An Ant’s-Eye View Of The Legal System

Too frequently, I view the Court system from the inside. I’m fortunate to have the benefit of a world-class education, a quick wit and a mind that can grasp both details and the big picture, training in public speaking and advocacy, strong administrative support, and the good sense to use these things to build a good reputation around the courthouse. But not everyone who has to deal with the legal system has those same advantages as me.

Today I got to take a couple of hours to view the system from something approximating a less sophisticated user’s perspective.

An employee at the firm needed to get a restraining order against a creep who’s bothering her. I’ll leave the sordid details out; suffice to say that she needs to get a TRO on a creep.

While I know there are lawyers who specialize in this sort of thing, it was pretty new to me and that put me at something closer to a layperson’s perspective. I make that claim bearing in mind that I was not personally involved in the dispute and remembering that I am still a lawyer, one who has gone through training to serve as a pro tem judge and to hear these kinds of petitions as a bench officer. So I’m still a few steps above your basic lay user who may or may not have even completed high school.

Now, our employee has something of an insider’s perspective on the system, too — because of her work with us, she has professional contacts at the Sheriff’s department and because we take care of our own, she has free lawyers to help her out. But the fact of the matter is, I’ve not really had to get restraining orders in this context before. I thought I had prepared the right paperwork for her but it turns out there were several more forms than I had thought.

The forms were, at least from my perspective, reasonably easy to fill out. But it was not obvious what parts of the forms were for us to fill out and what parts were for the clerk to fill out. For instance, we could not know in advance when the follow-up hearing will be held. Nor could we really tell what amount of notice to the bad guy the court would require. Then there was the issue of the fee waiver — I had our employee fill out the application pro per, so she would be eligible for the fee waiver, but the basis for the waiver was the threat of violence. We pay her more money than the typical threshold for an economy-based waiver. So we didn’t put in for the fee waiver on that basis, but it turns out we should have anyway because without the form, even the fee waiver based on the bad guy’s threat of violence can’t go through. And there’s nowhere on the form to request a waiver on those grounds, even though they are perfectly valid grounds for the waiver.

I had spent all morning doing evictions, and basically all afternoon with my employee helping her out with the paperwork and the courts (and providing moral support, which may not be an inconsiderable contribution) to move her through the process. We probably spent an hour and a half all told filling out the paperwork until it got to the point the clerk would accept it. Then there was more paperwork to do afterwards, which also took a couple of rounds to get right. I’m smart, my employee is smart (if somewhat flustered by her situation) and we didn’t get it done right the first time. If both she and I hadn’t been such well-known figures around the courthouse, we might not have gotten so many opportunities to get the paperwork right at all.

The lesson here is that when people who have graduate-school educations set out to design forms that are easy to fill out by people with high-school educations, and which also satisfy the requirements of laws written by specialists in legislation, the result is something that only people who have graduate-school educations think is easy to do.

In the allegedly less-busy afternoon, we found the courthouse full of people, of all races, ages, and degrees of socialization. Some of them seemed to have no means of communicating with each other aside from shouting profanity. Others insisted on slouching about in ghetto dress, as if to give the impression that they were criminals. Still others, attempting to seek to give the opposite impression, wore what must have been their nicest clothing, but unfortunately, it was the sort of clothing more suitable for a nightclub — cocktail dresses or purple zoot suits — than for a professional environment. Most of them milled about uncertainly, having apparent difficulty figuring out which floor they were supposed to go to. We were surrounded by a Babel of different languages — mostly English and Spanish but I heard at least three couples speaking in Russian, at least two in what I presume was Mandarin and at least one in one of the Indian tongues, either Urdu or Hindi. To call the environment “chaotic” would be an understatement. It felt a little bit like being in a Las Vegas casino or a shopping mall during the holiday season. And although I know the building is actually crawling with police, the number of visible sheriffs in the hallways and other public areas of the building was actually quite low.

