The justice system is supposed to protect innocent people and convict criminals, but all too often, the legal system lets people down. Lower court systems are the start of a defendants journey, and unless a case is brought before someone like Judge Mike Tawil who believes that all litigants who have a fair and full opportunity to be heard, the initial court appearance could be the start of a very painful and devastating experience with justice. To make this point, Judge Richard Posner, a judge on the United States Court of Appeals for the Seventh Circuit, abruptly ended his legendary judicial career after issuing a final opinion detailing the frustration over the ways self-represented litigants are treated.
Access and Affordability
For many lower-income individuals charged with a crime, there are few resources that can help mount a defense in either civil or criminal cases. There is just no money to pay for an attorney to help them navigate the legal system. Statistically, 80% of state-level criminal defendants cannot afford a lawyer, and only those who have been charged and incarcerated are able to receive appointed counsel. Those with misdemeanor charges have no right to an attorney and must either afford it one their own or go without one. Even in misdemeanor cases, an individual that is convicted could face steep fees or fine and face consequences like deportation or the loss of certain benefits.
In a civil case, there is no constitutional right to have an attorney appointed. There may be some jurisdictions where a civil litigant is entitled to a lawyer, but the majority of people that don’t have one appointed don’t have the funds to pay for their own either. In many of these cases, the individual tries to be their own representation, generally failing at the effort and having the case dismissed or lost. These cases may have been won under different circumstances and the assistance of legal counsel. Since civil cases often involve domestic violence, child custody battles, housing, or public benefits claims, the absence of a lawyer can completely change an individual’s life.
The unfortunate result of a pro se litigant (party representing them self) in the courtroom is that 80-90% of them are underrepresented when compared to their opponent. The economic downturn saw a significant increase in the number of self-represented litigants, with statistics from the state of Georgia showing that more than 800,000 cases were heard in 2016 that involved self-represented individuals. Not having qualified counsel makes a dramatic difference in many cases. In the area of low-income tenants and eviction proceedings, the odds of winning improve when a lawyer is employed. For tenants in New York City, 50% of cases are lost when a tenant represents themself, while 90% of cases are won when a tenant hires a lawyer.
The legal system is complex, requiring a vast knowledge of different areas of law in order to wade through the legal matters and paperwork filing needs associated with any one case. A self-represented litigant would have to know what court to use, how to interpret the law, how and when to file a motion, the right way to compile evidence, and how to move towards negotiating a settlement. Entire legal teams can handle these activities, but someone without experience, time, and resources doesn’t really stand a chance. Missing just one step in the process could mean the difference between winning and losing, which could mean more than just a lost case. It could mean the loss of freedom, financials, or custody of a child.
Low-income individuals need more equitable access to legal counsel if justice is going to be brought within reach. Whether full-service representation becomes more affordable or the forms and procedures are simplified and streamlined, pro se litigants need a far opportunity for justice.