I’ve spent years litigating consumer cases in Minnesota, and I’ve watched the civil justice system get steadily harder for ordinary people to use. No single big law did it. It happened the way most important things in the law happen: quietly. In the fine print of court opinions. In the boilerplate of form contracts. In the plain math of what an hour of legal help costs. Put it all together and you get a widening gap between people who can afford to enforce their rights and people who can’t. For a lot of the public, the promise that the courthouse is open to everyone has turned into something closer to a formality.
Here are three of those forces, the way they look from the plaintiff’s side of the docket. None of them is a secret. Most people just never run into them until the day they’ve got a real problem and a real claim, and find out how much is standing between them and a courtroom.
The Bar at the Courthouse Door Keeps Rising
For most of the last century, federal courts had a generous rule about what a lawsuit had to say to get started. Under Conley v. Gibson, 355 U.S. 41 (1957), a complaint couldn’t be thrown out unless it appeared that the plaintiff could prove “no set of facts” that would entitle them to relief. The idea was simple and fair. Get through the door on a plain statement of what happened, then use the tools of the lawsuit — discovery — to dig out the proof.
That changed. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and again in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court swapped that standard for a new one. Now a complaint has to contain enough facts “to state a claim to relief that is plausible on its face.” Bare legal conclusions don’t count anymore. As the Court put it in Iqbal, “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” And Iqbal made clear the tougher “plausibility” standard isn’t just for complicated antitrust cases like Twombly. It applies to essentially every civil lawsuit in federal court.
Plausibility sounds reasonable, and with a careful judge it can be. But look at what it asks of a plaintiff. You have to allege detailed facts about wrongdoing, often at the very start of the case, before you’ve had any chance to get the defendant’s documents, emails, or internal records. In a lot of cases, the facts that would prove the claim are sitting in the defendant’s files and nowhere else. Digging those out is exactly what discovery exists for. A rule that demands them up front, or the case gets dismissed, favors whoever’s holding the information. In consumer and employment cases, that’s almost always the company, not the individual. Now picture a plaintiff with no lawyer at all. The gap between what the rule demands and what an unrepresented person can produce is often the whole case.
A Minnesota Difference Worth Knowing
This one matters a lot to Minnesotans, and most people have never heard it: which courthouse you walk into can change the rule that decides whether your case survives.
Minnesota’s state courts didn’t follow the Supreme Court down this road. In Walsh v. U.S. Bank, N.A., 851 N.W.2d 598 (Minn. 2014), the Minnesota Supreme Court expressly declined “to engraft the plausibility standard from Twombly and Iqbal onto our traditional interpretation of Minn. R. Civ. P. 8.01.” Minnesota is still a notice-pleading state. Under our rule, as the court restated it, a claim survives a motion to dismiss “if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” That’s close to the older, more forgiving federal approach — the one Conley stood for.
Think about what that means. The same facts, the same plaintiff, the same wrong may clear the pleading bar in a Minnesota state courtroom and come up short across the street in federal court. Access to justice can turn on a choice of forum most people don’t even know is being made. I think Minnesota has the better rule. The bigger point is that the pleading standard is a choice. Nobody handed it down from the mountain. And the federal choice has narrowed the door for the people least able to squeeze through it.
The Clause You Never Read
The second force is the one I run into most, and it does the most damage to small claims. It’s the arbitration clause, and the class-action waiver buried inside it.
Pull up the terms of service for your phone, your credit card, your bank account, your car loan, or the app you signed up for last week. Somewhere in the fine print you’ll almost certainly find language saying any dispute has to go to private arbitration, and that you give up the right to join with others in a class action. Most people click “I agree” without reading it. Almost nobody understands what they just gave up.
