Introduction
Settlement, or the mutually agreed resolution of a legal dispute between parties without trial, has long been a feature of the United States legal system. Settlement is a common resolution to legal disputes of all kinds, including divorce, injury, discrimination, and criminal cases (Eisenberg and Lanvers Reference Eisenberg and Lanvers2009; Galanter and Cahill Reference Galanter and Cahill1993). The dominant theory explaining the likelihood and terms of settlement is the “bargaining in the shadow of the law” theory (Cooter et al. Reference Cooter, Marks and Mnookin1982; Mnookin and Kornhauser Reference Mnookin and Kornhauser1978), which considers how settlement negotiation occurs outside formal legal contexts but in reference to expected trial outcomes. The theory seeks to explain how settlement terms result from a “private ordering” of bargaining that “occur[s] outside the courtroom” (Mnookin and Kornhauser Reference Mnookin and Kornhauser1978, p. 950, emphasis in original) but in reference to the law. Yet many settlements are negotiated after litigants have filed claims and appeared before judges in courtrooms (Eisenberg and Lanvers Reference Eisenberg and Lanvers2009; Merry Reference Merry1990). How does a litigant’s interaction with the court system shape the settlement process, and with what implications for the theory of bargaining in the shadow of the law?
This article argues that court organizational mechanisms play an undertheorized role in facilitating settlement by funneling litigants – who may not initially be inclined to settle – toward the bargaining table. We theorize courthouse funneling in the context of eviction court. Drawing on a study of a San Francisco Bay Area, California, eviction court, we find that the court’s organizational rules and workgroup norms (Eisenstein and Jacob Reference Eisenstein and Jacob1977; Ulmer Reference Ulmer2019) funnel mostly unrepresented tenants into unregulated hallway conversations with landlord attorneys and participation in the court’s mediation program. Once they find themselves in relational interaction (Clair Reference Clair2020) with legal professionals, tenants are taught the benefits of settlement and the risks of trial, namely the costs associated with enduring a lengthy trial and the 7-year public mark of eviction if they lose. Through these interactions, many tenants also come to recognize their legal culpability – i.e., the fact that legal authorities will hold them responsible for penalizable housing behaviors (such as nonpayment of rent). Even the minority of tenants who have access to tenant attorneys are taught, often by their own lawyers, to prefer settlement for these same reasons. Nonetheless, some tenants in our study report experiencing negative housing consequences from unfavorable settlements, and some choose to settle without fully understanding the consequences of their agreements. Our findings have implications for theories of bargaining in the shadow of the law as well as the role of eviction court in reproducing housing insecurity.
We contribute to theories of bargaining in the shadow of the law by conceptualizing the organizational mechanisms – court rules, workgroup norms, and the professional-client interactions each make possible – that are antecedent to, and shape, the bargaining process. For many litigants who settle, especially those who are marginalized and unable to afford an attorney, “private ordering” is a consequence of the direct presence and power of the state. In the case of eviction settlements, tenants who arrive at the courthouse confused regarding next steps and eager to keep their housing should not be conceptualized as fully informed, rational actors who have already calculated the benefits of settling. Rather, they have to be taught – and even coerced – by legal professionals to prefer settlement, given the costs of trial and their legal culpability. Taught to prefer settlement through the court’s organizational mechanisms, some tenants rationally enter into settlement agreements whereas others more so succumb to the courtroom workgroup’s pressure. Recent iterations of the bargaining in the shadow of the law theory have considered how social norms and folk categories shape bargaining (Crowe et al. Reference Crowe, Field, Toohey, Partridge and McAllister2018; Jacob Reference Jacob1992), and recent transpositions of the theory to the criminal legal context have critiqued the theory for its failure to consider the influence of structural and psychological mechanisms (Bibas Reference Bibas2004; Stuntz Reference Stuntz2004). Complementing these revisions to the theory, our analysis emphasizes how court organizational mechanisms not only shape the bargaining process but, for many litigants, make bargaining possible in the first place.
We also contribute to research on the role of the courts in reproducing housing insecurity. Forced residential displacement is prevalent in the United States (Desmond et al. Reference Desmond, Gershenson and Kiviat2015; Desmond and Shollenberger Reference Desmond and Shollenberger2015; Rossi Reference Rossi1980), and evictions play an important role (Gromis and Desmond Reference Gromis and Desmond2021). Growing research has examined how eviction courts facilitate racialized and gendered forms of housing insecurity (Hepburn et al. Reference Hepburn, Louis and Desmond2020; Howell and Teresa Reference Howell and Teresa2022) through legal procedures such as settlement agreements (e.g., Fleming-Klink et al. Reference Fleming-Klink, McCabe and Rosen2023; Summers Reference Summers2023) that advantage landlords over tenants (Fleming-Klink, McCabe, and Rosen 2019; Hanley et al. Reference Hanley, Howell and Teresa2024; Kepes and Kempler Reference Kepes and Kempler2024; Sabbeth Reference Sabbeth2022; Sudeall and Pasciuti Reference Sudeall and Pasciuti2021). However, less research has examined the organizational mechanisms that teach tenants to consent to settlements.
Our observations and interviews reveal how preferences toward settling in eviction court are organizationally accomplished. While tenants are taught the costs of trial and the benefits of settlement, the terms of most settlements nonetheless facilitate eventual removal. When tenants violate the terms of binding settlement agreements, landlords become empowered to call on the state to remove them with little notice. In this way, settlements facilitate removal through agreed-upon terms and with greater efficiency than trial. Adding to debates about the value of legal representation in eviction court (Brodie and Bowman Reference Brodie and Bowman2023; Cassidy and Currie Reference Cassidy and Currie2023; Engler Reference Engler2010), our analysis suggests that, given the funneling effect of court rules, workgroup norms, and professional-client interactions, increasing tenant legal representation would likely do little to reduce settlement rates.
Bargaining in the shadow of the law
Mnookin and Kornhauser (Reference Mnookin and Kornhauser1978) established the core theoretical idea that bargaining toward settlement unfolds in reference to laws and anticipated trial outcomes, even if disputing parties never go to trial or set foot in a courthouse prior to their settlement being “rubber stamp[ed]” by a judge (Friedman and Percival Reference Friedman and Percival1976, p. 270 as cited in Mnookin and Kornhauser Reference Mnookin and Kornhauser1978). The metaphor of bargaining in the shadow of the law was meant to suggest that privately negotiated settlements were nonetheless structured by legal expectations and constraints, such as – in the case of divorce – marital property law, alimony law, and child-support law (Mnookin and Kornhauser Reference Mnookin and Kornhauser1978, p. 959). Early articulations of bargaining in the shadow of the law suggest that litigants have an a priori incentive to settle, given the costs of proceeding to trial, and that settlement terms result from a bargaining process over a distribution of the stakes in a legal dispute. Litigants are likely to settle, rather than go to trial, when the negotiation process results in a settlement that optimizes each parties’ interests compared to the costs and expected outcomes of trial (Cooter et al. Reference Cooter, Marks and Mnookin1982). While assuming informed, rational behavior by both parties, Mnookin and colleagues’ theory recognized that varying levels of risk aversion, urgent needs for resolution, and other individual-level factors could make settlement more or less likely (Mnookin and Kornhauser Reference Mnookin and Kornhauser1978; Cooter et al. Reference Cooter, Marks and Mnookin1982; see also Crowe et al. Reference Crowe, Field, Toohey, Partridge and McAllister2018).
Recent elaborations of the theory have developed in two main directions. In one line of theoretical extension, scholars have shown how bargaining – and the settlements it produces – is shaped not just by formal law but also by informal law as well as society-wide social norms. For instance, Crowe et al. (Reference Crowe, Field, Toohey, Partridge and McAllister2018), suggest that informal sources of “folk law,” such as online sources and advice from friends, frame bargaining choices. With respect to society-wide social norms, Jacob (Reference Jacob1992), drawing on interviews with people who had filed for divorce, found some – especially those with lawyers and who framed their problems in a legalistic way – negotiated in the shadow of the law, whereas others negotiated in the shadow of social norms about parenthood and gender roles. Similarly, in her study of workers seeking job-protected leave, Albiston (Reference Albiston2005) shows how negotiations over contested leave are shaped not just by law and legal requirements but also by hegemonic cultural schemas of what it means to be a good worker.
