Tag Archive for 'cases'

Should There Be a Right To a Free Attorney in Civil Cases?

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The American Bar Association has filed a brief in a New Hampshire court in favor of state funding of appointed counsel in certain civil cases.

As you may know, you have a constitutional right to have a lawyer appointed to defend you in most criminal cases, if you can’t afford to hire a lawyer. This makes perfect sense. After all, in a criminal case, a whole lot can be at stake. Usually, losing a criminal case means, at the very least, losing one’s freedom for a fairly long period of time. And, in the most extreme cases, the defendant’s life could be at stake. So, if we want to believe that we live in a free and fair society, we have to do absolutely everything we can to ensure that all criminal defendants get a fair trial. One essential element of that is a defense by a competent attorney, whether the defendant can afford it or not.

However, the law generally does not recognize a constitutional right to a free court-appointed lawyer in a civil lawsuit, whether you’re the plaintiff or the defendant. To some people, this doesn’t make sense, because in many civil cases, just as much can be at stake as in a criminal case.

In a landlord-tenant lawsuit, a loss may result in a family being evicted from their apartment, and thrown out onto the street. In a lawsuit over eligibility for disability benefits, the applicant’s ability to obtain basic healthcare may be at stake. And, if parents are accused of abusing or neglecting their children, the state may initiate a civil action to have the children removed from their home (this issue is completely separate from the parents’ criminal liability for the alleged abuse). Generally, the law says that you have no right to a court-appointed attorney in these cases, even if you can’t afford one, and everything is at stake.

Many individuals and organizations, however, are seeking to change that.  The American Bar Association has advocated for state and federal authorities to provide attorneys in adversarial legal actions where “basic human needs” are at stake.

This is sometimes called a “Civil Gideon” rule, which refers to the Supreme Court case of Gideon v. Wainwright, which first recognized the constitutional right to court-appointed counsel for defendants in criminal cases.

California has led the way in this push. Back in 2009, the state legislature passed a law which closely mirrors the policy advocated by the ABA. It authorizes funding for court-appointed attorneys to indigent parties in civil cases that involve basic human needs, such as eviction and foreclosure cases, child custody cases, and cases involving eligibility for healthcare benefits such as Medicare or Medicaid. Anyone whose income is 200% above the poverty line or lower is eligible for court-appointed attorneys in these cases. For a family of four, this is an annual income of a little over $44,000.

Personally, I think that this is a sound policy, at least in theory. With the budgets of many states (notably California) being strained to the breaking point, adding yet another funding mandate is a tough pill to swallow for many Californians.

Also, some (mostly) conservative commentators have noted that such a rule will make it more difficult and expensive for landlords to carry out legitimate and justified evictions, which could end up raising rents on everybody, including the low-income renters that this law is intended to protect.

That’s probably the most compelling argument against this law. However, I think the pros of a rule like this most definitely outweigh the cons. It’s pretty hard to argue that a parent who is facing the prospect of losing custody of their children shouldn’t have a court-appointed lawyer in such cases. And if a severely disabled individual is denied SSDI benefits, it’s hard to argue with a straight face that they shouldn’t be able to pursue every legal avenue available to them to appeal this decision, as effectively as possible.

Obviously, such a system can never be perfect, and many practical issues come up, particularly having to do with its implementation. For example, should there be a dedicated state organization staffed by full-time lawyers, tasked with handling cases like these (like the office of the public defender)? Or should all California lawyers be required to participate in it? There are advantages and disadvantage to both approaches.

Another possible sticking point is the question of where to draw the line on what constitutes a basic human need. It’s likely that the courts will become involved in clarifying this language. After all, it would be prohibitively expensive to provide indigent parties with a lawyer in every civil case. And that was never the intent of this law.

In any case, I think the ABA has made the right decision in calling on state and federal governments to provide court-appointed lawyers in some civil cases. Given the fact that just as much can be at stake as in criminal cases, it’s really hard to argue that the same interests of justice do not apply to some civil matters.

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Criminal Court Trials Now Exceed The Number Of Civil Trials, Hell Freezes Over

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It’s definite now.  I think we finally have definitive proof that when 2012 comes rolling in, the world will end.

Seriously though, I thought I would never see the day where the amount of criminal cases going to trial would actually exceed the number of civil cases getting their day in court.  But apparently, according to the Wall Street Journal, that is what’s exactly happening in courts all over America today.  Who knew one of the Four Horsemen would come in the form of judicial equilibrium?

