A TALE OF TWO CIVIL PROCEDURES - Columbia Law Review

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: those that routinely include lawyers and those where lawyers are fundamentally absent.

This Essay urges civil procedure teachers and scholars to think about our courts as “lawyered” and “lawyerless.” Lawyered courts include federal courts coupled with state court commercial dockets and the other pockets of state civil courts where lawyers tend to be paid and plentiful. Lawyerless courts include all other state courts, which hear the vast majority of claims. This Essay argues that this categorization reveals fundamental differences between the two sets of court procedures and much about the promise and limits of procedure. The Essay also discusses how this dichotomy plays out in three of today’s most contentious topics in civil procedure scholarship: (1) written and unwritten procedure-making, (2) the role of new technology, and (3) the handling of masses of similar claims. This categorization illuminates where and how lawyers are essential to procedural development and procedural protections. They also help us better understand when technology should assist or replace lawyers and how to reinvent procedure or make up for lawyers’ absence. Finally, they reveal that fixing court procedure may simply not be enough.

The full text of this Essay can be found by clicking the PDF link to the left.

* Associate Professor, Fordham Law School.

** Clinical Professor of Law, Columbia Law School. This Essay benefited from conversations at the 2020 Civil Procedure Workshop and at Fordham Law School. Thanks to Elizabeth Burch, Anna Carpenter, Zachary Clopton, Nestor Davidson, Matthew Diller, Robin Effron, David Engstrom, Howie Erichson, Kellen Funk, Russell Gold, Andrew Hammond, Clare Huntington, Alexandra Lahav, Ethan Leib, Alyx Mark, Merritt McAlister, David Noll, Russ Pearce, Teddy Rave, Kathryn Sabbeth, Jessica Steinberg, Lauren Sudeall, Nicole Summers, David Udell, Daniel Wilf-Townsend, Maggie Wittlin, and Diego Zambrano. We are grateful to Fordham Law students Leila Witcher and Luis del Rosario and Columbia Law student Amanda Yang for excellent research assistance and to Domenic Canonico and the staff of the Columbia Law Review for expert editing. Professor Bookman’s scholarship was generously supported by the Fordham University Fordham-Columbia Research Grant. Professor Shanahan’s scholarship was generously supported by the William S. Friedman Faculty Research Fund at Columbia Law School.

