Representation, Outcomes, and Fairness in Legal Proceedings

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Category: Civil Rights, Human Rights, Legal Practice, Marquette Law School, Mediation, Milwaukee, Uncategorized, Wisconsin Civil Litigation, Wisconsin Law & Legal System
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gideonAs my colleague Rebecca Blemberg recently blogged about, California has moved in the direction of recognizing a right to counsel for civil litigants with critical legal needs.

The concept of a constitutional right to counsel in certain civil cases is often referred to as “Civil Gideon,” after the Supreme Court decision that established the right to counsel in criminal cases, Gideon v. Wainwright. Critics charge that recognizing a civil version of the right established in Gideon will cause “waste” by increasing litigation. A recent Wall Street Journal law blog post quoted Ted Frank, for instance: “What is clear is that you will never have a simple eviction because every single one of them will be litigated. . . . The rest of the poor will be worse off because of that.”

I guess “waste” is in the eye of the beholder. As a student noted on another blog,

While I understand the drawback of added litigation, I’ve never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case.

Indeed, it seems beyond dispute that pro se litigants are, on average, overwhelmingly disadvantaged by lack of representation.

For instance, the final report of the Access to Justice Committee of the Wisconsin State Bar in 2007 cited research establishing that unrepresented litigants were dramatically less successful in Equal Rights Division hearings on probable cause:

outcomes in probable cause hearings and found that complainants with counsel are successful more
than 42% of the time while complainants without are successful only 17% of the time. In a probable
cause hearing, the ERD determines whether there is enough believable evidence of job discrimination
to let the case move forward to a hearing on the merits. Judges in Rock County reported a similar
disparity in outcomes in cases involving domestic abuse injunctions. Large numbers of abuse victims
who are unrepresented give up before the case comes to a final hearing. Abuse victims who are
represented regularly appear and most often prevail. Judge James Daley observed, “I doubt that this
circumstance is the result of [a] chang[e of ] mind[] or that the abuse complained of in the petition
stops.

[T]he Equal Rights Division of the state Department of Workforce Development tracks outcomes in probable cause hearings and found that complainants with counsel are successful more than 42% of the time while complainants without are successful only 17% of the time. In a probable cause hearing, the ERD determines whether there is enough believable evidence of job discrimination to let the case move forward to a hearing on the merits. Judges in Rock County reported a similar disparity in outcomes in cases involving domestic abuse injunctions. Large numbers of abuse victims who are unrepresented give up before the case comes to a final hearing. Abuse victims who are represented regularly appear and most often prevail. Judge James Daley observed, “I doubt that this circumstance is the result of [a] chang[e of ] mind[] or that the abuse complained of in the petition stops.”

Likewise, statistics show that immigrants who are represented by counsel stand a greater chance of avoiding deportation, on average. Specifically, according to a report from Minnesota Advocates for Human Rights (reporting to the United Nations, on the United States’ compliance with its international obligations to protect civil and political rights), the Executive Office of Immigration Review’s own statistics for the years 2002 through 2006 demonstrate that

in cases involving represented, non-detained immigrants, 34 percent secured relief; but only 23 percent of unrepresented, non-detained immigrants received relief. Similarly, in cases involving represented detained immigrants, 24 percent secured relief as compared with only 15 percent of their unrepresented counterparts. More pronounced disparities appear in political asylum cases: 39 percent of represented, non-detained asylum seekers received political asylum compared with 14 percent of unrepresented, non-detained asylum seekers; 18 percent of represented, detained asylum seekers were granted asylum, compared to three percent of unrepresented detained asylum seekers. [footnotes and citations omitted, and emphasis added]

In other words, not only do represented immigrants have a better chance of avoiding deportation, that advantage is greatest in some of the most critical cases: aliens in detention and aliens seeking refuge from persecution.

Similar examples abound. The Brennan Center’s Civil Right to Justice web pages document, for instance, the “crisis in legal representation” arising out of the current foreclosure crisis. Wisconsin courts have seem a sharp uptick in foreclosure filings: last year was a record-setter for Wisconsin foreclosure actions, with more than 25,000 actions started, and this year (according to the Law School’s foreclosure mediation program web page) is on pace to pass that record.

Imagining our courts swamped with foreclosure actions suggests another potential benefit of civil Gideon: maybe access to counsel would improve not only fairness but also efficiency? Rather than promoting wasteful litigation, lawyers might help people present their claims more clearly and effectively. They might even convince some who lack a genuine defense to give up the legal fight. (In a similar vein, the National Coalition for a Civil Right to Counsel links to a number of different studies and reports tending to show economic and social benefits resulting from the provision of civil legal aid for the critical legal needs of those who can’t afford attorneys.)

Well, as so often seems to be the case, I have no tidy ending for this post. I just wanted to draw together in one spot various news items and blog posts that had recently caught my attention, at a moment when the question of fairness in critical legal proceedings seems to be on many minds. As always, I welcome your comments and criticisms.

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5 Responses to “Representation, Outcomes, and Fairness in Legal Proceedings”

  1. Rick Sankovitz Says:

    Great post, Jessica, tidy ending or no. I think it’s a great service to the cause to pull together the research in one place and repeat it. On civil Gideon we hear that one echo so often — more lawyers, more litigation. What really needs to be heard is our echo — more lawyers, better results. Thanks for putting this up.

  2. Rebecca Blemberg Says:

    Thanks, Jessica, for the post. With the passage of the law in California, and the work of access to justice commissions across the country, I hope that civil Gideon as a movement is gaining momentum. In your remarks, I see a beginning.

  3. I am glad that both of you read the post and found it worthwhile. I do think that as the evidence piles up of the unfairness created when one party in our adversarial system of dispute resolution goes unrepresented, the argument that more lawyers would create wasteful litigation seems less and less persuasive.

  4. I have certainly seen this in my experience as a california litigation attorney. There are injustices due to financial constraints daily. Some judges attempt to assist pro per litigants, and there are other forums like arbitration that may help pro per litigants. Thanks for the good article, Best, Daniel Bakondi

  5. It really comes down to the judges and their staff. If they do their job properly, it brings attorneys and parties into order. If they dont, for instance, kick bad cases on demurrer, or hold parties responsible for abuses of the system, that is when problems grow. Being a judge is so important. Attorneys may defend against frivolous cases and have no idea whether a judge will allow it to continue or not, and attorney can bring good cases and have no idea whether they will be throw out, if judges do not do their job.

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