To the relief of many, last year in Turner v. Rogers the Supreme Court again held that there is no right to legal aid in civil matters. The very idea conjured up a nightmare of movement lawyers bringing on class action suits.
But is it right that someone should lose a lawsuit because he or she can’t afford to contest it? The founders did not think so. In 1776 they declared that everyone “ought to have justice and right, freely without sale, fully without any denial.” In 1793 Joel Barlow, a confidant of Thomas Paine in London, lectured European rulers that in America, courts were equally open to the poor as to the rich. Today, tables are turned: Europeans — from Georgia in the Caucasus to Portugal on the Atlantic – have a right that Americans do not have.
The German system of legal aid is a model for the rest of Europe. Here is how Germany can make legal aid available to all who need it without bankrupting the treasury:
(1) Litigation for everyone is less expensive and faster than here. Attorney’s fees are proportionate to amounts in dispute.
(2) Legal aid is dependent on a judicial finding at the outset of the case that the party requesting aid has a reasonable chance of success.
(3) Legal aid consists of state advances to cover court costs, attorneys’ fees and expenses to permit recipients to participate in lawsuits and, if necessary, to obtain private counsel of their own choosing. Not all recipients get private counsel. When counsel are employed, their mission is not to make law, but to protect their clients’ claims.
(4) Legal aid is not a gift to recipients but a loan, to be repaid in 48 monthly installments beginning already when aid is granted.
(5) Legal aid is built into the loser-pays cost-shifting system. When the legal aid recipient wins, the other party, and not the state pays the costs, fees and expenses of the legal aid recipient.
Legal aid doesn’t come free to the states’ budgets in Germany, but to a substantial extent it is self-funding. Proponents of legal aid and court reform have common cause: we will not have legal aid for everyone with need, until we have a legal system that works well for everyone, needy or not.
Read more: James R. Maxeiner, A Right to Legal Aid: The ABA Model Access Act in International Perspective, Loyola New Orleans Journal of Public Interest Law, Vol. 13, No. 1 (Fall 2011), pp. 61-113. Available at SSRN.