Power in the Court: Legal Argumentation and the Hierarchy of Credibility in Eviction Hearings

Abstract

Existing research shows that tenants are disadvantaged in eviction proceedings, but studies have provided an incomplete account of the way court procedures and practices work together to produce systematic disadvantage. We draw on legal aid attorneys’ accounts of eviction hearings—particularly how courts establish whether and how much rent is owed—to show how hearings routinely result in judgments in favor of plaintiffs even when tenants have a legal defense. We argue that there is a hierarchy of credibility in how courts evaluate landlords’ claims for possession of a rental property due to nonpayment of rent. In demonstrating the way legal claims are embedded within and shaped by wider courthouse practices, the study highlights the importance of legal representation for tenants facing eviction and suggests that courts play a role in the maintenance of exploitative rental markets by failing to penalize landlords for inaccurate charges.

The pathways that lead from an alleged violation of a lease agreement to a tenant being removed from a rental property via the formal eviction process are complex. The overwhelming majority of legal evictions are based on nonpayment of rent (Edelman 2019), but differences in tenant characteristics, such as race/ethnicity and family structure, are associated with disparate local eviction rates independent of economic vulnerability (e.g., Desmond and Gershenson 2017; Purser 2016; Teresa and Howell 2021). Landlords and property managers vary in whether and why they initiate formal eviction proceedings when a tenant falls behind on rent (Immergluck et al. 2020; Leung, Hepburn, and Desmond 2021; Raymond et al. 2018; Rosen 2014). State regulations that impact the cost and length of the eviction process shape its discretionary use as a tool in the rental relationship (Greif 2018; Hatch 2017; Sullivan 2017), and courts vary in their interpretation and application of existing statutes (e.g., Eldridge 2001; Krent et al. 2016; Sudeall and Pasciuti 2021).

Legal institutions are therefore central to understanding eviction rates and housing policy implementation, but little research directly examines the eviction process inside the courthouse. Existing studies show that tenants are disadvantaged relative to landlords via limited access to attorney representation (Eldridge 2001; Ellen et al. 2021; Pollock 2012), inconvenient and confusing bureaucratic scheduling processes (Fleming-Klink et al. 2023), the rapid pace at which courts move through their dockets (Bezdek 1992), and a disconnect between courtroom norms and tenants’ legal consciousness (Nelson et al. 2021). Yet existing studies ignore the legal argumentation and evidentiary basis of nonpayment of rent cases. As a result, we know little about the way courts evaluate legal claims in the majority of eviction cases despite growing recognition that eviction courts operate as instruments of debt collection (Garboden and Rosen 2019).

This article draws on legal aid attorneys’ accounts of eviction hearings in Virginia to examine how courts establish whether and how much rent is owed by tenants facing eviction. We pair socio-legal scholarship that conceptualizes courts as places where troubles between parties are bureaucratically translated into legal cases (e.g., Ewick and Silbey 2003; Merry 1990) with sociological research on the operation of power in formal organizations to shed new light on the processes that systematically disadvantages tenants. We focus on three stages of eviction court hearings in which tenants are limited in their ability to exercise rights in nonpayment of rent cases because landlords are accorded forms of deference and control unavailable to tenants: scheduling and docket management, determining whether cases are contested and merit a trial, and establishing the amount that is owed. At each stage, landlords’ claims are judged relative to tenants’ claims in ways that cannot be reduced to legal merit. Rather, we argue that the process reflects an underlying “hierarchy of credibility” (Becker 1967) in which differential status outside the courthouse is reproduced by the relational application of its bureaucratic practices. The hierarchy of credibility belies the premise that courts are simply referees “calling balls and strikes.” We argue that although legal representation mitigates many of the power imbalances between tenants and landlords, the hierarchy of credibility obtains even in cases where tenants attempt to deploy legal expertise by following attorneys’ advice and when tenants are represented by an attorney in court. The article concludes with reflections on new avenues for structural reform.

Courtroom Practice and the Reproduction of Tenant-Landlord Inequalities: A Power Perspective

An extensive body of research on the spatial patterning of eviction shows how it is rooted in the legacy of systemic racism in housing markets and reproduced through policies that affect the ease of using eviction as a tool in the rental relationship (Desmond and Gershenson 2017; Purser 2016; Teresa and Howell 2021). Growing awareness that housing policy is implemented through the court system has heightened interest in understanding the operation of eviction courts. Legal scholarship confirms that infrequent access to legal counsel on the part of tenants, a limited duty of inquiry among judges, and the time pressures that attend high case volumes place tenants at a disadvantage relative to landlords (Bezdek 1992; Ellen et al. 2021; Krent et al. 2016; Pollock 2012; Sudeall and Pasciuti 2021). Seeking to better understand the process by which tenant disadvantage operates, sociologists have approached the study of legal institutions, including courts, from a social constructivist perspective that centers the way bureaucratic procedures may be differentially navigated or applied in practice. In a classic statement of the social constructivist conception of the law, anthropologist Sally Engle Merry (1990:ix) observed that the power of the legal system lies in its ability to “authoritatively interpret and re-frame trouble” in ways that may create barriers to understanding and efficacy for laypeople, who do not always recognize their problems as formally defined by the representatives of legal systems (see also Ewick and Silbey 2003; Sandefur 2008, 2015a).

Working within the social constructivist tradition, recent studies of eviction court advance an understanding of systemic inequalities arising from the disconnect between the way tenants understand and therefore act on their housing troubles and the resources required to understand and effectively navigate courts’ procedures. Much of this research draws explicitly or implicitly from the “social reproduction” of inequality model that has been used to explain why schools often fail to serve the needs of children from racial/ethnic minority and lower class backgrounds (for a review of this literature and its theoretical foundations, see Lareau 2011). Nelson (2021) shows how the “interpretive disjuncture” that arises between tenants’ troubleshooting of their housing problems and the way those problems move through the legal process often leads to default judgments (awards automatically granted to landlords when tenants are not present in court). Tenants’ strategies of action for navigating what are often multifaceted and long-standing disputes with landlords make sense within their lived experience and the wider context of the conflict—for example, withholding rent when a landlord repeatedly refuses to maintain the habitability of the property—but they are incompatible with the “pace, rhythm, and sequencing” of an eviction case (Nelson 2021:154). Fleming-Klink, McCabe, and Rosen (2023) show how formal and informal procedures combine to create disadvantage for unrepresented tenants in a heavily overburdened civil court system. They find that the court’s unwritten rules for conduct, the inconsistent application of written rules for courtroom appearances, and the use of “shadow procedures” to resolve cases outside formal channels create advantages for landlords, who are regularly represented by attorneys whose social networks within the courthouse can be used to confer advantages to their clients. Scheduling issues related to courts’ high case volumes—including long and unpredictable wait times for hearings, penalties for arriving late, and rapid hearings that effectively silence tenants—are key sites for the operation of differential advantage. Altogether, Fleming-Klink et al. (2023:221) argue, these elements of “procedural hassle” shape eviction case outcomes by exacerbating the “high opportunity costs for tenants to appear in court” and amplifying the power asymmetries that come with differential access to legal counsel among landlords and tenants. Yet contrary to conventional wisdom, costs associated with greater access to representation are not the only barrier to closing the justice gap in civil cases such as eviction. Interpretive disjuncture can also arise between attorneys and their clients (Clair 2020; Greene 2016). Legal aid practitioners must offer services that are regarded as timely, targeted, and trustworthy within the communities they serve to expand access to justice (Sandefur 2015a).

