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Getting Started Guide:

DEFENDING EVICTION CASES

IN THE DISTRICT OF COLUMBIA

2017

Created by the Legal Aid Society of the District of Columbia 2

GETTING STARTED GUIDE:

Defending Eviction Cases in the District of Columbia

TABLE OF CONTENTS

II. Basics on Landlord Tenant Court

B. For Lease Violation Cases

B. Scheduling, Discovery & Mediation in Jury Cases

APPENDIX (Sample Pleadings/Documents)

1. Sample Continuance Praecipe

I. Introduction ................................................................................................................................... 3

.................................................................................................. 4

III. Landlord Tenant Case Flow Chart ............................................................................................... 5

IV. Client Interview Checklist ........................................................................................................... 6

A. For Nonpayment of Rent Cases ....................................................................................... 6

................................................................................................ 9

V. Practice Tips for Initial (and Further Initial) Hearings ............................................................... 13

VI. Beyond the First Court Date ....................................................................................................... 15

A. Bell Hearings & Protective Orders .................................................................................. 15

.......................................................... 17

C. Bench Trial Cases............................................................................................................. 19

VII. Key Guidance to Avoid Settlement Traps .................................................................................. 21

................................................................................. 23

.................................................................................... 24

2. Application to Proceed In Forma Pauperis ............................................................ 26

3. Sample Answers (Pro Se and Attorney Answers) ................................................. 33

4. Protective Order Information Sheet ....................................................................... 62

5. Sample Protective Order Praecipe ......................................................................... 64

6. Sample Scheduling Conference Praecipe .............................................................. 66


I. INTRODUCTION

Thank you for agreeing to accept for pro bono representation an eviction case

referred from the Legal Aid Society of the District of Columbia. This Guide will provide

you with information and resources to help you get started in your case. Of course, whenever you

have questions, please reach out to your Legal Aid mentor attorney, who will be happy to chat

about issues in your case or provide you with additional resources and guidance as necessary.

How do I get started?

Review this Getting Started Guide for a general orientation and practical tips to help you

through the first few court dates. You also will want to use the D.C. Bar Pro Bono Center’s

Training Manual on Landlord Tenant Practice in the District of Columbia as a reference. The

Manual includes detailed summaries and citations to relevant statutes, regulations, and case law.

(You should have received a copy of this Manual with your case referral materials.) We also

recommend you visit probono.net/dc and sign up for the Housing Law Section to access sample

documents and other resources.

We have included guidance about early court dates and client interviews in this guide, as

you may receive a case referral before your client has filed any responsive pleadings. However,

the client interview guidance also will be useful as you begin to better understand your client’s

claims and defenses, even if your client already has filed responsive pleadings. If you discover

information that was not included in the answer or would otherwise like to revise the

answer, you may submit an amended answer by right within twenty (20) days of when the

original answer was served on the other side (usually the date of filing).

In other cases, your representation will begin after your client already has filed an answer

and jury demand, or the case has been set for a bench trial. In jury demand cases, Legal Aid

attorneys may have assisted the client in filing the responsive pleadings and getting the case set

on the jury track – so your first task is often to serve the other side with discovery requests. We

recommend serving discovery as soon as possible, but in all cases before the scheduling

conference in the case.


II. BASICS ON LANDLORD TENANT COURT

Important Locations

The Landlord and Tenant Branch of D.C. Superior Court (“Landlord Tenant Court”) is

located at 510 4th Street, NW, Washington, DC 20001.

If your client files a jury demand, the case is certified to the Civil Actions Branch. Even

in certified cases, some court appearances still happen in the Landlord Tenant Court,

while other court appearances (e.g., pretrial conference) will happen in the assigned civil

judge’s courtroom.

Most of the civil judges sit in the main courthouse at 500 Indiana Avenue, NW. Some

judges sit in Building A at 515 5th Street, NW. Check the court docket to confirm the

location of any court appearance.

In jury demand cases, mediation will be scheduled. Mediation is held at the Multi-Door

Dispute Resolution Division at 410 E Street, NW.

Courthouse Operations

Landlord Tenant Court uses two different courtrooms. The main courtroom is Room 109

on the first floor. The second courtroom is Room B-53 on the second floor. Different

types of court appearances are scheduled for the two courtrooms. The court docket

always reflects the location for any court appearance.

The Clerk’s office is located in Room 110. The phone number for the Clerk’s office is

202-879-4879. Landlord Tenant Court still relies solely on in-person, paper filing, which

is the primary function of the Clerk’s office.

When you need to file something on a scheduled court date, filings will be done in the

courtroom or with the Interview and Judgment Office in Room 111, rather than the

Clerk’s office. You may be able to avoid waits in the courtroom by going to the

Interview and Judgment Officer, so check in with your Legal Aid mentor about what

types of matters the Interview and Judgment Office might be able to handle.