The second line of theoretical extension has been in the context of criminal law, where socio-legal scholars and criminologists have sought to transpose the shadow of the law metaphor to explain criminal plea bargaining (see, e.g., Bushway and Redlich Reference Bushway and Redlich2012; Bushway et al. Reference Bushway, Redlich and Norris2014; Petersen, Redlich, and Norris Reference Petersen, Redlich and Norris2022). While criminologists have found empirical support for the theory’s prediction that a defendant’s likelihood of pleading guilty (i.e., settling) is shaped by expected trial outcomes, studies have also suggested that psychological biases may impact rational decision-making among defendants, accounting for individual-level deviations from the model (Petersen et al. Reference Petersen, Redlich and Norris2022). Socio-legal scholars have suggested that the shadow of the law theory may not be easily applied to the criminal legal context not just because of psychological distortions but also because of structural ones. In addition to factors such as overconfidence, loss aversion, and denial (which could also apply in civil contexts), Bibas (Reference Bibas2004) argues that structural factors, such as bail rules and sentencing guidelines, also distort bargaining away from the shadow of the law. In addition, Stuntz (Reference Stuntz2004) argues that criminal plea bargaining is distinct from civil bargaining because prosecutors can choose from a menu of charges to achieve their goals, such as winning elections and professional advancement, which have little to do with the law or optimizing distribution of the stakes. Meanwhile, drawing on a survey of public defenders, Wright et al. (Reference Wright, Roberts and Wilkinson2020) argue that while some public defenders report bargaining in the shadow of expected trial outcomes, others report striving to bargain in the shadow of their clients’ needs. While classic elaborations of the bargaining in the shadow theory recognize the role attorneys can play in facilitating negotiations (e.g., Mnookin and Kornhauser Reference Mnookin and Kornhauser1978, pp. 985-7), Wright et al. (Reference Wright, Roberts and Wilkinson2020) suggest that, rather than leading clients toward the law’s shadow, defense attorneys can also follow clients away from the law’s shadow.
While both extensions of the bargaining in the shadow of the law theory have helped to clarify the theory’s explanatory value in predicting settlements in certain contexts and have highlighted structural and psychological factors that shape – or altogether distort – rational bargaining, missing is an explanation of how people arrive at the bargaining table in the first place. The explanation of why people begin to bargain is not obvious, especially in civil legal contexts, where ethnographic studies have shown that plaintiffs and defendants alike often come to court expecting to take their case to trial (Bezdek Reference Bezdek1991; Merry Reference Merry1990; Nelson Reference Nelson2021). Although the bargaining in the shadow of the law theory presupposes that rational litigants would a priori desire to bargain toward a settlement (see, e.g., Cooter et al. Reference Cooter, Marks and Mnookin1982, p. 228), existing evidence from the literature reviewed above on psychological biases, structural constraints, and folk law during the bargaining process would suggest that marginalized people without initial access to lawyers and/or with limited knowledge about the legal process may not have an initial inclination to bargain even if they are rational. In other words, they must be taught that bargaining toward a settlement not only is common but also could be to their immediate benefit.
Bargaining in the courthouse: organizational mechanisms
We draw on court organizational theories to conceptualize how litigants who arrive in court could be taught to prefer settlements and examine the organizational mechanisms that bring them to the bargaining table. Court organizational theories have largely been developed in the context of criminal courts (Ulmer Reference Ulmer2019), where plea bargaining is common. Yet even in the criminal plea bargaining context, few studies engaging directly with the shadow of the law theory have considered how organizational mechanisms shape defendants’ plea bargaining decisions (e.g., Bushway and Redlich Reference Bushway and Redlich2012; Bushway et al. Reference Bushway, Redlich and Norris2014). Meanwhile, scholars who have deeply theorized organizational mechanisms in the criminal context, such as courtroom workgroup norms, have rarely considered how their insights could inform bargaining in the shadow of the law’s theory of litigant decision-making (e.g., Lynch Reference Lynch2016). And in the civil bargaining context, scholars have largely ignored possible organizational mechanisms that shape (and could precede) litigants’ approaches to bargaining, given the dominance of law and economics perspectives that privilege individual-level or society-wide normative mechanisms, such as rational calculation and – to a growing extent – psychological biases and the influence of folk law (e.g., Crowe et al. Reference Crowe, Field, Toohey, Partridge and McAllister2018; Jacob Reference Jacob1992).
For litigants who have entered a courthouse, two organizational mechanisms likely inform their decisions to bargain and their experiences while bargaining: (1) courtroom workgroup rules and norms; and (2) relational interactions with legal professionals. Court rules, or written policies and procedures, serve as a shared reference point for legal professionals’ decision-making and justifications for their actions. Yet legal rules can be ambiguous and leave room for discretion (Clair, Reference ClairForthcoming). Thus, legal norms, or informal but shared expectations about case processing, also structure the operation of courtrooms and can explain variation in average legal outcomes within courthouses and between court jurisdictions, even when rules are the same. Legal professionals who routinely work together develop legal norms.
Eisenstein and Jacob (Reference Eisenstein and Jacob1977) conceptualized the “courtroom workgroup” as a routine group of legal professionals within courtrooms who share a common task environment. Although workgroup members are influenced by their sponsoring agency’s distinct goals (e.g., defense firms, prosecutor’s offices, legal aid organizations), ostensibly adversarial members of the workgroup come to share goals and prefer negotiation over adversarialism. While research on courtroom workgroups has typically been leveraged to explain variation between courtrooms and court jurisdictions, the notion that legal professionals collectively establish norms that set the tone, expectations, and experience of a courtroom is central to organizational perspectives on criminal courts (Ulmer Reference Ulmer2019). In the eviction court context, tenant attorneys, landlord attorneys, mediators, and the judge/commissioner are the core members of the workgroup. These professionals share an understanding of various legal constraints and of the benefits of settlement in their specific court context even if they disagree about the fairness of settlement (see Ostrom et al. Reference Ostrom, Ostrom, Hanson and Kleiman2007), as we will show.
Courtroom workgroup norms around typical bargaining practices could inform legal professionals’ efforts to guide litigants through the legal process. While court rules and norms are exclusively shared within the workgroup, legal professionals may explain rules and norms to litigants when providing legal advice. Indeed, recent scholarship that applies relational theories of organizational inequality (e.g., Tomaskovic-Devey and Avent-Holt Reference Tomaskovic-Devey and Avent-Holt2019) to the courts (Clair Reference Clair2020) has examined how professional-client interactions – not just interactions among workgroup members – shape court outcomes. Clair (Reference Clair2020) theorized how the attorney–client relationship constitutes and reproduces inequality. Attorney–client interactions over the course of a legal case are imbalanced with respect to power and legitimated forms of knowledge, and they shape the kinds of rewards or sanctions a litigant receives throughout the process (Clair Reference Clair2020, pp. 21–2). Such rewards or sanctions often hinge on whether and how lawyers explain rules and norms to their clients. While the attorney–client relationship is, perhaps, the principal professional–client relationship when it comes to litigation, litigants encounter other legal professionals, such as opposing counsel, judges, clerks, investigators, and mediators (see Berrey et al. Reference Berrey, Hoffman and Nielsen2012; López-Espino Reference López-Espino2024). These other relationships, which are typically encountered in courthouse settings, provide an opportunity for legal professionals to teach litigants. Thus, relational theories suggest that interactions with multiple legal professionals in court – not just their lawyers outside court, as bargaining in the shadow of the law theory already suggests – could inform the bargaining process. The term courthouse funneling refers to the process by which these court organizational mechanisms – norms, rules, and professional-client interactions – collaborate to guide litigants toward settlement.
The case of eviction court settlements
As in other legal settings, settlements are common in eviction disputes. Scholars studying evictions typically view settlements as a legal procedure that advantages landlords over tenants. In eviction disputes, a settlement agreement is a negotiated contract that both the tenant and landlord must follow to ensure resolution (usually dismissal) of the case. Tenants must comply with the terms of the agreement or otherwise face removal. Summers (Reference Summers2023) finds that most settlement agreements in an eastern Massachusetts jurisdiction resulted in coercive conditions, whereby the tenant’s eviction is “stayed conditional on the tenant’s compliance with certain terms for a period” (p. 851). If the landlord alleges that the tenant did not comply, the tenant faces “an expedited eviction process that operates through a motion to issue execution” (p. 852). In our study, this expedited eviction process is procedurally called an ex parte writ of possession, which is an order that allows the sheriff to remove the tenant from the property (or prevent reentry) with little notice. While such agreements are often worked out within courts and receive formal judicial endorsement, they have been described as part of a “shadow legal system” (Summers Reference Summers2023) because they allow for alternative procedural and substantive practices that expand landlord power over tenants.
