It is not justice if not equal, even in civil proceedings

STANLEY A. BASTIAN and SCOTT A. SMITH  – GUEST COLUMNISTS-Seattle Post Intelligizer – Dec. 26, 2007
We know from movies and television shows that if you’re arrested, the police will read you your rights, which includes the right to an attorney if you cannot afford one. That’s been the law of the land since 1963 when the U.S. Supreme Court recognized that to have a fair trial, you need adequate legal representation. What many people do not realize is that you are not entitled to legal representation in civil cases even when fundamental rights are at stake.
The Brenda King case is a good example. Mrs. King stayed at home to raise her children. When her marriage ended, her husband hired an attorney to sue for custody. She could not afford a lawyer or find a free one to help her out. The stakes were enormous and she was forced to defend herself at trial. With a ninth-grade education and no legal training, she did not understand the complex laws and procedures of the courtroom. Pitted against her husband’s experienced trial lawyer, she lost. Her husband was granted primary custody and decision-making authority for raising their children.
Unfortunately, the Brenda King situation happens far too often in our legal system. On any given day, someone faced with losing basic personal or family needs such as shelter, sustenance, health care, or child custody must do so without legal assistance. For low-income individuals our open public courts might as well remain closed.
Judges traditionally accommodate pro se, or unrepresented individuals, by helping them understand legal procedures or slowing courtroom proceedings. In Brenda King’s case, the court allowed what probably should have been a two day trial to take more than twice as long. Such delays are needed in pro se cases, but they eat up valuable court time and public resources.
Lawmakers and private attorneys are working to provide legal assistance to low-income individuals. State and federal legislators understand the issue and have provided funding for the Northwest Justice Project, which operates legal services offices throughout the state. New offices recently opened in Port Angeles, Aberdeen, and Longview. Moreover, the Washington State Bar Association and local bar associations encourage attorneys to provide free legal services in their communities. Washington lawyers currently contribute an estimated 80,000 hours (worth $12 million) each year helping low-income individuals with legal matters. Lawyers have also joined with local bar associations and legal aid programs to create the Campaign for Equal Justice. Last year, these efforts raised over $2.5 million for low-income legal assistance in Washington.
Volunteer legal help and private fundraising, however, can accomplish only so much. A statewide study showed over 80 percent of low-income individuals in Washington facing a critical legal need do so without legal assistance each year. Justice remains out of reach for most low-income residents in Washington.
We need to do more. The additional cost of providing low-income individuals with counsel in limited circumstances would not open the floodgates to unlimited spending. A state study showed that only 7 percent of dissolution cases involved one party being represented by counsel and the other appearing by themselves. The study further showed that a vast majority of such cases were uncontested.
The cost of doing nothing is much greater to individuals and to our communities. Without meaningful access to justice, the consequences can be devastating. Civil legal aid often means the difference between shelter and homelessness, productive employment and bankruptcy, or safe families and domestic violence. Legal aid strengthens families and communities. It helps our court system operate more fairly and efficiently.
The equal justice community in Washington has a simple motto: “It’s Not Justice if it’s Not Equal.” Equal and fair treatment in our justice system may not be a constitutional right, but it is a fundamental right, and no person should be denied access to justice simply because he or she is poor.
Stanley A. Bastian practices law in Wenatchee and is president of the Washington State Bar Association. Scott A. Smith practices law in Seattle and chairs the Equal Justice Coalition

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