Landlords’ attorneys often are in their courthouse offices, most of which are in Room

113. The courtroom clerk or other landlords’ attorneys also can help point them out if

you are trying to find opposing counsel.

Where to Get Help

If you need help, attorneys from Legal Aid and other legal service organizations are in

the courthouse every day. Let us know you are a pro bono attorney with an eviction case

– we will help!

Legal Aid or Bread for the City attorneys are on site in Room 221 until early afternoon

(or later) every day.

The D.C. Bar Pro Bono Center operates the Landlord Tenant Resource Center in Room

115 until at least noon every day.


III. LANDLORD TENANT CASE FLOW CHART

INITIAL (AND FURTHER INITIAL) HEARINGSee p. 12

BELL HEARING?See p. 14

JURY TRIAL TRACK

SCHEDULING

CONFERENCESee p. 16

DISCOVERYSee p. 16

CONFIDENTIAL

SETTLEMENT STATEMENT

MEDIATIONSee p. 17

MOTION FOR SUMMARY

JUDGMENT?

PRETRIAL

CONFERENCE

JURY TRIAL

BENCH TRIAL TRACK

MOTION FOR

LEAVE TO

CONDUCT

DISCOVERY?See p. 18

MOTION FOR

SUMMARY

JUDGMENT?

MEDIATIONSee p. 18

BENCH TRIALSee p. 18

MOTION TO

DISMISS?


IV. CLIENT INTERVIEW CHECKLIST

A. For Nonpayment of Rent Cases

1. Is your client receiving any type of rental subsidy?

Legal Aid tries to identify subsidies at issue when we refer the case to you. However, you

should always confirm what type of subsidy, if any, is at issue in your client’s case. Different

subsidies can offer different tenant protections.

There are three main types of subsidies:

(1) The Housing Choice Voucher Program (HCVP) is a subsidy that is attached to the

tenant. The tenant rents an apartment on the private market, and the subsidy covers a

portion of the rent. (There are some other tenant-based subsidy programs, but the

HCVP is by far the most prevalent.)

(2) Public Housing is housing that is owned by the DC Housing Authority (DCHA).

DCHA is the landlord, though a private company may manage the property. The

subsidy is attached to the property. If the tenant moves, they lose the subsidy.

(3) Site-Based Section 8 housing is owned and managed by private landlords, but the

subsidy is attached the property. If the tenant moves, they lose the subsidy.

If DCHA is the landlord, then your client lives in public housing. If the landlord is a private

company or an individual, you will need to ask more questions to confirm whether your

client receives a subsidy. Ask your client if she/he receive a voucher or a site-based subsidy,

though be aware that your client may not know the correct answer.

Additional questions to help determine the type of subsidy:

Do you go to “Housing” (or, “DCHA,” or “1133 North Capitol”) to recertify for your

subsidy? (If yes, this is likely a Housing Choice Voucher or similar tenant-based subsidy

that your client can take from property to property.)

Do you recertify on-site at the property where you live? (If yes, it is likely site-based

Section 8 or another subsidy tied directly to the property.)

2. Determine whether your client received a Notice to Quit (NTQ), if required. A Notice to

Quit in a nonpayment case provides that a tenant must pay the rent amount allegedly owed or

vacate the property by a specific date.

Does your lease say anything about waiving a 30-day notice for nonpayment of rent? (If

your client has a lease, make a copy and look to see if there is a paragraph that waives the

tenant’s right to receive a Notice to Quit, Notice to Correct, or Notice to Vacate in cases

involving nonpayment of rent.)


If the Notice to Quit was not waived, did you receive a Notice to Quit?

o If yes, how and when was it served?

3. Determine whether there was effective service.

How and when did you receive the Summons and Complaint (court papers, usually

yellow and pink in color)?

If someone other than your client is named as a Defendant on the Complaint, who is that

person?

4. Understand your client’s rent and payment history. This information will help identify

possible defenses in a nonpayment of rent case.

Is your rent $________? (amount listed in the Complaint)

Has your household income or household composition changed recently?

o Did you tell the subsidy provider about that change?

Do you agree that you have not paid all of the rent you owed to your landlord?

o If not, when did you last pay rent? Were there any periods before that when you

missed a payment?

o How much rent do you think you owe, if any?

o How do you pay rent (e.g., money order, check, cash)?

Do you have receipts, money order stubs, or bank record showing the

payments you made?

o Do you have money saved to pay unpaid rent? If so, how much?

o If you did not pay all the rent you owed, why not?

5. Explore Housing Code violations as a possible defense. Violations of the D.C. Housing

Code are a defense in nonpayment of rent cases. You want to ask about current problems, as

well as any other problems that existed over the past three years (because that is the length of

the statute of limitations).

Below are some questions we recommend you ask about problems in your client’s unit. We

also suggest asking about each room separately (e.g., “tell me about any problems in your

kitchen”).