Although eviction case outcomes are shaped by the bureaucratic process through which the parties engage legal experts and related court personnel, the work of deploying legal expertise in eviction cases has not been widely examined. As a result, we know little about the way courts determine whether and how much rent is owed in alleged nonpayment of rent cases. What happens when tenants facing eviction are present in court and attempt to deploy legal advice garnered from a legal aid organization or when they are represented by an attorney in court? Is it the case that courts operate as meritocracies in the rewards they confer within legal contests, issuing judgments that simply reflect the facts of the case when legal procedures are adhered to, or is the use of legal expertise in the courtroom also a social process subject to forms of institutional advantage and disadvantage? To generate expectations about the answers to these questions and conceptual tools to guide the analysis, we engage sociological research on the operation of power in formal organizations.

Within organizations boundaries between socially defined categories of people (e.g., men/women, Black/White, landlord/tenant) are used as a frontier around which social relations are organized (Ridgeway 1997; Zelizer 2012). These categorical distinctions are used to inform and justify inequalities in access to resources or rewards (Tilly 1999). Scarce rewards are not distributed via purely meritocratic processes even when there are clear rules and procedures in place to prevent nonmeritocratic resource allocation (e.g., Castilla 2008, 2012, 2015). Rather, rewards are distributed via a process of relational claims-making in which parties attempt to secure access to scarce resources by claiming they are more deserving of rewards than other individuals or groups (Tomaskovic-Devey and Avent-Holt 2019). Claims based on categorical distinctions or cultural frames that are understood as legitimate outside an organizational setting are more likely to be successful within the organization.

One form of power that actors wield in claims-making is the “symbolic power” to define the situation in ways that advantage their position (Bourdieu 1991). “In any system of ranked groups,” sociologist Becker (1967:241) wrote, “participants take it as given that members of the highest group have the right to define the way things really are . . . credibility and the right to be heard are differentially distributed through the ranks of the system.” Actors in an organizational setting also draw on resources, such as educational credentials, to support their claims, and some are more skillful than others in the way they deploy such resources in claims-making (Fligstein and McAdam 2012). Within this framework, laws or organizational policies are not determinative of outcomes but, rather, serve as resources that are strategically deployed in the claims-making process. One important source of organizational power (often denoted in bureaucratically defined roles) is the power to determine the timing and pace of coordinated action. Increasing the speed of coordinated action—often by simplifying and standardizing (“routinizing”) the tasks performed—can not only increase the collective output but also shape the way actors make claims to contested rewards (Braverman 1974). A failure to conform to strict time-based methods of control on the part of organizational actors without temporal authority has historically been interpreted as evidence of the necessity of such forms of “time discipline” and used as a cultural frame in claims-making to justify unequal access to rewards (Thompson 1967:80–85).

To summarize, although existing studies of systemic disadvantage in eviction courts draw on educational inequality research to identify a “hidden curriculum” of unwritten rules and expectations that advantages landlords over unrepresented tenants in court (e.g., Fleming-Klink et al. 2023), viewing eviction courts through the lens of organizational sociology offers additional insight into the inequality mechanisms at play in the courthouse. Garboden and Rosen (2019) conceive of evictions courts as sites in which landlords enlist the support of the state to define tenants as debtors and provide material and symbolic support to their debt collection. We take the insight that eviction courts structure class-based relations further by directing attention to legal argumentation in eviction hearings as a form of organizational claims-making used to determine and justify unequal rewards across organizationally defined roles. Drawing on relational inequality theory (Tomaskovic-Devey and Avent-Holt 2019), we theorize that rewards in eviction cases—both the judgment for possession of a rental property, normally based on nonpayment of rent, and the determination of the amount owed by evicted tenants—are distributed via a process of relational claims-making in which landlords’ claims are judged as more legitimate than tenants’ claims in ways that cannot be reduced to either legal merit or procedural adherence. We anticipate a hierarchy of credibility (Becker 1967) in courtroom claims-making reflecting the higher social status of property owners in American society even when tenants and their attorneys employ substantive legal expertise (Sandefur 2015b). Finally, we expect that scheduling and docket management are strategic sites that can be used not only to confer advantages in case outcomes but also to justify patterns of advantage and disadvantage in the relational claims-making process.

Data and Methods

To gain a fuller understanding of the way that eviction hearings produce systemic disadvantages for tenants, we performed in-depth interviews with a sample of eviction court personnel in Virginia, a state with the dubious distinction of representing 5 of the nation’s top 10 evicting large cities in 2016. ¹ We recruited legal aid attorneys and courthouse navigators who serve tenants across northern, central, and eastern Virginia jurisdictions with high eviction case volumes and high rates of eviction judgments relative to the size of the renter population using snowball sampling methods. We also spoke with one judge who presides over eviction cases in eastern Virginia. As a supplement to the in-depth interview data, we trained 12 undergraduate students to observe Virginia eviction court hearings on a full-time basis for two months of the year, from 2021 to 2023, offering a rich descriptive picture of courthouse dynamics and courtroom procedures that we used in two ways: in the development of our in-depth interview guide and to contextualize and substantiate the direct accounts of our interview participants. Although it is small in size (n = 11), the sample includes practitioners who have spent years and, in some cases, decades supporting tenants in Virginia’s eviction courts. As part of their work representing tenants in court, the legal aid attorneys in the sample have also spent countless hours observing the hearings of nonclients while waiting for their clients’ cases to be called, so they are well positioned to report on the way eviction courts operate. Triangulation across observational and interview data increased our confidence in the validity of the results, as did the high degree of saturation we achieved across the accounts of our interview participants despite their work being spread across a number of separate court jurisdictions. There were no occasions in which the interview participants’ accounts of courthouse scheduling and courtroom claims-making did not align with the direct descriptive observations. This is notable because we trained the courtroom observers to focus on procedural adherence and the way judges differ in their informal courtroom management—targeting a different courtroom role than that occupied by the interview participants. The congruence between interview and observational data indicates that the legal aid attorneys’ accounts capture more than a partial perspective on their shared courtroom role despite their professional training in adversarial argumentation. In this analysis, we prioritize data gleaned directly from the interview participants and do not integrate observational field notes into the results section because the attorneys are better positioned to provide detailed accounts of legal claims-making than courtroom observers. The interviews were conducted in the spring of 2023 and included questions about the participants’ experiences in Virginia’s eviction courts before, during, and after the emergency restrictions associated with the COVID-19 pandemic, although we do not in this article focus on the distinct dynamics of eviction cases under the temporary provisions.

