Proceduralists debate what procedures a system of civil justice ought to have and what rules and doctrines best actualize these procedures. We do not, however, pause enough to ask, “in the real world of courts and dispute resolution, do these rules and procedures do what we think they are doing?” Lauren Sudeall and Daniel Pasciuti contribute to the growing literature of quantitative and qualitative empirical studies of what happens inside American courtrooms by observing and analyzing the inner workings of dispossessory (eviction) courts in Georgia.
Sudeall and Pasciuti provide a detailed account of dispossessory courts in three counties – a large suburban county, a large rural county, and a small rural county. They shed needed light into the proverbial “black box.” I guess many legal academics have scant knowledge of the workaday life of state courts, and fewer still of specialized and small claims courts. For those who have spent time in these arenas, Praxis and Paradox demonstrates the wide variance between courts within the same state with a nominally uniform set of substantive and procedural laws. To know one housing court is not to know them all.
Much of what Sudeall and Pasciuti describe takes place in lawyerless courts. Tenants were unrepresented by counsel in roughly 99% of cases. The representation of landlords, on the other hand, varied by county but was still quite low—County S (the suburban county) had the highest level of landlord representation with 12.2% of landlords represented by counsel. The landlords, often repeat players, viewed the cases as straightforward factual matters in which representation was rarely worth its cost. Tenants reported feeling that a lawyer might have been helpful, although few were aware of the legal services programs that might have provided some assistance.
It is against this background that the authors report key findings about litigants’ perceptions of justice and procedural fairness. Landlords may have slightly overestimated their litigation abilities and procedural advantages. Tenants had different experiences of self-representation and procedural fairness. Tenants reported feeling that they would have benefited from assistance in comprehending aspects of the proceedings and in expressing themselves to the court. The perceived unfairness was systemic rather than individual; they believed “they were treated in a fair and reasonable manner by the individual actors. But when asked whether they thought the procedure and proceedings themselves were fair, they balked, suggesting “a sense that the structures undergirding the process were fundamentally unjust.” That litigants could discern the gap between fair treatment as individuals and systemic unfairness is telling—fair and respectful treatment is not a substitute for tenants’ perception that the underlying substantive law is stacked against them and that the larger constellation of procedures does not favor their interests.
These sentiments will not surprise access-to-justice scholars. The typical scholarly reaction to these findings is to demand promulgation and enforcement of more and better procedures. But Paradox and Praxis suggests that we ought to hit the brakes before following that instinct. Sudeall and Pasciuti find a gap between procedures that lawyers (and law professors!) think will facilitate better outcomes and the actual effect of these procedures, concluding that “[e]lements of the process we tend to assume would be beneficial to litigants or associate with fair judicial process—such as filing an answer…, scheduling an individual hearing on the merits, and providing tenants with the opportunity to tell their story in court—do not always manifest as expected or lead to better substantive tenant outcomes.”
The access-to-justice community would do well to heed this warning. In much theoretical and doctrinal literature, affording parties their “day in court” is the holy grail of procedural reform. Paradox and Praxis instructs that we should not discount this value altogether. Litigants spoke positively about the opportunity to tell their story even if it did not seem to affect the outcome of the proceeding, and court personnel spoke with pride about the degree (differing among the three counties) that they prioritized giving tenants their day in court and providing a forum in which they could explain their position. But some court-access measures appear disconnected from the merits or larger procedural values, if not counterproductive to the ends that they are supposed to serve. For example, courts provide form answers, some of which allow tenants to choose responses that “provide[d] no legally cognizable defense” such as the inability to pay rent because of lack of funds. With other examples and findings, this paints a picture of “day-in-court theater,” in which the superficial appearance of procedure masks deeper deficits in procedural structures and underlying substantive housing law and policy.
Praxis and Paradox is a must-read for practitioners and scholars whose work is unlikely to take them inside the black box of lawyerless courts.