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
—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
that hear most of the 98% of civil cases that are the focus of this groundbreaking Columbia Law Review symposium.
Federal civil courts are lawyered. In 70% of federal civil cases, both sides are represented.
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.
In some areas of state court, like family law, “nearly all cases involve two unrepresented parties.”
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.
Studies about American civil procedure too often examine the 2% of cases in federal courts,
and not state courts, where 98% of cases take place.
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.
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.
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.
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.
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.
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.
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.
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.
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.