Access to Injustice: Pro Se Litigants, Civil Justice Reform and the Economics of Law

The aphorism “Where you stand is where you sit” means that one’s philosophy and opinions are necessarily shaped by one’s job or profession, which fits well within the ongoing debate over the proper role of lawyers within the adversarial system. The negative public perception towards the legal profession is somewhat ironic: judges are the gate-keepers to access to justice; lawyers remain the vanguard in advocating individual rights, both of which are fundamentally enshrined democratic values in any legal system governed by the Rule of Law. Hence, the adages “I want my day in court!” or “I don’t care what it costs, sue the bastards!” continue to resonate in the public psyche. The first question one should ask a potential client is:”How much justice can you afford?”
The serious problems facing economically disadvantaged litigants was recently reported in the Toronto Star in an article “Legal Aid facing ‘troubling cuts'” :
“The “clinic resource office” is on the hit list as Legal Aid Ontario makes major service cuts, which community legal clinics fear will curb their ability to serve the needy.
 An email obtained by the Star says Legal Aid Ontario is projecting a deficit of $46.7 million this year, despite the recent provincial government decision to invest an additional $150 million in legal aid services over the next four years.
 The clinic resource office’s budget is to be reduced as part of overall cuts in legal aid spending.”

The phrase “access to justice” has different shades of meaning. To the public, it usually means getting one’s “day in court”. However, for other justice stakeholders; the provincial government, the judiciary, law societies and the legal profession, it is a continuing struggle to strike a balance between fair, efficient and timely judicial administration on the one hand, and substantive and procedural justice, on the other. Ultimately, it is the perennial issue of the economics of law or, obversely, the law of economics.

In a recent Beyond the Bench blog post entitled “Where Have All the Attorneys Gone?, Ohio Municipal Court Judge Deborah J. Nicastro laments:

“More and more defendants fall within the gray zone where they do not meet the State’s indigency guidelines yet lack the financial resources to hire an attorney. Within the past 18 months, I have noticed may days when all the defendants in my courtroom were represented by appointed counsel only or have no representation at all. In civil cases, most of which are credit card debts, I estimate that at least 70% of the defendants are self-represented.”

Is the phenomenon of unrepresented or “pro se” litigants a result of recessionary downturn in the global economy or the historical effect of inflation escalating the cost of legal representation? Certainly, not only individual and corporate clients, but institutional clients are keeping a closer eye on the legal services bottom-line, expecting lawyers or law firms to consider alternative compensation arrangements, such as fixed fee/block fee and “hybrid” compensation agreements, and contingency fee agreements, in some instances.

“If it ain’t broke, don’t fix it” no longer curries favour with civil justice reform advocates. Take, for example, the recent sea change to Ontario civil procedure following the recommendations contained in The Civil Justice Reform Project 2007-The Osborne Report, authored by The Honourable Mr. Justice Coulter A. Osborne, Q.C. In a similar vein, Charon QC reports recently on the Review of Civil Litigation Costs: Final Report by The Honourable Lord Justice Jackson . At page 149 of Lord Justice Jackson’s Final Report, the Law Society of England and Wales made the following submission on the issue of fixed costs:

“The principle of fixed costs

The Law Society is not opposed in principle to fixed costs in the fast track, providing that there is the option to apply to remove the case from such a scheme if significant costs are envisaged at any stage. We also consider that it is too ambitious to try to fix costs for all PI2 cases and all other fast track cases at this stage. Any proposal to do so should be delayed until the proposed RTA streamlined claims process has been evaluated. To extend the principle of fixed costs could adversely affect access to justice or increase the number of unrepresented litigants bringing claims.

