During my years as a practicing attorney–that is, before I bagged my law career to return to academia–I often wondered whether justice could actually be called justice if it required the payment of money. My thought was that, at least in the United States, poor people could not afford the same quality of legal advice and counsel as rich people could. In fact, in many cases, poor people cannot afford any sort of legal advice and counsel at all.
Perhaps we thought that the Miranda case solved all that. (“You have the right to an attorney. If you cannot afford an attorney then one will be appointed for you free of charge.”) But what about the myriad of legal situations that did not involve criminal charges?
For example, what happened when a married couple could not afford the legal fees required to file for divorce, and when the only legal aid office was overbooked? What happened when people earning minimum wage felt that their employment rights were being violated, but had no money to seek legal advice? Was more low-cost legal aid the real answer if the sharpest attorneys tended to gravitate to the clients who paid the highest rates?
How is it that we are willing to live with symbols–found somewhere on the walls of almost any courthouse in a America–that portray Justice wearing a blindfold and balancing scales, when we all know, deep down, that wealthy people can afford more justice than the poor?
I wondered at the time whether it might be possible to create some sort of lottery system whereby attorneys were all hired at random and paid at the same hourly rate. Wouldn’t something like that, or perhaps some sort of “blind” software, be necessary to ensure that those with financial and political connections were not able to secure more justice than those without the ability to pay?
The problem, of course, is that we live in a nation that values the free enterprise system and views any sort of government-designed attorney procurement system as socialistic. We prefer to believe that it is perfectly fair and just that a person who has earned more money than someone else should be able to hire an attorney whose fees are more expensive. We never stop and wonder whether the person with more money happened to obtain that money through the commission of a crime, or through the fortunes of inheritance, or by some other means having nothing to do with that person’s honest work or “free enterprise.”
Like the courtiers in the children’s story The Emperor’s New Clothes, we prefer to believe that our system of justice treats all litigants equally, regardless of the heaping pile of attorney fees on one side of the scales.
There was a time when we could not imagine the concept that a nation of self-driving automobiles might actually be safer than human drivers. Now, I find myself wondering whether there will come a time when litigation–at least at the trial level–could be viewed as more just and fair when handled primarily by computers.