Alone at the table in the San Diego family law courtroom, 5-foot-tall Arella's words seemed swallowed by the high ceilings and wood-paneled walls. She looks down at the paperwork in front of her as she nearly whispers her answers to Judge Patricia Garcia's questions. Arella filed the appropriate response form, but she included almost no documentary evidence to support her claims or to defend herself against the arguments of her ex-husband, Tom, who says he shouldn't have to pay alimony any more.
Tom's attorney, a tall man in a gray suit with a bald spot the size of a tea saucer, describes in crisp words how Tom has custody of the couple's two children, and how he's been paying diligently, but now Arella has a full-time job, so his client should be allowed to stop all spousal support. He's laid the groundwork: The judge has in her hand all the necessary briefs, plus documentation of Tom's paychecks, statements proving that he's been making payments according to the law, medical bills and a sheaf of other supporting documents. Tom's attorney also mentioned that Arella owes Tom her half of a $1,500 medical bill for one of the couple's two sons.
15 years ago, Arella, born in Acapulco, met Tom after she ran away from home for the excitement of big-city Tijuana (the couple's names have been changed in this story). She caught him cheating on her five years ago, she says, and they divorced. Since then, the couple has been in court two or three times a year. She said she rarely sees her two sons, because it seems that whenever she goes to pick them up, Tom has taken them to Tijuana for the day. She even gave Judge Garcia a letter from one of Tom's neighbors saying that.
The judge never asked about this letter. Nor did she hear Arella's allegations that her son's medical bills were for a short stay in a psychiatric ward because of depression. Arella later told me that she believes the depression stems from conditions at Tom's house, a place she described as “miserable and filled with bad language.”
“My son, he found [Tom's] wife cheating on [Tom] with many men,” she said in accented English. “So with that, and the divorce, no wonder he is depressed.”
The judge never heard Arella's allegations of domestic violence, nor why Arella suddenly had new expenses that would make child support payments difficult, nor why it was taking her so long to complete h er associate's degree at Southwestern College. What the judge did do was sort through Tom's documents, establish who had paid what to whom and chastise Arella for taking so long to finish school.
Then she ruled: Arella would have to pay $750 of the medical bills, and Tom would continue paying his wife alimony, but Garcia set an end date of October 2008. At that time, Arella must be fully responsible for $650 a month in child support. Arella is a Head Start assistant teacher who earns $11 an hour.
Americans know their courtroom etiquette from TV shows like Law & Order. But the criminal cases depicted there function under a whole different set of rules: The defendant has many more rights (“innocent until proven guilty” only applies in criminal court). Defendant rights are taken so seriously in criminal proceedings that the U.S. Supreme Court ruled in 1963's Gideon v. Wainwright that it would be a violation of the 14th Amendment to leave a criminal defendant without a lawyer. (If your Constitutional scholarship is rusty, this one includes the line “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)
But in civil court, “defendants” are called “respondents.” Except in a few cases, no one gets a free attorney. The standard of proof is lower. O.J. Simpson defines this distinction: Prosecutors couldn't get him convicted for criminal murder, but the family of Nicole Brown Simpson, his murdered ex-wife, nailed him for millions of dollars in a wrongful death civil lawsuit.
The civil divisions of San Diego County's Superior Court process roughly 102,000 cases a year on issues ranging from divorces and evictions to restraining orders and negligence. The family-law courts alone cope with a caseload of 31,000, and the housing court deals with 15,000. These two divisions are what the legal profession occasionally refers to as “the poor people's courts,” and they're the two most likely places to find mismatches like the one between Arella and Tom, between the unrepresented and the represented. No statistics were available for San Diego, but a 2005 study conducted by the New York City Judiciary found that 75 percent of family-court litigants and 90 percent of tenants had no lawyer, usually because they could not afford one.
