Chapter 5 addresses the history of the poor and middle class in civil courts. As with criminal law, civil-court procedures and the underlying laws in the eighteenth and nineteenth centuries were simple enough that literate Americans could represent themselves. For example, in the mid-nineteenth century, a number of states allowed any citizen to appear in court. From the 1880s on, civil courts came to be lawyer-dominated and it was harder for the poor. Charitable legal aid societies were formed to help the “deserving poor” and were eventually converted into government programs, but they have never come close to meeting the needs of the poor, let alone the middle class. Other solutions—pro bono, increased legal aid funding, court appointments, and a proposed civil Gideon right—have all failed. Despite the good intentions of everyone involved, access to civil justice continues to erode.
Chapter 6 explains the political economy of our current mess. If everyone agrees that we have a problem, why has it kept getting worse? Part of the answer is the time and expense of legal education, and part is our adversarial system’s expectation that each side will hire a capable lawyer for itself. Part of the answer is legislative indifference to funding free civil and criminal lawyers. Part of it is natural judicial hesitation to order any particular level of funding or to expand Gideon into civil cases. Part of it is that high defense lawyer caseloads and low funding are key ingredients in America’s shift to a plea-driven system. If we spent more on criminal defense, there would be more investigation, more motions, and more trials. In a nation of rising caseloads and fixed judicial resources, that would worsen the backlog of cases.
Part II turns to how America might start to fix this mess. The message of Part I sounds gloomy, even fatalistic. Progressive social engineering to provide more lawyers seems doomed to fail. But we must stop confusing lawyers with justice. The prospects for improving access to justice are much better if we are willing to think outside the box, beyond giving each person a full-service lawyer for free. For years, civil Gideon advocates have argued for transplanting the broken Gideon system from criminal courts into civil courts. In Part II, we argue that is exactly backwards—the nascent pro se court reforms of civil justice should be transplanted into our broken criminal courts.
Chapter 7 critiques the old ways of addressing these problems, what we call the “more lawyers, more justice” fallacy. It begins with the failed movement for a civil equivalent of Gideon. The Supreme Court has twice rejected civil Gideon, most recently in Turner v. Rogers, a 9–0 decision (on which both authors worked on the winning side). Turner signals the death of civil Gideon for the foreseeable future. Civil Gideon is not only unrealistic but unworkable. Gideon has largely failed in criminal courts and would work even worse in civil courts. Creating such a right would make lawsuits slower and more complex, tilting them against unrepresented litigants on the other side. The evidence that lawyers are necessary in all cases is surprisingly weak, particularly for simpler disputes. Time and money are limited, and lawyers are too expensive. Plus, courts are much worse at social reform than at doing justice in individual cases.
Similarly, we need to break out of the political and legal arguments that have crippled Gideon’s great promise on the criminal side. America will never be able to offer every criminal defendant facing any amount of jail time a criminal defense equal to what the wealthy can afford. But we can focus our efforts on the cases that so desperately need our attention and care: serious felonies.
Chapters 8–11 describe the new approaches that have been most successful. Pro se court reform, technology, and a loosening of restrictions on legal practice are transforming some courts from a hidebound anti-pro se attitude into simpler, fairer places where litigants can succeed with or without a lawyer’s assistance. While there are few reasons to be optimistic about the failed approaches of the past, there are many reasons for optimism today. But we must not let vested interests—judges, clerks, and lawyers—get in the way.
Chapter 8 discusses technological innovations. Private, nonprofit, and government computerization of legal services have already transformed the market, and we are in the very nascent stages of this revolution. It will be a long time before computers can replicate human legal reasoning fully. But computers can already outperform humans on many routine legal tasks and, as data collection and computing power improve, computers will be able to do more and more. Legal publishers can provide interactive websites and fillable forms for routine transactions. Hotlines, chat rooms, and message boards can answer discrete questions without requiring full-service representation. And interactive websites promise faster, cheaper adjudication without having to gather everyone in the same room at the same time. Internet merchants such as eBay have already proven that online dispute resolution can work cheaply and smoothly.
Chapter 9 discusses pro se court reform. There are plenty of ways to simplify procedures, forms, and rules so non-lawyers can represent themselves pro se, and many of the most promising reforms have already started. Court clerks should actively assist pro se litigants. Some courts have hired dedicated pro se clerks. America should even expand small claims courts, which often ban lawyers in order to keep proceedings simple and fast enough for non-lawyers. This chapter also argues that we should change the judicial role in some American courts. We can learn from the American system of administrative law judges and from European courts. We can adapt the inquisitorial system, in which court officials actively investigate the facts and probe the evidence instead of relying on the parties’ lawyers. That approach can cut through distracting procedural games to focus on the facts and issues at the heart of a case. Though inquisitorial judging sounds like an exotic foreign transplant, American administrative agencies already use similar methods to adjudicate unemployment and Social Security disability claims, and so do small claims courts. In fact, many Americans may be more familiar with inquisitorial systems thanks to Judge Judy, Judge John Brown, and their many imitators.
Chapter 10 describes how we can generate cheaper lawyers and paralegals. Legal education is at an inflection point and, for the first time since the 1950s, the possibility of a cheaper, shorter, and more flexible route into practice might be a reality. Right now, students must invest three years and more than $150,000 to qualify as public defenders. Yet, many argue that the current third year of law school is largely superfluous. In many other countries, paralegals, social workers, and notaries provide a range of legal services. Some states have started to experiment with licensing non-lawyers to practice law outside of court. These “limited license legal technician” programs should be expanded. And America must relax its rules against unauthorized practice of law to open the door to these paraprofessionals, much as the medical profession now allows nurse practitioners and physician assistants to provide simple care.
Chapter 11 describes how some of these approaches can be imported to criminal court, and where they should not. America needs to do triage, and felony cases deserve the most funding and attention: They carry the heaviest punishments, the worst collateral consequences (such as deportation), and the most stigma. They also have the most complicated procedures, such as jury trials and related motions, which require lawyers to navigate them. We envision a grand bargain, in which public defenders would spend much more time up front investigating, negotiating, and defending felonies. They would also have substantially more support, ranging from private investigators to forensic and medical experts. Their salaries, caseloads, and support should be comparable to those of prosecutors, and their performance standards need more teeth.
By comparison, minor criminal matters should be handled in a manner that does not require lawyers at all, by the state or the defendant. Simpler cases need cheaper solutions. That is the other half of the grand bargain: cutting lawyers elsewhere to save more