Are there any problems in your home?

o Have you had trouble with heat or hot water?

o Do all of your appliances work the way they are supposed to?

o Are there any leaks, water damage, or mold in your home?

o Are there mice or rodents, roaches, bedbugs, or other problems?

o Is there peeling or cracking paint?

o Are there any other problems we have not talked about yet?

When did these problems start?

Have you ever called a housing inspector?

o If yes, do you have copies of any inspection reports?

Have you told your landlord about these problems?

o If yes, when and how – in writing, in person, by phone, by text?

Has your landlord made any repairs?

Have you made any repairs to things your landlord didn’t fix?

6. Explore retaliation as a possible defense. Even if the case is about nonpayment of rent, a

landlord cannot sue a tenant for eviction in retaliation for the tenant exercising his/her rights

under the law (e.g., requesting that repairs be made).

Your client’s answers to the questions above about complaints to the landlord and/or calling

a housing inspector including government inspectors from the Department of Consumer &

Regulatory Affairs or DCHA) are important parts of a retaliation defense.

In addition, you should ask your client the following questions to explore a possible

retaliation defense:

Have you participated in a tenants’ association at the building or done anything else with

other tenants at the building to try to ask for repairs or other things from your landlord?

Do you think your landlord is upset or annoyed with you for any reason? Do you think

that may be why your landlord wants to evict you?


IV. CLIENT INTERVIEW CHECKLIST

B. For Lease Violation Cases

1. Is your client receiving any type of rental subsidy?

Legal Aid tries to identify subsidies at issue when we refer the case to you. However, it is

worth making sure that you know what type of subsidy, if any, is at issue in your client’s

case. Different subsidies can offer different tenant protections.

There are three main types of subsidies:

(1) The Housing Choice Voucher Program (HCVP) is a subsidy that is attached to the

tenant. The tenant rents an apartment on the private market, and the subsidy covers a

portion of the rent. (There are some other tenant-based subsidy programs, but the

HCVP is by far the most prevalent.)

(2) Public Housing is housing that is owned by the DC Housing Authority (DCHA).

DCHA is the landlord, though a private company may manage the property. The

subsidy is attached to the property. If the tenant moves, they lose the subsidy.

(3) Site-Based Section 8 housing is owned and managed by private landlords, but the

subsidy is attached the property. If the tenant moves, they lose the subsidy.

If DCHA is the landlord, then your client lives in public housing. If the landlord is a private

company or an individual, you will need to ask more questions to confirm whether your

client receives a subsidy. Ask your client if she/he receives a voucher or a site-based

subsidy, though be mindful that your client may not know the correct answer.

Additional questions to help determine the type of subsidy:

Do you go to “Housing” (or, “DCHA,” or “1133 North Capitol”) to recertify for your

subsidy? (If yes, this is likely a Housing Choice Voucher or similar tenant-based subsidy

that your client can take from property to property.)

Do you recertify on-site at the property where you live? (If yes, it is likely site-based

Section 8 or another subsidy tied directly to the property.)

2. Determine whether your client received a Notice to Quit (NTQ). In a case involving an

alleged lease violation, your client’s landlord is required by law to provide notice to your

client telling them they have 30 days to correct the alleged lease violation(s), except in

certain types of cases related to criminal activity (see below). This Notice is called a variety

of things: Notice to Quit, Notice to Cure, Notice to Correct or Vacate, etc.


A copy of the Notice should be attached to the Complaint at the time of service. However,

your client should have received the Notice at least 30 days prior to the landlord filing the

eviction action. It is important to ask your client the following:

Did you receive this Notice before being served with the Summons and Complaint?

o If yes, when and how did you receive the Notice?

o Did you respond or otherwise communicate with your landlord about the Notice

when you received it?

3. Determine whether there was effective service.

How and when did you receive the Summons and Complaint (court papers, usually

yellow and pink in color)?

If someone other than your client is named as Defendant on the Complaint, who is that

person?

4. Explore possible defenses to the alleged lease violation. In establishing a defense, it is

important to understand the landlord’s allegation(s) and your client’s response.

Do you have a written lease? (If so, try to photocopy the lease. The Notice often refers to

specific lease provisions that you should review.)

Do you agree with the things your landlord says in this Notice? Are they true?

(Sometimes it is best to break down each allegation in the Notice and ask about each

individually).

o If your client disputes or denies the allegations, do you have any idea what your

landlord might be talking about when making these allegations?

o If there are dates, can you remember anything happening around that time?

5. Explore “cure” as a possible defense. In a lease violation case, a possible defense is that

your client “cured” any violation within the time period provided in the Notice – i.e.,

corrected the lease violation or otherwise stopped acting in violation of the lease before the

30-day notice period expired. We suggest asking the following questions to determine

whether your client cured:

After receiving the Notice, did you change your behavior in any way? For example, if

the Notice is about making excessive noise, what type of action did you take to reduce

the noise? (It is important to ask these questions even if your client denies the allegation

in the first place.)


o If yes, when did you make these changes in behavior and have you continued

these changes in behavior?

o If no, could you make any changes? Is there anything that has prevented you

from making those changes?