“If you're looking at a few days in jail, you get a right to a lawyer,” said Clare Pastore, a law professor at the University of Southern California and an attorney for the American Civil Liberties Union Foundation of Southern California. “But if you might lose your kids, or your house, or get deported, you get nothing.”
Having an attorney can substantially alter the outcome of a case, even in civil court. In New York, tenants represented by counsel were evicted only 24 percent of the time, compared with 44 percent for those unrepresented. In a 1998 Los Angeles study of evictions, only tenants represented by an attorney managed to keep their apartments. A study from the 1980s in California showed that unrepresented mothers won physical custody of their children 49 percent of the time, compared with 86 percent when they were the ones with representation. Stanford University sociologist Rebecca Sandefur analyzed many of the studies on civil-case representation and found that people represented by attorneys were up to 118 times more likely to receive a favorable outcome than those who represent themselves.
“Our system is based on the adversarial presentation of fact and evidence,” Pastore said. “I don't know any serious observers who think the parties are equal when one party is represented and the other is not.”
Legal Aid societies do exist to help poor people find an attorney, but they're too understaffed to help everyone who needs it. Dave Jones, chairperson of the California Assembly's Committee on Judiciary, likes to quote a statistic that says there's one Legal Aid lawyer for every 8,373 poor person in California, versus one other lawyer for every 240 non-poor person in the state.
“One of the fundamental tenets of our democratic system is that people will have equal access to justice under the law,” Jones said. “To make sure that that promise is more than nice words chiseled in stone on the front of our courthouses, people need legal representation.”
Jones and Pastore are part of a growing movement in the legal profession that believes the rights of poor people in civil court are being trampled, and that they should get lawyers, at least in certain circumstances. In other words, they say, there needs to be a civil Gideon.
Eleven blocks from the family-law court, at San Diego's Central Courthouse, the crowd on benches outside of Department 5 splits into two groups: the lawyers and the non-lawyers. The lawyers' hair is styled, their suits pressed and tailored, and they glide easily in and out of San Diego's version of housing court with a casual nod to the bailiff or a friendly greeting to the clerk.
Ira and Robin Smith sit on either side of one attorney, a tall man in an olive-green checked coat and color-matched slacks. He is quietly explaining the terms of the deal he can offer them on behalf of his client, a landlord.
“This basically says that if you'll give up possession of the premises, then the landlord will give you a neutral reference,” he says, referring to a form he'd filled out for them. “You'll still owe the $5,400.”
The Smiths agree to everything with few questions.
Soon the Smiths are called before the court's presiding officer, Commissioner Duncan S. Werth II (eviction proceedings in San Diego are not managed by a judge, but by a lower judicial officer).
“I just want to make sure you understand everything here,” Werth said to them. “This man is not your attorney; he represents the landlord.”
The Smiths answer his questions and sign off on their own eviction.
“I felt like I was under a microscope,” Robin says, standing outside of the courhouse. She noticed the attorney's easy relationship with other court personnel. “I don't think we got a fair deal, but what were we going to do?”
Werth, like most judicial officers, encourages litigants to work out deals before they come before him, possibly to prevent his court from being overwhelmed with cases. Russell Engler, a professor at the New England School of Law, believes this kind of behavior is unethical, since it allows the attorneys to bully the tenants.
“Far from curtailing or reporting such misconduct,” Engler writes in an unpublished manuscript, “courts promote the behavior by sending unrepresented parties into the hallway to negotiate with lawyers in unmonitored settings and rubber-stamping the resulting agreements without conducting a detailed inquiry into either the fairness of the provisions or the process that led to the agreement.”
Engler proposes greater judicial oversight as one solution, but an attorney would be better.
A legal system that relies on costly expertise puts itself in jeopardy, a fact that weighs heavily on Ronald George, chief justice of the California Supreme Court.
“Some of these litigants are really clogging the courts, because of how much time it takes to handle the cases without lawyers,” he said. “I think it is a severe problem.”
