...when defending.

28th Amendment.


We do it for criminal trials, and the state is restricted to all sorts of due process before they can charge you.

An organization with an in-house legal team can just up and sue you whenever they want, and litigate the little guy until he breaks. Look at the crap the RIAA is perpetually perpetrating.

2/13/2010 4:50:23 PM

I think a loser pays legal system might do a bit more for solving this problem. I mean, yeah, having your own state paid for legal defense might be nice, I don't think it would really solve the RIAA suing Grandma into oblivion problem. I mean, public defenders suck as it is, I can't imagine that public civil defenders would be much better.

2/13/2010 7:39:21 PM

Who is the likely loser in your RIAA v. Grandma scenario under a loser pays system?

2/13/2010 7:48:44 PM

Quote :

"public defenders suck as it is"

This is something that really needs to be changed.

2/13/2010 7:52:50 PM

No feasible way to change the quality of Public Defenders, unless you incentivized the HELL out of it.

The workload is often comparable to people making 6 figures+ out of law school, and yet they're making what, 40k at most?

It just doesn't pay to be a public defender. Thus, it becomes the wading ground of people who barely got out of law school... or future politicians looking to make connections (who don't need the money a big firm pays).


There is no way of changing the system unless you ditched the adversarial dynamic that we're founded on... and that's beyond consideration.

2/13/2010 8:19:54 PM

Every lawyer must win 3 public defense cases a year to renew their license to practice law on an annual basis! We'd get a few less lawyers over all, and a lot more expertise on how to win public defense cases. Win-win. Problem solved. Next!

2/13/2010 8:30:07 PM

Meh. It's ok that public defenders suck. They're at least -a- defense. You want plenty of incentive for people to not choose the public option.

but I think it should exist for civil trials.

2/13/2010 9:00:30 PM

Quote :

"I think a loser pays legal system might do a bit more for solving this problem."

Major corporations will sue, knowing that they are going to lose, but also knowing they have the deep pockets to survive. Monsanto pulls that shit all the time with seeds it has IP protections on. It will be the burden of the farmer to prove that the wind-blown seeds on his property weren't deliberately planted there.

2/13/2010 9:08:32 PM

And then the farmer needs to decide between $texas dow to maybe win ten years from now, or $5000 now and be done with it.


28th Amendment: enhance the 6/7th!

2/13/2010 9:11:58 PM

Quote :

"Every lawyer must win 3 public defense cases a year to renew their license to practice law on an annual basis! We'd get a few less lawyers over all, and a lot more expertise on how to win public defense cases. Win-win. Problem solved. Next!"

two problems...

1 - most lawyers are transactional and never intend to see a court room.

2- most defendants (at least in criminal court) are guilty as fuck.

and

Quote :

"but I think it should exist for civil trials."

unless you want to increase taxes a lot, this can't happen. The courts have enough problem paying criminal defense.



[Edited on February 13, 2010 at 9:20 PM. Reason : fff]

2/13/2010 9:17:26 PM

I'm sure cost will be an issue, but as you've said, it's already an issue to uphold the 6th amendment. No one would contest the 6th Amendment, though.

It'll be worth the price tag to ensure that justice is served.

Does anyone know why the right to an attorney in a civil trial wasn't guaranteed in the 7th Amendment from the get go?

2/13/2010 9:30:58 PM

Because a defendant in civil litigation is never incarcerated and never executed.

2/13/2010 9:38:59 PM

But they are stripped of their property, yes?

Was that really it, or is that your opinion?

2/13/2010 9:45:02 PM

I didn't realize that wouldn't show, click edit post on my previous post to see the whole thing.

2/14/2010 12:46:59 AM

^^actually I'm pretty sure that is more or less the argument.

2/14/2010 8:18:43 AM

court-appointed public pretenders are usually the worst of the worst in the legal profession, so why would you want one to fuck up your civil trial as well?

2/14/2010 4:12:55 PM

^ I suppose it's better than nothing if you can't afford shit.

2/14/2010 4:30:23 PM

Quote :

"Who is the likely loser in your RIAA v. Grandma scenario under a loser pays system?"

