America’s Civil Justice System Needs Reform, Too
America’s Civil Justice System Needs Reform, Too
By Martha Bergmark, former president of the Legal Services Corporation (LSC) - reprinted from USA Today, 12/12/2018
Poor remain underrepresented and taken advantage of when it comes to court claims and judgments
Equal justice under law is an American ideal, but most Americans don’t find out how badly our civil justice system fails in that promise until their lives become its collateral consequence.
That is what happened to Jacqueline Mogan, a Georgia woman working two jobs to support herself and her elderly mother, who found her bank account emptied by a debt collection firm she knew nothing about, with no notice of a lawsuit (over an unprovable debt) that the firm was ultimately forced to drop. This might sound shocking, and yet when it comes to some of life’s most consequential problems, restricted and unequal access to civil courts is the rule, not the exception.
The flaws in our civil justice system run deep and wide. Tens of millions of Americans each year find themselves in legal situations with the deck stacked against them — seeking safety from an abusive partner or child support after a relationship dissolves, confronting a landlord suing for a wrongful eviction, or, like Mogan, facing a debt collector’s lawsuit without even knowing about it. A pro bono lawyer came to Mogan’s rescue, but most are not as lucky.
How does that square, you may ask, with the constitutional right to a lawyer when you can’t afford one? That right protects you if you’re charged with a crime, but it applies to civil court cases only in limited circumstances. Legal protections that should have shielded Mogan are not automatically enforced.
Millions of Americans can’t afford to pay an attorney. Consequently, in three out of four state civil court cases, one or both sides have no legal representation or help. Lawmakers have been slow to change the arcane court rules that prevent ordinary people from protecting their legal rights. Predictably, the scales of justice are tipped toward the wealthy and the represented.
A patchwork of federal, state and private funding for civil legal aid organizations is intended to provide help for people like Mogan. But current funding meets only a small fraction of this need. And because there is such a wide disparity in funding for civil legal aid from state to state, where you live often determines whether you can get help. Access to justice should not depend on your ZIP code or the size of your wallet. It should be about the merits of your case. Anything else is a threat to the rule of law.
Voters overwhelmingly believe that everyone should have equal access to the civil justice system. Polling shows voters strongly support a wide range of services to enable everyone to get the legal information and help they need, when they need it and in a form they can use. Strong majorities maintained support for state funding for civil justice services even when the prospect of increasing taxes became part of the equation.
It is not surprising, then, that federal funding for civil legal aid enjoys strong support in Congress, or that most states also provide at least modest funding for civil legal aid. But much more is needed.
Members of Congress could push for increased funding for the Legal Services Corporation. They could authorize the Department of Veterans Affairs to allow funding for legal aid and create more medical-legal partnerships that have proven an effective way to get veterans healthy and housed.
The Trump administration could make more grants, like they did recently in Kentucky and West Virginia, where legal aid organizations work with families caught in the opioid crisis. States and cities could appropriate increased funding for civil legal aid and provide a civil right to counsel in matters of basic necessities of life, like New York City did last year as a way to level the playing field between landlords and tenants in eviction cases.
Voters also strongly support court modernizations like simplified paperwork, as well as ready access to legal self-help technology like informational websites. Chief justices of state supreme courts have called for state court systems to provide an array of appropriate services that will give everyone effective assistance for their essential legal needs. Philanthropists are stepping up to help with funding for innovations aimed at affording justice for all. And state lawmakers and courts must reform faulty court procedures to protect against miscarriages of justice like Mogan suffered.
If we are to make real progress in ending the civil justice crisis, our newly elected lawmakers in Washington, D.C., and across the county must fix policy and fund solutions. With the help of Congress and state legislatures, we can seek — and truly have — justice for all.
Martha Bergmark is the executive director of Voices for Civil Justice and the former president of the Legal Services Corporation.