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| Lauren Sudeall |
In many rural courts, including here in Georgia, that picture is far from reality.
Many of Georgia's 159 counties are what my co-authors and I refer to in our 2018 Harvard Law and Policy Review article as "legal deserts" — places without significant numbers of lawyers and, in some cases, no lawyers at all.[1]
The 154 counties outside of metropolitan Atlanta are home to 65% of Georgia's population but only 30% of the state's attorneys; 40% of Georgia's attorneys work in Fulton County alone, where the state's capital is located.
As of November 2016, 64 of the state's 159 counties had 10 or fewer active lawyers residing in the county, and 32 counties had five or fewer active lawyers. Five counties did not have a single active attorney.[2]
In many of the counties with only a handful of attorneys, some of those attorneys may serve as public defender, prosecutor or judge; others may be functionally retired, working for government entities or otherwise not able to provide assistance.[3]
Therefore, there may be even fewer attorneys available to help with everyday legal needs relating to housing, employment, benefits or family law issues.
Narratives about the availability of legal representation — or lack thereof — are often based on the experiences of urban communities, given researchers' and much of the media's focus on larger cities. For example, in the context of eviction, advocates often lament the fact that nearly all landlords have counsel, while nearly all tenants do not — 90% in both cases.[4]
In more rural areas, however, it is most often the case that both tenant and landlord are unrepresented. In our study of eviction court in suburban and rural Georgia, the county with the highest rate of representation had tenants represented in just 1.2% of cases and landlords in only 12.2% of cases. In more rural counties, representation rates were 0.5% or less for tenants and less than 8% for landlords.
The parties may not be unique in this respect; in many magistrate and municipal courts, the judge is also not a lawyer.[5]
The phenomenon of courts without lawyers is not unique to rural areas. Many smaller, lower-level courts might themselves be considered legal deserts, given the infrequency with which those appearing in court are represented by counsel. And this is true not only in the civil context, but in criminal cases as well.[6]
For example, a 2016 report from the National Association of Criminal Defense Lawyers identified courts in South Carolina operating without any lawyers present at all: The judges were not lawyers, defense counsel was not present, and law enforcement officers acted in the role of prosecutor.[7]
The reality is that, in many courts across the country, the legal process plays out each day without any lawyers involved. Yet the legal system and most courts are designed primarily for lawyers, creating a deep chasm between the abilities of those navigating the courts and the knowledge needed to do so effectively.
The unavailability of lawyers is exacerbated by prohibitions on the provision of legal advice — and a broad definition of what falls into that category — that prevent court personnel from providing almost any guidance on the legal process to self-represented litigants.[8]
All of these factors have resulted in a system that is impenetrable to many of the people affected by and dependent on it.
Yet, in many cases, that system is their only recourse to resolve critical life questions: Will they and their children be forced out of their home? Will they be able to ensure they are protected from an abusive partner? Will they be able to go home, or will they stay in jail? Will they have enough money next month to buy food for their family?
In many cases, the assistance of a lawyer is invaluable, and without that assistance, critical legal needs go unaddressed. This can result in individual and societal harms relating to education, health, safety and welfare.
In the criminal context, it can lead to a higher likelihood of pretrial incarceration and a higher likelihood that a defendant will plead guilty, regardless of his or her innocence.[9]
It is also more likely in legal deserts that individuals will fail to be aware of their legal rights or that certain legal protections are available to them.[10] This can lead to uneven enforcement, or even nonenforcement, of state and federal law.
A recent example of this is the application of federal eviction protections promulgated in response to the COVID-19 pandemic.
Reports issued by the Center for Access to Justice at Georgia State University College of Law,[11] where I serve as faculty director, demonstrated that 61% of Georgia courts surveyed did not direct litigants to the declaration form necessary to trigger the protections of the eviction moratorium order issued by the Centers for Disease Control and Prevention or provide information about the moratorium to tenants facing eviction.[12] This was due in part to a belief that to provide such information would amount to impermissible legal advice.
Some chief magistrate judges have refused to recognize the CDC order or adopted a very limited interpretation, restricting tenants' access to the protections available to them.[13]
Lawyers play an important role not only in providing client-specific assistance, but also with respect to oversight of courts that might otherwise operate in obscurity. In doing so, these courts allow, either willingly or unwittingly, various legal rights and protections to remain unrealized.
Lawyers also serve an important role in informing local court culture.
For example, our research has highlighted that repeated exposure to certain types of arguments not readily made by self-represented litigants — such as raising and effectively arguing tenant counterclaims in eviction cases — can, over time, increase judicial willingness to entertain and value such claims.[14]
For the legal profession, I would emphasize two primary takeaways from the above.
