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Why not counsel in civil cases too?

Monday, November 23, 2009


by Gene R. Nichol

CHAPEL HILL -- For a half-century, the justices of our highest courts have reiterated that "the right to be heard would be of little avail" if it did not comprehend the "right to be heard by counsel." Even the intelligent and educated layman, the courts have said, lacks the skill and knowledge to represent himself. Anyone "too poor to hire a lawyer cannot be assured a fair trial unless one is provided." This, they chide, is an obvious truth.

The familiar refrain applies, however, only in criminal cases. Though the phrases' truths are inescapable in the civil context as well, here, broadly speaking, we ignore them. Unlike most Western democracies, we recognize no right to counsel in civil controversies. And it shows.

Study after repetitive study shows that at least 80 percent of the legal need of the poor and near poor in the United States is unmet - that is, when faced with daunting legal challenges, over three-quarters of Americans are fenced out of the justice system designed to resolve their disputes.

And this occurs, regularly, on the most crushing issues of life. Child custody, domestic violence, housing, sustenance, health care and education are ready examples. Ironically, we provide counsel to assure an indigent doesn't inappropriately spend a weekend in the drunk tank. But we leave her unprotected if only the custody of her children is at stake. No parent thinks that gets it right.

Last year's North Carolina equal justice study found even deeper patterns of exclusion here. Our legal services offices turn away over eight of 10 actionable claims because of inadequate resources. Higher percentages of the beleaguered likely never seek assistance in the first place. What passes for civil justice among the have-nots is breathtaking.

And that was before we entered the great recession. A just-released study by the Legal Services Corporation finds, unsurprisingly, that our economic slide has pushed millions, anew, into poverty - and their resulting legal challenges have ballooned accordingly. Sixty percent of judges report a large uptick in pro se, or unrepresented, cases. National journals find that legal services offices are swamped.

The foreclosure crisis alone, USA Today reports, presses well beyond any comprehensible capacity. Millions "lose their homes because they lack the ability to navigate the landscape of our lending laws." Providers turn away clients not because their cases are weak, but because they aren't life-threatening. And sometimes they're turned away even when they pose imminent danger. It's difficult to characterize our framework as a system of justice.

Nor are the flaws merely procedural. Charlotte's legal services offices report that, in 2000, they were faced with 150 home foreclosures a month. Now, it's over a thousand. For the lucky few who obtain a lawyer, about three-quarters retain their homes. Such successes for the unrepresented, on the other hand, are, relatively speaking, rare.

The recession has brought forward cascades of unemployment compensation cases as well. Represented challengers in Charlotte overcome about 90 percent of initial employer-driven disqualifications. Those without counsel prevail in fewer than half of cases. A university study suggests that the largest single factor in predicting whether a victim of domestic violence will again be brutally beaten is the presence of counsel.

We carve "equal justice under law" on our courthouse walls. We seem satisfied with the mere advertisement.

It is not this way everywhere. The American Bar Association reports that "most European and Commonwealth countries have had a right to counsel in civil cases for decades" - nations that talk less about a foundational commitment to equality than we do. Talk less but do more.

And some state supreme courts, unlike our own, have expanded rights to counsel in various civil contexts under their own constitutions. Last month, even amid its unparalleled budget challenges, California's legislature passed the nation's first overarching civil counsel statute - reaching cases involving "vital matters affecting livelihoods and families."

Our rights to liberty, opportunity and property are inescapably tied to meaningful access to a system of civil justice. But our high phrases are mocked, in actual operation, for those unable to pay the fare. During Justice Sonia Sotomayor's recent Senate hearings, Sen. Lindsay Graham claimed "the hope of the world is that our legal system will be spread around it."

The poor and near poor of the United States, and North Carolina, could explain to Graham that it's not so. Not so, at least, until we better match the reality of our system of adjudication to the promise of equal justice upon which it claims to be based.


Gene R. Nichol is a professor of law and director of the Center on Poverty, Work and Opportunity at UNC-Chapel Hill.

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