“A Fair Shake:” A Movement Tries to Make Courts More Accessible

It was a busy Tuesday morning in Manhattan Civil Court, where the bare-bones landlord-tenant court office quietly hummed with activity. Tenants lined up at a row of windows, asking clerks behind the glass to help them interpret thick stacks of forms. Most of them represented themselves, navigating the legal process without a lawyer.

“I don’t know what this means, ‘intake,’” one woman said. “I don’t know what to do. It’s scary.”

She’s not alone. In at least 75% of civil cases nationwide, at least one party is self-represented, said Danielle Hirsch, managing director of the National Center for State Courts (NCSC), citing 2015 and 2018 reports.

And while going to court can be overwhelming for anyone, it’s even more so for people navigating the system alone, experts say.

In criminal cases, the Constitution guarantees the right to a lawyer, who can explain confusing terminology. But the stakes in civil cases—where lawyers aren’t guaranteed—are “just as high,” said Lonni Summers, a senior court management consultant at NCSC.

Without a lawyer, parents fighting for custody may not realize that forms asking for “the minors involved in the case” just need the names of their children. Tenants may be confused by laws that call eviction “forcible entry and detainer.” And someone facing a lawsuit may not understand terms like a “bad-faith insurance claim,” a “tort,” “preponderance of the evidence,” “commence,” or “terminate.”

“You can lose your home, be evicted, or lose your children,” Summers said. If one party has a great lawyer, and the other is not represented, “the playing field is not level.”

This is especially concerning given low literacy rates among adults in the United States, said Rochelle Klempner, assistant deputy counsel in the New York State Office of Court Administration. In 2019, 21% of American adults, or 43 million people, had low literacy skills, according to data from the National Center for Education Statistics. These numbers correlate with poverty, Klempner noted, meaning that self-represented tenants struggling to pay their rent, mortgages, or credit card bills might be more likely to struggle with technical language.

To ensure that everyone has equal access to information in civil cases, NCSC has led the charge to advocate for the use of “plain language”—that is, clear and direct writing, usually between a fifth- and eighth-grade level—in state court documents, signs, and processes.

“No one wants to go to court,” Summers said. “The least we can do as a system is to make it more welcoming and understandable so people feel like they’re going to get a fair shake.”

NCSC hosts training sessions and has created resources to promote language that considers what users already know—or don’t—and what information they’ll need to navigate their cases. In one educational video for state court officials, which they called a “Tiny Chat,” NCSC organizers jokingly welcomed listeners to a “diminutive conversation” and rattled off phrases in Latin to make a point about the importance of plain language.

Last summer, NCSC hosted its first virtual “forms camp” to help court officers rewrite court forms using more common language, Summers was “pretty blown away” by participants’ interest. The event attracted 900 attendees from 50 states and 18 countries, she said, reflecting widespread awareness of the need for greater clarity.

“We thought we’d only get a few people…but a lot of state court people look at their own forms and say, ‘this one needs help, this one needs work, I don’t know what this means,’” Summers said. “Clerks and judges recognize that this is a problem.”

NCSC has also created several national plain-language resources, including a plain language glossary. Klempner published a similar product that tells users to turn “endeavor” into “try” and “effect modifications” into “make changes.” (Hers instructs users to get rid of the phrase “be advised” altogether.)

Rob Cruz, a court interpreter and Executive Director of the National Association of Judiciary Interpreters and Translators (NAJIT), emphasized the importance of this work.

“There’s this fallacy that English speakers understand what’s going on, while interpreters are there to help those who don’t speak English,” said Cruz, who is a Certified Association Executive and Certified Court Interpreter. But when he’s interpreting in Tennessee courts, he said, “I see as much confusion related to the process and court proceedings for native English speakers as I do non-English speakers.”

“It’s almost like you have to go to law school to understand what you’re filling out,” he added. “If you didn’t go to law school, it creates a barrier for everyone.”

Current plain language initiatives focus primarily on written documents and signs, rather than oral communication. Changing the language used in the courtroom may be impossible without changing the law itself, said Janis Palma, a court interpreter in Texas. She’s observed particular difficulty in trying to interpret judges’ “charge” to the jury, when judges explain the legal rules the jury must use to decide a case.

The judge’s charge “is going to be a lot of mumbo jumbo even for the jurors,” she said. But interpreters “can’t do anything about that. Until they change evidentiary requirements, judges have to keep reading complex, hardly intelligible language.”

Palma highlighted a tension, echoed by several experts, between clarity for laypeople and the legal terminology required for a lawyer to effectively make his case.

“We have a legal system that requires certain terminology, and certain turns of phrase,” Palma said. “Lawyers have to be thinking about how a judge will decide something. There are formulas attorneys need to use to make sure they protect their clients’ rights. They have to protect their clients using language that is airtight—and plain English is not always going to be airtight.”

Plain language isn’t a silver bullet for accessibility. In a 2010 New York Times op-ed, John T. Broderick, Jr. and Ronald M. George, the then-chief justices of New Hampshire and California, advocated for other changes, including guaranteeing civil litigants’ right to a lawyer, and allowing lawyers to “unbundle” their services, providing advice for only part of a case to save on costs. Still, using simpler language can help empower people to navigate the system more easily on their own.

The federal government has promoted the use of plain language for decades, passing a Plain Writing Act in 2010 for federal agencies that had a “dramatic impact” across all sectors of the federal government, wrote Kathryn Catania, a board member at the Center for Plain Language, in a 2020 blog post celebrating the act’s 10-year anniversary.

“No longer was plain language just a good idea that could easily be tossed aside for lack of time or tacked on the end of a project as if it were synonymous with proofreading,” she wrote. Instead, agencies started to incorporate plain language techniques in their letters, websites, forms and instructions—even testing documents with real customers. These efforts resulted in higher compliance rates and improved customer satisfaction scores.

But state governments and courts have been slower to adopt these initiatives. In 2019, the Conference of Chief Justices and the Conference of State Court Administrators passed a joint resolution about the importance of plain language and clear communication. Last fall, the New York State court system hired its first full-time plain language coordinator position. Other states have “forms committees” or other similar bodies focused on incorporating plain language into forms and processes.

Clear communication is about more than just convenience. Misunderstanding can lead to disenfranchisement, which means the language of the courts affects constituents’ access to justice. In 2022, only 28% of low-income Americans thought the U.S. legal system would treat them fairly, according to the Legal Services Corporation, which attributes the number in part to the lack of available legal assistance.

“This all goes hand-in-hand with a sense of procedural fairness and a sense of judgment,” Hirsch said. “If people don’t understand, they certainly won’t have any confidence in what comes out of the process.”

“All of those things are vital to maintaining public trust in this institution,” Summers added. “It’s vital to our whole democracy.”

About the author(s)

Sarah Cutler is a Stabile Fellow at Columbia Journalism School.