WI: Assistance of counsel granted for civil cases

The Sixth Amendment to the United States Constitution grants all criminal defendants the right to the "Assistance of Counsel" for their defense. The Seventh Amendment, the corresponding amendment, does not.

But what if it did? Would frivolous lawsuits be more or less common? Would the Supreme Court require public defenders for civil defendants sued over a certain amount? Would people be afraid of being sued?
 
The Sixth Amendment to the United States Constitution grants all criminal defendants the right to the "Assistance of Counsel" for their defense. The Seventh Amendment, the corresponding amendment, does not.

But what if it did? Would frivolous lawsuits be more or less common? Would the Supreme Court require public defenders for civil defendants sued over a certain amount? Would people be afraid of being sued?

There is no defendent in a civil case.
 
Defendant just means person that is sued. So the accused person in a criminal case is a defendant, and so is the person in a civil case who the plaintiff wants money from.

But there is no defendent, There is a dispute between two parties one of which asks a court for redress on. This is different from a criminal case where the State in all its force with its unlimited resources is prosecuting a person. In one instance the redress is usually financial in the other the consequence is death or terms of imprisonment,

This is a fundamental difference. Depending on the jurisdiction the civil suite can obtain counsel on a contingency basis - i.e. part of the financial redress goes to counsel. If Joe is Suing Bob over a contract dispute why should everybody else pay for Joes case when in the end if he wins Joe makes money? and if Joe does not make money where is his redress.
 
But there is no defendent, There is a dispute between two parties one of which asks a court for redress on. This is different from a criminal case where the State in all its force with its unlimited resources is prosecuting a person. In one instance the redress is usually financial in the other the consequence is death or terms of imprisonment,

This is a fundamental difference. Depending on the jurisdiction the civil suite can obtain counsel on a contingency basis - i.e. part of the financial redress goes to counsel. If Joe is Suing Bob over a contract dispute why should everybody else pay for Joes case when in the end if he wins Joe makes money? and if Joe does not make money where is his redress.
Bob is the defendant. He doesn't get any money if he wins.
 
Bob is the defendant. He doesn't get any money if he wins.
Trivial example based on an actual case. A maintenance contract has a clause allowing the annual fee to increase by 10% a year and be compounded. Joe realises (belatedly) this is a bad deal for him and sues Bob, trying to get the clause struck out as being unfair and points to other language in the contract about proportional contributions and so on. Bob argues that the wording is crystal clear.

If Bob wins he gets to enforce a very lucrative clause that will earn him a fortune. If Joe wins he escapes from a bad deal and saves a fortune.
 
It's not prosecution vs. defendant in a civil case. It's plaintiff vs. respondent.

This strikes me as a profoundly strange thing to have in a constitution.
 
Trivial example based on an actual case. A maintenance contract has a clause allowing the annual fee to increase by 10% a year and be compounded. Joe realises (belatedly) this is a bad deal for him and sues Bob, trying to get the clause struck out as being unfair and points to other language in the contract about proportional contributions and so on. Bob argues that the wording is crystal clear.

If Bob wins he gets to enforce a very lucrative clause that will earn him a fortune. If Joe wins he escapes from a bad deal and saves a fortune.
Who won?
 
It's not prosecution vs. defendant in a civil case. It's plaintiff vs. respondent.

This strikes me as a profoundly strange thing to have in a constitution.
It does not strike me as being so very strange. While a lot of litigation has little wider scope to it, an important part does have a wider scope to it, and in a common law system such as that used by the United States has a significant law-creating function in addition to any merely financial or equitable aspects of the case (consider the effects of Roe v. Wade, for example). In of itself this wouldn't justify the provision of free counsel, of course, but not infrequently the plaintiffs in significant cases are poor or lack resources (legal or otherwise) to pursue worthwhile cases, for example having to do with alleged discrimination or pollution or similar actions. A case could certainly be made that some type of "public litigant's office" to support cases of those types could be worthwhile in advancing the public interest. Of course currently there are various private bodies that have similar objectives, but a governmentally-funded operation would have potentially larger resources and perhaps less of a particular agenda about which laws are worth litigating.
 
