Are Virginia’s Civil Courts Stacked Against the Poor?

Only one in 500,000 civil cases handled in Virginia’s general district courts each year have lawyers representing both plaintiffs and defendants, according to a new study by the National Center for State Courts.

And what does that mean?

“When only one side has an attorney and the other side doesn’t, then the system becomes dysfunctional, it’s a tilted playing field. Despite the judges’ best efforts to be fair, they cannot possibly make up for the lack of counsel,” says John E. Whitfield, executive director of Blue Ridge Legal Services in Harrisonburg, as reported by the Richmond Times-Dispatch.

The five-year-long study was funded with financial support of the Office of the Executive Secretary of the Supreme Court of Virginia and the Virginia Access to Justice Commission, and funneled through Blue Ridge Legal Services.

General district court data show that plaintiffs with lawyers won 60 percent of the cases where the defendant did not have a lawyer. But plaintiffs won only 20 percent of the cases when both parties were represented. Writes the T-D:

The study found that both plaintiffs and defendants have substantially higher success rates when they are represented by a lawyer.

“Clearly, representational status of the parties has an impact on the outcomes of cases in Virginia – not surprising, that’s why people hire lawyers,” Whitfield said.

“Our court system was designed with the implicit premise that the litigants were going to have lawyers on both sides. That’s the way the court system is set up: the rules of evidence, the rules of procedure, how you make objections, how get evidence in, how you draft pleadings – every aspect of litigation in our court system presumes the presence of counsel on both sides,” he said.

Debt cases in general district courts often end in default judgements when the defendant simply fails to show up, said Whitfield. “They understand they owe the money, they don’t know of any valid defense and it would seem like a waste of their time to go down there and say, ‘Yeah, I owe the money,’” he said.

But, said Whitfield, “Sometimes they may have a defense but they don’t know it because they don’t have access to an attorney who would explore that for them.”

Bacon’s bottom line:

It’s one thing to have inequalities in wealth and status in U.S. society — that’s what you expect in a country where freedom is valued more highly than equality. But almost everyone would agree that all Americans should enjoy equal rights under the law. Poverty should not deny a person justice. This study makes it sound like that’s exactly what’s going on.

The analysis leaves out one critical consideration, however: Any person, no matter how poor, can endeavor to engage a lawyer. There is no shortage of lawyers who pursue general practice law. The problem for defendants is that lawyers won’t take many cases that have no merit. The reason defendants win a much higher percentage of cases when they have lawyers is that the lawyers filter out the weak cases and take only the stronger ones.

The T-D article points out that most civil cases fall into one of two categories: bad debts and evictions. Businesses and landlords usually have some basis for filing civil suits to collect the money — rarely do they make up claims out of whole cloth. And the reason most defendants don’t show up at court is that they know they failed to pay. Occasionally, the plaintiff may get his facts wrong, or there may be other extenuating circumstances. For instances like those, there are public defenders.

As a libertarian, I believe that the impartial administration of justice is a core government responsibility. As a conservative, I believe that no institution is so perfect that it can’t be made to work better. I interpret this study not as a wholesale indictment of Virginia’s civil courts but as a signal that the issues it raises may warrant closer scrutiny.

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16 responses to “Are Virginia’s Civil Courts Stacked Against the Poor?”

  1. LarrytheG Avatar

    I’m a little bit amused… it takes a strong constitution to look at data that compelling and declare it a “signal”!

    Having said that – this is the civil side of the justice system – and as far as I know… those who cannot afford counsel, unlike the criminal justice side, are NOT entitled to an appointed lawyer AND those who CAN afford it obviously can hire counsel – ergo – you get landlords hiring lawyers to deal with tenants who cannot afford legal representation.

    So…. here’s my question: does this ” As a libertarian, I believe that the impartial administration of justice is a core government responsibility. ” mean that the govt (taxpayers) SHOULD ALSO BE responsible for paying for lawyers on the civil side also?

    Which brings me to the Constitution basis for providing a lawyer to the poor for ANY reason – criminal or civil. Where in the Constitution does it say this is a core responsibility of Govt? Is this yet another one of the leftist concepts that they managed to get added to the Constitution through illicit means involved liberal judges “interpreting” rather than being “Originalists”?

    What would Scalia have said? 😉

    1. The administration of justice is a core government function — guaranteeing the right to a court-appointed lawyer is not.