We transcribed interview recordings and followed an iterative coding and theory-building process in the analysis. We started by taking detailed notes on participants’ factual accounts of the eviction case process in Virginia, which we cross-referenced with publicly available legal aid resources, ² to develop an understanding of the key legal moments in the timeline of an eviction case. From there, we performed open and closed coding of interview transcripts and identified key themes in the data for each step in the legal process from the eviction filing (when the landlord initiates legal proceedings) to the eviction judgment (when a ruling is made in the case). We asked questions about the life of an eviction case that takes place before and after the actual hearing to better understand the wider ecosystem of the courthouse and how tenants and their attorneys engage landlord attorneys, clerks, and other officers of the court in a formal or informal capacity. In this analysis, we focused on the operation of power vis-à-vis the procedural and substantive elements of eviction cases, seeking to understand where and how the process advantages tenants (or landlords) from the participants’ perspectives while also coding for narratives of equal access to justice in the eviction process. Responses to questions about the role of attorneys in eviction cases yielded particularly useful insight into the legal argumentation and claims-making process in three types of cases: cases in which tenants were present in court without the aid of an attorney, cases in which tenants had received legal information and/or advice on their cases from an attorney but were not represented in court, and cases in which an attorney represented the tenant in court.

The focus of this article, how courts determine whether and how much rent is owed by the tenant to the landlord, emerged inductively from the data. As our thinking on the role of attorneys in the eviction case process developed and the theme of differential credibility in claims-making emerged, we coded the data for instances of equal credibility in the claims-making process and evidence of tenant advantages in the process in search of both confirming and disconfirming evidence for the emergent theory. We do not discuss claims-making around the habitability of rental properties in the analysis because habitability cannot be used as a defense against the charge of nonpayment of rent in eviction cases in Virginia, and as such, it is not an important theme in the interview data. ³

Results

Previous studies have shown that tenants face systematic disadvantages in eviction court when they are not represented by an attorney because they lack legal expertise and hold forms of legal consciousness that are at odds with courtroom procedure, whereas landlords are accorded advantages in navigating courthouse procedures by their attorneys’ relationships with court personnel. But existing research does not directly examine how those dynamics shape the legal argumentation that leads up to a ruling when tenants are present in court. In this section, we highlight three stages of eviction court hearings in which tenants are limited in their ability to exercise their rights: scheduling and docket management, determining whether cases are contested and merit a trial, and establishing the amount that is owed. Taken together, the process reflects an underlying hierarchy of credibility that is institutionalized by how infrequently tenants are represented an attorney.

“You Can Try to Make a Legal Argument,but Nobody’s Going to Listen to You”: The Use of Time Discipline in Court

As earlier studies have shown, overburdened courts engage in scheduling and docket management practices that allow them to process a high volume of cases but create opportunity costs to tenants who attend their eviction hearings. In this section, we connect these issues with case outcomes, showing how landlord attorneys strategically use the deference they are accorded around scheduling to routinize the eviction process. Procedural issues, including crowded dockets with long wait times and short hearing lengths, disadvantage tenants relative to landlords in ways that cannot be reduced to tenants’ lack of legal expertise. Even when they have conferred with an attorney and seek to use that legal advice or are accompanied by an attorney in court, court procedures silence tenants and create barriers to justice.

Landlords who regularly file for eviction represent the overwhelming majority of cases and are usually represented by high-volume attorneys whose job is to efficiently navigate the legal process for their clients. One of the key tools they use to routinize the court’s bureaucratic procedure and manage a high volume of cases is control over scheduling. Legal aid attorneys report that there is a legal statute in Virginia that calls for eviction proceedings to be scheduled on a day that is convenient to the plaintiff, so courts give broad leeway to landlords and, especially, those landlords who are represented by high-volume attorneys in the scheduling process. As one legal aid attorney explained,

The high-volume attorneys, they certainly have the flexibility to, they get to pick their days. Usually they work it out ahead of time with the clerk, like “I’m in this court every Monday at 9:00, the first Monday of every month at nine o’clock.” They get a lot of deference in terms of scheduling. (eastern Virginia, Attorney 1)

Although some judges instruct their clerks to schedule cases in ways that they hope will maximize the capacity of local legal aid practitioners to reach clients (eastern Virginia, judge), this practice was not recognized as such by the legal aid attorneys operating in that jurisdiction. The scheduling deference often accorded to plaintiffs in eviction proceedings reflects the way that Virginia law prioritizes the protection of property rights as a key imperative of the state: “So, in situations when it’s about money, unlawful detainers have a high priority on the docket. . . . They’ll say it has a high priority because I guess somebody is being monetarily put in a deficit” (eastern Virginia, Attorney 2). Court personnel use their authority to set the schedule and pace of eviction hearings in ways that uphold the primacy of property rights under the law.

Tenants have no control over the date or time of their eviction hearings, often making it inconvenient and costly to attend eviction hearings. As one attorney explained, “You don’t really get a say on when you can come in. . . . So, if you have things going on or your kids have things going on, it’s kind of like, ‘Oh well, that’s tough, but you need to be here or we’re going to enter judgment’” (eastern Virginia, Attorney 2). Tenants incur costs for attending eviction hearings in the form of missed work and long transportation times.

And so yeah, most of my clients have to take the morning off work, have to get there by bus. The bus system is not great, especially to places where people live in [our city], which is often further out. For example, I have a trial tomorrow morning, I just asked my client, “Can we meet at 8:15. The trial’s at nine.” He said, ‘Yeah, well, I’m staying in [neighborhood], so it takes me about two hours to get to court. So I’ll try to get there at 8:15.” (Central Virginia, Attorney 1).

