Vol. 82, No. 6, June 2009
by the Hon. Mary E. Triggiano & John F. Ebbott
He was not the father. Of that, there was no question. But he didn’t know how to prove it. Because of this, Ronnie J. spent 12 years in a “No Exit” nightmare, trapped in the court system. Then, finally, Ronnie got a lawyer, and the nightmare ended.1
The evidence of Ronnie J.’s nonpaternity included conclusive genetic testing, admissions from the mother, and other evidence.2 All the parties recognized Ronnie had a meritorious defense to the two false claims of paternity.3 Yet, Ronnie spent 12 years in vain attempts to present those defenses to a court. His last pro se motion, filed before he obtained a lawyer’s help, was denied in part because he had failed to timely file.4 Ronnie was trapped in a legal proceeding like that described in 1848 by a delegate to Wisconsin’s Constitutional Convention: “… a constant succession of pitfalls and traps … labyrinths which can never be threaded by the uninitiated [which] separates the people from justice.”5 The record in Ronnie’s case is replete with inadequate notices, failures to respond, several appearances by only one party, fundamental deficiencies in the record, and totally inadequate attempts by Ronnie to represent himself.6
The Wisconsin Court of Appeals called it an understatement to describe Ronnie as a “… less than sophisticated pro se litigant”7 and found it obvious that, “… through most of his travail, Ronnie was the victim of his own uninformed knowledge of the intricacies of the judicial system.”8 Had he not, finally, been able to retain counsel, he would probably still be trapped in the labyrinth.
Ronnie J. was not the sole victim of his lack of the guiding hand of counsel. The court system itself – its judges, staff, attorneys, and other litigants – also paid a heavy price. The court system wasted time and money for 12 years on a case that, had counsel been provided to Ronnie at the start, would have been over in less than a year. Like Ronnie J., thousands of low-income litigants go through the court system without the aid of counsel and, thus, without justice.
This country’s Declaration of Independence proclaims: “We hold these truths to be self-evident, that all men are created equal,”9 and the U.S. Supreme Court has declared that
“[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”10 The Court has also held that “[t]here are fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. … The right to the aid of counsel is of this fundamental character.”11
There can be little doubt that, in the Wisconsin justice system, the kind of trial a person gets often depends on the amount of money the person has. A right to counsel in civil actions would provide equal justice to people caught up in the courts who cannot afford to hire lawyers and would provide relief to the courts themselves.
The Importance of Counsel to Equal Justice
The importance of counsel to equal justice has long been recognized. In England in the 13th and 14th centuries, attorneys in civil cases were assigned to plead the causes of people too poor to pay fees. In the 15th century, the English statute 11 Hen. 7, c. 12 (1495), required the court to appoint counsel when a suitor swore that he was worth less than five pounds.
In America in the 18th century, even slaves were provided counsel.12 One such slave, Sybill, may well have been represented by Thomas Jefferson: “On the motion of Sybill, who is detained in slavery by Joseph Ashbrooke. … She is allowed to sue her master in forma pauperis, and Mr. Jefferson is assigned her counsel to prosecute the said suit.”13
In his 10-year battle for freedom, Dred Scott had the aid of attorneys provided by others. In 1857, Maine had on the books a statute putting the legal services of county attorneys at the disposal of accused fugitive slaves.