Finding a flat space to do the paperwork was a challenge. The courthouse has several benches in the hallways, of the rounded-top wire-mesh variety, so it is impossible to write on the bench tops. There are some counters, a little bit higher than one can use with precise comfort. But the only place we could find with anything like a desk or a table to sit down at and fill out the forms was in the cafeteria, which was several long, Stanley-Kubrick-movie-set-like hallways away from the clerk’s filing window.

Even as it was, we waited around a crowded courtroom hearing traffic trials for another hour and a half after getting the papers in before her case was called. At that point, the TRO was granted and a hearing date set, and we had to listen to a lecture about how high the burden of proof was and how reluctant the court would be to grant the ultimate anti-harassment injunction.

The judge hearing the case explained the burden of proof by describing the burdens in the O.J. Simpson cases — preponderance of evidence in the civil case, beyond a reasonable doubt in the criminal case; clear and convincing is somewhere in between. Now, every word she said was correct, and she accurately recited the law and in a way that, from the judge’s perspective, was calculated to inform the party before her of what standard she would be held to at the next hearing.

But for my employee, the O.J. Simpson case is a stale piece of tawdry celebrity misbehavior left over from the mid-1990’s when she was in grade school. Add to that the fact that concepts like “preponderance of the evidence” and “beyond a reasonable doubt” are (or at least, have been proven to my satisfaction to be) simply too abstract for even MBA students of significantly above-average intelligence to apply in unmoderated simulations, and the result could easily have been a functionally incomprehensible set of instructions delivered in a tone that sounded like, “What you’re asking for almost never happens.” That’s not what she actually said, but it’s what you would have heard if you had difficulty understanding the words that were actually used.

Fortunately, I noticed that other harassment trials were about to be held. I made my employee stay with me in the courtroom after her case was called so that we could see how they were actually done. In the first case, the plaintiff stated what had happened, described the defendant threatening her with violence, and brought a friend to corroborate her testimony. The injunction was granted. In the second case, the plaintiff spent all her time talking about what a creep the defendant’s brother was, and how she didn’t like the defendant staring at her developmentally-disabled adult son for three to four minutes at a time as he did his chores in the front yard. Admittedly, she was describing rude behavior, but it was clear that the judge didn’t think that staring, by itself, constituted harassment worth abrogating the guy’s Constitutional rights.

Then we finished the last round of paperwork with the court clerk, and were given still more paperwork to give to the Sheriff to serve on the defendant. Here, my employee was actually at an advantage to me; she was friends with the clerk at the Sheriff’s desk and got a “rush” order stamped on her injunction.

By the time we got out of the courthouse, we had spent more than four hours with multiple go-rounds on the filings, waiting to be heard, and being lectured in a manner incomprehensible to a layperson. The clerks, the judge, the sheriff’s staff, and everyone else we dealt with were professional if not outright freindly to us. Still, we both felt our patience coming to a low ebb by the end of the day despite the fact that we were actually being given special and actually better treatment than the typical customer of the judicial system.

From here, it doesn’t take too much for me to think about what an unsophisticated person, without the advantages of education and sophistication, without the good reputation and personal contacts we enjoyed, would feel in the midst of all of this. Think something on the order of “lost and overwhelmed.” For someone who was already suspicious of “the system,” somoene who had a personal stake in the proceedings taking place in that building that day, or very particularly someone who had been accused of doing something wrong and who had to answer for themselves in that environment, the word “intimidating” comes readily to mind.

Bear in mind that this is a modern building, less than ten years old, one of the “nice” courthouses, staffed with people who were being professional and as helpful as they could possibly be allowed to be, and bench officers who were earnestly trying to explain to litigants what was happening around them. Conscious effort had been made to make this as user-friendly a place as possible, yet this was the result.

Eventually, we did get what we came there for. But it took all day in a crowded, uncomfortable courthouse, filling out and repeatedly revising multiple sets of confusing papers, getting lectured, and getting bounced around from one place to another. And this was VIP treatment.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.