Janae Gossel had been questioning the witness for about 90 seconds when the judge began to show signs of exasperation.
“If you ask a question, let him answer the question,” said Joseph Goldstein, who hears family-law cases in Yavapai County, Ariz. “I know this seems a little awkward, but this is not a conversation: You’re in a court of law. It’s an examination.”
“OK,” Gossel said. She had spent the last half-hour answering questions from the lawyer representing Joe Roberson, her ex-boyfriend and the father of their 15-year-old daughter. Gossel had recently moved some 200 miles north from Pima County, where they both lived, and they were having trouble agreeing on a new meeting point for pickup and drop-off. Roberson’s lawyer argued it was unfair to make him drive so much to exercise his right to parenting time.
Now it was Gossel’s turn to ask questions, but she had no lawyer. Gossel and her ex had been haggling over parenting arrangements almost as long as their daughter had been alive. Goldstein was their 10th judge. In the beginning, Gossel said, she paid a lawyer $5,000, only to be told after two court appearances that she would need another $5,000 to continue. More recently, Gossel had found a pro bono lawyer through a program in Pima County, but, she said wistfully, “We don’t have those up here.” She also sought out the local office of the nonprofit Community Legal Services, which helped her with paperwork and arranged a free phone consultation with a lawyer. The availability of this kind of help nationally varies widely, from places that have next to no free assistance to jurisdictions like New York, where indigent parents have a right to court-appointed lawyers in custody disputes.
Gossel had come straight from her job as a surgical tech and was still wearing scrubs. Neat stacks of documents were laid out before her on the defense table. Little of what she wanted to talk about concerned pickup or drop-off. She wanted to discuss Roberson’s drinking, his reluctance to go to therapy, her daughter’s allergy to the two large dogs he kept in his R.V. She brought up Exhibit 5, a printout of text messages during a father-daughter visit a few months earlier, but struggled to explain it in a format where everything she said had to end with a question.
“What is the question?” Judge Goldstein interjected, looking over the rims of his glasses. “At this point, I have no idea when this was, where this was. You haven’t asked him questions to set forth any of the factors. Help me put this in perspective.”
This hearing, in February 2024, ended after 90 minutes, with no firm conclusion. The drop-off point that was ostensibly at issue turned out not to work for anyone. Roberson, too, had moved, and neither parent wanted to meet at a Shell station halfway across the state. Despite the judge’s efforts to keep her on track and explain the process, Gossel left feeling that she hadn’t been heard. “I’m not a very good man-picker,” she told me when we spoke later. “I want to see Joe actually clean and going to counseling with us.” Both she and Roberson had histories of substance use, which Gossel saw as central to their conflict as co-parents, but she could never figure out when she was allowed to broach the subject in court.
Arizona is among the states that allow family courts to operate under simplified procedures when one party is unrepresented. But there’s only so much you can unpack or re-engineer in a process designed for lawyers. Goldstein wasn’t unsympathetic: “You’re in a strange place under a lot of stress,” he said. “You’ve got rules that you’re not familiar with. Everyone else seems to know what they’re doing.” At the same time, he had a docket to manage, filled anew each day with cases demanding resolution. You had to be pragmatic.
Gossel went into court feeling confident and prepared, then left flustered and bewildered. “I got all this information and facts and evidence of what’s happening with my daughter, with Joe,” she said, “and it’s just, like, the judge don’t even look at it.”
‘Courts were not designed for people.’
Every day in courtrooms around the country, people like Gossel speak in proceedings that determine the shape of their lives: divorces and child-custody arrangements; their ability to continue living in their homes; the care of elderly relatives; the repayment of mortgages, car loans and hospital bills. If you don’t count traffic tickets, these noncriminal disputes make up more than half the cases heard in U.S. state courts — some 20 million annually. And despite our popular image of courtrooms as places where lawyers wage battle with briefcases, in most places, most of the time, most people go to civil court without representation. According to the National Center for State Courts, roughly three-quarters of all lawsuits now involve at least one side without a lawyer.
