Monitored

inside:
James Preston Allen: When
court administrators close the
local courthouse, they remove
part of the communitys heart.
The longtime Los Angeles
journalist takes a look close
to home. PAGE 3
Time for a civil Gideon?:
A lawyer makes the case that
the guarantee of a government-
provided attorney, already set
for criminal cases, should be
extended to certain civil issues
especially when human
needs like housing are
concerned. PAGE 3
Toward a clients
bill of rights: Its not
exactly thou shalt not steal,
but a California attorney helps
draft ten commandments for
anyone hoping to get a fair
shake from their contingency
lawsuit. Actually, hes accepting
a challenge from Courts Moni-
tor Publisher Sara Corcoran
Warner. PAGE 4
Confessions of a jury-duty
scofaw: Consolidating court-
houses, and the resulting travel
times, have impacted the states jury
pool. With travel hardships the latest
easy out for potential jurors, some
who are called are less than zealous
about being chosen. You can count
best-selling author Dan Dunn among
that group. PAGE 6
The new normal?: The chief
justice wanted a billion dollars to
bring Golden State courts up to
standards. She did not get it. Instead,
there is a three-year plan to make
things better but nobody is talking
about opening those closed courts or
returning to pre-cut staff levels. We take
a look at the new normal. PAGE 10
The best court movies:
A legendary West L.A. movie critic,
Nicky Hernandez, comes out of
retirement to list his favorite court-
focused movies. Yeah, you probably
got number one right, but good
luck with the down-list selections.
PAGE 12
Editors note: This Ted Rall illustrated column was
originally published in The Los Angeles Times and
is reproduced here under special agreement with the
artist. For more on the ongoing crisis, see PAGE 6. For
more political commentary from Ted Rall, visit rall.com.
Equal justice under the law. Thats the promise
American courts make to plaintiffs and defendants
alike. But year after year of budget austerity has
forced Californias court system to slash its services
so deeply that it has made a mockery of that sacred
pledge.
Maura Dolan reports that recession-driven cut-
backs in Californias huge court system have produced
long lines and short tempers at courthouses through-
out the state. Civil cases are facing growing delays in
getting to trial, and court closures have forced resi-
dents in some counties to drive several hours for an
appearance.
Backups in the courts are affecting Californians
love lives: Clerks in Contra Costa County said they
have received complaints from people who divorced
and wanted to remarry but couldnt because clerks
had not yet processed the paperwork for judges sig-
natures.
Every cloud has a silver lining. Because so many
courthouses have closed, some Californians are auto-
matically getting exempted from jury duty: In San
Bernardino County, the Superior Court has stopped
summoning jurors from Needles, making the guaran-
tee of a jury of ones peers elusive. Because of court
closures in the High Desert, a trip to court from Nee-
dles can take some residents 3-1/2 hours.
But its still a damned dark cloud.
We are really on the borderline of a constitutional
crisis, Marsha Slough, San Bernardino Countys pre-
siding judge says. We have victims who want to give
up because they dont want to testify in criminal trials
because of the driving distances and costs.
Whether youre ghting a trafc ticket, fending off
a neighbor over a property dispute or waiting for a
divorce, everyone winds up in court sooner rather than
later. And contrary to what conservatives keep saying,
starving government institutions of cash doesnt make
... borderline of a constitutional crisis
Your daily ration of civil justice rationing
CALIFORNIA COURTS MONITOR


www.CaliforniaCourtsMonitor.com @cacourtsmonitor
ASBESTOS REPORTING PROJECT: The nations longest-running personal injury tort system is undergoing constant change, and that is
reected in California and courts across the country. The California Courts Monitor is joining with its sister website, the National Courts Monitor,
and other partners including Washington, D.C.-based Paul Johnson Films to create the Asbestos Reporting Project. The in-depth series begins over
the summer and for more information, visit our website or follow us on Twitter. SERIES BEGINS PAGE 9.