“Shadow,” as used here, evokes an altogether different metaphor than in the bargaining in the shadow of the law theory. Rather than a metaphor for the influence of the law in structuring bargaining that occurs in the private sphere, the term “shadow legal system,” when used by eviction court scholars, is a metaphor for bargaining that occurs without the oversight of – and, perhaps, without clear or consistent reference to – the law. Such shadow bargaining can occur in the private sphere (and prior to court proceedings) or in the public sphere (and alongside formal court proceedings). For instance, drawing on observations in an eviction court in Baltimore, Maryland, Fleming-Klink et al. (Reference Fleming-Klink, McCabe and Rosen2023) document how agreements are negotiated outside the formal courtroom and “without court oversight” (p. 234) but within other rooms in the courthouse. Settlements are so common, they argue, because they are efficient; they “free up time and space in the courtroom” (Fleming-Klink et al. Reference Fleming-Klink, McCabe and Rosen2023, p. 235), allowing the court to process more cases (see also Kepes and Kempler Reference Kepes and Kempler2024).
While this article considers the case of settlements that occur after an eviction case has begun to proceed through court, settlements can also occur prior to, or alongside, eviction case filing. Landlords can use filing as a tactic to compel compliance without setting foot in court. Serial filing – or, repeatedly filing to evict a tenant – is used to compel payment of rent by transforming the landlord–tenant relationship into a creditor–debtor relationship (Garboden and Rosen Reference Garboden and Rosen2019). In other words, landlords – especially in jurisdictions where there is a low cost to filing (Leung et al. Reference Leung, Hepburn and Desmond2021) – use the legal threat of eviction as a strategy to compel payment and collect late fees. Rather than forcing a tenant to move, filing enables landlords to coerce tenants into payment plans or other schemes “outside the boundaries of the lease” (Garboden and Rosen Reference Garboden and Rosen2019, p. 651) on the promise that the landlord does not further pursue their legal claim in court. In this way, filing can compel settlement prior to court proceedings. Moreover, default judgments occur when a tenant does not appear and the court summarily awards judgment of possession to the landlord (Summers and Steil Reference Summers and Steil2025).
But how is settling accomplished once a filing is transformed into a court hearing and a tenant appears in court in response to a summons? Bargaining in the shadow of the law theory would predict that a tenant will immediately recognize the benefits of bargaining toward a settlement; however, eviction court studies have shown that tenants who appear in court expect a trial and an opportunity to present various defenses in front of a judge, especially given the high stakes of losing one’s housing. Bezdek (Reference Bezdek1991) describes how disproportionately poor Black women tenants in Baltimore arrive in court expecting to litigate their habitability claims but are quickly silenced by judges who frame hearings as determinations of nonpayment and delegitimate tenants’ “relation-oriented accounts” (Conley and O’Barr Reference Conley and O’Barr1990) of their housing troubles. In his study of tenants in Los Angeles, Nelson (Reference Nelson2021) argues that “interpretive disjuncture” – a disconnect between everyday people’s and bureaucrats’ interpretations – contributes to tenants’ contrary understandings of their housing troubles and their positionality in the legal process (e.g., as plaintiffs seeking habitable conditions rather than as defendants responding to an eviction notice). In short, tenants appearing in court “expect their case to be litigated” (Sudeall and Pasciuti Reference Sudeall and Pasciuti2021, p. 1391).
Building on existing qualitative studies of eviction courts (Fleming-Klink et al. Reference Fleming-Klink, McCabe and Rosen2023; Hanley et al. Reference Hanley, Howell and Teresa2024; Sudeall and Pasciuti Reference Sudeall and Pasciuti2021), we detail the organizational mechanisms that funnel tenants to the bargaining table and, ultimately, increase the likelihood of settlement by teaching tenants to prefer it. As we will show, court rules and workgroup norms funnel tenants into bargaining processes – sometimes in coercive ways, as when landlord attorneys approach unrepresented tenants prior to the start of court hearings. Rules and norms also funnel tenants into mediation programs, where more bargaining can occur with settlement as the end goal. Relational interactions with legal professionals teach tenants to recognize their relative disadvantage (see Hanley et al. Reference Hanley, Howell and Teresa2024), the costs of trial, and their legal culpability. Beyond the costs associated with returning to court and enduring a lengthy legal process (see Clair et al. Reference Clair, Orozco and Zhang2025; Kohler-Hausmann Reference Kohler-Hausmann2018), the costs tenants are told result from losing at trial in our setting include: a 7-year mark on their public record, a 5-day window for move-outs following an adverse ruling, and the same 5-day timeframe to repay any damages (such as back rent owed) after the court’s decision. As we will show, tenants who appear in court are taught to perceive the risks and costs associated with trial as unavoidable, especially if they are a “race-class subjugated” person (see Soss and Weaver Reference Soss and Weaver2017) living in insecure housing situations (Hwang et al. Reference Hwang, Gupta and Shrimali2021) and likely to be burdened by court costs. Ultimately, most tenants in our sample – even those initially eager to contest their cases and those with access to a lawyer – bargain toward a settlement, which they come to perceive as a legitimate mechanism for resolving their housing troubles.
Research design
Case: a San Francisco Bay Area, California, eviction court
We examine organizational mechanisms in one Bay Area, California, eviction court. Between 2007 and 2016, an average of over 2 percent of residents faced the threat of eviction annually in the United States (Graetz et al. Reference Graetz, Gershenson, Hepburn, Porter, Sandler and Desmond2023; Desmond et al. Reference Desmond, Gromis, Edmonds, Hendrickson, Krywokulski, Leung and Porton2018). Compared to most states, California has more tenant protections (Hatch Reference Hatch2017) and has a lower eviction filing rate (Desmond et al. Reference Desmond, Gromis, Edmonds, Hendrickson, Krywokulski, Leung and Porton2018), though there is wide variation within the state. In 2019, California passed the Tenant Protection Act, which limits annual rent increases and requires that landlords have “just cause” to evict tenants (California Tenant Protection Act of 2019). Overall, with respect to filing rates and local policies, the Bay Area is slightly more favorable to tenants than other parts of the state. While we do not disclose the specific county where our study took place (to protect the identity of respondents), the county has a lower eviction filing rate than the state average. Considering the relatively stronger tenant protections in our case, this study may be particularly informative for evaluating why tenants, even those with relatively greater leverage, nonetheless settle.
While our jurisdiction offers certain tenant protections, many features of this study’s eviction court appear similar to those observed in studies of eviction courts elsewhere. For instance, legal representation in our setting is similar to representation rates across the country. While some urban jurisdictions have begun to implement universal access to counsel in eviction proceedings (see Ellen et al. Reference Ellen, O’Regan, House and Brenner2021), fewer than 5 percent of tenants on average have legal representation in the United States. Meanwhile, 83 percent of landlords are represented (National Coalition for a Civil Right to Counsel 2024), and landlords without lawyers often have agents appear on their behalf (see Bezdek Reference Bezdek1991; Sudeall and Pasciuti Reference Sudeall and Pasciuti2021). Administrative data on all unlawful detainer cases (i.e., eviction lawsuits) filed in August 2022 in this study’s eviction court show that tenants were represented in just under 4 percent of cases (on file with authors). Represented tenants in our setting typically retain counsel through local legal aid services, which serve low-income residents by providing free full or partial representation.
In addition, cases in our jurisdiction were similar in kind and outcome to those in other jurisdictions. Most cases in the court under study appeared to involve nonpayment of rent (see Gromis et al. Reference Gromis, Fellows, Hendrickson, Edmons, Leung, Porton and Desmond2022), but other types of cases included breach of lease terms (i.e., behavioral violations) or illegal activity on the premises. The outcomes of cases in our jurisdiction also appear similar to those in other jurisdictions. In the same August 2022 administrative dataset described above, nearly 70 percent of cases had resulted in default judgments by August 2024 when we pulled the data. Defaults often occur because a tenant faces barriers to attending court and/or interpretive misunderstandings of a legal summons (see Nelson Reference Nelson2021). When tenants do arrive in court, settlement is the most common final case outcome. By August 2024, just over 8 percent of the August 2022 cases had settled, nearly 4 percent had been dismissed or resolved with summary judgment, and about 1 percent had gone to trial. Another 4 percent of cases had been purged from the system, which include cases with undisclosed resolutions. The rest of the cases (13 percent) were still active 2 years after they were initially filed.
