Journal Issue Date: Jan-Feb 2021
Journal Name: Vol. 57 No. 1
By Laura Revolinski and Gordon Bonnyman
Take a moment to imagine a time before you entered the legal profession, when everything you knew about the law you had learned from “Law and Order.” Imagine that version of you getting up to answer a knock at the door. A sheriff’s deputy confirms your identity, then hands you a legal document and leaves.
You examine the form and see the name of your landlord written in one of the blank spaces. You recall that you have had conflict with him over his refusal to fix an overflowing toilet, and that he has threatened to evict you if you keep being so demanding. Is this related to the toilet? Could it even be an eviction notice? On the other hand, the top of the form reads “detainer warrant,” which gives you a sinking feeling. Are you going to be arrested?
Whether it’s the threat of arrest or the risk of your family losing your home, you know the paper involves the law, that you are in some sort of trouble, and that you can’t afford a lawyer. You will have to go to the courthouse prepared to defend yourself alone. You have no clue how to do that.
The above forms can be found here http://tncourts.gov/sites/default/files/docs/gs_civil_summons.pdf and here http://tncourts.gov/sites/default/files/docs/detainer_summons_8_10.pdf
Tennessee’s bench and bar have made important strides in improving access to justice for all Tennesseans, but making the civil justice system accessible to pro se litigants remains an enormous challenge. The problem is especially great in General Sessions Courts, where the majority of defendants appear pro se or, in current parlance, are self-represented litigants (SRLs). The challenges are all the greater because the central content of the principal General Sessions forms is frozen in language prescribed by antebellum statutes. While it will not solve all problems, modernization of General Sessions’ archaic forms can make a material contribution to improving unrepresented defendants’ ability to understand the process and make themselves heard.
Tennesseans who are summoned to General Sessions civil court typically experience the scenario illustrated above by receiving one of two forms: the detainer warrant or the civil warrant. The detainer warrant initiates eviction (“forcible entry and detainer”) proceedings and summons a tenant to General Sessions Court to defend those proceedings. The civil warrant initiates a civil suit and summons the defendant to the trial of that suit. For most Tennesseans, receiving one of these forms is their first interaction with the state’s civil legal system, for the overwhelming majority of all civil cases are brought in the General Sessions Courts.1
The civil and detainer warrants are supposed to comply with the notice requirements of due process by informing defendants of the action against them. “An elementary and fundamental requirement of due process” is that such notice must be “reasonably calculated, under all the circumstances,” to sufficiently inform a defendant of the pending action, so that he “can choose for himself whether to appear or default, acquiesce or contest.”2 Yet the civil and detainer warrants can be nearly indecipherable for those without a lawyer to interpret them.
The forms are especially problematic for litigants who have common types of disabilities. Under the Americans with Disabilities Act, the state must ensure that legal proceedings are accessible to people with disabilities so that they can effectively exercise their right to be heard.3 The incomprehensibility of General Sessions warrant forms can make the legal process every bit as inaccessible for Tennesseans with learning, visual or cognitive disabilities, as did the architectural barriers that once confronted people with mobility impairments.
As many as 90 percent of individuals who receive one of these forms will not be able to afford an attorney. They may contact a Legal Aid office for assistance, but Legal Aid offices and pro bono attorneys can only represent a small fraction of the people who come to them for help. Many people look to the court for assistance. Clerks and judges alike describe watching individuals who are confused and overwhelmed by the court system. Court personnel report their own frustration that their ability to assist these unrepresented litigants is constrained by their duty to maintain the court’s impartiality.
“The terminology on the forms is confusing to ordinary citizens,” Cheatham County General Sessions Judge Philip Maxey observes. “It is difficult for people to understand that a paper that says ‘detainer’ actually means ‘eviction.’”
Veteran Circuit Court Clerk Julie Hibbs, also from Cheatham County, reports that her staff who serve the General Sessions Court “frequently get calls from people who have been served with a civil warrant and are in a panic because they fear they face arrest.” Richard Rooker, whose Circuit Court Clerk’s Office serves Davidson County’s General Sessions Court, says that watching pro se litigants try to navigate the process without sufficient understanding and information is among “the greatest challenges for every clerk in Tennessee.”
The vast majority of people who receive these forms do not appear in court at all. While we do not know the reason why each defendant fails to appear in court, we know that at least some simply do not understand what is required or fear what may happen if they answer the summons.
A quick glance at either of these forms reveals several issues that render them confusing or inaccessible for the average person. On each form, vital information about the proceedings is crammed into a block in the top left corner. On the civil warrant the identity of the plaintiff, details about the claim itself, the presiding court, and the date and time that the defendant must appear are all printed in small font littered with blanks to insert specific details. The detainer warrant is structured similarly but uses archaic and confusing language that does not clearly communicate to a tenant that they are at risk of losing their home.
The second page of each form contains more sections that are not especially pertinent for the defendant. Along the side of the page, however, is a lengthy paragraph describing the potential effects of failing to appear written in “legalese” and printed three inches wide in single-spaced, justified text. Most of this paragraph is devoted to delineating property that is exempt from seizure and does not explain that the defendant could be held liable for far more than the damages sought if she fails to appear. Thus the two sections of the form that are most important for the defendant to read and understand — the nature of the claim and the potential consequences of failing to appear — are printed on opposite ends of the form in language and print that are difficult to read.
