Legal Battle for Right to Civil Counsel ("Civil Gideon")

Self-Represented Fool : "The One Who Represents Himself Has A Fool For A Client" (Lawyer's Joke)

Since 10 p.m. PST on 1/03/10

Natalia A. Sidiakina permits unrestricted not-for-profit use, distribution, and reproduction of this article or any part thereof in any medium, provided the original work is properly cited. See original citations in the articles on this web site and examples of citations below in this web page. For more information and permission for for-profit use, distribution, and reproduction please contact info@selfrepresentedfool.org.

Update of 8/19/10:

Please WATCH ALL 6 videos below!!!

Videos of the Milgram’s Obenience to Authority Experiments, BBC in 2009:

Part 1/3:

http://www.youtube.com/watch?v=BcvSNg0HZwk

Part 2/3:

http://www.youtube.com/watch?v=IzTuz0mNlwU&feature=related

Part 3/3:

http://www.youtube.com/watch?v=6Ahc7FYFGno&feature=related

Zimbardo’s Stanford Prison Experiment:

http://www.youtube.com/watch?v=rmwSC5fS40w&feature=related

Interview with Zimbardo on Democracy Now:

http://www.youtube.com/watch?v=Z0jYx8nwjFQ&NR=1

Zimbardo’s presentation on TED in 2/2008: “Why ordinary people do evil …or do good”- Power Authorities in the System are Makers of Bad Barrels (evil environment) that produce Bad Apples (evil individuals): The SAME situation produces Evils and Heroes:

http://www.youtube.com/watch?v=OsFEV35tWsg&feature=related

“Poor people have access to American courts in the same sense that Christians thrown to lions had access to the Coliseum.”

— Justice Earl Johnson Jr., Calif. Court of Appeal (ret.)

“Serious civil legal problems … can imprison one just as surely in poverty and despair as behind bars of steel.”

— Michael S. Greco, past president, American Bar Association

“Equality before the law in a true democracy is a matter of right.”

— U.S. Supreme Court Justice Wiley Rutledge

Legal Battle for Right to Civil Counsel (“Civil Gideon”)

(main article was written in July of 2008)

It is self-evident that Justice must be based on truth. Whatever is not based on truth is injustice. If the truth is ignored simply because it is not presented in a specific way and by a lawyer, the justice automatically turns into injustice.

In the adversary system of justice, a lawsuit is a complex competition with numerous rules, tactics and strategies. In the adversary system, a layman has practically no chance in winning against an experienced attorney because the truth is ignored by the courts unless it is presented in a specific way in compliance with the evidence code and other rules. An experienced attorney will always object on different grounds to the evidence proving the truth if such evidence is presented by a self-represented party or will urge the court of appeal to ignore the “statement of facts” in the self-represented party’s appellate briefs for non-compliance with the court rules. Then an experienced attorney will argue that a self-represented party on appeal “waived” all his/her arguments because there would be no “facts” to support them.

Forcing a layman to represent himself going against an experienced lawyer is analogous to forcing a person, who has never in his life played a piano, to compete in playing Mozart’s piano sonatas with a professional pianist. As a person who has never played a piano would never be able to follow all tempo and score instruction and play Mozart well, so a self-represented person who is emotionally involved and legally inexperienced would never be able to comply with all legal requirements and effectively represent himself going against an experienced attorney.

Forty-five years ago in Gideon v. Wainwright, 372 U.S. 335 (1963)[1], the U.S. Supreme Court held that “The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner’s trial and conviction without the assistance of counsel violated the Fourteenth Amendment” (Gideon v. Wainwright, 372 U.S. 335 (1963), 335). The basis for this conclusion was straight-forward:

“… reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendant’s charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. … From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:

[Citations] The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceeding against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. [Citation]

287 U.S. at 68-69” (Gideon v. Wainwright, 372 U.S. 335, 344-345) (bold added).

In dissolution of marriage cases, not the liberty or the life of a person is at stake, but the private property and custody of children. In the US, there is no free housing and no free healthcare. Private property is the only source of housing and healthcare. Thus, private property becomes not a luxury, but a necessity to sustain life.

