Small claims court and courts for ‘basic’ legal issues like name changes are widely said to be very accessible to the general public. People ‘just’ need to fill out some paperwork and they are good to go. This widespread belief contributes to the idea that people who do not pursue legal remedies to address issues like discrimination are just not trying hard enough, or are being lazy, and thus deserve whatever happens to them. If you can’t be bothered to go to court to take out a restraining order, say, clearly you deserve what happens next.
‘Small’ legal matters are actually not so small. People who want to take matters to court need to go through a series of steps and if you mess up, you can fall right back to the bottom of the ladder. First, for example, you need to get the correct forms for your court, and you need to make sure they are the current versions. You need to fill them out, sometimes very specifically in black ink. And you need to fill them out right.
This doesn’t sound hard, until you actually take a look at some of the forms courts use. I’m pretty sharp with words, and I had to fill out some legal forms recently, and could not complete some of the forms on my own. They were confusing, assumed a baseline level of knowledge I didn’t have, and were laid out poorly. On one form I messed up badly enough to need a new copy, because you do not mess around with white out on legal forms, people.
Some forms come with directions but often they are not very helpful. And, critically, they do not cover all the forms you are looking at. The case cover sheet, for example, may come with very detailed and useful instructions. But when you flip it over to get to the nitty-gritty, you will be quickly awash in confusing legal terms and misleading statements. These are not forms designed for laypeople. They are forms designed for attorneys and paralegals, who could probably snap them out in a flash. I could not.
I haven’t even reached the price for filing this forms, which was not small. The court system does provide fee waivers (more forms to fill out) if you qualify, which I do not. Well and good. Fine. There has to be a cutoff somewhere for these things and I fall above it. Fortunately, this was a nonurgent legal matter and I could wait until I had the money. If this had been an emergency, I would have been in trouble. And there definitely are legal emergencies.
How many people encounter barriers in the court system? A lot, in all probability. There are huge barriers between people and seeking legal redress; it’s not just the legal forms and the cost. It’s not being able to get to the court when it is in session because you need to work or care for children. It’s not even being aware that there is a legal remedy available in your situation. It’s not having an advocate who can assist you with the process. It’s knowing that you cannot afford a lawyer, and let me remind you that in civil matters, you are not entitled to an attorney.
Taking things to court is, as I have discussed, not a good solution. It should be a last resort and people usually treat it as such. But there does come a time when people need to go to court, and the obstacles in the way can be significant. These are not things that people talk about very much. People do not talk, for example, about how workers cheated out of wages usually cannot afford to take their employers to court and thus must eat it if their initial efforts at getting the money are not successful.
And they don’t talk about how people in a position of power are well aware of this. People with deep pockets and familiarity with the legal system know that they can exploit people with impunity, because they do not know how to fight back, or they lack the tools to do so. It’s like watching a bully pin flies to the wall and watch them squirm. The bully stabs and skewers and then leans back to watch them writhe for a while, confident that there is no escape, and eventually they will stop struggling because there’s no point and they are exhausted.
The legal system is not a friendly place. It’s not friendly when you are accused of a crime and you have no money and you are fighting for your supposed right to a fair trial. And it’s not friendly when you need to turn to the courts for help with legal matters. People who claim that people can ‘just’ go to court to resolve issues are clearly either unfamiliar with the legal system, or in a position of immense privilege; maybe they can afford an attorney, so they think of a legal matter as simple. Maybe they had an advocate to help them when they needed to file a restraining order. Maybe they had some training in a law class at some point and know their way around legal forms, or they could afford to buy a do it yourself law book with detailed instructions.
Not everyone has that. The justice system in this country is far from equal. It is a place of a thousand cuts and it takes a lot to rise above those. Not everyone has what it takes. Instead of asking, for example, why a trans woman has not legally changed her name yet, people should ask why the name change process is expensive, lengthy, and demanding, making it extremely difficult for people to complete without assistance.