Case in point: the frustrations of Lindsey Bristow, a 22-year-old San Diego restaurant delivery dispatcher. Last week, she made her third attempt to end her one-year marriage. Actually, it was her third attempt just to get a hearing. Each time she appeared, the judge sent her back to correct some procedural error. In her attempt to notify her ex of the imminent court date, she had personally handed him the papers. However, the law requires that a third-party adult serve the papers and get a signature from the recipient.
“The judge keeps sending me back. It seems like everything you do requires three pieces of paper,” Bristow said. “All I want is some closure.”
Because of her ignorance of legal niceties, Bristow cost the court at least three slots on its calendar. She is only one of thousands of unrepresented litigants that slow the wheels of justice.
In Contra Costa County Superior Court, the backlog had become so bad that the court placed strict rules on certain kinds of trials, like divorce proceedings: All arguments had to be written, evidence had to be submitted well in advance and the court had to be provided with a witness list far ahead of time. In striking down these rules, the California Supreme Court wrote that “a local court has advanced the goals of efficiency and conservation of judicial resources” by adopting rules that went against the “interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding.”
In California, Chief Justice George has been working to simplify the paperwork, and he's joined forces with Assemblymember Jones to establish self-help centers in every court building in the state.
San Diego's Family Law Facilitator Center is among the most successful of these attempts. The center, which takes walk-ins only, is open every day from 8 a.m. to 4:30 p.m., with an hour and half off for lunch and administration. The downtown San Diego center has seven lawyers and three paralegals among a staff of 12. They spend, on average, 30 to 60 minutes per session with each of the 50 to 60 people who walk in every day, providing them with a wide variety of technical advice. They guide people in filling out forms, explain where everything has to be filed and instruct people in legal etiquette and how to dress when appearing in court.
However, unlike a personal lawyer, the facilitators cannot provide strategic or tactical advice. And they will provide guidance, but they will not fill out the forms themselves.
“We're the first line of defense,” said Alice Buck, lead attorney for the center and a former family-law attorney with 20 years' experience. “We're helping people get their day in court.”
Retired California Appellate Court Justice Earl Johnson Jr. has been active in the “access to justice” movement (an umbrella term that includes publicly funded civil attorneys) since the 1960s, when he was director of the Legal Services Program for the federal Office of Economic Opportunity. In that role, he felt the reverberations of the Gideon decision keenly, but it wasn't until a 1965 charity dinner to provide funding for attorneys on the civil side that he realized the job wasn't done.
“A senior partner from the most powerful law firm in D.C. leaned over and said to me, ‘This should be a constitutional right,'” Johnson said.
He began to study the way other countries provide access to counsel for the indigent in areas like housing and family law. He soon discovered that in many European countries, individual rights had far stronger safeguards, especially when it came to losing property or children.
“In Italy, they laughed at me when I tell them we don't provide lawyers for these things,” he said. Fighting for this type of access to justice became Johnson's signature issue in the society of lawyers nationwide. He lectured and wrote frequently on the subject and became a driving force for bringing more translators into the courtroom, creating the self-help centers and keeping alive the idea of publicly funded civil attorneys for the poor. The U.S. Supreme Court dealt the movement a blow in 1981, when it explicitly shot down the idea of free counsel in Lassiter v. Department of Social Services of Durham County, N.C.
But the last few years have offered new hope for Johnson's cause, thanks to a trio of state-level test cases that nearly forced—and still might force—America's highest court to reexamine Lassiter. In a 2003 case, Frase v. Barnhart, the Maryland Supreme Court sidestepped the issue of free counsel in its main decision, but two of the judges argued in a separate opinion that they should have dealt with it head-on. Earlier this year, in another child-custody case, an Alaska Superior Court judge argued that the Alaska Constitution provided more rights to due process than the U.S. Constitution and explicitly rejected the Lassiter ruling in providing an attorney for a mother. However, the justices wrote in the decision that the case should be read narrowly and should not imply that the state's judges need to appoint attorneys for everyone.
