In my years litigating consumer cases in Minnesota, I have watched the civil justice system grow steadily harder for ordinary people to use. The change has not come from any single dramatic law. It has come the way most important things change in the law: quietly, in the fine print of court opinions, in the boilerplate of standard-form contracts, and in the plain arithmetic of what an hour of legal help costs. Taken together, these forces have opened a widening gap between the people who can afford to enforce their rights and the people who cannot. For a large share of the public, the promise that the courthouse is open to everyone has become, in practical terms, something closer to a formality.
I want to describe three of these forces as I see them from the plaintiff’s side of the docket. None of them is a secret. But most people never encounter them until the day they have a real problem, a real claim, and discover how much stands between them and a courtroom.
The Bar at the Courthouse Door Keeps Rising
For most of the last century, federal courts followed a generous rule about what a lawsuit had to say to get started. Under Conley v. Gibson, 355 U.S. 41 (1957), a complaint could not 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: a plaintiff should be able to get through the courthouse 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 replaced that standard with a new one. Now a complaint must contain enough facts “to state a claim to relief that is plausible on its face.” Bare legal conclusions no longer count. 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 this tougher “plausibility” standard applies not just to complex antitrust cases like Twombly, but to essentially every civil lawsuit in federal court.
The plausibility standard sounds reasonable, and in the hands of a careful judge it can be. But consider what it asks of a plaintiff. It asks them to allege detailed facts about wrongdoing—often at the very start of the case, before they have had any chance to obtain the defendant’s documents, emails, or internal records. In many cases, the facts that would prove the claim are in the defendant’s exclusive possession. That is precisely what discovery exists to uncover. A rule that demands those facts up front, on penalty of dismissal, is a rule that favors the party holding the information, which in consumer and employment cases is almost always the company, not the individual. Now imagine the plaintiff has 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
Here is a point that matters a great deal to Minnesotans, and that most people have never heard: the courthouse you walk into can change the rule that decides whether your case survives.
Minnesota’s state courts did not follow the Supreme Court down this path. 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 remains 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 is close to the older, more forgiving federal approach—the one Conley embodied.
The practical consequence is striking. The same set of facts, the same plaintiff, the same wrong, may clear the pleading bar in a Minnesota state courtroom and fall short of it across the street in federal court. Access to justice, in other words, can turn on a question of forum that most people do not even know is being decided. I do not raise Walsh to celebrate it, though I think Minnesota has the better rule. I raise it because it shows the pleading standard is a choice, not a law of nature—and that the federal choice has made the door narrower for the people least equipped to squeeze through.
The Clause You Never Read
The second force is the one I encounter most often, and the one that does the most damage to small claims. It is the arbitration clause—and, buried inside it, the class-action waiver.
Open 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 will almost certainly find language saying that any dispute must 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 no one understands what they have given up.
What they have given up is often the only realistic way to pursue a small claim. Suppose a company illegally charges two million customers a $75 fee. No single customer is going to hire a lawyer and litigate for months to recover $75; the case is worth less than the cost of bringing it. The class action was built precisely for this situation—it lets many small claims be aggregated into one case large enough to be worth pursuing, and large enough to make the company answer for the whole practice. Take the class action away, and the $75 claim simply dies. There is no economical way to bring it. The wrong goes unremedied not because it was lawful, but because no one 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 such a waiver even where the plaintiffs showed that the cost of proving an individual claim would dwarf any possible recovery—there, an expert analysis running into the hundreds of thousands of dollars to vindicate a claim worth roughly $12,850. That the individual case was economically impossible to bring was, the Court held, no reason not to enforce the waiver. (I have written elsewhere on this site about how a 1925 statute meant to help merchants settle commercial disputes was turned into this instrument; I will not repeat it here.)
What the Numbers Show
I could be accused 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 faced by low-income Americans received no legal help or not enough of it. In the same year, according to that research, 74% of low-income households experienced at least one civil legal problem. These are not exotic disputes. They are evictions, debt collection, denied benefits, consumer fraud, family matters—the ordinary emergencies of ordinary life.
The picture inside the courthouse matches. The National Center for State Courts, in its 2015 study The Landscape of Civil Litigation in State Courts, found that at least one party appeared without a lawyer in more than three-quarters of the cases studied, and that a large share of the civil docket consisted of lower-value debt-collection, landlord-tenant, and small-claims cases—exactly the kinds of cases where one side is a represented business and the other is a person standing alone. When most litigants in a courtroom cannot 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 am a lawyer, not a reformer, and this is not a manifesto. But there are practical things worth knowing, and knowing them is the first defense.
First, do not assume your case is hopeless because of an arbitration clause or a threatened motion to dismiss. Many claims survive both. Arbitration clauses have limits and exceptions; motions to dismiss are often 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, not a reason to give up before asking.
Second, act early. Every claim carries a deadline—a statute of limitations—and many are shorter than people expect. Waiting can extinguish a good claim before anyone ever evaluates it. If you think something is wrong, get it looked at now, not next year.
Third, 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 cannot negotiate them away, but you should at least know what you are agreeing to, and you should factor it into whom you do business with.
Fourth, 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 and requires a losing defendant to pay the plaintiff’s reasonable attorney’s fees. That fee-shifting is what makes it possible for a lawyer to take a modest case that a client could never fund by the hour. Legal aid organizations serve those who cannot pay at all. And most consultations with a plaintiff’s lawyer, including at this firm, cost nothing.
The courthouse door has not closed. But it has narrowed, and it narrows a little more each time a hard rule meets a person who cannot afford to answer it. The remedy for any one person is not political and it is not complicated. It is to know that the door is still there, to know that you may have more of a case than you think, and to 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.
Have a question about a consumer or civil matter? Use the Message Us feature on this site to reach Madgett Law, LLC.