In California, certain legal proceedings can be presided over by commissioners, and a commissioner presides over the eviction court in our study. Commissioners are similar to judges, but unlike judges they are appointed (rather than elected), act in a temporary capacity, and can hear only certain types of cases. Litigants must technically stipulate, or agree, to have their case adjudicated by the commissioner before their proceeding. They are not given advance notice that their case will be heard by a commissioner, and if they desire to be heard by a judge, they must reschedule depending on the availability of the lone judge who presides, less frequently, over eviction cases in that courtroom. During the period of observation, all the proceedings we observed were presided over by one commissioner whom we refer to using the pseudonym Commissioner Stewart (all names are pseudonyms).
Data and methods
Six researchers conducted ethnographic observations and in-depth interviews, and all data collection procedures received IRB approval. With respect to ethnographic observations, the first author conducted most observations but was assisted by four other researchers: the second author and three undergraduate research assistants. We conducted 58.5 hours of observations in and around the eviction courtroom mostly from October 2021 to April 2022 and again in April 2023. Eviction court was held every Wednesday morning in a single courtroom with a 9 a.m. calendar start. We often arrived 1–2 hours before the calendar began to observe bargaining before the court session. If the court had an influx of cases or needed additional time for trials, it would schedule Monday or Friday proceedings for the overflow. The few times we observed Friday proceedings, we found they were similar to Wednesday proceedings. We were also told by court personnel that “the bulk” of cases are called on Wednesdays (Fieldnotes, 11/2021). As a result, we focused on observing court on Wednesdays. We varied our arrival time on Wednesdays to ensure our fieldnotes captured the range of events that could occur in court in relation to eviction proceedings.
Our focus on bargaining and settlement emerged inductively. Starting in October 2021, during our first day of observation, we were struck by the prevalence of negotiations between unrepresented tenants and landlord attorneys. In the hallway just outside the courtroom, we observed multiple landlord attorneys speaking with unrepresented tenants and advising them about various kinds of agreements they could pursue. During that first visit, we did not even make it inside the courtroom. Instead, we spent an hour observing the rhythm of bargaining in the courthouse hallway. As we continued our ethnographic observations, we paid close attention to the organizational mechanisms – both in the hallway and inside the courtroom – that appeared to funnel clients into settlement agreements.
After reaching saturation on observed court processes and reviewing existing literature on eviction settlements (see Tavory and Timmermans Reference Tavory and Timmermans2014), we sought further insight into how various court actors in our site understood bargaining toward settlement. We returned to the courthouse again in August 2024 to collect the administrative data on unlawful detainer cases described above. These data were manually collected from courthouse computers in the court clerk’s office. In this administrative setting, we informally interacted with tenants and observed their engagement with court staff for about 20 hours, which helped to deepen our understandings of organizational mechanisms. However, we did not take systematic fieldnotes of these 2024 observations and therefore do not include them in our analysis of the 58.5 hours in the field in 2021, 2022, and 2023. While observations in both periods afforded us some insight into various actors’ subjective understandings (especially when we spoke informally to people), in-depth interviews were needed to provide additional data about norms and perceptions (see Lamont and Swidler Reference Lamont and Swidler2014). To gain a more systematic account of people’s understandings, we purposively sought interviews with tenants, landlords, and housing attorneys.
Interviews took place from October 2022 to November 2023. The first author and an undergraduate research assistant conducted interviews with 40 respondents. We recruited tenants and landlords by flyering around the courthouse, calling numbers listed on publicly available leases with eviction cases filed or resolved over that period, and snowball sampling after each interview. We interviewed 14 tenants and 10 landlords from diverse backgrounds (see Table 1). Only two of 14 tenants in our sample retained legal counsel at some point during their current case. Tenants in our sample were mostly low-income people of color, which aligns with demographic characteristics in existing studies. Given the racialized nature of eviction courts, we indicate the race of litigants and courtroom actors throughout our findings for illustrative purposes, even though we do not make claims about racial differences. We recruited housing attorneys by email and in court. We interviewed 16 housing attorneys (4 landlord attorneys and 12 tenant attorneys). A substantial proportion of eviction cases in the courthouse were handled by the same landlord attorney (whom we interviewed), and two legal aid organizations represented most of the represented tenants (we interviewed at least two attorneys from each). Overall, our sample captures the range of people central to the bargaining process in our setting, except for mediators. Our analysis of the role of mediators comes from our observations and our interviews with other actors – a limitation we consider in our findings and discussion sections.
Table 1. Summary characteristics of respondents (N = 40)
The median interview lasted 53 minutes and focused on respondents’ experiences with the court process and settlements. In interviews with tenants, we began by asking where they lived and how they came to rent the property. Then we asked about their current or recent case in eviction court. This article focuses on their responses to questions related to lawyers, mediators, decisions to bargain, the pros and cons of settlements, and the perceived fairness of their settlement. In interviews with housing attorneys, we asked broader questions about their approaches to, and norms around, eviction court proceedings, bargaining, and settlement. We probed for specific examples from past or current clients and cases.
The first author systematically coded the interviews and fieldnotes. The first author began by reading the interview transcripts and fieldnotes to develop a thematic memo. The first author then hand coded the data based on a set of preliminary codes. After meeting with the second author to discuss the memo and possible codes, the first author drafted a codebook. The second author revised the codebook, and both authors came to a consensus (see Weston et al. Reference Weston, Gandell, Beauchamp, McAlpine, Wiseman and Beauchamp2001) about the appropriate codes that would allow us to examine the organizational mechanisms that funnel people to bargain toward settlement. The first author then systematically coded fieldnotes and interviews in NVivo.
Findings
Organizational funneling toward bargaining
Court rules and workgroup norms funnel tenants into two situations that bring them to the bargaining table: (1) informal hallway conversations with legal professionals; and (2) the court’s mediator program.
When a tenant arrives to court, they often wait in the hallway. While court sessions are typically scheduled to start at 9 a.m., the commissioner frequently began 30 minutes to an hour later. Meanwhile, landlord attorneys often begin to arrive around 8:15 a.m. and tenants, soon after, at 8:30 a.m. Given these arrival times, there is ample opportunity for landlord attorneys to speak to clients, most of who are without a lawyer and nervous about their impending hearing. As members of the courtroom workgroup, lawyers use hallway interactions to educate and guide tenants toward settlement.
Each morning begins with what attorneys call the “cattle call,” when landlord attorneys quickly read off the names of tenants until one approaches and engages with the landlord attorney’s initial settlement offer (Fieldnotes, 10/2021; 1/2022). The “cattle call” resembled attendance calls in primary school: unabashed and quick (Fieldnotes, 10/2021). Landlord attorneys often occupied different corners of the courthouse atrium, their voices frequently overlapping and creating a cacophony of names (Fieldnotes, 10/2021). We routinely observed landlord attorneys initiating conversations with unrepresented tenants. This practice was so common that, at times, landlord attorneys would unintentionally begin conversations with represented tenants, which the State Bar of California prohibits (California Rules of Pro. Conduct. r. 4.2). For example, we observed two represented tenants, an Asian couple, respond to their name being called by a landlord attorney and subsequently engaging in negotiations (Fieldnotes, 11/2021). After several minutes, the tenants mentioned their attorney, prompting a reaction from the landlord attorney, who abruptly declared that they could no longer speak until the tenants’ attorney arrived. (Fieldnotes, 11/2021). More typically, as most tenants were unrepresented, the landlord attorney would continue conversations in different corners of the hallway, taking the time to prepare the tenant to understand the concept of a settlement (Fieldnotes, 1/2022).
Tenants were often open to these conversations, because they were unfamiliar with the courthouse and unlawful detainer procedures (e.g., Interview with Diego, 11/2023). We observed Pete, a White landlord attorney, approach Rosa, a Latina tenant, asking if she wanted to “sit down and chat” (Fieldnotes, 10/2021). Pete proceeded to describe the unlawful detainer process, defining terms such as “restitution of possession” and detailing many of Rosa’s options. “If you wanted to discuss some kind of payment plan, we could do that,” Pete explained, “but we’re here today just to get a judgment. If that’s something you want to do, I think that’s something you should do” (Fieldnotes, 10/2021). Pete continued to explain to Rosa that she could sign the settlement agreement in that instance:
Pete (landlord attorney): Once we get this judgment, this is the document that goes to the sheriff. They’ll put a notice on the door, and they’ll put a lock on the door. You can ask the court for an extension […] So, if you want to leave here with a copy, the best way is to take a picture on your phone right now.
Rosa (tenant): Yeah, no worries.
