Should State Trial Courts Become Laboratories of UPL Reform? 

By Bruce A. Green
March 1, 2024

There is a growing “access to justice” movement that is principally driven by lawyers and judges.  It has multiple objectives.  One such objective is to make state court proceedings fairer, more reliable, and more accessible.  This is important because state courts have a significant impact on peoples’ lives.  They are where family members lose custody of children, where property owners obtain permission to evict tenants, where creditors are empowered to repossess people’s cars or garnish their wages, and (in some jurisdictions) where judges send people to jail to compel them to pay judgments or fees that they cannot afford to pay.

Court proceedings’ fairness, reliability, and accessibility traditionally depend on lawyers—that is, on both sides appearing in court through relatively evenly matched advocates who present the best facts and legal arguments for their respective clients.  However, most low-income individuals who appear in civil cases are unrepresented, and many default rather than defending themselves.  Although some individuals might not come to court even if lawyers were available, and many still would not prevail even if they had come to court with a lawyer, legal representation increases the likelihood of success, and it makes the process procedurally fairer regardless of the outcome.  Although some judges may try to be more solicitous of unrepresented parties, judges’ obligation of neutrality limits their solicitude, which does not, and cannot, compensate for parties’ lack of legal representation.