Landlord attorneys use their scheduling authority in ways that can leave both tenants and their attorneys scrambling to adjust to last-minute changes. One attorney recalls:

And then often what will happen with these big evictors is they’ll have decided the night before . . . “Oh, there’s something complicated with this case. We don’t feel like dealing with it. We’re just going to continue it for a month.” The tenant will call the property manager and say, “Hey, what’s happening with my case?” And they’ll say, “I don’t know. You should go to court.” I will call the landlord or the attorney, they won’t take my call. They won’t answer my email. I show up the next day—when I could be talking to tenants or representing somebody else—and the attorney says, “Oh yeah, we already continued that for a month.” . . . So yeah, it’s a huge waste of people’s time. (Central Virginia, Attorney 1)

Last-minute continuances for cases that landlord attorneys deem “complicated” mean that tenants and their attorneys are doubly disadvantaged: They must rearrange their schedules to attend court a second time, and they are denied the ability to use scheduling strategically, such as to obtain more time to seek additional information or exercise the right of redemption (i.e., to pay the amount allegedly owed within a defined period of time to avoid eviction).

Scheduling issues contribute to the high rate of default judgments, or judgments automatically awarded to landlords when tenants are not present in court, as tenants navigate the opportunity costs associated with attending court (Nelson 2021)—a problem that is exacerbated by long wait times for scheduled hearings. As this attorney relates, tenants who do attend their scheduled hearings often underestimate the length of time they will need to be present in court:

I’ve been there as an attorney, sitting hours [italics added] just for one client to get called. So, it gets frustrating because some people, they come in thinking, “Hey, maybe I can go to work” or something like that. And then they’ll come to me asking, “Hey, can I leave?” . . . I can’t tell you not to leave. I don’t think you should leave. But then people are like, “Well, I’m going to lose my job if I stay here.” And then default judgment may get entered and it gets really tough. (Eastern Virginia, Attorney 2)

Some court officers appear to judge tenants unfavorably for the high rate of default judgments that arise from “no-shows” in court. Explaining why their court increased its effort to offer legal information to the parties to an eviction hearing during the pandemic, one judge who presided over evictions on a regular basis explained:

Before the pandemic, maybe 10% of tenants showed up for their evictions [italics added]. The number was strikingly low. So landlords were getting default judgements. Well, when there’s a pot of money to pay rent, obviously the number of tenants that actually show up [italics added] because they have to show up to claim that and not get kicked out of their apartment, the number went up to about 40 to 50% if not on some days even higher. And so as a result we wanted to reward, not reward, that’s the wrong word. We wanted to make sure that the individual who came in, whether it be the landlord or the tenant, knew what the law was and knew what resources were out there during a incredibly difficult time. (Eastern Virginia, judge)

Here, the deservingness of those who do not attend their eviction hearings is compared unfavorably with the deservingness of those who do, indicating a “time discipline” (Thompson 1967) that informs the court’s informal evaluation of renters who find themselves unable or unwilling to attend their scheduled court dates.

Beyond scheduling issues, the length of hearings also disadvantages tenants and advantages landlords. Eviction hearings are typically resolved within less than a minute, even when tenants are present, and the pace at which the court moves through its docket routinely silences tenants in their pursuit of justice. Recalling a day in court from the previous week, one attorney shared, “I saw sitting in the courtroom . . . these cases going in three seconds, I mean, truly so quickly, the person had barely enough time to get up to the table if they were there” (central Virginia, Attorney 1). Docket management practices could address wait times more equitably, such as by scheduling fewer cases per hour to give tenants more time to speak or scheduling cases for particular windows of time within the eviction docket (e.g., 9 a.m., 9:30 a.m., and so on vs. all eviction defendants scheduled for 9 a.m.). But doing so would produce more downtime for attorneys and court personnel when defendants are not present for their scheduled windows; the imperative to make the process convenient to landlords and their attorneys produces structural disadvantages for tenants and their attorneys.

As other studies have shown, a lack of legal expertise leaves unrepresented tenants at a disadvantage in the eviction process. The courthouse navigators in our sample confirm that much of their work entails simply clarifying the eviction process and helping tenants understand where the court hearing fits within the larger arc of the legal case—often with legal information that is at odds with what property managers convey to the tenants. Beyond legal information, which is not applied to the facts of a particular case, legal advice can also change the outcome of a case. An eastern Virginia judge observed, “legal representation in any matter is important to have because of the rules of evidence and because of knowledge of the law.” Yet the barriers to justice that tenants face in eviction court even when they have received information or advice from an attorney speak to the way that systemic disadvantage goes beyond a lack of legal expertise (Ewick and Silbey 2003) and is exacerbated by the court’s docket management practices. An attorney explained how tenants struggle to use the legal information they have because of the fast pace and high stakes of the proceedings:

The law is a different language. And the court system is built on this other language, that tenants show up, they don’t know it, they don’t know what to say. And even if they’re told what to say by an attorney, they freeze up almost every time in front of a judge [italics added]. . . . It’s scary. They’re in front of a courtroom, there’s a hundred people behind them, there’s a judge in front of them, and they got 30 seconds to say the right thing or they’re going to be evicted. And they freeze and it’s reasonable because they don’t know what to do, they’re not taught what to do. And some of this stuff is so complicated, it takes an attorney to know what to say. (Central Virginia, Attorney 3)

Being rushed or intimidated by the process can make it difficult for tenants to participate meaningfully. But as this attorney explains, even unrepresented tenants who arrive in court with a clear legal strategy and the statutory tools they need to implement it face barriers related to the pace of the eviction docket and patterns of differential legitimacy in claims-making.

But there’s a statute that says, if the defendant shows up in court and pleads under oath that they contest this, then they shall be given a continuance. So that’s something that we noticed like a year ago and started giving people the statute and a request, here’s how you ask for this and everything, so they could take it to court and do that [italics added.]. I don’t think that they’ve had much success with that. (Central Virginia, Attorney 2)

Tenants who wish to contest their evictions and have conferred with a legal aid attorney are typically advised to request a continuance and coached on how to make that request before a judge. But as one attorney explained, it is not enough for tenants to make their arguments in court using the correct language and with the appropriate documents prepared.

