By Tréa Lavery
Via MassLive

When the doors to Boston’s Edward W. Brooke Courthouse open at 8:30 a.m., many of the people who pass through the doors, through the metal detectors, and then to the courtrooms beyond, are residential rental tenants struggling to afford to stay in their homes.

For the vast majority of these tenants, who are not guaranteed legal counsel in housing court, the odds are stacked against them in the high-stakes eviction proceedings they are facing.

To bridge the gap, a small group of lawyers and law students staff a volunteer service offering free legal advice. But despite their best efforts, the program is just a tiny drop in the bucket for the people who need help.

That’s because there are many more people who need services than there are lawyers.

On a typical day, more than 100 people may appear in court to plead their cases before a housing judge or participate in mediation. According to the state court system, while about 90% of landlords have legal representation in these cases, only about 3% of tenants do.

“The way the system is supposed to work is that it’s an adversarial system where both sides have advocates and both sides would therefore have equal bargaining power when they get to the court, but that’s not actually the reality,” Eloise Lawrence, deputy faculty director of the Harvard Legal Aid Bureau, one of the organizations that staffs the Lawyer for the Day program, told MassLive.

“The reality is that one side has an advocate. One side knows the rules. One side knows how to navigate the process,” Lawrence continued. “One side is able to make the process work for them. The other side does not.”

Heather Gordon, an organizer with the community group City Life/Vida Urbana who testified at a Boston City Council hearing on right to counsel in evictions last month, said that when she was facing eviction after a foreclosure, she tried for a year and a half to navigate the court system on her own without success.

Eventually, she met Lawrence through the legal aid service, and was able to stay in her home, but without that help, the 73-year-old said she would be homeless.

“You get these notices, this notice to quit, and it’s done by an attorney with the numbers and squiggly things next to the statement. You don’t know what to do. You look everywhere,” Gordon said. “Without [legal aid organizations] the community, the people of Boston who have worked, pay their taxes, we would be all on the street corner through the wind, the rain, the sleet, the snow. We need attorneys to navigate the system.”

Lawyer for the Day
Files used by volunteer attorneys and law students at the Lawyer for the Day table in the Boston location of the Eastern Housing Court. (Tréa Lavery, MassLive)Tréa Lavery/MassLive

Struggling tenants need help

According to the Massachusetts Trial Courts, more than 7,600 eviction cases for nonpayment of rent have been filed statewide so far this year, and about 2,800 executions have been issued, meaning the landlord was allowed to evict the tenant.

Pattie Whiting, a clinical instructor with the Harvard Legal Aid Bureau who has worked with the Lawyer for the Day program since she was a law student in 2006, explained that because of the high cost of property ownership in Boston, many of the landlords in housing court are corporations that already have legal counsel.

In contrast, most tenants are individuals or families, often with low incomes.

“In that mix, you have people who are disabled. You have people for whom English is a second language. You have people with mental health disabilities or physical disabilities that impact their ability to engage with the court or understand the process,” Whiting said.

“So when unrepresented tenants are in court, they are talking to and negotiating with a seasoned landlord attorney. They don’t understand the process,” Whiting continued. “They don’t understand what their rights are. And the stakes are huge. … They are in a position where they have no power, they have very little knowledge, and they’re fighting for their housing, which is essential to be able to live.”

According to Georgetown Law School professor Nicole Summers, who testified at the Boston City Council hearing in March, more than half, about 57%, of eviction cases in the Eastern Housing Court of Massachusetts end in settlements.

Fifteen percent end in a default judgment, where a tenant automatically loses because they did not show up in court, and 24% are voluntarily dismissed, often because the landlord decides not to go forward with the eviction or the tenant has already moved out.

Only about 4% of cases go to trial, and of those, landlords win about 83% of cases.

In contrast, in New York City, where tenants have had the right to legal counsel in eviction cases since 2017, about 78% of tenants with legal representation were able to remain in their homes, according to the city’s Office of Civil Justice. The city saw a 41% decrease in evictions in 2019 compared to 2013.

On days eviction cases are heard, the staff of the Lawyer for the Day program, run by the Harvard team, Greater Boston Legal Services, the Volunteer Lawyers Project and the Boston Bar Association, set up a table outside the relevant courtrooms on the fifth floor of the courthouse, complete with a rolling cart stacked with files and blank forms and a banner advertising their services.

Almost immediately, people there for eviction cases begin to approach the booth, with questions ranging in complexity from simply which courtroom they need to be in to how they can defend against an unfair or discriminatory eviction.

The program makes use of a Massachusetts Supreme Judicial Court regulation known as Rule 3:03, which allows law students to practice without compensation under the supervision of a member of the bar in order to provide legal representation to indigent clients.

While the program staff will speak with anyone who comes to their table, if they get deeper into a case beyond providing support on the day the person is in court, they have to verify the client’s financial status to ensure they are eligible.

