Wednesday, February 24, 2010

Barton on Pro Se Court Reform

Benjamin H. Barton (University of Tennessee College of Law) has posted Against Civil Gideon (and for Pro Se Court Reform) to SSRN.

This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is little in indigent criminal defense that makes one think that a guarantee of civil counsel will work very well. If Courts have not required funding for meaningful representation in the serious cases covered in Gideon (including felony and death penalty prosecutions), it is extremely unlikely that they would do so in civil cases like eviction or deportation.

Moreover, focusing our attention on pro se court reform is a much, much more promising and likely palliative to the legal problems of the poor. Lastly, and most importantly, civil Gideon is a deeply conservative and backward looking solution to this problem, while pro se court reform has the potential to do more than just help the poor. It has the potential to radically reshape our justice system in ways that assist everyone.


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In Maryland, civil attorneys are provided via the Pro Bono Society, for which I used to volunteer. However, I quickly learned that income is not a good way to determine whether or not a person is deserving. So many people who require such help are used to getting from the system, and abusing the system. Most of these clients, I would not represent, even if they paid me.

I realize that attorney fees are expensive, but the most tragic cases are those of middle class clients, for whom no program of help exists.

I think that those who feel that pressure should be put upon the attorneys to provide pro bono services should have to work in the field. They may find that the rose colored glasses come off, when they encounter some clients that turn their stomach.

Posted by: K Freed Collier | Feb 25, 2010 10:05:20 PM

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