shlep: the Self-Help Law ExPress

A couple days ago, the often-thoughtful Ted Frank, of the American Enterprise Institute, wrote a posting at Point of Law, “The Coase Theorem in action” (Nov. 28, 2006), that was all conclusion and no evidence.  Having read the New York Times article “Only the Strongest Survive” (Nov. 26, 2006), Ted asserts that NY courts are “very pro-tenant” and concludes that the situation has not made tenants better off.  After telling us that many landlords won’t build new housing (despite high rents), decry the six months it can take to evict a tenant, and reject outright any tenant who has a housing court history, Ted concludes:

“Tenants would be much better off ex ante if landlords could trust the court system to resolve disputes fairly and quickly ex post.”

  I’d like to point out that:

• “the court system” is applying laws passed by legislative bodies, based on a long history of landlord abuses (and on the inherent importance of housing to individuals and families, rich or poor), and are not being arbitrarily “pro-tenant” or unfairly anti-landlord
• Neither the typical NYC landlord, nor Ted Frank, has (to my knowledge) supported raising taxes in order to create more judgeships and better courthouse systems and services, which would make the process work more quickly at Housing Court
• Any calculus of whether tenants are better off under the present system must take into account the many ways in which landlords have improved the treatment of their tenants and have been deterred from using their old abusive and neglectful tactics

• the arbitrary rejection of any prospective tenant who has been to Housing Court is perhaps an indication of the general anti-tenant attitude of many landlords — a high-handedness that may help to explain why those who live in rental units need some special legal protection
• an NYT article that focuses mainly on the increasingly draconian credit standards and financial demands of landlords (with examples of people earning $50,000 a year and up) is a slight reed upon which to support a theory on the causes of the NYC housing predicament, much less a blanket attack on New York courts as being too pro-tenant.

   Ted Frank would have us despair, I guess, for the poor tenants of Boston (95% of whom show up without a lawyer in housing court).  Not only has the Harvard Law Legal Aid Bureau started to sponsor pro se eviction clinics “to help low income families fill out answer-and-discovery forms, gather landlord information, and generally build better counterclaims to help them with their case,” but the Massachusetts judiciary has recently released (see our prior post) both a set of guidelines for judges in dealing with pro se parties, and the 81-page e-booklet Representing Yourself in a Civil Case: Things to Consider When Going to Court (MA).  Even more ominous, from the Overlawyered-Franksian perspective, is the news this week from the Boston Globe that the Boston Bar Association has “expanded its ‘lawyer-for-the-day‘ program at Boston Housing Court, in which attorneys give free legal advice to tenants and landlords, to include having lawyers try cases in court.” (“Few chances for lawyers to develop trial skills,” Nov. 29, 2006; via Legal Blog Watch, Nov. 30, 2006) 

Despite Ted’s cautionary tale and theory, I’m pleased that pro se litigants are receiving more and more help in the Housing Court’s of Massachusetts.  Similarly, as a resident of New York State, I’m happy to know that our CourtHelp website has quite a few materials online to help both tenants and landlords prepare for housing cases.  They include:

• Housing (Landlord-Tenant) FAQ
• A Tenant’s Guide to the New York City Housing Court
• A Landlord’s Guide to the New York City Housing Court
• How to Prepare for a Landlord-Tenant Trial 

For most of us, good faith assertion of our rights in landlord-tenant cases makes good sense, despite the NYT horror stories.   Of course, first attempting to resolve a dispute with a landlord or a tenant directly and informally, or through community mediation, is usually better (when there is no immediate emergency or court deadline) than heading directly to court.

p.s.  I hope Ted Frank will help us learn more about the Coase Theorem — at least, why he believes landlord-tenant law in NYC is a good example of the Theorem, and how it applies when landlords have so much more bargaining power than tenants.

  p.p.s  Although my posting yesterday at f/k/a, “the noisy-shower condo lawsuit ain’t sunk yet” (Nov. 30, 2006), isn’t about self-help law, it is about housing, so I’m going to assert Editor’s privilege and point to it.   The cases shows that an irked couple with a lawyer son can bring a pretty silly lawsuit — and, that having a lawyer friend represent you for free doesn’t always bring about a quick resolution.