The Hidden Problems of “Lawyerless Courts”—and How to Fix Them

RES GESTAE | Winter 2023
Professor Anna Carpenter's research illuminates a critical but unseen gap in access to justice.
by Andy Faught

Every year, 20 million Americans find themselves in state civil courts facing life-altering events such as divorce, child custody deliberations, eviction, and missed bills.

But unlike in criminal courts, where defendants have a constitutional right to legal representation, the same guarantee isn’t afforded in state civil courts. Most people in these courts are low- to middle-income and unable to afford help. They must strike out on their own to blindly navigate byzantine legal protocols.

“The civil justice system is broken in our state courts,” says Utah Law Professor Anna Carpenter, whose research examines state civil courts, the judges who preside in them, and access to justice. She is part of a four-person research team that pioneered a new body of scholarship that analyzes state civil courts.

Carpenter and her team call state civil courts “lawyerless courts” because the vast majority of litigants have no counsel. Rates of self-representation are as high as 90 percent in some dockets, removing the adversarial dynamic that’s critical in weighing evidence and arriving at a just outcome. It also casts judges—often the only lawyer in the courtroom—in a new and uncomfortable role. Carpenter and her team argue judges are caught in an “ethical trap.”

“In our system, the judge’s job is to sit back and call balls and strikes: It’s saying, ‘yes, that’s admissible, no that’s not. This motion is approved, this one is not,’” Carpenter says. “Judges find themselves having to question parties to draw out facts, and they face questions about law and procedure they aren’t certain they can answer. Absent lawyers, the whole system falls apart.”

Carpenter’s passion for studying civil courts took root a decade ago at Georgetown Law, where she and fellow instructor and collaborator Colleen Shanahan (now at Columbia Law School) co-taught a clinic in which they and their students saw the “brokenness” firsthand.

“I challenge anyone, especially lawyers, to go sit in one of these courtrooms and watch the tragic, day-to-day reality,” Carpenter says. “You’ll see why we believe these courts are the emergency rooms of our justice system.”

The team of scholars focused on lawyerless state civil courts (from top left): Anna Carpenter, Alyx Mark, Colleen Shanahan, and Jessica Steinberg.

For years, lawyers and legal scholars paid little attention to state courts. But the quartet’s ongoing research (co-authors also include Alyx Mark, assistant professor of government at Wesleyan University and an affiliated scholar at the American Bar Foundation; and Jessica Steinberg, professor of law at George Washington University) has had one particularly important effect: it’s gotten people talking.

“That’s a sea change,” Shanahan says. “In court systems, it’s the rule rather than the exception that court leadership is talking about reform. In the nonprofit and philanthropic sector, attention and resources are increasingly focused on civil access to justice.”

This summer saw the publication—in the Columbia Law Review—of two important research articles by the team: “The Institutional Mismatch of State Civil Courts” (which analyzes the failure of state legislative and executive branches to mitigate inequality), and “The Field of State Civil Courts” (an overview of state civil court scholarship). And the ABA recently featured their work in a “Big Ideas” issue of Law Practice Magazine.

Carpenter says the team’s research has surprised many in the legal community, who might have heard something about an access to justice crisis but know little about the true scope, nature, and depth of what ails the system. (Meanwhile, there is ample research and attention given to federal civil courts, which handle a mere 3 percent of all civil matters, according to Carpenter.)

“Lawyers just aren’t in the room,” she says. “They literally don’t have an aperture to see the challenge, whereas state court judges know—they wrestle with it every day—and are asking, ‘how can we fix this?’”

For the first time, the team, in just five words, is suggesting a way forward: “rightsizing courts, reregulation and collaboration.” Rightsizing asks what problems and disputes our courts should actually be solving and which, such as no-contest divorce, could be taken out of the court system altogether. Reregulation—which is already happening in Utah—is about building new, more effective legal service delivery models, including authorizing nonlawyers to provide certain legal services. And collaboration is about bringing in new voices—particularly the voices of those who use the courts—to shape court reform.

Carpenter calls Utah “the most innovative state for reforming the legal system.” The state’s legal regulatory “Sandbox” (overseen by the Office of Legal Services Innovation) was created at the behest of the Utah Supreme Court in an attempt to narrow the access to justice gap. The state has taken up the challenge. For example, one project in the Sandbox—run by the Innovation for Justice lab—is training community health workers to provide legal advice to prevent medical debt.

Not acting to reform the system could have ramifications for American democracy, the researchers say. Lawyerless courts may erode public trust and confidence in the judicial branch.

Carpenter describes her team’s work as “disruptive.” Members have made numerous presentations to bar and judicial associations, researchers, and policymakers around the country. The American adversarial justice system, she reminds them, was never meant for average citizens to take on: “The system is set up by lawyers, for lawyers.”

Carpenter—a first-generation college student who grew up in a low-income family—says her parents were “status quo questioners with a passion for social justice.” Carpenter’s earliest teachers were the ones who sat around the dinner table.

Reforms might not be in the immediate offing, but the conversation is well underway—propelled by four committed thought leaders. Their message is pointed.

“Our goal is to speak to those in charge of civil court systems—judges and lawyers in leadership roles— and say to them, ‘the system we have set up is not working for people. We need to change it,’” Carpenter says.

“These 20 million people are largely the most vulnerable among us, and they largely go without a lawyer,” Steinberg adds. “If we can make state civil courts do better by these millions of people each year, we are changing lives and we are strengthening our democracy.”

Team members say their efforts have spurred additional state civil court research and the development of curricula at various law schools.

“It’s rewarding that our work is shining a light on this part of the law and that society and people are starting to pay attention,” Mark says.