“Cure” may not be an option in some cases. There are some cases where the landlord is

not required to serve a Notice to Quit or Vacate, nor provide the tenant an opportunity to

cure the alleged violations. These cases usually involve alleged criminal activity or

allegations that the unit is being used as a “drug haven.” Here are some questions we suggest

in such cases:

Do you agree with the allegations in this Notice?

Was anyone arrested during the incident(s) described in the Notice?

If a search warrant is mentioned, do you know why the police might have been looking

for something in your unit? (Keep in mind that if a search warrant has been issued, a

judge has found probable cause based on some other alleged incident.)

Is there any ongoing criminal case as a result? Was anyone convicted of any crime as a

result? Did anyone plead guilty?

If someone else was arrested/convicted in connection with the alleged incident, what is

your relationship with that person? Does that person live with you (still)? Did you invite

that person to your home? Were they there without your permission?

Note: If your client has been charged with a crime, we recommend obtaining the defense

attorney’s contact information and securing a signed release from your client to speak with

an attorney. If someone other than your client has been charged with a crime or otherwise

was involved, we recommend getting your client’s permission to contact that person (and

later seeking to speak with that person’s criminal defense attorney).

6. Explore retaliation as a possible defense. In lease violation cases, a landlord cannot evict a

tenant in retaliation for the tenant exercising her/his rights under the law.

You should ask your client the following questions to explore a possible retaliation defense:

Have you reported any needed repairs or other problems in the unit to your landlord?

Have you reported any problems or needed repairs to any D.C. agencies? If so, do you

think your landlord wants to evict you because of this?


Have you participated in a tenants’ association at the building or done anything else with

other tenants at the building to try to ask for repairs or other things from your landlord?

Do you think your landlord is upset or annoyed with you for any reason? Do you think

that may be why your landlord wants to evict you?

7. Explore disability as a possible defense/need for an accommodation. Sometimes the

alleged lease violations relate to a client’s disability. This can give rise to a defense based on

your client’s need for a reasonable accommodation, as required by law. Keep in mind that

asking your client about a disability may pose specific challenges as this involves sensitive

subject matter. Here are some examples of how you might best approach the issue with your

client:

Do you have any health problems that might relate to the landlord’s alleged lease

violation or affect your ability to cure the alleged lease violation? Do you see any

doctors or caseworkers for these health problems?

Do you regularly take any prescription medications?

Have there been any recent changes in your treatment, condition, or care?


V. PRACTICE TIPS FOR INITIAL

(AND FURTHER INITIAL) HEARINGS

What happens at the initial or continued (also known as “further initial”) hearing?

On the initial hearing date, the tenant must appear at 9:00 a.m. to answer at roll call, or

else the tenant will receive a default.

Tenants can resolve their cases on the first court date by entering consent judgments (not

recommended) or settlement agreements. Or tenants can contest the case by moving to

dismiss, if appropriate, or requesting a jury or bench trial and filing an answer. Be very

wary of settlement at this early point – tenants typically have more leverage later in the

process.

Note that the initial hearing is often referred to as the “initial return.”

I just met my client. Can I get more time?

Opposing counsel often will consent to a two-week continuance. If so, sign a

continuance praecipe (see Appendix 1) and file it with the clerk in the courtroom.

If opposing counsel does not consent, you will have to wait for the case to be called

before the court. Explain to the judge why you need a continuance and be ready to

summarize your client’s defense(s).

You can cite LT Rule 12(b) (requiring a two-week continuance unless good cause is

shown) and your need to talk about options with your client and prepare a written answer.

Opposing counsel may tell you that you have to file an answer or agree to a Protective

Order at the initial hearing. Don’t believe opposing counsel; the judge is very likely to

grant a continuance without these pre-conditions. (Part VI.A of this guide has additional

information about Protective Orders.)

What is in forma pauperis (IFP) status and how can my client get it?

Litigants in Landlord Tenant Court usually have to pay a court fee to file a jury demand

or Counterclaim, or other motions/subsequent filings, and for witnesses under subpoena.

IFP status waives these fees. Legal Aid sometimes gets the client’s IFP status approved

before referring the case, but you should always double-check the online docket to make

sure the IFP has been granted (https://www.dccourts.gov/cco/maincase.jsf).

Tenants seeking IFP status must complete Form 106A. (See Appendix 2.) Civil Rule 54-

II provides details on the IFP process.

If your client receives one of the benefits under Box #1 on Form 106A, you can file the

IFP before the next hearing and get a ruling ahead of time. This will save time and allow

your client to skip the hearing, although you must still attend.

