A litigant has a better chance in court when represented by a lawyer than when representing themselves. That’s a known fact. For just that reason, a person charged with a crime has a right to a lawyer. A civil litigant does not.
Over the years, many in the legal profession have supported the notion of a civil Gideon, a right to a civil lawyer.
Gideon refers to a 1963 Florida criminal case, Gideon v. Wainwright, in which Gideon was charged with breaking and entering with the intent to commit a misdemeanor, which was a felony. At the time, lawyers were available only to defendants in capital cases. Gideon, who represented himself, lost and was sentenced to 5 years in prison. The US Supreme Court overturned the case, ruling that the Sixth Amendment’s guarantee of counsel is a fundamental due process right.
It’s easy to see why a “civil Gideon” is supported in criminal cases–because someone’s liberty is at stake. Yet other important things, like housing and child custody, are threatened in civil cases. That’s why so many litigants without the means to hire a lawyer represent themselves.
Courts though aren’t enthusiastic about self-representation by non-lawyers.
You’ve heard it before. Self-represented litigants are difficult to deal with. They’re unprepared for court and can be rude. Their numbers are huge and growing. They don’t do a good job of navigating the country’s inscrutable legal system. It goes on, but you get the point. Self-represented litigants are a problem for the legal system.
These statements are very familiar to lawyers and pro se litigants in the United States. However, the insights were gleaned from an article regarding the Canadian legal system, not that of the US. The difference is that in Canada, in May of 2017, the Canadian judiciary did something about it, or at least made a statement.
In Pintea v. Johns, a unanimous decision by Canada’s highest court endorsed principles which state in part that judges “should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.”
Is this a civil Gideon? No. It falls short of the goals espoused by proponents of a civil Gideon. There is no right to civil legal counsel in Canada, but the decision opens the door for other more effective means of justice for self-represented litigants.
Yet, the all-or-nothing approach whereby every low income litigant has an attorney has its disadvantages. An article, published by the American Enterprise Institute, listed three main points regarding a right to legal counsel for civil litigants.
A Civil Gideon Would Be Expensive and Wasteful. Hiring lawyers for every indigent unrepresented criminal litigant vastly increased the expense of prosecution, including the number of attorneys hired and multiple appeals. In civil cases, the legal system is expected to respond similarly.
A Civil Gideon Would Increase the Demand for Lawyers. If the costs to obtain a lawyer are lowered, there will be a greater demand for them. Attorneys will take on more meritless cases, further clogging the court system.
Real Innocence May Be Lost With the Implementation of A Civil Gideon. Because of a predicted vast increase in meritless cases, parties with meritorious cases will have a more difficult time distinguishing theirs from the rest.
Whether true or not, these are big hurdles in a money-focused society like the U.S.
To some degree, states already provide assistance for low income people representing themselves. In New York, thirty-seven percent of low income civil litigants receive legal assistance. What happens though to
- civil litigants who can’t afford a lawyer but aren’t considered low income,
- those who lose in court before they can gain access to a free attorney,
- the other fifty-three percent of low-income people who give up waiting for a lawyer, or even
- people who can’t get help from relatives and friends for fear of running afoul of laws regarding the unlicensed practice of law?
The notion of a free lawyer for civil cases sounds good, and there are people that truly need it. Others, however, might simply need guidance or a lawyer to pop in on a one-time basis and write a difficult brief or speak at a hearing. In short, there should be a way to make self-representation less difficult.
Lawyers make a big difference in the success and fairness of a court case. It’s time that the judiciary gives self-represented litigants the tools to close the gap. Whether that begins with a supporting set of principles, as exemplified by Canada’s highest court, or comes in the form of technology or a civil Gideon, just get ‘er done.