The report cites a number of reasons for the uptick in criminal court trials.  Some of them include an increase in prosecution of drug and immigration offenses, along with a general growth of new criminal laws carrying new penalties on both the state and federal level.  But interestingly enough, the article also cites the large number of judgeship vacancies on the federal bench as one of the reasons why less civil cases are getting their day in court.

This is definitely a surprise to me considering that, in my opinion anyway, being a judge is one of the cushiest jobs in the world.  The salary can easily be in the six figures, the hours of work are basically whenever the judge feels like coming in, and let’s not forget about the respect and prestige that comes with being a federal judge.  But it seems like all these factors isn’t enough to keep the bench stocked with judges since about 67 of the 677 district court judge positions remain empty.  Meanwhile, the amount of federal criminal cases has gone up over 70 percent since the last decade.  All of this ends up causing civil cases to be put on the backburner until the criminal docket across the country are resolved first.

The strange thing about the coverage of this new development is the negative spin it’s getting from the media.  The overriding consensus from all the reporting I’ve seen on the matter so far has been that it’s hurting both big business and the little men and women of the world from getting the justice they deserve.

Now while I agree that all citizens should have the right to have their issues resolve by the courts, for years criminal defendants have been getting the shaft when it came to being able to exercise their right to a jury trial.  I mean, there are entire Wikipedia pages dedicated to the problem.

Plea bargaining is the worst offender of them all.  In the short term, criminal defendants get a seemingly good deal.  Generally, in exchange for pleading guilty a defendant will be given no jail time, time-served, a reduced fine, and/or in some cases no prosecution at all (usually that last one comes in the form of a The Wire-esque quid pro quo).

But the problem with this system is that unless you’re rich or have some other equally rare blessing in life, copping a guilty plea and getting a conviction on your record is something that follows you for the rest of your life.  A conviction on your record is kind of like have an annoying sidekick always following you around and screwing up your job interview or licking his shoes clean while you’re at your boss’s wedding.  It’s not something that you want to have, and though you may be able to tolerate its wacky antics and schedule your life around it’s zaniness, it’s not something that you should have to do.

So I say, good for you criminal justice system.  You finally achieved a little more parity in how you decide to send our country’s citizens to the slammer.

But what do you guys out there think about all of this?  Do you think it’s fair that civil cases are being delayed in order to hear criminal trials first?

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Judge Diagnosed with a Brain Disorder: Should His Rulings Be Reconsidered?

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If a judge is diagnosed with a potentially-debilitating brain disorder, should his recent decisions be subject to review and reconsideration, based solely on that fact?

The case concerns a judge (also reported here) in Atlanta who has been sentenced to 30 days in jail due to crimes he committed during an extramarital relationship with a stripper. He was arrested in a drug sting. Obviously, his legal and judicial career is over, and he’s probably done a lot of damage to his family life, as well. However, he seemed to be a competent judge, until about a year before his arrest, when his behavior became extremely erratic and reckless.

Recently, however, the disgraced former judge has stated, through his attorney, that he suffers from bi-polar disorder (which went undiagnosed until very recently), and that his mental state was altered by a head injury he sustained in a bicycle accident in 2000.

Throughout his career, this judge forged a reputation for showing very little leniency to criminal defendants, often sentencing them to the maximum punishments allowed by law. So, this has led some to suggest that his rulings and sentences in recent years should be reconsidered, and maybe even reversed, in some cases.

And this isn’t just the case of a criminal defense attorney making a desperate ploy to get a client’s conviction or sentence overturned. The U.S. attorney who prosecuted many of the relevant cases has already said that her office would consider all requests from defendants to re-evaluate their cases, to ensure that no miscarriage of justice occurred.

It will be very interesting to see how this all plays out. There’s certainly precedent for issues concerning a judge’s mental faculties calling into question some of his or her decisions. For example, the problem of an aging bench, and the mental impairments that often come with age, have created serious concerns about the validity of some older judges’ rulings, when there is evidence of mental impairment.

But the very nature of a judge’s job makes re-evaluating past decisions pretty difficult, especially when trying to determine if mental impairment caused the judge to make a legal error. Obviously, in cases of severe impairment, a judge might render a written opinion that devolves into incomprehensible gibberish. At that point, you can be pretty sure that his decision, at least in that particular case, can’t be trusted because of his compromised judgment. In most cases involving acquired mental impairment, the onset is usually gradual, and its effects, while serious, aren’t always readily apparent. And in almost all legal cases, there’s significant room for reasonable disagreement.