Across family-law, housing and debt cases — the three broad buckets that make up most of the civil docket — people without lawyers don’t tend to do very well. They fail to take advantage of legal protections for tenants and end up losing their apartments. They stay in bad marriages, pay exorbitant interest because of bad credit, have their paychecks garnished for debts they don’t owe. A pair of studies from Maryland found that mothers represented by lawyers were nearly twice as likely to retain custody of their children and more than twice as likely to be granted the protective orders they asked for in family court.
Rebecca Sandefur, a sociologist at Arizona State University, examined more than 70,000 cases including hearings over disability, welfare benefits disputes, special-education claims and a wide variety of other concerns. She found that having a lawyer increased the odds of a favorable outcome for the claimant by anywhere from a small fraction to more than 13-fold. Some of that effect, of course, may have to do with other mechanisms: Perhaps lawyers act as a natural filter, taking “good” cases and rejecting bad ones, or people who end up with lawyers differ in other important ways — better English or better finances, more resourceful, more organized.
The few randomized controlled trials that have tried to isolate the effect of representation itself have had mixed results, with one finding that lawyers contributed little more than delay in hearings over unemployment benefits and another finding that tenants with lawyers in housing court were more than four times as likely to hold onto their apartments. Precious little research has tried to pinpoint why lawyers are helpful, but if you buy the argument that the profession does something, one obvious explanation is that lawyers help you win cases you might otherwise lose.
Other research by Sandefur demonstrates that people with problems they could address in court often don’t even try, because they lack the knowledge, money or wherewithal. Often, they simply let them fester, so that the damage corrodes their health and relationships or shows up in the churn of lost jobs and housing.
Many scholars have taken to calling the civil court system an “emergency-room model” of justice, where problems are addressed by the legal system only when they reach a crisis point. The upshot, Sandefur says, is that a pillar of our system of government leans away from the public it’s supposed to serve. “Courts were not designed for people,” she says. Sandefur likes to compare the legal system to public schools. Both are built and staffed by taxpayer dollars, except that courts are so insular and arcane that if you actually want to use them, you’re supposed to hire someone with “seven years of college” to pull the levers on your behalf. “The processes that you have to navigate to use them were implemented for a very narrow part of the population that invented them and speaks in Latin and knows what pleading is,” she says.
To some extent, lawyers have always been a service for the haves. The Supreme Court affirmed a right to counsel for people facing criminal charges, with Gideon v. Wainwright, only in 1963, when a Florida man who represented himself at trial challenged his conviction for felony breaking-and-entering. As President Jimmy Carter observed 15 years later: “Ninety percent of our lawyers serve 10 percent of our people. We are overlawyered and underrepresented.”
Carter’s formulation may have overstated the problem, but on the civil side, things have actually gotten worse. In her dissertation research, Sandefur found that lawyers’ work was evenly split between companies and individuals as recently as the 1970s. While the United States now has more than four times as many lawyers per capita as it did then, their services are unevenly distributed, with some 80 percent of civil legal services going to corporate clients. “We make a lot of lawyers, but they’re not going into people law,” she says.
In some rural regions of the country, where there’s not much high-dollar work to go around, there simply aren’t any lawyers to be found. Still, even where there are lawyers, people often can’t afford them. Legal assistance paid for by the federally funded Legal Services Corporation, which supports nonprofits like the one that helped Gossel, is restricted to people who earn at or below 125 percent of the federal poverty line, which is set at about $32,000 for a family of four. Groups that receive that L.S.C. funding already turn away nearly half the people who seek their help, and given that funding for L.S.C. has been cut under multiple presidents, including Reagan, Clinton and Obama (President Trump proposed eliminating it entirely in 2017), it seems a likely target for Elon Musk’s current rampage against federally funded services for the poor. Besides, the Supreme Court has twice ruled against a constitutional right to counsel in civil cases.
