Debates over the health of state courts and the treatment of unrepresented parties are heating up, and the state courts system is approaching a critical moment. A new class of scholars argues that civil procedure in small claims looks radically distinct from traditional practice in federal courts and fails to vindicate full access to justice.
Jessica Steinberg, for instance, argues that a “crisis” is brewing in more than nineteen million civil cases involving low-income parties who are often lawyerless.
Unlike the well-represented cases that populate the federal courts, more than 75% of state court claims involve at least one party without legal representation.
Without experienced counsel, most low-income litigants cannot manage the complex procedures used by state courts. And, in a reversal of the federal norm, a large percentage of these state court cases involve large landlords or debt collectors as plaintiffs against low-income and unrepresented defendants.
Despite reform efforts oriented at encouraging state judges to simplify procedures and embrace inquisitorial techniques, Colleen Shanahan and co-authors found in a path-breaking study that “[j]udges [have] maintained legal and procedural complexity in their courtrooms.”
They conclude that civil courts were “not designed for people without counsel” and are therefore failing to promote access to justice.
Even more, Lauren Sudeall and Daniel Pasciuti found in a study of eviction courts that unwieldy processes have turned state courts into nothing more than “a vehicle for rent collection.”
This growing chorus of commentators agrees that the status quo is harming unrepresented parties, and it has, in turn, offered an array of reforms ranging from empowering active judges
and providing more unbundled legal aid,
all the way to engaging in deeper experimentation in state courts.
Behind this developing maelstrom and buried in this emergent scholarship is a surprising obstacle for unrepresented parties: a nearly non-existent and opaque discovery system. Steinberg, for instance, observed that unrepresented litigants “find it nearly impossible to manage . . . discovery.”
Likewise, Shanahan found in a large study of unemployment claims that “[d]iscovery procedures are limited and rarely used.”
Part of the reason for this missing discovery system is that some states have streamlined low-stakes litigation by explicitly prohibiting discovery. For instance, in eviction cases, Michigan, Pennsylvania, Texas, and arguably New York bar any discovery.
Even in contexts where motions to compel discovery are more common, one empirical study found that “judge[s] infrequently ruled on these motions.”
Indeed, one major teaching of this entire literature is that “the law of state civil courts is largely unwritten” and heavily “informal”
and most of the work “happens in real-time, in the courtroom, with little to no discovery or exchange of pleadings.”
These studies, however, leave open the question of whether discovery is an important and potentially underutilized reform tool or, by contrast, a mechanism that increases costs and ultimately harms unrepresented litigants. On the one hand, if the scholarship on federal discovery is right, missing discovery in state courts leaves aside a potential tool that can promote pro-consumer or pro-employee changes in the law. And, without discovery, litigants who may need documents to assert claims or defenses are disempowered. Even more, litigants may miss discovery’s potential as an offensive weapon—to gain leverage in settlement negotiations, delay proceedings, or support counterclaims.
In line with this thinking, Steinberg noted that in habitability cases, discovery could “play a central role . . . making it unlikely that tenants can succeed without attorney representation.”
On the other hand, some scholars of the civil Gideon literature and state reformers have long advocated for procedural simplification and a rejection of complex practices like discovery.
Some state legislatures have explicitly banned discovery “in an effort to reduce costs and level the playing field for unrepresented litigants.”
For instance, setting aside the states that have eliminated discovery in eviction cases, California, New York, and Pennsylvania seriously limit discovery in cases involving claims for less than $10,000.
A committee of lawyers once advised Massachusetts family courts to create a simplified process for domestic relations cases that “would eliminate most formal discovery” because the process was a “stumbling block faced by pro se litigants.”
To these states, discovery increases the complexity of a case, gives represented parties an upper-hand, and further unbalances litigation in their favor. Worse, it may empower sophisticated parties—debt collectors, landlords, employers, and corporations—with bargaining leverage and the threat of increased costs. Besides, whatever regulatory benefits discovery may bring in federal court are likely not achievable in small-stakes cases with straightforward fact patterns.
While scholars have identified important gaps in state court systems and potential problems, they have not defined with precision what the role of discovery should be in lawyerless courts, furnished a clear outline of discovery’s potential effects on these cases, or set the appropriate boundaries of debate. The stakes, moreover, are significant as reforms to state courts hang in the balance. The resulting questions are clear: What, exactly, should the role of discovery be in lawyerless courts? Does “missing discovery” damage the development of state law? Or are state legislatures right that discovery harms unrepresented litigants? And, if so, what can reformers do about it?
This Essay takes on the task of answering these questions, providing an examination of discovery in state courts, and a detailed analysis of where discovery would have a positive or negative impact. Part I summarizes how state discovery differs in important respects from the federal system. It then provides a detailed catalogue of state discovery rules in three categories of lawyerless cases: landlord–tenant, debt collection, and family law disputes. This Essay places special emphasis on debt collection and eviction claims because they represent around 45% of all state cases and mostly involve unrepresented parties.
Part II then steps back to provide a theoretical framework to evaluate discovery, its potential benefits and costs, and whether there is room for discovery reform. At its core, this Part addresses the discovery catch-22: While discovery can bring benefits to lawyerless cases, it can also increase complexity to the point that it actively harms the interests of unrepresented litigants. That is why Part II explores the characteristics of cases in which discovery is most likely to promote fairness and accuracy without increasing complexity. There may well be a sweet spot for discovery reform, especially in areas where sophisticated plaintiffs—large landlords, debt collection companies, and banks with experienced counsel—litigate against lawyerless parties who allege serious and systematic wrongdoing. States should only impose disclosure obligations on sophisticated plaintiffs in complex cases, including warranty of habitability claims and violations of the Fair Debt Collection Practices Act (FDCPA). In this manner, this Essay highlights several design principles for any discovery reform effort.
Finally, Part III introduces an experimental proposal: a civil open file statute that would force sophisticated landlords and debt collectors to assemble and produce a full record of relevant documents at the outset of litigation. These statutes would draw on the example of criminal open file statutes that force prosecutors to disclose to defendants their full investigatory record. But a civil analogue would be narrowly applied only to cases involving a significant asymmetry in resources and complex defenses or counterclaims by unrepresented parties. The idea follows a call from scholars to embrace a spirit of experimentation in state courts.
And the idea also aligns with the civil Gideon literature that embraces legal assistance only for a subset of cases that involve significant interests, such as housing or child custody.