Special Print Edition Los Angeles, California August/September 2014
11
BY TED RALL
SPECIAL TO THE COURTS MONITOR
see CRISIS page 6
Follow us on Twitter @cacourtsmonitor CALIFORNIA COURTS MONITOR, A Special Report UPDATE Page 3
Tino, the Cambodian-Texan bar owner of
Crimsin, stood across the street as the state main-
tenance workers unbolted the letters which once
read, San Pedro Superior Court. It was just two
Latino guys with a ladder and some tools. By the
time we noticed what was occurring, the letters
were half gone, leaving only erior court an omi-
nous and foreboding reference to the demise of
100 years of local justice in this southern part of
Los Angeles County.
Can we at least
have a few letters
from the sign as
memorabilia? we
asked.
No, was the
answer. They belong
to the State of Cali-
fornia. The work-
men looked over
their shoulders at us
like we were either
drunk or crazy, con-
tinuing their work.
Well of course they
do but who would
miss a few letters?
We the people of Sixth Street might like to have
some proof of what once was here. The workers
continued pulling the letters off the building until
they were all gone.
It was back in 1909 that the Los Angeles Con-
solidation Committee promised the residents of
the Harbor area a police court as part of the deal
to annex to the city of Los Angeles and there has
been a court here in some form or another until
June of 2013.
Here, however, are the sad facts the San Pedro
Courthouse along with the Avalon Court on Cata-
lina Island generated enough revenue in terms of
nes and fees to more than cover their own costs
of operating both courts ($715 million in scal
year 2011-12). The bulk of that money (54%)
goes to the state general revenue fund, then the
county (37%), and lastly the city (6%). The Supe-
rior Courts retains only single-digit amounts (1%)
of the funds it generates. And, this formula is true
throughout the state, which is why the courts
are completely underfunded. They retain little of
what they generate in revenues and then expect
to get it back from the legislature. Its kind of like
the taxes we pay for schools that go to the state
and then get redistributed back to the districts.
The statewide impact on the courts looks like
this:
Court closures have deprived more than 2
million Californians of access to justice in their
local communities.
51 court houses and a total of 205 court rooms
have been closed.
30 courts have had to reduce hours at public
service counters.
15 courts have had to institute limited court
service days (where the majority of court rooms
and clerks ofces are closed).
Nearly 4,000 court staff have lost their jobs.
Many courts are leaving vacant positions unlled,
and some courts continue to furlough employees.
And, on top of this civil cases no longer have court
reporters to record their proceedings.
This elimination of access to justice falls more
heavily on the poor and minority communities
than on those who can afford to wait for justice or
who dont have to depend on public transit to get
to court 30 miles from home at 8:30 in the morn-
ing.
Recently, in the Legal Newsline, Richard
Burdge, the president of the Los Angeles County
Bar Association and owner of The Burdge Law
Firm in Los Angeles, said, Theyre cutting into
the bone, not just the fat of the court system.
The Legal Newsline article goes on to state,
According to the Judicial Council of California, in
the past ve years, the court systems budget was
cut by more than $1 billion. In the same period, the
court system lost about 65 percent of the funds it
receives from the states general fund. More than
114 court rooms and 22 court houses were closed,
and 30 courts have reduced their hours.
To put this in perspective, the Superior Court of
Los Angeles County maintains the states largest
court system and it continues to experience some
of the deepest funding cuts. And recently, the
Superior Court announced its plan to eliminate
511 more positions! As a result, 177 people lost
their jobs and 139 people were demoted to pre-
viously held positions. An additional 223 people
were reassigned to new locations.
This, of course, can be explained by the States
post-2008 budget crisis or the fact that the end
result of Proposition 220, an initiative approved
Cutting into the bone of the court system
BY JAMES PRESTON ALLEN
SPECIAL TO THE COURTS MONITOR
you have the right to an attorney. If you
cannot afford an attorney, one will be appointed
for you
Most Americans are more than familiar with
these words, part of
the Miranda rights
we have heard time
and time again on TV
and in the movies; if
you cannot afford
your own criminal
defense attorney, the
state will provide
you one, a public
defender.
However, criminal
courts are not the
only places where
people, including
poor people, will
interact with the
legal system against
their will, and fre-
quently not even the most life-altering. Decisions
made in civil courts involving housing, suste-
nance, medical benets, or child custody issues
can have as great or, frequently, greater long-term
consequences in peoples lives than many crimi-
nal verdicts.
When someone is facing eviction, or the possi-
bility of losing need-based government assistance,
the odds of them being able to afford their own
attorney are slim; individuals in these proceed-
ings frequently go in on their own, unaware of the
substance of the law or the courts procedures.
