Judge Richard A. Posner, a legendary judicial figure, retired abruptly earlier this month to make a point: People without lawyers are mistreated in the American legal system.
In one of his final opinions as a judge on the United States Court of Appeals for the Seventh Circuit, he expressed frustration at the dismissal of one self-represented litigant’s lawsuit, writing that the prisoner, Michael Davis, “needs help – needs it bad – needs a lawyer desperately.”
Unfortunately, Davis’s circumstances are far from unique. Many lower-income people have no lawyer to help them navigate the legal system, either in civil or criminal cases.
Eighty percent of state criminal defendants cannot afford to pay for a lawyer, and only those who are actually incarcerated are constitutionally entitled to appointed counsel. Many people facing misdemeanor charges can, if convicted, be subjected to significant fines and fees, or face the loss of benefits (including housing) or deportation. Yet, they have no right to an attorney, and those who cannot afford a lawyer will go without one.
Unlike in the criminal context, there’s no federal constitutional right to counsel in civil cases. Civil cases can involve a range of critical issues, including housing, public benefits, child custody and domestic violence. And while some civil litigants may be entitled to counsel in certain jurisdictions, in most of these cases, people who cannot afford a lawyer will be forced to go it alone. Doing so may mean that they fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case.
As directors of the Center for Access to Justice at Georgia State University College of Law, we agree with Judge Posner. People like Michael Davis desperately need help. Without legal assistance, their issues will likely be unresolved or, worse, wrongly resolved against them.
In some states, as many as 80 to 90 percent of litigants are unrepresented, even though their opponent has a lawyer. The number of these “pro se litigants” has risen substantially in the last decade, due in part to the economic downturn and the relationship between poor economic conditions and issues like housing and domestic relations.
The Legal Services Corporation, the single largest funder of civil legal aid for low-income Americans in the nation, reported in June that 86 percent of low-income Americans receive inadequate or no professional legal help for the civil legal problems they face. Here in Georgia, state courts heard more than 800,000 cases involving self-represented litigants in 2016 alone.
In some types of cases, not having counsel can make a dramatic difference. Take the example of low-income tenants facing eviction. Across the county, roughly 90 percent of landlords are represented by counsel, while 90 percent of tenants are not. Simply having a lawyer increases the odds of being able to stay in one’s home. When tenants represent themselves in New York City, they are evicted in nearly 50 percent of cases. With a lawyer, they win 90 percent of the time.
Navigating the system
Why is having a lawyer so important? The reality is that even the most mundane legal matters can require dozens of steps and complex maneuvering.
In one study, researchers identified almost 200 discrete tasks that self-represented litigants must perform in civil cases – from finding the right court to interpreting the law, filing motions, compiling evidence and negotiating a settlement. Some of these tasks require specialized knowledge of the law and of the court system. Almost all require time away from work and caring for children. Many also require the ability to get to the courthouse, to read and to speak English or access a translator.
The Access to Justice Lab at Harvard Law School has also tracked how labyrinthine the justice system can be. Just starting a routine process – like establishing a legal guardian for a minor – can take many steps, and even these can vary in unexpected ways, given the natural variation among judges and the particulars of a specific case.
Regardless of the type of case, missing just one step could mean you have to start the process all over again or even cause the case to be dismissed, sometimes without the option to refile.
People often quip that there are far too many lawyers. Yet the reality is that, while there are a lot of lawyers in certain geographic areas and certain specialties, in many rural areas – sometimes referred to as “legal deserts” – there are actually far too few lawyers.
To make matters worse, in many of those counties, public transportation and internet access are sparse, and a significant percentage of the population doesn’t even have access to a vehicle.
The Self-Represented Litigation Network, a nonprofit focused on reforming the system to help those representing themselves, has also used mapping tools to depict how access to the justice system can vary across the country and sometimes even within the same state.
Changing the statistics
So, what do we do about the fact that the legal system is, for many people without a lawyer, nearly impossible to navigate? We believe that it will take a variety of different approaches to solve this issue.
Some experts, like John Pollock with the National Coalition for a Civil Right to Counsel, have focused on expanding the right to counsel in civil cases implicating basic human needs. Others have advocated for expansion of the right to counsel in lower-level criminal cases where the consequences – including obstacles to housing or employment, or deportation – can still be incredibly high.
In Washington, nonlawyers can be trained and licensed to offer legal support to those unable to afford the services of an attorney.
Still others, like Self-Represented Litigation Network founder Richard Zorza, emphasize simplification of legal processes, including changing or eliminating the procedural and evidentiary rules that make the process so difficult. For example, the Tennessee Supreme Court has approved plain-language forms and instructions, written at a fifth- to eighth-grade reading level, for use in uncontested divorces between parties with minor children.
Which approach is best? It may depend on the case – and an effective solution will include a combination of the above. Some cases will require nothing less than full-service representation by a lawyer, while in other contexts, streamlined procedures and simpler forms may be sufficient for pro se litigants to get a fair shake.
Whatever the solution, the problem is clear: Self-represented litigants’ grievances are real and, for too many, justice is out of reach.