In all other cases, you and your client will have to appear before the judge for the IFP to

be heard.

https://www.dccourts.gov/cco/maincase.jsf


Does my client have to file a written answer and how do I file an answer?

Tenants requesting a jury trial must file a verified (signed by tenant) answer with jury

demand. Recoupments, setoffs, or counterclaims also must be asserted in writing.

Tenants requesting a bench trial do not have to file an answer. However, we recommend

filing an answer for notice purposes if you plan on asserting Housing Code violations or

other affirmative defenses (e.g., retaliation, discrimination).

Answers in bench trial cases can be filed at any time without a court appearance.

Answers with jury demands require a court appearance to be filed. But if your client has

paid all court fees or has IFP status, you can file the answer with the Interview &

Judgment Officer (Room 111), rather than in the courtroom. This will save you time.

How can I save time waiting in the courtroom?

Don’t go in the courtroom! Whenever possible, see the Interview & Judgment Officer.

Check in with your Legal Aid mentor about what types of matters the Interview and

Judgment Office might be able to handle.

If an appearance before the judge is required, get the landlord’s attorney to waive his/her

appearance. (You can write this on a praecipe, but telling the clerk and judge orally

usually suffices.) Then tell the clerk in the courtroom that the landlord’s attorney waives

his/her appearance, this case is your only matter, and you are ready to be called.

You can gently remind the courtroom clerk that your matter is ready. Be respectful and

keep in mind the clerks face many requests and pressures.


VI. BEYOND THE FIRST COURT DATE

A. Bell Hearings & Protective Orders

Does my client pay rent while the case is pending?

In nonpayment of rent cases, your client usually will pay rent to the court directly. The

“Protective Order” is a court order requiring these payments. The court will hold the

money until the case is resolved.

Even though payments do not usually start until after the further initial hearing or Bell

hearing (see below), the initial payment will be for all rent due back to the first court

date. Alert your client that she/he will need to be prepared to pay the full amount due in

the initial payment.

In cases that do not involve allegations of nonpayment of rent, your client can continue

paying rent directly to the landlord as long as your client stipulates – on the record before

the judge or in a praecipe filed with the court – that the landlord’s acceptance of rent

from that point forward does not waive the landlord’s claims.

LT Rule 12-I contains fairly-detailed information on Protective Orders. You should be

sure to review this Rule.

What if my client is not able to pay the full rent amount to the court?

Discuss with your client what she/he can afford to pay. Counsel your client that the rent

will be paid under a court order, so she/he can be penalized for missed or late payments

(see more below).

If there are current Housing Code violations present in your client’s unit, your client may

be able to pay a reduced amount of rent. The parties can agree on a reduced amount or

you may request a Bell hearing (see below).

Court registry payments typically are due by the 5th day of each month (standard in most

leases), but public housing tenants should be given until the 10th day (the deadline in their

form leases). Parties can agree on a different deadline, so consider whether a particular

day of the month works better for your client given when she/he receives their paycheck

or monthly benefits.

The initial payment can be a financial stretch for tenants. Parties can agree to different

dates for the first few payments. The landlord also may agree to skip the first month

(especially a partial month) if your client agrees to pay the full rent despite the presence

of Housing Code violations.


What is a Bell hearing?

A Bell hearing is an evidentiary hearing about how much rent your client will need to pay

to the court each month pending resolution of the case. In most cases, the evidentiary

issues will be current Housing Code violations; whether the landlord had adequate notice

of the need for repairs; and any reasons why the landlord has not made repairs.

A Bell hearing about housing conditions is effectively a mini-trial. You will want to

bring printed photos of conditions with you to court. Only current conditions (and the

current rental value of your client’s unit) are relevant in the Bell hearing.

Although the jury will make its own findings later (and the Protective Order reduction is

not binding), the outcome of the Bell hearing will influence the dynamics of the case

going forward

Your client also may request a Bell hearing to challenge the rent amount on the basis of

an improper calculation of the tenant’s rent responsibility in subsidized situation or other

issues related to a subsidy (for example, the subsidy provider failed to pay the landlord).

Once the proper rent amount is established, the court enters a Protective Order. You will

receive a piece of paper from the court telling your client where, when, and how to pay

the rent into the court registry.

What if my client misses a Protective Order payment?

Opposing counsel can file a motion for sanctions if your client misses a payment or pays

late. A hearing on the motion will be set in the Landlord and Tenant Branch, usually ten

days from the date of filing.

If your client pays all amounts due (including any subsequent payments due), opposing

counsel likely will withdraw the motion and a judge is unlikely to issue sanctions.

The usual sanction imposed for a missed payment is that your client loses the right to a

jury trial (forcing a quick bench trial) and/or any counterclaim. It is unusual for your

client to lose all defenses as a sanction, though it is possible (mostly in cases where there

are multiple missed payments).