Right to private property was recognized as a “fundamental right” along with the right to life and right to liberty by the Supreme Court when “… the Court has made obligatory on the States the Fifth’s Amendment’s command that private property shall not be taken for public use without just compensation…” (Gideon v. Wainwright, 372 U.S. 335, 341-342).

The right to private property does not lose its fundamental nature when private property is taken from one person by a judge and given to another person or legal entity, not the public. Thus, if one person is haled into court in a dispute with another person or legal entity over the private property, to assure level playing field and equal opportunity to be heard, both parties either have to represent themselves or have to be represented by counsel, unless such representation is willfully and intelligently waived.

This logic has already been implemented in California in the disputes over private property of less than $5,000. Such disputes are resolved in the small claims courts where both parties are required to represent themselves to assure level playing field and equal opportunity to be heard.

Chief Justice Ronald M. George made the following statement in the State of the Judiciary address at the State Bar Convention on September 27, 2008[2]:

“The judicial system also has sought- thus far unsuccessfully- to fund three pilot projects to provide legal representation in civil cases in which fundamental rights are at issue, and we shall continue to pursue an appropriation for this purpose. Just as the U.S. Supreme Court’s landmark decision in Gideon v. Wainwright recognized the importance of counsel in criminal cases where individual liberty is at stake, counsel may be just as essential in those civil proceedings that affect the most fundamental aspects of individual lives.”

For more information and discussions of Civil Gideon, go to the following links:

1. TortDeform- The Civil Justice Defense Blog

http://www.tortdeform.com/archives/2007/11/right_to_civil_counsel_civilgi_1.html

2. IRMO King, Amicus Curiae Brief of retired Washington Judges filed in the Court of Appeals of the State of Washington on 3/21/07:

http://www.brennancenter.org/dynamic/subpages/download_file_48463.pdf

3. National Coalition for a Civil Right to Counsel

http://www.civilrighttocounsel.org

4. Pribek, J. (2006) Case raises civil Gideon issue, Wisconsin Law Journal, March 22, 2006 at

http://www.wislawjournal.com/archive/2006/0322/gideon.html

5. Marvy, P. (2008) Advocacy for a Civil Right to Counsel: An Update, Clearinghouse REVIEW Journal of Poverty Law and Policy, March-April 2008, pp. 644-650, found at:

http://www.civilrighttocounsel.org/pdfs/MarvyMarchApril.pdf

6. American Bar Association Amicus Curiae Brief filed in Alaska’s case on 11/18/08:

http://www.abanet.org/amicus/briefs/office_of_public_advocacy_v_alaska_court_system.pdf

7. A report of the New York State Bar Association “Toward a right to counsel in civil cases in the New York State” of November 2008:

http://www.civilrighttocounsel.org/pdfs/Final%20State%20Bar%20Report%2011-08-1.pdf

8. Resolution adopted by the New York State Bar Association on 11/1/08:

http://www.civilrighttocounsel.org/pdfs/Final%20NYSBA%20resolution%2011-1-08-2.pdf

9. State of Washington General Rules (GR), NEW RULE 33. Requests for

Accommodation by Persons with Disabilities, which specifically notes in GR33(a)(1)(C) that appointed counsel is a possible reasonable accommodation:

http://apps.leg.wa.gov/documents/laws/wsr/2007/14/07-13-029.htm

10. In 2006, a task force of the California Commission on Access to Justice developed a model statute that would implement a comprehensive right of access to equal justice, including, when appropriate, a right to appointed counsel:

http://www.povertylaw.org/poverty-law-library/research-guides/civil-gideon/state-model-statute.pdf

11. February 2009 study- The Impact of Legal Aid Services on Economic Activity in Texas ($1.00 spent on legal aid generates $7.42 overall gain to the economy):

http://www.texasatj.org/FINAL%20Econ%20Impact%20Study%2002-12-09.pdf

California Family Law and Right to Counsel in Family Law Proccedings

In many dissolution of marriage cases the disputes arise over private community property of greater than $5,000. The statutory and case law in California recognized that the Court must ensure that each party has access to legal representation by ordering, based on needs and abilities to pay, one party to pay for the other party’s reasonable attorney’s fees and costs.

The relevant portions of the California Family Code section 2030 (a) and (b) provide that:

“In a proceeding for dissolution of marriage...the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party….to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” (bold added).

“Whether one party shall be ordered to pay attorney’s fees and costs to the other party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay.”

