In 1963, the Supreme Court unanimously decided in Gideon v. Wainwright, 372 U.S. 335 (1963) that the Sixth Amendment gives all low-income defendants the right to counsel in criminal cases. A year later, the Court broached the issue of a similar right in civil cases claiming that "laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries.” See Brotherhood of R.R. Trainmen v. Virginia, 377 U.S. 1, 7 (1964). However, in 1981, it declared that indigent litigants do not have the right to court appointed counsel in cases involving the termination of parental rights. See Lassiter v. Department of Social Services,, 425 U.S. 18 (1981).
In the past decade, the movement towards establishing the right to counsel in civil cases has been gaining traction, and in 2006, the ABA issued a statement showing its support. Well, from the ABA's mouth to Governor Schwarzenegger's ears, and we get the first state law in California mandating legal representation for indigent civil litigants, otherwise known as the "Civil Gideon."
The big question here is where the money is coming from. According to the Wall Street Journal, court fees will be increased by a mere ten dollars, and the extra money will be used to fund the new law starting in 2011. Until then, the money will go to the courts so they can get back on their feet in the midst of the golden state's budget crisis.
In the Journal, Ted Frank argues that this law will flood the courts with unnecessary litigation. He claims that parents will be less likely to reach agreements in child custody cases, and landlords will be forced to litigate evictions. 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. I mean, if everyone can just represent themselves, then why are we spending so much money on law school?
The result is that many nonprofit organizations, such as Legal Aid, are swamped with cases and constantly turning people away. While Frank assumes that the people who are turned away must have meritless cases, I think the more likely conclusion is that these public interest organizations are simply losing a battle of supply and demand.
I do have my doubts about the funding, as well as California's ability to enforce this mandate while trying to revive its floundering economy. However, my initial reaction is hats off to the Terminator for boldly changing the course of civil litigation.
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