Shortly before this video of a FutureLaw 2016 discussion was posted, I got an email why should we collect data in legal services. Jenny Montoya-Tansey, from Code for America, does a good job of explaining around the 18 minute mark.
She explains an app that helps people apply for food stamps, which creates data showing the funnel of applications, and where people drop out. The biggest value of the data collection isn’t anything related to high technology; instead, the value is seeing how the system works and finding the problem areas. The data allows the agencies to debug their real-life procedures of how they serve citizens.
For me, this explanation resonates with what we learned from the Kirwin Institute about implicit bias and systems thinking at our recent Ohio Legal Services Racial Equality Summit. It also demonstrates how a simple, practical answer can be more effective than elaborate descriptions of potential. In that spirit, I’ll save more discussion about both of those topics forother posts.
I’ve long thought that justice should be considered a goal in itself, that treating people fairly is an important part of society, regardless whether we can measure the outcomes of that justice. People want to be treated fairly. I’ve based those arguments only on the words in our nation’s founding documents and on political philosophy.
So I’m very excited to learn about the research by Tim Tyler and others to measure the importance of procedural fairness. Yale Professor Tom Tyler’s large body of work demonstrates that people’s perception of how fairly they are treated by legal authorities matters; procedural justice has significant, long-term effects on people’s lives.
He contributes to this resource from the National Center for State Courts. He mostly researches criminal law, but he has written about access to justice. Here is also a good summary and a video.
The benefits of procedural justice that he discovers include long-term compliance, which may seem more appropriate for criminal justice at first, but it is also very important for decision-making processes for eviction. If an unfair procedure makes future compliance less likely, then being screwed in housing court may make it less likely that a person complies with landlord/tenant law in the future. How many tenants who trash an apartment before leaving were previously cheated out of a security deposit or unfairly evicted and have lost faith in finding fairness in the legal system? Is a landlord more likely to illegally lock-out a tenant if they feel like they haven’t been heard in eviction court? It’s easy to imagine how eviction courts that are experienced as unfair could start a vicious cycle.
Tyler identifies four main aspects of procedural fairness, and claims these four factors will determine whether a procedure is determined to be fair.
Voice – whether the person can tell their story and participate (actually, voice isn’t itself a factor in procedural fairness, but it influences all three of the other factors)
Neutrality – whether the decision-maker is perceived to be neutral
Respect – whether the person is treated with respect
Trust – whether the person trusts the decision-maker and others
We need to bring Tom Tyler’s research into eviction courts. That starts with determining ways to measure justice, not just economic outcomes for some participants.
“The opposite of poverty is not wealth, it’s justice.” Lisa Foster, Director DoJ Access to Justice. #COFannual
Most of the courts in my service area have form Complaints for landlords to evict. Most of these complaints have a “second cause” included, which means the landlord is suing for money in addition to get possession of the home back. That means a tenant being evicted must respond with a written Answer. If they don’t, then they won’t even get notice about the hearing where the landlord gets to say how much the tenant owes.
But none of these courts have a form Answer to respond to the form Complaint.
Why do courts provide legal documents to the party that is far more likely to be represented by a lawyer? And nothing to defendants, forced into court without any help and facing such harsh consequences if they don’t respond with the form you don’t provide?
I was invited to the American Bar Association’s National Summit for Innovations in Legal Services after writing these comments about the need for open data about the law. I also wrote this about open data right before the Summit. I was hoping to hear a lot about the better need for data about our courts, since most other innovations right now are revolutions in using, collecting and analyzing data.
I wasn’t disappointed. There was a lot of talk about the need for better access to data about the law at the National Summit for Innovations in Legal Services. Access to more data would allow scholars to study how the law works, legal aid lawyers to serve more people in less time with less resources, private lawyers to demonstrate a Return on Investment, pro se clients some guidance in the laybringh of law, innoveators the foundation to create apps to open up the law…
Our “justice” system is in complete disorder. Maybe not the justice system, composed only of 9 robes, that we read about and hear about in the media. That’s an open argument. But there is no arguing this: the justice system, as experienced every day by people in municipal courts, is fundamentally broken.
Municipal courts are our local courts that hear cases like evictions and debt collections, and whose dockets are swollen. Cases are processed more than they are adjudicated. These are courts that decide whether people lose their home, and neither law nor justice are anywhere to be seen.
Courts don’t let defendants talk. Courts don’t follow unambiguous state law and allow tenants to argue any defense, including the most common defense in contracts, prior breach. Courts don’t treat landlords and tenants the same – the form given to the landlords by courts may or may not comply with the Ohio Rules of Civil Procedure, but they almost always help the landlord sue the tenant for an undetermined amount of money. And if the tenant doesn’t respond in writing with a form that isn’t provided by the court, then the court will assume that any claim by the landlord is true, in a hearing that the tenant isn’t even notified about. The courts ignore the plain language of the lease if it benefits the tenant, even though the landlord drafts the lease. The courts ignore higher courts on clearly decided issues of law.
Maybe you think it can’t be that bad. Maybe I don’t know what I’m talking about. Admittedly, I only talk to a small fraction of the people losing their homes through the courts in 32 counties in Northwest Ohio, a tiny fraction of the municipal courts in our country.