Yet hiring a lawyer was once a dominant practice for some kinds of civil cases. One study from the mid-1970s of cases in New Haven, Conn., found that lawyers completed the filings in more than 95 percent of uncontested divorces — that is, cases with no major assets or kids to fight over, theoretically the easiest cases to resolve. In the decades since, the balance has flipped: In many family courts, most people are going it alone.
‘Why should someone be expected to pay a lawyer to get divorced? You didn’t pay a lawyer to get married.’
Zoom out even further, and the trend holds across the landscape of state courts, to the extent that scholars now speak of many state civil courts as “lawyerless,” in which more than three-quarters of cases have at least one unrepresented party. Poor data complicates the effort to learn why this is. Courts’ record-keeping systems tend to be old, underfunded and built to help cases move through the system rather than analyze trends, and not all states collect and report numbers on people representing themselves. Nonetheless, it is increasingly clear that America’s famous adversarial system, with each side investigating and presenting arguments as equals, is disappearing from the civil courts. Indeed, the George Washington University legal scholar Jessica Steinberg says, “for all intents and purposes, it’s completely gone.”
Steinberg points out that courts often function as a clearinghouse for social problems driven by yawning inequality. “We don’t have affordable housing, we haven’t raised the minimum wage since 2009, we don’t provide affordable child care or mental health care or addiction treatment,” she says. “Day in and day out, courts are faced with people’s social needs, almost even more than their legal needs.” Advocates have long pursued expanded representation for the poor as a bulwark against this reality. After Gideon v. Wainwright, the push for a bundle of reforms known as “civil Gideon” yielded court-appointed lawyers to aid tenants facing eviction or mothers and fathers facing the termination of parental rights.
John Greacen, a former court administrator who has consulted widely about how courts interact with people who represent themselves, sees a deeper cultural pull toward lawyerless courts. “It started out with cutting out the kid who pumped the gas, but it is now so widespread,” he says. “Fix your own car, look up your problem on the internet for your medication, sell your own house without a realtor.” Greacen asks: “Why should someone be expected to pay a lawyer to get divorced? You didn’t pay a lawyer to get married.” As our relationships have changed, so, too, has the reach of the administrative state. Though divorce rates have dropped from their peak in 1979, the proportion of unmarried parents living with a child has only grown, along with government involvement in custody arrangements and financial support for children. Janae Gossel, for one, landed in court after enrolling in public benefits, when a division of the Arizona attorney general’s office sought to offset some of that spending by pursuing child-support payments. Similar policies are in effect around the country, and in some states, like Texas, they have created a huge volume of cases.
The civil courts have also been transformed by private actors, employing some of the same technologies — word processing, printing, online records databases — that have turbocharged the state’s pursuit of child-support claims en masse. When small-claims courts became widespread in the 1970s, they were intended to serve as a counterpoint to the complexity of traditional civil courts, allowing ordinary people to settle small-dollar disputes without costly process requirements. But the way they have evolved has turned that model on its head. Now instead of neighbors’ fighting over a damaged fence, hospital systems and credit-card companies are going after small bills by the thousands.
“Automation lets you file lots and lots and lots of cases really, really quickly,” Sandefur told me. “You can create a business model where people don’t understand, for example, that they have to file an answer in order to not lose by default, and there’s money at stake and so on. Are they going to get all of those judgments? I mean, they’re trying to bleed turnips, so no, but if it’s really, really cheap to file and you can get a small proportion of those judgments to actually pay you, you’re going to make a decent living.”
In the early 2000s, the debt-buying industry boomed as credit-card companies and medical providers sold off the right to collect on old bills for pennies on the dollar. An emerging class of law firms made a specialty of filing collection suits, with intimidating results. A 2008 study found that just seven firms were responsible for nearly a third of the civil suits filed in four boroughs of New York City, and that defendants in those cases showed up less than 10 percent of the time. Without a lawyer, fighting a collections suit can be a serious hardship — take a day off to go to court, pull together the paperwork required to dispute a creditor’s claim and, at best, prove you don’t owe anything to the hospital or cable company. Many people never receive their bills in the first place or decide it’s not worth fighting cases they’re sure to lose.