Early in its history, 11 years after statehood, Wisconsin was way out in front in recognizing that the aid of counsel is crucial to justice. In 1859, 104 years before Gideon v. Wainwright14 accorded a federal right to counsel in criminal cases, the Wisconsin Supreme Court asked, in Carpenter v. County of Dane: “And would it not be a little like mockery to secure to a pauper these solemn constitutional guaranties for a full and fair trial of the matters with which he is charged, and yet say to him when on trial, that he must employ his own counsel, who could alone render these guaranties of any real permanent value to him.”15
Wisconsin Statutes and Case Law Recognize Importance of Counsel
The crucial importance of counsel is recognized in the statutory and case law of Wisconsin and other jurisdictions. Wisconsin now has at least 11 statutes that provide the right to counsel in critical kinds of civil cases, including ones involving children in need of protection and services (CHIPS),16 terminations of parental rights,17 involuntary commitments,18 emergency commitments of intoxicated persons,19 guardians ad litem for minors in actions affecting the family,20 tuberculosis quarantines,21 paternity,22 interstate child support,23 review and modification of guardianship,24 and juvenile delinquency.25 In fact, the assistance of counsel is considered so important in Wisconsin that its denial, in situations in which there is a right to counsel while one is in custody, has been made a Class A misdemeanor.26
Many other states have recognized the importance of the right to counsel, both in their statutes and in their case law.27 Six states, including Wisconsin, guarantee in their constitutions the right to appear by counsel.28 A federal court recently found that the Georgia state constitution contains a right to counsel for foster children in deprivation actions.29 In addition, at least 44 other countries provide counsel to indigent litigants in civil matters.30
Essentials of Life at Stake in Civil Cases
The interests at stake in civil cases involve the essentials of life, and pro se litigants are ill-equipped to protect those interests. A right to counsel is just as necessary in civil cases as in criminal cases because the interests at stake in civil cases involve the essentials of life, and the loss of those essentials has serious consequences. At stake in civil cases are such basic needs as the care and custody of children, food, clothing, shelter, heat, medical care, and safety. The mother who has her children taken from her in a custody battle certainly considers them to be more important than her own liberty. The heartbreak and depression that result from the loss of one’s children’s love and affection is certainly as searing as the pain suffered by a defendant found guilty in a criminal trial. Just as with Ronnie J., almost all impoverished litigants are woefully ill-equipped to protect their rights in court without counsel. Many are poorly educated, unable to speak English, or physically disabled. The number of non-English-speaking litigants has greatly increased. When caught up in a court case, pro se litigants are generally distressed and disoriented. As one circuit court judge related: “I had a mother in a CHIPS case wander into my courtroom; the bailiff directed her to sit down. She did not realize that she was in the courtroom. She clearly did not know….”31
The Hon. Mary E. Triggiano, U.W. 1988, a Milwaukee County circuit court judge since 2004, is currently assigned to children’s court. She previously was coordinating attorney for Legal Action of Wisconsin’s Volunteer Lawyers Project, managing attorney of Legal Action’s Milwaukee office, and a litigation associate with Reinhart, Boerner van Deuren s.c.
John F. Ebbott, U.W. 1970, is the executive director of Legal Action of Wisconsin. He has worked in legal services and private practice.
Pro se litigants do not know the ropes of judicial systems, and for many such people, life, even without the threat of litigation, is an overwhelming struggle. As the Wisconsin Supreme Court stated in Joni B. v. State,32 they “…have uncommon difficulty in dealing with life, and … are, at the hearing, thrust into a distressing and disorienting situation.” Especially when one party has an attorney and the other does not, “…the contest of interests may become unwholesomely unequal.”33
The legal obstacles encountered in a lay person’s litigating her case make a lawyer essential. She will encounter great difficulty when she undertakes one or more of the following tasks: drafting pleadings; complying with the notice-of-claim statute; moving for summary judgment; conducting discovery; dealing with and paying for expert witnesses; talking to witnesses; preparing and serving subpoenas; negotiating with the other side; conducting direct and cross-examination; knowing the rules of evidence; preparing a closing argument; selecting a jury; and preparing jury instructions. As the Wisconsin Supreme Court recognized: “Few people are equipped to understand and fewer still to confute [medical and psychiatric testimony; such testimony can be] … laced with hearsay and evidentiary pitfalls.”34
The foregoing underscores the late Dean Howard Eisenberg’s flat assertion that “pro se is no pro bono,”35 as well as his concern that “we have to make sure that justice is being done.”36
Relieving the Courts
Not only will a right to counsel in civil cases provide equal justice to pro se litigants, it also will provide relief to the courts. As all judges and lawyers working at the circuit court level are well aware, pro se litigants are a substantial and rapidly growing part of circuit court caseloads. From 1999 to 2006, the percentage of Milwaukee County family law cases involving pro se litigants increased from 70 percent37 to 76.6 percent, and nonfamily cases involving pro se litigants increased to 44.9 percent.38
These unsophisticated and inexperienced pro se litigants complicate the legal process and burden the entire judicial system. They consume the time of judges and court staff and raise conflict-of-interest and other ethical issues. Court clerks may stray into the unauthorized practice of law. Judges are torn between impartiality and helping. Pro se pleadings and arguments are hard to decipher, and hearings become slow and onerous. Some pro se litigants become frustrated, and some vent their frustration on court staff.
