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Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. __ (forthcoming, 2022), available at SSRN.

Law students often perceive civil procedure as the first-year subject that is least accessible to nonlawyers. Before law school, students signed contracts, owned property, monitored criminal trials, encountered torts, and invoked the Constitution. But civil procedure teems with novel concepts, mysterious rites, and unfamiliar vocabulary. These features beguile students into viewing civil procedure as a realm in which only lawyers tread. The case method reinforces this misperception by focusing on published opinions arising from litigation between represented parties. The misperception persists after graduation and influences how lawyers conceptualize the field of civil procedure.

Unfortunately, focusing on how procedure shapes opportunities for lawyers obscures the large volume of civil cases in which at least one party does not have a lawyer. A growing literature explores the implications of failing to adapt lawyer-centric procedural ideals to “lawyerless” adjudication. Scholars have analyzed state courts in which cases routinely proceed without lawyers (such as family courts) or in which represented parties sue unrepresented parties (such as housing courts). These courts affect millions of vulnerable people in traumatic circumstances. Yet procedures in many lawyerless courts fail to account for the practical consequences of self-representation within a nominally adversarial system. The ensuing risk of injustice has led commentators to propose a wide variety of reforms. Pamela Bookman and Colleen Shanahan’s A Tale of Two Civil Procedures looks beyond “fixing” specific procedures. The Article focuses instead on removing obstacles to understanding what is broken. A critical obstacle is that commentators often frame the field of civil procedure in a way that obscures the importance of lawyerless adjudication. The Article suggests reframing the field to directly engage with distinctions between “lawyered” and “lawyerless” courts. Bookman and Shanahan contend that this approach will make descriptive accounts of civil procedure more precise, normative discussions more nuanced, and reform proposals more effective.

The prevalence of pro se litigation in state courts is well-known. Scholars might therefore wonder why attendant procedural shortcomings have resisted reform. The Article insightfully addresses that question by explaining how traditional rubrics for analyzing civil procedure elide the problem of lawyerless adjudication. For example, many fields of procedural scholarship analyze subtle distinctions between federal and state courts. Emphasizing the federal/state dyad focuses attention on the subset of state courts that most closely resemble federal courts. These courts generally adjudicate disputes between represented parties. Likewise, using the Federal Rules of Civil Procedure as a baseline spotlights the subset of state procedural codes that govern similar types of lawyered cases. When procedural scholars do analyze pro se litigation, they generally emphasize access to justice for unrepresented plaintiffs. This framing can obscure the struggles of unrepresented defendants trying to exit rather than enter a court. Moreover, analysis tends to focus on written procedures accessible to outsiders and frequently overlooks unwritten procedures known only to insiders. Procedures of extraordinary practical importance thus hide in a fog of unrecorded experiences.

After explaining why procedures in lawyerless courts evade scrutiny, Bookman and Shanahan suggest mechanisms for encouraging and implementing critical scholarship. Their central insight is that procedural scholars should rethink the rubrics that animate analysis of civil procedure. In addition to concentrating on formal lines (such as federal/state) or clashes between values (such as merits/efficiency), scholars should stress the distinction between “lawyered and lawyerless courts.” Foregrounding that distinction would encourage scholars to examine dimensions of civil procedure that they might otherwise not consider.

Bookman and Shanahan support their suggestion by surveying three fields of procedural scholarship through their proposed lens. They “lead by example,” using each case study to illustrate their proposed inquiry and to confirm the inquiry’s value.

First, the authors review recent studies of procedural rulemaking that analyze the development of written rules and “ad hoc” practices. They conclude that the literature implicitly relies on assumptions that are accurate in lawyered courts but misplaced in lawyerless courts. For example, scholarship about ad hoc procedures in MDL litigation—which is heavily lawyered—assume the existence of lawyer-driven checks on judicial discretion. These checks help tailor ad hoc procedures to the needs of individual cases. But lawyerless courts lack such checks, enabling informal procedures developed for a particular lawyerless case to ossify into generally applicable norms. Analysis of informal rulemaking that omits lawyerless courts thus understates the systemic rather than case-specific role that lawyers play in shaping procedure.

Second, Bookman and Shanahan use e-notice to illustrate the value of “cross-pollination” between procedures in lawyered and lawyerless courts. Scholars have separately considered the value of e-notice in lawyered class actions and lawyerless individualized litigation. The Article contends that these inquiries should merge because each implementation of e-notice can inform its use in other contexts. This discussion of e-notice complements the authors’ prior discussion of ad hoc procedures. The case study of ad hoc procedures illustrates that differences between lawyered and lawyerless courts can be salient, while the case study of e-notice illustrates that facial differences can obscure deeper connections.

Third, the Article unites two parallel conversations about aggregation in civil litigation. In lawyered courts, aggregation often is a formal process governed by written rules. In contrast, lawyerless courts aggregate informally by applying streamlined procedures to similar cases. Yet in both contexts aggregation leads to similar results, such as extensive judicial management and formulaic settlements. Scholars have carefully studied each context separately but have rarely compared them. Bookman and Shanahan argue that concurrently analyzing both kinds of aggregation highlights how procedural norms implicitly assume the presence of lawyers. Articulating these norms more precisely might illuminate avenues for refining them in both contexts.

Bookman and Shanahan recognize that there is more to say about lawyerless adjudication. They hope to shape future conversations by integrating this often-marginalized topic into the mainstream of civil procedure discourse. Accordingly, they suggest that scholars writing and teaching about procedural policy and doctrine should consciously distinguish between lawyered and lawyerless courts. This approach would lead scholars to consider whether their analysis applies equally to both and, if not, whether the asymmetry is meaningful. Emphasizing how the adversarial system operates would also help scholars design procedures that “take advantage of lawyers’ presence while also functioning in their absence.” The Article’s thought-provoking defense of a new procedural lens is a welcome addition to the literature.

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Cite as: Allan Erbsen, Civil Procedure for Lawyerless Courts, JOTWELL (February 28, 2022) (reviewing Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. __ (forthcoming, 2022), available at SSRN),