One has to remember that the right of assistance of counsel in criminal cases did *not* originally mean the right to have counsel appointed for you if you were too poor to afford one. It was directed agaianst the practice of *forbidding* defendants in criminal cases from being represented by counsel: "Prior to the eighteenth century, English law prohibited counsel from appearing in any felony criminal cases (unless the court, in its discretion, permitted counsel to appear), and until the middle of the eighteenth century, judges regularly denied felony defendants the opportunity to be represented by counsel. In other words, felony defendants had to represent themselves. The first exception to this prohibition on counsel in felony cases came when Parliament passed the Treason Act of 1696..." https://ilr.law.uiowa.edu/print/vol...a-sixth-amendment-right-to-competent-counsel/
 
In that case, "Bob". The clauses were absolutely crystal clear - there was no deception or hidden language, it wasn't hidden in 50,000 word appendix and there was nothing in the rest of the contract that changed the simple meaning of the words. Basically "Joe" had signed up to a deal that looked reasonable at the time, when inflation was high, but became a bad deal when inflation dropped down. The court decided that it was not their job to protect one side from the consequences of making a bad deal (as long as it was clear to them at the time what the deal meant and a few other legal qualifiers), so refused to strike out the clause of the contract.
 
Bob is the defendant. He doesn't get any money if he wins.

Bob is the one it is alleged caused the injury, by your logic Bob or BobInc as he is now known can pollute the waters and have the public pay for his defense, including all those members of the public who are choking to death as a result of his alleged negligence.

It does not strike me as being so very strange. While a lot of litigation has little wider scope to it, an important part does have a wider scope to it, and in a common law system such as that used by the United States has a significant law-creating function in addition to any merely financial or equitable aspects of the case (consider the effects of Roe v. Wade, for example). In of itself this wouldn't justify the provision of free counsel, of course, but not infrequently the plaintiffs in significant cases are poor or lack resources (legal or otherwise) to pursue worthwhile cases, for example having to do with alleged discrimination or pollution or similar actions. A case could certainly be made that some type of "public litigant's office" to support cases of those types could be worthwhile in advancing the public interest. Of course currently there are various private bodies that have similar objectives, but a governmentally-funded operation would have potentially larger resources and perhaps less of a particular agenda about which laws are worth litigating.

That would be an Amicus Brief filed by the DoJ or State or City law officers or the Crown in Civilised countries.

Ultimately your argument comes down to I am aggrieved therefore can the Taxpayer pay for my redress. Why the fuck should I. You could have joined a Union, they will provide lawyers in some instances or made a complaint to a regulator HSE or the Civil Rights Division of the DoJ or Trading Standards or any number of other bodies that exist to seek redress for the public at large or their members or had a lawyer take on the case as contingency if there is a chance of winning.

The Ultimate end of your argument is BobInc sues JoeCorp on a civil matter and JoeCorp Countersues with both parties having their costs and appeals ( both sides can appeal in a civil case) funded by the taxpayer.
 
Ultimately your argument comes down to I am aggrieved therefore can the Taxpayer pay for my redress. Why the fuck should I. You could have joined a Union, they will provide lawyers in some instances or made a complaint to a regulator HSE or the Civil Rights Division of the DoJ or Trading Standards or any number of other bodies that exist to seek redress for the public at large or their members or had a lawyer take on the case as contingency if there is a chance of winning.
You literally explain why the taxpayer should pay for my redress in the next few sentences after that statement. "regulator HSE or Civil Rights Division or Trading Standards"--well, those are all taxpayer-funded bodies that are intended to carry out certain types of litigation because the public interest demands it. But they are not necessarily the correct litigants in a case and they are a patchwork that does not necessarily cover all cases that are of public interest. Besides, unions are not a realistic alternative because they barely exist anymore and so most people don't have the option to join a union (not to mention that there is plenty of potential litigation around getting companies to actually permit unions, if only there was anyone to carry it out) and private lawyers and groups, as I specifically explained, will have "particular agendas" about whether litigation is worthwhile or not that may not be aligned with the public interest.

