7) A New Bill Of Rights: The right to equality before the law, with equal access to justice in fact
by George Braden - 1942
IT HAS LONG BEEN SAID THAT THE MOST important words of a legal document are in fine print. That can be paraphrased to apply to die seventh of the National Resources Planning Board's new freedoms. I suppose that we can agree that our legal system guarantees the right to equality before the law, and for a long time has done so pretty well. What has been and still is lacking is "equal access to justice in fact." As laissez fane used to be characterized as a system in which both the rich man and the dweller on a park bench had an equal opportunity to rise in the world, so our system of justice can be said to protect both the rich, with their able lawyers, and the poor, if the latter can find means to get inside a courtroom. It is this inequality which must be eliminated; it is equality of this kind which must be emphasized as a new freedom.
Before offering means of translating this ideal of a new freedom into practice I must, as lawyers always do, make a qualification. I do not deny that any legal system represents means of preserving and ordering the society of which it forms a part. And in large measure, die legal system is a drag on such changes in society as people seek to make. Insofar as this results in inequality, it is not so much from lack of equality before the law as lack of equality in the law. Evils of this sort demonstrate legal changes that must be made in order to achieve other new freedoms. Yet this tendency of the legal system to resist changes in the law affects the degree of equality before the law. A roster of the trials of "radicals"-Sacco and Van-zetti, Mooney and Billingsor of Negroesthe Scotts-boro boysshows how popular prejudices about the nature of a good American society can destroy the great tradition of impartial justice. Though American courts as a rule strive to be fair, exceptions can be found; and to the extent to which they exist, even "equality before the law" is an ideal not yet attained.
Equal access to justice in fact, the really important need, can be attained only by what many will assert is revolutionary, un-American, communistic, and what not. And the profession of the law, the organized bar, will doubtless resist any steps to procure more widespread access to justice. Professional groups easily become smug in their satisfaction with die status quo, Lawyers, by their very closeness to a system dedicated to stability, are resisters par excellence. Yet in minor instances a few brave souls have thrust forth and made slight inroads into this problem of aiding the poor to obtain justice. Their trail-blazing points the general way for further reformreform which can go a long way toward achieving the new freedom,
Chief Justice Charles Evans Hughes had occasion not so long ago to observe that "in protracted litigation, the advantage is with those who command a long purse," The former Chief Justice hit two of the evils which must be eliminatedthe cost of litigation and the slowness of litigation. The workingman gained more than substance when Workmen's Compensation statutes became common. He also obtained relatively inexpensive and speedy justice. In the largest area of litigation today, personal-injury suits, much speedier and less costly justice would be forthcoming if administrative tribunals on die order of compensation commissions were instituted to handle this type of suit. Enlightened members of the profession have advocated such a reform in the field of automobile accidents, They have pointed out that in addition to such a system's own virtue, clogged courts would be able to handle other types of litigation more speedily. To date they have failed but their plan is still available and worth keeping in mind.
Aside from the possibility of shunting off this large block of litigation, the problem of speeding litigation is largely a matter of technical procedural reform, The etiquette of the American bar is one of leisurely action, of dilatory sparring, of polite procrastination. Reforms aimed at cutting down the time for pleading, filing, appealing and so forth; at eliminating the pleasant custom of automatically postponing a case because an attorney is busy or "indisposed" or unprepared; at hastening the whole judicial process which is still carried on much like a gentlemanly jousting tournamentall these reforms would aid rich and poor alike in obtaining speedy justice.1
Much more important reform lies in eliminating the advantage that is with the holder of die long purse. It goes without saying that some advantage will always belong to the man who can pay well. But the situation need not be so bad as it is today. As with the medical profession, the fee system is at the root of the difficulty. While the world has evolved mass-production to replace the lone artisan, legal work, except for the large Wall Street legal factories, remains individualized. To obtain the services of a good lawyer, one must pay as-if-he were-commissioning an artist to paint a portrait. Until steps are taken to break down this outmoded method of providing legal services, almost all good legal talent will gravitate to Wall Street and kindred places, and fair-to-middling legal talent will starve. Without a distribution system that spreads die cost, legal services must have a high unit price.