It also needs to be made clear that any fixing must take account of the processes. In the Law Society’s view, fixed costs will only reduce overall costs if changes to the process are made. If reductions are made without such changes then the likely effect may well be that solicitors will seek to recover any shortfall from the client. This means that there is likely to be further pressure on the principle, which the Law Society supports, that the client should not lose money from their damages. [emphasis added]

If we take the Law Society’s argument in extremis, then “fixed costs” make the “cure” of civil justice reform worse than the “disease” of lack of access to justice. Is a “civil Gideon” guarantee of counsel the answer? Not so, according to Benjamin Barton of the University of Tennessee College of Law whose recent article posted on SSRN: Against Civil Gideon (and for Pro Se Court Reform) favours pro se court reform:

This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform. 
Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is little in indigent criminal defense that makes one think that a guarantee of civil counsel will work very well. If Courts have not required funding for meaningful representation in the serious cases covered in Gideon (including felony and death penalty prosecutions), it is extremely unlikely that they would do so in civil cases like eviction or deportation. 

Moreover, focusing our attention on pro se court reform is a much, much more promising and likely palliative to the legal problems of the poor. Lastly, and most importantly, civil Gideon is a deeply conservative and backward looking solution to this problem, while pro se court reform has the potential to do more than just help the poor. It has the potential to radically reshape our justice system in ways that assist everyone. 
Is it axiomatic that access to justice is simply a function of the economics of litigation and the business of law, or are these a contradiction in terms?

3 Responses to “Access to Injustice: Pro Se Litigants, Civil Justice Reform and the Economics of Law”

  1. J Says:

    I live in Nashville, TN., and am being forced to a federal civil trial in about a month b/c I cannot afford and the court will not appoint a lawyer. This is an employment discrimination case against my former employers.I believe when I hear arguments positing civil Gideon vs. Pro Se Court reform for the poor, it mistakes reality about how the courts treat pro se litigants. The amount of deference to parties with attorneys and the prejudice against the poor litigant makes a joke of the entire process.In my case, there is an already established process on how district federal judges are to appoint civil counsel, but they will not use it in my case, because of the racism and personal bias of the trial judge. How he and other federal judges keep their appointments when they discriminate against the poor in violation of their oaths of office are strictly because of politics and lifetime appointment.So while you all argue in a vacuum, real people are being hurt and deprived of a right to present their cases before an impartial tribunal because of their poverty and inability to pay for justice.

  2. The Trial Warrior Says:

    Thanks for your comment, J.I understand your level of frustration. There is a widening gap between rich and poor and the middle-class is the thin end of the wedge. Ontario Legal Aid is generally available for criminal, family and immigration matters, but those who with civil litigation disputes do not have the same access to justice. Pro se plaintiffs and defendants face numerous obstacles trying to navigate the unfamiliar terrain of the court system structured in favor of lawyers—those with expert knowledge of substantive laws and procedural rules. To some degree, at least in my jurisdiction, the increase in the monetary jurisdiction of the small claims court to $25,000 provides some measure of balancing the playing field; particularly, where the small claims court rules are modeled and implemented with self-represented litigants in mind. The financial inability to retain counsel is tantamount to a denial of a meaningful opportunity to be heard, which remains a serious issue for all justice stakeholders: litigants, trial lawyers, and judges. In the cases I have appeared involving pro se plaintiffs or defendants, the presiding judge has always taken pains to ensure procedural fairness. Moreover, our Rules of Professional Conduct mandate that counsel facing unrepresented parties must assist them to the greatest extent possible, save and except that the paramount duty is to one's own client. It is, after all, an adversarial system. Your experience in Tennessee federal civil court is obviously different, but the issue, as I remarked in my post remains: "how much justice can you afford?"

  3. Michael E McKinzy Sr Says:

    Well after proceeding for twenty-five years as a pro se litigants in both the United States federal and state courts, I'm now ashamed of the injustice that pro se litigants receive in United States's courts at the hands of judges and lawyers to protect their own profession!-Born to do battle, drafted at birth!-Michael E. McKinzy Sr.-10-11-2010P.S. I still believe that: "Even if you don't have a lawyer you still deserve Justice!"

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