As we’ve had occasion to note in the past (scroll), there’s a campaign underway to create a broad-based new entitlement for low-income persons (and perhaps others as well) to be provided with lawyers at public expense to handle a variety……

But respectfully, Paul, it is the consumer that is seeing the issues of representation (aka Civil Gideon) without blinders, not the legal community. There are so many things that the “average non-lawyer” can do not only to represent themselves in court, but with education and information, can act to prevent ending up in court in the first place! thereby not even needing a lawyer.

I agree wholeheartedly with your comment about one side having an attorney and the other side non-represented though. One of my major issues is the “lack of level playing field” in the judicial system itself. Judges give preference and credibility to attorneys when one side is represented, to the point it is atrocious and blatant disregard for rights. Tell me why a judge would believe an attorney who states there is a court order, while the unrepresented litigant vigorously states there is not, and demands its production. The result: The judge responds “there must be one because an attorney wouldn’t lie about that.” (never produced or required either; the “system” won). You want to go to jail over something like that?

It’s common, as are other issues that the legal community seems to not want to address because it involves their own adding to the failure of the system.

I agree there are many who haven’t a clue how to navigate the system, but is that a reason to make a blanket decision to deny them the right to learn to? Or assistance from others to do so (where the State Bar Associations immediately jump in and charge UPL). My own interpreter of 15 years withdrew because she was charged with UPL for helping me read and manage my legal documents. She was also forcibly removed from a courtroom by a judge who “decided” I did not need one in her courtroom. Yeah. Equal justice all right.

And Bonnie Russell brings out an excellent point about Domestic violence (always follow the money on any issue!). In Family Law, domestic violence extends into the courtroom, many times with the help of the system itself. The Minnesota Center Against Violence and Abuse had an excellent article published several years ago (and appeared in Lexis I believe; link and document not handy but will be going up on my site soon). I believe the title referenced “Stalking Through the Courts” or something like that. It was about how abusers are enabled by the court system (and attorneys and those involved in the system) to continue stalking and abusing their victims (especially the children) through the courts. How many attorneys in family law unknowingly play into this type of abuse and manipulation? Too many.

The court system has become a bloody and brutal battlefield, with few left unscathed. In domestic relations, entire generations of children are scarred for their lifetimes. The system will change because, if we don’t change it now, they will later.

Does anyone want it to be sooner? or later?

I’m happy to say that the experience of litigants, judges and pro se practitioners across the nation jibes with what I saw going to Family Court on perhaps a thousand mornings — average people, with a little guidance from court personnel and an appropriately receptive approach by the judges, making their cases and receiving a fair result without lawyers (and, often, against laweyrs). But, and this is very important, things are getting even better every day, thanks to growing and improving self-help assistance programs — and, much more can and should be done.

Not only does pro se assistance give much more bang for the Access-to-Justice buck than hiring lawyers for every poor litigant, it also allows the non-poor to assert their right to have important everyday disputes resolved without involving lawyers. Some of the poor do not have the capacity to represent themselves. But the vast majority do, and it is not too much to expect that they will take advantage of self-help resources before asking the public to pay for a lawyer.

The Chief Justice in your state recently said she was proud that Massachusetts is a leader in providing assistance to unrepresented litigants, but more must be done. Frankly, many states are doing much more than Massachusetts is, and I hope efforts will greatly increase across the Commonwealth.

The court system belongs to the public, not to the legal profession, and should function in a way that serves the public’s interests first.  As I said on the shlep About page:

The average American is not an illiterate serf who cannot understand and handle — with a little bit of guidance — most of his or her own everyday legal problems.   In other words, we shouldn’t have to shlep around with a lawyer on our backs in order to get justice. The best way to ensure that the non-rich also have access to necessary legal and judicial services is to give them the ability and the option to formulate adequate solutions themselves, including acting as pro se litigants in court. 

All these studies aside…much is said, little is done.

Our government is broken. It’s up to us, not legislators to fix it.
Attorneys and the public alike are making sure transparency is the answer at http://www.USAjudges.com

Reports made there have already ended the efforts of one judge, up for re-election after eight years on the bench; overstayed his ability/desire to be impartial. He’s now free to return to private practice.

The law is necessarily complex, as are the rules that are used to govern the process. The average person without legal training simply is not equipped to navigate the system in a way that will fully protect his/her rights. Go to any clerks office and you will see person after person who cannot fill out a simple form or comprehend how to serve the complaint on the opposing party. There may be some exceptional people who can represent themselves but the average person cannot do so — and expecting the sytem to be simplified is not realistic. It’s not going to happen because the issues involved are too nuanced, too reliant on caselaw interpreting common law and poorly drafted statutes.

Although civil Gideon might sound to some like a “full employment act for lawyers,” many lawyers in fact are not in favor of it for a number of reasons. I myself am not convinced that civil Gideon is the answer but I do believe something must be done to help those who are incapable of protecting their fundamental rights without an attorney that at present they cannot afford. The average person can put on a band aid without the aid of a doctor but wouldn’t dream of performing surgery on him/herself — they would leave that to a surgeon. The law is no different.

Paul J. Martinek

The right to access to the courts, fair hearing, equitable treatment, and unnecessarily adding to the pockets of the legal community who, as we have already experienced with the criminal court-appointed counsel, ineffective counsel in most cases.

Gideon v. Wainwright did guarantee right to counsel in criminal matters, but it did not limit that right to people based on financial or societal status. It guaranteed right to all regardless how that happened. For those without the financial means, that meant money. But what about those accused of something many attorneys would not want to represent? or political issues? The court did not discriminate those issues in the Gideon decision (although our current Administration now has!). That is what is equitable. And this is the point I disagreed on with in a conversation with Debra Gardner (Brennan Center) in 2004. Immediately after that conversation I purchased the domain names “Civil Gideon.”

I’d say your stats are “optimistic” though regarding the 20%. Try more like 50-60%, adding those attorneys who dump their clients mid-case for various reasons.

Burp! (the left foot)