Winning By Default
How to make courts work better without defendants, without lawyers—and, ultimately, without courts
- By Pamela K. Bookman
State civil courts are the backstop of American justice, handling 98% of civil cases filed in the United States. Their dockets are filled with the everyday crises that matter most: debt collection, housing disputes, and family law. Yet, these courts are largely lawyerless—in over 75% of cases, at least one party lacks legal representation. Especially in debt and eviction cases, the imbalance is striking: Plaintiffs (landlords or debt collectors) usually have attorneys; defendants often have no one, or never even appear. Courts, in turn, too often rubber-stamp default judgments without examining the merits. In the defendant’s absence, the court, typically with minimal additional inquiry, quickly renders a default judgment, often without assessing the merits of the case or the availability of defenses. In some courts, default rates range from 50% to 90%, setting off a chain of life-altering consequences: eviction, garnished wages, seized assets, or bankruptcy.
This rubber-stamp approach doesn’t just strain legitimacy; it fuels a multibillion-dollar debt-collection industry and propels high rates of eviction across the country. With a looming economic downturn, these problems are poised to escalate. State civil courts should brace themselves for higher rates of filings and recognize that not all individuals will feel equipped to engage with the justice system. The need for reform in state civil courts is real and urgent, and there are three areas ripe for improvement: rethinking requirements for obtaining a default judgment when defendants don’t appear; considering alternatives for legal advice to make courts work without lawyers; and investing in diversion programs to avoid courts altogether.
A system under pressure
When courts provide too-easy access to default judgments for creditors and landlords, they create a dangerous dynamic: It becomes cheaper and faster for plaintiffs to sue than to negotiate. Debt-collection lawsuits flood the courts, fueled by mass filers with little incentive to verify claims. Landlords sue for eviction rather than try to work out differences with tenants. Meanwhile, defendants face systemic barriers to participation: flawed service, confusing paperwork, and the real-world costs of missing work or arranging childcare to attend court.
Fixing these dynamics is difficult. Some challenges—how to balance fairness, accuracy, and cost to the courts—are common to procedural reform generally. Others are exacerbated in a context where there are large numbers of suits, relatively small amounts of money involved, and high stakes for litigants’ lives, communities, and the judicial system. But when courts overcome by volume cease to check for veracity, they risk becoming cogs in billion-dollar debt-collection and eviction machines. They erode public trust. And they exacerbate inequality.
Making courts work without defendants
The default judgment process presents a central area of concern. Many courts issue default judgments because the defendant failed to appear, often with little inquiry into the plaintiff’s claims. But non-appearance does not necessarily mean the case has merit—or that the case states the amount owed or the relationship between the parties accurately. A plaintiff might state that the debt is more than is owed or seek to recover old debts that would be barred by the statute of limitations, were the defendant savvy enough to present the defense. Landlords may not mention disputes they’ve had with tenants about maintaining the property. In debt cases, a plaintiff might simply lack the documents substantiating that the defendant owes them the debt, because they purchased the debt from someone else for pennies on the dollar or otherwise do not have the required documentation.
Defendants’ absence should not signify that the defendant agrees with the plaintiff’s statement of the case. The defendants may have been improperly served, may not understand the process, or may rationally decide that the costs of showing up outweigh the potential benefits. Addressing each of these reasons requires different approaches from the courts, but the result is that huge quantities of judgments are issued without verifying the merits of the case even though there is little reason to rely on the defendant’s absence as proof of the validity of the plaintiff’s claims.
Increased efforts to promote defendants’ participation in court proceedings are necessary but not sufficient. Courts must ensure that notice and service processes are effective and adequately enforced. Electronic notice should be allowed to supplement mailed notice where available. Know-your-rights information should be easy to comprehend, available in many languages, and easily accessible. In eviction proceedings, ensuring accessibility of courthouses, access to legal advice, and better access to online resources and potentially online dispute resolution (ODR) options can improve tenants’ experiences and opportunities to engage in eviction proceedings and eviction diversion programs (see below for more on diversion programs).
But even with these reforms, defendants may not appear for many reasons. Even if notice is received, it may be too burdensome for litigants to come to court, miss work or pay for childcare, and otherwise spend time and money navigating the court system to pay off a debt. Defendants may instead devote their resources to avoiding more debt.
Courts need to flip the script and rely less on defendants’ appearance as a check on plaintiffs’ claims. Even if a defendant doesn’t appear, courts must ensure that claims are properly substantiated. Following the lead of states like New York and California, legislatures should require clear documentation before judgments are issued—proof of the debt, its chain of custody, and the amount owed. The Uniform Consumer Debt Default Judgments Act provides a template for other states to adopt along these lines as well.