Pete (landlord attorney): And then we’ll mail you the official copy. As soon as the judge gets here, I’ll call you up. I’m just going to ask if you read this, understood it, and if you have any questions. And you’ll say that you read it and understood it and don’t have any questions, and we’ll get you out of here.
Landlord attorneys like Pete can efficiently secure settlements and lockouts by explaining agreements as both beneficial and integral to the logistics of eviction court. Pete suggested that Rosa participate in pursuing a judgment that day, rather than moving to go to trial or for additional time. He advised a settlement agreement as the method of receiving the judgment. Further, he directly instructed Rosa to tell the judge that she understands the agreement and not to ask any questions. Pete portrayed settlement as a quick way to “get you out of here.” On another occasion, Pete told a tenant that “the judge likes for us to work it out before trial, so we don’t waste time.” (Fieldnotes, 11/2021). Pete’s statement highlights the shared objective of the courtroom workgroup. The commissioner actively encourages settlement agreements on and off the record, and Pete acts in concert, reflecting a shared understanding that settlements promote efficiency. These instances reveal how some unrepresented tenants come to settle in the hallway with little resistance and in furtherance of the workgroup’s shared goals.
At other times, the process of beginning the conversation about settlement could be tense and involve coercion. Some tenants were initially resistant. For instance, we observed Scott – a tall, White landlord attorney whom a courtroom deputy told us handles two-thirds of the cases in this eviction court (Fieldnotes, 1/2022) – arguing loudly in the hallway with a tenant one day (Fieldnotes, 11/2021). An excerpt from our fieldnotes documents that exchange:
Scott (landlord attorney) begins arguing with [someone] who sounds [as if they might be] a woman. She’s telling him that she won’t sign a stipulation agreement until the case is dismissed. Scott says that the case won’t be dismissed against her until she signs the agreement.
“I’m not making that sacrifice!” she affirms.
Scott tries to explain that’s it’s not a sacrifice, both his client and her want to find a middle ground, and it will benefit both parties. He reiterates that he can’t dismiss the case until she signs the agreement.
Scott struggled to get the tenant to consent, and it was not unusual for us to observe raised voices between unrepresented tenants and landlord attorneys in the hallway (e.g., Fieldnotes, 4/2022). Ashley, a White tenant attorney, explained how hallway negotiations pressure clients to begin bargaining toward a settlement (Interview, 11/2022): “[W]ith a landlord attorney wanting really bad terms…and the tenant feeling a lot of pressure because they either make this decision to settle or mediate their case or they go to trial and potentially lose,” tenants often only see one viable option: settling.
The court’s formal use of mediators also funnels tenants into bargaining toward a settlement. On its website, the court offers “self-help” resources to landlords and tenants, including formal encouragement to use mediation to “work out an agreement” (county website page on file with authors). Most tenants in court, however, do not appear to initially know about mediation. But once inside the courtroom, they are told that mediation is available (Fieldnotes, 4/2022). Commissioner Stewart, a White man with a stern voice, often starts each court session by pointing out the mediators present. Most mediators are part of a non-profit organization with offices in several Bay Area counties (non-profit website page on file with authors). The non-profit has a stated mission of facilitating housing disputes and fostering housing equality. At the start of court, Commissioner Stewart often reads a description of the mediators and their organization (Fieldnotes, 11/2021). Most days, two to four mediators are present. These mediators are not lawyers, nor do they have formal training in eviction law. Rather, the mediators are volunteers and, according to the commissioner’s attestations, a confidential, neutral third party that can assist with finding a middle ground and drafting up settlement agreements to take before the court. If the commissioner strongly suggests or orders that parties participate in mediation, a mediator will rise out of their seat and usher the parties out of the courtroom and back into the hallway (e.g., Fieldnotes, 4/2023).
Through the commissioner’s formal pronouncements about the mediation program, tenants observing others’ cases from the gallery may learn that mediation is a legitimate pathway to resolving their case – and one that the commissioner favors. Mediators sometimes introduce themselves to tenants in the hallway before the calendar begins. One morning before court, a mediator shouted in the hallway “[l]adies and gentlemen, we will have a lot of mediators here today! Our mediators are free, and I’m one of them, so let me know how I can help” (Fieldnotes, 11/2021). Moreover, in individual cases, the commissioner often recommends mediation, teaching tenants and landlords alike the benefits of settling. In one preliminary hearing, the commissioner began by describing the mediation program (Fieldnotes, 10/2021):
I want to have a quick conversation with you about mediation. I know you both don’t have a lawyer. This court offers a free, confidential mediation program. Our mediators are present in the court. They are here to help you navigate today’s proceedings and potentially help you find a resolution or a settlement. These cases can be very complex. They will step out into the hallway with you and talk with you to see where you are and if you might be able to settle the case and end the case.
Here, the commissioner encouraged two unrepresented parties to engage in mediation, encouraging both the tenant and the landlord to recognize the value of mediation as a form of resolution.
The commissioner further suggests that mediators are just as useful as lawyers in resolving housing troubles but without the financial cost. He said (Fieldnotes, 10/2021):
Lawyers spend thousands of dollars on people just like this. [The mediators are] here free, and I would advise you take advantage of it. I’m recommending it for good reason. It won’t take you long. It will be well worth your time to take just a few moments to step outside and speak with our mediators.
With formal encouragement from the court, many tenants do not believe they have an option other than to follow the court’s instructions to bargain with the help of mediators. Among the tenants we interviewed, a few reported, without us explicitly asking them, that they felt the commissioner encouraged them to settle (e.g., Interview with Roberto, 2/2023). Similarly, an Asian landlord named Ren shared that the commissioner first instructed him to settle with his tenants. Ren explained that the court told him “you [would] rather just settle the case. Do not go to the trial…If you go, who knows if it’s going to be a win or not” (Interview, 2/2023).
Even when a landlord was represented, the commissioner would suggest mediation as an option, especially if efforts to work out a settlement prior to the hearing were unsuccessful. We observed Federico, an unrepresented Latino tenant, alongside an Asian landlord represented by Scott, the landlord attorney described above. Federico expressed a desire to be heard by the commissioner even after the commissioner suggested the parties settle (Fieldnotes, 10/2021). He did not want to go to mediation. The commissioner replied that it would be in Federico’s “best interest” to speak with a mediator: “Before I say anything, why don’t you talk to a trained specialist…it would probably be in your best interest because you don’t know how I will decide” (Fieldnotes, 10/2021). In many instances such as this one, the commissioner emphasizes the risk inherent to the litigants in relying on formal adjudication.
The commissioner can also compel parties to mediate through formal court order. One morning (Fieldnotes, 2/2022), we observed the commissioner order mediation for two unrepresented parties in disagreement:
I reviewed both sides. Both sides have a problem, and I’m not judging this case one way or another, but I think that both of you would benefit from talking to a mediator…I think a settlement is likely possible and you would be in a better situation if you were willing to talk to a mediator. Ms. Terry [tenant], are you willing to talk to a mediator? Cause if you are, I’m going to make it an order.
The commissioner continued to emphasize to Ms. Terry, a White woman, as well as the landlord, an Indian man, that they should meet with the mediators to settle before their trial date. He instructed them to “call [the mediators’ number] no later than noon today,” because “[the parties] need to get this [settlement] done” (Fieldnotes, 2/2022). Commissioner Stewart even told the parties that there would be “issues that would come forth if the case goes to trial,” implying that bargaining toward settlement is the optimal route (Fieldnotes, 2/2022). We observed the commissioner applying similar pressure to attorneys. In one instance, immediately after calling a case, he asked a landlord attorney whether they had time to settle (Fieldnotes, 2/2022). When the attorney, an Asian woman, replied that she had tried many times to bargain with the tenant, but that he would be willing to settle, the commissioner turned to the tenant and said “we have plenty of time, so if you want to step outside to talk to the lawyer then you can come back after” (Fieldnotes, 2/2022).
In addition to the commissioner’s explicit pronouncements about the benefits of mediators, mediators themselves are afforded the authority to encourage tenants to bargain (Fieldnotes, 11/2021). Mediators operate in court and in the hallway, much like landlord attorneys. However, mediators do not have a list of names to call; instead, they walk through the hallway approaching litigants and attorneys to offer their services. Alexandra, a White tenant, described how she had difficulty repelling mediators in the courthouse (Interview, 4/2023). Alexandra had unlawfully received an eviction notice after paying her landlord what was owed; she retained a family friend as counsel to challenge her eviction. Upon arriving to court, she perceived that her situation was unique, even to the hallway mediators. She explained that “it didn’t seem to click [to the mediators] that we weren’t there because we hadn’t paid and were being legally evicted. We were there because he was trying to evict us when he’d been paid.” Because Alexandra paid her rent, she was able to get the eviction dismissed after declining the mediator’s assistance. The prevalence of nonpayment cases and the court’s organizational imperative to funnel cases toward settlement frames courtroom workgroup members’ perceptions of most tenants. Lawyers and mediators presume that most tenants need to be taught to settle, even when the tenant has potential defenses.