But just as small systemic changes can harm the unlawyered, they can also help them. In New York, for instance, the city’s deputy chief administrative judge, Fern Fisher, intervened to make creditors show their work with a series of fine-grained reforms: Courts required creditors to keep track each time a debt was sold and resold and to prove they were collecting within the statute of limitations. Default judgments plummeted, along with consumer-debt cases, which went from a peak of nearly 300,000 in 2008 to one-third that number four years later.
Fisher compared nonlawyers’ squaring off in our adversarial system to ‘playing chess without knowing the rules.’
The nature of our decentralized government means change is slow and often runs straight into the interests of powerful incumbents. For decades, advocates including Fisher have called to “unbundle” legal services by encouraging à la carte offerings or allowing nonlawyers to do limited legal work. In rural Alaska, in a program that began with the blessing of the state bar association, community-justice workers under the supervision of lawyers assist with orders of protection and public-benefits cases. A handful of states have started similar programs, allowing nonlawyers known as paraprofessionals to assist people representing themselves with housing or family-law cases. But the price of support from the private bar can be prohibitive. When Washington started an analogous program in 2012, it required participants to take a modified bar exam, practice for thousands of hours under a lawyer’s supervision and retain malpractice insurance — something the state did not require of lawyers themselves. A few years later, with no more than 40 licensed paraprofessionals in the state, Washington’s Supreme Court said the program would have to close, arguing that it wasn’t worth the investment for so little impact. The state stopped awarding new licenses in 2023. Today there are 72 paraprofessionals in Washington and a few hundred nationwide.
More commonly, courts have worked to help unrepresented parties get their bearings within the status quo, sometimes literally. Zach Zarnow, deputy managing director for access to justice at the National Center for State Courts, points to a recent initiative in Wyandotte County, Kan., where traffic cases in two different jurisdictions are heard in courthouses across the street from each other. “All day, every day, people are just going to the wrong courthouse,” he says. An N.C.S.C. partnership created a “virtual companion” that helps people deciphering their citations identify when and where to show up. Similar tools help users navigate housing and debt cases in Philadelphia.
Another guide the N.C.S.C. produced encourages the use of plain language: “law” in lieu of “statute,” “divorce” instead of “dissolution.” A verdict is a decision; a remedy is a fix. The Maricopa County, Ariz., Superior Court pioneered this approach with user-friendly forms in the early 1990s. The court now publishes more than 1,500 Spanish and English forms for different legal actions, maintained by a team of five that includes two lawyers and one person who focuses on keeping them as close as possible to a sixth-grade reading level.
What courts haven’t done, by and large, is reshape proceedings to fit the reality that most people using them are not lawyers. Listen to almost any hearing with an unrepresented party, and it’s hard to escape the feeling that the court system is ill equipped to help regular people advance their interests.
“People know their narrative story,” Steinberg says. What they don’t know is “what aspects of their story to share in court and how to share them.” Rules of evidence can be so onerous that even including something like a child’s report card often requires a witness to testify to its relevance and authenticity. Asked for a yes-or-no answer, people veer into emotional tangents or protest a spouse’s previous remarks. They bring up new names without explaining them, or, like Gossel, cite evidence that’s not in the record. Judges can, and often do, let people talk themselves blue, but talking is not the same as making a case. (Fisher compared nonlawyers’ squaring off in our adversarial system to “playing chess without knowing the rules.”)
According to a paper Steinberg wrote with Anna Carpenter, Colleen Shanahan and Alyx Mark, judges in “lawyerless courts” often hesitate to ask questions that might surface important facts. One reason for this is that doing so is seen as the lawyers’ job. In our system, it’s lawyers who explain the law, introduce evidence, make objections and even draft proposed court orders.
