Benjamin Barton (Tennessee): “Against Civil Gideon (and for Pro Se Court Reform)”

Benjamin Barton (Tennessee) has written, “Against Civil Gideon (and for Pro Se Court Reform).”  Article here.  (nod to Legal Theory Blog)  Last week I did ethics CLE for direct services lawyers and they are pretty excited about the potential of Civil Gideon.  Abstract:

 

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.

 

Comments

[Patrick S. O'Donnell]

Perhaps at some point the experts at this blog might chime in with their views of this argument, which struck me at first glance as counterintuitive but I've changed my mind after reading the paper (well, I've let the argument trump my intuition). It seems an assumption here is that despite their avowed motivations or intentions, lawyers promoting "civil Gideon" can't avoid rent-seeking behavior: Yes?

In any case, I think this is a must-read paper for anyone with the slightest interest in the topic.

[Brat Magusrsky]

The difficult part of this is that most pro se litigants face almost impossible odds. I have experience being a pro se person in the late stages of a divorce action. The Judge hates you and trying to get law enforcement help almost requires a mandamus action to get them to serve anything (i had a Sheriff Dept Lt. tell me he was not serving any "bootleg" paperwork even though it had been filed with the Clerk's office). The usual non fatal errors in pleadings afforded consideration if it were an attorney becomes instantly fatal if you are pro se. Why ? Judges can't spread the wealth of attorney fee sanctions if you are pro se and right and they hate it. It's all about the $$$$!

[John Steele]

It's a tough issue that goes way beyond legal doctrine and into the realm of policy, second best solutions, and unintended consequences. I fear that if we adopted full Civil Gideon, we would eventually stop funding, and chronically underfund, that kind of taxpayer-supported lawyering -- but we don't fund it now, anyway. And are the two solutions mutually incompatible? Is there room to simplify the law and process in the areas where pro se litigants predominate?