Finally, it is worth pointing out that a long time ago crime, also, was considered a private matter that the state generally wouldn't be much involved in except for cases like treason or embezzlement that were against the state itself. But attitudes changed and it became accepted that the state should take the lead role in prosecuting crimes because the effects of effectively capturing and punishing criminals were so beneficial to society as a whole. It is far from unreasonable to think that perhaps civil actions are similar, in that it might actually be better for society as a whole for people to be supported in actions to claim redress from others so that access to civil redress is available to everyone whenever it is needed, and not just if you are rich or can convince an attorney to take you on contingency.
 
It does not strike me as being so very strange. While a lot of litigation has little wider scope to it, an important part does have a wider scope to it, and in a common law system such as that used by the United States has a significant law-creating function in addition to any merely financial or equitable aspects of the case (consider the effects of Roe v. Wade, for example). In of itself this wouldn't justify the provision of free counsel, of course, but not infrequently the plaintiffs in significant cases are poor or lack resources (legal or otherwise) to pursue worthwhile cases, for example having to do with alleged discrimination or pollution or similar actions. A case could certainly be made that some type of "public litigant's office" to support cases of those types could be worthwhile in advancing the public interest. Of course currently there are various private bodies that have similar objectives, but a governmentally-funded operation would have potentially larger resources and perhaps less of a particular agenda about which laws are worth litigating.
Rather than putting that into the constitution (and if you can't see how a right-wing Supreme Court would transform such a provision into corporate welfare, you're being a tad naive), the obvious solution would be setting up such an office via ordinary legislation.

Or you could simply do what other jurisdictions do, and generally have the court force the losing side to pay the winner's court costs. That limits cases to ones people think they can actually win.
 
Rather than putting that into the constitution (and if you can't see how a right-wing Supreme Court would transform such a provision into corporate welfare, you're being a tad naive), the obvious solution would be setting up such an office via ordinary legislation.
Of course I see how it could be turned against itself, but ordinary legislation is hardly better; then you're making its existence contingent on the legislature continuing to support it, and Congress or the state legislature could easily change it into a form of corporate welfare anyway. It's a damned if you do, damned if you don't situation.

Or you could simply do what other jurisdictions do, and generally have the court force the losing side to pay the winner's court costs. That limits cases to ones people think they can actually win.
I'm not sure what your reference to "other jurisdictions" is supposed to mean, because that is common in the United States as well. The problems with this approach is that it does not operate to promote litigation in the public interest, and in fact in certain ways suppresses litigation that might be in the public interest. First, obviously no one is paying anything until the case is resolved, so litigants with limited resources (that is, many of them in cases of special public interest) cannot even initiate litigation unless they find a lawyer willing to take them on contingency or a group which is litigating cases for some political reason of their own. And, again, this will not happen every time someone has a good case the litigation of which might be in the public interest, but will be shaped by the presence (or absence) of the lawyers or legal groups in question and their own agendas in supporting litigation.

Second, just because someone has a solid case and a good basis for expecting a victory doesn't mean that they will win. Again, for a litigant with limited resources a loss is devastating because legal fees are expensive, especially if your opponent is a large firm or government with very large resources and numerous lawyers and other legal staff working for them. So litigants in this position will be strongly deterred from litigating unless someone else is covering the costs or they have such an incredibly strong case that victory is not only likely, but virtually certain. Otherwise, they're running a significant risk of being permanently bankrupted and destroying their life if they sue, again even if they have a good, solid case that has a reasonable chance of victory but not a certainty.

The only advantages to this arrangement are that it does operate to suppress frivolous litigation and in the case that litigation is pursued and victory is obtained by the less-resourced side it does help compensate them for their trouble. But both of these could be achieved through other means that might be less harmful to the pursuit of suits against the rich and powerful by the weak and powerless.
 