      1. LarrytheG Avatar

        that’s a nice sounding talking point but how do you assure justice if litigants can’t afford representation? Just saying it’s a core function does not assure it and without a real way to assure it – it’s just talk. no?

  2. Steve Haner Avatar
    Steve Haner

    When I was at the Attorney General’s office we had a team of legal assistants who were admitted to practice before Virginia courts on workers compensation cases (I think it was WC.) I remember because we gave the positions an upgrade and a raise! I assume that is still going on. They were supervised by the section chief, of course, but I heard they did a helluva good job going toe to toe with opposing counsel.

    Law may need to follow the path being followed by medicine, with a crack in the ten-foot wall that prevents anybody who has not passed all the professional barriers of becoming a lawyer from standing beside a client. If a physician’s assistant or nurse practitioner can function with minimal supervision, I see no reason why a well-prepared legal assistant could not show up in GD court to advise defendants on non-criminal matters. Trust me, in many cases the legal assistants have done 95 percent of the work before the lawyer gets the case file!

    Oh, I think I just heard a couple of towers topple down on Main Street!

    There is absolutely no question that if only one side has a lawyer, the outcome is likely to be problematic – but I agree in those cases many judges and opposing counsel seek not to take undue advantage. Many – but not all.

  3. TooManyTaxes Avatar

    There is probably room in the legal system for a court with limited dollar amount jurisdiction where lawyers are not permitted. Both sides just show up and argue their case. This will not change the result in many instances as a business isn’t likely to spend the time and money to file suit and present its own case unless it has good evidence and a good argument. But it would take some pressure off some defendants by not having to deal with an attorney on the other side.

    I am also aware of some legal aid clinics that don’t take on representation in all cases but will help a consumer put together facts and arguments. But even there, a failure to make a payment on a contract/credit card or rent is a likely loser in most cases.

  4. LarrytheG Avatar

    Oh I got it now. Neither side can get counsel.. the both go in front of Judge JUDY for “justice”!

    ZOWEEEE… this is how we show the rest of the world how to do “justice”…. “right”!!! GREAT GOOGA MOOGA!

    1. djrippert Avatar

      What logic! Start with Bacon’s opening comment. Only 1 in 500,000 civil cases have both plaintiff and defendant represented by lawyers. That is asymptotic to zero. TMT makes a point that would improve things … no lawyers for small claims. Why should our laws be so complicated that a simple eviction dispute requires bar certified lawyers?

      Let me guess your answer … higher taxes. Tax more and provide free government lawyers to the 499,999 cases out of 500,000 where one or both parties are unrepresented. Great plan. My only “tweak” is that the taxes for this should be levied on retired people collecting retirement benefits. Military, social security, private pension … all get taxed for the justice fund. Why should society’s productive members have all the fun? Time to start taxing retirees!

    2. TooManyTaxes Avatar

      Larry, there are such courts. I know, for example, that Colorado has a small claims court where lawyers don’t appear. The rental manager or accounts receivable manager would appear for the plaintiff.

  5. LarrytheG Avatar

    I see the criminal justice “justice” as very different than “civil” justice.

    But in both cases – there is a lot of truth to the phrase “the best lawyer money can buy”. Even in Civil cases if one guy gets a “free” or low cost lawyer and there is enough money involved – the other guy will up to ante – so in the end – the guy who has more money is going to get “better” representation.

    One way to “fund” adequate money for “good” legal representation is for the court to be self-funded and to assess a percentage fee for awards – then that money is used for future cases where someone cannot afford legal representation as well as the cost of the ccourt.

    But this goes back to the top question. If it really is a problem – then you do something about it – if it is not – then not But if it is a problem – there is
    a duty to fix it and not just make excuses and calls for more “observation”.

    1. Steve Haner Avatar
      Steve Haner

      Layer on more fees and then you accelerate the problem of unpaid fines and fees, a previous topic on BR because the “solution” there is to suspend the driving license. The myriad fees already imposed on both civil and criminal cases for “worthy” uses have much to do with that problem.

      We’re back to Henry VI, Part 2, Act 4…had to end up there.

      Larry, you remind me of a comment I made in an op-ed I wrote at the end of my time with the AG. If you think a good lawyer is expensive, try hiring a bad one….

