Negotiating Stability: The Strategy and Strain of Eviction Defense

Kyle McEntee:

We're joined today by Ezra Lintner, a litigation staff attorney at the Eviction Defense Collaborative, a San Francisco-based organization. Ezra, let's start really basic. What does an eviction defense lawyer do?

Ezra Lintner:

Eviction defense lawyers defend tenants going through the eviction process.

Kyle McEntee:

So you're not defending the choice to evict, you're defending someone who says, hey, you can't evict me.

Ezra Lintner:

Correct.

Kyle McEntee:

So a lot of our listeners may be familiar with Gideon v. Wainwright, a U.S. Supreme Court case that declared that anyone hauled into court on criminal charges, state or federal, has a right to be represented by a lawyer. So based on Gideon and its progeny, if you're facing jail time, the court will appoint someone for you if you can't afford one.

So there are a few shortcomings in how this right to counsel works in practice. Public defense systems are underfunded. Waiver of counsel isn't always scrutinized. It only applies when incarceration is on the table, even though there are serious consequences for so-called petty offenses. But one really huge hole is that Gideon only applies to criminal cases. So access to justice advocates routinely, and in my opinion, persuasively, argue for a civil Gideon. That is, the consequences in civil court can be quite serious too. So the right to counsel should apply in at least some civil defense situations. And that really brings us to where you work.

So San Francisco voters adopted an initiative, similar to initiatives in other cities, to adopt a right to counsel for people being evicted. The city government funds the Eviction Defense Collaborative, which is a nonprofit entity that has actually been doing this work for decades. How do your clients find their way to you?

Ezra Lintner:

Our clients come to us through a variety of different means. A major one is that when tenants receive paperwork telling them that they're being evicted, we're listed as one of the organizations that can assist. Our organization's also done advertising and promoting, and hopefully word of mouth also gets us pretty far. But tenants usually come to us because they've been referred either by an organization in the area that we partner with, or because they got our information from the court.

Kyle McEntee:

So on the eviction notice, is the name of the organization actually on that notice?

Ezra Lintner:

So when a tenant gets served an initial paperwork showing that they are being evicted, they are getting something saying, you are being sued. It's called a notice to defendant. That gives the bar referral service information. And then the second page lists EDC, Eviction Defense Collaborative, along with other organizations. And the sheriff will usually give it to people as well.

Kyle McEntee:

There's this guaranteed representation. Are there income limits on this? That's really common on a lot of legal services.

Ezra Lintner:

Yes. So as of right now, the city voter mandate of representation for all tenants who are going through an eviction can't be realized yet. Our organization is working really hard to gain enough funding, enough attorneys to provide that. And it really is on the city. It's a voter mandate. So it really is on the city to cut the appropriate size check and fund it properly. And so until that day, we do have to base who gets representation based on what's called a vulnerability score that takes into account economics. So a person's income, a person's assets, that determination is not made by the attorneys though. It's made by the clinic intake staff.

Kyle McEntee:

So then when you're meeting the client for the first time, that's already happened?

Ezra Lintner:

Absolutely. It's much more the public defender model where our attorneys do not get to choose or screen. We're handed a stack of cases essentially that have been predetermined to qualify for our services.

Kyle McEntee:

So is that attractive to you? I know not everyone loves the idea of business development.

Ezra Lintner:

There are pros and cons to it. The pros are that you would hope that with a metric that was crafted really carefully and is under constant scrutiny, that there's less of an opportunity for inadvertent prejudice and discrimination in that, that it can be sort of formulaic, I guess. There can be benefits to that.

It is really challenging to not choose your cases, to get a set of cases that maybe there are cases in there that I wouldn't take, but that gets back to the work that we're doing, right? Everyone is entitled to this representation. It's not whether you have a quote, good case or a bad case. So it's not the model that a private attorney or a corporate attorney would be able to sort of accept and say, I don't think you have a good case here, right? When you're playing defense, every case is a good case. So there are obviously issues that come with that.

I don't know if I prefer that model or I'm attracted to that model. It just sort of is. And I've never done anything else. I'll say that. I have never worked at a private firm. I've never worked at a corporation. I've only ever worked at nonprofits. I can imagine those worlds, but I don't know what they're like.

Kyle McEntee:

All right. So this initial conversation happens. What does that look like?