Tenants who resist mediation can be disciplined by the commissioner when they return to court. Roberto, a Latino tenant, was unable to make rent after his fiancé was laid off (Interview, 2/2023). Roberto reported feeling coerced by the mediation program. He found out that a settlement had been entered to which he never consented. Roberto challenged the mediator involved in his case, asserting that he never agreed to any resolution terms. He explained the encounter after telling the mediator that he did not agree to settle:
[The mediator replied] “Yeah, you did.” I go, “No, I didn’t.” And she’s all, “I seen it.” And I go, “Where is it then?” I go, “Let me see it.” And she goes, “Well, it’s in my office.” “Well can you go get it, ‘cause I want to see. Because I never signed anything.” And after, they’re all, “Well you know, I’m not gonna go back to my office. Here’s a paper right here. I’m gonna give you [it]. Sign this.” I go, “I’m not going to sign this. You’re trying to entrap me.”
After this disagreement, Roberto recalled that the mediator relayed to the commissioner that he was being uncooperative. The commissioner admonished him for disrespecting the court’s norms. When Roberto tried to explain, the commissioner silenced him. Roberto said: “[I]t was not fair at all. It was like I was getting beaten down in front of my peers on a ship.” Since Roberto did not agree to settle, the case went to trial. He asked the commissioner if he could bring witnesses and evidence but was not permitted to do so. His case resulted in an eviction that led to his job loss, housing insecurity, and severe stress. Roberto is unlike most tenants in our study, as his refusal to settle was rare. We cannot know whether he was punished for his refusal to comply with the bargaining process nor can we know the full details of his interactions with the mediator. Nevertheless, his experience reveals that the court’s normative pressure toward settlement can make some tenants feel they are being punished for not bargaining toward settlement.
Relational production of preferences for settlement
Alongside court rules and workgroup norms that funnel tenants toward bargaining, relational interactions with legal professionals teach tenants to prefer settlement over trial. Three relational dyads – many of which have already been described – facilitated this teaching: (1) commissioner–tenant; (2) mediator–tenant; and (3) attorney–tenant. Through these professional–client relationships, tenants are told of their disadvantage and the power landlords hold; they are taught that settlement is a common, if not the primary, option in eviction court, especially given their legal culpability. While much of the preceding section provided insight into open court interactions between the commissioner and tenants as well as professional–client interactions in the hallway, this section deepens insight into the ways relationships with attorneys teach tenants the benefits of settlement, the risks of trial, and their legal culpability.
Landlord attorneys strive to convince unrepresented tenants of the benefits of settling. Chris, a White landlord attorney, said: “we always try to settle the case before we go to trial… Typically, the ones that go to trial are where we’re dealing with unrealistic people” (Interview, 10/2022). He went on to describe tenants who do not relent to his firm’s settlement efforts as “crazy.” Some landlord attorneys recognized the potential ways they could take advantage of mediation sessions when tenants were unrepresented. Daniel, a White landlord attorney, said (Interview, 4/2023):
I have to worry about [whether tenants are] being taken advantage of, but I can’t take sides. And if they’re making a mistake based on a misunderstanding of law, I have to be very careful about how deeply [I] insert [my]self in the process. But, you don’t want people taking advantage of it either.
Daniel suggested that mediators may misunderstand unlawful detainer law, so he must balance how much he intervenes in the mediation process. We did not observe mediation sessions or interview mediators, so we cannot independently evaluate how landlord attorneys may or may not insert themselves in the mediation process.
Tenant attorneys, however, are often skeptical of the pressure exerted by landlord attorneys, commissioners, and mediators on unrepresented tenants. These attorneys frequently reported concerns about the mediation program – especially with respect to what mediators taught tenants. Some tenant attorneys mentioned that mediation is unbalanced for unrepresented tenants because mediators may defer to the landlord attorney, who has legal expertise that the mediator does not. Emma, a White tenant attorney, explained that, although mediation is portrayed as a neutral process, landlord attorneys are often able to pressure tenants through the process (Interview, 10/2022):
[T]he court will push parties to use [mediation] on the day of trial. And…nine out of ten times, tenants are self-represented. Nine out of ten times, the landlord is represented. So, it’s already extremely unfair going in…[then] you have [mediation] between the landlord attorney and self-represented tenant…And what I’ve observed is [the mediators] will just parrot what the landlord attorney’s saying to the tenant and pressur[e] them to accept the landlord’s terms.
When tenants are unrepresented, the landlord attorney becomes the authority on the law in the mediator-driven bargaining conversations, which obscures the boundaries between formal law and landlord advocacy. As a consequence, landlord attorneys may have an easier time, vis-à-vis the use of a mediator, teaching a tenant to settle.
Despite their criticisms of other legal professionals, tenant attorneys shared the belief that bargaining toward settlement was ultimately advantageous, given their interpretations of housing law, efficient use of the court’s time, the costs of trial, and their perceptions of their clients’ needs for speedy resolution. Tenant attorneys articulated trial costs as including time, money, and other burdens associated with fighting one’s case through formal court proceedings. Taylor, a Black tenant attorney, described how she explains to tenants that trial taxes their time (Interview, 11/2022):
And if you’re going to tell [the tenant], you have to take a week off of work to do trial prep, to go to trial, to do jury selection, to show up, they’re almost always going to say, “Can we avoid that?” ‘Cause they’re just – let’s say you win at trial. It’s a nonpayment of rent case; you win at trial. You just took two weeks off of work, and now you can’t pay rent. Like, what’s the point? And this is why my clients are, tenants are, significantly more disadvantaged than landlords.
Beyond the time it takes to attend court, tenants can also be disadvantaged when the court does not provide them enough time to adequately prepare for proceedings. Denia, a Black tenant who refused to pay rent because her landlord violated her privacy, was evicted through formal trial proceedings (Interview, 11/2023). She explained that she did not have time to mount a sufficient defense. When asked about her feelings of “bamboozle[ment],” she stated, “I didn’t have time to defend myself…They railroaded me.”
While tenant attorneys often warned about the costs of trial, they more commonly noted that tenants would be unlikely to win at trial, much like Denia, even if they endured the costs of court proceedings. Zoë, a White tenant attorney, detailed the disadvantages tenants face in most eviction cases (Interview, 10/2023):
What a trial means for a tenant is very different than what it means for a landlord. Both want to avoid it. So, we’re all on the same page there. But it’s a much scarier prospect for a tenant, which does put them in a worse bargaining position … and that they’re much more afraid of the alternative to a negotiated agreement, which is a trial.
Ian, a White tenant, reflects Zoë’s advice, noting that he came to learn that he would inevitably lose at trial (Interview, 4/2023):
[Landlords] have their living situation, their home, their security held over their heads. So, it’s almost like you have to comply, as opposed to being judged on right or wrong, it’s about complying. And, you know, most landlords have more money than most tenants. And so, you know, in a protracted case, like this one, they’ll eventually win. It’s like a casino. In the long run, house always wins.
And losing at trial comes with additional costs. Beyond the risk of losing one’s current housing, even more is at stake for tenants.
One additional legal consequence of losing at trial is that it becomes far more difficult to find another place to rent. In California, when an eviction judgement is entered against tenants, the eviction remains on their tenant screening report for 7 years, effectively banning them from being able to secure housing, since landlords generally reject tenants who have evictions (Eviction Defense Collaborative 2025). Being told about this 7-year mark through interactions with legal professionals was an important factor in shaping tenants’ perspectives on settlement. For instance, José, a Latino tenant, came to prefer settlement over trial because it allowed him to avoid the 7-year mark on his record (Interview, 1/2023). José received an eviction notice indicating that his landlord would be pursuing $23,000 in back rent. After going to court, he told us: “I thought [settling] was just a quick and fair process…I didn’t even think I could make requests … I wasn’t trying to rock the boat too much on it” (Interview, 1/2023). He explained that the only thing he wanted out of his settlement was “[j]ust not to get hit with the 7-year-ban” (Interview, 1/2023) – a negative legal outcome that many tenants must be taught that they can avoid through settlement.
