They'll hire private council and think that because they're paying for it, it's better. But it's often not. For a typical defendant with an aggravated assault charge, a public defender has handled dozens of similar cases before. Moreover, they'll have done it with your judge and your prosecutor. A private lawyer probably won't have that. Granted, this probably holds a lot less for the HN comments section.
I'll add that there is no right to defense council for civil cases. These can have consequences just as dire as a criminal case, as in immigration or eviction proceedings. An indigent defendant with no lawyer has a very poor chance. There's a movement to create this right [1]. The current Supreme Court, however, seems more likely to weaken Gideon v. Wainwright than expand it.
I'm not related to the company, but this is exactly what avvo.com is solving. I have known others to use it for traffic infractions all the way to criminal defence. In general they speak positively about the experience.
I don't know any particular lawyer's connections, but I can see the reviews/self-reported-track records.
But, this creates a new problem - gamification of reviews. But now that it's in the "reviews" space, I know how to at least manage that problem as opposed to something I know zero about such as judging a lawyer's relationships and effectiveness.
A public defender might not be _bad_, but in many jurisdictions they are egregiously overworked. Their case load is so over burdened they don’t have the time to do a thorough job. I’d much rather take my chances with a paid lawyer.
>You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
Although I suppose the court could hold you in contempt if it found you had the means and said you didn't. But I've never seen or heard of anyone being means checked.
All the search results (Findlaw, Avvo lawyer answers, etc) seem to be saying that you have to qualify financially, you have to submit your income and assets of your household under penalty of perjury (signed statement, not oath) and you may also be asked to get quotes from lawyers to compare against your means. I think the most you could say is that courts are so overloaded you might get away with perjury.
A few sample links:
https://www.expertlaw.com/forums/showthread.php?t=61781
https://www.newsherald.com/news/20180304/in-court-majority-s...
https://www.avvo.com/legal-answers/can-i-be-denied-a-public-...
So I think you're right, it is perjury that doesn't really get anything done about it - I think based on the idea that if you had the money to get an attorney you would do it so anyone saying they can't get an attorney doesn't have the money.
Background research done I created a list of lawyers I wanted to talk to and called them one by one and discussed the case over the phone. The crime I was accused of was somewhat rare and none of the five lawyers I called were familiar with it. I could tell fairly quickly that several of the lawyers were, for lack of a better term, bullshitting me about their familiarity with crime because I had first done the basic research so I had some understanding of what was reasonable to say about it. One lawyer was obviously reading passages from wikipedia verbatim to me, which I recognized having recently read the same wikipedia article myself. Another lawyer didn't seem to listen to me - after hearing my story he confidently assured me he could get the charge reduced... to what I was already charged with. Others just didn't seem that competent.
The lawyer I ultimately went with was a former prosecutor, which I liked because I figured it meant he would know the other prosecutors, and he was the only one who, when I called him, said "I don't know much about this. Let me do some reading and call you back." I immensely respected that more than the people who tried to pretend like they knew what they were talking about.
Ultimately, we had an extremely successful result and now if anyone I know ever needs a lawyer, I have one to recommend. It may be a bit harder if you don't have connections, but there is no reason why the average person retaining a lawyer can't go through the effort of finding one they are comfortable with.
You are vastly overestimating the ability of an "average" person to be able to understand and analyze legal complications for themselves. The average person, for example, does not have a college degree [1], let alone a degree in a technical subject that has trained them in analytic reasoning.
[1] Only 37% of people age 25-30 in the US have a bachelors: https://en.wikipedia.org/wiki/Educational_attainment_in_the_...
I'm sorry, but this is laughably out of touch with reality for the "average person".
- Felony defendants were represented by publicly-financed attorneys over 80%(!) of the time.
- Defendants with public and private attorneys had similar conviction rates. They pled out at similar rates, too.
- Defendants with public attorneys were more likely to get prison sentences, but got shorter sentences on average.
- Defendants with private attorneys who were already in prison (i.e., convicted) talked to their lawyers earlier and more often. The part about prison just seems to be because that's where they collected the data.
- Defendants with public attorneys got pretrial release a lot less often (50% vs 80%) than those with private attorneys. This looks to me like it's mostly about not being able to afford bail.
- Workloads for Federal appointed attorneys rose faster than spending on them. I would guess the same to be true of state courts and for the trend to have continued to today.
[1] http://civilrighttocounsel.org/, the civil right to counsel I forgot in my post.
[2] https://www.bjs.gov/content/pub/pdf/dccc.pdf 2000 appears to be the most recent report on this subject. It's possible they've collected more recent data elsewhere and I didn't turn it up.
Is that not the case for public defenders too?
https://www.nbcnews.com/news/us-news/ex-georgia-deputy-acqui...
