Document Type

Working Paper

Publication Date

2021

Disciplines

Civil Procedure | Courts | Judges | Jurisdiction | Law

Abstract

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.

Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – in dispensing justice for millions of unrepresented people each year. While today’s civil procedure scholarship focuses on documenting and analyzing growing judicial discretion in complex litigation, a much larger sphere of unexamined and largely unchecked judicial discretion has been hiding in plain sight in state civil trial courts.

At the intersection of civil procedure, judicial behavior, and access to justice, this Article presents a theoretically driven multijurisdictional study of judicial behavior. It examines three state civil courts in jurisdictions at the top, above the median, and near the median in the Justice Index (a ranking of state-level access to justice efforts). Despite significant jurisdictional differences, judges’ behavior is surprisingly homogenous in the data. Rather than offering accommodation, assistance, and simplification as reforms suggest, judges maintained courts’ legal complexity and exercised strict control over evidence presentation.

The Article theorizes that a fundamental structural problem drives this unexpected finding – civil courts were not designed for unrepresented people. And judicial behavior is shaped by three factors that result: ethical ambiguity and traditional assumptions about a judge’s role in adversarial litigation, docket pressure, and systematic legal assistance provided to petitioners only. The Article concludes judicial role failure is but one symptom of lawyerless courts’ fundamental ailment: the mismatch between courts’ adversarial, lawyer-driven dispute resolution design and the complex social, economic, and interpersonal problems they are tasked with solving for users without legal training.

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