Representation, Outcomes, and Fairness in Legal Proceedings

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.

Continue ReadingRepresentation, Outcomes, and Fairness in Legal Proceedings

The Verdict? A Very Successful Civil Trial Conference

marquette1One of this Law School’s most noteworthy legacies is its production of many of the region’s most outstanding trial lawyers.  The legacy was fully evident on Friday, November 6, 2009 at the Civil Trial Evidence and Litigation Conference.  The sold-out event served as a “last call for Sensenbrenner Hall” of sorts while featuring a panel that well-represented the many fine trial lawyers who have distinguished themselves as Marquette lawyers.  It was my privilege to help organize the conference along with Pat Dunphy (L’76), who conceived of the idea and was the key to assembling the talented panel of Marquette alumni.  In light of Friday’s success, Pat and I have already begun discussing next year’s civil litigation conference, which will be held in the Law School’s new venue in Eckstein Hall. 

             The presentations spanned a broad array of issues and problems regularly confronted in civil litigation.   The strength of the presentations rested not just in their discussion of doctrine and rules, but in the panelists bringing to bear their experience and insights in preparing and trying cases.   Links to the written CLE material and the accompanying PowerPoint presentations will be posted on the Law School’s website later this week.

             Starting the day was Michael J. Cohen (L’86) of Meissner Tierney Fisher & Nichols SC, who underscored the important relationship between pretrial practice and outcomes at trial.  Drawing on his extensive experience as a commercial litigator, Mike addressed the duty to preserve evidence, especially electronic information, when a lawsuit appears on the horizon.  Mike emphasized the need to work with the client to understand what the law requires so that discoverable information is not destroyed, inadvertently or otherwise, thereby exposing the client (or counsel) to sanctions.  Pat Dunphy (L’76) of Cannon & Dunphy SC, addressed a different aspect of pretrial practice, namely, the creative use of requests to admit during discovery.  Pat described how he used requests to admit to obtain a binding judicial admission in a major product liability case that proved determinative of its outcome.

Continue ReadingThe Verdict? A Very Successful Civil Trial Conference

Pondering the Wisconsin Supreme Court’s Criminal Docket

Last week, I was delighted to participate in the Conference on the Wisconsin Supreme Court organized by Rick Esenberg.  The panel I moderated reviewed some of the court’s most significant criminal cases last term.  But “most significant” is a relative term, and I don’t think any of the panelists found the court’s recent criminal cases to offer anything especially bold or innovative.  The court seems to be operating more in an error-correction mode than a law-declaration mode.  Recent decisions generally do not announce new rules of law, but operate within established legal frameworks and decide cases based on the particularities of the facts presented.  (Indeed, an exception to this trend, State v. Ferguson, 767 N.W.2d 187, drew a sharp rebuke from Justice Bradley, who characterized the majority decision as “an unbridled exercise of power.”)  Notably absent is the “new federalism” exhibited in some earlier terms, in which the court interprets state constitutional rights in ways that are more protective than the analogous federal rights.

Fans of judicial minimalism should be happy with the court’s recent criminal decisions.  So should fans of judicial collegiality: the court’s minimalist holdings produce few dissenting votes and (Bradley’s shot notwithstanding) a generally respectful tone in the few dissenting opinions.  I wonder, though, if all of this minimalism and case-specific analysis provides sufficient clarity in the law for the police officers, lawyers, and trial-court judges working in the trenches of the criminal-justice system.  Though much in vogue now, minimalism has its vices, too.

Continue ReadingPondering the Wisconsin Supreme Court’s Criminal Docket
Newer Posts
Older Posts