Only one in 500,000 civil cases handled in Virginia’s general district courts each year have lawyers representing both plaintiffs and defendants, according to a new study by the National Center for State Courts.
And what does that mean?
“When only one side has an attorney and the other side doesn’t, then the system becomes dysfunctional, it’s a tilted playing field. Despite the judges’ best efforts to be fair, they cannot possibly make up for the lack of counsel,” says John E. Whitfield, executive director of Blue Ridge Legal Services in Harrisonburg, as reported by the Richmond Times-Dispatch.
The five-year-long study was funded with financial support of the Office of the Executive Secretary of the Supreme Court of Virginia and the Virginia Access to Justice Commission, and funneled through Blue Ridge Legal Services.
General district court data show that plaintiffs with lawyers won 60 percent of the cases where the defendant did not have a lawyer. But plaintiffs won only 20 percent of the cases when both parties were represented. Writes the T-D:
The study found that both plaintiffs and defendants have substantially higher success rates when they are represented by a lawyer.
“Clearly, representational status of the parties has an impact on the outcomes of cases in Virginia – not surprising, that’s why people hire lawyers,” Whitfield said.
“Our court system was designed with the implicit premise that the litigants were going to have lawyers on both sides. That’s the way the court system is set up: the rules of evidence, the rules of procedure, how you make objections, how get evidence in, how you draft pleadings – every aspect of litigation in our court system presumes the presence of counsel on both sides,” he said.
Debt cases in general district courts often end in default judgements when the defendant simply fails to show up, said Whitfield. “They understand they owe the money, they don’t know of any valid defense and it would seem like a waste of their time to go down there and say, ‘Yeah, I owe the money,’” he said.
But, said Whitfield, “Sometimes they may have a defense but they don’t know it because they don’t have access to an attorney who would explore that for them.”
Bacon’s bottom line:
It’s one thing to have inequalities in wealth and status in U.S. society — that’s what you expect in a country where freedom is valued more highly than equality. But almost everyone would agree that all Americans should enjoy equal rights under the law. Poverty should not deny a person justice. This study makes it sound like that’s exactly what’s going on.
The analysis leaves out one critical consideration, however: Any person, no matter how poor, can endeavor to engage a lawyer. There is no shortage of lawyers who pursue general practice law. The problem for defendants is that lawyers won’t take many cases that have no merit. The reason defendants win a much higher percentage of cases when they have lawyers is that the lawyers filter out the weak cases and take only the stronger ones.
The T-D article points out that most civil cases fall into one of two categories: bad debts and evictions. Businesses and landlords usually have some basis for filing civil suits to collect the money — rarely do they make up claims out of whole cloth. And the reason most defendants don’t show up at court is that they know they failed to pay. Occasionally, the plaintiff may get his facts wrong, or there may be other extenuating circumstances. For instances like those, there are public defenders.
As a libertarian, I believe that the impartial administration of justice is a core government responsibility. As a conservative, I believe that no institution is so perfect that it can’t be made to work better. I interpret this study not as a wholesale indictment of Virginia’s civil courts but as a signal that the issues it raises may warrant closer scrutiny.
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