National Center for State Courts Outcomes of Civil Cases in

National Center for State Courts Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court Virginia Self-Represented Litigant Study:

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court Produced by the National Center for State Courts Funded by a Technology Initiative Grant from the Legal Services Corporation to Blue Ridge Legal Services, with the support and assistance of: the Office of the Executive Secretary of the Supreme Court of Virginia and the Virginia Access to Justice Commission

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court A ground-breaking study of Virginia’s civil courts’ case management databases focusing on unrepresented litigants – the first such study ever in Virginia, and perhaps only the second in the entire country.

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court Background Five years in the making, with the creation of the Virginia Access to Justice Commission as the primary catalyst.

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court Key Findings The pervasiveness of unrepresented litigants in Virginia’s civil justice system Correlation between poverty and lack of representation Effect of lack of representation on case outcomes

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court The vast majority of civil cases include at least one unrepresented party. The traditional adversarial model of the court, in which both parties have legal representation, occurs in only 1% of General District Court cases, 6% of Adult Juvenile & Domestic Relations Court cases, and 38% of Circuit Court cases.

Representation in Virginia’s General District Courts All Civil Cases, 2016 Only Plaintiff is represented 53.62% Only Defendant is represented 0.41% Both sides are represented 0.98% Neither side is represented 44.99%

Representation in Virginia’s General District Courts All Civil Cases excluding all defaults and “not founds”, etc., 2016 Only Plaintiff is represented 53.76% Only Defendant is represented 0.70% Both sides are represented 2.14% Neither side is represented 43.40%

Representation in Virginia’s J&DR District Courts Adult Cases, 2016 Neither side is represented 87.00% Only Payee is represented 3.00% Only Payer is represented 4.00% Both Sides are represented 6.00%

Representation in Virginia’s Circuit Courts All Civil Cases, 2016 Only Plaintiff is represented 42.00% Only Defendant is represented 6.00% Neither side is represented 14.00% Both Sides are represented 38.00%

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court Poverty is associated with not being represented in court by a lawyer. The Study found that the greater the extent of poverty in a locality, the less likely it is that parties will have an attorney.

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court Plaintiffs/Payees prevail in the overwhelming majority of cases where the court enters judgment for one party or the other, no matter the court, the case category, or the representation profile. A closer look reveals some different patterns.

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court Both plaintiffs and defendants have substantially higher success rates when represented than when they are unrepresented. The representation status of the parties, and the resulting potential for imbalance of power when only one is represented, is significant.

Case Outcomes in General District Courts All Civil Cases, 2016 239,724 49,550 84,156 Default Judgment for Plaintiff Judgment for Plaintiff Dismissed Judgment for Defendant 39,829 140,110 Non-dispositional ( Non-Suit 2118

Case Outcomes in General District Courts All Civil Cases, 2016, by Representation Status 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% Plaintiff Only is Represented Neither Party Represented Both Parties Represented Defendant Only is Represented Default Judgment for Plaintiff Judgment for Defendant Judgment for Plaintiff Non-dispositional ( Non-Suit Dismissed 100%

Case Outcomes in General District Courts Warrants in Debt, 2016, by Representation Status 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% Plaintiff Only is Represented Neither Party Represented Both Parties Represented Defendant Only is Represented Default Judgment for Plaintiff Judgment for Defendant Judgment for Plaintiff Non-dispositional Non-Suit Dismissed 100%

Case Outcomes in General District Courts Unlawful Detainers, 2016, by Representation Status 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% Plaintiff Only is Represented Neither Party Represented Both Parties Represented Defendant Only is Represented Default Judgment for Plaintiff Judgment for Defendant Judgment for Plaintiff All other Non-Suit Dismissed 100%

Import of these Findings? My observations: To the extent our civil justice system presumes the presence of counsel (in pleadings, rules of procedure and evidence, etc.) to fairly and effectively try cases, that reliance is too often seriously misplaced, creating a dysfunctional system for the many litigants who don’t have access to representation.

Import of these Findings? My observations: Poverty, and the concomitant inability to retain counsel, creates a significant barrier to successful outcomes for unrepresented poor litigants in Virginia’s courts, notwithstanding the best efforts of our judges to treat all litigants fairly.

Import of these Findings? My observations: If we want to try to address the structural Access to Justice problems whose existence this report confirms, I believe we need to pursue a three-pronged approach to close this Justice Gap:

Import of these Findings? My observations: 1. Re-think our court processes, recognizing that unrepresented litigants are now more often the rule than the exception to the rule particularly in the lower trial courts: Expand small claims dockets and their equivalent adopt simplified forms with plain language relax rules of procedure and evidence in those cases where all parties are unrepresented, and reform procedural traps for the unrepresented litigant, such as the affirmative defense of the statute of limitation which is waived if not raised, etc.

Import of these Findings? My observations: Increase availability of counsel for those low-income litigants who have valid claims to dispute, where opposing party has counsel, through 2. increased funding for legal aid and 3. increased participation in pro bono work by the bar.

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court Future Refinement and Study This was the first attempt at such a study in Virginia. The NCSC has included in its work product a summary of management reports and recommendations to the OES for its review and implementation. Our hope is that this study can now be updated on an annual basis by OES, improving the quality of the data and analysis while providing the Virginia Access to Justice Commission, and the Court, timely benchmark data on our progress in closing the Justice Gap.

VIRGINIA SELF-REPRESENTED LITIGANT STUDY: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court The NCSC’s full Study, including five reports, can be accessed at: http://brls.org/the-virginia-self-represented-litigant-study/ For further information: John E. Whitfield Co-Chair, Virginia Access to Justice Commission Executive Director, Blue Ridge Legal Services, Inc. [email protected]