But even once such laws are enacted, the next important step is to make sure they are properly implemented across the state. It may be challenging to train and convince state court clerks and other administrators who process these masses of claims to change their custom of routinely rubber-stamping debt-collection cases, and instead to check more carefully to make sure they are properly substantiated.
To encourage this shift, state courts should adopt state-law-specific checklists, and courts and legislatures should impose oversight to ensure that these are being used within the court system. Such checklists are used in the California court system and have been proposed for Philadelphia. One could imagine developing AI-based functions for reviewing and checking substantiation—but that is likely a more costly intervention than checklists, which are both effective in helping to make sure the required substantiation accompanies filings before default judgments are awarded, and for creating a record of the courts’ evaluation of the cases. Doing so would help states better monitor and report on case data and outcomes, along the lines of the studies recently done by Minnesota, Michigan, and Utah.
Making courts work without lawyers
America’s justice system typically relies on an adversarial model—two lawyers, zealously representing clients, battling it out before a neutral judge. But in state civil courts, that model often breaks down. Plaintiffs—like landlords—or debt buyers typically have lawyers. Defendants often have no one.
Expecting unrepresented defendants to navigate complex procedures is unrealistic. Some defendants simply do not appear. Legislators should support initiatives that provide more accessible legal advice, which improves litigant experiences and the fairness of proceedings as well as lowering barriers to participation. Courts can pursue such efforts by improving rules about notice and service and by simplifying forms, processes, and instructions, and making them available in plain language—and in multiple languages.
Especially in high-stakes matters like eviction, some jurisdictions have created rights to counsel. Pilot programs show these efforts dramatically reduce default rates and stabilize communities. But providing lawyers for all tenants facing eviction is expensive and may be politically impracticable in many places—and even more so for debt-collection cases.
Creative solutions for lowering the cost of access to legal advice include empowering court navigators—trained non-lawyer helpers who can assist litigants—and court employees or judges to provide legal advice and guidance. States should also consider permitting and regulating legal-assistance technology, like apps that provide legal documents or legal advice, such as LegalZoom and JustFix.nyc. ODR platforms can provide chatbots or other tech-enhanced legal assistance to participating litigants.
Diversion programs: avoiding court
One of the most promising innovations comes from Philadelphia’s Eviction Diversion Program. Before filing for eviction, a landlord must first engage in a 30-day mediation process with the tenant. The results are striking: Eviction filings have dropped by 37%, and Philadelphia now boasts one of the nation’s lowest eviction rates.
A few jurisdictions have applied a similar model to debt collection. Before filing suit, creditors are required to attempt mediation or offer payment plans, and debtors may be referred to available social services. These efforts help courts become forums of last resort—not first strike. They save court resources, protect families, and uphold the principle that justice should be a shield, not a sword.
Why legislators should care
State legislators are stewards of the courts. By investing in better procedures, clearer rules, and smarter innovations, legislators can protect tenants and consumers, by preventing devastating and unwarranted eviction and financial judgments; promote fairness, by ensuring courts are arbiters of justice, not engines of inequality; enhance court efficiency, by reducing clogged dockets and administrative burdens; and strengthen public trust, by reinforcing courts as institutions that serve all citizens. Failure to act risks perpetuating a cycle in which state courts lose legitimacy, justice is inaccessible to those who need it most, and systemic inequalities deepen.
A legislative blueprint for reform
- Strengthen Service Requirements. Ensure that defendants actually receive and understand notices.
- Require Documentation. Mandate proof of ownership and validity of debts before filing suit or obtaining judgment, and make courts use checklists to ensure these requirements are satisfied.
- Promote Participation. Fund court navigators, online portals, and right-to-
counsel initiatives. - Support Diversion Programs. Incentivize mediation and alternative resolutions before court filings.
- Monitor and Report. Require courts to collect and publish data on default judgments and case outcomes.
States that have implemented parts of this blueprint have seen promising results. New York’s documentation reforms cut filings dramatically. Philadelphia’s diversion program slashed eviction rates. With targeted legislative action, more states can replicate these successes.
State civil courts are at a crossroads. They can continue down a path where default judgments are granted without scrutiny, where participation barriers remain high, and where courts reinforce the very inequalities they should redress. Or they can choose a different future—one where courts are accessible, fair, and worthy of public trust.
State legislators hold the key to that future. By reforming default procedures, supporting innovation, and investing in court modernization, they can help state civil courts fulfill their democratic promise: to deliver justice for all.
The moment to act is now.
About The Author
Pamela K. Bookman is an associate dean and professor of law at Fordham Law School. She teaches and writes in several fields, including civil procedure and state courts. Her article, “Default Procedures,” is forthcoming in the University of Pennsylvania Law Review.