I would say in most courts, if you are a pro se tenant, you can try to make a legal argument, but nobody’s going to listen to you. . . . If I have a client who’s going to court on their own and I tell them exactly what argument to make, they may or may not have a chance to make that argument. . . . Any lawyer who walks up there, they’re automatically going to be given more time and space and leeway to make arguments than a pro se tenant. (Eastern Virginia, Attorney 1)

Tenants experience similar barriers in their interactions with the court clerk, who is responsible for filing documents for the court. One attorney observed of the clerk’s office:

They are gatekeepers that can completely deny somebody their rights. And so unfortunately now, when I send instructions to somebody for how to file a motion to quash or a motion for a new trial or whatever, half of a page is, “Here’s what to do if the clerk doesn’t want to let you file it, and here’s some of the reasons that they might tell you that you can’t file it. All of those reasons are wrong, here’s a law that, statute that, you can hand to them and show them. And if they say that they can’t then be polite, but be persistent and ask to see their supervisor and go all the way to the top. And if that doesn’t work, come out to the parking lot and give me a call.” . . . That’s a huge problem and a huge due process and access to justice failure. (Central Virginia, Attorney 2)

Legal aid attorneys are given more opportunities to develop a legal argument than are tenants who lack legal expertise altogether or who have been advised by an attorney in advance of their court appearances. The court confers a degree of credibility to attorneys, in the form of time to speak and be heard, that unrepresented tenants do not receive. But legal aid attorneys also face barriers when they appeal to statutes that may be unfamiliar to court personnel. One attorney described accompanying a client to the clerk’s office to pay their late rent and fees into escrow in advance of the eviction hearing so that they could contest the charges on procedural grounds without forgoing the right of redemption. The attorney explained:

You have to take the statute and you have to show to them, and you have to ask to talk to the supervisor and everything, whatever . . . I took three clients, they had unlawful detainers against them, we had a ton of counterclaims that we already filed against the landlord, but I told them to bring cash of everything that they owed. (Central Virginia, Attorney 2)

The attorney was unable to convince the clerk to accept the money into escrow despite his legal expertise and being in physical possession of the actual statute detailing the tenants’ right to do so. When recounting the problem to the judge at their clients’ return date, the attorney reports that the judge observed of the clerk, “Now they’re not going to know what to do with this,” and continued, “I’ll tell you what I’ll do, and I’ll just make a little note on the bottom of this case here that they tried to pay or tried to bring the money and I probably won’t order possession [italics added]” (central Virginia, Attorney 2).

Even when tenants are able to effectively advocate for themselves to contest the eviction charges and secure a return date, scheduling decisions about the length of time until that trial can make it difficult for tenants and their attorneys to mount a full defense. As one attorney explained about return dates in contested cases:

So normally, depending on the case, they do try to hear it within a 30-day window. . . . If the judge is really in a space where it’s like, “Oh, I don’t think it should be going there” they may try to rocket docket you and do two weeks. . . . But I’ve even had it as bad as a week. . . . So, it just depends on what’s going on in the case because sadly, I can say if you’re pro se and . . . if you say you disagree, and they’re like, “Okay, well we can come back next week and have a trial,” you can almost tell at that point, they just did it because it says dispute this and you can show up. But it’s not giving even an attorney enough time to try to gather information [italics added]. (Eastern Virginia, Attorney 2)

The attorney’s point here is that the judge can set the amount of time until the return date for so short a period that neither unrepresented tenants nor their attorneys have adequate time to prepare the evidence required to make a compelling defense at trial.

Scheduling and docket management issues are therefore more than an inconvenience for tenants whose lack of resources and power outside of court can make it costly to attend. Temporal barriers to justice are not merely by-products of courts’ heavy caseloads and the need to process large dockets with limited resources. Landlords’ attorneys use scheduling, including the authority to make last-minute docket changes, as a tool to routinize cases and benefit their clients. Tenants face barriers to using legal information and advice they obtain from an attorney, and even legal aid attorneys are not always able to leverage their expertise to overcome temporal barriers. “Time discipline” works together with “procedural hassle” to disadvantage tenants during eviction hearings.

In the next section, we look more closely at the process by which courts determine whether a case is officially contested and therefore eligible for a trial. We show how tenants’ legal consciousness, specifically, their expectations about the hearing’s purpose and process, can collide with court procedures in ways that undermine their ability to contest landlords’ claims and exercise their procedural rights.

“I Want to Pay the Right Amount”: Tenants’ Legal Consciousness and Contesting an Eviction in Court

Given the significant challenges and costs associated with attending an eviction hearing, why do tenants attend? What expectations and goals do they bring to the process? What strategies of action do they adopt to achieve those ends? Tenants obviously wish to avoid being evicted from their homes. Many tenants who attend their eviction hearings seek clarity on the status of their landlords’ claims and an impartial review of the charges, given that such information is not always forthcoming from property managers, and tenants regularly dispute the amount that is allegedly owed. As one attorney explained:

And oftentimes tenants will say, “Well yes, I know I owe some money and I’m willing to pay that money, but I want to pay the right amount and I don’t know what the right amount is, and I want to make sure it’s the right amount. I’m going to hold on to my money until I have that, until I know what I have to pay.” (Eastern Virginia, Attorney 1)

When tenants arrive in court, it is because they have received a summons to appear on that day and time. The summons lists the property address in question, outlines the landlord or property manager’s claims against them, and provides information about the right to pay the amount owed to avoid eviction (the “right of redemption”). The statement of charges, titled “CLAIM AND AFFIDAVIT,” indicates the reason for the petition (normally unpaid rent) and lists up to six different types of charges allegedly owed: (1) rent for a specified period; (2) late fees; (3) damages, with a specified rate of interest on those damages; (4) costs; (5) civil recovery; and (6) attorney’s fees. A box that may be checked reads “Plaintiff asks for judgment for all amounts due as of the date of the hearing” to account for debt accrued in the time that passes from filing the summons to the court date. The plaintiff (landlord), plaintiff’s attorney, or plaintiff’s agent (property manager) signs and dates the bottom of the claims and affidavit section under the statement, “All required notices have been given. I state under penalty of perjury that the foregoing is true and correct.” A section titled “TO DEFENDANT” explains that although attendance at the hearing is not required, judgment may be entered against defendants who do not attend. The document continues, “See information on the reverse about your right to prevent this unlawful detainer action by paying the money owed.” One of two boxes is checked, either “If you disagree with this case, you must come to court on the RETURN DATE to try this case” or “If you disagree with this case, you must come to court on the RETURN DATE for the judge to set another date for the trial.” The second page of the document outlines four different rights the defendant may exercise in the process, including the right of redemption (Item 2). It explains that the unlawful detainer action (eviction) will be dismissed if tenants pay each of the following:

(i) rent due and not paid as of the court date as included in the rental agreement, (ii) other charges and fees as included in the rental agreement, (iii) late charges included in the rental agreement and as provided by law, (iv) reasonable attorney fees as included in the rental agreement or as provided by law, and (v) costs of the proceeding as provided by law. ⁴

Having been provided with this information, renters who attend eviction court and do not agree with the charges listed on the summons often anticipate a trial in which there will be time to present relevant information and have an independent review of the evidence in the case. As one attorney observed,

Tenants oftentimes think that when they show up to court, they are going to be able to have this 15, 20 minute hearing and they’ll get some ruling from the judge as to what amount of money they actually owe. And then they’ll have a chance to pay that money and avoid the eviction. And that’s really not how it works. (Eastern Virginia, Attorney 1)

Legal aid attorneys explain that if tenants do not agree with the landlord’s claims, including the statement of the amount owed, they “need to show up to dispute it and get it set for a contested trial” (eastern Virginia, Attorney 2). In practice, however, tenants who disagree with the amounts listed on the summons are routinely unable to have that disagreement registered as a contested claim that merits a trial.