Introduction

This Essay argues in favor of examining civil procedure in American civil justice not just as divided between state and federal courts, but as between lawyered and lawyerless courts. In civil procedure and federal courts scholarship, state and federal courts represent a natural dividing line for understanding American civil justice. Compared to the better-known and easier-to-study federal courts, state courts are either more or less accessible, fair, plaintiff friendly, or efficient than federal courts. In a subset of state civil courts 1 We use the term “state civil court” to include state and local civil courts that hear adversarial cases between two or more parties before a judge, including specialized courts like family court and housing court. This category omits traffic court, where a vast number of cases are filed, but under a different posture and different circumstances. See Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471, 1486 & n.56 (2022) [hereinafter Shanahan et al., Institutional Mismatch]; Paula Hannaford-Agor, Scott Graves & Shelley Spacek Miller, Nat’l Ctr. for State Cts. & State Just. Inst., The Landscape of Civil Litigation in State Courts iii–iv (2015), https://www.ncsc.org/__data/assets/pdf_file/0020/13376/civiljusticereport-2015.pdf [https://perma.cc/D343-FTLJ] (using a similar definition but omitting domestic relations cases). For scholarship focusing on local courts, see generally Ethan J. Leib, Local Judges and Local Government, 18 N.Y.U. J. Legis. & Pub. Pol’y 707 (2015) (examining the relationships between local judges, the public, and the executive and legislative branches of that local government); Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964 (2021) (providing a framework for studying and analyzing municipal courts); Justin Weinstein-Tull, The Structures of Local Courts, 106 Va. L. Rev. 1031 (2020) (analyzing how local courts work within the broader justice system). This Essay also omits discussion of state administrative agencies and private dispute resolution. See, e.g., Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. 1631, 1633–35 (2015) (noting enthusiasm among advocates and politicians for specialized health courts); Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 809–10 (2011) [hereinafter Engstrom, Sunlight and Settlement Mills] (discussing “[s]ettlement mills’ ‘assembly-line’ resolution of claims”); Dana A. Remus & Adam S. Zimmerman, The Corporate Settlement Mill, 101 Va. L. Rev. 129, 130 (2015) (“[C]orporate defendants have increasingly relied on their own mass settlement programs . . . to resolve claims with large groups of people who cannot afford the cost of counsel.”); Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469, 474–84 (2016) [hereinafter Shanahan et al., Lawyers, Power, and Strategic Expertise] (describing unemployment case proceedings before a District of Columbia administrative court). Future work might consider these fora in light of the lawyered/lawyerless distinction as well. —those that have commercial dockets or that routinely hear full trials, for example—these comparisons make sense. The procedures and the personnel include experienced lawyers and somewhat resemble what one might find in federal court. But in the vast majority of state courts today—those that hear family, housing, small claims, and debt collection cases, for example—procedures operate very differently. It is these lawyerless courts 2 One of us with co-authors has elsewhere defined lawyerless courts as “those where more than three-quarters of cases involve at least one unrepresented party.” Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg & Alyx Mark, Judges in Lawyerless Courts, 110 Geo. L.J. 509, 511 (2022) [hereinafter Carpenter et al., Lawyerless Courts]; see also Hannaford-Agor et al., supra note 1, at 6–8 (for the best available and most recent nationally representative data). that hear most of the 98% of civil cases that are the focus of this groundbreaking Columbia Law Review symposium. 3 The symposium provides a much-needed focus on state courts, as scholars increasingly urge. See, e.g., Anne E. Carpenter, Jessica K. Steinberg, Colleen Shanahan & Alyx Mark, Studying the “New” Civil Judges, 2018 Wis. L. Rev. 249, 272–74, 285 [hereinafter Carpenter et al., “New” Civil Judges] (“[S]uch courts are almost entirely ignored as sites for scholarly research, most notably by legal scholars.”); Ethan J. Leib, Localist Statutory Interpretation, 161 U. Pa. L. Rev. 897, 900 (2013) (noting that state and local trial courts “are the face of law and justice to citizens in our democracy”); Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261, 265–66 (2021) (lamenting that “[s]cholarly and pedagogic attention . . . remains fixed on federal litigation and the Federal Rules of Civil Procedure,” and urging that “the reality of how procedure works for ordinary people, including how it often fails them, must be studied more closely and taught more frequently”).

Federal civil courts are lawyered. In 70% of federal civil cases, both sides are represented. 4 Pro se plaintiffs who are not incarcerated file 10% of federal cases. These are typically social security appeals and employment discrimination matters. Pro se plaintiffs who are incarcerated file an additional 20% of federal cases. See Mark D. Gough & Emily S. Taylor Poppe, (Un)Changing Rates of Pro Se Litigation in Federal Courts, 45 Law & Soc. Inquiry 567, 574–80 (2020) (describing variation by case type and circuit of filing); Andrew Hammond, The Federal Rules of Pro Se Procedure, 90 Fordham L. Rev. 2689, 2691 & nn.1 & 5 [hereinafter Hammond, Pro Se Procedure]. In the other 30% of cases, the self-represented party is typically the plaintiff suing a represented defendant with greater access to resources, often the government or an employer. By contrast, state courts are predominantly lawyerless. Available data suggests 25% of state civil cases have representation on both sides. 5 Carpenter et al., Lawyerless Courts, supra note 2, at 511; Hannaford-Agor et al., supra note 1, at iv. In some areas of state court, like family law, “nearly all cases involve two unrepresented parties.” 6 Carpenter et al., Lawyerless Courts, supra note 2, at 512; see also Hannaford-Agor et al., supra note 1, at vii. Many studies show that 80% to 90% of family law cases that do not involve the government involve two self-represented parties. See, e.g., Jessica K. Steinberg, Demand Side Reform in the Poor People’s Court, 47 Conn. L. Rev. 746, 751 (2015) [hereinafter Steinberg, Demand Side Reform]. In other areas, like evictions and debt collection, there may be one represented party. In these asymmetrical cases in lawyerless courts, the plaintiff—for example, the landlord or debt collection agency—is more likely to be the represented, better-financed, repeat player suing a self-represented, individual defendant. But in all lawyerless cases, the absence of the lawyer on at least one side affects how procedure works and how civil justice is administered. 7 Consistent with other scholarship, this Essay uses “lawyerless” to capture cases with no representation and cases with asymmetrical representation because the same collection of challenges arises in both situations. See infra section II.C.1. Of course, even in cases with symmetrical representation—that is, where represented parties are on both sides—the lawyers may not be evenly matched. See Frederick Wilmot-Smith, Equal Justice: Fair Legal Systems in an Unfair World 70–106 (2019) (documenting the problem of unequal legal representation and proposing a deprivatization of the market for legal services).