B. Scheduling, Discovery & Mediation in Jury Cases

What happens at a scheduling conference?

The scheduling conference sets a schedule for a jury demand case to move forward. The

only dates typically set are close of discovery and mediation.

The default schedule for landlord and tenant jury cases will set the close of discovery (for

completion of all discovery) 30 days from the scheduling conference. We recommend

asking for at least 60 days instead. Thirty days usually is not enough time to even

exchange initial discovery responses.

If the landlord is represented by counsel, you can (and should) file a praecipe at least

seven days before the scheduling conference proposing a schedule. Some judges will

accept such a praecipe even closer to the scheduling conference date. (See Appendix 6.)

If you file the praecipe at least seven days in advance, you should not have to appear at

the scheduling conference according to court rules. You must check the docket or call

chambers to confirm.

When should I serve discovery?

Discovery is limited to ten interrogatories and ten requests for production in jury demand

cases. Leave of court by motion is required for all other discovery.

You should serve discovery as soon as possible after the answer is filed and no later than

the scheduling conference. Keep in mind that court rules require a party to serve

discovery requests at least 30 days before discovery closes. That means if the discovery

period is limited to 30 days, you must serve discovery at or before the scheduling

conference.

If you do not receive the landlord’s responses to your discovery on time or the responses

are inadequate, begin right away taking the steps required by the rules to prepare for

filing a motion to compel.

What happens when I receive discovery requests from opposing counsel?

You will want to work with your client to prepare discovery responses. Your client may

have very few documents. Just make sure she/he gives you all the documents that they

have, including text messages, emails, and photographs.

It is very important to phrase answers to interrogatories in your client’s words; drop all

legalese and simplify. Include caveats whenever an interrogatory asks for “every” or “all”

– e.g., “I cannot recall every time. . .” Think about opposing counsel reading back the

answer to your client at trial during cross-examination.


You have 30 days from the date opposing counsel serves you to respond to discovery

requests (plus 3 days if the discovery requests were mailed).

If the discovery period ends, pursuant to the scheduling order, before your 30-day

deadline to respond, the court rules do not require you to respond at all, though we

recommend that you still serve objections. . You often will want to communicate with

opposing counsel about a workable resolution – perhaps an agreement for opposing

counsel to file a consent motion to extend the close of discovery if you agree to respond.

How does mediation work?

You and your client must attend mediation. In addition to speaking and meeting with

your client ahead of time, we recommend sending a letter to your client with the

mediation date as soon as it is set to reinforce the importance of your client appearing.

You also should explain to your client what will happen at mediation. You should

instruct your client to let you take the lead when the other side is present. Clients may

make damaging admissions!

Keep an open dialogue with your client to understand your client’s goals, which may

change over time. Make sure to consult Part VII of this guide regarding settlement

pitfalls to avoid.

Thirty days before mediation, you must file a confidential settlement statement on a court

form available at http://www.dccourts.gov/internet/documents/CSSPackage.pdf. The

court will mail a mediation notice with specific instructions.

Make sure you have a strong grasp on the merits of your client’s position before

mediation. For example, in a nonpayment of rent case with a housing conditions defense

we recommend creating a chart or timeline of all housing conditions – when they started,

how long they lasted, when the landlord was given notice, and if/when they were repaired

– to help you consider how much of a reduction in rent each condition warrants.

If mediation fails, the case will be set for a pretrial conference date about 60 days later. If

you need more time for a successful mediation, the parties can agree to a continued

mediation date instead.

http://www.dccourts.gov/internet/documents/CSSPackage.pdf



C. Bench Trial Cases

Why might my client want to have a bench trial (before a judge) instead of a jury trial?

Tenants facing eviction can choose a bench trial with a judge or a jury trial. For most

clients represented by counsel, making a jury demand is better than having a bench trial.

Jury demand cases typically progress more slowly, there is a right to limited discovery,

and mediation is required long before trial. However, if a Protective Order is entered and

your client cannot afford to pay it, or your client wants the case to be over quickly (even

after counseling about the benefits of a jury trial), a bench trial might be best.

If both parties agree, a jury demand can be withdrawn and a bench trial scheduled

instead. Consult your Legal Aid mentor before considering this option.

Is there discovery in a bench trial?

There is no right to discovery in a bench trial case. You can agree to limited discovery

with opposing counsel – any such agreement must be approved by the court. You can

write out your agreement on a praecipe specifying the type of discovery and deadlines for

serving requests and responses. If possible, allow sufficient time to file a motion to

continue the trial date if discovery is served late or is insufficient. Try to use your

client’s waiver of a jury trial as leverage for consent to discovery.

If opposing counsel will not consent to discovery, you may file a motion for discovery,

which will be heard in the Landlord and Tenant Branch about ten days after you file the

motion. Keep in mind that this takes time, so you will want to request a bench trial date

that is further out.