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You literally explain why the taxpayer should pay for my redress in the next few sentences after that statement. "regulator HSE or Civil Rights Division or Trading Standards"--well, those are all taxpayer-funded bodies that are intended to carry out certain types of litigation because the public interest demands it. But they are not necessarily the correct litigants in a case and they are a patchwork that does not necessarily cover all cases that are of public interest. Besides, unions are not a realistic alternative because they barely exist anymore and so most people don't have the option to join a union (not to mention that there is plenty of potential litigation around getting companies to actually permit unions, if only there was anyone to carry it out) and private lawyers and groups, as I specifically explained, will have "particular agendas" about whether litigation is worthwhile or not that may not be aligned with the public interest.

Finally, it is worth pointing out that a long time ago crime, also, was considered a private matter that the state generally wouldn't be much involved in except for cases like treason or embezzlement that were against the state itself. But attitudes changed and it became accepted that the state should take the lead role in prosecuting crimes because the effects of effectively capturing and punishing criminals were so beneficial to society as a whole. It is far from unreasonable to think that perhaps civil actions are similar, in that it might actually be better for society as a whole for people to be supported in actions to claim redress from others so that access to civil redress is available to everyone whenever it is needed, and not just if you are rich or can convince an attorney to take you on contingency.


No. In the instances I have given there is a statute law stating the standards to be adhered to. The non governmental body concerned seeks adherence to the standard, not redress which is what a civil suite would be about, If granted there probably would not be a civil suite cos they would settle


But Civil law is all about getting redress for a wrong between two private individuals such as Divorce, Child Custody, Probate and the big contract related cases tend to be between corporations countersuing each other.

What you are really advocating for is a Department for the Promotion of Virtue and Prevention of Vice whereby a state agency hunts down the morally deficient and seeks vengeance outside the bounds of criminal Law. Whats makes you think you re among the virtuous?
 
No. In the instances I have given there is a statute law stating the standards to be adhered to. The non governmental body concerned seeks adherence to the standard, not redress which is what a civil suite would be about, If granted there probably would not be a civil suite cos they would settle
Have you simply...not noticed how frequently there are lawsuits over precisely those non-criminal laws? Practically any major Supreme Court decision for the last few decades has been the result of a lawsuit, not a criminal conviction of any kind. A lawsuit can certainly ask for redress--that's what the whole area of "equity" is about, non-monetary redress for some wrong. And you can't settle litigation unless there is litigation.

EDIT: For example, one of the major methods of enforcing the Voting Rights Act in the United States has been the Justice Department--that is, the federal government--suing states and counties over violations and either winning court judgements or pushing them to settle. Of course, this is just one area of the law, but it shows that there's nothing particularly bizarre or strange about the government suing to enforce civil law just as much as it prosecutes to enforce criminal law.

What you are really advocating for is a Department for the Promotion of Virtue and Prevention of Vice whereby a state agency hunts down the morally deficient and seeks vengeance outside the bounds of criminal Law. Whats makes you think you re among the virtuous?
No, I am suggesting that the government should have a unit designed to enforce the law even if it is not criminal law and does not directly involve the government. A great amount of law these days is not criminal law, for example anti-discrimination laws or anti-pollution laws. Although in some cases discriminatory conduct or polluting the environment can rise to a criminal level, in most cases violations of those statutes are a matter for administrative or civil law, not criminal convictions. Lawsuits against violators are therefore an essential enforcement mechanism for those areas of the law, whether or not victims can afford to carry out such lawsuits.

And I have no particular expectation of being among the virtuous, but if I break the a law which is intended to be enforced by lawsuits, then I should be sued over it, whether or not the victims have the resources to afford a suit. I shouldn't have any expectation of being able to get away with breaking the law because the victim(s) can't afford to enforce it.
 
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dcharleos

Donor
It's not prosecution vs. defendant in a civil case. It's plaintiff vs. respondent.

This strikes me as a profoundly strange thing to have in a constitution.

Not usually in the US.

A "petitioner" and "respondent" are usually used for family or juvenille court cases, or alternatively, appellate cases.

Plaintiff and defendant are standard in most civil cases.
 
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