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20180302 – Rebooting Justice

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MAIN IDEA:

The main idea of this book is that American legal system, as it stands now, works to benefit lawyers more than anybody else. It is done by overcomplicating proceedings to such extend that normally average educated lay person could not possibly represent self not only in criminal, but even in civil cases. Moreover, in any serious case even professional and outstanding lawyers need another lawyers’ support. It is a huge deviation from original American legal system when per se was not only possible, but also prevalent. This created overblown demand for lawyers that is not possible to satisfy because they are too expensive even for middle class. The remedy provided by Gideon is not effective because free lawyers are overloaded and could not possible handle all cases. The real remedy to these problems should be: simplification of legal process, expansion of paralegal support to substitute lawyers in simple cases, and technology that could help process routine legal tasks. In short: “Less Lawyers, More Justice”.

DETAILS:

  1. Introduction

This starts with the real live case when authors believe accused murderer did not get a decent defense and then they proceed presenting statistics that justice is often denied in USA such as results of polling of judges with 94% pointing out deficiencies. After that authors move to civil cases, demonstrating that they are also underserved because contemporary American justice requires heavy involvement of professional lawyers, which is not feasible in many cases. Authors discuss Gideon that created requirement to provide free lawyer for poor and demonstrate that it did not really help enough so further and significant changes are required. At the end of the introduction they provide a brief description of each chapter’s content.

 

Here is brief description by authors:

 

Part I. The Problem

This part explains the contours of our access-to-justice crisis

  1. The Reality of Criminal Justice for Poor Defendants

This chapter 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.

  1. How We Got Here: Criminal Defense

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, however, 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. What was the predictable result? Defendants have a right to a lawyer but no particular level of service.

  1. Access to Justice in Civil Courts

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, or must probate a will, she will need to pay a lawyer for help or proceed doing this pro se. Despite a glut of law graduates and unemployed lawyers, hourly rates remain stubbornly high (averaging $190 an hour even for solo practitioners), and even the simplest legal tasks are likely to cost thousands of dollars. Predictably, this has led a number of Americans to “lump it” (live with their legal problems) or proceed in court without a lawyer. But many American courts are not set up to handle pro se cases, and some are outright hostile. The end result is that in the country with the most lawyers per capita, a huge chunk of the population cannot afford to access the courts for the most basic of legal problems like divorce, child custody, and property

  1. How We Got Here: Civil Law

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 lawyers 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.

  1. The Political Economy of Gideon and Civil Gideon

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. How We Fix It

Part II turns to how America might start to fix this message. 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.

  1. Against “More Lawyers More Justice”

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-o 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, turning 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.

  1. Techno-Optimism and Access to Justice

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 tillable 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.

  1. Court Reform

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 methods to adjudicate unemployment and Social Security disability claims, and so do small claims courts. In fact, many Americans may be more with inquisitorial systems thanks to Judge Judy, Judge John Brown, and their many imitators.

  1. Cheaper Lawyers and Paraprofessionals

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 19506, 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.

  1. Criminal Case Triage

Chapter 11 describes how some of these approaches can be imported to criminal court 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 expert. 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 for felony defense. The government should not have to provide free lawyers for minor misdemeanors that carry no serious collateral consequences, and states should experiment with simpler, cheaper ways to try these cases. Prosecutors would have incentives to send less serious eases to these faster courts, reserving felony charges for more serious eases that deserved them.

  1. Conclusion: Fewer Lawyers, More Justice

Chapter 12 concludes the book on both a hopeful and cautionary note. In the face of these problems, reformers may be paralyzed by pessimism, or forget the past and be doomed to repeat it. Efforts to expand Gideon’s dream have repeatedly failed. But Chapter 12’s conclusion argues that these failures can pave a new road to success. Advances in law, medicine, and technology point reward a very different model, one that is simplex, cheaper, more flexible, and less regulated. The current crisis poses a danger, but also an opportunity to loosen lawyers’ monopoly and increase overall access to justice.

Technology also requires a note of caution, however: Technological advances have also made our legal system’s burgeoning complexity possible. Courts, regulators, and legislatures have seemingly endless resources to add layers of additional complexity to our already overweening substantive law. This chapter recognizes that procedural complexity is easier to achieve and more popular, so our book focuses on those solutions.

MY TAKE ON IT:

From all I know, authors’ description of the legal system is seemingly correct as well as diagnosis of its main flaws. The prescription, however, seems to be trivial. I think that it would not be enough. I believe that the main problem is not lack of resources, but rather inequality of their allocation. American legal system has competitive character and as such becomes greatly dysfunctional when competitive sides have hugely unequal access to resources. Whether it is government prosecutor with unlimited access to resources against individual with very limited access, or it is rich man against poor man, the result would always benefit resources rich side. My remedy would be separation of justice processing: investigation – prosecution –judgment between 3 unconnected entities, unlike currently one closely connected entity on investigative / procecutorial side.  In my opinion, the investigative entity should be completely independent and have equal interaction with both prosecution and defense, each of which in turn should be completely independent from each other. Currently seemingly independent judges in reality often have background as state attorneys and correspondingly approach cases from point of view of the state. In order to avoid preset legal approaches, judges should be selected from non-legal background at the age when individuals already have a proven success in other areas of live and correspondingly accumulated some wisdom in dealing with diverse people. They should be given 2-3 years deep legal education specifically designed to train them as judges. They also should be limited to a specific time period on the bench, so that they would not have time to develop too much arrogance. As to inequality resources, it could be resolved by demanding competing sides to provide resources into one pool from which equally distribute them to prosecution and defense. The investigating branch should be concerned only with proper collection of evidence and nothing else. Prosecution and Defense should be concerned only with interpretation of evidence in such way as to benefit their corresponding side, and judges should be concerned only with proper application of existing laws in such way that all sides accepted decision as consistent with the law. Judges also should have responsibility to highlight any deficiency in the law itself, if they believe it exists, and present it to legislative branch of government for action.

 


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