Ezra Lintner:

Yeah. I really like to start our conversations with sharing a little bit about myself and my role at the organization, making sure that they understand the scope of the representation that they've been guaranteed and what that looks like. Give a little bit more concrete information about that.

And then I really like to take some time to set the scene of an eviction and really make sure that they understand what the process is and where they sit in that process. I come from a background, before I was with the Eviction Defense Collaborative, there was a lot of education. And sometimes the prior organization I was with, the only thing that we had the capacity to provide. But we are not taught about our legal rights, civil or criminal. And so making sure that tenants understand the landscape of eviction so that it's not mystifying is where I start. And really, I like to say, I'm going to talk at you for about 10 minutes. And I talk them through this, I guess it's sort of a monologue that I've done 1,000 times now, where I try to set the stage of here are the steps, here's what's going to come next. And I always tell them, we're going to build a map, we're going to take a 30,000-foot view together, we're going to look at the entire map, and then we're going to bring it all the way back down because you're going to drive yourself crazy if you're trying to walk down every path on this map at the same time, you can't do it. You can't do it, and you don't have to. So I want you to know what's possible, I want you to know what's out there, but I also want us to stay right here together.

And that's where I'll sort of turn it over to them and say, now, what's going on? How did we get here? And what will that mean next? And that's really what I like that first conversation to be like. It usually takes about an hour. There's lots of questions.

People have a lot of ideas of what an eviction is that are not correct. We spend a lot of time making sure that, I always tell them if a meteor hits my car on the way home and you never hear from me again, here are the things I want to make sure you take away from this conversation. And we had a few really important legal rights and responsibilities of a tenant to make sure that they understand their obligations too as they're going through the process.

Kyle McEntee:

So presumably your clients are pretty scared at this point because they're facing the prospect of losing their housing. How have you learned to navigate their complicated emotions?

Ezra Lintner:

It is always, always, always a work in progress on that one. I don't necessarily have a perfect answer, but my work is sort of that trauma stewardship. I mean, going through an eviction is extremely traumatic.

A tenant is never calling me because things are going well. It is never a happy occasion. I often think about and talk about evictions as one of the more traumatic things that can happen to a person. And to really emphasize that happening to a person, right? There's no agency in that. And I think it can be as traumatic as a death or a breakup or losing a job, right? Up there with those sort of world-changing, life-shaking things.

When people are being evicted, it's not just that they are experiencing whatever hardship led them to eviction. They're also contending with losing their home, and that is highly emotional. And so it can be really challenging for people to separate their emotions to the extent that they need to. To make a logistical plan, and I don't think we can expect them to, right? I don't think that's a fair expectation to have.

And so in terms of my role, that's why I try to do some of that centering. I try to hold on to that. I also try to emphasize it's not like what you see in the movies where the sheriff's just going to knock on the door and you're out. You are safe right now. You are safe in your home tonight. You're safe in your home tomorrow night, right? While we're working together, your housing is stable. And so I try to provide enough information and realistic and true reassurance so that they can bring their threat level down from sort of like immediate fight or flight to like, okay, I have that cushion now, and now I can sort of start thinking about next steps and making a plan. But it is a lot of emotional work. And I also have to come back to the fact that the tenants I work with, and especially the vast majority of people who have experienced economic hardship throughout their lives, are resilient and hardworking and not afraid of a challenge. And so I don't have to manage their emotions. I can provide them this information and the reassurance. And sure, sometimes it is about getting on the phone and being like, okay, talk me through it. I know why you're upset. I can imagine that. Tell me about it, though. Let's talk about that.

And at the end of the day, that's their experience, right? Those are their emotions to manage. And so there's a huge relief in being able to come back to the fact that my clients are, like I mentioned, hardworking folks who have dealt with systems that are encouraging their subjugation throughout their lives. So this is not new. Engaging with conditions that are going to try to force people into deeper poverty is not new. And my clients are extremely resilient people, by and large, like, above all else, that is the number one word.

Kyle McEntee:

So what are some of the typical fact patterns that lead to someone coming to you? Someone saying, I'm being evicted, why is the landlord saying, it's time for you to go?

Ezra Lintner:

The number one cause is non-payment of rent. The economic disparity in San Francisco is pre-French Revolution, pre-guillotine status. I mean, it is really just about as bad as you can imagine, right?