Whether you have a discovery order or not, the Landlord and Tenant Branch rules permit

subpoenaing documents from non-parties as well as witnesses, such as government

agencies and utility companies. A subpoena for documents must be served on the other

side.

What happens on the trial date?

All bench trial cases typically will be referred to mediation on the day of trial, unless the

parties already have mediated.

On the day of trial, your case will be called at 11:00 for “trial status.” The judge will ask

both sides if they are ready for trial, may ask about the likely length of trial and number

of witnesses, and likely will ask about mediation.

You need to be prepared to proceed to trial at 11:00 on the trial date, including having

your witnesses ready. You could consider keeping witnesses other than the first witness

on call if you have a good phone number, you are confident they can appear quickly, and

you will have a second person in court to help you with the required coordination.


You may not need witnesses whose only purpose is to act as a custodian of records. Try

to consult with opposing counsel ahead of time on this issue. Parties can stipulate to the

admissibility of most records and avoid calling a custodian to testify only to authenticate

records. Even if you are unable to reach agreement before trial, custodians of record can

often be available on 30 minutes’ notice rather than coming to court before trial begins.

Because mediation often occurs on the same day as trial, trials can start late in the day

and often may last into a second or even third day. For this reason, it is best to keep the

day after the trial date clear on your calendar. You also may want to agree on next dates

ahead of time with the opposing counsel.


VII. KEY GUIDANCE TO AVOID SETTLEMENT TRAPS

Your Legal Aid mentor can provide critical insight about standard mediation/settlement

pitfalls, tactics regularly used by opposing counsel, and how settlement terms may uniquely

affect low-income clients. Although each case is different, here we provide guidance on the

more common settlement traps of which you should be wary throughout the life of the case to

ensure the best possible outcome for your client. Please check with your Legal Aid mentor on

proposed settlement terms before participating in mediation and/or executing a settlement

agreement.

For All Landlord and Tenant (Eviction) Cases

Avoid consent judgments. A consent judgment (typically filed on Court Form 4A) should

be avoided except in rare cases. A consent judgment is equivalent to losing -- even if

execution of the judgment is stayed, judgment still is entered on the record against your

client. Instead, we recommend entering into a settlement agreement that is typed, hand-

written on a blank praecipe form, or submitted on Court Form 4B.

Don’t be lulled, bullied or fall victim to opposing counsel’s posturing. Opposing

counsel may tell you that certain settlement provisions or language are “standard.” They

may say baseless, irrelevant, or inflammatory things about your client or your client’s

actions. Do not take opposing counsel at their word, and do not let opposing counsel bully

you or your client.

Be very wary about move-out agreements. Even move-out agreements that may look

“good” to you/your client (e.g., significant waiver of back rent) often can do more harm

than good. Your client’s economic reality coupled with the dearth of affordable housing

means that homelessness is a real possibility for your client if they enter a move-out

agreement. Reach out to your Legal Aid mentor before your client enters into a move-out

agreement to ensure that you and your client have considered all factors and

consequences.

If your tenant has a housing subsidy, it is critical to know what type of subsidy they

have to effectively analyze the risks of losing the case versus agreeing to move out.

The stakes are especially high for tenants in public housing or site-based subsidized

housing because forfeiting the unit always means losing the extremely valuable

housing subsidy. Tenants who have a housing voucher face a different analysis: if they

were to lose the case, eviction is a basis to terminate the subsidy, but moving should allow

the tenant to keep the subsidy.

If your client insists on entering into a move-out agreement or a move-out agreement makes

sense in your client’s situation, make sure your client understands the irreversible nature of

the agreement. Press your client on worst-case scenarios, back-up plans, and realistic time-

frames with respect to finding and moving into new housing. For tenants with housing

vouchers, it often takes six months or more to find a new place to live and be ready to move

in.


For Cases Alleging Non-Payment of Rent

Understand the landlord’s claims and what your client believes is owed. Make sure to

review any alleged debt with your client, and make sure you understand how much your

client agrees that he/she owes. Landlords often try to charge high late fees, but Landlord-

Tenant judges typically only allow $10 late fees, so late fees usually can be negotiated

down to $10 per month or waived altogether. In addition, make sure you understand your

client’s repair needs. The landlord also should agree to make necessary repairs (with

deadlines).

Do not agree to a non-redeemable judgment provision in settlement of a nonpayment

of rent case. Even if you lose at trial in a nonpayment case, the judgment is redeemable,

i.e., your client has the right to pay the total amount owed the landlord to avoid eviction.

Don’t agree to a settlement term that puts your client in a worse position than had you lost

at trial. A nonredeemable judgment is only warranted in a nonpayment of rent case if your

client is agreeing to move out.

