One of the reasons for the declining number of trials, despite increasing disputes, may be difficulty in affording a lawyer in civil suits. The New York Times and other publications have reported an increasing number of cases going forward with one of the parties serving as a “do-it-yourself” lawyer. Pursuing a claim in a federal district court costs an average of $15,000, with more complicated cases involving scientific evidence often reaching $100,000. The expense of bringing lawsuits has attracted litigation funders, who invest in business disputes in exchange for a portion of the proceeds received by the party to whom they have given capital. Litigation funders assert that they are helping litigants seek justice from wealthier opponents and not supporting frivolous lawsuits, which would be risky investments. Note, however, that some litigants appear to be victimized by lawsuit lenders in a lightly regulated industry where interest rates “often exceed 100 percent per year.” A 2012 San Francisco ordinance created a right to civil counsel, similar to what criminal defendants receive. Those living within 200 percent of the federal poverty line and who have a case regarding such key issues as housing, safety, or child custody would be eligible for free legal assistance. Although critics may view such programs as being best left to private legal aid organizations, supporters believe that by providing legal assistance to civil litigants in need, the city will avoid the long-term costs resulting from self-represented parties, such as court delays. [For a powerful description of the realities faced by both tenants living in, and landlords providing, housing for the poorest of our citizens, see Matthew Desmond’s 2016 Pulitzer Prize book, Evicted: Poverty and Profit in the American City (New York: Penguin Random House, 2016).] 

Question 

While indigent criminal defendants are assured the right to counsel under American law, the same is not true for civil disputes. Do you think San Francisco’s Civil Justice initiative should be followed throughout the United States? Explain. 

Sources: Matthew Goldstein and Jessica Silver-Greenberg, “Hedge Funds Pour Cash Into Lending for Lawsuits, The New York Times, June 26, 2018 [www.nytimes.com]; Jennifer Smith, “Lawsuit Investors Gain in U.S.,” The Wall Street Journal, January 13, 2014, p. B7; Mike Rosen, “Testing Civil Gideon,” California Lawyer, June 2012 [www.callawyer.com]; Binyamin Appelbaum, “Lawsuit Loans Add New Risk for the Injured,” The New York Times, January 16, 2011 [www.nytimes.com]; and Binyamin Appelbaum, “Investors Put Money on Lawsuits to Get Payouts,” The New York Times, November 14, 2010 [www.nytimes.com].