Studies about American civil procedure too often examine the 2% of cases in federal courts, 8 See, e.g., Paul MacMahon, Proceduralism, Civil Justice, and American Legal Thought, 34 U. Pa. J. Int’l L. 545, 567 (2013) (discussing the importance of procedure—particularly in federal courts—to American concepts of civil justice). and not state courts, where 98% of cases take place. 9 See Shanahan et al., Institutional Mismatch, supra note 1, at 1486; Diego A. Zambrano, Federal Expansion and the Decay of State Courts, 86 U. Chi. L. Rev. 2101, 2103 (2019) [hereinafter Zambrano, Federal Expansion] (“Federal courts host less than three hundred thousand civil cases a year while state courts bear the brunt of nearly seventeen million civil cases.”). As Brooke Coleman has noted, the Federal Rules and procedural doctrine develop in response to an elite (metaphorical) “one percent” of that two percent of cases that appear in federal court—the cases with the highest amounts in controversy, litigated by the most elite lawyers. 10 Brooke D. Coleman, One Percent Procedure, 91 Wash. L. Rev. 1005, 1007 (2016) [hereinafter Coleman, One Percent Procedure] (“When put in the context of state court litigation—indeed, the place where most civil litigation happens—and in the context of the remaining types of federal civil litigation, this elite and peculiar litigation is hardly dominant.”). Meanwhile, the vast majority of American cases are filed in lawyerless state courts—that is, in neither federal court nor their lawyered state court rough equivalents. 11 See Shanahan et al., Institutional Mismatch, supra note 1, at app. tbls.1A, 1B & 3. Although these cases do not individually involve the largest sums of money, they involve some of the most important aspects of human life—family relationships, caring for children and elders, and housing—and their sheer volume demonstrates their importance. Collectively, moreover, a lot of money is at stake. 12 Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243, 1273 (2022); Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1707 (2022) (“State courts backstop the bread-and-butter transactions that make up the consumer economy, overseeing litigation over contracts and providing the ultimate enforcement mechanism for the trillions of dollars of consumer debt in the United States.”).

This Essay urges civil procedure scholars and teachers not only to incorporate state courts into their understanding of procedure, but also to look at procedure through the lens of lawyered courts and lawyerless courts. While the state/federal divide is a logical one for studying many subjects, including some civil procedure stalwarts like subject matter jurisdiction, the lawyered/lawyerless distinction provides additional and important insights about American civil justice and procedure.

To appreciate and study American civil procedure, it is necessary to consider the full picture of American civil justice, and that includes state courts. Nevertheless, state courts contain multitudes. 13 We do not endorse “lump[ing]” all “litigation involving unrepresented parties . . . together as a matter of either diagnosis or treatment.” See Wilf-Townsend, supra note 12, at 1716 (cautioning against this approach). Instead, as Wilf-Townsend understands, lawyerless courts present civil procedure challenges that should be compared and contrasted with those in lawyered courts when considering reforms in either context and while evaluating U.S. civil justice. Some state courts capture the cases that are being edged out of federal courts, but state and local courts also handle small claims, debt collection, housing, family law, and other fallouts of our social ills. This latter category of claims disproportionately burdens lower-income litigants who cannot afford lawyers and who often do not even recognize their problems as having a legal dimension. 14 See Deborah L. Rhode, Access to Justice: An Agenda for Legal Education and Research, 62 J. Legal Educ. 531, 531 (2013) (noting the extent to which the legal needs of poor and middle-income Americans go unmet); Rebecca L. Sandefur, Access to What?, 148 Daedalus 49, 51 (2019) [hereinafter Sandefur, Access to What?] (explaining that access to legal services is severely restricted to privileged populations); Rebecca L. Sandefur & James Teufel, Assessing America’s Access to Civil Justice Crisis, 11 U.C. Irvine L. Rev. 753, 755 (2021) (describing the access to justice crisis as one of unserved legal needs and unrepresented litigants in eviction and family cases); Ian Weinstein, Access to Civil Justice in America: What Do We Know?, in Beyond Elite Law: Access to Civil Justice in America 3, 7–9 (Samuel Estreicher & Joy Radice eds., 2016) (“People in low-income households were less likely to perceive themselves as having a legal problem, less likely to address it themselves, less likely to seek legal assistance, and less likely to access the civil justice system than those in homes with greater financial resources.”). It is important to appreciate the differences between the two kinds of litigation and the effect of the presence, or absence, of lawyers on these institutions.