Policing in the US is entirely out of control.
That shapes the culture. It's kind of anti-Spiderman. With great powers comes no responsibility at all.
It really isn't. Look towards Scandinavian countries for that.
https://www.hrw.org/news/2006/11/09/sweden-violated-torture-...
which has nothing to do with democracy.
It apparently holds in every western democracy except for the United States of America.
https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fee...
The loser must pay up to the amount they themselves spent on prosecuting the case, but no more.
So General Motors would have to pay the full cost of the plaintiff's litigation if they lost, while the plaintiff would have to pay their costs, plus an equivalent amount to GM.
This is of course independent of compensation and damages awarded.
And if that is a million dollars, in that case: Should someone be able to cause a million dollars' worth of damage with a frivolous lawsuit without being liable for it?
Patent trolls are one of the things that would work significantly less well in a loser-pays scenario.
Or to turn your example around: If the car hasn't killed me and I just want my money back, should I be forced to just eat the loss because even if I win, the legal costs will be higher?
Your first question ("Should someone be able to...") is a false dichotomy. The real question is whether we show a preference for being able to sue easily, versus adding more downside.
In America, consumer protection is done through lawsuits, especially since the current leadership is underfunding these groups. In general, companies have less approvals before launching a product under the assumption that negligence will cost them a ton of money in class action. That is why class action amounts can be so high - it's the dis-incentive for cutting corners.
Yes, patent trolls are an issue. I think there are better ways to reduce that impact (such as a sensible patent system) without harming consumers.
I'm not sure how that would matter. The patent troll sues 100 companies. Has to pay the legal fees for the 100 processes because all of them have been initiated by the patent troll. The patent troll wins 30 cases.
In the American system the patent troll already included the legal fees in his calculations and optimized them for profit but the victims are always stuck with legal fees even if they win. The patent troll basically causes a minimum amount of damage regardless of the outcome. The legal fees are often close to $0 for the patent troll because merely the act of receiving a letter from a lawyer scares startups into paying the settlement fees. Losing a month or two can be devastating for a young company but they can easily recover from losing $20k if it means that they can run their business with no distractions.
In the loser pays scenario the patent troll's legal fees would be completely unpredictable in the 70 cases. Losing 70 times might result in bankruptcy of the patent troll and the majority of victims would not be burdened by legal fees.
This sub thread is making the assumption that the innocent legal entities (= person or company) are on the losing end but if patent trolls had to be 100% sure that their patents are valid then there would be significantly fewer of them. For the few patent trolls that remain you can't argue that they shouldn't have the right to protect their patents. The patent system might be broken but if you can't enforce patents in valid situations then why even bother with the system?
American Rule protects the rich (and those in power, such as police, public prosecutor, etc), as it allows them to bully the poor who can't afford a lawyer, or lose so much money that their interests are harmed. A clear example of that is patent trolls.
The rich can afford in either system, but the poor can only afford in English Rule. It should not be about poor vs rich but about truth (ie. guilty vs innocent).
In the US system, a poor person can bring suit, using a lawyer working on contingency, and not fear for being stuck should they lose.
Your argument seems to hinge on the "correct" party always winning, but that's far from the case.
> Your argument seems to hinge on the "correct" party always winning, but that's far from the case.
Of course it does.
If the correct party does not usually win (with a few exceptions, being rounding errors) then your legal system, and democracy, is indeed very much broken.
If the police bust someone for murder, and this person gets sued, gets a fair trial, and gets incarcerated in jail for murder we, civilians/voters, must be able to assume that the system worked correctly. If this is not the case, if it is "normal" (too high percentage) innocent people get behind bars, that is a high priority problem. There's always going to be false positives, sure, but in general we must be able to assume one is a true positive.
Now, in English law the poor could sue, and win, if they're in the right. In American law, they can't afford a lawsuit. If they get sued for whatever, they'll be more likely to settle, without being on the good end of the stick. I can only define that as class justice.
There are limits to the claims, btw [1] [2]. Also, the amounts have to be reasonable.
Also, I believe @xyzal is correct in describing the difference between civil and common law. The problem you described is much less of a problem in civil law.
[1] https://en.wikipedia.org/wiki/Costs_in_English_law#Exception...
[2] https://en.wikipedia.org/wiki/Costs_in_English_law#Who_can_c...?
In the US, that only applies to indigent defendants in criminal cases. It does not apply to anybody with any semblance of financial stability and does not apply to anybody in civil cases.
Is it different abroad?
In continental law, judges role is more like an investigator; his/hers role is to establish the facts of the case and to apply the provisions of the code. They are the ones questioning witnesses.