For that reason, there’s an appeals process, where a judge’s every ruling in a case can be challenged and reviewed for legal errors. If an appellate court has already determined that a judge’s ruling was valid, even if it can be proven that he would have rendered a different decision if he did not suffer from a mental illness, is there any cause to review that decision when the mental illness comes to light?

Intuitively, most people would probably say “no.” The judge’s ruling was appealed and reviewed by the appellate courts, with no finding of legal error. Why should it matter that the judge issued this ruling because he thought a pink elephant was whispering the correct ruling in his ear?

On the other hand, if a judge did not reach a decision through careful, reasoned consideration of the law and the relevant facts, I think a very strong case can be made that the decision is invalid, even if it’s “correct.”  In a judicial system that expects its officers to act in a rational, deliberative, and impartial manner when rendering their decisions, the manner in which a judge reaches a decision is almost as important as the decision itself.

The reasoning by which a judge reaches a decision has an impact on how the judge’s decision can be used as precedent, potentially affecting the outcome of future cases.

Of course, there are always countervailing interests that make the application of this general principle kind of tricky. As I’ve mentioned before, an essential element of a fair and efficient legal system is finality. All parties benefit when they know that, at some point, a court’s decision is what it is, and that’s final. In criminal cases, this typically occurs when a jury acquits the defendant, or convicts them, with the judge handing down a sentence. Sometimes, the defendant appeals, and the decision is usually final when all appeals are exhausted. This process is sometimes long and drawn out, but there is usually a definite endpoint. One could argue that constantly going back and reviewing decisions when new information comes to light years later undermines this important objective.

I believe, however, that justice ultimately wins out in favor of convenience or efficiency, especially in criminal cases, when a person’s freedom, and maybe their life, is on the line.

It’s entirely possible that the vast majority of this judge’s past decisions will turn out to be perfectly valid. However, if there’s evidence that his judgment was compromised by a mental disorder or drug use, they need to be revisited. If this means that several criminal defendants will be given new trials, so be it.

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Debt Collectors Increasingly Being Accused of Flawed Procedures

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By now, you’ve probably heard about the foreclosure crisis; namely, about all the questionable paperwork and procedures banks have been using to initiate foreclosures. To be honest, the foreclosure crisis wasn’t something I necessarily could have predicted, but I wasn’t all that surprised to hear about either. Whenever you have transactions that involve lots of details, and that happen at lightening speed, it’s bound to get messy.

Is it any further surprise then, to hear about the same thing happening with debt collection practices? A recent article in the New York Times reports about the questionable practices that debt collection agencies have been using. These practices involve many of the same flaws of the foreclosure crisis: flawed paperwork, flawed procedures, and basically the debt being transferred between parties too quickly without attention to details. Except, this problem looks to be more prominent than the foreclosure crisis: while not everyone may have a mortgage, almost everyone has debt and loans of some sort.

Basically, debt collection involves debt from a variety of sources. It can come from credit cards, car loans, utility bills, and so forth. Often times, finance companies and banks whom the debt is owed to will sell the debt to secondary companies for very cheap. These debt buyers will then hire collectors to collect on the debt by writing letters, making phone calls, or even suing.

The problem with all this, as you can see, is that the debt is constantly changing hands. However, the transactions are happening too quickly and not being handled with the proper amount of care that is necessary in order to ensure compliance with the law. For example, it’s not certain how many debt-collection affidavits are signed each year. But one employee of a debt buyer in New Jersey testified that in 2007, she signed 2,000 affidavits a day (that’s about one affidavit every 13 seconds). At that kind of rate, it’s impossible to verify the accuracy of anything you’re signing.

In turn, this practice results in debt collectors often going after people will no lawful basis. Debt collectors may go after the wrong person, have the incorrect address listed, or even go after people who have already won judgments against the bank. Sometimes, the secondary companies simply don’t get the required data from the primary creditor when the account is sold, since the data often makes the account more expensive.

What’s interesting though, is to note how sparingly people respond to debt collection cases against them. This results in default judgments being entered against them, and creditors have remedies of garnishing their wages or taking away money from other sources.

However, consumer lawyers argue that if people actually took legal action against debt collectors, they would be successful a large majority of the time. So what exactly can a consumer lawyer do for you in these cases?

1. First, realize that a debt collection agency is just a business (and a very aggressive one at that). They are not the IRS, not the police, or anything like that. Additionally, there are a host of laws in place that protect consumers from unfair and overly aggressive debt collection practices, such as the Fair Debt Collection Practices Act. A lawyer can help you if you believe your rights have been violated under these laws.

