by Daniel Richardson , Esq .
Civil Gideon : Balancing the Access for All
Think for a moment about your best day in court . I mean your clearest victory . Your master-of-the-universe ( or at least master- of-this-argument ) day . Now hold that thought . I suspect for the vast majority of you , that image in your mind , whether it is a jury trial verdict , an oral argument , or just simply surviving an unanticipated hearing , has one common aspect .
If you look to the side , you see opposing counsel .
The importance of this common fact cannot be understated . When there is opposing counsel , parties sharpen their arguments , bad cases are weeded out through motions or oppositions , settlements are struck , and when it comes down to trying it , the lawyer on the other side makes us step up our game in court .
Physics teaches us in the first law of motion that an object not subject to any external force moves at a constant velocity and will do so until some force causes its speed or direction to change . That is what I mean when I suggest that our best days in court are defined , in part , by the quality of our opposition . Our peers make us better by offering resistance , forcing us to change speed and course to overcome the inertia . When the resistance is strong , our efforts must rise to the occasion .
We speak a great deal about access to justice as a principle , but it is often framed in terms of the general public , as it should be . But access to justice rests , in no small part , on the role we play as attorneys and our function as advocates and counselors in an adversarial system . The public , as a whole , benefits from professional legal counsel and advocacy . As some have noted , there is not a legal dispute , case , or action out there that would not benefit from at least the review and assistance of an attorney . Some require a little help . Others , massive intervention . It is like medicine . You may not need a doctor to cure your stomachache . It may simply be bad clams , but you will need medical intervention if it is something serious .
Lawyers work the same way , but unlike a disease which is essentially a unilateral conscious action ( person v . plague ) where only one side seeks or needs professional advice , legal actions are bilateral or multiparty affairs . In nearly every instance , the sufficiency and quality of the litigation depends on both sides sharpening their points , testing the other side ’ s arguments . In the absence of representation on both sides , there is often confusion , delay , irrelevant arguments , unnecessary complications , and a loss of proportion .
To put this in terms of brass tacks , how many times have you represented a client against a pro se individual and experienced delay as the court has allowed the self-represented litigant additional time or chances to get their filings in order or to respond to a motion or discovery response ? How many times has this order directed the other side to re-file with specific direction as to how or what the court is looking for in the new filing ? This can lead to frustration when the court ’ s allowances and direction start to look , at least to your clients , like advice for the other side .
Courts do this for an important reason . Our legal system is built on reason and persuasion . Good decisions — those that parties and society can abide — are born out of cases where each side makes her best case , and the judge , sifting through the evidence and law renders a reasoned decision supported by logic , precedent , and practical analysis . If the process is too one-sided , courts have sensed that the power of their decision and overall authority suffers . The dilemma here is that this type of balancing can feel like a thumb on the scale and does not comport well with the courts ’ larger charge of impartiality . Advice , even if it is given in a neutral manner and framed within the confines of judicial discretion , is still assistance to one side in an adversarial match .
In short , it is not hard to see the effects of self-represented litigants on the civil litigation process . We , as attorneys , must develop our cases without the course corrections that opposing counsel provide . We must present our cases in a court-system that is leery of one-sided fights , particularly when the court senses meritorious arguments on the other side . It puts courts in awkward positions of trying to give selfrepresented litigants a fair shot at raising the merits of their case while not undermining the impartiality of the court . And it ultimately undermines the public ’ s confidence in the system .
The challenge is what to do about the growing number of self-represented litigants in the system and the pressures that they put on the system . As we know from the Vermont Judiciary ’ s work , pro se litigant numbers are rising in certain dockets ( family law and particularly the post-divorce cases ) and disproportionately com- pose one side in others ( consumer debtor , landlord / tenants , foreclosures ). We have reached a point where over 70 % of all cases within civil-family-probate-environmental system have one or more parties representing themselves .
We have been here before . Prior to 1963 , there was no established right to counsel in criminal cases . The prevailing Supreme Court case , Betts v . Brady , held that the refusal to appoint counsel for an indigent defendant facing felony charges did not necessarily violate due process under the Fourteenth Amendment . 1 In many states , such as Florida , this meant that if you were unable to afford an attorney , one would not be appointed for you . Enter Clarence Earl Gideon , a man with an eighth-grade education . Gideon was tried for a felony breaking and entering in Florida and was denied counsel , even after he requested it . His case , through hand-written appeals , made its way to the Supreme Court , which overturned Betts and guaranteed that criminal defendants had access to counsel as a fundamental right , essential to a fair trial and to ensure due process under the Fourteenth Amendment . 2
The impact and legacy of Gideon cannot be overstated . As one law professor described Gideon at its fiftieth anniversary :
Gideon v . Wainwright is considered a landmark ruling , and for good reason . The hallmark of a civilized society , in my view , is the extent to which we protect the interests of our most vulnerable and potentially despised members . Gideon acknowledged that one of the nation ’ s most vulnerable populations , indigent criminal defendants , deserves protection against the awesome power of the state . 3
For many , the promise of Gideon is at best incomplete in the criminal justice system . As former Attorney General Eric Holder stated :
Despite the significant progress that has been made over 50 years after the decision , the promise of Gideon remains unfulfilled . The quality of criminal defense services varies widely across states and localities . Many defenders struggle under excessive caseloads and lack adequate funding and independence , making it impossible for them to meet their legal and eth- www . vtbar . org THE VERMONT BAR JOURNAL • FALL 2016 33