Home > Journals > JCRED > Vol. 36 (2022-2023) > Iss. 2
Abstract
(Excerpt)
While the pandemic has exposed many long-standing realities about the United States, the destructive everyday crisis of eviction is top of mind as moratoria have now expired and rental assistance funds dissipate with no anticipated replenishment. Therefore, though this piece addresses legal representation in civil legal proceedings more broadly, we will start with an eviction story.
It can be taken as fact that not too far from where you are reading this piece, a tenant is facing an eviction unrepresented. She cannot afford a private attorney. She is income eligible for legal aid, but the office near her home is at capacity and the one further away does not handle eviction cases at all. She has questions about the eviction papers taped to her door, but she does not have a lawyer to call. She does not have an attorney to assess her available defenses, propose rental assistance options, negotiate a settlement with the landlord’s attorney, write and file an answer, enter a counterclaim, or explain the upcoming court appearance. She does not know whether she will be able to make it to court due to childcare issues, and she is still not sure if she is scheduled to work that day. If she makes it in, she will not have a lawyer enter their appearance on her behalf. There will not be an attorney to put on her case, request a jury trial, raise defenses, present evidence, object, preserve issues for appeal, go over legal documents, request more time for compliance, explain the court orders, or ask that the case be sealed. She will navigate the entire process herself. And she is very likely to do so facing an experienced landlord’s attorney familiar with the court, the judge, and the court’s staff. Chances are she will lose. And that loss will likely cause more losses: loss of personal possessions (possibly her medications), loss of community, loss of mental and physical health stability, employment, credit standing, etc.
But pin this story to a specific location—say San Francisco or New York City. What is the difference when, by luck of geography alone, the tenant resides in a city that has enacted a right to counsel for tenants facing eviction? Just by changing the skyline in the background, she is much more likely to secure legal representation. With this single shift, the main plot points of her story change. With what we know about the impact of tenant representation, she is more likely to present a defense and have that defense be successful. She is more likely to get additional time to remedy the situation. The monetary judgment, if any, is likely to be less. Most importantly, she is likely to remain housed—or if vacating—to get more time to vacate, and she may even avoid having the eviction attached to her record, which would prevent her from securing new housing. Alone, legal representation in eviction cases cannot and does not prevent all the risks that a tenant facing eviction must endure, but with representation, an eviction is no longer on autopilot; the outcomes are no longer set in stone. With representation, there are options.