See also: https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/
With the US system, there is no way to get justice in many cases, even when you're obviously right, because the (non-recoverable) legal costs exceed the amount by which you have been wronged (and the opponent knows that).
This focus on small people suing big corporations is absolutely insane.
I always think of that when someone is sneering at the American legal system or blaming Americans for everything they interact with globally.
Citation needed.
You'd think the people who came up with it had never played Scrabble, where you lose a turn for a false dictionary challenge.
In civil cases this is used as leverage by wealthy people. The wealthy can sustain a legal battle for as long as they want. They know that if their opponent isn't as wealthy, they'll be forced to settle, even for an unreasonable amount, just because they won't be able to afford defending themselves properly.
For reference, a decent civil attorney in a major city in California will charge $250-500/hour, which ends up being around $5k/month to defend pretty much any civil lawsuit. A lawsuit that goes to trial will take 18-24 months, so you'll end up paying $90-120k just in legal fees. There will also be $10-20k in additional court fees and other expenses, not to mention your time.
At the end of the day, if you defend a civil lawsuit and you flawlessly "win" the case, after about 2 years of manufactured stress, you'll be down $100-150k.
That's what it costs to prove you are innocent and walk away "free" (free to be sued again).
Btw, in civil cases, if you cannot afford a lawyer, the system won't appoint one for you, you will have to defend yourself (which judges and lawyers hate, and will very much play against you in court).
Also, even if you can represent yourself, the court fees won't necessarily be waived ($2-3k), and you'll have to fund your own discovery (which can be insanely expensive, depending on the case).
Then if you are defending as a corporation (llc, c corp, etc), you must have a lawyer. So basically if someone knows that your company cannot afford to hire a lawyer, they can sue you and force you to pay up or go bankrupt - then during bankruptcy they can keep going after you personally, and even after bankruptcy they can sue you again.
Hmm. Every civil case I've been involved with was decided not by relative wealth, but by the strength of the case. In every case, the less wealthy party won, and the wealthy party got stuck with legal fees. In many cases, the less wealthy person was represented by a lawyer who was paid mostly on contingency.
But if one of the parties cannot afford to litigate, they are screwed.
Considering that 40% of Americans can't even afford a $400 unexpected expense[0], it means most people are extremely vulnerable to legal liability, as they would barely be able to afford maybe 1 hour of consulting with a lawyer.
My guess is that you've mostly dealt with people and companies that had the money to go through the legal system. Most people don't.
Also, in my experience, it is very (extremely?) rare to find a lawyer that will work on a contingency basis, especially on short notice. So unless you know it's coming, and you've already spent the time to interview a bunch of lawyers (most of which are not even going to give you the time of day without having an open case) ahead of time, then you'll most likely be out of luck when you get served and have 30 days to respond (and if you don't respond they get a default judgement against you).
You just can't deny that the (American) legal system is, in practice, based on money and resources, rather than on justice and fairness.
0: https://abcnews.go.com/US/10-americans-struggle-cover-400-em...
I've been dealing with a vindictive plaintiff for a few years now.
No lawyer will take a case on a contingency basis, especially against a plaintiff with "deep pockets", if there's no money to be made (which is usually the case when you are on the defending side).
Let me illustrate, let's say a company gets a loan from a creditor, then the company fails to pay, the creditor sues, the company doesn't have the money to pay.
At this point lawyers see that there's no money to be made and will rarely touch the case. The defendant is out of luck and will most likely have to file for bankruptcy (which at the minimum will cost $10-15k in legal fees, so it might not even be an option).
As long as the creditor wants to keep spending money, they can keep going after the company, its founders and directors. Most lawyers will say that it doesn't make sense because the creditor is very unlikely to recover anything. But if the creditor still wants to spend the money, the defendants will be forced to keep paying to defend themselves for as long as the creditor attacks them, even if they didn't do anything wrong or ilegal and they prevail in the end.
So most lawyers will recommend to settle and pay the creditor, because you'll have to spend about $100k defending yourself anyway, hence you might as well pay that in a settlement and not go through trial. Lawyers will also note that 90%+ of cases settle. In the end the company officials/founders might unfairly pay a bunch of money to someone, just so they can get rid of them.
Then, even after the defendants pay, everyone might have lost a bunch of money and not found any justice whatsoever.
Now, regardless of the example above. It costs about $5k to file a lawsuit and about $50-150k to go through with it. How many people have the means to pay for that? I'd say very few.
However, from 40,000 feet, one might listen to your story and think, ok, you took money from someone and didn't give it back, and now you're being inconvenienced and harassed, and this is supposed to be a major societal problem? What about people that get sent to prison for stealing the same or less money? Or a candy bar?