You have the ultra-mega, like the wealthiest people who have existed in all time. And then you have people in absolute destitute poverty. And the vast majority of San Franciscans fall in between that, but more towards the lower end of things. And so the vast majority of the time, they're everyday folks who are experiencing economic hardship for some reason or another. They've lost a job. Perhaps they are a single parent and don't have support from the other parent of their child. Perhaps they have experienced an injury and there are no support networks that can provide them economic stability. It's really everyday reasons is the most common fact pattern. After that, it's a lot of folks who are struggling severely with their mental health and with substance abuse disorders that are sort of compounding in a way that they can't maintain their housing because of their actions, which is tragic.

Kyle McEntee:

It sounds like what's going on here is that they breached their lease. And so what is your goal with this? Is it to help them find a way to say, I didn't actually breach it, or is there some other legal goal here?

Ezra Lintner:

Any good lawyer will tell you it depends. It really does. And so it depends on the client's goals. You always, always, always come back to the client's goals and you see what you can do within that. So sometimes, yeah, non-payment of rent is breaching the agreement that you've made to your landlord, right? Acting in a way that threatens your neighbors or whatever it is, is breaching your lease and your agreements to your landlord. And so when we're talking through these things, it's trying to figure out our number one goal is to keep our tenants housed. And the way I think about it, especially economically, is I want to keep my neighbors in San Francisco. I want my neighbors here. I do not want them to be pushed out. And so that's my goal, which is secondary to their goal.

And that becomes fact dependent. Do you have the ability to stabilize economically? Because at the end of the day, if you can't, and we make promises we can't keep in a settlement, we're going to be back in the same situation. And then you might end up with an eviction, right? So it's trying to come up with a way to stabilize folks. And if that can't work, then to make the move out as gentle and with as much agency as possible, right? So to either stabilize or to soften the blow.

Kyle McEntee:

Sounds like a lot of your work is trying to broker a settlement between your client and the landlord. What goes into that process of persuading someone, a landlord in this case, that, yes, my client hasn't paid you, but you should give them some grace here and help them have some stability. How do you persuade them of that when they might just have this mentality of, well, you know, we made a deal and you broke the deal?

Ezra Lintner:

I think your question has multiple sort of parts to it. I think I'm a negotiator first. And I've always thought of myself as, I love litigating. I really do. It wakes me up. I feel on fire. There's nothing else in the room. It's one of the few times in my life I can get into a flow state and I'm really attracted to it for that reason. That's my own internal desire.

But I negotiate 80% of the time, right? 90% of the time. I always say we only cage fight when we have to. I'm not really the type of person who wants to get in there and change the mind of the landlord attorney, because I don't think that I can. I think they're coming from a really capitalistic perspective, and I'm inherently not, I'm not a capitalist, right? So there's immediately a political and philosophical tension that I don't, my role in that moment is not to change their mind. So I think that where I'm coming from is, sure, presenting the facts is great. I have yet to have a landlord attorney be swayed by the humanistic argument. You know, Mrs. Blank has lived here for 30 years, right? She's lived in the same apartment since the 90s. She is our neighbor and we should try to figure out how to keep her here. That's not a persuasive legal argument, because we don't come from the same political or philosophical background.

I've had landlords tell me the same. Well, what am I supposed to tell my client? They're going to go out of business. And I'm like, I don't know how to tell you I don't care. I really, I don't. They're a major corporate landlord. That's okay with me.

And so my role is not to try to change their mind, but to understand where they're coming from, right? To understand what their motivations are. I don't need to agree with it, but I do have to understand it. And in some type of way, respect it enough to take it into account. And so I think that I will stay away from those sort of humanistic arguments most of the time. If that worked, we would not have eviction defense attorneys.

Kyle McEntee:

And they probably wouldn't have moved to evict in the first place, right? They probably would have brokered that settlement on their own.

Ezra Lintner:

Correct. But I think we need to come to a place of, so what are your motivations? It's always money, right? It's always money. Really 100% of the time it's money. So what do we need to do to get you what you need and make an agreement that my client can actually comply with? So, right. Can my client actually stabilize economically? It's not fair for me to say, sure, she's going to pay you next month, right? And then have her fall apart. The settlement falls apart and then she gets evicted, right? But rather, okay, let's think through what a realistic offer would be and what are the factors such that settlement behooves you? That's the other part. It's never just that the tenant has done something wrong. There's always something. And looking through those defenses, right? Whether they're affirmative defenses or otherwise that we can sort of say, this is why it's in your best interest to settle. Are you going to spend $50,000 litigating a $14,000 settlement amount? Or are you going to forgive some amount of it and let my client get back on track? Is it actually in your economic benefit to spend $50,000 on this? Because then your philosophical argument starts falling apart.

