What Does a Fair and Balanced Eviction Process Look Like?

One of the silver linings of the pandemic was the heightened attention at all levels of government around the issue of evictions and how to better prevent them. There have been unprecedented government funding commitments to providing rental assistance and legal aid for tenants facing eviction that have made a tremendous impact in helping thousands of people in the Chicago area and throughout the country remain stably housed.

While those investments in rental assistance and legal aid have been and continue to be crucial, there is another essential part of the response in Cook County that generally has not received the same level of priority elsewhere in the country: reimagining the court process for evictions. Cook County, the Circuit Court of Cook County, the CBF, and many other partners have come together to do just that by creating the Early Resolution Program. Our collective experience of the past 2 ½ years with developing and continuing to refine this groundbreaking program is a good launching pad for a critical access to justice conversation that is not getting the attention it deserves: What does a fair and balanced eviction process look like?

The standard residential eviction legal process

Evictions are an unpleasant reality in the housing market, and while trying to avoid them whenever possible is a goal just about everyone can get behind, that is not always possible and there are thousands of eviction cases filed nationwide every day.

Without getting into all the legal details, which can vary by jurisdiction, there are three general reasons landlords and tenants may find themselves in eviction court. The most common reason is the tenant gets behind on rent and can’t keep up. In addition, there are evictions for cause when there is an alleged breach of the lease. And evictions also can occur at the end of a lease when the tenant does not agree to voluntarily move out. 

Once a landlord determines they want to proceed with an eviction, in Illinois and most other jurisdictions they first have to serve a notice on the tenant before the can file a case in court. The length of the required notice can be as little as 5 days and typically depends on the reason for the eviction.

When a landlord is ready to file the case, on average more than 80% will be represented by counsel. Once the landlord files the case, it varies how long they have to wait before getting their first court date. It generally is a fast turnaround from filing to that initial court date, often as little as two weeks. The landlord also needs to get service on the tenant(s) through the Sheriff or a private process server before the first court date.

In most jurisdictions, the case can move forward on that first court date if the landlord has service on the tenant. If the tenant does not show up then, a default eviction order can be entered on that first date. If the tenant does show up but is unrepresented, most courts will give them a short continuance (usually 7 or 14 days) to try to find a lawyer. Unlike landlords, more than 80% of tenants on average are unrepresented when they come to court.

Unless there is a program in place to provide broad access to legal aid, tenants usually will struggle to find a lawyer during that continuance time frame and their case could go to trial as soon as the next court date. Not surprisingly, unrepresented tenants don’t fare well in those trials when they are up against a landlord who is represented by counsel. The timeline can be extended further for a trial date if the tenant does find a lawyer to assist them, but the case generally still proceeds quickly from there. 

Unless a tenant can successfully assert a defense to the eviction or reach a negotiated resolution, an eviction order generally can be entered as soon as the first or second court appearance, and normally is then immediately placed with the Sheriff. Once an eviction order is placed with the Sheriff, the time it takes for that order to be executed will vary by jurisdiction, from as little as a few days to the 3-4 weeks that is typical in Cook County.

The consequences of the expedited eviction legal process

As the above summary of the standard eviction legal process illustrates, residential eviction cases proceed very quickly relative to other types of court actions. Less than two months total from start to finish is not unusual in most parts of the country.

There are benefits to this kind of efficiency for landlords and the court, but the speed of the standard eviction legal process makes it very difficult for tenants to access legal assistance and properly evaluate their options. The expedited timeline also makes it challenging for tenants who may need to move out and find a new place to live.

The book “Evicted” by Matthew Desmond brought heightened attention to the inequities in the legal system for eviction cases, and the stark consequences for the people facing eviction who disproportionately are racial and ethnic minorities. Because most landlords typically are represented and the vast majority of tenants are not, the unequal power dynamics that already exist between the two sides are exacerbated in the standard eviction court process.

The Early Resolution Program in Cook County

As noted above, the Circuit Court of Cook County has made significant changes to the standard eviction court process with the Early Resolution Program (ERP) and provides a number of essential resources for unrepresented tenants and landlords as part of the program.