On a Thursday morning earlier this month, Whiting, Lawrence and two law students spent hours speaking with tenants. Some were given advice right at the booth. Others were brought downstairs to the clerk’s office to file paperwork or to speak with their landlord’s attorneys.

One of the students helped a Spanish-speaking couple file an answer to their landlord’s eviction filing with defenses against the eviction, using the couple’s son as a translator, just meeting the deadline to do so.

Whiting argued a case for a woman she had met at the Lawyer for the Day table a few weeks before, attempting to get a default judgment overturned after the woman missed a hearing because she was in the hospital.

“From the get go, people are at a disadvantage,” Lawrence said. “Whereas if you had an attorney, they know to show up, know the rules of the game, know when to be there, know when to just even answer the call of the list.”

Edward W. Brooke Courthouse
The atrium of the Edward W. Brooke Courthouse in Boston, as seen from the fifth floor. (Tréa Lavery, MassLive)Tréa Lavery/MassLive

Lost on the way to, and in, the courtroom

From the moment they walk in the door of the courthouse, many tenants have no idea what is expected of them.

It may be their first time interacting with the court system, which can feel like a maze of bureaucracy for the uninitiated without an experienced guide. Some show up to the Lawyer for the Day table thinking it’s where they need to check in for their hearing.

That confusion can be dangerous and jeopardize case outcomes. Tenants who accidentally sit in the wrong courtroom or arrive late, missing when their name is called, can end up with a default judgment, and the case is over before it started.

Lawrence explained that once those default judgments have been entered, it is very difficult to get them reversed.

“In almost every other context, the court of the law disfavors default judgments because that means that the case has not been decided on its merits. It simply means that one side has not shown up,” Lawrence said. “In any other civil case, the court strongly disfavors and will be very liberal about lifting those default judgments. That is not the case in summary process [eviction] courts.”

Once in the courtroom, defenses against evictions can include such claims as inadequate maintenance, discrimination or retaliation or the landlord not following the correct legal procedure.

But unrepresented tenants often struggle to successfully present their defense in the way that is required by the court.

One recent tenant facing an eviction tried to explain to a judge through an interpreter that his home was infested with mice, rats and cockroaches, and the landlord had not dealt with the pests.

While the man’s wife and two young children watched in the courtroom, he showed photos he had taken of mice in the home.

However, he was unable to prove that the photos were taken during the relevant time period or that he had previously shared them with the landlord’s attorneys, so the judge did not allow the photos to be used as evidence that day.

Others get caught up telling their story, not understanding that cases are decided on the facts, not emotional impact.

“The Legislature has been proactive in ensuring that tenants are treated fairly on the books, but those are complicated laws that an average person who is not trained in the law cannot really access,” Lawrence said.

Agreeing to dangerous conditions

Before a tenant ever speaks to a judge, however, they are encouraged to try mediation, a process which is meant to divert some of the flood of cases out of the courtroom, and give tenants a chance to come to an agreement with their landlord.

The court staffs four mediators who may have as many as 100 cases scheduled on any given day.

Because of the backlog, which could result in tenants, landlords and attorneys alike waiting for hours, most mediations end up happening not through the official process but out in the hallway.

That Thursday morning, a MassLive reporter counted no less than six tenants at a time engaged in one-on-one conversations with attorneys representing their landlords.

Many of these attorneys come prepared with pre-printed agreements, with terms such as extra monthly payments to repay debt or a date by which the tenant must move out.

Some attorneys representing the largest landlords stake out their own section of the hallway outside the clerk’s office each day they are there, so attorneys like those with the Lawyer for the Day program know where to find them.

Some move one by one through their list of tenants in court that day, getting multiple agreements signed in a relatively short period of time.

Once a tenant signs an agreement and it is filed with the court, it is legally enforceable, whether the terms are fair to the tenant or not. At that point, there is little the Lawyer for the Day attorneys can do for a tenant facing a post-agreement eviction.

Lawrence explained that these agreements are often heavily weighted toward the landlord, and tenants will feel pressured to sign even if the payments are more than they can afford because they believe it will stave off an eviction.

She said that while she and her team try to help tenants before they enter mediation, when they go up against the slick-looking attorney, they can lose their nerve.

One woman she spoke with, who lived in subsidized housing making little to no income, owed just over $200 to her landlord. Even after talking to Lawrence she went to speak with her landlord’s attorney and ended up signing an agreement to pay over $500.

If a tenant signs such an agreement and misses a payment, they are almost guaranteed to be evicted without a trial. With an eviction on their record, they will have even more trouble finding new housing, and can lose their eligibility for their housing voucher or the family shelter system.

“Sometimes when the person says, ‘I’m the attorney,’ (tenants) think, ‘Oh, you’re my attorney.’ They don’t realize that that person is solely representing the landlord and the landlord’s interests,” Lawrence said. “They don’t know because they’ve never been through it before that they’re supposed to wait and go in with a court-appointed mediator who’s supposed to be neutral. That’s all just basic process, before you even get to any of what your legal claims might be.”