Kyle McEntee:

So what do you do to get inside someone's head who you just so substantively disagree with philosophically, so that you could know what might persuade them to move forward?

Ezra Lintner:

It's often money. So it's often, I have to remember they're in this for capitalistic reasons. So we have to come back to cashflow and capital and those things that I should have taken more seriously, the economics I should have taken more seriously in my undergrad rather than another sociology class.

I think I can assume where their mind is at with that stuff. I will share my client's experiences because I think that they should be said and they should be centered even though they're not. But I don't think any, I think I can guess what they're going for. I know what they want. They know that I know what they want. And they'll tell me. That's usually, I try to shoot pretty straight. I really just don't like to play games. I just really like to say, what is it that you need and want? Let's just start there. So my opposing counsel, I'd like to think, is often straight up with me too. I run into problems because lawyer's a lawyer, but usually I just ask. Usually I don't dance around it. And I try to tell them realistically whether I think I can provide it. I'm also not going to make false promises to an opposing attorney. That's a, A, we can't, but B, it's just, it's a recipe for heartbreak.

Kyle McEntee:

So a big part of litigation is often discovery. Is that a big thing here? Or is there really nothing in dispute?

Ezra Lintner:

No, totally. Discovery is a big deal. The way I like to prep these cases is to, I always tell my clients, we're going to do a dual track. I want to assume we're going to settle. I want to come up with a settlement. Litigation's a heartbreaker. I love it, but again, whoops, it's not about me. So I like to pursue settlement. At the same time, you have to prep your cases so it's not going to settle. And because somebody has gotten full scope representation, they're entitled to litigate if that's the client's goal.

That's where the discovery comes in. Discovery can help us determine the factual background with a little bit more clarity. Just because the landlord says you owe me money does not mean that's true. I have to verify that independently. And then you get into other bigger issues. And that's where the cases get a lot more interesting. Are there habitability concerns? Habitability is that guarantee landlords must make to have a safe premise to rent out if they're going to rent anything in California. It's a guarantee. Are there habitability concerns? Are there structural concerns with the building. And it gets a lot more intense if we're not talking about a nonpayment case. If we're into a what we call a nuisance case, alleged bad action on behalf of the client or that the landlord claims that they're moving in, which is not nuisance, that's a whole different area. That's where depositions start taking place. That's where discovery gets really intense because it's not what is or is not acceptable is not so easy as did the check clear. The more shade of gray you get, the more discovery you get.

Kyle McEntee:

So the concept of habitability is really interesting to me. Can you explain a little bit about how that works from the tenant's perspective?

Ezra Lintner:

Yeah. So that's a really fun area of the law. It's very specific. Different jurisdictions control differently, but the statewide habitability requirements are such that if a house is uninhabitable, let's just say for the purposes of our conversation that there's exposed wiring. It can't be like, oh, the blinds are broken. It has to be uninhabitable. That's high standard. And you'd be surprised how often it happens though. Let's say there's exposed wiring that you can see and hear crackling and arcing above you. Nobody should be in that room. That's unsafe for a human or any other life. And so you have to see that issue, notify your landlord and make a request that they repair that issue. And they have to fail to do that in good faith. That's our big three.

Now your options, if we've hit big three and their options are you can withhold your rent. You can tell them, hey, you messed up. This is arcing. I'm not paying for this. They can still take you to an eviction because you didn't pay your rent and your habitability becomes an affirmative defense. You're right. I didn't pay my rent. And here's why. And that is excusable in California to an extent. So that's option one. Option two is I'm going to get it repaired and withdraw from my rent. I have a friend who's an electrician. He's going to patch that up for me. Listen, it costs 250 bucks. I'm taking that off rent. They can again, try to say you're 250 short on rent. I'm taking you to court and your affirmative defense is you're right. I am 250 short on rent. And your other big option is to say that essentially the landlord has failed to provide what they guaranteed you they would provide. And you are considering the contract void and you're moving out.

Kyle McEntee:

So the San Francisco law only affords a right to counsel once someone's been served that eviction notice. But it sounds like there's a lot of information that would be really valuable to them from a lawyer before they get that notice. So that way they don't end up with that notice of eviction. What's the solution there?

