On Sep 24, 12:07 pm, phil-news-nos...@ipal.net wrote:
> What this issue, though maybe not your case specifically, shows is what
> I do consider to be a flaw in the system. If a defendant is unable to
> defend themselves at the time the action is brought, for reasons such as
> having insufficient funds to hire a lawyer or investigate the case to
> get good evidence, and ends up losing when they should have won had all
> facts been known, doesn't get a chance to come back later when a lawyer
> and the now uncovered facts and re-litigate an old settled case.
Well, there already _is_ a way for the truly poor to get a lawyer in civil cases; it's called "legal aid." For those whose income is just a little too high to qualify for legal aid, yes, it can be daunting to be sued for money in a civil case. The main reason it doesn't make economic sense to provide free lawyers to middle-class civil defendants in suits for money damages is that the _only_ thing such defendants stand to lose is money, and if they don't have any, they actually don't have anything to lose. A judgment against a judgment-proof defendant is just a pretty piece of paper and if you collect enough of them, you can decorate the wall with them, but that's about all they're good for if the defendant has no assets and no insurance. Of course, if it's a tort claim and if even an impecunious defendant was smart enough and responsible enough to have the foresight to obtain relevant liability insurance, the insurance company will pay for a lawyer to defend him from the claim.
There is movement in various states toward getting the law changed to provide free lawyers in civil cases to indigent defendants facing loss of "fundamental rights" such as in physical or mental disability commitment hearings, and perhaps even in child custody battles. But that's a far cry from saying that everyone who gets sued for owing someone money should have a free lawyer provided by the state.
> How to
> fix this? The only way I see is some kind of way to provide lawyers and
> some investigating funding to those defendants that don't have the money
> to properly defend themselves (as is already so in criminal cases, but
> for a different reason).
And what good would it do to spend all that money every time someone gets sued by e.g. a tradesman or utility whose bill they didn't pay, or any of the typical kinds of non-insured, contract claims ordinary people may expect to face? Who decides how big a case has to be, or how meritorious a defense has to be, before the "right" to a free lawyer would kick in? And if you cut that Gordian knot by just saying "everyone gets one", how hard is that free lawyer going to work, anyway, if he's required to defend regardless of merit, or if there's only a small amount of money at stake?
If it's a tort case, insurance should cover it. Otherwise, the bottom line has to be, is the right which the person stands to lose important enough to them to do what needs to be done to get a lawyer? Other than the truly poor, there is no such thing IMO as not being able to afford a lawyer; rather, there is such a thing as having other priorities on which a defendant decides it is more important to spend his money. If it's crucially important to a person, they can beg, borrow, take out a second mortgage, or do whatever else is necessary (such as cutting back on living space, conserving on utilities and gas, avoiding expensive foods or new clothes, skipping vacations, and cutting out other expenses) to get the funds needed. If they won't do that, the issue at stake is not that important to them, OR the amount of money at stake is too small to be worth it, OR they realize they really have no meritorious defense and they really do owe the money, so for any or all of those reasons they're not going to throw their _own_ money away hiring a lawyer, multiplying the legal proceedings, papering the other side with motions and basically making it more difficult for the opponent to collect what it is owed. That naturally-selective process does tend to factor in to people's decisions on whether or not it is worthwhile to hire themselves a lawyer -- and this natural check-and-balance would be completely short-circuited, to everyone's detriment IMO, if defense lawyers were freely available regardless of cost or merit.
Now, the other thing to keep in mind is that even the most indigent PLAINTIFF has ready access to the best lawyers in the land, if they are the victims of a tortious injury and are trying to COLLECT money from someone else with deep pockets or good insurance. There are those -- and I'm certainly not one of them, since this is the kind of work I do -- who think contingent fee plaintiff litigation is also a plague on the system because it allows claims to be brought that the victim would otherwise be unable to afford a lawyer to handle. But this, too, is a self-correcting mechanism since no sensible lawyer is going to take on a contingent case if he sees insufficient merit and insufficient potential damages arising from the claim to make it worth his time, effort and money to prepare the case and take it to trial. The cases that go all the way, and win, are by definition meritorious, not frivolous, and it is a public service to be able to bring justice to the "little guy" against even the biggest, richest corporate defendants.
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This posting is for discussion purposes, not professional advice.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
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