Saturday, December 01, 2012

Making justice real for all - a second bold experiment in Cook County

An op-ed in the New York Times today by Matthew Desmond starts with this powerful paragraph:

IT’S easy to tell who’s going to win in eviction court. On one side of the room sit the tenants: men in work uniforms, mothers with children in secondhand coats, confused and crowded together on hard benches. On the other side, often in a set-aside space, are not the landlords but their lawyers: dark suits doing crossword puzzles and joking with the bailiff as they casually wait for their cases to be called.
People without lawyers -- and that's just about everybody who gets paid less than $20/hour, since they can't afford one -- don't win cases in court. There are exceptions, but when someone doesn't have a lawyer, they usually lose. That's the definition of unfair.

Mr. Desmond goes on in his op-ed to call for publicly-funded lawyers for all tenants, just as we provide publicly-funded lawyers for all criminal defendants. It's a good idea, but we can do better.

The number of parties appearing in court without counsel -- pro se -- is increasing dramatically. Some family law courts have 80 to 90 percent of cases where one party doesn't have a lawyer.

Our court system is set up to be virtually impossible for a non-lawyer to navigate. But why should that be? Since most people who go to court for evictions or divorce don't have a lawyer and will never have a lawyer, we should change the court system so that they don't need one to get a fair result.

The adversarial system works very well when both parties have lawyers. In commercial litigation where one company is suing another company (something my law firm does), the system is great. The lawyers spend a lot of time developing the case, presenting evidence and challenging each other every step of the way. The judge takes a relatively passive role and reacts to the motions, arguments and evidence that is put before him or her. Then, after the lawyers are done fighting it out, the judge chooses which one of the lawyers will prevail.

But the adversarial system doesn't make any sense when most of the people aren't lawyers. They don't know how to make a legal argument or follow legal procedure. Why would they? Legal procedure is hard enough for lawyers to figure out -- how could someone who never went to college have any chance to follow the rules correctly? They just can't. The system is designed to fail people without a lawyer. The clerks (who are paid by taxpayers) are not allowed to give any advice to people on how they can sue someone or defend themselves, because that's legal advice. The judges (who are also paid by taxpayers) are not allowed to help someone make their case, because that would be representing a party. We pay for a whole lot of people to work in a judicial system that is totally inaccessible to the average person.

Why can't a citizen walk into a courtroom, tell a clerk or some other public employee what they want (get a divorce, or child support or some money they are owed or get rid of a tenant who isn't paying the rent) and then get some help with the paperwork so they can get before a judge with the other side of the dispute there as well? And then why can't the judge (or somebody else) have a regular conversation with both sides, sift through whatever they may have to prove what they are saying, schedule other hearings if need be and then come to a reasonable, appropriate resolution to the dispute without lawyers?

Why can't we make our justice system fair and accessible to the people who can't afford lawyers?

The answer is we can. We just haven't done so yet.

And Cook County is the place to do it. 100 years ago, Cook County was the place for a bold reinvention of the American justice system. As I've been learning from the book City of Courts by Michael Willrich, Cook County in 1905 decided to wholesale abolish their existing judicial system and set up a sparkling new, modern Municipal Court of Chicago -- the first of its kind in America. It worked out of what is now the City Hall / County Building at LaSalle and Washington (which is why it looks like a grand courthouse). 

Cook County civic and legal leaders in the Progressive Era weren't content with small improvements to their existing judicial system. They inherited a centuries-old Justice of the Peace system, where local Justice of the Peace officials appointed by the Governor ran a judicial business by charging fees from parties. They were called "justice shops" where the Justice of the Peace made more money by getting more cases and set up relationships with perennial lawyers and prosecutors (since they handled criminal cases too) to get as much money as possible. Civic leaders found this deplorable and knew they could do better. They didn't defer to centuries of practice. They created something brand new that fit the times.

They created out of whole cloth a Municipal Court with salaried judges, professional clerks and modern procedure. Their bold experiment, approved by the Illinois General Assembly in the spring of 1905 and then by Cook County voters later that year, became a national model for how to fix a broken judicial system. 

We should similarly be bold and recreate our judicial system for our times where most litigants are unrepresented in family law, housing and small claims. We should redefine the role of the clerk and judge so that an average resident can get a swift and fair resolution. We should make justice work with a new Act of the Illinois General Assembly that can serve as a model for the rest of the country.

And we can. We just have to decide to do it.