Yesterday, when I blogged about the first good national sample data on numbers of self-represented cases, and particularly on those who face a lawyer alone, I promised additional more broken down data.
These numbers, taken from the same NCSC Landscape of Civil Litigation, of all civil cases in state courts except “domestic,” in a representative sample of all urban courts, are a powerful tool for identifying areas of greatest possible injustice.
Here is the chart showing the data by type of case (methodology is described in the prior post):
The numbers are as stunning at the case type level as they are when given overall.
In state court contract cases, 75% of defendants have no lawyers, and face a lawyer. 2% of plaintiffs are in that situation, 3% have no lawyers on either side, and 20% have lawyers on both sides. Small claims cases are hardly any better, with 63% facing a lawyer alone.
What kinds of cases are these really? The Landscape Report answers the question with this chart for those contract cases, drawn directly from the Report.
Silly me, after law school indoctrination, I really still thought that “contract” meant movers being sued for not delivering machine parts and cows turning out to be pregnant. Actually it is vulnerable people losing their homes or money they probably do not even have.
While we do not know from this data exactly where the “one side only represented” cases fit between the above categories, it really does not matter exactly, because the simple answer is “most of them.” Its not hard to draw conclusions for access to justice case type priorities.
Obviously, other factors play a major role in prioritization, see chart here, but this data should make a real difference to, and be integrated into any state strategic analysis.
Richard Zorza's Access to Justice Blog 
Richard, thank you for brining attention to this research. It is full of headlines and details that should be integral to our efforts to craft solutions for a better system of justice. As you note, the courts are consumed by litigation involving debt collection, evictions and foreclosures. And, in most cases the plaintiffs are represented by counsel while the respondents are self-represented (or in the cases of default, unrepresented). I think too often this type of imbalance leads to the narrative that people cannot afford a lawyer and solutions that revolve around that assumption, e.g. increase pro bono or expand the supply of legal service providers. But this research ought to take us down some different paths, including the changes you have set out. In addition, however, what we see here is the incredibly low sums that result from judgments. Again with a focus on these contracts cases (most of which are collection, eviction and foreclosures) we see that in 25% of the cases where a money judgment was issued, the dollar amount was $1,251 or less. In 75% of the cases, the amount of the judgment was less than $5,000. For the vast percentage of these cases the issue is not whether a person can afford a lawyer or other legal service provider; the issue is whether that legal service provider can be of value. Clearly the one-to-one system of representation cannot provide value for cases that have only a few thousand dollars at risk. So, why do plaintiffs have lawyers? In some states, corporations cannot proceed pro se. They must have legal representation. Many plaintiffs batch their cases so that a lawyer will handle dozens or scores at a time. One trip to the courtroom, 20 cases prosecuted. Plaintiffs can get tax deductions for the cost of litigation and representation when respondents do not. But the most important inequity, and one that we cannot simply solve, is that plaintiffs have the ability to absorb the cost of litigation as the cost of doing business, putting those expenses into the pricing of goods and services that the customer/tenant/homeowner then pays for upfront.
Our solutions have to start by going beyond the justice system, beyond the courts, beyond the legal profession. We need preventive measures. We have to have debt counseling. We have to reign in the exorbitant costs of pay-day and car title loans. We have to have sources of emergence relief for those who have unforeseen changes in incomes. We have to subsidize housing far more extensively. At the same time, we have to have higher standards of income and assets to qualify for mortgages. Once matters get to court, in addition to those solutions you have set out, we need to have simple accommodations – free parking, day care, automated notifications and reminders, night court, online courts and simplified processes. We also need resolutions that enable fair dispositions but do not have lingering punitive impact. Think about traffic court, where you have a sort of probation. In Illinois, we call it “supervision.” If you have a good driving record, go for a period without another violation and pay a modest fine, the matter is dismissed, with no record that causes insurance rates to increase or coverage to be dropped. Is there any reason we can’t have creative alternatives for debt collection and housing matters?
Most likely, in the 3% of cases where the plaintiff does not have a lawyer, is because that plaintiff is in court every day filing and arguing these cases.
This was my experience in SF housing court, where only less than 5% of the landlords did not have lawyers–however outside of the person who had taken in a boarder to help out, most of them they owned and rented low income housing untils in the City–so they knew what they were doing and were there on a daily basis. The rest of the landlords were represented by a group of 3-5 landlord firms who had most of the contracts, including the housing authority contracts.
Car dealers, furniture stores, low income housing landlords, are often representing themselves in court without a lawyer.
Richard,
These are great stats on non-domestic cases. Do you know where I can find the definitive numbers on representation status in domestic cases?
Mike Dwyer Milwaukee Circuit Judge >
I doubt they exist.