The content of these forms is guided by statutes, which has prevented them from benefiting from the ongoing modernization and revision process that governs pleadings in the courts of record. The language of the statute governing the detainer warrant, Tenn. Code Ann. § 29-18-112, has been amended over time but ultimately dates back to 1858. The most recent enactment prescribing the central elements of the civil warrant is comparatively recent.4 But most cases initiated by civil warrant are in the form of a suit on a sworn account, an arcane form of pleading that dates to 1819.5
By contrast, Tennessee comprehensively modernized the civil process in courts of record in 1979, when it adopted the Tennessee Rules of Civil Procedure, and those rules continue to be updated and refined. For example, TRCP Rule 3, which concerns the commencement of civil actions, has been amended five times since 1979 and most recently in 2005.
Other states have taken steps to modernize their communications with self-represented litigants after observing inequities and inefficiencies because of the outdated and confusing documents. The state of Alaska, for example, worked with its community of legal professionals to create plain-language forms and propose rule changes in the court system after an internal survey found widespread problems related to debt claim cases.6
Much has been done in recent years to improve access to justice in Tennessee. The Tennessee Supreme Court has been a national leader in this area, establishing an Access to Justice Commission in 2009. The Court’s “Justice for All” initiative maintains a website with resources, including self-help videos, for self-represented litigants in General Sessions Court.7 Early in 2020, the Commission cosponsored a national conference at Vanderbilt University Law School with the Self-Represented Litigation Network, to advance the national effort by courts to better accommodate the needs of those who must represent themselves. The Commission, the Tennessee Bar Association and the Tennessee Alliance for Legal Services have pioneered the development of “TN Free Legal Answers,” an innovative online service that has been copied by 40 states, England, Wales and Australia.8 Tennessee’s Legal Aid organizations have also provided self-help materials to SRLs in their local courts.
While Tennessee has made valuable strides in improving access to justice for people who cannot afford an attorney, helping people represent themselves starts with improving their first interaction with the court system. Modernizing the civil forms issued by the General Sessions Courts will improve the efficiency of the court system by reducing defendants’ confusion and the attendant burdens on court personnel of dealing with such confusion.
Two decades ago, the legislature authorized the Administrative Office of the Courts to promulgate uniform warrants for the General Sessions Courts, but the purpose was to facilitate standardized case reporting and data collection, rather than improve their readability by self-represented litigants.9
Modernization of the forms is the first objective of a new project aimed at improving the experience of self-represented litigants in the General Sessions Courts. The project is administered by the Tennessee Justice Center and is made possible with generous funding from the Tennessee Bar Foundation through its Tennessee Legal Initiatives Fund (TLIF). The project has already benefited from the valuable insights and support of General Sessions Court judges and clerks, and will draw on the experiences of other stakeholders, including self-represented defendants themselves. The goal is to enable defendants to make better informed choices whether to appear in court and enable them to be better prepared to defend themselves if they do appear.
A further goal is to build on that reform, as well as the good work of others in Tennessee’s access to justice community, to develop other self-help resources for litigants who must represent themselves. The state’s justice system stands to benefit from improving the public’s understanding of the legal process and, with it, greater confidence in the system’s fairness.
LAURA REVOLINSKI graduated from the Duke University School of Law in 2017. As a law school student she worked with the North Carolina Department of Justice and the Equal Employment Opportunity Commission. Before moving to Nashville, she worked in the Department of the Interior’s Office of Civil Rights in Washington, D.C. She is the current Charlie Warfield Fellow at the Tennessee Justice Center.
GORDON BONNYMAN earned his law degree in 1972 at the University of Tennessee. He practiced at the Legal Aid Society in Nashville until 1996, when he became the first executive director of the Tennessee Justice Center, a public interest law firm established by bar leaders to serve low-income families across the state. He stepped down in 2014 to return to full-time practice as a TJC staff attorney. He has received the ABA’s John Minor Wisdom Award, the TBA’s Ashley Wiltshire Public Service Attorney Award and the Nashville Bar Association’s John C. Tune Award.
1. In Davidson County, for example, of the 62,474 new civil cases filed in 2019, the Chancery, Circuit and Probate Courts together accounted for 10,824, compared to 51,650 new civil cases — or 83 percent of all new lawsuits — filed in the General Sessions Court. Richard Rooker, Circuit Court Clerk for Davidson County, Tennessee, Rooker Report (January 2020), http://circuitclerk.nashville.gov/rookerreport/rr2020_01.pdf and Office of the Chancery Clerk & Master for Davidson County, Tennessee.
2. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
3. Tennessee v. Lane, 541 U.S. 509 (2004).
4. Tenn. Code Ann. § 16-15-716.
5. Tenn. Code Ann. § 24-5-107, derived from Acts 1819, ch. 25, § .
6. https://www.pewtrusts.org/en/research-and-analysis/reports/2020/05/how-debt-collectors-are-transforming-the-business-of-state-courts at notes 100 and 101.
9. Tenn. Code Ann. § 16-15-5012.
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