Good Example Of Access To The Legal System Essay

One of the most important values and ideals in American society is that all men are created equal. Although this country has an unfortunate history of slavery, what these words mean is that each person has the same rights as another person. The purpose of the rule of law is to ensure that no person is above the law. All persons, rich or poor, must follow and abide by the same law. There are no special exceptions, and people are not excused from complying with the law simply because they have money or means.
But whether the legal system lives up to its lofty notions of equality is up for debate. One reason for this is because of the way the system is set up. Historically, when people had personal disputes, a trial by battle would resolve the controversy. For obvious reasons, this practice was replaced with the civil justice system. In this system, a party who has been injured or harmed in some way by another can bring the other party to court in a lawsuit. The judge, in his or her infinite wisdom, sits as a neutral umpire to ensure that both parties are abiding by the rules of the court. After both sides have had an opportunity to present their cases, either the judge or jury will determine the outcome of the case. In theory, such a system would always reach a fair and equitable result.
The reality is that many people who need legal services or seek justice simply do not have access to the court systems. Money talks in politics, and it also talks in the courtroom. The court process is extremely time consuming, arduous, and expensive to navigate. Many lawsuits can stretch on for years. Parties who seek to bring a civil matter or those who are sued and must answer the lawsuit are responsible have no constitutional right to an attorney. This leaves the poor plaintiff or defendant in a difficult position. The access to legal representation obviously plays an integral role in providing persons with proper access to the courts.
Both plaintiffs and defendants who are not represented by counsel are fighting an uphill legal battle. For the average layperson, it is nearly impossible to navigate the legal labyrinth of the court system. Untrained individuals simply do not have the skills, knowledge, or training to adequately represent themselves in court. Having meaningful access to justice and the courts is therefore tantamount to having legal representation. For the wealthy, this is not an issue. Attorneys are expensive to hire, but a wealthy individual will hire the best possible attorney because important rights are always at stake in any kind of lawsuit.
While indigent defendants are constitutionally entitled to an appointed lawyer in criminal matters, there is generally no right to counsel in civil suits. In noncriminal actions, defendants do not stand to lose the liberties and freedoms as in a criminal conviction. Short of incarceration, very severe consequences can attach to civil suits. Throughout a broad spectrum of different legal fields, significant rights and freedoms of the parties are at stake.
An example will serve to illustrate the substantial rights at issue in civil matters and why the presence or absence of an attorney is largely determinative of the final outcome. For instance, in state-initiated child removal proceedings, parents and guardians stand to lose custody of their children. In a large percentage of these proceedings, many parents are poor and unrepresented by counsel. If more parents and guardians had access to counsel, their rights and interests would be better represented. The average poor parent cannot effectively present a compelling case in their favor, given the complexity of the relevant, laws, statutes, and regulations and the art of legal representation.
The legal community has responded in a number of different ways to the growing needs of providing services to low income individuals. One popular mechanism that has emerged to provide greater access to legal services for the poor is the contingency fee arrangement. Attorneys who work on a contingency fee receive no money upfront from the client. Instead, the attorney is only paid if the client prevails in a settlement or verdict. Typically, the attorney’s contingency fee will be around one-third of the final judgment amount. In personal injury cases, contingency fee arrangements have become quite popular.
While the contingency fee arrangement has provided many injured parties legal representation that would otherwise not be able to afford counsel, the contingency fee is not a perfect solution. Because an attorney will only be paid if the client’s case wins at trial or in settlement, the attorney has powerful incentive to only take cases that the attorney believes he or she could reasonably win. While plaintiffs with strong factual cases will have no trouble finding an attorney who agrees to work on a contingency fee, plaintiffs with cases that do not have as well-developed facts or that do not have the type of case that produces a large verdict or settlement amount will be hard-pressed to find a willing attorney to take their case.
In light of the growing recognition of the legal service needs of the poor, many states require attorneys to perform pro bono work. The American Bar Association promotes and encourages attorneys to serve in a pro bono capacity. Pro bono work provides needed legal services and representation to indigent clients. Pro bono work can range from representing a suspected murderer, to representing a tenant in a landlord-tenant dispute, to representing an employee in a worker’s comp action. The specific methods for selecting attorneys to perform pro bono work vary from state-to-state. Some states require attorneys to perform a minimum number of hours of pro bono work each year. Other states will assign attorneys pro bono cases on an ad hoc basis.
Another means for providing legal services to the poor are legal clinics and legal services for low-income clients. Most law schools in the United States have legal clinics that offer various legal services to low-income clients. Legal clinic programs are beneficial to all parties involved. The law students who participate in the legal clinics gain practical experience in the practice of law under the supervision of professors. The clients receive legal representation in important proceedings free of charge. Legal aid services are organized on a state-by-state basis and provide a broad range of legal services to qualifying low-income individuals.
While there is growing recognition of the need to make legal services more accessible to low-income individuals, the problem is deeply entrenched in the overarching structure of the legal system. The court system is designed to benefit those with financial means and resources. As a result, many disputes are being resolved out-of-court through various forms of alternative dispute resolution (ADR). Because of its flexibility and less adversarial nature, ADR has become a popular means for settling disputes. As the costs of litigation continue to rise, policymakers and lawmakers should consider ADR to increase access to justice for all citizens.