The broad outlines of the path have been drawn by some members of the profession. But the strides made have been pitifully short. Even the conservative medical profession, or a segment of it, has outdistanced lawyers in professional reform. Group legal advice associations, like group health associations, could be organized. Public support of legal offices serving low-income groups is as practicable as public support of medicine. Those few hardy souls who have cried out for reform have suggested steps such as these.2 For a less thorough solution, these people have advocated legal service bureaus where for a nominal fee a prospective client may discuss his problem and be routed to a lawyer whose fee will fit the client's pocketbook. If equal access to justice in fact is to be obtained, the legal profession must open its doors to more extensive service.
It is not alone the need for lawyers to appear in court that presents a problem. Preventive legal advice, like preventive medicine, is even more important to low-income groups. No large businessman makes an important decision having legal consequences without consulting his lawyer. The ordinary citizen walks into a lawyer's office only after he has received a summons or is ready to sue. Part of this reluctance is owing to distrust of the legal profession. A program of education could clear this up. More important is the cost of consultation. Unless advance advice can be easily obtained at little expense by the great bulk of our population, businessmen will continue to be the principal partakers in justice. For they alone will be forewarned and forearmed.
Even general advice is sometimes frowned on by the bar. In one city I know of die medical association sponsored a series of radio programs giving health advice. A suggestion that the local bar sponsor a program telling people their rights under workmen's compensation, conditional sales and mortgages, and the like, was squelched. If the organized bar expects to overcome the common belief that lawyers are valuable only in time of trouble, it must accept a program for wider dissemination of preventive advice.
There is one bright spot in the attitude of the bat toward wider legal service. In many cities legal aid societies have been set up. These are charitable organizations, however, and are usually well circumscribed in their activity. Sometimes they do no more than advise people; if court action is required, they send one to an attorney. So long as they remain charitable, they fill only a small part of the" need. So long as they are circumscribed in activity, they do not even fully meet that small part.
The above discussion refers principally to civil legal advice. When it comes to criminal law, the problem is more acute. The people who run afoul of criminal statutes are by and large uneducated, poor, and frequently bewildered. Competent legal service must be made available to them Courts have, it is true, long appointed counsel to defend accused, and the Supreme Court now requires it as a constitutional guarantee. But the job is unpaid and thankless, and lawyers do not relish it. Even where defendants can pay, "respectable" lawyers decline to soil themselves in criminal law. The solution which has been proposed, and accepted in some states, is the office of Public Defendera paid lawyer who conducts the defenses of those not able to defend themselves. If this idea is universally accepted, and if adequate staffs are provided, a long step forward will have been taken. There will still be need for advice prior to indictment and trial. Increasing the scope of the work of the Public Defender or of publicly supported legal clinics can aid this. Vigilant guarding of civil liberties will also protect the bewildered who fall into the clutches of unsympathetic and sometimes harsh police officials.
These are the more important means of providing equal access to justice in fact. Other minor ones may be mentioned to round out the picture. Small claims courts, for example, operate on a basis of low costs to parties, and frequently their judges even frown on the presence of attorneys. Arbitration can also be expanded to avoid cumbersome judicial procedure. Perhaps the rise of labor unions will be accompanied by union support of a legal staff to advise members and to protect them.
These goals are a long way off and the road to them is rocky. Yet if any strides forward are to be made, the ultimate destination must be clear. I am not sufficiently sanguine to see attainment in any visible future. I do say that if we reached these goals we would really have equality before the law, with equal access to justice in fact. Anyone who seriously desires to achieve the National Resources Planning Board's new freedoms will, so far as the seventh is concerned, set his course far into the future. The short steps made will look small in terms of the goals; to the less farsighted, the achievements will appear large.
*GEORGE BRADEN IS WITH THE UNITED STATES CIRCUIT COURT OF APPEALS, SECOND JUDICIAL CIRCUIT.
1 I hit only the high spots. Obviously, the details of reform of this type require technical study. Introduction of the reforms will be slow and difficult, for it necessitates changes in the well settled mores of the bar.
2 The Association of American Law Schools discussed the matter in 1933 and 1934; and in 1938, the American Bar Association published a manual on the Economics of the Legal Profession, prepared by a special committee. For recent discussion and references to available material, see Llewellyn, The Bar's Troubles, and Poulticesand CuresT (1938) 5 Law & Contemp. Prob. 104; also his article, The Problems of Undone Legal Service (1940) 26 A. B. A. J. 38.