Wednesday, September 9, 2015
Last week, Health Justice Project clinic students participated in a court watch at Chicago’s eviction court. In some instances, the students provided support to unrepresented defendants. One student, Amanda Plowman, reflected on that experience:
On Tuesday morning, I traveled to the intimidating Daley Center for a court observation. I met two women there. The couple had received a notice of eviction from their landlord and hoped to request additional time to find an attorney. I provided moral support, which, I was surprised to learn, made a substantial difference to the couple. As we navigated the crowded courtroom, the couple expressed how stressful, foreign, and terrifying the situation was for them. One of the women showed me how badly her hands were shaking in anticipation of coming before the court. I didn’t blame her.
The courtroom was packed with people. Every now and then one of the landlord attorneys would stand in front of the wooden gate facing the self-represented litigants with a stack of filed in their hands and yell out a tenant’s name. If someone answered, the attorney would walk with them outside and try to negotiate (or bully a tenant into) a plea of guilty. The attorneys were calm while the self-represented litigants fidgeted nervously in their seats waiting for the judge to arrive. When the judge did arrive each case was argued and over within a matter of minutes if not less. I was astonished that such an important decision- whether a tenant was to become homeless or not- was made in the blink of an eye. Unfortunately, this experience isn’t unique.
A study of eviction court conducted in 2002 by the Lawyers’ Committee for Better Housing, Inc. (LCBH) and Chicago-Kent College of Law concluded that tenants were at a disadvantage, as evidenced by the court’s failure to require the landlord to establish their prima facie case for eviction. For example, landlords must meet due process requirements when providing notice of an eviction. Judges only examined the notice in 65% of the cases.
The odds are also stacked against tenants. The majority of tenants do not know their rights. Even if they do have a valid habitability defense, they are unaware of the steps to properly address these issues such as notifying their landlord, or other procedures that could have sustained the viability of their defenses. Despite having a valid defense, the research shows in only 27% of the cases did judges ask if the tenant had a defense. If the tenant did raise a defense they would not have known how to present it in a legally cognizable way or how to properly establish the grounds for their defense. Both elements would need to occur within 1 minute and 44 seconds, which the study found was the average length of an eviction hearing. To complete the picture, even though 55% of tenants brought forth a valid defense to the judge, all of them were evicted from their homes.
In addition, the majority of tenants are self-represented which also puts them at a disadvantage. Low-income parties are typically self-represented since they have difficulty obtaining legal counsel not only due to the high cost, but also due to the lack of legal services for free or low cost assistance. A New York Times opinion article by Matthew Desmond notes, that 90% of tenants across the nation appear in eviction court without an attorney. Where as 90% of landlords are represented by an attorney. The situation seems obviously in favor of the landlord since representation makes a dramatic impact in the outcome for an eviction case. In a pilot project that took place in Quincy, Massachusetts eviction courts provided free legal representation to low income tenants. Two-thirds of the fully represented tenants were able to remain in their homes, where only one-third of the self-represented tenants obtained a similar result. As compared to the self-represented tenants, the represented tenants received approximately five times more financial benefit from claims such as damages or revocation of rent that was past due.
Similarly, the LCBH study also included quantifiable information about the difference legal counsel makes in an eviction proceeding. Overall, the average length of a hearing was 1 minute and 44 seconds. If the landlord was represented by an attorney and the tenant was not, the average length of a hearing decreased to 1 minute and 38 seconds. If the tenant was represented by an attorney and the landlord was not, the average length of a hearing was over twice as long, increasing to 3 minutes and 22 seconds. By the numbers alone, having an attorney makes a substantial difference in leveling the playing field in eviction courts.
The couple I was with was able to advocate for themselves and did receive additional time to find an attorney to represent them. They are now one step closer to defending themselves against a system that is skewed against the tenant. Thankfully, there are organizations that do assist tenants with eviction claims. Whether it be educating the self represented on their rights, or providing low cost or even free legal aid, associations such as Lawyers’ Committee for Better Housing and Illinois Legal Aid are working to even the playing field. Chicago – like most cities - has a long way to go to rectify the imbalance in eviction court but with help from these groups tenants have a fighting chance to keep a roof over their heads.
- LAWYERS’ COMMITTEE FOR BETTER HOUSING, NO TIME FOR JUSTICE: A STUDY OF CHICAGO’S EVICTION COURT (2003), available at http://lcbh.org/sites/default/files/resources/2003-lcbh-chicago-eviction- court-study.pdf
- The Justice Gap: Corporate Lawyers are Making Record Revenues, But Legal Aid is in Crisis, HUFFINGTON POST (Jul. 7, 2015), available at http://www.huffingtonpost.com/susan-beck/legal-aid-funding_b_7744964.html.
- Mathew Desmond, Tipping the Scales in Housing Court, N.Y. TIMES (Jun. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/tipping-the-scales-in-housing-court.html.
- Boston Bar Association Task Force, The Importance of Representation in Eviction Cases and Homelessness Prevention 2 (2012), available at http://www.bostonbar.org/docs/default-document-library/bba-crtc-final-3-1-12.pdf.