One of the challenges that tenants face in formally contesting the charges against them stems from the fact that there has often not been a clear accounting of the alleged charges that appear on the summons. Referring to the various charges and fees listed, one attorney explains that “a lot of tenants will say, this is wrong. I know this is wrong, but they can’t articulate exactly what the problem is with it” (eastern Virginia, Attorney 1). Another attorney explains that tenants arrive in court ready to contest their landlord’s claims and secure a trial, but they respond to judges’ questions in ways that undermine their case:

But they’ll start asking all these questions or in a sense, I don’t want to say putting things in your mouth, but sort of like, “Oh, well do you agree?” Because then at that point you’re like, “Oh, well I might owe them something [italics added].” “Okay, well I’m going to go ahead and enter judgment and then you know, can work out with the property manager or with the attorney how much you think you might owe or figure out such and such and such.” . . . But in reality, what should be happening if you’re telling them that you dispute it, you don’t agree, you’re supposed to get a trial. . . . But it is confusing because people start talking and a lot of times they think they’re helping their case and they’re making it worse. (Eastern Virginia, Attorney 2)

Tenants without legal representation do not have the technical expertise to understand that, in the words of one attorney, “If you don’t say no, they presume you say yes to everything” (northern Virginia, Attorney 1). Even tenants who receive legal advice on how to attend court and ask for a trial face roadblocks. As one attorney explains, “Even if the tenant asks for contest, asks for pleadings, asks for trial, judges will often say, ‘Well, what’s the triable issue?’ Which again, that issue is not for the return date. That issue is for trial” (central Virginia, Attorney 4). The attorney continues, “I mean I’ll go to court and I’ll say, ‘Your honor, we contest, we ask for pleadings, we ask for trial.’ Then judges never ask, ‘Well, what is the triable issue?’” (central Virginia, Attorney 4).

The approach judges take to eliciting information from unrepresented tenants during the hearing can add to the difficulty tenants face in seeking to formally contest the charges against them and secure a trial. One attorney describes how judges typically approach hearings in which the tenant is present:

The threshold question you will hear a lot of judges say is, “Do you agree that you owe some amount of rent?” And as soon as the tenant says yes, because they inevitably owe something, then the judge says, “Well that’s fine. I’ll enter an order of possession and then you can come back later and figure out exactly that amount.” And at that point it’s all over for the tenant, right? They’ve lost their home, there’s an order of possession, a writ forthcoming shortly. And then it’s just a question of do they owe $1,000, $2,000, $3,000? But the damage is done at that point. (Eastern Virginia, Attorney 1)

Legal aid attorneys observe that the problem with this judicial approach of “bifurcating” the case into an order of possession disposition at the initial hearing followed by a fuller review of the debt owed at a later date is that it circumvents the tenant’s ability to have the case dismissed on procedural grounds. “It really shouldn’t be disposed over that first hearing unless the defendant admits that they agree to everything,” one attorney explains. They continue, “But most places, if a judge feels like there’s not really much of a dispute here, and with a few extra questions, I could just resolve this and at least give the landlord a judgment for possession, most of them will do that” (central Virginia, Attorney 2). In this attorney’s estimation, bifurcation therefore emerges from the judge’s desire to resolve cases efficiently by avoiding unnecessary trials coupled with the imperative to return possession of the property to the landlord as quickly as possible.

As several legal aid attorneys emphasized, there are “plenty of defenses that have nothing to do with whether you owe the rent” (central Virginia, Attorney 4). Legal aid attorneys report that they often find evidence of such “legal deficiencies” in landlords’ cases:

So, our role in that is sometimes we go and do docket calls. . . . Oftentimes we are able to pick up clients that have something wrong with a notice, or they weren’t given the proper termination notice, or something that was out of their control and that they shouldn’t be getting put out for it. (Eastern Virginia, Attorney 2)

But these issues are not uncovered in the course of a typical eviction hearing because, in the words of one attorney, “judges routinely don’t ask about those defenses, and they just go straight to the other end” to ascertain whether any rent is owed (central Virginia, Attorney 4).

In summary, tenants are often unable to effectively assert their right to contest the charges against them and obtain a trial with an impartial review of the evidence. Tenants approach their hearings with the information contained in the summons, which often includes debts they either do not recognize or actively dispute. Tenants expect the hearing to involve an impartial review of those charges, but in response to questioning, unrepresented tenants regularly share facts of the case that the judge interprets as obviating the need for a trial. Judges routinely use a threshold question that elicits an admission of debt, or they query the legal basis for tenants’ disagreement with the charges against them. As a result, disagreements between tenants and landlords over the amount that is owed are not legally treated as contested cases. This means that the court does not undertake a thorough review of the legal and factual elements of those cases. Disposing of such cases without a trial saves the parties from having to attend court a second time on the premise that a trial is unlikely to reveal relevant facts, and it reduces the amount of time that the property owner has to wait for repossession. In the next section, we show that the failure to register such cases as contested obscures widespread legal and factual deficiencies in landlords’ cases.

