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Readers of this blog will be familiar with the importance of state courts, especially on the front lines of election and reproductive rights litigation. As a matter of procedure, the state courts that handle such high stakes litigation more or less resemble federal courts—they follow roughly similar procedures, may allow extensive discovery, and, importantly, showcase a battle between the lawyers on each side of the dispute. In many state courts, however, that battle is absent because the lawyers are absent. Indeed, 98% of civil cases in the United States are filed in state courts, and in 75% of those cases, one or both parties are lawyerless.
In A Tale of Two Civil Procedures, a new paper forthcoming in the Columbia Law Review, we argue that the traditional understanding of U.S. courts as breaking down into two buckets—federal and state—can obscure the importance of lawyerless courts. Civil procedure scholars and others often focus on the state courts that handle proceedings that more or less resemble those in federal court and that involve heavily lawyered disputes. Lawyerless state courts are too often ignored altogether, especially in conversations about civil procedure, though their prominence as an area of research and reform is growing.
The federal-state dichotomy makes sense when discussing some issues. But the lawyered-lawyerless dichotomy is just as salient for understanding American civil justice. “Lawyered” courts include those federal and state courts that hear heavily lawyered claims, like high-stakes constitutional debates and commercial dockets. In these courts, lawyers tend to be plentiful, whether paid or pro bono. “Lawyerless” courts include the rest of the state court system, which hear the vast majority of claims. These courts handle small claims, debt collection, housing, family law, and other fallout of our social ills. These kinds of claims disproportionately burden marginalized and lower-income litigants who cannot afford lawyers and indeed who often do not even recognize their problems as having a legal dimension. Our article looks at three current areas of focus in civil procedure where we can learn more – and do better – if we consider the distinction between lawyered and lawyerless courts: procedural rulemaking, the role of technology, and mass claims.
For example, an examination of procedural rulemaking reveals the importance of lawyers in the face of informality. In lawyered courts, procedural rules are painstakingly developed through the formal rule-making process. In exceptional circumstances, however, ad hoc procedures may be developed to address unanticipated procedural issues that arise while a litigation is pending. Such procedures can be criticized as illegitimate, but lawyers play an important role in keeping them in check. When lawyers are present, they can, for example, object to opponents’ attempts to manipulate procedures. They can also counter judges’ exercise of procedural power and provide a check on both opposing counsel and the judge by observing proceedings, demanding reasoned explanations, and filing appeals. And lawyers are instrumental in the feedback loop through which ad hoc procedures spur more systematic procedural changes. This can happen in lawyered courts whether state or federal. But without that process of procedural law development, ad hockery can become the norm.
While states also have their own procedural rule-making processes, the overwhelming presence of informal procedure in lawyerless contexts like eviction courts create fertile ground for judges (and one-sided lawyers) to generate more unwritten procedures or to fail to check judges’ unwritten procedure-making by requiring written explanation or seeking appeal. The consequences of this phenomenon are as unpredictable as the procedures themselves. Some of these ad hoc procedures benefit repeat players, like those that relax procedural requirements for landlords in Baltimore’s rent courts or those that enable passive processing of debt collection actions by debt-buyer plaintiffs. These procedures have disproportionately negative effects on poor people and people of color, especially Black women. The insight for procedure may well be that transformation is necessary, that lawyers are a necessary ingredient in this transformation, and that the role of lawyers is not to convert lawyerless courts to lawyered ones, but rather by participating in redesigning the courts themselves.
The topic of technology in civil procedure illuminates the disparities and common ground of lawyered and lawyerless courts. In lawyered courts, technology is commonly seen as a tool to assist lawyers, like e-discovery and case management. In lawyerless courts, technology fills the gap left by the absence of lawyers in the form of legal form generation, apps, limited assistance, or other tools. One emerging topic bridges the distinctions between both state and federal courts and lawyered and lawyerless courts: notice. Some e-notice issues seem particular to lawyered courts, like those concerning class actions. Other issues regarding notice seem particular to lawyerless courts, such as those concerned with high default rates that leverage technology. In both contexts, technology is reorienting the legal community’s understanding of notice and how it relates to due process, fairness, and justice.
Finally, the phenomenon of mass claims underscores the power of lawyers, in their presence and absence. In lawyered courts, mass claims are generally addressed through procedural aggregation mechanisms such as class actions and MDL. Lawyers hold immense power in these cases, and the combination of procedure and lawyers skews heavily toward settlement. In lawyerless courts, mass resolution is the approach to immense docket volume, also skewing toward settlement. In this lawyerless context, one phenomenon is that asymmetrical representation favors the represented player and influences settlement such as in cases with debt-buyer plaintiffs. The other phenomenon is that in the absence of any representation, the judge wields immense power to resolve large volumes of claims through settlement. Whether the lawyer is part of a fully represented matter, wielding asymmetrical power, or serving as a judge, mass claims across lawyered and lawyerless courts underscore the more general procedural implications for our understanding of the roles of judges and lawyers, on doctrine, on teaching procedure, and on the power and the limits of procedure in the American civil justice system.
For civil procedure teachers, we offer some targeted interventions in the civil procedure course for how to teach students about lawyerless courts and how to understand the lawyered/lawyerless divide in our civil justice system. Among other implications, we show the importance of lawyers for certain kinds of procedural development as actors and as architects. And we argue that this lens supports arguments about the limits of procedure’s ability to ensure justice and the need for more dramatic change—crafted by lawyers but ultimately designed to be used without them.