Legalese. It is practically recognized as its own language and is the subject of many a joke. But what is not funny is that it is so ingrained in our profession and legal system that it too often acts as an unnecessary barrier to access to justice for everyday people struggling to navigate the system.
I still feel shame over some lemming-like habits I fell into at the start of my practicing lawyer days, like referring to myself in correspondence as “the undersigned.” I was lucky to have a wise partner I worked with who brought me back to the light, but wow, that type of pointless complexity remains endemic in our legal system many years later.
We can do better, and while there is no quick fix here, tackling this longstanding problem is one of the easiest ways we as a legal community can improve access to justice, as many already are doing. The following is a brief strategic plan to help us all do better on this front.
The Importance for Access to Justice
Before jumping into my proposed strategic plan, let’s (briefly) review why this is such a critical issue for access to justice.
In the larger efforts to ensure access to justice, there are both substantive and procedural elements we need to tackle to reach our nation’s ideal of a legal system that is fair and accessible for all. While we all recognize the importance of good legal help to achieving this goal, people interacting with the justice system often face a more immediate challenge: navigating what can be mind-numbing procedural aspects of their case.
Those procedural challenges people face include figuring out where to go for their court case (which for all its benefits for access can be even more complicated in the hybrid court era), finding and making sense of the forms and documents they need to file to participate, how and where those forms need to be filed with the court, what it will cost them to do all this and how to ask for a fee waiver if they cannot afford it, and where they can go to find reliable legal help for their case.
With rare exceptions, these are not the types of questions and challenges where people should need to talk to a lawyer, but they are the types of issues that can stop someone in their legal tracks before they even pass go in their case. It is both the language we use and the processes we have created that create these barriers, and this is all largely in our control to fix it. Below is an action plan for doing just that.
- Assess why it is so complicated
The first step to effectively simplifying the system is to break down the issues in a particular area of the legal process and look at why it is so complicated.
There are many areas of our legal system—criminal procedure, injunctions and temporary restraining orders, and complex civil trials, to name just a few—where there is good reason for the more complicated processes we have in place. These are areas where we should expect litigants to have lawyers representing them.
On the other hand, there are large swaths of our legal system—minor traffic tickets, routine court hearings, and small claims disputes among individuals, as just a few examples—that everyday people should be able to navigate on their own.
So as a seminal question, is the area of the system we are looking at complicated because it really is complicated or is it because our forebears made it unnecessarily complicated by incorrectly assuming trained lawyers would be the ones on the receiving end. More often it is the latter, and that is where we should focus our simplification efforts.
2. Prioritize areas of the system with large numbers of unrepresented litigants
Once we have identified those many areas that are unnecessarily complicated in process or terminology (or both), we should prioritize issues where we already know large numbers of people without lawyers are trying to navigate the system.
Traffic court, divorce and other domestic relations matters, eviction, and consumer debt are examples in the legal system where throughout the country, on at least one side and often both, more people are appearing in court without lawyers than are represented.
That is not to say there are not many other areas where we are using antiquated and confusing terminology. Replevin, detinue, and partition are just some of the doozies we are still using from Old England that are meaningless to people not trained in law. Their day should come too, but not until we have tackled these other areas where so many people are struggling to navigate the system on their own.
3. Locate the source(s) of the undue complexity
Once we have identified the areas we want to tackle, we next need to determine the source of the undue complexity. Is it a court rule, a legislative statute, or is it both?
More often we will find the trouble starts in the rules of court, but many times the legislature is the source. In those instances, most of the offending statutes have been on the books for decades or more, and today’s legislators probably had nothing to do with creating the problems. They need our help as a legal community in identifying those problem areas and helping craft better solutions, just as we need to lead the way when the issue is in court rules.
That said, the strategy and timing for tackling the problem areas can vary quite a bit between the court and legislative venues and can have a big influence on setting specific priorities. Know before you go.
4. Identify the most realistic and practical fix
In many instances, the fix for our undue complexity will be relatively obvious and a consensus can develop quickly. Examples in the CBF advocacy in recent years include changing “Forcible Entry and Detainer” to “Eviction”, retiring the phrase “ad damnum” and other related archaic terminology like “prayer for relief” and replacing it with plain language like “amount claimed,” and allowing more documents to be signed with sworn attestations rather than requiring the separate step of notarization.
Other times, however, as obvious as the problem of undue complexity may be, the solution may not be so simple. A recent example we have been working through in the CBF/Circuit Court of Cook County Pro Se Advisory Committee is the “Rule to Show Cause”.
For those of us inside the system, that of course is the process we need to pursue when someone is not complying with a court order. To the rest of the world, however, it is a real WTF moment when someone trying to enforce a court order is told they need a “rule.”
The problem here is obvious, but as we learned from a healthy discussion in the Committee, the “Rule to Show Cause” is so ingrained in our legal system and corresponding case law today that the consensus was that the seemingly obvious fix to just come up with a simple and understandable alternative would generate more confusion within the system.
As a result, the Committee is pursuing a simpler “alter ego” name that can appear alongside the existing terminology on forms and elsewhere so that going forward it might appear as “Rule to Show Cause/Motion to Enforce Court Order” (with flexibility on the alter ego term when it is issued as a court order). It is more understandable to everyday people using the system but also maintains the terminology everyone in the legal system already is comfortable with, and this kind of approach can be a good option when these types of problems come up with other issues, on its own, or as a phased-in change.
5. Don’t forget the humans
Simplifying the process using the above strategies makes it far easier for people to navigate the procedural aspects of our legal system, and enables standardized forms and associated technology to make it even more accessible.
However, even with these steps, people often need a little more help in navigating the process. They may be going through a difficult time, scared of an unfamiliar system, or just need a little guidance and reassurance even if it is objectively simpler.
They don’t need a lawyer, just a trained and friendly guide. Programs like Illinois JusticeCorps, Illinois Court Help, and the Clerk of the Circuit Court of Cook County’s Customer Service Call Center are critical complements to the larger simplification agenda.
Strike a Blow for Access to Justice
Simplification of the legal system is not a quick fix—over centuries we have made it way more complicated than it needs to be!—but it is a critical piece of the larger access to justice agenda. And our legal community needs to lead to make it happen.
This charge remains a priority for the CBF, and I know many others around the country already are leading the way on these issues. All of us who care about access to justice should make it a priority as well.