      1. LarrytheG Avatar

        Fees from those who are awarded damages.

        In other words – how are you going to address the problem of people who
        cannot afford representation?

        This is another one of those issues where you can come at it with an intent to find the best practical way forward – realizing that it’s not the perfect way but you’re looking for something that “works” as opposed to walking away because you can’t countenance less than perfect solutions

        Put the fees on the winners – that way both sides do get adequate representation and the ones that benefit financially help fund the process.

        In terms of “affording” a good or bad lawyer – that’s EXACTLY the point if you can’t afford one at all or can only afford bad ones

        Again – this is clearly a compelling issue – that should be dealt with instead of the current see no evil..walk away cuz there are no good solutions – excuses.

        This is a test of governance – liberal or conservative… what do you do? And doing nothing is a failure.

        1. TooManyTaxes Avatar

          We do have a system of funding lawyers through the proceeds of a successful lawsuit, contingency fees. But it works only when the case is reasonably strong and could produce a sufficient amount of damages to compensate the plaintiff and the attorney. I’m doing one now. Some lawyers do them all the time.

          But most proposals are turned down. Generally, there just isn’t enough money to fund the work or the case is weak or too hard to prove.

          1. LarrytheG Avatar

            TMT – isn’t that lawyers turning down prospective cases that they think they cannot win?

            That’s BEFORE the issue gets to court – and one side has a lawyer and the other cannot afford one – right?

            What if the Courts themselves did something similar where they would require a fee up-front from the side that has the lawyers and is seeking damages? And those fees end up in a fund that helps provide lawyers to the other side that cannot afford one?

            As I said earlier – it’s incongruous for us to say that a core function of govt is to assure that people have equal “rights” under the law – unless they cannot afford to defend those rights – and not provide a real remedy and just end up writing reports that conclude that “yeah… the poor do get screwed over in our current legal system”… and then basically walk away from the issue with no solutions…

  6. TooManyTaxes Avatar

    Larry, your proposal to have the government take money from parties with lawyers to fund parties without lawyers appears to me to constitute confiscation of property. If a credit card company sues X to collect on credit card debt that X owes and gets a judgment for $5000, the amount of the debt, the plaintiff is made whole. If the credit card company has to pay $1000 into a fund so that X can get a lawyer, the credit card company’s property has been taken without due process of law.

    There can be ways for X to get an attorney. If X qualifies, he/she might get assistance from a legal aid clinic or from a lawyer doing pro bono work. But even they will look at X’s case and may refuse it if X has no bona fide defenses. If X is being sued for debt he/she didn’t incur and made efforts to so inform the credit card company, a plaintiff’s lawyer may well take the case on a contingency basis and raise a consumer protection law counterclaim against the credit card company.

    A number of bar associations are working to develop so-called “low-bono” systems, where lawyers represent low-income people at very discounted rates. But again, a lawyer will first evaluate X’s case and likely turn it down if X doesn’t have any good defenses.

    Is there anything you don’t want taxpayers to fund for people with lower incomes?

  7. LarrytheG Avatar

    TMT – it’s no more confiscation of property than when you need a building permit and have to pay a fee to get it and that fee pays for the processing.

    Ditto for licenses at the DMV and a passel of other things.

    Besides , have you never heard of Court Costs? geeze guy!

    here’s the deal. It costs money to provide good legal assistance.

    If you SAY you want EQUAL representation in court regardless of the litigants income… then what are you going to do?

    This is another one of those issues – where you either implement a solution – even if it’s not perfect – or you walk away with no solution at all and your words about “equal justice” are just words and you have no intention of actually assuring it happens.

    This is the rest of governance. You sign up to fix things.. not blame others and walk away.

  8. LarrytheG Avatar

    re: ” A number of bar associations are working to develop so-called “low-bono” systems, where lawyers represent low-income people at very discounted rates. But again, a lawyer will first evaluate X’s case and likely turn it down if X doesn’t have any good defenses”

    And this is not working… according to the data .. but why would you expect just that one group to be the only ones “contributing” anyhow and now all of us?

    There’s really no such thing as “pro-bono” … it either take the lawyer away from other work that would give him/her more earnings… OR we are basically expecting them to contribute the services in lieu of money.

    There is no way around this. Good legal help costs money and it does come out of someone’s pocket … and why should it only come out of some folks pocket?

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