In response to:
Winners Should Recover Costs from the December 22, 2016 issue
Why You Won’t Get Your Day in Court from the November 24, 2016 issue
To the Editors:
The exchange of letters between David Slawson and me [“Winners Should Recover Costs,” NYR, December 22, 2016] concerned the substantial financial costs associated with bringing a lawsuit—one of the several barriers to access to the courts discussed in my article on that subject [“Why You Won’t Get Your Day in Court,” NYR, November 24, 2016].
That exchange contains an ambiguity that should be clarified. Whereas under the so-called “American rule,” attorneys’ fees are usually not reallocated between winning and losing parties unless a specific statute so permits, other expenses, such as filing fees, deposition transcripts, and the like, are in some US jurisdictions automatically “taxed” to the losing party. The term “costs” is sometimes used to refer to both the attorneys’ fees and the other expenses and sometimes just to the latter.
The only relevance of this is to the argument sometimes heard that making a loser of a litigation pay all the costs (both fees and other expenses) incurred by the winner would make access to the courts easier for those bringing meritorious suits while discouraging those whose lawsuits are frivolous. This, of course, assumes that a litigant is able to accurately assess, prior to bringing a lawsuit, whether it is likely to be a winner or a loser—which may not be so easy in many instances.
But the broader point is that whatever tinkering might be done with respect to the reallocation of fees and expenses, it is unlikely to materially decrease the many existing barriers to access to the courts discussed in my article. It would be irrelevant, for example, to mandatory arbitration of consumer disputes; to the increasing limitation of contingent fee opportunities to big-ticket lawsuits; to judicial hostility to class actions; to the diversion of civil disputes to administrative forums; or to the effect of increased prison penalties in coercing plea bargains in criminal cases.
And even with respect to the priciness of legal representation, a would-be plaintiff who is told that she will have to shell out more money than she has just to bring her lawsuit will not be helped by the possibility of ultimately recovering her expenses if she doesn’t have the money to begin with.
More effective solutions to lowering the barriers to lawsuits will likely have to come from the legislatures or the courts, but the prospects are not positive. Just recently, for example, Governor Andrew Cuomo of New York vetoed, on grounds of costliness, a bill that would have, among other things, provided state funding for the legal representation of indigent persons dragged into family and surrogate courts (where, as noted in my article, a substantial majority of the defendants are indigent individuals unrepresented by counsel and therefore unable to effectively defend themselves). Another possible solution—a so-called “civil Gideon” ruling by the Supreme Court guaranteeing the right to counsel in civil suits—seems even less likely to succeed given the probable future make-up of that court.
One hopeful sign has been the promulgation in a number of communities of free “access-to-justice clinics” run by local bar associations, by which lower- and middle-income individuals can go to a legal clinic and receive free or partially free legal advice, similarly to going to a medical emergency clinic. The volunteer lawyers at most such clinics are not prepared to undertake entire lawsuits, but they are willing to provide immediate legal advice to persons who, even if they would not qualify for indigent legal aid, are as a practical matter unable to afford legal services.
More far-reaching private solutions, such as expanded legal insurance and online inexpensive legal services, are also beginning to take hold in certain areas. But until there is a more widespread recognition by lawyers, judges, and politicians of how totally most Americans are effectively denied their day in court, these improvements, while laudatory, will continue to be just drops in the bucket.
Jed S. Rakoff
United States District Judge
Southern District of New York
New York City
February 9, 2017
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