“They’re Just Wrong”: The Use of Ledgers to Determine the Amount Owed

The ledgers that landlords and property managers use to keep track of tenants’ payments are seldom examined in eviction proceedings, even when tenants dispute the amount allegedly owed, because such cases are not bureaucratically identified and processed as contested cases. As one attorney explains:

There are a lot of high-volume landlords, attorneys who will show up in court without a ledger and nobody cares. That’s fine. The judge will just ask them, “What amount are you seeking?” And they’ll state the amount that they’re seeking and that’ll be entered. They’re never actually forced to prove it unless someone challenges the moment. (Eastern Virginia, Attorney 1)

Another attorney observed that “landlord lawyers testify all the time” in the sense that they report the amount that is owed in court and their statement is taken as evidence in the case (central Virginia, Attorney 4). The court trusts that landlords’ attorneys know the correct amount that is owed, and those attorneys in turn rely on the landlords or property managers to report the correct amount. Asked whether landlord attorneys verify the amount allegedly owed to their clients, one attorney responded:

They are completely dependent. Their property manager, their clients will send them, “These are all the people who I want to file unlawful detainers against, here are the summons, here are the notices, here are the ledgers.” But the attorneys are not delving through the ledgers, nobody’s going through any of that. Everybody is taking the property manager’s word until and unless there’s an attorney on the other side who sees a problem and challenges them on that. (Eastern Virginia, Attorney 1)

Yet as legal aid attorneys report, there are pervasive errors in property managers’ ledgers. “I would say at least 50 or 60% of the ledgers that I look at from unlawful detainers in court are wrong. They are wrong. There are wrong charges on them. They’re just wrong,” said one attorney (eastern Virginia, Attorney 1). A different attorney concurs, noting that “When you ask for a ledger, it’s kind of very chaotic, lots of random charges on it . . . all these charges that are unjustified by the lease and stuff like that” (central Virginia, Attorney 1). One attorney detailed the multiple types of inaccurate and illegal charges that make their way into the amounts listed on ledgers, which become the basis for amounts indicated on the court summons and often treated as fact by the court:

What we do is we flyspeck every single charge. And so, we want to make sure the rent is accurate, especially in some type of federal subsidized housing that the rent was accurately, properly calculated. We look at the late fees to make sure that it’s no more than the 10% of the periodic payment, typically the monthly rent, or 10% of the arrears, whichever is less. We look at the other charges to make sure, are they actually in the written lease, and even in the written lease, are they legitimate charges? You can’t just impose maintenance fees when the maintenance is supposed to be done by the landlord. . . . Then, there are all sorts of attorneys’ fees that get added in to the ledger whether or not a court has actually ordered the attorney’s fees. . . . So yeah, there are all kinds of charges that are just improper and bogus. (Central Virginia, Attorney 4)

Even when ledgers are requested in court as a means to resolve disputed amounts, legal aid attorneys caution that they can provide a false confidence in the veracity of landlords’ claims. One attorney shared, “I can guarantee you that even if a judge asks to look at a ledger, they’re just going to look at the bottom number” (eastern Virginia, Attorney 1). Without looking more closely at the balance of charges and payments within the ledger and cross-referencing those charges with the provisions in the rental agreement, it is not possible to know that the final amount listed in the ledger is correct. Furthermore, legal aid attorneys indicate that the amount listed in the ledger does not always line up with the debts listed on the summons or communicated by the attorney at the hearing (and often disputed by tenants in court). One attorney recalled:

I just reviewed a case recently where the landlord got now two default judgments, and the default judgments were hundreds of dollars different than the landlord’s own ledger. . . . I consider that fraud on the court. If your own ledger says X dollars is due, then that’s what the request to the judge to enter should be. It should not be X plus Y, which is a different amount. It’s just fraud. (Central Virginia, Attorney 4)

Among the many examples of inaccurate charges discovered by legal aid attorneys, some concerned the calculation of the actual unpaid rent, whereas others concerned the various fees and charges that can be added to cases involving nonpayment of rent. As stated previously, late fees, damages, and attorneys’ fees folded into the total debt owed for a nonpayment of rent need to be consistent with what is specified in the lease agreement. According to one attorney, the Virginia General District Court bench book, a guide to relevant case law prepared for presiding judges, indicates that cases in which the precise sum due is not accurately logged should be dismissed. And yet, he recounts, “Sometimes landlords will load it up with unauthorized charges like attorney’s fees or things like that. And if the lease doesn’t authorize that, then it’s not for the precise sum due and you need to dismiss the case or give a judgment for the defendant . . . judges don’t care at all about that” (central Virginia, Attorney 2). Legal fees can also be added for cases that do not actually result in judgment: “You’ve got situations where the landlord filed an unlawful detainer, dismissed it for whatever reason, but is charging attorney’s fees as a result of what the attorney did in the dismissed lawsuit. There were no attorney’s fees ordered in the dismissed lawsuit. How can they charge that?” (central Virginia, Attorney 4). When given the opportunity to parse ledgers and rental agreements, legal aid attorneys also uncover instances in which poor digital recordkeeping or ineffective communication between property managers and tenants produces uncertainty over the actual amount of rent that a tenant owes. One attorney relayed a particularly troubling case in which the tenant came to legal aid after having been evicted from their home. The tenant reported there had been ongoing problems with the online portal she used to pay her rent. According to the attorney, when the portal malfunctioned, the landlord set up a duplicate account that did not reflect all of the payments credited to her account. According to the attorney:

They had actually filed for five unlawful detainers against her. Previously she had always paid and there was a dispute over late fees. That’s what it ultimately boiled down to. She didn’t realize at this time they actually went forward with the eviction. She assumed it was going to be dismissed because she had paid her March rent. . . . But I met with her for about an hour, hour and 15 minutes to try and figure out what was going on. . . . At the end of the day, this eviction was technically proper because I can see where you’re making your payments on the fourth or the fifth, but it’s not showing up on the ledger until the eighth or the ninth, so you’re being charged late fees. You haven’t paid those late fees. You think you’ve paid on time. You couldn’t see that because of this portal, but because you got a ledger from your property manager when you got evicted, I was able to piece that together from the ledgers to what was happening. . . . It’s crazy, in December she got one notice saying she owed $700 and then another notice saying she owed $2,000 and then a third notice saying she owed $900, all in the span of one month. And she was confused and she thought she talked to her property manager, had gotten it straightened out, but clearly not. (Eastern Virginia, Attorney 1)

This case speaks to the injustice that can arise from a process in which tenants’ disagreements about alleged amounts owed are not investigated. Yet it also shows that engaging in a thorough investigation of all disputed cases would not be a feasible undertaking for the court because of the time it takes to interrogate the evidence of debts owed and paid. Describing the process their office undertakes, one attorney said, “You take the ledger, you take the lease, you take the documents that the tenant has of the payments they’ve made, and you put all that together and you figure out what’s going on. . . . But that is a time intensive process that typically doesn’t happen” (eastern Virginia, Attorney 1).

