Gideon and the Right to Counsel

Walter Mondale has an op-ed in WaPo today calling for the states and the federal government to"rededicate" themselves to ensure that all defendants in criminal cases have adequate counsel, as assured in Gideon v. Wainwright. In addition, the former vice president alludes to expansion of this right to "certain" civil litigants.

Walter, you had me until "civil litigants."

In my current professional capacity, I come across requests for assistance from prisoners, criminal defendants, and civil plaintiffs in cases against the government. I work in a policy shop and always have to refer them to actual law firms or organizations that actually handle litigation, but the requests pour in nonetheless. I have never figured out the ratio of legitimate claims to frivolous ones, but I assure you that there is no shortage of the latter in regards to civil litigation.

People with no real concept of law, our legal system, or even basic understanding of the Constitution file cases in courts regularly, often on a pro se basis (i.e., without a lawyer). If all the paperwork is done, then the courts have to at least entertain the claim and find a legal reason to dismiss it. (I can only imagine the awful job sifting through mounds of paranoid, rambling incoherence and trying to come up with a decent reason to dismiss if the dedicated simpleton successfully addresses the issue of standing.) Such cases allege monitoring by all extant--and some fictitious and extra-terrestrial--government agencies, unfair seizure of property due to defaulted mortgages that they somehow try to argue away, and other farcical thoughts that should never be conceived, let alone addressed in a court of law.

Expanding the right to counsel to civil litigation is not only a logistical nightmare, but one in which provides the perverse incentive to increase the amount of litigation in an already overly litigious society. Yes, courts play a vital role in keeping businesses in check. But, good god, the product and medical liability suits are already choking the courts--which are understaffed, by the way (thanks Pat Leahy!)--and making it difficult to do business or take care of people. This is not a good thing.

I understand that Mr. Mondale wrote "certain" civil cases and would presumably be insulated from the more blatantly ridiculous claims--I'm not trying to straw man him here. However, this could lead to an entirely new strain of litigation that could very well expand any "narrowly tailored" legislation limiting whom is eligible for counsel. Any case or plaintiff deemed outside of the direct scope of the statute can appeal the original judgment, and any successful challenge would start the entire process over again. There would be no uniformity among the states, so different states' statutes would be pitted against one another and judged differently in different jurisdictions. It would work its way up and back down through the various court systems for years to come--and with all that litigation comes lawyer's fees that can be extracted from the respondent parties and taxpayers (since this all relies on the plaintiffs being unable to pay the first place). Is it any wonder the ABA is leading this charge?

We need tort reform, of that there is little question. But giving more people access to an overrun court system is not the answer.