Uncivil Procedure: How State Court Proceedings Perpetuate Inequality

PDF icon lieberman.final_.2.pdf

Rules of civil procedure presuppose a level playing field where litigants have structured opportunities to develop and present their claims to a neutral fact-finder. In millions of cases—the vast majority processed by state courts today—the field is neither level nor fair. Instead, enormous numbers of small dollar value cases are disposed of mechanically, without meaningful adjudication. High-volume state court dockets involve serious asymmetries of power and knowledge, where plaintiffs’ lawyers are able to manipulate or short-circuit the rules against unrepresented and generally unsophisticated low-income defendants. As a recent study by the National Center for State Courts (NCSC) concluded, “[t]he idealized picture of an adversarial system in which both parties are represented by competent attorneys who can assert all legitimate claims and defenses is an illusion.”

Profoundly harmful consequences befall defendants who, caught in these overburdened, high-volume dockets, are too often unaware of and unable to protect their rights. Judgments are entered without meaningful scrutiny of their substantive or procedural correctness. Civil judgments carry long-term consequences. Evictions frequently lead to homelessness. Judgments that appear on credit reports or that surface as the result of professional data-mining lead prospective employers and landlords to deny jobs and housing. Post-judgment enforcement includes wage garnishment and asset seizures. Without significant reform, too many of the generally low-income defendants in these high-volume dockets suffer wholesale denials of justice, further exacerbating economic inequities.

Since September 2016, Hannah Lieberman has been Associate Dean for Clinical and Experiential Programs at the David A. Clarke School of Law of the District of Columbia. At the time she presented this Essay, she was the Executive Director of Neighborhood Legal Services Program (NLSP), a private, non-profit law firm in Washington, D.C. that provides free civil legal assistance to low-income residents of the District of Columbia. Prior to joining NLSP, she served as the Director of Advocacy in legal services programs in Arizona and Maryland and was a litigation Partner in the Washington, D.C. law firm of Shaw Pittman Potts & Trowbridge (now Pillsbury Winthrop Shaw Pittman). Ms. Lieberman was a Member of the Civil Justice Improvements Committee established by the Conference of Chief Justices (CCJ) to make recommendations regarding civil case processing in state courts, and she led a subcommittee that focused on challenges in high-volume dockets. Her research and analysis substantially shaped the Committee’s recommendations regarding high-volume courts. She drafted the “Report of the High Volume Case Working Group to the CCJ Civil Justice Improvements Committee, Problems and Recommendations for High-Volume Dockets,” from which her presentation at the American Constitution Society’s Law and Inequality Conference at Yale Law School, October 2015, and this Essay, were heavily drawn (with permission of the CCJ Committee Project Manager from the National Center of State Courts). See Hannah E. M. Lieberman et al., Appendix I: Problems and Recommendations for High-Volume Dockets, Nat’l Ctr. for St. Cts. (2016), http:// www.ncsc.org/~/media/Microsites/Files/Civil-Justice/NCSC-CJI-Appendices-… [http://perma.cc/A99F-3UV7]; see also CCJ Civil Justice Improvements Comm., Call to Action; Achieving Civil Justice for All, Nat’l Ctr. for St. Cts. et al. (2016), http://www.ncsc.org/~/media/Microsites/Files/Civil-Justice/NCSC-CJI-Repo… [http://perma.cc/7DU3-A8MN].