To illustrate the importance and the fruitfulness of this perspective, this Essay examines three themes in civil procedure that are among the most important issues in both federal and state civil courts. The parallels within these themes are not commonly recognized because they manifest and are studied under different labels: (1) procedural rulemaking, (2) the role of technology in procedure, and (3) mass claims and aggregate litigation. These three areas are prominent topics in federal civil procedure scholarship and classrooms and are discussed in scholarship about state courts. But to date these topics have been siloed and are barely in conversation at all. 15 See, e.g., Spaulding, supra note 3, at 262 (“[T]he discourse of procedure, even among those who see glaring problems of access to justice, is idealized, abstract, and ossified—unconnected to the actual.”); Weinstein-Tull, supra note 1, at 1038–39 (“The legal academy’s failure to account for local courts . . . has essentially divorced legal theory from the most fundamental and common experiences of our justice system.”); cf. Carpenter et al., Lawyerless Courts, supra note 2, at 518–21 (describing recent reform proposals among access-to-justice advocates); Wilf-Townsend, supra note 12, at 1714 (“Although much legal scholarship focuses on federal courts, this shift in state courts is extremely consequential for how civil justice is administered and perceived throughout the country.”). One aim of this Essay is to unite these conversations.

Thus, for each topic, this Essay considers the related federal civil procedure and state civil court scholarship on these issues and identifies the similarities and differences between their manifestations in lawyered and lawyerless courts. These comparisons reveal important insights about the role of lawyers, the potential for reform, and the limits of procedure.

First, examining formal and informal rulemaking through this lens reveals that, while formal procedural rules should be simplified for self-represented litigants, adversarial representation is crucial to maintaining the fairness of informal procedures. Lawyers do not only object to opponents’ procedural manipulations; they can also counter judges’ exercise of procedural power and provide a check on both by observing proceedings, demanding reasoned explanations, and filing appeals. Additionally, lawyers are instrumental in the feedback loop through which ad hoc procedures spur more systematic procedural changes. Without that process of procedural law development, ad hockery can become the norm, signaling the need for more structural reform. Second, examining technology reveals areas where lawyered and lawyerless courts should be considered separately—for example, when technology assists lawyers as opposed to when it replaces them. But in other areas, like e-notice, the similarities call for more united theoretical and reform efforts. Finally, this Essay examines mass claims—first, as they are aggregated in lawyered courts, and then, as they are resolved individually (but en masse) in lawyerless courts. This approach shows that we typically frame discussions of class action or multi-district litigation (MDL) settlements as debates about the functioning of the lawyer–client relationship and about whether mass tort claimants in federal courts can be considered lawyered or lawyerless.