According to Summers, the Georgetown Law professor, about one-third of these agreements require the tenant to move out, with the remaining two-thirds establishing a probationary period during which the tenant must repay what they owe or abide by other conditions.

For about one-third of those agreements, the case ends up back in court after the landlord says one of those conditions is broken. Of those, a judge allows the eviction about 96% of the time.

“The vast majority of the substantive and procedural legal protections the Massachusetts Legislature has enacted to protect tenants facing eviction do not apply for these [agreements],” Summers said during the March hearing before Boston City Council. “Tenants can be evicted swiftly and with very little process when they allegedly violate a probationary condition.”

At the same time, mediation can sometimes be the only way forward for a tenant to stay in their home. Lawyer for the Day staff encourage many tenants to mediate because legally, they may not have a defense, and once a judge rules on their case, the decision is usually final.

Lawyer for the Day
The Lawyer for the Day table at the Boston location of the Eastern Housing Court. (Tréa Lavery, MassLive)Tréa Lavery/MassLive

“Completely underwater”

All of the people struggling through the court process make it difficult for the Lawyer for the Day volunteers to keep up. They triage cases, deciding which tenants need the most help, and sometimes have to make judgment calls on whether to take a case further.

“If it’s a slow day, we might be able to go and argue the motion for them or negotiate with the landlord,” Whiting said. “If there are more people or not enough volunteers, then we can still talk to people and give them information, give them advice, but we’re able to give less help.”

Before the start of the COVID-19 pandemic, all eviction cases were heard on Thursdays, meaning the court and the volunteer lawyers were inundated with as many as 300 cases in one day, handled by the same number of judges and mediators.

However, since then, the court has changed its schedule to hear eviction cases on Tuesdays, Wednesdays and Thursdays. This has made it easier to spend more time on each case. But it also means the Lawyer for the Day program is stretched thin.

While before, they only had to worry about staffing the table on Thursdays, they now offer their services on Tuesdays and Thursdays.

The program is not held on Wednesdays. When the summer comes and there are fewer law students around, Whiting said they may not even be able to do it every Thursday.

There are also more eviction cases in general. Since the end of the federal moratorium on evictions that was put in place during the pandemic in July 2021, the number of evictions filed each month has steadily increased, according to the Massachusetts Housing Partnership’s Housing Stability Monitor.

Between August 2022 and October 2023, there were more than 3,000 eviction filings every month, above pre-pandemic levels.

Of those, the Harvard Legal Aid Bureau team serves only the Boston location of the Housing Court. Lawyer for the Day programs run by other legal aid organizations exist at housing court locations in Brockton, Canton, Hadley, Greenfield, Lawrence, Lowell, Lynn, Pittsfield, Salem, Springfield, Woburn and Worcester, but tenants facing eviction cases in other court sessions are on their own.

Even on the best days, the Boston team is hard-pressed to handle all of the demand.

“We would be completely underwater if everybody who was not represented came to the table,” Whiting said.

A fight for the right to counsel

Even if they had enough resources to help everyone, however, Lawrence said it wouldn’t be enough.

To make the housing court system function fairly for all tenants, she said, they need to have the right to legal counsel, in the same way defendants in criminal cases are guaranteed an attorney.

“Telling someone their rights in a 10-minute conversation is just not the same,” Lawrence said. “Imagine you were told in surgery, ‘Hey, here are the tools. I’m going to give them to you. I’m going to tell you how to use them. And you’re going to perform the surgery yourself.’”

For this reason, Boston City Councilor Ben Weber filed a hearing order earlier this year to consider a pilot program for right to counsel in eviction cases.

“People are so familiar with public attorneys in our criminal legal system, that it just doesn’t occur to them that this kind of court case can limit when someone has the right to an attorney,” Councilor Henry Santana said during the March 21 hearing on the proposal. “This is one of those issues that as soon as you hear the problem, it seems very obvious to fix it.”

At the state level, bills have been filed in both the House and Senate to establish a right to counsel program across Massachusetts for eviction cases. Gov. Maura Healey also included $3.5 million in her proposed fiscal year 2025 budget to provide legal representation for low-income tenants and owner-occupants in eviction proceedings.

While such a program would be expensive, in a report released in 2020, the Boston Bar Association estimated that for every dollar the state spent on legal aid in eviction and foreclosure cases, it would save $2.40 on costs that come as a result of evictions, such as emergency shelter and health care.

In addition to New York City, 16 other cities and four states have enacted right to counsel legislation.

Lawrence said such a program would even the playing field, giving tenants a fighting chance in a system where currently, they have almost none.

“That’s what having a lawyer or an advocate is. Someone helps you navigate the process, helps you understand what your legal defenses are, makes you understand what you’re giving up when you do decide to make an agreement,” she said. “Ultimately, it’s the way the system is supposed to work.”

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Tags: Harvard Legal Aid Bureau

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