of formal, Cadillac justice down the pyramid to more and more misdemeanors, beyond courts’ ability or legislatures’ willingness to implement it well. And legislatures kept expanding the breadth and depth of criminal laws so as to claim political credit and give prosecutors more tools. As a result, the system grew ever more complex and more reliant on plea bargaining to clear growing dockets. Argersinger even envisioned routine constitutional challenges to vagrancy prosecutions, as if even the tiniest and most routine cases were snowflakes to be marveled at in all their hidden complexity. As Strickland shows, Gideon means far less in practice than it should in theory. The emperor has a few clothes, but his suit is shabby indeed.
Access to Justice in Civil Courts
Every other week during the semester, the University of Tennessee’s Homeless Legal Advocacy Project troops out to the Knoxville Area Rescue Ministry, a local homeless shelter. Under the supervision of Professor Ben Barton or another licensed attorney, students try to answer the legal questions of Knoxville’s homeless. If the cases are simple enough, the students take them on. The results fall into telltale patterns: patterns not only of typical problems and solutions, but also of basic legal issues that are too complicated to handle without a lawyer but too expensive to handle with one.
Take, for example, divorces. The University of Tennessee Law School’s clinics are regularly asked for advice or help in divorcing a spouse. Two groups of homeless people can get divorces relatively easily. If the potential client and spouse are local, have no children and little property, and substantially agree about the divorce, the process is straightforward. The students can go to the Tennessee Supreme Court’s website and print out forms “for divorces where both spouses agree on all parts of the divorce, there are no minor or dependent children involved, and the spouses do not have a lot of property.”1 The forms come in English and Spanish. The Tennessee Access to Justice Commission developed the forms and, by order of the Tennessee Supreme Court, every court in the state must accept them if properly filled out.
These forms are meant for the poor, but a simple, agreed-upon middle-class divorce could use them as well. Similar forms are available for a fee through LegalZoom and other online forms providers. Middle-class couples with simple divorces can also hire a lawyer (who likely just fills in the forms described above) for as little as $500. In short, for the homeless or the middle class, there is not much of an access-to-justice problem for extremely simple divorces.
If the homeless client has suffered abuse in the marriage, it is also fairly easy to seek a divorce. This is because, like many legal aid offices, Legal Aid of East Tennessee gives priority to divorces where one spouse claims abuse. They have to apply some such filter, because the demand for free legal services greatly outstrips the supply of free lawyers. So, unless the client claims abuse, he or she goes on an endless waiting list. This filter is sensible, as Legal Aid’s funding is tight and it must decide who needs help right away. Nevertheless, the filter does severely limit the types of divorces Legal Aid handles. Anecdotally, it has another effect: prompting over-claims of abuse. Well-meaning legal aid screeners may tell a potential client, “I’m sorry, we can’t take your divorce because we focus on divorces where abuse occurred.” The desperate client’s natural response is to remember, or even make up, some kind of abuse. So even if the divorce is complicated and disputed, if a person can meet the legal aid income guidelines (125% of the federal poverty line) and claim spousal abuse, he or she can get a free, government-paid lawyer to pursue a divorce.
If the client’s income is more than 125% of the poverty line, he or she is altogether out of luck for a free lawyer. That income ceiling is a very stringent requirement. In 2013, it was $14,363 for a one-person household. This means that a full-time worker earning the minimum wage ($15,080 annually at $7.25 per hour) is ineligible for legal aid.
Unfortunately, only a fraction of our clients fall into one of these two categories, and of course most middle-class divorces do not. First, note the irony of requiring divorcees to agree on everything before they can get divorced. Most people seek divorces because they have trouble getting along with their spouses.
Second, a wide range of potential problems can make a divorce contested or complicated. Our clinic has had multiple potential clients where the spouse is in another state or was even deported back to another country. Often, there are children, disputed assets, allegations of abuse, or all of the above. Sometimes the other spouse simply does not want to get divorced at all, or at least not on the client’s proposed terms. Homeless people have sometimes lost all track of their former spouses.
Middle-class divorces are even more likely to involve disagreements. Consider two recurring scenarios: disputes over custody and asset distribution. Many divorces include children, and choosing which parent should make educational or medical decisions or how to share physical custody can be extremely challenging. Most courts award custody based on what would be in the “best interests of the child,” considering all of the relevant circumstances. Thus, the fights can get particularly nasty, dredging up every deficiency and every bad parenting moment of either spouse. The fights are long, costly, and bitter. They are also very hard to navigate without a lawyer. To handle a full-scale custody dispute properly, a litigant must take discovery of the other side, which requires interviewing witnesses, requesting documents, and submitting lists of questions. He or she must file motions, which often request information or seek to toss the case out or narrow the issues and questioning. And he or she must understand and navigate the rules of evidence, which have complicated requirements for laying a foundation and authenticating documents and the like. A pro se litigant cannot do this well. In 2005, small-firm lawyers and solo practitioners charged, on average, $182 an hour. Even at $100 an hour, the costs add up pretty quickly.
These custody problems recur over time. Consider a divorced parent who decides to move for work or family out of town or out of state. The court will reconsider the issue under the best-interests-of-the-child standard. The bitter ex-spouses can once again air each other’s faults and alleged bad parenting. The legal fees will cost thousands more. There is also the potential for what poker players call “short-stacking.” In tournament poker, there are special strategies for when one player has a lot more chips than another (the “short stack”). Essentially, the richer player can bully the short stack into folding repeatedly by betting a lot. Drawn-out custody battles sometimes recur because one spouse can afford to keep hiring a lawyer and the other cannot. In these circumstances, the costs of the process, not the merits, largely determine who wins and who loses.
Likewise, divorcing spouses often disagree about how to define or divide marital property. Generally, marital property is property Access to Justice in Civil Courts acquired during the marriage, except for property inherited or given as a gift to one spouse. But there is always room for dispute: Special rules govern commingling of funds. Spouses earn and jointly spend money during a marriage, confusing matters. And one spouse may even accuse the other of hiding or mischaracterizing assets as non-marital. Finding assets or disputing which assets to include in the division of property is time intensive and very expensive. It starts with the cumbersome discovery process, in which each side demands documents, questions witnesses in depositions, and seeks information from the other side. The process continues with more investigation, and ends with litigation over what property to include and how to divide it. These disputes are governed by a mix of common-law standards, court precedents, and statutes. A pro se litigant would thus find it hard even to figure out what law applies, let alone how to litigate the issues properly.
Lumping It
Given the costs and complexity, the potential client may well just have to “lump it”—find
