Are we up to reforming our civil system to help poor litigants?

Lately, we have all been horrified by the spectacle of toddlers and other children, separated from their parents at our southern border, appearing in court alone to face deportation.

While our collective distaste is justified, the truth is that people of modest means, like these asylum seekers, have been shuffled through our court system unrepresented by lawyers for years.

Anyone who has spent any time observing a civil courtroom in Virginia can tell you that if you don’t have a lawyer and the other guy does, you’re pretty much guaranteed to lose.

Our court system is set up to pit lawyer against lawyer in a legal argument made before a judge. Lawyers are smart people who, it turns out, really do “dwell on small details,” as Don Henley pointed out in an ancient song.

If you go against one on his or her turf you better bring your checkbook.

We all know, from years of cop shows on TV, that if you’re arrested you have right to a lawyer, and if you can’t afford to pay a lawyer, the taxpayers will foot the bill. But that’s only true in criminal cases.

If you’re sued over your rent, child support, a loud dog, a fence that’s too tall, the color of your house, you have no right to a lawyer even though, in many cases, the person or company suing you has one.

The Virginia State Bar has long recognized this problem. The VSB is an agency of the Supreme Court of Virginia that regulates lawyers. It has been so concerned about the problem of unrepresented litigants, as people without lawyers are called, that it has included in its regulations an “aspirational goal” that lawyers provide 2 percent of their time for free.

Aspiration, it turns out, has nothing to do with the ability to breath while upside down. Instead, it means the VSB has a dream, and like many dreams it is destined to remain unrealized. Think about it.

Being a lawyer is a costly business. First, you have to get through college, which is expensive.

And then there’s three years of law school, which can cost about as much as the mortgage on a starter home in Alexandria. Once they’re out in the working world, lawyers have to go into business.

Unless they get a job at a big law firm, which most don’t, they’ll need to rent an office, maybe pay a paralegal, hire an office assistant. And those fancy suits aren’t free. And those haircuts. And shoes. Have you ever noticed that lawyers have great shoes?

In my professional life I’ve met hundreds of lawyers. They are talented, caring people, most of whom got into the legal profession because they wanted to do something worthwhile with their lives. Many, maybe even most, of the lawyers in Virginia provide free legal services where they can, but it’s hard to justify working for nothing when you have bills to pay.

It’s not going to happen often enough, and that’s too bad because it would save taxpayers a lot of money.

While it’s true the VSB is completely self-funded by lawyers and doesn’t get its money from the taxpayers, the legal system does. We pay for the judges and bailiffs and clerks. We build the courthouses. It would be nice to hold down the bills a little.

But even if the volunteer lawyers materialized, it wouldn’t be enough. There are too many poor people who can’t afford lawyers being sued. Even if all 50,000 Virginia lawyers kicked in 2 percent of their time, we’d still come up short.

One man who’s been studying this issue for years is John E. Whitfield, executive director and general counsel of Blue Ridge Legal Services in Harrisonburg.

In a recent article in Virginia Lawyer magazine, Whitfield notes a study by the National Center for State Courts that found only 1 percent of cases in Virginia’s General District courts involve lawyers for both sides. “In 54 percent of the cases, only the plaintiffs were represented, while neither side had counsel in another 43 percent of the cases.”
The study also found that “the greater the extent of poverty in a locality, the more likely it is that parties would be unrepresented.”

And finally, “both plaintiffs and defendants have substantially higher success rates when represented than when they are unrepresented – reassuring information (for lawyers). Of course, that is why people hire lawyers, if they can possibly afford to do so: they KNOW they need a lawyer in order to increase their odds of winning.”

But, you might note, that isn’t fair. Why should it be that people with money to hire a lawyer have a better chance of winning in court than people who don’t have that money? Good question.

The study Whitfield sites found that our lower courts are awash with unrepresented litigants; poverty is correlated with lack of representation; and representation has a clear impact on case outcomes, particularly when only one side has a lawyer.

This has been a problem for years, and what’s going on down on the southern border has made it all the more visible.

Imagine how bad it must be where you live that you will risk the lives of everyone in your family, pack up everything you own and go to seek asylum where you know no one and don’t even speak the language. And then to be turned away and have your family torn apart based on the whim of one man. And then, to add to the immeasurable pain, to be taken before a judge to defend your actions without any understanding of the legal process.

The problems in Virginia aren’t that abhorrent, but they are real.

Whitfield has two broad suggestions. First, make life easier for litigants by expanding small claims dockets, adopting simplified forms, relaxing the rules of court and reforming what he calls unfair procedural traps, such as statutes of limitation, that often trip up litigants.

Second, come up with more money for legal aid programs that provide lawyers to people who can’t afford them, and get a “commitment by the bar to undertake pro bono work for low-income litigants.”
All good ideas, but all with costs attached.

Doing these things will require the haves to help the have-nots. Are we up to it?