First, there is a critical need for legal assistance in legal deserts. We should build and support pipelines that encourage rural residents to consider careers in law, extend pro bono assistance networks beyond big cities and think creatively about other people — including nonlawyers who can play a role in identifying legal needs and helping to address them.
According to a Legal Services Corp. study, in 2016, 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help.[15] Legal professional organizations need to recognize that defending their monopoly on legal services does a disservice to those living in legal deserts and relies on the false premise that lawyers alone can address the vast array of existing needs.
Second, we must recognize that — even if measures to expand the availability of legal services are taken — there are many situations in which legal assistance will likely not be available. The onus is also therefore on courts to adapt their systems and processes so that they are more easily navigated by people without any specialized legal knowledge.
It is critical that, in conveying information, designing court forms and structuring court proceedings, we assume people will not have a lawyer to assist them.
In legal education, we often say we are teaching students to think like lawyers; in advancing access to justice in courts across the country, we may be far more successful if we make sure they also understand what the legal system looks like through the eyes of those without lawyers.
Lauren Sudeall is an associate professor at Georgia State University College of Law.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Lisa R. Pruitt, Amanda L. Kool, Lauren Sudeall, Michele Statz, Danielle M. Conway & Hannah Haksgaard, Legal Deserts: A Multi-State Perspective on Rural Access to Justice, 13 Harv. L. & Pol'y Rev. 15 (2018).
[2] Id.
[3] Id.
[4] Matthew Desmond, Unaffordable America: Poverty, Housing, and Eviction, Inst. for Rsch. on Poverty 5 (Mar. 2015), https://www.irp.wisc.edu/publications/fastfocus/pdfs/FF22-2015.pdf ("[I]n many housing courts around the country 90 percent of landlords have attorneys, and 90 percent of tenants do not.").
[5] Lauren Sudeall & Daniel Pasciuti, Praxis and Paradox: Inside the Black Box of Eviction Court, 74 Vand. L. Rev. 1365, 1385, 1400 (2021); see also Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 1002 (describing municipal courts in multiple states where the judge need not be an attorney).
[6] See Andrew Davies & Alyssa Clark,Gideon in the Desert: An Empirical Study of Providing Counsel to Criminal Defendants in Rural Places, 71Me. L. Rev.245, 263 (2019) (25% of misdemeanor defendants appointed counsel in rural Texas counties as opposed to 39% in urban ones).
[7] Alisa Smith, et al, Nat'l Ass'n of Crim. Def. Lawyers, Rush to Judgment: Rush to Judgment: How South Carolina's Summary Courts Fail to Protect Constitutional Rights 16 (2017), https://www.nacdl.org/getattachment/ab9d6b03-2b45-4235-890e-235461a9bb2d/rush-to-judgment-how-south-carolina-s-summary-courts-fail-to-protectconstitutional-rights.pdf; see also Natapoff, supra note 5, at 985.
[8] See Lauren Sudeall, The Overreach of Limits on "Legal Advice," 131 Yale L.J. Forum ___ (forthcoming 2021).
[9] Aaron Littman, Lauren Sudeall & Jessica Pishko, Protecting Rural Jails from Coronavirus, Data for Progress/The Justice Collaborative Institute, Apr. 24, 2020, https://www.dataforprogress.org/memos/protecting-rural-jails-from-coronavirus; Jacob Kang-Brown & Ram Subramanian, Vera Inst. of Justice, Out of Sight: The Growth of Jails in Rural America 7 (2017), https://www.vera.org/downloads/publications/out-of-sight-growth-of-jails-rural-america.pdf; see also Paul Heaton, et. al.,The Downstream Consequences of MisdemeanorPretrialDetention, 69Stan. L. Rev.711, 724 (2017) (detained defendants more likely to be found guilty and sentenced to prison).
[10] Pruitt et al, supra note 1, at 23.
[11] For more information, see Center for Access to Justice at Georgia State Law, https://law.gsu.edu/a2j.
[12] Daniel Pasciuti, Tabitha Ingle, George Usmanov, Joy Dillard Appel & Lauren Sudeall, Georgia State University College of Law – Center for Access to Justice, Courts in Crisis Part III: The Rising Tide of the Rental Housing Crisis in Georgia 7 (Aug. 2021), https://law.gsu.edu/document/courts-in-crisis-part-iii-the-rising-tide-of-the-rental-housing-crisis-in-georgia/?wpdmdl=210223.
[13] Stephannie Stokes, 'The CDC As Far As I Know Has No Control Over Georgia Courts': Judges Continue Evictions Despite Moratorium, WABE (Feb. 2, 2021), https://www.wabe.org/georgia-judges-still-grant-evictions-despite-moratorium/.
[14] Sudeall & Pasciuti, supra note 5, at 1425.
[15] Legal Servs. Corp., The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans 6 (2017), http://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf.