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. 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.

This Article’s theoretically-driven multijurisdictional study of judicial behavior in lawyerless courts contributes to literatures in civil procedure, judicial behavior, and access to justice. 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 and contrary to conventional wisdom, judges’ behavior is surprisingly homogenous in the data. Rather than offering accommodation, assistance, and simplification as reforms suggest, judges maintained courts’ 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 from civil justice system design: ethical ambiguity and traditional assumptions about a judge’s role in adversarial litigation, docket pressure, and pre-hearing case development provided to only one party.

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. In response, the Article offers a two-part theory of change. To alleviate symptoms, reformers can ramp up the current technocratic approach focused on incremental shifts to the status quo while holding constant courts’ original design and improve the change-making process by involving people who are not lawyers in decision-making processes. Alternatively, reformers can pursue a radical cure by rethinking the role of civil courts as institutions within our democratic system of governance and social ordering. This rethinking project would culminate in rebuilding to create new processes and systems for preventing or solving the range of legal and non-legal problems laid at the feet of state civil court judges, including new legal and non-legal institutions of remedy.

Share

COinS