Each year, millions of civil cases are filed in courts across the United States concerning everything from family law and domestic violence matters to issues of housing and consumer debt. Unfortunately, deficiencies in the civil justice system perpetuate power imbalances; those who can hire private attorneys are much more likely to prevail in court or avoid court altogether. These power imbalances prevent people—mostly low- and middle-income people and disproportionately people of color—from prevailing in their cases, resulting in miscarriages of justice.
For some, winning or losing in court can mean the difference between life and death.
For parties involved, the stakes of civil proceedings are extraordinarily high. Child custody; orders of protection against a violent stalker; foreclosure of and eviction from a home; and falling prey to predatory debt collectors are all matters handled by civil courts. For some, winning or losing in court can mean the difference between life and death.
Over the years, advocates and policymakers have suggested a range of approaches to reforming the civil justice system, including guaranteeing legal representation in certain additional classes of civil cases; lifting restrictions on providers of civil legal aid—which includes a broad range of civil legal services—who receive public funding; and expanding opportunities for law students, attorneys, advocates, and paralegals to provide pro-bono services and representation to clients in need. Several jurisdictions have adopted some of these ideas, including New York City, which now provides a right to counsel for low-income tenants facing eviction in housing court. Some states such as Utah use a licensed paralegal practitioners model that allows highly trained paralegals to provide more affordable legal assistance. Despite these important efforts, the need for civil justice reform remains lesser known than the vital criminal justice reform work being done today.
Below are five guiding principles that policymakers should consider when crafting innovative and effective measures for making the civil justice system fairer, more accessible, and more inclusive. Although the below list is not exhaustive, all civil justice reforms should aim to further one or more of the following goals.
1. Civil justice reform must be an all-of-government approach
In recent years, civil justice reform has primarily taken place at the state or local level, particularly in those jurisdictions’ legislative and judicial branches. At the federal level, Congress’ involvement in reforming the civil justice system has been limited to funding legal service providers, who remain severely under-resourced and need significantly greater investment to meet the needs of their communities. At the federal executive level—as a recent CAP issue brief describes—Obama-era initiatives aimed to improve and expand access to civil legal aid while simultaneously improving results in certain federal programs that serve low-income and other underserved people by integrating legal services. But much more can and must be done both by future administrations and within the federal legislature. Officials across all levels of government must make civil justice reform a priority and use effective strategies to ensure that people have the support they need.
2. Legal aid should be available to everyone
Free or affordable civil legal services and representation should be available to all who need such help. This includes increasing public awareness of the availability of legal aid and early intervention support services that help individuals resolve problems and disputes before they escalate into full-blown lawsuits. Such preventive services are crucial for helping people avoid civil court proceedings altogether, which, in turn, saves parties and stretched-thin legal aid attorneys valuable time and resources.
3. Civil justice reforms must reflect the system’s interconnected nature
Civil justice concerns a wide array of legal areas, including family law, housing disputes, and employment rights, among others. At first glance, these areas of law may appear to have nothing in common. However, civil litigants often face multiple simultaneous problems such as recovering wage theft by an employer; dealing with abusive debt collectors; and falling behind on spousal support payments. In the civil justice system, a litigant’s involvement in one area of the law often spills over to another. Approaches to reform therefore should ensure wraparound services.
4. Civil justice reform proposals must reflect cultural competency
Courts and legal aid providers must respect and honor diverse cultures and norms, and services should be trauma-informed. Moreover, judges in civil courts must be more representative of the communities in which they serve. Too often, civil court processes are designed to serve the needs of court personnel and lawyers—not the people seeking fair treatment in the halls of justice. Reforms must ensure that people facing civil legal problems have access to the information and assistance they need in a form they can actually use.
5. Rules governing civil proceedings must be fair and compassionate
CAP’s report, “Structural Reforms to the Federal Judiciary: Restoring Independence and Fairness to the Courts,” explored how secret settlements and bans against class-action lawsuits result in predators and corporations escaping accountability, thereby allowing them to continue preying on innocent people or selling dangerous products. Federal courts have also raised the bar on pleading standards for civil litigants, increasing the likelihood that their cases will be outright dismissed without a fair day in court. Such rules result in inequitable case outcomes that disproportionately benefit corporations and those who are wealthy and powerful to the detriment of everyday Americans. In addition to removing barriers to justice, reforms should aim to improve the nature of civil proceedings generally so as to alleviate trauma that civil litigants endure throughout the process.
The current system asks people experiencing civil justice problems to navigate a confusing and often unjust legal labyrinth largely on their own or with limited or inadequate help. Instead of being a source of empowerment and avenue for justice, today’s civil justice system is often a source of significant hardship and anxiety for people involved. By designing reforms around the above principles, the civil justice system can be transformed into one that promotes fairness and gives people a fighting chance to overcome adversity.
Danielle Root is the associate director of Voting Rights and Access to Justice at the Center for American Progress. Maggie Jo Buchanan is the director of Legal Progress at the Center.