Settling Injustice: How the Settlement Assistance Program Helps Balance the Scales

Commercial litigator Laura McNally joins Judge Andrea R. Wood, Magistrate Judge Jeffrey I. Cummings, and Magistrate Judge Sunil R. Harjani during a recent training for SAP volunteers.

In her many years as a civil rights attorney, J. Cunyon Gordon has seen a huge number of court cases filed by people who are incarcerated in Illinois. Living under unconscionable conditions, they are often in unsafe environments and denied medical treatment by the state or county correctional system.

“The inmates are telling the truth about mold, vermin, roaches in the food, cracked walls, flooded toilets and the like,” says Gordon. “Any humane person would know they deserve better. That is why they turn to the court."

Prisoner abuse cases like these comprise about 60 percent of the caseload that Gordon handles as director of the US District Court’s Settlement Assistance Program (SAP), which is administered at Chicago Lawyers’ Committee for Civil Rights. The other SAP cases come from people dealing with employment discrimination, hate incidents, and other civil rights issues. Since 2006, SAP has helped hundreds of people who file a civil rights lawsuit without the assistance of an attorney – also called pro se litigants – to navigate the judicial system. When a pro se litigant wants to settle their case rather than go to trial, the district or magistrate judge can refer them to SAP, where Gordon matches them up with a volunteer attorney.

Why would a litigant not have an attorney?

“It’s not because they have losing cases,” Gordon explains. “They are mostly indigent [without money] and people of color who’ve been aggrieved by systems and can’t afford or find counsel.”

Often, they are not able to pay a lawyer’s retainer fee, or their case might be considered too small to warrant the time and attention of the private bar. Ali Schaller, a commercial litigation associate at Loeb & Loeb LLP who has volunteered for SAP, recalled her experience during a recent SAP attorney training.

“When I first met my client, I really just wanted to hear the story from her,” said Schaller. “I wanted her to know […] that I was here to help her.”

The client, Ms. W*, had been riding the Metra to get home to her kids one night in 2013 when a conductor insulted Ms. W and called security guards to remove her from the train. Suddenly alone with two officers and no working cell phone, Ms. W began to fear for her life as the guards quickly became verbally and physically threatening.

“I’ve never experienced the racism and discrimination that my great ancestors experienced, but I felt like I was in the 1960’s or something,” recalls Ms. W. “Fight or flight set in.”

In an incident captured on camera, the officers pushed Ms. W to the floor and then lifted her by the neck until her feet left the ground. They took her to a holding facility for several hours and charged her with disorderly conduct, which was later dropped. She wasn’t allowed to make a phone call or use the restroom. “That was hell on earth,” remembers Ms. W.

“A lot of these experiences are traumatic,” said Schaller. “They’re not necessarily just looking for money – maybe they want an apology or just want to be heard by a neutral third party. All those aspects are really important to tell the client about, to help them explore what they want out of the settlement process.”

As Ms. W’s volunteer attorney, Ali Schaller counseled her on her options in a settlement conference and negotiated with the opposing counsel to win a favorable (but confidential) financial remedy for Ms. W.

“Ali was helpful and very instrumental to the success of my case,” said Ms. W. “I saw it as an opportunity to tell my truth.”

About 80 attorneys volunteer each year for SAP. At Chicago Lawyers’ Committee, Cunyon Gordon reviews the cases as they come in and then assigns volunteers to handle each one. She helps the attorneys throughout their assignment, assisting them with strategies or managing their clients, and sometimes helping to determine a settlement amount or a relief plan. The volunteer attorney must confer with their client, evaluate the case, and then advise them. They write a demand for specific relief and then negotiate with the opposing counsel, usually by representing their client before the judge in a settlement conference. These days, every meeting and settlement conference happens virtually over Zoom or Teams.  Occasionally, cases are settled without going to conference.

“The key to all of this is respect,” Gordon reminded her volunteers during the training. “[Litigants] often come from marginalized parts of society […] and you may be the first person to give them respect. I encourage you to be free with that and to zealously represent them.”

For the District Court judges, SAP offers critical support that can help them triage an enormous caseload.

“We are grateful to Cunyon Gordon,” said the District Court’s Chief Judge Rebecca Pallmeyer. “She has been an inspiration for all of us, a backstop when lawyers are not available to take something on.”

Although settling sometimes gets a bad rap from trial lawyers, the truth is that 90 percent of cases are resolved by settlement and not trial. Settlement is more cooperative, cheaper and takes less time than going to trial. Whereas it may take years to get to trial, a settlement can be completed within 12 weeks of the appointment of SAP counsel. Another advantage of settlement is that the clients have more control over the outcome and the costs since there is no deposition or discovery. SAP unlocks access to this process for people regardless of their income by providing attorneys for free.

“The community then sees the court not as a place for the wealthy and powerful, but as a place where everyone can get respect,” explained Gordon.

Volunteers with SAP also reap rewards from participating in the program, gaining experience in courtroom negotiation and counseling, while giving back to the community.

“I got into the legal practice to help people fundamentally, and this is a great way to do it,” said Schaller. “It’s dynamic and it’s fun.”

If you are interested in becoming an SAP volunteer, click here to email Cunyon Gordon.

*Ms. W’s full name has been removed to protect her privacy.