Academic Paper on Turner v Rogers Issues Challenge to Advocates

This paper may be the first academic treatment of Tuner.  It is part of the University of Pennsylvania Law School Public Law and Legal Theory Research Paper Series, and of the University of Tennesse, Knoxville, College of Law Legal Studies Research Paper Seriesand titled Triaging Appointed-Counsel Funding and Pro Se Access to Justice.  It is by Professor Ben Barton and Professor Stephanos Bibas.

Its core thesis (on pages 3-4 of the paper as posted) is as follows:

Though Turner upset many civil-Gideon advocates, we should not lament the decision but (mostly) praise it.    In rejecting a broad new constitutional right, the Court steered toward more sustainable pro se reform. The Court’s solution is far more realistic than a grandiose new right to counsel would have been. Funding for counsel is scarce; existing lawyers are already overtaxed; and appointing civil lawyers would siphon time and resources from more important, more complex felony cases. In a world of scarcity, legislatures, courts, and legal-aid organizations need flexibility to triage cases. Both the Constitution and sensible policy thus reserve appointed counsel primarily for criminal cases. Any appointment of counsel in civil cases must be selective and discretionary, reserved for the most complex and most meritorious cases. Less-expensive pro se court reform is far more workable; giving everyone a lawyer is an impossible dream. Turner was not explicit about the importance of resource constraints, but its rule makes much more sense in a world of limited funds.

Properly handled, pro se court processes can be cheaper and fairer. Extraordinarily, the Court noted that appointing counsel in these cases could make the proceedings “less fair overall” and introduce unwarranted “formality or delay.” Though that observation is a matter of common sense, over the past eighty years the Court has always praised lawyers’ role in guaranteeing just procedures. Turner’s changed tune reflects a more mature, more nuanced view of lawyers and complexity in our adversary system. If Turner helps to spur new, simpler, and fairer pro se court processes, everyone will benefit (footnotes omitted).

Addressed mainly to the civil Gideon community, the paper urges an appreciation of the opportunity Turner offers to embrace a broad variety of access solutions.  Implicit in the analysis is the need for courts to meet sufficient due process standards of accuracy and fairness.  The paper also recognizes that civil Gideon advocates will find much in the decision to support the argument for a right to counsel in certain situations.  Urged throughout is the need for realistic triage of what situations are in need of the more costly full representation solution. It implicitly raises for the future the toughest question — how is that to be done at both the categorical and the individual level?


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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2 Responses to Academic Paper on Turner v Rogers Issues Challenge to Advocates

  1. Claudia Johnson says:

    Thanks for this post and pointing out what may be the first paper on Turner. Reading this makes me wonder if any court systems have or are moving to appoint pro bono counsel in child support cases, particularly when the state is involved and there is a danger of incarceration due to arrears? Although it is true that lawyers employed in legal non profits are in high demand and short supply and overtaxed, the reality is also that there are many law graduates with their bar credentials that are having a hard time finding legal employment. Moreover, there are also experienced lawyers who have lost positions in a diversity of firms. So, why not look at ways to train pro bono lawyers to take on some of the child support cases on a pro bono basis? I don’t hear often about pro bono child support projects sponsored by child support courts. Maybe there are some good models out there for cases where the party in arrears can not proceed pro se (disabled, low literacy/inability to read, frail/terminally ill or on medications that affect cognitive reasoning etc)? The trainign of pro bono lawyers could be accomplished using various technology tools, including online document assembly forms and screening interviews to flag red flags for less experienced attorneys, plus other tools such as podcasts, and newer tools such as Avaya’s Web Alive, etc. If the readers of this blog know of child support pro bono projects sponsored by courts, please share them.

  2. Lisa Colpoys says:

    Courts need to standardize and simplify processes for case types that have high volume pro se parties – divorce, small claims, eviction, etc. Technology can help triage people to the appropriate level of service so that only people who need full representation by legal services get it, and those who can handle simple legal matters on their own are directed to pro se assistance. We all need to engage in advocacy with court systems to make this happen. But, clearly I am preaching to the choir here…..

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