Legal Aid Difficulties

The cost of access to the legal system presents difficult, perplexing questions. The legal system is the last resort for dispute resolution. But access to the legal system costs money. Lawyers engage in the practice of law to make a living. They cannot provide their services free. The cost of a judiciary has caused the legislature to impose substantial charges in the form of various court costs. If the dispute involved involves only a small economic value, the cost of the legal solution may be prohibitive, so the dispute goes unresolved. For poor people access to the legal system to resolve disputes can be almost impossible.

The 1960’s with its hope for a “Great Society” escalated the growth of the welfare state. We are now wrestling with the problems of Medicaid and other serious issues confronting efforts to provide adequate medical care. We believe that everyone should receive appropriate medical attention and care. But providing such care is not simple. However, the philosophical problems encountered in the effort to provide medical care for the poor are not nearly so perplexing as those involved in attempting to provide legal care at an affordable cost. The fundamental difference between medical care and legal care is that medical care is needed by a single recipient, but in legal issues there are always two sides.

In the criminal arena, Gideon v. Wainwright, decided in 1969, made it clear that before anyone can be incarcerated (other than on a temporary emergency basis) indigent defendants must be provided a lawyer. So State and Federal governments pay the costs of legal defense for indigent defendants. I will save for another article discussion of the fact that Gideon v. Wainwright probably called into being a cadre of lawyers and a type of law practice that was never anticipated by the high court when it made that decision.

This article focuses on legal aid in civil matters. That is the area that presents the perplexing policy issues alluded to above. There is almost no fair way for the legal system as it presently exists to deal with legal disputes that have small economic value. The solution costs more than the problem. Even if a person is poor, cases with larger economic impact can often be addressed with contingency fees. The contingency fee system often produces a satisfactory result for the poor victim. Even then the transaction cost i.e. the attorney’s fees on both sides, renders the legal system inefficient in providing the ultimate dispute resolution. But this article is not focused on the inadequacies of the contingent fee eligible case. As mentioned above legal disputes usually have at least two sides. If the alleged victim is poor, and cannot find an attorney who will take the case on a contingency fee basis and public funds are used to subsidize the alleged victim by paying attorney’s fees, there is grave danger that injustice will be done to the defendant, who must pay its own attorney. When corporate America absorbs this type of expense the cost is ultimately passed on to the consuming public and you and I pay for the defense of such lawsuits.

But the main concern is when the litigation involves poverty on both sides. If public funding is provided for either side, there is a grave risk of injustice for the other side. If public funding is to be available on either side it should be available on both sides, unless the provider of the legal services has the omnipotent, omniscience power to judge the case in advance. I do not believe that there is any obvious solution to this problem.

Unfortunately, having the free attorney choose sides in the case (the only choice being the one who seeks the service), is not the only difficulty in legal aid. People who have money try very hard to avoid disputes that wind up in court, so that they can keep their money. This is true whether they would be the plaintiffs or the defendants. But if the person contemplating the proverbial “day in court” does not have any “skin in the game,” the human propensity for conflict has no limits. If there were no cost, State and federal governments could not afford the dispute resolution process.

How should we measure the success of law? On the one hand, the commonly held American view seems to be that the more controversies courts can resolve, the more likely we are to have Justice. But I believe that law meets its highest goal when people obey the law and don’t have to go to court.