Over the last decade, there has been a growing
movement to create a right to counsel in certain
civil cases, an idea usually called civil Gideon.
The name comes from Gideon v. Wainwright, the
1963 case that established that the Sixth Amend-
ments right to counsel meant that, in criminal
felony cases in both state and federal courts, not
only must the court allow the defendant to have a
lawyer, but indigent defendants must be provided
representation.
Prior to that, the positive right to counsel had
been limited to federal cases, or in state capital
trials. Following Gideon, the right to counsel was
extended to misdemeanor cases that might result
in jail time, to civil juvenile proceedings, and to
prisoners in civil proceedings to transfer them
from a prison to a mental institution. Unfortu-
nately, the expansion of the right to counsel was
halted in 1981, when the Lassiter decision found
there was no right to counsel in proceedings for
termination of parental rights and created a pre-
sumption that there is only a right to counsel
when an indigent litigant risks being deprived of
his or her physical liberty.
The idea of a guarantee of right to counsel
in certain civil proceedings, through litigation
and legislation, has traction in several state bar
associations, the ABA, among legal scholars and
judges who see the consequences of unrepre-
sented litigants, and some state legislators.
So, why do we need civil Gideon?
In one of the cases leading up to Gideon, the
Court noted that ... the right to be heard would
be, in many cases, of little avail if it did not com-
prehend the right to be heard by counsel. Even
the intelligent and educated layman has small
and sometimes no skill in the science of law.
He is unfamiliar with the rules of evidence. He
lacks both the skill and the knowledge adequately
to prepare his defense, even though he has a per-
fect one. He requires the guiding hand of counsel
at every step in the proceedings against him.
Of course, the Court was speaking of crimi-
nal proceedings, but the same holds true in civil
courts. Those who cant afford an attorney are at
a massive disadvantage, and experience much
worse outcomes.
Take the area of housing. A pilot project in Mas-
sachusetts housing courts found that approxi-
mately 1/3 of unrepresented tenants were able
to stay in their homes following an eviction pro-
ceeding, whereas 2/3 of tenants with representa-
tion were able to remain. Every time a family is
evicted, it has to contend with the loss of personal
property, destabilization that affects employment
and education, and the prospect of homelessness.
And while the impact of eviction on a family, and
its consequences, are massive, there are also sig-
nicant effects on state and local governments,
and society as a whole.
In Massachusetts, the Boston Bar Association
reported that the state spent $161 million each
year on homeless shelters and related services.
If 50% of homelessness starts with eviction, then
cutting evictions by just 10% could save the state
$8 million. Similarly, New York City social ser-
vices department calculated that for every $1
spent on representing tenants in eviction proceed-
ings, the city saved $4 in shelter and other social
services costs. Additionally, the employment
prospects of evicted adults suffer, and eviction
disrupts the education of children, both of which
have long-term economic consequences for society
as a whole, in addition to the individual.
BY MICHAEL PAGE
SPECIAL TO THE COURTS MONITOR
see ALLEN page 7
Attorney makes the case for a civil Gideon policy
see GIDEON page 8
OPINION
This elimination of access to justice
falls more heavily on the poor and
minority communities than on those
who can afford to wait for justice or
who dont have to depend on public
transit to get to court 30 miles from
home at 8:30 in the morning.
Page 8 CALIFORNIA COURTS MONITOR, A Special Report UPDATE Follow us on Twitter @cacourtsmonitor
GIDEON from page 3
A growing number of offcials recognize the scope of the problem
The pattern plays out in other types of civil legal
proceedings that touch upon basic human needs.
Victims of domestic violence are often unable to
take the necessary legal steps to protect them-
selves and, frequently, their children, from their
abusers. Parents without proper representation
may lose custody of their children. All of these
possibilities are easily as signicant to someones
life as a possible short jail term.
There are, of course, legal aid organizations
whose mission it is to help people who need rep-
resentation in these areas. But by no measure
can they provide the necessary representation for
more than a small fraction of those who need it.
Funding for legal services has been on the decline
for years, particularly in the recent recession and
the subsequent budgetary contractions. There
simply arent enough lawyers at legal services
organizations to provide representation for the
people who need it.
