Aug 28, 2020 7:00 AM

To Stop the Eviction Tsunami, We Need Online Chats

Tenants who get dragged to court are often at a disadvantage. But a new system, known as online dispute resolution, gives them a better shot.

Photo-Illustration: Sam Whitney; Getty Images

Ask Todd Nuccio, Iowa’s state court administrator, how the pandemic is going to impact renters, and he’ll tell it to you bluntly: Iowa might soon be staring down an “eviction tsunami.” Across the country, an estimated 32 percent of American households missed their rent payments in July. The number of eviction filings per week is still well below pre-pandemic levels, but depending on whom you ask, 12 million to 29 million renters might be at risk of ending up in court before the end of the year. But Nuccio has a weirdly simple plan to help address this awful tide: He’ll pull tenants and their landlords into an online legal chat.

Nuccio and his team are racing to test the process—known as online dispute resolution, or ODR—in Iowa’s Story County. Here’s one way that it might work: Before a hearing is requested, either a landlord or tenant can register on the state court website to have their case be handled via chat; the other party then gets an invite, and a mediator joins if asked. This way, the eviction isn’t tossed right into the daunting, rapid churn of courtroom hearings; or worse, forced into default.

In Iowa, eviction hearings tend to happen very quickly—eight days after the initial filing, or up to 15 if the tenant asks for an extension. That turnaround is especially cruel in a pandemic, where 10 percent of Americans are out of work and likely lack the financial resources to find a new home right away. Some experts have predicted a 45-percent surge in homelessness.

The standard process also tilts the outcome of the hearings in the landlords’ favor. First, there’s a huge gap in legal fluency. More than 95 percent of landlords and debt collectors show up to court with lawyers, as compared to only 5 to 15 percent of debtors and tenants. The pace of the proceedings, too, puts tenants on their heels, with very little time to learn the law or attempt negotiation. Dozens of tenants will arrive at eviction court each morning, Nuccio said. “Everyone shows up at 9 o’clock, and you have a room full of people, and you go through them one at a time.” The assembly line approach leaves unrepresented tenants especially vulnerable. In the words of public-interest lawyer Hannah E. M. Lieberman, “judgments are entered without meaningful scrutiny of their substantive or procedural correctness.”

Many people facing eviction don’t even make it that far. In California, about 40 percent of cases result in default judgments against the tenant, because they failed to show up at their hearing. In Seattle, that number is 48 percent; in Philadelphia, it’s 54 percent. Not all of these tenants are no-shows because they lack a valid counterargument; in fact, research suggests that a significant proportion of people who get evicted by default may have a worthy, but unused, defense.

Nuccio’s online system could really help. Instead of asking tenants to show up in person, on schedule, at a crowded courthouse, they’re invited to communicate instead through what looks like an advanced version of iMessage, with color-coded chat bubbles for the mediator, the plaintiff, and the defendant. These exchanges don’t need to happen in real time: a harried party can type a message whenever they have a moment free. Judges in Utah, where ODR is used for small claims cases, refer to the platform as “pajama court,” with one noting, “You [can] do it at 2 o’clock in the morning, in your robe, in your slippers, from the comfort of your home.” Another plus is that the system kicks in before anyone has to go to fully-dressed court. If ODR fails, the two parties can proceed to a formal hearing as usual.

The ease of access in this online system could help drive down the number of default judgments, presuming both sides act in good faith. Will it, though? “We don’t have enough long term research to be able to answer that question yet, but intellectually it makes sense to me,” said Danielle Hirsch, a consultant at the National Center for State Courts.

The case for using online legal chats is even clearer when it comes to lower-stakes disputes, such as those concerning traffic tickets. Even when they don’t deserve a ticket, drivers may end up paying to avoid the hassle of an interaction with the courts. “A lot of times people have to sit for a full day to contest their ticket, and a lot of times they don’t contest it,” said Amy Schmitz, a law professor at the University of Missouri who studies ODR.

In states like Michigan, Connecticut, and Arizona, which have been piloting online chats for traffic citations, there is some evidence of better outcomes. In Michigan, an initial estimate found that an ODR system called Matterhorn cut the rate of defaults on traffic tickets from 20 percent to 2 percent. Meanwhile, Utah’s pajama court for small-claims cases has seen rates of default drop from 71 percent to 54 percent.

Over the last several months—and with the possible eviction tsunami looming—more and more localities have started experimenting with ODR for cases involving landlord/tenant disputes. The most comprehensive of these is probably Michigan’s MI-Resolve platform, which launched across the state in July. It has handled about 300 cases so far, so far limited to small claims and certain kinds of low-stakes landlord-tenant disputes, such as the return of a security deposit. The state is planning to expand the platform to take eviction cases in the coming weeks.

Nuccio’s pilot program in Story County, Iowa is building on those ideas. It’s also adding something new, by directing users of the system to community organizations such as Iowa Legal Aid, Story County Legal Aid, and Iowa Community Alliances. These groups can connect distressed tenants with volunteer lawyers, or help them access public assistance programs. In other words, the ODR platform is meant to function something like an eviction diversion program.

“We want the tenants to understand that they do have rights, they do have a defense, but the bottom line is to get at the underlying issues and supply them with the tools to keep their homes,” said Nuccio.

In theory, ODR can shrink the power imbalance between landlords and the tenants whom they’re trying to evict. But the system can only do so much. In one scenario, both parties may get online, but there’s nothing to guarantee that they’ll actually resolve their dispute. In another, landlords who know they have the edge in formal hearings—particularly the ones who are filing large numbers of evictions—could ignore the platform altogether.

These tiny pilot programs can't solve our current crisis. But they might presage a much bigger revamp of an eviction court system that remains inaccessible to the working-class people balancing jobs and childcare that it so often targets. The fact that something as simple as an online chat could help keep people in their homes invites certain, deeper questions: Why do we churn through eviction cases in such high numbers—and so quickly? Why do we make it so difficult for defendants to appear in person? How can it be fair that landlords almost always have lawyers and tenants almost never do?

Imagine an ODR system that, unlike Story County’s, actually required landlords to use it before filing for an eviction. Would a virtual legal discussion, overseen by a mediator or legal aid volunteer (or both), give tenants a fighting chance against some evictions cases? At the very least, it might act as a filter, and a means of keeping the most tractable cases from overwhelming state eviction courts.

“The most exciting thing about ODR is the idea of trying to innovate and change rules to make it easier for all parties," said Hirsch, the consultant for the National Center for State Courts. The online tools could end up as a “Trojan horse that helps modernize courts because you’re thinking about things in a new way.”

Photographs: Serhii Brovko/Getty Images; Steve Proehl/Getty Images