Reclaiming Courtroom Space for the Community

By Michael Grinthal*

If in the last 45 years you have read a law review article about, attended a conference on, or taken a course about lawyering for social change, then you’ve come across the phrase “community lawyering” (or “rebellious lawyering,” or “critical lawyering,”[1] or “law and organizing”). The meaning of community lawyering can sometimes seem difficult to pin down – after all, it’s difficult to summarize 45 years of unruly critical reflection on everyday legal practice, and many of us deliberately maintain what Saul Alinsky called “a bit of a blurred vision of a better world.”[2]  Generally when we talk about community lawyering, we’re talking about lawyering practices that, wherever possible, re-center power and accountability away from courtroom space and into community space – neighborhoods, families, people’s everyday lives.[3]  These practices might include advising groups of tenants in collectively confronting their landlords; helping an organization of disabled people identify and draft legislative proposals; drawing up incorporation papers for a community health clinic; or training welfare recipients to advocate for themselves in fair hearings.

This fundamental opposition between “courtroom” and “community” is lodged at the heart of the community lawyering discourse.  Indeed, when we talk about community lawyering, we often start by criticizing the way that the traditional impact lawyering takes communities’ struggles away from them and into the restricted space of the courts and legal system, where poor people lose access and control.  While this is a legitimate and necessary criticism of a certain historically-privileged legal strategy, the courtroom/community opposition buys into the same fantasy image of the legal system that it claims to critique: the court as a rarified space in which complex legal arguments are weighed by specialists – federal court, appellate court, oral arguments, briefs and sur-replies.  But in reality, we know that that is not what our legal system looks like to the millions of poor people who struggle with it every day.

In fact, we know that court-space, far from being a distant professional realm, is an everyday part of poor people’s lives and communities.  That reality most recently seized the public imagination with the release of the Department of Justice’s Ferguson investigation, which reported that by late 2014 there were 50,000 non-traffic cases pending in Ferguson Municipal Court – more than two cases for each of the city’s 21,000 residents. When an entire community passes through a court, court-space is no longer opposed to community space, but has colonized it.

Poor people’s courts – criminal court, housing court, family court, debt court, warrant court, small claims court – have metastasized and taken over entire categories of relationships that we used to call “community.”  In 2013, 274,447 households (more than half a million people) passed through the New York City Housing Court. Housing Court cases are so common in New York that many tenants only interact with their landlords through legal proceedings.  They’ve never met their landlords, but are on a first-name basis with their landlords’ lawyers.  Across the U.S., thousands of families sit down with a Family Court judge more often than they are allowed to sit down to dinner with each other.

When entire communities are colonized by legal systems, court-space becomes a space in which community is struggling to exist.  And lawyers who have been implored to leave the courts and “go to the community” cannot help but notice that the community is already sitting all around them in the overcrowded benches.

We can no longer pretend that critical reflection on our roles as lawyers in these communities’ struggles means simply resisting the temptation to go to court. Instead, we have to become part of a struggle to reclaim and re-envision poor people’s courts.

What does this struggle look like?  What does it mean to fight for and with communities inside of courts?  There are many possible strategies and tactics to be imagined.  Litigation in poor people’s courts can be a way for community members to disempower the courts or seize their resources for community ends.  What can lawyers do?  Bring groups of tenants to Housing Court and turn a settlement conference into an accountability session. Address arguments to the courtroom audience rather than the judge. Hold trainings in the hallways.  Train “People’s Inspectors” to sit in the front rows and scrutinize judicial practices.  Shut down legal proceedings entirely with song and theater.

At the same time, community organizers can no longer stop their work at the courthouse doors.  Typically, organizers call in the lawyers as soon as community leaders get court papers.  But organizers have to get over the perception (internalized from lawyers, whether they admit it or not) that courthouses are magical no-go areas and recognize that courts are institutions like any other, with power maps, funding streams, resource battles, and self-interests.  (http://www.brooklynrail.org/2012/08/local/court-of-no-return)  Organizers should treat courts the way they already know how to treat welfare offices, city council hearing rooms, departments of public works: as spaces for recruitment, leadership development, action, and negotiation.  Organizers and lawyers can work together to demystify courts to the people who are living a significant part of their lives inside them.

For every prosecutor, landlord’s lawyer, or child services enforcer in poor peoples’ courts, there are 1000 poor people.  The courthouses are already mass meetings of the poor.  How as lawyers will we help them take the floor?

 

*Michael Grinthal is a supervising attorney at MFY Legal Services.

[1] William H. Simon, Visions of Practice in Legal Thought, 36 Stan. L. Rev. 469, 475–76 (1984).

[2] Saul Alinsky, Rules for Radicals 75 (1971).

[3] Some other definitions: “Community Lawyering stresses the importance of thinking beyond litigation (while retaining litigation as a vital tool) in addressing the kinds of structural problems low-income communities face.” http://www.povertylaw.org/training/courses/community-lawyering; “This approach focuses on engaging lawyers to de-emphasize litigation as the primary tool for advancing social justice. Instead, community law- yering encourages lawyers to critically and creatively examine non- traditional forms of advocacy such as organizing and other grassroots actions as a way of addressing the legal and non-legal problems of their clients.” http://www.nyujlpp.org/wp-content/uploads/sites/89/2012/11/Rose-Cuison-Villazor-Community-Lawyering-An-Approach-to-Addressing-Inequalities-in-Access-to-Health-Care-for-Poor-of-Color-and-Immigrant-Communities.pdf at 37; “In this idea-what I call the rebellious idea of lawyering against subordination-lawyers must know how to work with (not just on behalf of) women, low-income people, people of color, gays and lesbians, the disabled, and the elderly.  They must know how to collaborate with other professional and lay allies rather than ignoring the help that these other problem-solvers may provide in a given situation. They must understand how to educate those with whom they work, particularly about law and professional lawyering, and, at the same time, they must open themselves up to being educated by all those with whom they come in contact, particularly about the traditions and experiences of life on the bottom and at the margins.” Gerald Lopez, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice 37 (1992).