Bar associations and most legal scholars tell a much simpler story, and propose a much simpler solution. In their version, Gideon and the cases that expanded it are all part of the twentieth-century march of progress toward more law, more lawyers, more procedures, and thus more justice. The solution to the problem is thus more Gideon: more funding for the government-funded lawyers we already have (like public defenders and legal aid societies) and expansion of Gideon to more areas, notably into civil cases.
That picture of progress is far too rosy. Half a century after Gideon, there is still too little money and too few lawyers for all criminal cases, let alone civil ones. (Spending taxpayer money to hire lawyers for criminal defendants is not terribly popular.) For instance, New Orleans public defender Rick Teissier had to handle 418 defendants, including many serious felonies, in just seven months, leading a judge to quip: “[n]ot even a lawyer with an S on his chest could effectively handle this docket.” But, while other professions such as medicine are finding innovative ways to drive down costs by using technology, paraprofessionals like nurse practitioners, and self-help advice, lawyers resist innovation or loosening their monopoly.
Access to justice matters. It is important for a nation founded on the rule of law. But lawyers and elaborate procedures are means to justice, not ends in and of themselves. Lawyers often help to promote justice, and they are important for the most complex, high-stakes cases such as defending those charged with felonies. Felony defense counsel need reasonable workloads, compensation, and support to do their jobs well. But lawyers can also get in the way of justice—by, for instance, delaying a mother’s ability to collect child support from a deadbeat dad. And lawyers come at a very high price. Budgets are tight, and it is not at all obvious why spare funds should go to elaborate civil litigation as opposed to housing, policing, education, healthcare, or roads.
For years, we have been stuck in a Groundhog Day loop of bickering. Liberals argue that access to justice is a travesty, and demand that courts or legislatures spend more money on individual lawyers for individual cases. They loudly proclaim that anything less makes a mockery of justice for all. Conservatives respond that government cannot afford to pay for even the system we have now, let alone additional lawyers. They also argue that if the government were smaller and less obtrusive, access to justice needs would shrink regardless. This argument, and the proposed solutions on both sides of the aisle, has gotten us nowhere.
There is, however, a third way. The answer is to simplify and change the process itself. In the civil and criminal courts where ordinary Americans appear the most, we should simplify complex procedures and assume that parties will not be represented, rather than the other way around. Just a shift in the baseline expectation to assuming pro se status would make an enormous difference.
We cannot untie the Gordian knot by adding more strands of rope; we need to cut it, to simplify it. This book is a sober second look at the “more lawyers, more justice” creed. The real world of legal problems looks like an emergency room, with too many patients and too little time and money. We need to do triage, to narrow our ambitions, to focus on the cases that are the most complex, most serious, and most meritorious. Where lawyers are truly indispensable—primarily in felony defense—we need to focus our funding, to make lawyers meaningful in practice. That means paying defense lawyers about as well as prosecutors, hiring enough of them so their caseloads are comparable to prosecutors’ caseloads, and providing them with investigative and forensic support like what prosecutors enjoy through police departments and crime labs.
Where the stakes are lower or the issues are simpler, Americans need simpler, cheaper alternatives to giving everyone a free lawyer. The good news is that there are a bevy of options, and many of them are becoming available just in time. In particular, new technologies and approaches to dispute resolution offer us the opportunity to streamline and simplify, to the benefit of everyone (except possibly lawyers). For many simple civil and even minor criminal cases, we could reform the process to let technology do the work, funneling parties through stepped, online dispute resolution starting at computerized mediation, passing through human, non-lawyer mediation, and proceeding into our current system only after making every effort to end the case cheaply and quickly.
Legal services organizations can ration free lawyers for the fraction of cases that are the most complex or for the clients least equipped to handle even simplified procedures, such as the mentally ill or the illiterate. Law schools could offer shorter, cheaper ways to qualify as a lawyer. Licensing rules could let trained paralegals, social workers, and accountants handle routine, specialized work just as physician assistants and nurse practitioners do. We could simplify court procedures and rules of evidence and ask clerks and judges to assist pro se litigants and do more of the work themselves so they rely on the parties’ lawyers less.
In short, the legal system needs to go on a diet, to make it slimmer, faster, cheaper, and thus fairer. And lawyers need to get out of the way and let cheaper alternatives flourish.
Some will argue that these changes are unrealistic, or that the current complexity of law and procedure is necessary to guarantee correct results. But the current system is broken and courts have repeatedly tried to fix it by adding more rights to lawyers, though legislatures repeatedly fail to fund these rights. At a certain point, it is foolish to make the supposedly perfect the enemy of the good. Moreover, simplification is more democratic, empowers the citizenry rather than judges and lawyers, and fits our country’s history and design. For the first century of this country’s existence, a literate citizen could represent himself in court effectively. We have drifted so far from those roots that some regard simplification as impossible and argue that the only answer is to find more lawyers to handle more cases. To the contrary, the only realistic answer is to lessen the need for lawyers.
Part I of this book explains the contours of our access-to-justice crisis. Chapter 2 describes the issue in criminal courts. Criminal defense is, and always has been, radically underfunded in comparison to prosecution and police resources. This underfunding drives larger caseloads, fewer investigatory resources, and much lower salaries. The upshot? Systematic ineffective assistance of counsel is prevalent all over the country. It would be an easy problem to solve if it were a few bad apples. Instead, the system itself forces appointed defense lawyers to plea out as many cases as they can as quickly as possible, often with little investigation and less legal work. Underfunding breeds overwork, and together they lead to poor defense lawyering. The reality is much darker than Gideon’s shining ideal.
Chapter 3 describes the history of the right to appointed counsel in criminal cases, from colonial times to the present. In the eighteenth and nineteenth centuries, there was no constitutional right to appointed counsel, but criminal procedure was much more straightforward and a literate citizen could represent himself in court relatively easily. In the twentieth century, criminal procedure became more complicated and having a lawyer changed from a luxury to a necessity. Courts responded by creating and then expanding a right to appointed counsel. This right started with death penalty cases and then spread to felonies in federal courts, then to state court felonies in Gideon, and eventually to any misdemeanor threatening even a day in jail. This expansion was not accompanied by a strong right to effective counsel. Courts have been very hesitant to second-guess even facially deficient lawyering or to order any particular level of funding or to limit caseloads. The predictable result? Defendants have a right to a lawyer but no particular level of service.
Chapter 4 lays out the problem in civil courts. Legal aid funding has been in steady decline since the 1990s, and is down 63% from its high point in the 1980s. Because of limited funding, legal aid organizations turn away more than half of the eligible persons seeking help. Pro bono (charity, free legal help) has grown, but cannot possibly meet the overwhelming need. And legal aid and pro bono are only for the very poor; there is no help for the middle class. If a middle-class person needs a divorce or change in child custody,