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How Do the Day-to-Day Practices of Washington, DC’s Landlord-Tenant Court Affect Tenants?

Navigating an Overburdened Courtroom: How Inconsistent Rules, Shadow Procedures, and Social Capital Disadvantage Tenants in Eviction Court
Isaiah Fleming-Klink, Brian J. McCabe, and Eva Rosen
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Research exploring administrative practices and processes in criminal court have shown that certain practices, such as the use of cash bail, can reinforce existing power inequalities. Yet, there is comparatively little research on similar practices in civil court, which is often where eviction cases are adjudicated. With the growing frequency of eviction and its destabilizing effects on tenants, this study explores how the courtroom experience, and the informal administrative procedures courts use to manage caseloads, affects tenants and landlords.

To understand the procedures and practices in the Landlord and Tenant Branch of Washington, DC’s Superior Court, the authors first took an ethnographic approach: conducting more than 420 hours of fieldwork in the court, along with approximately 200 informal interviews with court actors between February 2018 and 2019. The authors complemented this approach by analyzing an administrative dataset of all eviction filings in Washington, DC, in 2018, along with coding a random sample of 14,000 filings of two forms filed during the eviction process: the summons to appear in court and the verified complaint for possession of real property. The documents included information on amount of outstanding rent and fees owed, the dates over which rent was not paid, tenant and landlord legal representation, and attorney details.

Overall, the authors found that the everyday practices of DC’s landlord-tenant court, both formal and unwritten, combine to disadvantage tenants. Specifically, the authors discuss four sets of rules, practices, and procedures that reinforce power asymmetries and amplify tenant disadvantage.

Key findings
  • Inadequate accommodations and confusing procedures: First, the authors found that the courthouse’s physical layout and formal processes tended to disadvantage tenants, particularly those with disabilities or limited English proficiency. For example, the authors noted there was no signage indicating the location of the handicap-accessible entrance to the building. Moreover, once in the courtroom, tenants often reported being unable to hear the verbal announcement that translation and mediation services were available. From a procedural standpoint, if a tenant failed to appear at roll-call, a default judgment was entered against them, setting into motion the eviction process. Yet if the landlord failed to appear, the case was dismissed, posing no consequence to the landlord but the need to refile.
  • Procedural inconsistencies: Not only did formal procedures tend to disadvantage tenants, the authors also found that these procedures were often inconsistently applied. For example, court hearings often began after their scheduled time, with the first hearing of the day called, on average, nearly an hour after it was scheduled to begin. Persistent tardiness, coupled with recesses called at the judge’s discretion, lengthened the time tenants had to spend in the courthouse, increasing the opportunity cost of attending hearings. This was particularly challenging for those who had to take time off from work. In principle, either party in the hearing may call the clerk’s office to explain an absence or request a delay. However, the authors found most observed calls were made by tenants and that the majority were not granted.
  • Offloading cases through shadow procedures: To manage the overwhelming number of cases, court officials encouraged parties to use extrajudicial processes such as mediation that are then certified by the court. This is a common outcome, with roughly 19 percent of all cases ending in a settlement agreement or consent judgment agreement (the two filings used to formalize an out-of-court resolution). Unlike nonbinding settlement agreements, consent judgment agreements outline conditions which, if violated, will automatically trigger the eviction process.

    Although they serve an important functional role, in practice, these processes often conclude with tenants agreeing to legally binding judgments without any legal representation or judicial oversight. The authors explain that “settling often involves tenants’ giving up significant legal pathways, especially when judgment is entered against them as part of the consent judgment agreement. These judgments—and the evictions that result from them—appear on a tenant’s permanent rental history and credit. However, most tenants are unaware of these consequences.”

  • Social capital resources: Finally, the authors found that the attorneys who frequently represented landlords in eviction court accrued social capital—namely, familiarity with court actors and procedures—which resulted in meaningful advantages in court proceedings. This was heightened by the fact that a relatively small number of attorneys represented the vast majority of plaintiffs; lawyers from three firms filed more than 62 percent of all eviction filings during the study period.

    Social capital accrued this way provided benefits for scheduling support and networks of last resort. To the former, the court “regularly accepted informal requests from landlord attorneys to change the order of cases because of scheduling conflicts,” a privilege seldom extended to tenants, among other scheduling supports. To the latter, the authors described the practice of landlord attorneys “covering” for absent colleagues; in one particularly striking case, when a landlord attorney representing the property management company that filed the largest number of cases in landlord-tenant court in 2018 was absent from proceedings, “another white landlord attorney in her fifties looked up, raised her hand and told the clerk, ‘Adams [the absent attorney] stepped out. I can take the case.’” The clerk agreed. Because the tenant was absent, the attorney asked for a default, which the clerk granted.

Policy implications
  • At the systemic level, the authors suggest policymakers should work to keep tenants out of landlord-tenant court altogether. Reducing eviction filings necessarily begins with policies that generate sustainable, affordable housing for families at the highest risk of eviction.
  • For tenants who experience an eviction filing because of a missed payment, the city should proactively encourage interventions, such as access to Emergency Rental Assistance Program funds before an eviction judgment is entered, to keep these cases out of landlord-tenant court.
  • The court should make existing programming—like a landlord-tenant resource center, which provides unrepresented parties with legal assistance—available to parties before their appearance in court.
  • The authors recommend that DC should work to ensure courtroom procedures are more just and equitable for tenants. The centerpiece of this intervention is a right to counsel for tenants involved in eviction proceedings.