2. In some cases, just having a lawyer representing you is enough to have the debt collection agency drop their case. If you think about it, debt collection agencies have thousands of cases to collect upon. Since the majority of people don’t hire lawyers, a debt collection agency likely does not want to go after the case where there is a lawyer involved.

3. Even if you do concede that some debt is owed on your part, a lawyer can act as the liaison between you and the debt collector. In this role, a lawyer can negotiate with the debt collection agency to help reduce your debt, eliminate your debt, lower the payments, lower the interest rates, and so forth. A lawyer can also be the sole communicator with the debt collector on your behalf, which reduces the need for you to communicate with the collector.

There are many reasons why a debt collection agency may be contacting you, some of them valid and some of them not. But remember that collection agencies are just business operations subject to strict laws, and it definitely pays to look into their case against you. And, even if you do end up owing some debt, there are many things you can do, such as filing for the right type of bankruptcy or coming up with an alternative repayment plan.

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Why the Middle Approach to the Flawed Home Foreclosure Crisis is Best

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The news about banks temporarily stopping home foreclosures has been gaining momentum. Just last week, Bank of America, JPMorgan Chase, and GMAC (a unit of Ally Financial Inc.) all announced that they were halting foreclosure proceedings.

But what would prompt our country’s largest lenders to do such a thing? Basically, banks are now responding to a phenomenon that many homeowners, lawyers and analysts have long known about: that there is a widespread problem of lenders using improper procedures and paperwork to handle home foreclosures.

For example, many employees responsible for initiating foreclosure proceedings have publicly admitted that they did not review the documents before signing off on them. This included not verifying critical information such as the home price or the amount of the loan still owed. These employees, or “robo-signers,” admit they would sign off on as many as 10,000 foreclosures a month, leaving them with little time to actually review the accuracy of what they were signing.

In other cases, lawyers and other transactional agents were sloppy about documenting the transfer and sale of the mortgages. As a result, many banks have claimed ownership on the same mortgage, and in short, no one knows who actually owns the mortgage.

In still other cases, it is highly questionable whether documents were properly notarized. For example, the document may indicate that it was notarized on a date earlier than the date when it was actually prepared. Other documents seem to have suspicious signatures. This issue has come up when multiple documents require signatures from the same person, yet the signatures from document to document vary radically.

But not everyone is on board with slowing down foreclosures as banks try to sort through this mess. The thinking is that slowing down foreclosures will have an adverse effect on the economy. This theory has been verified by recent studies as well. In California, foreclosures are not under court supervision and are allowed to proceed more freely. There, home prices are recovering more quickly than in Florida, where foreclosures are court-supervised and take longer to process.

Additionally, the thinking is that slowing down foreclosures only delays the inevitable. Most of the homes will eventually be foreclosed on anyway, and the argument is that most of these problems cases just involve mere, technical errors.

So is it better to turn a blind eye to these injustices, in order to speed up the recovery of the housing market? On one hand, I understand where these naysayers are coming from. The mortgage system was poorly designed to begin with, and the best thing would be to just restore the housing market as quickly as possible.

However, allowing foreclosures to proceed as they are right now may hurt more than just the individual homeowners. By turning a blind eye to these injustices, there will be legal ramifications that will no doubt impact society as a whole.

For one thing, our legal system, banks, and regulatory agencies will all lose their credibility. While in many cases banks may try to brush off flawed paperwork as a mere technicality, the same mistake committed by homeowners or lawyers elsewhere would not past muster in courts. If a lawyer were to commit these same mistakes in court, the lawyer would be liable for malpractice and/or other sanctions. Additionally, improper procedures are a clear violation of the Due Process Clause, which basically guarantees that rights will not be taken away without the proper procedures.

By allowing banks to forgo the proper procedures, it further perpetuates the idea that “big corporations” win while the little guys lose. More importantly, it also creates uncertainty for the homeowners going forward. If flawed paperwork in home ownership becomes a way of life, then how can homeowners really be sure they own their homes? What’s to convince them to keep making their mortgage payments if they can’t be sure that they will own these homes afterwards?

Right now banks are taking the first step in halting foreclosure procedures in order to remedy mistakes. Courts, legal officials, and other political agents are following suit. I don’t envy the decisions they need to make with regards to how quickly to speed up or slow down the process. Like all matters involving a large segment of society, there is no right or wrong answer. In my opinion the best thing to do would be to find a compromise somewhere down the middle.

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