These are not the only possible takeaways, or the only three topics in which this division is important and revealing. Our case studies are meant to be illustrative and informative, but not exhaustive. The emerging application of critical race theory approaches to civil procedure would benefit from examining courts not as state and federal, but as lawyered and lawyerless. 16 See generally A Guide to Civil Procedure: Integrating Critical Legal Perspectives (Brooke D. Coleman, Suzette M. Malveaux, Portia Pedro & Elizabeth Porter eds., forthcoming 2022) (on file with the Columbia Law Review) (revealing ways that civil procedure privileges some and silences others within our justice system); Portia Pedro, A Prelude to a Critical Race Theoretical Account of Civil Procedure, 107 Va. L. Rev. Online 143 (2021) (advocating for the use of critical race theory to analyze civil procedure); Kathryn A. Sabbeth & Jessica K. Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming 2022), https://ssrn.com/abstract=3807349 [https://perma.cc/56XA-4JBN] (arguing that Gideon v. Wainwright’s constitutional guarantee of counsel accrues largely to the benefit of men). Subjects ranging from default judgments to poverty law to alternative dispute resolution (ADR) are likewise too often discussed in federal or state court scholarly silos. We could greatly enhance our understanding of these subjects if we viewed them through the lens of lawyered and lawyerless courts. For example, one might examine state courts alongside federal courts when discussing issues related to arbitration or mediation in complex litigation, while separately considering these mechanisms in lawyerless state courts as raising different concerns. This Essay focuses on these three areas because each illustrates the tacit divide between lawyered and lawyerless courts scholarship. Yet, each also reveals a different kind of relationship between the two. Procedure-making illustrates the lessons of comparing and contrasting the two realms. Technology represents the potential for unifying the divergent scholarship. Mass claims demonstrate the limits of procedure, manifested differently in the two realms in a way that the comparison helps to illuminate. 17 In this sense, comparing lawyered and lawyerless courts presents a combination of comparing two systems that are similar, but also choosing specific examples to highlight differences. See, e.g., Rosalind Dixon & Vicki Jackson, Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, 57 Colum. J. Transnat’l L. 283, 292 (2019) (using a similar approach to select three examples of courts for comparison); cf. Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am. J. Comp. L. 125, 139 (2005) (discussing the “most different cases” approach in comparative constitutional law).

Together, these case studies provide further insights into the roles of lawyers and judges in civil justice, not just as advocates or neutrals, but also as actors and architects of the civil justice system. They provide insights for doctrine—especially doctrine that bridges state and federal courts—like personal jurisdiction, notice, and due process. For example, personal jurisdiction arises predominantly in lawyered courts. In contrast, there is a shared challenge of providing notice to masses of unrepresented litigants in both aggregate lawyered litigation and lawyerless courts. And these case studies showcase the failings of a due process doctrine that values lawyers, and more process, as the ideal guarantors of the opportunity to be heard.

This Essay unfolds as follows: Part I describes the differences between state and federal courts in terms of their dockets, their litigants, their procedural rules, and the values they pursue. It then reframes those differences in terms of courts dominated by lawyers representing both sides and those where lawyers are predominantly absent. Part II explores three areas of current scholarship where the lawyered/lawyerless divide can help illuminate ongoing debates: (1) procedure-making, (2) the role of technology, and (3) treatment of masses of claims. Part III discusses implications of focusing on the lawyered/lawyerless divide on our understanding of the roles of judges and lawyers, doctrine, teaching procedure, and the power and the limits of procedure in the American civil justice system. Among other implications, this Essay shows the importance of lawyers for certain kinds of procedural development as actors and as architects. It urges scholars and reformers across lawyered and lawyerless courts to communicate with each other and potentially collaborate on research and reforms about using technology to effect notice, because the two kinds of courts face similar challenges. Finally, this Essay argues that this lens supports arguments about the limits of procedure’s ability to ensure justice and the need for more dramatic change—crafted by lawyers but ultimately designed for use without them. 18 See, e.g., Benjamin H. Barton & Stephanos Bibas, Rebooting Justice 100 (2017) [hereinafter Barton & Bibas, Rebooting Justice] (insisting that “it is time . . . to pursue simpler, swifter alternatives to lawyers” and that “[a]dvocating yet again for more lawyers will not result in more justice”); Kathryn A. Sabbeth, Simplicity as Justice, 2018 Wis. L. Rev. 287, 288 [hereinafter Sabbeth, Simplicity as Justice] (arguing that the “limits and unintended consequences” of the simplification project should “receive careful scrutiny”); Shanahan et al., Institutional Mismatch, supra note 1, at 1530 (urging “the collective exercise of reimagining state civil courts as democratic institutions”).