The Keys to the Kingdom: Judges, Pre-Hearing Procedure, and Access to Justice

Judges see themselves as – and many reforming voices urge them to be – facilitators of access to justice for pro se parties in our state civil and administrative courts. Judges’ roles in pro se access to justice are inextricably linked with procedures and substantive law, yet our understanding of this relationship is limited. Do we change the rules, judicial behavior, or both to help self-represented parties? We have begun to examine this nuanced question in the courtroom, but we have not examined it in a potentially more promising context: pre-hearing motions made outside the courtroom. Outside the courtroom, judges rule on requests such as motions to continue or for telephone appearances that allow parties to participate in and access the hearing room. These requests have significant consequences for the party, do not implicate the merits of the underlying case, and are a pared-down environment in which to examine the interaction of judicial behavior and procedures. This article analyzes pre-hearing procedures using more than 5,000 individual unemployment insurance cases, largely involving self-represented litigants, to investigate how judges and procedure interact to expand or contract access to the hearing room and thus to justice. The data show significant variation in how judges apply these procedures and in parties’ case outcomes. These findings underscore the importance of pre-hearing procedures and judicial decisions that grant or deny access to the courtroom, and the barriers that judicial application of these procedures can present for self-represented litigants. The findings also suggest that changes to judicial behavior – through suggestion, training, or ethical codes – may be insufficient to address this aspect of access to civil justice

Significant Entanglements: A Framework for the Civil Consequences of Criminal Convictions

A significant and growing portion of the U.S. population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The phenomenon of civil consequences of conviction presents an overlap of civil and criminal law that poses difficult questions about how the theory behind this overlap translates to practical application. Padilla v. Kentucky, heralded by some as a watershed and treated by others as an anomaly, is a first step in matching the law to the practical reality of the civil consequences of criminal convictions. This Article examines Padilla and the context in which it was decided and suggests that, although the dissenters in Padilla may be correct that the opinion will be difficult to apply in a coherent way, the decision has taken the first step towards a new legal doctrine of civil consequences. The Supreme Court\u27s recent decision in Turner v. Rogers underscores that the Court\u27s approach in these two cases creates an opportunity to consider this overlap of civil and criminal law and to create a more realistic, consistent, and just doctrine of civil consequences of criminal convictions. This Article begins the process of defining this doctrine by suggesting that instead of inquiring into whether consequences are direct or collateral as courts have in the past, courts should inquire into whether these civil consequences are significant entanglements of civil and criminal law. First, courts should analyze whether the civil consequence is significant, in both an objective and subjective sense. Second, courts should examine whether the consequence is entangled with the criminal process. Where significant entanglements exist, corresponding protections should follow. The Article goes on to suggest that the significant entanglement framework can be used to analyze whether Sixth Amendment protections should apply to a particular civil consequence at a particular stage of the criminal process. Further the significant entanglement framework can be applied outside the Sixth Amendment context to understand the other constitutional protections that may be applied by courts as a result of civil consequences of criminal convictions. Thus, the significant entanglement framework is the next step in developing a new doctrine for the protections that apply to civil consequences of criminal convictions and for understanding this particular intersection of civil and criminal law

Educating the Invincibles: Strategies for Teaching the Millennial Generation in Law School

Each new generation of law students presents its own set of challenges for law teachers seeking to develop competent and committed members of the legal profession. This article aims to train legal educators to recognize their students\u27 generational learning style and to deliver a tailored education that supports the development of skilled attorneys. To help legal educators better understand the newest generation of law students, this article explores the traits associated with the Millennial Generation of law students, including their perspective on themselves and others, on education and on work. It then provides detailed and specific strategies for teaching millennial students. Though we developed these strategies in a clinical setting, they apply in both the clinical and classroom setting. As this article demonstrates, if well supported and motivated, the Millennial Generation will include extraordinary attorneys who advance the legal profession to new heights

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

A Tale of Two Civil Procedures

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: those that routinely include lawyers and those where lawyers are fundamentally absent. This Essay urges civil procedure teachers and scholars to think about our courts as “lawyered” and “lawyerless.” Lawyered courts include federal courts coupled with state court commercial dockets and the other pockets of state civil courts where lawyers tend to be paid and plentiful. Lawyerless courts include all other state courts, which hear the vast majority of claims. This Essay argues that this categorization reveals fundamental differences between the two sets of court procedures and much about the promise and limits of procedure. The Essay also discusses how this dichotomy plays out in three of today’s most contentious topics in civil procedure scholarship: (1) written and unwritten proceduremaking, (2) the role of new technology, and (3) the handling of masses of similar claims. This categorization illuminates where and how lawyers are essential to procedural development and procedural protections. They also help us better understand when technology should assist or replace lawyers and how to reinvent procedure or make up for lawyers’ absence. Finally, they reveal that fixing court procedure may simply not be enough

A Tale of Two Civil Procedures

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which include federal courts coupled with state court commercial dockets and the other pockets of state civil courts where lawyers tend to be paid and plentiful—and “lawyerless” state courts, which hear the vast majority of claims filed in this country. Doing so, we argue, reveals fundamental differences between the two sets of court procedures that operate in the United States and much about the promise and limits of procedure. We discuss how this dichotomy plays out in three of the most contentious and talked about topics in civil procedure scholarship today: written and unwritten procedure making, the role of new technology, and the handling of masses of similar claims. Seen through this lens, these examples illuminate where and how lawyers are essential to procedural development and procedural protections; they help us better understand where technology should be used to assist or replace lawyers, and where it should be used to reinvent procedure or make up for lawyers’ absence; and they reveal when fixing court procedure may simply not be enough

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

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

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