Half of the tenants we interviewed explicitly stated that they bargained toward a settlement because they were worried about the 7-year ban or having the eviction on their public record and screening reports. Some learned from professionals in housing support agencies, and others learned from professionals in court. As Josh, a Black tenant, explained, having an eviction on one’s record is “just like a black eye. It’s hard to rent another place” (Interview, 3/2023). Similarly, in explaining why he decided to settle, Ricky, an Afro-Latino tenant, stated that “I heard about, you know, having an eviction on my record for 7 years. I felt like it would mess up my credit and other opportunities to get another place. And I am just very grateful that didn’t happen” (Interview, 4/2023). Ricky received an eviction notice alongside his girlfriend, Monica, after their car was vandalized by other tenants, rendering them unable to commute to work. Settlements often offer protection from a formal eviction record, as most agreements result in dismissal if the agreement is followed.
By participating in the bargaining process, tenants are taught avenues that give them some leverage with respect to forced displacement: if they settle, they may be able to remain in their housing or negotiate more time to find a new living situation, whereas if they lose at trial, they are summarily evicted with no control over the timing. Those who do not pursue settling through the advice of their attorney often come to settle through their courthouse interactions. Gloria, an unrepresented Latina tenant, agreed to pay $400 per month in back rent so that she could remain in her housing. She described feeling coerced to agree to a settlement but coming to recognize that it gave her more time (Interview, 7/2023):
I felt like I was forced to take the offer because during COVID, there was nobody to help, you know. Either I take the offer, or I have to be out of the house in a few days … You have like, ten days or five days to get out, you know, if I don’t take the offer then you know, you lose either way it goes. If I take the offer – either way, I know I have [to give] his money back. You know, it’s my responsibility. […] I felt like I had no other choice, and I wasn’t given any other options [laughs]. Either you take that offer or you don’t. And then you need to be out in less time than if you did take the offer.
Despite feeling coerced, Gloria reported that the settlement was ultimately fair. She said:
Well, I believe the settlement – OK, the settlement agreement was fair, but I only took it because I had to. I mean, there was – I had no other choice, either take it and you pay $400 a month, [or] you’ll be out by this time.
Gloria’s feelings of being coerced to settle and then coming to view her settlement agreement as fair illustrate how tenants come to recognize their weak bargaining position. As a tenant, she laments the fact that she felt unheard during the process and told us that she would advise other tenants: “[i]f you feel the [settlement’s] unfair you need to speak up because in court, a lot of times they don’t really give you the chance to speak up. And if they do, it’s after they already said, ‘okay, well, this is what we’re going to do.’” While Gloria is far from content, she also recognizes her only other option was to “walk out with just the clothes on [her] back.” Through interactions with legal professionals, she eventually perceived the settlement process as fair only because it allowed her to avoid a relatively worse outcome.
Through their interactions with various legal professionals, tenants come to recognize their legal culpability, especially in cases of nonpayment of rent. Josh, a Black tenant mentioned above, did not take the eviction process personally (Interview, 3/2023). Working with a tenant attorney from legal aid, he consented to a settlement agreement. Despite his housing insecurity, Josh did not indict his landlord’s advantage as a property owner, and his experience bargaining toward settlement played a part in his reasoning. Comparing his experience in the eviction court under study to an experience he had in another eviction court, he referred to the mediators and other professionals in the hallway as helpful: “there was no one there [in the other eviction court] who, you know, offered programs […] And all the people walking around [in the study’s eviction court] were actually eager to help. But that wasn’t the case in [the other eviction court].” When asked how he felt about the settlement process, he said “it was fair […] I mean, I think it’s just routine. Just calling the facts. I don’t feel like we were targeted or anything. I just, I feel like it was just the nature of the beast.” Through the process of negotiating a settlement, he came to understand his landlord’s property interests, recognize his legal culpability, and appreciate the chance to avoid a mark on his credit record. When asked about signing an agreement that could result in an expedited eviction if he did not abide by the terms, he said that he and his roommates “were okay with it […] it was very nice that they [his landlord and landlord attorney] even allowed us to continue staying there” during the bargaining process.
Similarly, Monica, a Black tenant who lives with her mother and boyfriend, Ricky, was even more straightforward in recognizing her legal culpability following her settlement (Interview, 4/2023). As mentioned above, Monica and Ricky were unable to work for several days after both of their cars were vandalized. Consequently, they owed several thousands of dollars in back rent. When they received the eviction notice, she recalled that they “already kind of saw it coming […] so I guess we gotta go to court.” While in court, she negotiated a settlement with her landlord and her landlord attorney with the assistance of a person she described as a program officer who can “help pay your past due” rent. (During the study’s observation period, mediators often assisted tenants in coordinating with government programs, such as COVID-19 rental relief, that could assist with rent payments and, therefore, facilitate settlements.) After interacting with these professionals, Monica said, “[w]e just agreed. It sound[ed] good to us.” Later in the interview, when asked about housing rights more generally, she said: “you’re renting, you don’t really necessarily own anything, so, you know, just kind of gotta follow the rules and pay your rent.”
Josh and Monica were not coerced into their agreements. Tenants like them generally explained that they were at fault for failing to pay rent or not following the rules on their lease. As Monica reflected: “I would hope that everybody finds somewhere to go, or they could go to a shelter. But yeah, you know, if you damage property or something like that, yeah, there are consequences” (Interview, 4/2023). This internalization of legal culpability shapes the acceptance of the landlord–tenant hierarchy, as tenants come to view housing insecurity as a personal failing rather than a systemic issue. Given their recognition of legal culpability, many tenants interpreted settlement as a fortunate alternative that enabled them to avoid the costs of trial and a hit to their record. In some cases, settlements also enabled them to obtain rental relief or, more commonly, buy time to find a new place to live.
Negative consequences of settlement agreements
While many tenants are taught to prefer bargaining toward settlement, the terms of their ultimate settlement agreements can have negative housing consequences. The consequences that follow reveal how settlement reproduces disadvantage among tenants, even if they perceive that the bargaining process is relatively better than trial. In our study setting, settlements pave the way to ex parte writs of possession, which allow landlords to evict tenants from their homes with short notice or without holding a hearing with the tenant present. Whether or not they fully understand the logic behind the courtroom workgroup’s settlement objective, tenants understand settlement as the primary pathway for resolution.
Tenants often feel pressure to enter into settlement agreements that they know they will likely be unable to abide by; once they fail to abide by any aspect of a settlement, the landlord can more easily remove them. Emma, a tenant attorney mentioned above, explained that landlords often prefer settlements because it allows them to place onerous conditions on tenants (Interview, 10/2022):
A landlord is going to want to have a super strict, unforgiving settlement … they want to settle instead of going to trial even if they could evict the tenant at trial because they are like, “well I’m just going to make this really strict settlement agreement that they’re going to violate and then it’ll be easier to evict them that way than evict them through trial”
Conditions can go beyond payment (see Summers Reference Summers2023), but even payment conditions can be hard to satisfy. Many tenants are before the court for nonpayment and enter into settlements that, though they offer payment plans for the amount owed, are still difficult to pay.
Eventually, their nonpayment with respect to the terms of the settlement (not just the original lease) allows landlords to request the sheriff remove the tenant through an ex parte proceeding. These proceedings typically occur without a formal trial (county court rules webpage on file with authors), and due to short notice, tenants are frequently unaware that this legal action is being taken against them until the sheriff appears at their door and/or when an eviction shows up on their record (Cal. Code of Civil Procedure 2010 § 512.010-512.120). Emma explained that “usually, the settlement is written in such a way that if the landlord is claiming that it’s been violated and then you have a hearing based on that, it’s not as involved as a trial. So, it’d be easier to evict someone that way” (Interview, 10/2022).
Some tenants in our study who experienced involuntary removals after failing to comply with settlement terms expressed more negative perceptions of the bargaining process compared to tenants like Josh, Monica, Ricky, and Gloria described above. Even though most marginalized tenants like them come to willfully accept settlement agreements and the legitimacy of the property rights that undergird them, not all tenants are willful in their formal acceptance of settlements. For them, their landlord’s property rights remain illegitimate in their minds. Still, tenants’ formal acceptance of settlement terms in court makes for the appearance of consent if, and when, law enforcement authorities remove them from their landlord’s property.
