Washington Lawyer - November/December 2020 - 27

FEATURE
These residents - and others who are eligible for free legal aid but
cannot get help from the city's overwhelmed legal aid organizations
- too often are left to fend for themselves in situations where they
are at risk of losing custody of their children, getting evicted, or being
deported. A startling 80 percent or more of those who appear in D.C.
Superior Court divisions such as Family Court and the Landlord & Tenant
Branch do so on their own. An overwhelming percentage of them are
African American residents from Wards 5, 7, and 8. And worse, the
COVID-19 pandemic has made access to civil justice even more challenging, a situation that is unlikely to change anytime soon.
So, what is wrong with the current system of civil justice for selfrepresented litigants (SRLs) in the District? The current legal system at
D.C. Superior Court is inherently unfair to SRLs. The law and procedures
governing family and landlord-tenant matters are complicated. The
Domestic Relations Rules, for example, are 190 pages long and were
designed on the assumption - now proven to be totally unfounded
- that lawyers would be representing all parties in court proceedings
in matters like these.
I see the value, at least in principle, of an adversarial system that is
grounded on seeking truth through expansive pretrial discovery, restrictions on hearsay, and the right to cross-examine opposing parties and
their witnesses. It is not a sensible model, however, when lawyers are
not available to navigate that process on behalf of both parties or, even
worse, when a lawyer represents only one side. Under current D.C. rules,
only lawyers are permitted to represent parties, even though they are
available for so few litigants. In addition, there is far too much reliance
on D.C. Superior Court judges and staff to handle matters that can and
should be handled in other settings.
This is why it is so urgent that there be greatly increased federal, state,
and local support for civil justice legal services programs so that a far
higher percentage of D.C. residents can be represented by counsel. We
must think much more expansively about how to serve all those in the
District who must navigate our complex legal system on their own. Here
are some suggestions to consider.

ENHANCE COMMUNITY-BASED SERVICES
Access to civil justice should be redefined as a community responsibility
and not just delegated to our courts. We need to engage in creative
problem solving to figure out how to avoid, whenever possible, using
overburdened judges and formalized legal structures to resolve matters
such as family, landlord-tenant, and debt-related disputes. Conditions
will be even worse in the years ahead due to the court's closure and
scaled-back operations as a result of the pandemic. The current debate
over whether to reallocate some of the responsibilities of police
departments for addressing social problems is apt here.
Experiences elsewhere indicate that alternatives do exist for preventing
these disputes from blossoming into litigation or for resolving them out--side of a court setting. The Massachusetts Office of Public Collaboration,
for example, funds local nonprofit community mediation centers to
use trained pro bono mediators to resolve disputes among neighbors,
within families, and between landlords and tenants. Baltimore City and
Baltimore County have similar programs.
Outside of the United States, jurisdictions have set up community-based
offices to provide free advice and information to help people understand

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their rights, resolve their legal and financial problems, and serve as advocates with government agencies. The British Citizens Advice program is
now more than 80 years old and renders its services face to face, by phone,
online, and even in people's homes. More than 3,400 community locations
throughout England and Wales rely on 22,200 trained volunteers. South
Africa has a comparable program of local Community Advice Offices. We
can learn from these programs and adjust them to fit our needs here.
There are also benefits in reviewing what other professions are doing
to inform the public about their rights, alternative ways to address
problems, and access to needed services. Medical schools like Johns
Hopkins and clinics such as the Mayo Clinic offer online guidance on the
prevention, diagnosis, and means for addressing medical problems. Very
few counterparts in law schools or within the legal profession perform
these services - and they should.

ESTABLISH INFORMAL COURTS FOR CIVIL MATTERS
Even if we give high priority to emphasizing community-based services
for resolving disputes, many will inevitably still end up in courtrooms. For
the reasons described previously, alternative options to the full-fledged
adversarial system are necessary. This is particularly true for family law
and landlord-tenant cases, among other matters, where one or both
parties are unrepresented. Superior Court has both criminal and civil
law precedents for utilizing more informal tribunals that can be applied,
including problem-solving and small claims courts. All less formal
options will need the flexibility of virtual court appearances that will be
a legacy of the COVID-19 pandemic. This flexibility, however, must factor
into the reality that SRLs will often not have access to the technology
that others may have.

EFFICIENTLY USE EXISTING LAWYER RESOURCES
A related matter is how to make the best use of current legal aid
resources, and how they should fit within a broader community-based,
access-to-civil-justice program. Given the limited legal assistance available, we must ask certain questions: Can the dispute be resolved outside
of a courtroom by referral to one of the community-based programs
described previously? Is it the kind of problem that can be resolved
by having a lawyer provide brief legal advice? Or will it be necessary
to have a lawyer play a somewhat broader but still limited role, such
as appearing on behalf of an SRL at a status hearing? And what matters
require that the legal aid organization involved commit to providing
full representation in a traditional adversarial setting?
The District has taken steps that take into account this spectrum of
possible services in filling some of the needs. To help SRLs understand
their rights and court pleadings requirements, for example, the court,
with assistance from ProBono.net and the D.C. Bar Pro Bono Center, has
been posting more easily understood forms and interactive questionnaires online, particularly in the family law area.
The court has also created the Family Court Self-Help Center in which
court staff and pro bono volunteers provide basic information about
family court and assist SRLs in completing forms. More recently, under the
auspices of the Family Law Assistance Network, lawyers from DCALF, the
D.C. Bar Pro Bono Center, and Legal Aid Society of the District of Columbia
provide both advice and limited-scope legal services virtually to SRLs.
Legal aid providers also offer advice to SRLs on child support, consumer
law, domestic violence, landlord-tenant, and small claims matters.

NOVEMBER/DECEMBER 2020

WASHINGTON LAWYER

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Washington Lawyer - November/December 2020

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