The task of establishing the veracity of alleged debts in a nonpayment of rent eviction case is made more difficult by poor recordkeeping on the part of property managers, whose streamlined approach to processing evictions does not seem to be matched by their process for crediting rental payments. According to one attorney:

I’ve spent a lot of time teasing out ledgers and trying to understand. And as a lawyer who practices landlord tenant law regularly, if it takes me 45 minutes or an hour to try and decipher what is on the ledger and where they’re coming up with these calculations, that’s a problem. But you don’t even get to that level without a lawyer. (Eastern Virginia, Attorney 1)

Looking at the process as a whole, courts fail to penalize incorrect or illegal charges among landlords who use their services for debt collection, and they accommodate landlord attorneys in their efforts to move through a large number of cases without slowing down to look too closely at the evidence behind tenants’ claims that the alleged charges are wrong. As one attorney explains,

You are talking about high volume landlord attorneys who are coming to court with 40, 50, 60 cases. And typically, at least in our courts, the way courts handle that is they’ll have the landlord’s attorney make an announcement at the beginning of the docket and say, “I’m here. I’m representing X, Y, Z complex. Go out and talk, go out and talk to that attorney. And then if you want to come back in and you can be in front of the judge.” And typically what I see happen is unrepresented tenants go meet with that landlord’s attorney. The landlord’s attorney basically says, “You owe X amount of dollars.” Tenant doesn’t really know or have anything to say about that. (Eastern Virginia, Attorney 1)

The courts’ use of “shadow procedures” (Fleming-Klink et al. 2023) thus extends to determining the amount of debt that is owed in eviction cases. In the absence of legal representation, tenants are unable to effectively query the charges being levied against them, but when attorneys are present, they are often able to interrupt the “time discipline” that advantages landlords in the rush to close out crowded dockets. When legal aid attorneys discover procedural deficiencies in landlords’ cases, it can buy them time to use the available evidence to resolve disputes over the amount that is owed. One attorney explained:

I can delve into the ledger at that point, the other attorney and I can, we each do our work. We figure it out, we argue between ourselves, and we can usually reach an agreement on what it [the amount owed] is. And then sometimes the tenant can pay, sometimes we can get rental assistance. Sometimes we can prevent that second unlawful detainer from actually being filed. (Eastern Virginia, Attorney 1)

Investigating and addressing disputes between landlords and tenants over the alleged amounts owed can therefore benefit both parties, but it seldom happens without tenant representation because time discipline silences tenants, their queries of the amounts owed are not treated as sufficient to initiate a formally contested case, and ledgers are not routinely verified for accuracy. This process for establishing whether and how much rent is owed systematically advantages landlords and disadvantages tenants.

Discussion and Conclusion

In this article, we have used legal aid attorneys’ accounts of eviction hearings in Virginia to parse the way that courts determine whether and how much rent is owed by tenants facing eviction. Unlike existing studies of systemic inequalities in eviction courts, we highlight the process of arriving at case outcomes for tenants who arrive in court seeking to contest the charges against them. We use analytic tools from organizational sociology, particularly relational inequality theory (Tomaskovic-Devey and Avent-Holt 2019), to understand the operation of power in eviction cases. We argue that there are three key stages of eviction court hearings in which tenants are limited in their ability to exercise rights because landlords are accorded forms of deference and control unavailable to tenants: scheduling and docket management, determining whether cases are contested and merit a trial, and establishing the amount that is owed. We find that although there is a disconnect between tenants’ legal consciousness and the written and unwritten rules of eviction court, systematic disadvantage extends into the claims-making process through which cases are argued and evidence is evaluated, indicating an underlying hierarchy of credibility (Becker 1967) in which differential status outside the courthouse is reproduced inside the courthouse. Although access to legal aid lawyers mitigates many of the power imbalances between tenants and landlords, we observe a hierarchy of credibility even when tenants attempt to deploy legal expertise by following attorneys’ advice and when tenants are represented by an attorney in court. We conclude by offering reflections on avenues for reform that emerge from the analysis.

Lawyers’ efficacy in the civil litigation process does not primarily rest in their substantive expertise or mastery of relevant statutes and precedents but, rather, in what Sandefur (2015b:909) terms “relational expertise,” which is the ability to help clients navigate courthouse procedures and effectively help courts “follow their own rules.” Our study suggests that the infrequency with which tenants are represented in court may contribute to the systemic disadvantage they face in court by making it more difficult for legal aid attorneys to effectively deploy relational expertise in legal claims-making. The representational advantages that landlords enjoy relative to tenants are institutionalized by their greater ability to build and deploy relational expertise; as one of our participants explained, “Just like a plant, well, when it grows, will bend toward the sunlight, the law bends toward the side that has more lawyers in court more often” (central Virginia, Attorney 4). Finding better ways to keep clerks and judges abreast of relevant statutes and courthouse procedures, particularly during times of statutory flux, could help limit the systemic advantages that accrue to landlords as a class due to unequal representation.

A second implication of our study is that attending to courthouse clerks’ office policies, including case scheduling and docket management practices, could improve access to justice for tenants facing eviction. As other studies have shown, bureaucratic scheduling procedures and the rapid pace at which courts move through their dockets make it difficult for tenants to attend and meaningfully participate in eviction hearings. In focusing on the relational work of producing eviction case outcomes, we show that temporal barriers to justice are not merely by-products of courts’ heavy caseloads and the need to process large dockets with limited resources. Landlords’ attorneys use scheduling, including the authority to make last-minute docket changes, as a tool to routinize cases and benefit their clients. Although some court personnel clearly recognize the potential to use scheduling to support the capacity of local legal aid practitioners, Virginia’s eviction courts fall short in leveraging this available administrative tool to improve access to justice and interrupt the eviction “assembly line” (Sudeall and Pasciuti 2021). Additional research to unpack the perspectives of landlords’ attorneys and other court personnel who do not represent tenants could be a valuable source of information to inform workable solutions to the practical problems of continuing education for nonattorney legal actors and inclusive courthouse administration.

Finally, balancing the scales of justice in eviction cases demands that court personnel and housing policymakers take seriously the reports of legal aid attorneys that there are pervasive and substantial errors in property managers’ assertions of their tenants’ debt levels. When eviction courts fail to penalize incorrect or illegal charges among landlords and when they accommodate landlord attorneys in their efforts to move through a large number of cases without slowing down to look too closely at the evidence behind tenants’ claims that the alleged charges are wrong, they allow the court to operate as a publicly funded debt collection service. The analysis suggests there is a large and unmet legal need for unbiased review of rental debt, which is currently beyond the capacity of Virginia’s legal aid and civil court systems, but the answer to the problem may not rest only in increased access to attorney representation. Residents of poor neighborhoods pay more for the cost of their living quarters relative to the value of the property than other residents, indicating a higher rate of exploitation in their rental relationships (Desmond and Wilmers 2019). Housing policymakers who wish to improve tenants’ access to justice and support the overburdened civil court system should consider ways to address what may ultimately be a symptom of underregulated rental markets. Absent effective consumer protections for renters, the civil justice system will continue to be overburdened with eviction filings that may contain dubious and exploitative charges.