Civil Gideon A Rotten Idea
I was in court the other day when I erupted in a tone loud enough to be overheard by others: "You know, Aristotle once said that it is hard to be angry to the right degree, at the right person, at the right time. He preached moderation and wisdom. You're not being moderate or wise."
Bystanders seem startled to overhear a lawyer preaching Aristotle to a client in the corridor of a criminal courthouse. But so it goes.
Anger is the pulse of the courts. We lawyers, we sometime counselors at law pressed into the service of people at their worst, know all about the corrosive power of anger.
My client listened to me in the end and, at least for purposes of the day, was able to put anger aside. It's somehow easier for clients to do that in criminal court. Defendants are looking at a train barreling down the tracks. They may be angry, frightened and bewildered, but dodge the train they must, lest it destroy them.
But what of the role of anger in the civil courts? What happens when you put an angry person in the locomotive and permit him to drive the train?
We are overrun by calls each week from people who want to sue the police, the state, their neighbors, this corporation, that employer. Every injury, whether imagined or real, demands a remedy. I sometimes feel like Dr. No, explaining to folks that anger in and of itself is insufficient to bring an action. You need a valid cause of action and, then, you need to finance the litigation.
Most folks think self-righteous anger ought to be enough to get them into court. Many are the callers who want "pro bono" representation. They are persuaded that, if only they can talk their way in our office and tell us their tale of woe, we will be inspired to drop everything and represent them, free of charge, of course.
Anger is an intoxicant.
Proponents of so-called civil Gideon proposals need to take account of the toxic role of anger in the judicial system. While it sounds good in theory to say that no litigant should be kept from court on economic grounds, in practice, providing free, court-appointed counsel to all litigants is the equivalent of giving alcoholics carte blanche access to a gin mill.
It makes good sense to ensure than no person accused of a crime faces imprisonment without the assistance of a lawyer. The state maintains a cadre of prosecutors and police officers paid for at public expense. Their role is to keep order and to punish malefactors. Giving the accused access to counsel levels the playing field against the state when the state acts.
But creating a level playing field in private legal actions is a wholly different matter. Is everyone who feels aggrieved entitled to a lawyer? Or are only those with meritorious potential claims and defenses entitled to a lawyer at public expense?
If the latter, who decides? How do we ensure equal protection of the law, the drawing of relevant distinctions among similarly situated people?
Lawmakers in Hartford are now toying with a civil Gideon proposal. It is a horrible idea, and needs far more study before enacted into law. Just how a cash-strapped state is supposed to fund representation for every angry person in the state is the primary question.
A follow-up might be whether we are asking the wrong questions. The real issue might be whether we've made access to the courts too easy. If losers were forced to pay the costs of the litigation, I suspect fewer plaintiffs might be rushing to court, and fewer silly defenses would be interposed.
Civil Gideon is a silly idea, a lawyer's conceit. Courts should be the forum of last resort, not a casino to which everyone is invited to come and roll the dice at state expense. Aristotle knew that. •
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