In America, legal counsel is not guaranteed in civil cases the way that it is in criminal cases, and with the sky high costs of lawyers across the country, it is increasingly leading to a two-tiered justice system: those who can afford counsel and those who can't.
More and more Americans are now representing themselves, with just one in four civil defendants represented by counsel, according to Bloomberg. This is down from nearly all defendants having lawyers in 1992, according to a 2015 study. The number of litigants without lawyers has risen in the four years since the study, as well.
An opportunity for justice is the "bedrock" of the American legal system, but pro se litigants up against attorneys are unlikely to win their cases or settle on beneficial terms.
Trish McAllister, head of the Texas Access to Justice Commission said: “It’s really a crisis. People aren’t able to get into the courts and they’re not able to navigate them once they’re there.”
Money is the holdup in most cases: litigants simply can't afford counsel and most attorneys won't take cases where the payoffs are too small to justify the court appearance. Last year, the Trump administration effectively closed the Justice Department’s Office for Access to Justice, which was set up to provide access to lawyers for all Americans.
Most civil cases are usually about debt collection, landlord tenant disputes and home foreclosures. Lawyers will build their cases around litigants inexperience and inability to hire competent counsel.
Terry Lawson, a legal aid attorney in Missouri said: “These guys know they’re going to win. Their hope of hopes is that nobody will go get lawyers.”
And it's not always about winning or losing in civil cases. Silvana Naguib, an attorney at Public Counsel, a California pro bono legal firm commented: "Lawyers can help negotiate better settlements. There’s a stark difference between the agreements signed by self-representing litigants versus what [I get] for clients."
Courts have very little mercy for litigants who represent themselves. Some offer resources like volunteers and online forms, but judges are required to hold pro se litigants to the same standard as those with counsel.
Linda Leyva lost her home to foreclosure last year and said judges could be "perplexing". In 2017, a court rejected her motion for a continuance so she could further prepare her case and, a month later, it approved the other side's continuance motion so the lawyer could take a vacation.
There are still ongoing efforts to help litigants who can't afford counsel, however. An organization called Civil Gideon is trying to expand the right to counsel to cover certain civil disputes. They were backed by the American Bar Association in 2006, but there remains questions on how the state would pay for the program.