Honestly, Grandma will always lose unless she gets lucky enough to have a slam dunk case that she's not involved (see the case where the lady who didn't even own a computer was sued) and she gets a good defender working for free. Public defenders wouldn't help grandma against the RIAA anymore than they would help grandma against the DEA.

Quote :

"Major corporations will sue, knowing that they are going to lose, but also knowing they have the deep pockets to survive. Monsanto pulls that shit all the time with seeds it has IP protections on. It will be the burden of the farmer to prove that the wind-blown seeds on his property weren't deliberately planted there."

This already happens anyway. At least under a loser pays system, the farmer stands a chance in hell because if he knows he's right, he can hire the best damn lawyer in town and that lawyer will work, knowing Monsanto will be paying for it.

Quote :

"Every lawyer must win 3 public defense cases a year to renew their license to practice law on an annual basis! We'd get a few less lawyers over all, and a lot more expertise on how to win public defense cases. Win-win. Problem solved. Next!"

I think you'd be better off assigning them to work a set term, like 1 year public defense every 3 or 5 years.

Quote :

"Does anyone know why the right to an attorney in a civil trial wasn't guaranteed in the 7th Amendment from the get go?"

I don't know for certain, but I would imagine that at the time, no one envisioned Monsanto sized entities suing individual farmers. I've often thought perhaps a solution would be to require that suits against individuals be done without lawyers, similar to small claims rules but I think that might actually cause more problems than it solves.

Quote :

"^ I suppose it's better than nothing if you can't afford shit. "

Not really, I'll have to see if I can dig up the report but there was a study done some time back that suggested that the overburdening of the public defenders has actually led to more defenders pleading guilty to crimes that they otherwise could have escaped charges on, or fought to a lesser charge simply based on encouragement from public defenders to make a plea bargain.

For what it's worth, I'm not saying that right to an attorney shouldn't extend to civil suits, it might should, I'm just saying I don't know that it is the best solution to the problem at hand.

[Edited on February 14, 2010 at 6:58 PM. Reason : sdfg]

2/14/2010 6:57:18 PM

It's also worth noting that at least according to that bastion of all that is good and true, wikipedia, that your right to an attorney did not mean a right to a government paid for attorney until relatively recently:

http://en.wikipedia.org/wiki/Public_defender#Legal_background_and_history

2/14/2010 11:01:22 PM

The lack of a 7th Amendment guarantee to council didn't make sense before Giddeon, either.

The 6th Amendment was there to prevent a judge from denying someone council, but does that then mean a judge can deny someone council in a civil trial?

Judge: "Actually, RIAA, you're not allowed to use your lawyers. Hah-hah."

2/15/2010 10:26:38 AM

In small claims court, people are denied council.

2/15/2010 10:29:15 AM

Huh? Under what circumstances?

I sued my land lord in college for way less than $5000, and used an NCSU lawyer.

[Edited on February 15, 2010 at 10:33 AM. Reason : ]

2/15/2010 10:33:29 AM

I was under the impression that in small claims court it is the Judge that questions witnesses, as such all a lawyer can do is get up and say your story for you, which would be hearsay.

2/15/2010 12:01:10 PM

Maybe you're thinking of arbitration?

The judge did question the witnesses in my trial, but so did my lawyer. The whole affair seemed so informal that I wonder if we were following all the rules to the letter, though.

2/15/2010 12:03:13 PM

Why did you need a lawyer to sue your landlord? Are you sure it was small claims? Other courts exist and operate under different rules.

That said, the judge is in charge, and if you went through the trouble of bringing a lawyer to small claims I guess the judge was going to let you use it. As such, yes, I guess you can bring a lawyer to small claims, but it is not obvious whether the judge will let them say anything.

2/15/2010 12:17:24 PM

Loser pays would be the best way to handle getting decent defenders for those who cant afford them. If a case is winnable, a good lawyer will want to step in and get paid. If a case isn't winnable, then even if a really good public defender is bought and paid for by the state, it doesn't help.

Something like monsanto pushing a case out 10 years is another issue entirely. The defendent should have a right to a speedy trial. Still, having a lawyer stick around because he knows hes going to get paid at the end is probably more likely than having a public defender stick around because they're being paid by the state.

2/15/2010 12:23:56 PM