In Why You Won’t Get Your Day in Court in the New York Review of Books, judge Jed Rakoff offers a measured yet devastating critique of how all but the richest Americans lack effectively lack access to the courts. Rakoff, a highly regarded securities law expert best known for refusing to rubber-stamp SEC settlements that he deemed provided him with too little information to determine whether they were fair, walks through why Americans are shortchanged:
Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.
For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.
Rakoff goes through all of theses issues and explains the consequences, which include more people attempting to represent themselves in court, where they lose at a much higher rate than parties that have counsel. Readers of this site know how common it was during the foreclosure crisis for homeowners to attempt to defend themselves, with little success. Even now, I regularly have individuals who are trying to keep their homes or overturn a successful foreclosure e-mail me along with a long list of other people which regularly includes prominent officials like Elizabeth Warren. Even when they might have a germ of an argument, these missives are often so screechy and poorly organized that they come off as being the work of cranks rather than those at the end of their ropes. And this is reaction of someone sympathetic to the idea that the servicer done them wrong.
As bad as the situation is in civil cases, it’s worse on the criminal side of the bar. Even though defendants do get representation, court appointed lawyers are rarely a match for prosecutors. And the issue isn’t simply that hiring good counsel is costly. It’s also that the consequences of losing a criminal case are draconian, and even with the best representation, litigation is still a crapshoot. Recall that Aaron Swartz killed himself because the cost of defense in a Federal case starts at $1.5 million, which would have impoverished his parents, and if he lost, he faced up to 35 years in prison and fines of up to $1 million.
Even in my very tame and cloistered social circle, the stories I have heard of encounters with the criminal justice system have been sobering. Someone I met in passing was charged criminally in a southern state for practicing medicine without a license. Even though he was not offering medical services or making medical claims, he’d been licensed as a osteopath in another state and his receptionist called him “Dr. Marty,” which his clients took up. He did hire his own attorney rather than rely on a court defender, and went to trial rather than accept a plea bargain. He was confident he’d win because the prosecution presented no evidence (no witnesses, no documentary evidence) that he was practicing medicine, much the less that he’d done any harm. However, his attorney did not fight the venue being in an itty bitty backwater town, as opposed to the large city in which the defendant worked. As the local who recounted the tale said, judge and juries there are fixed all the time. “Dr. Marty” lost on 16 counts and was sentenced to four years in prison.
Similarly, I know a highly skilled former Wall Street tech expert, and am pretty confident that the professionals in his circle (who are shameless gossips) would not lie for him. The story that several parties independently recounted was that he dumb enough to not move out when a long-standing roommate turned to drug dealing. Mr. IT convinced himself he was not at risk as long as he never touched any illicit substances or handled cash.
One evening, someone came and kept pounding on the door, threatening to (and sounding as if he could) knock it down. After increasingly loud efforts at breaking into the apartment to get his drugs, Mr. IT relented, and found and handed him the envelope and took money. Unbeknownst to him, his roommate had just been busted and told he needed to turn other people, and as a result, the buyer was wearing a wire. And the amount in the envelope was only a misdemeanor dealing amount but was marked up in the evidence room to a felony quantity.
Mr. IT pled guilty and expected to go to prison. But because he was HIV positive and had spots on his face at his sentencing hearing, the prosecutor and judge figured he has Kaposi’s sarcoma, and they’d rather have him die on his own nickel rather than get state support. So he got probation instead. It turned out that whatever he had wasn’t that, and he’s still alive. But the prosecution and felony conviction deeply traumatized him, as well as making it very difficult for him to find employment.
I strongly urge you to read this important article in full. From its close:
But while the larger solutions to this denial of access must await a change in the legislative climate, there is, I am convinced, no reason short of ignorance or ideology for judges to continue to give their approval to devices that effectively deny Americans access to their courts. The Supreme Court, for example, could easily overrule or at least narrow decisions like Concepcion and Chevron, on the ground that they deprive Americans of meaningful access to their courts. And lower court judges, state and federal, could take a harder look at some of the practices described here that have the same effect.
This would require a considerable change of thought on the part of many judges. Indeed, it is hardly surprising that judges who often have substantial dockets tend to look favorably on arrangements that will lessen their work burden, whether by mandatory arbitration, denial of jurisdiction, reliance on prosecutors and administrators, or similar measures. Too often, however, such relief morphs into an effective reduction of judicial responsibility, with dire consequences for the long-term ability of the courts to serve as an effective check on the power of the legislature and the executive. Arguably even worse, the situation I’ve described reinforces the belief of citizens that the courts are not an institution to which they can turn for justice, but are simply a remote and expensive luxury reserved for the rich and powerful. If the judges themselves do not take steps to counter this insidious trend, who will?