Your landlord has decided to evict you and your family has nowhere to go. Or you’re in an abusive relationship and need a restraining order and probably a divorce and custody order for your children. Or you’re a homeless veteran trying to get VA benefits and navigate the complicated claims process. Or you’re being hounded by a collector for a debt you can’t pay who’s threatening to take away all of your income.
In each of these cases, you’ll wind up taking the issue to the civil courts, not the criminal ones. If it were a criminal case, where you were at risk of being jailed or incarcerated, you would at least have a constitutional right to representation. But there is virtually no promise in the civil system. You will almost certainly be left on your own, with little guidance or assistance, to navigate a labyrinthine system.
In theory, low-income Americans who need help with a civil case can turn to civil legal aid organizations. But there are so few of them that getting their help is a bit like winning the lottery.
There is less than one civil legal attorney — 0.64, to be exact — for every 10,000 people living in poverty, according to the newly released Justice Index from the National Center for Access to Justice (NCAJ). Even though nearly 110 million people are poor enough to qualify for free legal assistance because they can’t afford a private attorney, there are less than 7,000 legal aid attorneys throughout the country to help them.
Things are even worse in some states. In South Carolina, which ranks at the very bottom, there are 0.24 legal aid attorneys serving 10,000 poor people. There are only six states where there is more than one attorney. And research has shown that low-income people are more likely to find themselves dealing with the civil court system.
“Individuals face really high stakes in the civil justice system,” noted Martha Bergmark, executive director of Voices for Civil Justice. “You can lose your children, you can lose your home, you can lose your livelihood without having legal help to get you through complicated legal proceedings.”
And while people can turn to private lawyers — there are about 40 of those for every 10,000 Americans — they are often prohibitively expensive, even for middle-class families. They often bill around $300 an hour.
So many instead represent themselves and rely on their own abilities to get through the maze of the legal system. In three-quarters of cases, at least one party — more likely to be someone like a tenant or a debtor — is self-represented.
States can take steps to make their civil court systems easier for regular people to navigate. And some are doing that, but the overall picture is mixed. Based on 33 different steps a state could take — which include a variety of things from requiring communication to be in plain English to letting court employees and judges help people without lawyers to putting materials online to waiving filing fees — no state gets a perfect score; the median score given by NCAJ is 51, ranging from 86.25 in California to 13.75 in Rhode Island.
There are some areas of promise. For one, NCAJ has had to broaden the measures it looks at because so much is changing. “So much innovation is occurring in states across the country,” explained David Udell, executive director of the organization.
One big focus has been to try to use technology more efficiently. “Technology doesn’t replace an attorney,” Udell noted, “but it can help.” Eighty percent of states list the required forms needed in family law matters such as divorce or child support on their websites, while 60 percent list the required supporting materials. The efforts are scarcer, however, for eviction and debt collection — about 40 percent of states put things online — and foreclosure — 20 percent.
Individuals face really high stakes in the civil justice system
A good number — 44 states — have allowed lawyers to perform discrete legal tasks for people who don’t retain them for full representation. And 32 have allowed court clerks to help out people who don’t have lawyers, but just 23 have allowed judges to do the same.
Plain English has been slower to catch on. Just 20 states encourage judges not to use “legalese” in the courtroom when talking to people who don’t have a lawyer, while 17 train judges and 12 train court staff in doing so.
Meanwhile, the most common step taken in all states is to waive civil filing fees for those who meet a financial eligibility standard. Yet just 34 describe the fee waiver on their websites, 26 have provided a simple process for determining eligibility, and just 12 encourage or require court staff to explain to people that fees can be waived — so many litigants may simply not know that it’s an option.
“The court system remains a system that was designed by lawyers with the expectation that there would be lawyers,” Bergmark said. “Most people don’t have representation and yet it’s still a system that very much contemplates that they will.”
And the outcomes are dramatically different when they do have representation. A study in Boston found that two-thirds of tenants who had full representation against their landlords were able to avoid eviction and received nearly five times the financial payout than those who weren’t represented. Other research has found that making legal services available to domestic violence victims significantly lowers the rate of abuse.
More civil legal aid lawyers could also spur larger change. “What civil legal aid lawyers see in their day-to-day practice is problems that need to be solved systemically, and they are capable of doing that,” Bergmark said. For example, a group in Baltimore noticed how many of the tenants they were assisting were being evicted through rent court and issued a call for reform. Another group in Chicago is fighting for changes at the Department of Housing and Urban Development that would bring greater protections against lead paint poisoning for people living in publicly funded housing. “There’s a real value add for society as well as the individuals involved.”
“We’re not served by having a broken civil justice system that’s not adequately supported,” she added.