Avoid “pay on time” agreements and “time is of the essence” language for payment

deadlines. “Pay-on-time” provisions (agreements to pay rent by the deadline for many

months in the future) can set your client up for failure. For example, a tenant could make

10 out of 12 timely rent payments, but if the 11th payment is one day late, the landlord can

move for judgment/eviction. If a “pay on time” provision absolutely cannot be avoided,

reach out to your Legal Aid mentor for help crafting language that can at least give

your client a more forgiving cushion. Also, to the extent possible, avoid “time is of the

essence” clauses in agreements with payment schedules or pay-on-time provisions.

For Cases Alleging Breach of Lease/Notice to Quit (NTQ) Cases

Narrowly tailor a “conduct” agreement to limit an alleged activity for a reasonable

amount of time. For example, if the landlord alleges that the tenant has been “loud and

boisterous” because the tenant is playing an electric guitar, then you could agree that the

tenant “will not play the guitar” as opposed to “not be loud and boisterous” for a period of

six months. A time limit that is reasonable based on the alleged activity and

manageable for your client is key because the landlord could move for judgment in the

same case based on the original Notice to Quit (NTQ) if the tenant plays the guitar within

the six-month period, but once the six-month period is exhausted, the landlord has to serve

a new NTQ and file a new eviction case.


APPENDIX


2. Application to Proceed In Forma Pauperis

3. Sample Answers (Pro Se and Attorney Answers)

4. Protective Order Information Sheet

5. Sample Protective Order Praecipe

6. Sample Scheduling Conference Praecipe

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

LANDLORD AND TENANT BRANCH

____________________________________

[LANDLORD], )

)

Plaintiff, )

) Case Number: XXXX LTB XXXXX

vs. )

) Next Date: Initial Hrg., X/XX/XX, 9:00 a.m.

[TENANT], )

)

Defendant. )

____________________________________ )

PRAECIPE

The Clerk of the Court will please continue the above-captioned case for a further initial

hearing [and a Bell hearing] on XX X, 20XX, at 10:00 a.m., by consent of the parties, with all

rights reserved to both parties[, for ascertainment of counsel and the filing of responsive

pleadings].1

Respectfully submitted,

Attorney, D.C. Bar #XXXXX XXXXX

Legal Aid Society of the District of Columbia

1331 H Street, NW, Suite 350

Washington, DC 20005

[email protected]

Counsel for Defendant Counsel for Plaintiff

1 Some attorneys like to add this language.

mailto:[email protected]

2. Application to Proceed In Forma Pauperis

3. Sample Answers

Pro Se Answer Form

Attorney Answer (Nonpayment of Rent Case)

Attorney Answer (Lease Violation Case)

4. Protective Order Information Sheet

5. Sample Protective Order Praecipe


CIVIL DIVISION


____________________________________

[LANDLORD], )

)

Plaintiff, )

) Case Number: XXXX LTB XXXXX

vs. )

) Next Date: Initial Hrg., X/XX/XX, 9:00 a.m.

[TENANT], )

)

Defendant. )

____________________________________ )

PRAECIPE

The Clerk of the Court will please enter a protective order requiring Defendant to pay $X

per month to the registry of the Court, beginning on XX 5, 20XX, with payments continuing by

the 5th day of each month while this case remains pending.

[The Clerk of the Court will please enter a protective order requiring Defendant to pay

$X for January 2016 rent by XX, XX, 20XX, $X for February 2016 rent by XX, XX, 20XX, and

$X per month by the 5th day of each month thereafter while this case remains pending.]


Beth Mellen Harrison, D.C. Bar #XXXXX XXXXX

Legal Aid Society of the District of Columbia

1331 H Street, NW, Suite 350


[email protected]

Counsel for Defendant Counsel for Plaintiff

mailto:[email protected]

6. Sample Scheduling Conference Praecipe


CIVIL DIVISION


[LANDLORD],

Plaintiff,

v.

[TENANT],

Defendant.

No. XXXX LTB XXXXX

Next Date: Scheduling Conference,

X/XX/XXXX, 9:30 a.m.

Calendar 7 – Judge X

PRAECIPE REQUESTING SCHEDULING ORDER

Counsel for Plaintiff and Defendant, as evidenced by their signatures below, hereby

certify that:

1. This lawsuit is at issue (all parties have been served and have answered);

2. All parties are represented by counsel;

3. There are no pending motions;

4. All counsel have reviewed the provisions of Rule 16(b)(4)(B) and (C) and do not foresee

any issue requiring court intervention;.

5. This praecipe is being filed prior to the Scheduling Conference set herein; and

6. The parties request that the Court issue a Scheduling Order for Landlord and Tenant

Track. The parties request an extension for the close of discovery to March 31, 2015.

The parties request that the Court schedule mediation for April 13, 15, 27, or 29, 2015 or

the first available Wednesday or Friday thereafter.


Attorney Name, DC Bar No. XXXXX XXXXX

Legal Aid Society of D.C.

1331 H Street NW, Suite 350


Email address

Counsel for Defendant