But the case that has legal-aid advocates shifting their weight excitedly from foot to foot is King v. King in Washington state. Brenda King has three children, a ninth grade education and a G.E.D. She couldn't afford an attorney for her custody fight with her ex-husband, Michael, who did have a lawyer. Knowing that she was out of her depth (her legal brief quotes her as saying, “I'm a good mother, but a bad lawyer”), she tried repeatedly to get pro bono representation, but the legal-aid societies of Washington did not have the resources to help her. In his written ruling, George Bowden, a lower-court judge, took the extraordinary step of listing, in detail, the many ways in which King's case could have been improved with the assistance of a qualified attorney: hearsay evidence that went unchallenged, objections that she did not respond to, police reports that were never entered as evidence and on and on. Three pro bono attorneys volunteered to take King's case to the Washington Supreme Court.
“In the big picture, we argued for what we believe is a limited right. The courts should look at the circumstances of every case,” said Katie O'Sullivan, one of King's lawyers. “We were not arguing that every poor person in every civil case needed to have [an attorney].”
The court has not rendered a verdict, though the case was heard six months ago. O'Sullivan said there is no deadline, and the court could easily take another six months.
In the meantime, the legal profession has decided that counsel for the indigent is a cause worth championing. At the behest of the California State Bar, Pastore, the USC professor, co-chairs the California Model Statute Task Force, which has been laying the foundation for a policy requiring civil attorneys whenever “a person of modest income would employ a lawyer to mount this defense or assert this claim.” Last year, the American Bar Association resolved to throw its weight behind any federal, state or local measure that could “provide legal counsel as a matter of right at public expense to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.”
The closest any state has come to actually enacting such rules is right here in California. Chief Justice George persuaded Gov. Arnold Schwarzenegger to put a pilot program in his 2007 budget proposal in which the judiciary would fund attorneys for poor people in three, not-yet-identified counties.
“In individual cases where the judge makes a determination where counsel may be necessary to vindicate essential rights, the court system would pay for counsel,” George said. “California has actually been blessed with more resources for its judiciary than a lot of other states. I think we're more in a position to do something.”
The program would have been the first of its kind in the nation, but it got cut during negotiations with the Legislature. Even as a pilot program, lawmakers worried that it would quickly become too costly for the state to bear. George is hopeful it will be revived amid future budget talks, but he recognizes that there's a lot of competition for state money. A spokesperson for Schwarzenegger wouldn't confirm if the program would reappear.
All of which raises the point that there is some opposition to providing attorneys for poor people. Pastore and Justice Johnson say objections usually are based on practical grounds, rather than ideological ones: It will just be too expensive for cash-strapped states. The self-help centers offer a far cheaper alternative, and in the budget negotiations when the pilot program was axed, Assemblyman Jones got an extra $2.5 million for the self-help centers instead.
“We don't want to cannibalize one program for legal assistance for another,” Jones said.
This result pleased Alice Buck, who argues that her self-help center “could always use an extra attorney.” Buck generally feels that providing a lawyer to every litigant would muddy the water.
“When you have an attorney, it can get a lot more complicated than it needs to be,” she said.Lindsey Bristow regrets not taking advantage of the self-help services, but Arella has wrung what she can from them.
“They can't fill out more than the first page for you,” she said. “And they don't spend much time.”The American legal system is a complicated place. As Arella has learned the hard way, even a simple-seeming case fractures into a thousand little issues of fact and law, each with its own specialized venue for discussion, from evidentiary hearings, discovery disputes, motions for summary judgment, demurrer hearings or any of the other arcane steps along the way.
The system, founded on 231 years of American jurisprudence, which itself was founded on a millennia of English common law, is filled with snares and traps laid by adversaries trying to extract the most they can from it. That's why people hire lawyers—not merely to navigate the labyrinth, but to be a sword and shield against the beasts that lurk in the maze.