Judges in Lawyerless Courts
59 Pages Posted: 1 Mar 2021 Last revised: 2 May 2022
Date Written: April 30, 2022
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 accommodation, information, and process simplification to people without legal representation.
Until now, scholars have known little about judicial behavior in lawyerless courts, including 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.
At the intersection of civil procedure, judicial behavior, and access to justice, this Article presents a theoretically driven multijurisdictional study of judges’ interactions with unrepresented people in state civil trial court hearings. It examines courts in three 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’ behaviors are surprisingly homogenous in the data. Rather than offering accommodation, information, and simplification as reform models suggest, judges maintained the 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 only to petitioners. The Article concludes that 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.
Keywords: judges, civil procedure, access to justice, judicial behavior, state courts
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