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Judge advocates expanding Gideon to provide lawyers in non-criminal cases

Marilyn Odendahl
July 31, 2013
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While some legal scholars lament the deterioration of Gideon v. Wainwright 50 years after the landmark Supreme Court of the United States decision, Marion Superior Judge David Dreyer is calling for an expansion of the principle to include civil litigants.

dreyercivil-15col.jpg Marion Superior Judge David Dreyer (IL Photo/ Aaron P. Bernstein)

He has put his ideas into an academic article and plans to continue his research for his dissertation work at the National Judicial College. The basic premise of his paper is that in almost every civil case, people should be assured of having access to legal advice and representation. Without that, the fairness of the judicial system becomes questionable.  

“What’s at stake to me is the rule of law because, to me, ensuring access to justice in civil cases for everyone is a basic tenant of national security and civil order,” Dreyer said. “If people felt like they had redress, which we say we do in America, then there would be less alienation.”

His paper, “Déjà vu All Over Again: Turner v. Rogers and the Civil Right to Counsel,” which is to be published in Drake Law Review, examines the history and court opinions on civil right to counsel. It also pays attention to the barriers to obtaining counsel and the consequences of not having representation.

Dreyer looks at the idea of civil right to counsel through the U.S. Supreme Court case Turner v. Rogers, 131 S. Ct. 2507 (2011).

In that case, a South Carolina man who was $5,728.76 behind in child support payments was jailed for 12 months after a civil contempt hearing. Both parties were unrepresented by counsel at trial.

Once the man was released, he argued the U.S. Constitution entitled him to counsel at his contempt hearing. The majority found that the Due Process Clause of the 14th Amendment does not require civil counsel be provided to indigent individuals at contempt hearings even if that individual’s liberty is at stake.

Dreyer believes the court accepted the case because it wanted to take a close look at the notion of civil right to counsel. In fact, he maintains, the justices really wanted to grant this right but, in the end, they couldn’t.

Some advocates for civil counsel see progress in the ruling, or at least read it as better than nothing. Dreyer understands that point of view but also agrees with the opposite interpretation that the decision is really the same decision that has been handed down by courts in years past.

Hence, he turned to baseball legend Yogi Berra to encapsulate what the Turner v. Rogers ruling is: “Déjà vu all over again.”

Dreyer asked: How can it be fair when people do not have access to advice and representation from lawyers because they do not have money? He, along with others, thinks that question has never been satisfactorily answered, and he is not convinced it could ever be fair.

“If you don’t have a lawyer, you’re not represented,” Dreyer said. “What we’re being pushed to is the acceptance of a system where people won’t have lawyers and that’s OK. And we shouldn’t be having that.”

Getting the data

Dreyer now wants to shift his focus to putting hard numbers to the debate over civil right to counsel. Currently, the arguments are all theoretical since no tangible, practical calculation exists.

Indeed, he noted, the idea that we cannot have due process in some situations without lawyers is not based on any hard data or empirical evidence.

Dreyer plans to compare the experiences and outcomes between those who are and are not represented by an attorney. He hopes to reach beyond Indiana and include other jurisdictions in the United States and, perhaps, abroad.

His tentative hypothesis reflects his concerns over fairness: “The data will show that a lack of access to advice and representation almost always, if not always, is a significant and substantial impediment,” he said. “It affects results. It affects justice. It affects the quality of people’s lives who are involved in the system.”

Mandatory access

Dreyer’s call for a civil right to counsel is an extension of his earlier push to change the legal profession’s thinking about pro bono. In his 2009 paper, “Culture, Structure, and Pro Bono Practice,” Dreyer advocated for the profession to help indigent clients by moving away from primarily relying on the attorneys’ personal preference to do pro bono and instead mandate lawyers to provide access to the courts, although he left open what that exactly means for attorneys.

Coining the term “mandatory access” to replace the “outdated ‘pro bono’ professional idea,” the Marion County judge wrote in 2009, “Instead of considering only what is preferred by the profession, we must focus on what is necessary to maintain the system.”

Four years later, Dreyer sees a real chance for creativity and ingenuity in determining how to provide civil litigants access. He is welcoming to all approaches that achieve that goal.

Some of the new ideas for providing civil representation, he said, might involve bolstering financial resources, possibly through higher filing fees. Another possibility is that money could be shifted within pro bono programs to pay attorneys, or a voucher system could be created where the indigent clients could pay with a voucher, which the lawyers could then cash.

Dreyer also suggested that resources could be diverted from poor relief into legal services. This, in turn, might eventually alleviate some of the need for government assistance like food stamps and unemployment benefits because the legal issue, which is often at the root of the problem, is resolved.

In the courtroom

Dreyer has regular interaction with pro se litigants in court. Some are individuals who prefer to represent themselves, but most are people who appear without a lawyer because they cannot afford one.

He leads the process, talking to the pro se litigants, explaining what will happen during the hearing, and asking for the evidence to be presented. If the opposing parties start arguing with each other, Dreyer will take over questioning the witnesses on the stand.

Unlike other judges, Dreyer said he does not hate having self-represented individuals in court, but he acknowledged the system works much better when attorneys handle the cases. Attorneys and judges can talk to each other in legal terms where sometimes with pro se litigants, judges will struggle to understand their argument.

Dreyer sees the reasons for not providing civil counsel as centering around the practical, political and financial rather than constitutional concerns. Overcoming those obstacles, he concedes, will take time.

“We didn’t get here overnight so it can’t be changed overnight,” Dreyer said. “But obviously what we’ve done hasn’t worked as well as it should and it has to be changed.”•

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  • UGHH
    IF JUDGES (WHO ARE LAWYERS) STOP MAKING BAD RULINGS (WASH MY BACK I'LL WASH YOURS) AND ARE FAIR WITH UNREPRESENTED LITIGANTS....THEN THE SYSTEM WOULD PROBABLY WORK BETTER. JUDGES GET TOO RULE THE WAY THEY FEEL REGARDLESS OF THE EVIDENCE.
  • working lawyers would bear the brunt
    Lofty pinciples! Without any real plan to implement. Its not enough that every dollar earned by working lawyers get chewed up by taxes including programs for the benefit of the poor (and their advocates and administrators). Now we have to expand free legal help which would dramatically expand the demand for "mandatory pro bono." Golf course lawyers sitting high on the hog in big law may applaud such lofty notions but the other 90% of lawyers out here who dont have time for golf, don't relish the idea of the increasing demands put on us by our capos. A wise old lawyer from down South told me once, "America-- the very rich and the poor against the middle." A middle that keeps getting narrower and narrower every year.
  • Access to Courts, Not Access to Expert
    Just because people are guaranteed access to the courts does not mean they are guaranteed access to an expert to assist them (i.e. an attorney). I have access to the roads, but I do not have the means to hire a professional driver to take me wherever I want to go. Perhaps it is time to force limo drivers to provide their services for free. It costs money, a lot of money, to become an attorney. Why shouldn't it cost money to hire one?

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  1. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  2. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  3. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  4. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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