Why You Won’t Get Your Day in Court

‘My dear Sir, it is quite impossible for me to take on your case. You lack the most important piece of evidence...that you can pay my fee!’; lithograph by Honoré Daumier, 1846
‘My dear Sir, it is quite impossible for me to take on your case. You lack the most important piece of evidence…that you can pay my fee!’; lithograph by Honoré Daumier, 1846

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.

Some of this may seem surprising to people accustomed to hearing about overburdened courts with overcrowded dockets. These very real burdens partly reflect the decades-old refusal of many legislatures to provide funds for new courts and new judges at a rate remotely comparable to the increase in population and the corresponding increase in cases. But aside from these facts, a closer look at changes in the courts’ dockets reveals some disturbing trends.

Until 1970, according to statistics compiled by the National Center for State Courts, the great majority of individuals who brought or defended lawsuits in state courts were represented by lawyers. But today as many as two thirds of all individual civil litigants in state trial courts are representing themselves, without a lawyer. Indeed, in some states, an astonishing 90 percent of all family law and housing law cases—which are the most common legal disputes for most Americans—involve at least one party who is not represented by a lawyer.

Individuals not represented by lawyers lose cases at a considerably higher rate than similar individuals who are…


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