In disputes between the likes of Apple and Google, lawyers also test every conceivable legal argument in written filings submitted ahead of time. Cases in lawyerless courts often proceed without any of that scaffolding, Steinberg says. The only piece of paper in many state housing, family and debt cases, she explains, is the complaint that kicks off the dispute. “All the action happens live in court,” often with parties who are attending the first hearing of their lives. Contrast that with benefits hearings before the Social Security Administration, in which judges are required to develop the factual record by stepping into the fray themselves. “There’s no reason we couldn’t have a system like that in civil courts,” Steinberg says.
A few states have experimented with so-called informal family-law trials, in which the parties can consent to a process in which the rules of evidence are waived, and it’s up to the judge to ask questions directly. Steinberg, though, advocates deeper reforms that would make courts responsible for much of the work typically controlled by lawyers: serving notice of lawsuits, presumptively admitting evidence and sharing it with both sides, interrogating both parties and framing the legal issues in play.
“We should change the underlying assumption,” says Ben Barton, a scholar at the University of Tennessee College of Law whose work focuses on people who represent themselves. “If we’re taking the time and money to change the system, why set up a self-help center so you can navigate a complicated system with a lot of rigmarole on the front end?” he asks. “Instead, try and put it together in a way that’s better for normal people.”
‘I don’t know how to do this. I don’t know what to object to. I don’t know how to do anything.’
In Phoenix, I recently sat in on a hearing about a pending order of protection involving a married couple with two small children. Recently separated, they had a history of volatile arguments, including one instance in which the husband was arrested on domestic-violence charges that were later dropped. The father in the case disputed the underlying facts that led to the order and was seeking to have it dropped. He had long been the family breadwinner, and he felt the mother was sending conflicting signals, seeking to bar him from the home where he still paid the rent and where she still accepted other kinds of help. During one dispute at issue, the front door was unlocked: His version was that he went to the home to pick up their kids, then washed the dishes and took out the trash; hers was that he barged in and incited an argument while she was on the phone with her new boyfriend.
In the hallway before the hearing, the father, Ryan Whitehead, had a laptop and four USB drives full of video and audio recordings that he believed would help him get the order dismissed. “It’ll take two minutes,” he told me confidently.
An hour later, after the mother’s lawyer deftly kept him from playing a single relevant clip, Whitehead was on the point of tears, stringing sentence fragments together in a desperate appeal to the judge. “I have gone through hell,” he said finally. “I’ve been trying this whole time to do it, but I’m not a legal scholar. I don’t know how to do this. I don’t know what to object to. I don’t know how to do anything.” It was less a closing argument than a final lament. The order of protection would stay in place.
I later asked the mother in the case, Becca Whitehead, whether she had ever represented herself in court. “Once, and never again,” she replied. When she was a 19-year-old mother of an infant, working nights, she had her life upended in the space of a single hearing. Rather than pay child support, she said, the father of her eldest daughter had hired an aggressive divorce lawyer, then demanded and won 50-50 parenting time and joint decision making. Whitehead was still breastfeeding at the time, and she spent the days leading up to the hearing furiously collecting receipts and taking the bus to court to assemble her case, only to have the judge reprimand her for being unprepared. “I just felt so lost,” she said.
Fifteen years later, it was obvious to her that a lawyer served two paramount functions: to present facts in terms the court will accept and to keep the other side from bringing in irrelevant material. “Without the attorney, your emotions get in the way, and it affects your thinking,” she said. Though she was happy to have won “peace,” as she put it, she left feeling bad for her husband. Now they are back together again and expecting a third child. “Representing yourself: It’s hard and it’s messy,” she said.
Read by Robert Fass
Narration produced by Tanya Pérez and Krish Seenivasan
Engineered by Lance Neal
Rowan Moore Gerety is a reporter and an audio producer in Arizona. He is the author of “Go Tell the Crocodiles: Chasing Prosperity in Mozambique.”
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