Towards a Context-Based Civil Gideon Through Access to Justice Initiatives

Abstract

This article connects the threads of Civil Gideon, Access to Justice and the treatment of unrepresented litigants in civil proceedings. Rather than focus on doctrinal justifications for a Civil Gideon, this article focuses on particular contexts, allies and power dynamics in framing a three-pronged approach to achieving a context-based civil right to counsel. First, the key players in the legal system, including judges, court-connected mediators and clerks, should be required to provide assistance as necessary to insure that unrepresented litigants do not forfeit important rights due to the absence of counsel. Second, the expanded roles should be supplemented by assistance programs short of representation by a lawyer in court. This step must be accompanied by rigorous evaluation of those programs, to identify which are successful in the stemming the forfeiture of rights in particular contexts and which simply relieve pressure on the courts without altering the outcomes. Third, a civil right to counsel should attach where the expanded roles of the key players and assistance programs cannot stem the forfeiture of important rights of unrepresented litigants. Because the need for counsel might vary from state to state and court to court, the right to counsel will be context-based. The strategy, nonetheless, involves common features.

Keywords: Civil Gideon, Civil Right to Counsel, Unrepresented Litigants, Access to Justice, Pro Se Litigants, Self-Represented Litigants, Evaluation of Outcomes

JEL Classification: K00, K4