A pro se party also can increase the burdens and transaction costs for other parties. Everything for the opposing party becomes more difficult, such as arranging for a deposition, giving proper notice to the pro se party, receiving proper notice, and responding to poorly articulated claims and defenses.
All, or at least a great number, of these difficulties are avoided when both parties are represented by counsel.
Other Remedies Have Not Sufficed
Although circuit court judges have the inherent power to appoint counsel,39 this power is rarely used. This likely is because judges are mindful of a county’s limited funds, and because pro se litigants do not know that they can request counsel. Referral by the courts to legal services providers has not solved the problem, because of the providers’ limited resources. Referral to private, pro bono attorneys has been only sporadically successful. Although there are many committed pro bono attorneys, there simply aren’t enough to fill more than a small amount of the legal service needs of the entire community.
Other remedies, though imaginative and earnest, have not effectively eliminated the problem. Past and current efforts to remedy the pro se problem have fallen short. Self-help centers, family law facilitators, pro se clinics, and enhanced technology have helped, but not enough. At the conclusion of these services, the pro se litigant is still pro se.
Cost Need Not Defeat the Right
The major, and maybe the only, barrier to a right to counsel, whether expressed or unexpressed, has been cost. When considering cost, the expense of providing counsel should be offset against the expense of pro se representation. The latter is a creeping, and heretofore unmeasured, cost. It is safe to say that pro se costs the system a lot. Included are the cost of postjudgment claims and of pro se remedies, such as work on simple forms, pro se clinics, self-help centers, and special court programs. When litigants have lawyers, these efforts are not necessary. If, for example, the expense of appointing counsel in court cases is $80 million per year, and pro se costs are $30 million, then the net cost of a right to counsel is $50 million, not $80 million. Assuming arguendo a net cost of $50 million, that amount should not be viewed in isolation but should be placed in context with other public investments.
$50 million is about $9.30 in increased taxes per person per year in Wisconsin ($50 million divided by the Wisconsin population of 5,363,675). In 2004, the auto registration fee increased $10, or 22 percent, and it has increased since. A parking ticket in Milwaukee costs $22.
A right to counsel should be considered with other public investments, such as tourism promotion and highway construction. The Marquette Interchange construction in Milwaukee cost $692,148,600 over fiscal years 2004 and 2005. Its Web site alone cost $685,000. Debt service on Marquette Interchange bonds costs $41.3 million per year. The state spent $30,925,200 on its Department of Tourism for fiscal years 2006 and 2007, or $15 million per year.
The state now faces a huge deficit, but that will, sooner or later, be reduced, and continued public investment will be considered.
The Right to Counsel Need Not be Unlimited
As the U.S. Supreme Court stated, even fundamental rights may be “appropriately hedged about.”40 Some possible areas to exclude from the right to civil counsel are de minimis cases, low-conflict divorces, personal injury claims, small claims other than evictions, prisoner litigation, and cases not involving the essentials of life.
A right to counsel in civil cases is necessary to make equal justice under law a reality. A right to counsel also is essential to the proper performance of the justice system. It should be seriously discussed, so that no more people like Ronnie J. get caught in the labyrinth, and no more courts get caught along with them.