants. This paper reports on the results of an empirical study designed and implemented to test the impact of two specific forms of unbundled legal aid on the case outcomes of indigent litigants. The study tracks outcomes for nearly 100 tenants facing eviction in a single California trial court, all of whom received “unbundled” help drafting a responsive pleading, and half of whom also received one-time assistance negotiating with their landlords at pre-trial settlement conferences. Case results achieved by the tenants who received unbundled legal aid are compared to more than 300 tenants who received no legal assistance at all and to twenty tenants who received full representation. As measured by substantive case outcomes, the study concludes that the success of this particular unbundled legal services program was quite limited. Although the study design did not include a randomization scheme, with the result that the impact of the delivery model was more difficult to isolate and measure, the findings nonetheless suggest that the unbundled service model might not provide benefit to all assisted clients in all circumstances, as has been presumed, and make clear the need for rigorous evaluation of the model if we aim to understand where - if at all - rendering less than the “full bundle” of assistance can maximize favorable outcomes for indigent litigants. The paper concludes by discussing the limitations of the study, identifying future research needs, and, in light of the findings, proposing potential models for assisting the rising tide of pro se litigants struggling to advance their cases without lawyer representation. The data culled from this study provide additional insight into whether the provision of unbundled aid supports the development of a more effective system of distributive justice that uncouples financial status from the ability to protect one\u27s basic rights