Washington Lawyer - November/December 2024 - 11

FEATURE
- those involving housing, family stability, and safety. In the District of
Columbia, the staggering majority of eviction and domestic violence
cases involve unrepresented parties.
" The system was created by lawyers for lawyers on the assumption that
everyone has a lawyer, " says James J. Sandman, vice chair of the D.C. Access
to Justice Commission and president emeritus of the Legal Services
Corporation, the nation's single largest funder of civil legal aid. " Everything
about the system, from the language of the law to the forms that
are used to the Rules of Civil Procedure - all were created with lawyers
in mind. But to a person who doesn't have a lawyer, court processes are
incomprehensible. They are complicated, opaque, and unnavigable. "
The resulting frustration thwarts the efforts of individuals to access
the justice system, says Sandman, suggesting that reform could shift
the focus of legal processes from lawyers to litigants. " We need to use
principles of user-centered design to rethink our processes, " he says.
" User-centered design has been deployed successfully in the most sophisticated
of contexts. Your cell phone is a great example. The technology
behind it is very complicated, but because of user-centered design,
everyday people can master it. There is no reason why [this approach]
couldn't be used successfully to rethink our legal system. "
Study along these lines has already been undertaken. The American Law
Institute, whose mission is " to promote the clarification and simplification
of the law and its better adaptation to social needs, " has ongoing projects
that include a study of high-volume civil adjudications focused on
precisely the kinds of high-stakes, low-dollar-value civil claims that lie at
the heart of the contemporary crisis in representation. Sandman says
that the principles identified by the study could govern the design of
new processes in these cases.
Sandman is concerned, however, that the pace of reform hasn't reflected
the urgency of the crisis, especially for unrepresented individuals. Today,
more than 83 percent of family court litigants in the District appear pro
se, Sandman points out.
" Most of the legal issues that affect individuals are a matter of state law,
not federal, so whatever remedy we come up with will have to be implemented
state by state, " he says. " My hope is that the American
Law Institute project will include recommendations on
sample court rules that would implement the principles
they come up with - uniform principles and uniform procedures
that states could adopt without having to reinvent
the wheel. "
SIMPLIFIED PROCEDURES IN ACTION
Some courts in the District have already started employing
simplified procedures to expedite case disposition.
Administrative courts present fewer obstacles for commencing
a suit than elsewhere, but their streamlined
processes are illustrative of the potential impact of simplified
judicial procedures and highlight some relevant considerations.
At
the District of Columbia Office of Administrative Hearings
(OAH), hearing request forms cue the petitioner to
identify the government decision they are contesting
and the kind of benefit impacted. The judge will then
schedule a hearing at which they will question the petiNOVEMBER/DECEMBER
2024 * WASHINGTON LAWYER 11
tioner about their issue, effectively participating in the formulation of
their claim.
" Here at OAH we have hearing requests; we don't have complaints, " says
Bennett Rushkoff, administrative law judge (ALJ) primarily handling public
benefits cases. " A hearing request is much easier for a pro se litigant.
The hurdle is much lower than [for] drafting a formal complaint. "
Formal discovery is limited in Rushkoff's court. The government provides
the basis for its decision to deny or terminate benefits as a matter of
course, at which point the administrative law judge again steps in to assist
the petitioner.
" Typically, the ALJ will be active and ask questions if there are concerns
about whether the calculations were done correctly, " he says. " The petitioner
may or may not follow the discussion. " This approach is workable
in the OAH, where many of the typical disclosures are mandatory and
pro forma, but it might be more challenging elsewhere.
At trial, more rules are modified or dispensed with. " We basically allow
most hearsay into the record, " Rushkoff says, " and then we use a sliding
scale to decide how much weight to give it. That's more work on the
judge because more hearsay enters the record, and the judge needs to
determine how to weigh it. "
But the same rule might be problematic in broader application, Rushkoff
adds. " I think the rationale for letting hearsay in is that an administrative
law judge is considered to have enough training and experience to
weigh it appropriately, and we don't trust juries to do that, " he says.
Though Rushkoff is a strong believer in simplified court procedures to
help unrepresented litigants, he points to some downsides, including an
increased burden on judges to determine the basis of claims. Another
example of the tension between efficiency and access occurs in the limited
discovery process.
Following the complaint, the court may call for several status conferences,
as the parties exchange information and determine the areas in
which facts are agreed upon or contested. " It's serving as a substitute for
Washington Lawyer - November/December 2024

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