What they gave up is often the only realistic way to go after a small claim. Say a company illegally charges two million customers a $75 fee. No single customer is going to hire a lawyer and litigate for months to get $75 back. The case is worth less than it costs to bring. The class action was built for exactly this. It lets a lot of small claims get rolled into one case big enough to be worth pursuing, and big enough to make the company answer for the whole practice. Take the class action away and the $75 claim just dies. There’s no economical way to bring it. The wrong goes unfixed, and it’s not because it was legal. It’s because nobody can afford to prove it one customer at a time.
The Supreme Court has made these waivers broadly enforceable. In AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the Court held that the Federal Arbitration Act overrides state laws that had treated class-action waivers as unconscionable. Two years later, in American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013), the Court enforced a waiver even where the plaintiffs showed that proving an individual claim would cost far more than they could ever recover — there, an expert analysis running into the hundreds of thousands of dollars to vindicate a claim worth roughly $12,850. The Court held that the individual case being economically impossible to bring was no reason not to enforce the waiver. (I’ve written elsewhere on this site about how a 1925 statute meant to help merchants settle commercial disputes got turned into this tool. I won’t repeat it here.)
What the Numbers Show
You could fairly accuse me of describing my own corner of the world and calling it the weather. The data suggests otherwise.
The Legal Services Corporation, the federally established organization that funds civil legal aid, studies what it calls the “justice gap.” Its 2022 report found that 92% of the civil legal problems low-income Americans faced got no legal help or not enough of it. In the same year, according to that research, 74% of low-income households had at least one civil legal problem. These aren’t exotic disputes. They’re evictions, debt collection, denied benefits, consumer fraud, family matters — the ordinary emergencies of ordinary life.
Inside the courthouse, it looks the same. The National Center for State Courts, in its 2015 study The Landscape of Civil Litigation in State Courts, found that at least one party showed up without a lawyer in more than three-quarters of the cases studied, and that a big share of the civil docket was lower-value debt-collection, landlord-tenant, and small-claims cases. Those are exactly the kinds of cases where one side is a business with a lawyer and the other is a person standing there alone. When most of the people in a courtroom can’t afford counsel, “access to the courts” and “access to a fair fight” have quietly become two different things.
What Ordinary People Can Actually Do
I’m a lawyer, not a reformer. But there are practical things worth knowing, and knowing them is your first defense.
Don’t assume your case is hopeless because of an arbitration clause or a threatened motion to dismiss. Plenty of claims survive both. Arbitration clauses have limits and exceptions. Motions to dismiss often get denied — especially, in Minnesota, in state court. Whether yours survives is a question for a lawyer who has actually read the contract and the complaint. It’s not a reason to quit before you ask.
Act early. Every claim carries a deadline — a statute of limitations — and many are shorter than people expect. Waiting can wipe out a good claim before anybody ever looks at it. If you think something’s wrong, get it looked at now, not next year.
Read before you sign. When you take on a phone, a loan, a credit card, or an account, look for the words “arbitration” and “class action waiver.” You often can’t negotiate them away, but you should at least know what you’re agreeing to, and you should weigh it when you decide who to do business with.
Know that help exists. For certain claims — including many consumer-protection claims under federal statutes like the Fair Debt Collection Practices Act (15 U.S.C. § 1692k) and the Fair Credit Reporting Act (15 U.S.C. § 1681n) — the law provides for statutory damages (under the Fair Credit Reporting Act, only for a willful violation) and requires a losing defendant to pay the plaintiff’s reasonable attorney’s fees. That fee-shifting is what lets a lawyer take a modest case a client could never pay for by the hour. Legal aid organizations serve people who can’t pay at all. And most consultations with a plaintiff’s lawyer, including at this firm, cost nothing.
The courthouse door hasn’t closed. It’s narrowed, and it narrows a little more every time a hard rule meets a person who can’t afford to answer it. For any one person, the fix isn’t political and it isn’t complicated. Know the door’s still there. Know you may have more of a case than you think. And ask before the deadline runs.
Attorney advertising. This article is general commentary and legal information, not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and its own deadlines; outcomes depend on the specific facts and governing law, and no result is guaranteed. For advice about your own situation, consult a licensed attorney.
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