Twenty years ago, an ABA study showed that
70% of poor people with serious legal needs were
unable to nd help. More recently, in 2003, the
District of Columbia Bar Foundation estimated
that only 10% of the need for legal assistance
was being met. Similar studies in Washington
and Massachusetts showed that roughly 12% and
13%, respectively, of the households needing legal
assistance were able to obtain it. Legal services
agencies are forced to turn away roughly 80% of
those people who come to them for assistance.
There is no way around the fact that more needs
to be done.
So how would civil Gideon work? Would local,
state, and federal governments simply provide
lawyers for everyone who came forward and
claimed to have suffered a legal wrong? No. Vari-
ous proposals have differing details, but similar
basic structures. The idea behind civil Gideon is
to establish a right to counsel in situations where
someone below certain income thresholds is in an
adversarial proceeding, in cases where the most
basic of human needs are at stake.
A recent San Francisco ordinance establishing
a civil Gideon pilot program would limit repre-
sentation to people making 200% of the poverty
level or less, and only for cases dealing with issues
such as housing, safety, or child custody. A peti-
tion to the Wisconsin Supreme Court, which was
denied, sought to require circuit court judges to
appoint representation for indigent litigants
in cases regarding the litigants rights to basic
human needs, including sustenance, shelter, cloth-
ing, heat, medical care, safety and child custody
and placement; the American Bar Associations
Resolution 112A specically mentions shelter,
sustenance, safety, health or child custody.
Of course, there are arguments against civil
Gideon, for reasons either ideological or prag-
matic.
Some of the more ideological objections have
been articulated by Ted Frank, formerly of the
American Enterprise Institute, a consistent advo-
cate of limiting the average citizens access to
courts through tort reform. He suggests that by
providing free counsel, the courts will be ooded
with meritless cases. He also argues that when
poor litigants decide to spend their meager
resources on an attorney, it signals to judges that
they have a serious case, with merit; this, of
course, does nothing for those with meritorious
cases that dont have the resources to do so.
And, nally, he advocates that we switch from
the American rule, where each party pays its
own attorneys fees, to the English rule, where
the losing party has to pay the winners attorneys
fees in addition to whatever damages they are
held liable for. The claim is that private attorneys
would happily take meritorious cases no matter
what the income level of the plaintiff or defen-
dant.
This idea is tort reform boilerplate, and not even
really applicable to the kind of cases with which
the civil Gideon movement is concerned; Franks
references to defendants who are currently forced
to settle extortionate meritless cases because they
cannot afford the overwhelming costs of defense
and an unreasonable plaintiff who attempted to
sue his dry cleaner for millions of dollars in dam-
ages for a lost pair of pants bear no relation at
all to the non-tort proceedings envisioned by civil
Gideon proponents. The apparent actual purpose
of this suggestion is to make it too risky for a
plaintiff with a legitimate, but not ironclad, case
to seek justice for harm done to them, through the
very real possibility that they may be ruined by
having to pay the fees for attorneys representing
someone who could out delay, out lawyer, and ulti-
mately out spend them. The disingenuousness of
this claim is clear when the same author ridicules
cases that are frivolous in the colloquial sense,
albeit not in the technical legal sense and result
in awards, including attorneys fees, that he seems
to feel are extravagant.
On the other hand, there are objections to civil
Gideon that are more pragmatic. Bluntly put,
Gideon itself has not been implemented as well it
should, largely due to budgetary restraints.
Public defenders ofces are underfunded, even
compared to the prosecutors they face off against
in court. The lack of resources means there are
fewer lawyers to cover more cases, spending less
and less time on each.
The Brennan Center reported that in New
Orleans, the public defenders were able to spend
on average 7 minutes on each case; in Minnesota,
it was 12 minutes, not including time in court.
Court-appointed attorneys frequently do not have
the time or resources to properly perform factual
investigations, interview witnesses, or consult
experts; in extreme cases, court-appointed attor-
neys have slept through parts of capital trials.
In less extreme situations, this assembly line
approach to criminal defense has led to an over-
use of plea bargaining, which serves the interest
of prosecutors and overworked defense attorneys,
but not the defendants.