Ezra Lintner:

We're not taught what our rights are when we're working with our landlords. I hate to be this person, but I think it's intentional. Why is this not taught in every single high school class There's a two-week thing on what are your rights as renters? The vast majority of high schoolers are going to become renters. The vast majority of people are renters. How do we not understand these systems? Why are we not taught these systems? And why are they so inaccessible that you have to go to high school, then college, then law school, and then receive training through the folks who take you under their wing to understand this and speak about it enough?

So the solution, that's much harder. I think there has to be education very early on. I think it has to become so widespread that people know their rights like they know their rights as their Miranda rights, where you're like, wait a minute, I'm not supposed to talk to you right now. There should be the equivalent. Now the difficulty here, of course, is that it changes state to state and jurisdiction to jurisdiction. I would love to sit by the pool and think about potential solutions. My brain usually does not go there, which is maybe my own problem.

Kyle McEntee:

You have a huge weight on you, right, of these people who are facing losing their home. So it's not terribly surprising that you don't have the time or bandwidth to just sit down and think. It's complicated from a legal perspective. It's even more complicated from an emotional perspective. Who do you turn to when you need help? Because you're only a few years in your career, although the way you talk about it, it sounds like you've got decades of experience.

Ezra Lintner:

I mean, I have a phenomenal support network, which I think every lawyer has to have. Anybody in this arduous field has to have. My personal life, I mean, my wife is just my biggest supporter. She is a wonderful sounding board, and it's wonderful that she understands and cares about my work without being in it. She's not a lawyer, and that's extremely helpful.

I have friends who are based in activism work who understand that I want my role to be a supporting role in the struggle writ large, and they can bring me back to those more radical roots because being involved in the law whatsoever is less radical than I'd like to be. And so I think that they can sort of keep me grounded in civil procedure aside, what are we actually talking about here? And that's hugely helpful. Got to shout out my therapist, Molly. Molly, if you're listening, you're a real one.

In terms of other lawyers, the folks I work with, I always say EDC and the other organizations I've been with are our greatest source of wealth. I mean, they are passionate, brilliant, wonderfully kind people. And so there are a few specific mentors that I'll reach out to, or a few folks I like to bounce ideas off when I'm really trying to get a better understanding of my place in it, and when I'm trying to make sure then that just that I'm understanding the law and getting that done correctly. And then, yeah, like I said, our lawyers are just next level, wonderful, wonderful people.

Kyle McEntee:

So I think you entered this work with a particular point of view, right? Have you felt any evolution away from that original point of view as you've gone through this work and meeting people with these opposing philosophical views?

Ezra Lintner:

No, I think if anything, it has radicalized me further. I think it's really hard to witness what I witness day in and day out and then have sort of a polite conversation at like a dinner party about like, well, what does rent control really do? I feel the ire build in me because I'm thinking about my clients, right? I'm thinking about my neighbors. Those are my neighbors. That's my community.

Kyle McEntee:

So how do you manage the weight of when a case doesn't go your way then?

Ezra Lintner:

They always say you don't get into defense if you like winning. You have to think about what it is for a case to go your way ever. I mean, I have to try the best that I can, right? We have to try the best that we can. My tenants, the vast majority of them are trying the best that they can. There are some that really hit you, right? There are some that I usually say if a case has made me cry, I'm going to take the rest of the day off, right? I'm going to log that mental health time and go for a walk with the dog, right? So my other great support network.

I think that when we're working through some of this stuff, all you can do is remember that it's not, I didn't create this system. I'm validating it by being part of it, which is really challenging for me philosophically, but I'm going to get in there and do the best that I can. I'm going to encourage the tenants that I work with to get in there and do the best that they can. If it fails, if it doesn't work, if the client is evicted, that's not always something I can help, right? It's not about me. I guess taking my ego out of it has made a huge, huge difference that as much as the lawyer stereotype is to get in there and win, blah, blah, blah, it's not about me. It's just not about me.

I know I'm good at my job. I have enough confidence in that. I have enough confidence that I did the best that I could and that I gave it the best that I could and that usually is enough. And when it's not enough, if there's something to glean from it, then there's time for that. And there's people who will sit down with me and review my work to make sure that I'm gleaning what I need to glean, but then it's really not taking it personally.