Profit in the Pleading
If you are a tenant facing eviction in Arizona, it is likely that the pleading materials you receive were created by the landlord who is trying to evict you. This is a problem for tenants. Landlords—and their lawyers—have absolutely no incentive to make these materials understandable to the people experiencing eviction. If tenants don’t understand why they are being evicted or how they can defend themselves, then they might be likely to skip their court date. Doing so–defaulting–is a virtually automatic win for landlords and their attorneys, who can handle more cases and charge more competitive rates. Landlords can kick ‘em out quick and avoid costly litigation.
Arizona does maintain statutory pleading requirements. Landlords must inform tenants that they have a right to file an answer, for example. Mentioning the word “answer” in a court summons, however, is a world apart from explaining why an answer might be appropriate, where an answer might be found and filed, and what legal defenses exist for inclusion in an answer. Of course, no landlord in his or her right mind would lay out all this information neatly for a tenant. That’s why, perhaps, the courts should exercise more control over the pleading documents and materials that tenants receive.
This argument is not new, or particularly divisive. A committee appointed by the Chief Justice of the Arizona Supreme Courtproposed an amendment in 2016 to the Rules of Procedure for Eviction Actions that would require landlords to use “court approved” eviction pleading documents. In response, the Arizona Legislature passed HB 2237 in March 2017, which prohibits the court from requiring any specific pleading forms.
My research team at the University of Arizona was interested in exploring the validity of the court’s hunch. Does allowing landlords to create their own pleading forms obstruct access to justice? More specifically, do court-created pleading forms—as compared to the forms created by landlords—improve client understanding of their case and available defenses?
To test this, we randomly selected a sample of 400 pleading materials filed in 2016 in Pima County
Consolidated Justice Court and rhetorically analyzed the most popular types. (Some of them were particularly bad, using hard-to-read fonts, dense legalese, and archaic phrasing such as “Wherefore, Plaintiff demands . . . .” We also didn’t find many Spanish-language forms, even though 27% of Arizona residents speak a language other than English, predominantly Spanish, in the home.) Then, we came up with a list of the core competencies that tenants would need to navigate a case in Arizona (e.g., reason for eviction, available defenses). Next, we created four hypothetical cases which corresponded to the types of eviction-actions filed in Arizona (e.g., nonpayment of rent, failure to comply)
Soon, we will administer both in-person and online studies through which we randomly assign the hypotheticals and pleading forms to demonstrate whether they cause a statistically detectable difference in knowledge. While such a study can’t measure whether that knowledge is usable in court, it may shed light on whether courts should have more authority over the types of pleading forms served on tenants in their jurisdiction.
And that might very well increase access to justice.