Diego, a Latino tenant, felt that he did not fully comprehend the terms and consequences of his settlement, given that he was dealing with the legal process during a particularly stressful time (Interview, 11/2023). His wife had just recovered from a major health scare, and he was struggling with pandemic-related job loss. In just 10 minutes, he assented to his landlord’s attorney’s offer that he would pay over $300 biweekly to his landlord after his request for a lower payment plan in light of his wife’s hospital bills was denied. He rented a car for around $200 a week to work as a rideshare driver, but when the car was stolen, he fell behind on payments and found a writ of possession on his door. Whereas his landlord “had the leverage of being able to say how much they wanted,” he said that “it wasn’t even taken into thought that I could not afford what they were offering.” Diego was speedily evicted after failing to pay according to his settlement terms. “I basically just got a notice on my door. There was no warning or nothing … I heard somebody at the door, opened my door, and saw the writ of possession taped to my door,” he said. Diego now lives in a truck with his wife and dog.
Discussion
This article examined how organizational court mechanisms funnel tenants toward bargaining and shape settlements, with implications for theories of bargaining in the shadow of the law and for research on housing insecurity. Drawing on observations and interviews in a California eviction court, we found that court rules and workgroup norms funnel tenants into professional-client interactions that teach them the costs of trial and the immediate benefits of settlement, given their legal culpability. While many settlement agreements give tenants more time and allow them to avoid a 7-year hit on their record, settlements may also reproduce housing insecurity by binding tenants into agreements that they may not fully understand or are otherwise unable to abide by, resulting in forced displacement with fewer legal protections.
Bargaining in the shadow of the law (Cooter et al. Reference Cooter, Marks and Mnookin1982; Mnookin and Kornhauser Reference Mnookin and Kornhauser1978) is a dominant theory for explaining the bargaining process and settlements. However, the theory cannot explain how litigants initially disinclined to bargain, or unaware of its possibility, find their way to the bargaining table. This article offers an explanation: courts can play a direct role in facilitating bargaining toward settlement. Leveraging organizational court theories (Clair Reference Clair2020; Eisenstein and Jacob Reference Eisenstein and Jacob1977; Ulmer Reference Ulmer2019), we show how court rules, workgroup norms, and professional-client interactions within organizational spaces collaborate to funnel litigants into the bargaining process and teach them the costs of trial and the benefits of settlement. For many people, bargaining is not an a priori rational decision; rather, they must be taught to bargain.
While the bargaining in the shadow of the law theory has been criticized with respect to its assumption that litigants are rational actors (Bibas Reference Bibas2004; Petersen et al. 2020) and its assumption that litigants bargain in the shadow of the positive law (Crowe et al. Reference Crowe, Field, Toohey, Partridge and McAllister2018; Jacob Reference Jacob1992), we critique the theory with respect to its inattention to the direct role of courts in facilitating settlements. To be sure, our analysis has focused on the way courts facilitate settlements among marginalized people who appear in court rather than among people who settle in the private sphere. But even when litigants bargain exclusively in the private sphere, it is likely that local court norms shape the bargaining process through the advice of lawyers – and other legal professionals – representing clients on either side of a dispute. Even if potential litigants do not set foot in court, the professionals who facilitate settlements in the private sphere are likely aware of the organizational norms of the court that will ultimately “rubber stamp” a negotiated settlement (see Kritzer Reference Kritzer1990). This phenomenon is especially salient in the housing dispute context where various governmental agencies assist poor tenants in managing eviction filings. In this way, bargaining in the private sphere occurs, at least in part, in the shadow of local court rules and workgroup norms not just applicable law.
We contribute to research on housing insecurity by sharpening understandings of the court processes that produce forced displacement. Growing work examines how eviction settlement agreements constitute forced removals even though they may appear to be voluntary (Fleming-Klink et al. 2019; Hanley et al. Reference Hanley, Howell and Teresa2024; Sabbeth Reference Sabbeth2022; Sudeall and Pasciuti Reference Sudeall and Pasciuti2021). We contribute to this body of work by interrogating how multiple legal professionals, even tenant attorneys, collaborate to funnel tenants into settlements. Much like in criminal courts, professionals in eviction court constitute a workgroup (Eisenstein and Jacob Reference Eisenstein and Jacob1977) of repeat players who develop norms around case processing. Thus, tenant attorneys – who are often considered the last line of defense for marginalized tenants (see Ellen et al. Reference Ellen, O’Regan, House and Brenner2021; Kleinman Reference Kleinman2003; Petersen Reference Petersen2020) – may also be understood as workgroup members whose unique task is to help foster settlements by “cooling out” their clients (Blumberg Reference Blumberg1967; see also Flemming Reference Flemming1986).
While recent studies leveraging randomized control trials or randomized variation in the rollout of legal aid programs have demonstrated statistically significant and positive effects of tenant attorneys on eviction court judgments (Cassidy and Currie Reference Cassidy and Currie2023; Seron et al. Reference Seron, Van Ryzin and Frankel2001), our findings suggest that legal representation is no panacea. Recognizing that housing law favors landlords, tenant attorneys function as intermediaries who teach tenants the relative benefits of settlement compared to the risks of trial. To be sure, legal representation can create friction by facilitating settlements that buy tenants additional time to secure alternative housing or even enable them to remain in their current housing. Yet tenant attorneys’ assistance in producing settlements can unintentionally contribute to efficient removal of tenants from their homes when tenants cannot fulfill the obligations of a settlement. As in other legal settings, “representation alone does not ensure justice” (Clair Reference Clair2020, p. 9; see also Ryo and Peacock Reference Ryo and Peacock2021) in eviction court, where the main problem most tenants face is a lack money to pay rent (Brodie and Bowman Reference Brodie and Bowman2023).
This study has limitations. First, while we focused on tenants who appear in court, many tenants do not. Many face barriers in responding to a summons (Nelson Reference Nelson2021), and some do not appear because informal settlements are negotiated prior to court proceedings (Garboden and Rosen Reference Garboden and Rosen2019). Future research could consider whether settling prior to the start of court proceedings – through serial filings or everyday landlord–tenant conversations – adheres to bargaining in the shadow of the law theory. Scholars could also consider whether folk law and psychological biases distort predictions of the theory, as in the case of divorce settlements (Crowe et al. Reference Crowe, Field, Toohey, Partridge and McAllister2018) and criminal plea bargaining (Stuntz Reference Stuntz2004). Second, our research took place when COVID-19 rental relief (Kepes and Kempler Reference Kepes and Kempler2024) offered tenants an additional reason to settle. Scholars could examine whether distinct policy initiatives or changes to housing laws result in different organizationally mediated benefits or costs to settling. Third, we were unable to interview or observe mediators, which did not allow us to directly observe their understandings and norms. Future research drawing on interviews with mediators could directly observe their norms in relation to other workgroup members as well as their unique settlement strategies. Finally, a few studies have considered how tenants’ legal consciousness informs their navigation of eviction court (Bezdek Reference Bezdek1991; Nelson Reference Nelson2021), which could provide insight into the hegemony (see Ewick and Silbey Reference Ewick and Silbey1998) of landlord-friendly housing law and property rights. While our interviews revealed how tenants come to understand their legal culpability and perceive settlements as legitimate, our study did not deeply examine tenants’ narratives about legality (see Silbey Reference Silbey2005). Future research could follow the lead of earlier ethnographies (e.g., Merry Reference Merry1990; Sarat Reference Sarat1990) and carefully constructed interview studies (e.g., Berrey et al. Reference Berrey, Hoffman and Nielsen2012), which underscore how encounters with legal institutions can shape legal consciousness and law’s legitimacy. In doing so, future studies could clarify how the consciousness of marginalized groups maintains – and at times, fosters resistance to – the hegemony of housing law (see Ewick and Silbey Reference Ewick, Silbey and Přibáň2020).
Acknowledgements
We are grateful to our study participants for their willingness to share their experiences. We also thank Chaelyn Rigmaiden-Anderson, Joseph Warton, Casey Christmas, and Alisha Zhao for their research assistance. We extend our sincere thanks to Sarah Brayne, Juliet Brodie, David Grusky, Swan Ye Htut, Caylin Louis Moore, Forrest Stuart, Lore Avilés Trujillo, and the participants in the Qualitative and Fieldwork Methods Workshop for their feedback on an earlier draft.
Funding Statement
The data used in this study come from the Court Listening Project, which received funding from the Cultivating Humanities Grant (Stanford), the UPS Endowment Fund (Stanford), and the Research on Racial Equity and Justice Seed Grant (Stanford).
Conflicts of Interest
The authors declare no conflicts of interest.
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