All this considered, its entirely reasonable to
worry that expanding representation to civil pro-
ceedings, without an adequate increase in fund-
ing, will lead to further overburdening of civil
servants.
Another civil Gideon critic, Benjamin Barton,
has suggested that, rather than more money for
more lawyers to represent more indigent litigants,
we would be better served by reforming the treat-
ment of pro se litigants. As he points out, pro se
litigants frequently dont know the basic process:
what forms to ll out, or what or how to argue for
themselves before a judge. Further, court clerks
are instructed to not give legal advice, and judges
dont view the situation as one they have any
responsibility to mitigate.
All of this is true, and no advocate of increased
representation would argue the point. The more
modest reforms he suggests include setting up
special courts for pro se litigants, allowing clerks
to give limited advice, and treating pro se liti-
gants respectfully. Although allowing clerks to
explain peoples legal rights, or court procedure,
would be helpful, there is a danger that litigants
would try to draw them into advocacy roles. And
while there is no question that court staff should
treat all litigants with respect, judges already fre-
quently allow greater leeway to people acting pro
se, which contributes to the role pro se litigants
play in clogging up the courts.
Other pro se reforms would go quite a bit far-
ther changing the role of judges in these pro-
ceedings from that of a neutral arbiter to an
active participant, and changing court rules,
procedures, and forms for pro se litigants. These
changes would greatly alter the nature of the civil
legal system, and actually codify that there would
literally be a different laws for the poor.
Barton even goes so far as to suggest that courts
should base pro se proceedings on eBays online
dispute resolution; how that could possibly work
in a legal setting isnt explained.
Some of these are interesting suggestions, but
despite the fact that everyone obviously has the
right to act as his or her own attorney, it simply
isnt a good idea to increase reliance on people
acting as their own attorneys.
Beyond clogging up the courts with confused
arguments and missing paperwork, pro se litigants
are also able to bring meritless suits for nonexistent
causes of action that no lawyer would bring for fear
of sanction. Representation eases a complicated
process, reduces truly meritless claims, and enables
people to reach settlements where otherwise they
might not be able to recover anything at all after
taking up time and resources that the courts need
for other cases. For example, the Minnesota Legal
Services Coalition has estimated that by helping
cases settle pre-trial and reducing meritless claims,
it has saved the court $5.1 million annually.
Unfortunately, we cant pretend that increasing
efciency in the courts will fully offset the costs
of providing representation in all the cases that
involve these basic human needs. But even in
purely economic terms, there are other benets
reduced necessity for social services spending,
long term educational benets of being able to
stay in ones home instead of being evicted and the
increased prosperity they bring, someone receiv-
ing medical care that allows them to work rather
than go on disability. From a societal standpoint,
increased real access to the courts will reinforce
peoples faith in the system.
And, ultimately, it is a moral question; in the
words of one California Court of Appeals Justice,
poor people have access to the American courts
in the same sense that the Christians had access
to the lions when they were dragged into a Roman
arena. Are we willing to accept that as a society?
Luckily, a growing number of legal scholars,
judges, bar associations and legislators have
recognized the scope of the problem. While the
Supreme Court is unlikely to overturn Lassiter
any time soon, and recognize a constitutional
right to civil counsel in all the necessary situa-
tions, the Court is not the only option. Litigation
in state courts may lead to those rights being
recognized under those states constitutions,
and there is nothing to prevent legislatures
with the necessary will from creating those rights
by law. Many states provide the right to counsel
in some civil proceedings, and limited pilot pro-
grams have started in Massachusetts, Illinois and
California.
The task now is to continue this work and
expand those rights so that nobody will have to go
into court without adequate representation when
their basic human needs are at stake.
(Michael Page is a Washington, D.C.-based
attorney and legal rights activist. This is his
rst contribution to the Courts Monitor, and the
conversation continues online. You can respond
to his argument for Civil Gideon at www.nation-
alcourtsmonitor.com.)
The Brennan Center reported that in New
Orleans, the public defenders were able
to spend on average 7 minutes on each
case; in Minnesota, it was 12 minutes, not
including time in court. Court-appointed
attorneys frequently do not have the time
or resources to properly perform factual
investigations, interview witnesses, or
consult experts; in extreme cases, court
appointed attorneys have slept through
parts of capital trials.