The ERP program has three overarching and interrelated goals: (1) to create a fairer and better eviction court process, (2) to level the playing field between tenants and landlords, and (3) to forestall preventable evictions whenever possible. ERP strives to strike a balance between the interests of tenants, landlords, and the court, and regularly evaluates the program from each of these perspectives. 

The ERP resources include universal access to legal aid, which provides free advice and brief assistance to all unrepresented tenants and landlords through a special hotline and in court. That legal help can extend to further legal assistance to negotiate resolutions in appropriate cases. Thanks to a City of Chicago pilot project and other programs, a smaller group of tenants can get full representation when they have been screened in ERP to have potential legal defenses to the eviction or are found to be particularly vulnerable if they were to proceed on their own.

Tenants and landlords also have access in ERP to court-based rental assistance programs that can help resolve cases for nonpayment of rent and keep tenants stably housed and have the option of free mediation when the parties agree.

The court has made several modifications to the standard eviction court process to help tenants and landlords connect to these legal, financial, and mediation resources and work out negotiated resolutions whenever possible:

  • The first court date is a minimum of 30 days from filing.
  • That first court date is now a case management date, where unrepresented tenants and landlords have access to case managers who work with the court to help connect the parties to legal aid, mediation, and rental assistance resources.
  • The parties have between 14 and 28 days after the initial case management date to give them time to access these other resources and have a realistic opportunity to explore negotiated resolutions.
  • If a case is not resolved during the 14-28 case management period, the case can move forward on the usual eviction court trial track, and a default eviction order can be entered at that stage if the tenant does not show up for court for their second case management date. 

These changes to the court process go hand in hand with other investments in legal aid, rental assistance, and mediation, which would not be nearly as effective if the standard eviction court process were still in place.

Takeaways from the Early Resolution Program to Date

Eviction filings in Cook County have leveled off over the past year to an average of 2,300 per month, which is very close to pre-pandemic levels.

Since the ERP program has been fully in place (early 2021), more than 50,000 people have received assistance through the hotline or in court. These numbers underscore that the ERP program has expanded access to legal aid and other services for both tenants and small landlords who are unrepresented. While only about 25% of those served reach settlements during the ERP case management period, many more reach settlements later in the process.

The formal evaluation for the program shows that of those receiving legal aid, more than 70% believe that based on the services they receive in the program, they are confident that they will be able to (or already were able to) achieve their goals. And all have more time to evaluate their options in a more informed way and help to reach the best resolution for their circumstances.

While these findings show that the program clearly is making a difference, it is a constant work in progress to continue to refine and improve the program, so it works as effectively as possible for all parties. The ERP modifications to the court timelines effectively add between six weeks and two months or more of extra time for the eviction court process. For all the benefits this added time gives tenants, it has real consequences for landlords, particularly smaller landlords who often cannot easily contend with what amounts to several months of unpaid rent before their eviction case can be completed.

For these reasons, the ERP program partners continue to strive to find the right balance between a court process that gives tenants enough time to access resources and meaningfully pursue alternatives to eviction without unduly delaying cases for landlords and the courts when they are not resolved in the ERP process. There is no perfect balance that will satisfy everyone all the time, but including all three perspectives (tenants, landlords, and courts) in the ongoing planning and management of the program remains critical to the program’s success.  

A Potential Model for Reimagining the Eviction Court Process for the Long Term

In addition to the ERP, there are many other examples around the country where courts working on innovations to make the process fairer and better for all. The National Center on State Courts Eviction Diversion Initiative is a good central hub for learning about other innovative eviction diversion programs underway in jurisdictions of all sizes around the country. 

While the exact shape of these programs will vary based on the volume of eviction filings in that jurisdiction and other local conditions, courts throughout the country have a real opportunity to create a fairer and better eviction process for all.

Combining access to the appropriate level of legal help, rental assistance, and mediation while modifying the court process to fully incorporate and give appropriate time for those interventions to work as we do in ERP is a good place to start in reimagining the eviction court process. Designing and managing the program with the balanced perspectives of tenants, landlords, and the court is another key element for a program that can be sustainable. Finally, building in more pre-court resolution options and more fully incorporating other social services are among the innovations in other jurisdictions that should be considered in developing models for a fairer and better court process for all stakeholders.