To be sure, I can imagine being in the same place, and I can imagine dealing with a crazy/obsessive litigant and being very unhappy about it. But if it were me, I wouldn't expect people to sympathize or agree that it's a problem with society.
The problem with the legal system is that if you get sued, for pretty much anything, you'll need to spend several thousands of dollars, regardless if you are actually liable or not.
And if you want to sue someone, it will cost you several thousand too.
40% of people in the US cannot afford a $400 unexpected expense. That means that a huge portion of the population, is extremely susceptible to any legal issues, as they won't be able to properly use the legal system to fairly represent them and seek proper justice/relief. Ie. If those people get sued, they'll most likely not be able to afford defending the lawsuit - or if someone did something to them, they won't have the money to sue them.
A proper legal system should not discriminate by level of wealth and should represent everyone equally.
It's my understanding that is a bullshit statistic as I said in another comment. I can't afford an unexpected expense of $400 right now, in the sense that if I really have to pay that bill immediately, I'm going to put it on a credit card. That doesn't make me financially strained.
That's based on the idea that people who put a random $400 expense on a credit card that they pay off next month "can't afford" it.
The strength of the parties cases matters 10000x more than the amount of money they had. In fact, excessive spending was usually associated with worsened outcomes for the spending party.
But what happens when the defendant just simply doesn't have the money to defend themselves in court?
Have you represented a client in court for free for 2 years and paid for their court fees and discovery?
You've also probably dealt mostly with relatively rational people in good faith. But when you have someone who's very vindictive or irrational, acting in bad faith and with a lot of money, it can be terrifying to be on the receiving end, and you can feel absolutely hopeless if you don't have the knowledge or money to defend.
There are studies out there confirming my experience but as I don't currently have access to a law library you'll have to look them up on your own.
Over time, as more tools become available to find people with precise overlaps with a crime, the stronger the narrative is for innocent people (as well as the guilty). IMO a more inquisitorial approach which tests the counterfactual of each evidentiary point rather than relying solely on defense ought to hold up better in the future.
Police and prosecutors in the US are notorious for leaving out evidence that exonerates the accused, even though they are supposedly required to provide the defense with all evidence relevant to the case.
Also, well-connected victims’ cases are investigated much more carefully than normal victims.
For instance, some SFO luggage handlers were stealing stuff from bags. People repeatedly reported them to the police, but nothing happened until they stole from a retired cop. An investigation was launched and they were arrested the next week.
Similarly (based on personal experience with multiple incidents in multiple cities with multiple victims), they normally won’t bother to pull location database records for successful burglaries, even if they have exact timestamps of the incident (up to and including video), even in remote areas in the middle of the night involving literal truckloads of loot (where the location records would be a slam dunk, and the evidence would take a while to dispose of).
Tax agencies target people and companies that don't have the means to defend themselves, because then they can collect on them. Whereas they usually stay away from wealthy/legally savvy individuals/companies, because the cost/benefit of going after them is not worth it.
A few years ago there was a big push in California to go after food trucks. They were the perfect target, small businesses run by individuals or families with few resources or legal sophistication. At some point the media got involved, as well as some advocacy groups. The issue ended with the BOE (California's tax agency), changing the way food trucks had to calculate, report and collect their sales tax. However, many non-wealthy food truck owners ended up with very unfair personal tax liabilities in the thousands of dollars, which they might still be paying today.
I was involved in defending one of these food trucks and putting together their case. They were being assed $60k in taxes and being proposed a payment plan that would have meant them paying a total of around $100k over the course of 10 years. In the end the liability was reassessed to $0. At the beginning of the dispute, every accountant and tax lawyer consulted said the tax liability was unavoidable. Tax agencies are scary.
They will do that from time to time, if you are wealthy and well-connected enough. We had a case like that at my institution, an attempted rape. Don't rely on the government for protection, arm up.
It's worse than that.
Litigation is literally what puts bread on their tables.
They are rewarded financially for inconveniencing the layperson and making them jump through the hoops they have built.
it will not eliminate the inequality, for sure, but it would be a step in the right direction and in some area's the public defenders get less than a dime for ever dollar the Prosecutors office receives in public funding
No, they spend taxpayers funds!
In practice it doesn't always hold up very well.
Do you have an alternative suggestion? Would the government always pay for the entire defense? Or reimburse if the accused is acquitted?
This is also why gun violence restraining orders are bad. Large costs to the defendent with no standards or hearing or even an accusation of a crime.
"Reasonable fees". If You sue me, I win and my lawyer sends me a bill for a billion euros that I pass on to you, no judge will consider that valid.
As for damages and reimbursements: hardly. If you arrest a highly paid consultant and keep him in jail during his trial, he's not getting paid his hourly fee * 24 * days in jail.