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Need for guaranteed civil representation

| Wednesday, October 28, 2020

In the U.S., a citizen’s ability to secure favorable legal outcomes largely depends on the proficiency of legal representation. In the 1963 U.S. Supreme Court case Gideon v. Wainwright, the Sixth and Fourteenth Amendments guarantee a right to legal counsel for all accused of a crime. This ensures a fair trial and due process for the accused person standing against his or her accusers. It is established then that the right to a fair trial can only be protected if a person has access to adequate legal representation, regardless of his or her financial status.

However, while the American legal system upholds fair trial protection in criminal cases, the same cannot be said for most civil cases. This is a clear ethical flaw in terms of the system adequately protecting the rights of all U.S. citizens. With civil legal counsel not being guaranteed by the Constitution, those without the financial means to obtain adequate legal advice are forced to fend for themselves in cases involving contracts, including those related to property. The ability to navigate the civil legal system depends greatly on an individual’s financial status and resources, and this must change.

In civil law cases in the U.S. legal system, people with the financial means, resources and flexibility can seek desirable outcomes, while many others are left in the dust. Some may argue that guaranteeing the right to counsel in criminal cases is enough, and that perhaps expanding this to civil cases would be too impractical, or that civil cases are simply not as important to people or their livelihoods. However, this viewpoint neglects the reality of civil cases and their impact, as well as the associated costs that are a barrier to fairness.

The first step in litigation is often consulting an attorney to seek qualified legal advice. The national rate for an attorney is $225 per hour. In comparison, approximately 42.4% of U.S. workers make less than $15 per hour. It should come as no surprise then that for many people, coming up with the money to deal with legal disputes is not only unaffordable, but unfeasible. According to The Atlantic, a Clarus poll resulted in 67% of respondents saying that “the time and trouble it takes to file a lawsuit discourages many people with legitimate cases from going to court.”

Everyday people are deterred due to cost and lack of expertise. Additionally, there is no national system for civil representation or assistance that meets the needs of many Americans. These barriers to representation for low income Americans coexist in the same system where wealthy people, who have the luxury of utilizing the resources needed to win a dispute, have direct disputes against these poorer people.

A figure provided by Pew shows that 54% of civil litigation involved suits by businesses against individuals, comprised of debt collection, landlord-tenant and mortgage foreclosure cases. Are the defendants of these types of cases in situations where they have the financial capacity to adequately respond to these claims? People in debt? Tenants? People at risk for a foreclosure? These people are in vulnerable positions and without access to an attorney, people who will have a tremendous burden in terms of defending themselves. This is a shortcoming of the current system where access to fair civil trial is not guaranteed. These cases are not insignificant either, with basic necessities at stake, such as maintaining a place to live.

Many people are forced to represent themselves, setting themselves up for legal failure. The National Center for State Courts (NCSC) released a report which found that “at least one party was self-represented in more than three-quarters of the cases.” The number of people without fair representation is high, and under consideration that many do not even file for civil cases due to the costs and requirements, even higher.

To expand, a Boston Bar Study about housing disputes found that “full representation therefore allowed more than two-thirds of the tenants in this pilot to avoid the destabilizing consequences of eviction, including potential homelessness.”

“Represented tenants also received almost five times the financial benefit (e.g., damages, cancellation of past due rent) as those without full representation,” the study reported.

Adequate civil representation matters, and this study shows just how dire the consequences are when people are not given a fair shake in the American civil legal system. The ramifications are real, including research suggesting that a continuous cycle of concentrated poverty could be the result of this lack of civil legal representation.

The American legal system is failing to protect the rights of all U.S. citizens due to the lack of access to a fair trial with counsel. There needs to be a better understanding of the severity of civil cases. Many of these cases are too important not to incorporate under the right to counsel. By forcing a large chunk of U.S. citizens to be inadequately represented in the civil legal system, the U.S. is failing to uphold fair trial and due process. To ensure all U.S. citizens have equal protection and ability to stand a fair chance in civil cases, there needs to be a major reevaluation of which types of cases should include the right to counsel. The legal system must work for all people, regardless of financial status and this starts with expanding the right to an attorney to civil cases, especially cases concerning basic needs.

Justice Mory is majoring in business analytics and is part of the John W. Gallivan Program in Journalism, Ethics, and Democracy. He is from Southern California, and now lives in Duncan Hall. His main goal is to keep learning and to continue to become more informed. He can be reached at [email protected] or @JmoryND on Twitter.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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