“Attorney’s fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.” (bold added)

The California Family Code section 2031 (a)(1) and (a)(2) state in part that:

“…during the pendency of a proceeding for dissolution of marriage……..an application for a temporary order making, augmenting, or modifying an award of attorney’s fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by a motion on notice or by an order to show cause.

The court shall rule on an application within 15 days of the hearing on the motion or order to show cause.”

The California Family Code section 2032(c) provides that:

“The court may order payment of an award of attorney’s fees and costs from any type of property, whether community or separate, principal or income.” (bold added)

Relevant court decisions interpreting those code sections include In Re Marriage of Kelso (1998) 67 Cal.App.4^th 374 at pages 384-385[3], wherein the court made the following comment:

“The purpose of an award under Family Code section 2030 is to ensure that the party in need has adequate legal representation to litigate the family law issues. The court must take into account the relative circumstances of the parties including their respective needs, income, and assets. In determining whether the fees incurred were reasonable, the court may consider various factors including the nature of the litigation, its complexity, the amount involved, the financial circumstances of the parties, the legal skill involved, and whether counsel’s skill and effort were wisely devoted to the expeditious disposition of the case.” (bold added).

In In Re Marriage of Cheriton (2001) 92 Cal.App.4^th 269, the court made the following conclusive remark at page 318[4]:

“In addition to its troubling procedural aspects, the denial of fees in this case implicates strong public policy concerns. There is no question that access to the family law courts thought adequate representation is critical.

In ruling on a need-based request for fees, a trial court is required to actually exercise its discretion. The court has a duty to make a just and reasonable award of attorney’s fees and costs, if warranted under the circumstances of the case before it.” (bold added)

In the case In Re Marriage of Hublou (1991) 231 Cal.App.3^rd 956[5], which has an appeal from a post judgment modification and reduction of spousal support based on a court finding that wife had not used her best efforts to obtain employment, the court ordered husband to pay a portion of wife’s attorney’s fees and costs. Husband appealed, alleging it was not appropriate because he was the prevailing party in the post judgment modification proceeding. The appellate court rejected that argument clearly stating at page 966:

“...There is no requirement that attorney’s fees be awarded only to prevailing parties, as they may be awarded against a prevailing party in family law proceedings. Thus, we believe the court correctly concluded that Husband should bear a significant part of the burden imposed upon Wife as a result of his efforts…” (bold added)

In the case In Re Marriage of Davis (1983) 141 Cal.App.3d 71[6], the appellate court stated four conditions necessary for an award of attorney’s fees on appeal at page 79:

“Wife has requested an award of attorney’s fees for services rendered on appeal. [5] To warrant an award of fees on appeal, four conditions must be met: (1) the requesting spouse must show a need for the award; (2) the paying spouse must have the ability to pay the fees; (3) the appeal must be taken in good faith; and (4) there must be reasonable grounds for the appeal, although this does not imply that the requesting spouse must prevail on appeal. (Hunter v. Hunter (1962) 202 Cal.App.2d 84, 92 [20 Cal.Rptr. 730].) In the case before us, there is no question that wife's appeal was taken in good faith and that she had reasonable grounds for appeal. The trial court, however, can better determine the extent of wife's need for an award and of husband's ability to pay additional fees. (See Craft v. Craft (1957) 49 Cal.2d 189, 194 [316 P.2d 345]; Civ. Code, § 4370.) On remand, the trial court should determine the amount of the award for wife's fees on appeal.” (bold added).

In reality, at the request of a represented spouse, trial judge will either ignore a self-represented spouse’s request of an award of attorney’s fees or will award ridiculous amount grossly insufficient for a continuous representation of an indigent spouse. The only way to review the decision of a trial judge is to seek a review in the Court of Appeal by filing a Petition for Writ or an appeal. But a self-represented spouse doesn’t have knowledge and experience to do that. A self-represented spouse remains being self-represented in the Court of Appeal and, consequently, is destined to lose his/her case.

Thus, it becomes a catch 22: in order to get an award of attorney’s fees, an indigent spouse has to be represented by an attorney, but to be represented by an attorney, an indigent spouse has to get an award of attorney’s fees.

Dr. Natalia A. Sidiakina is currently trying to break this circle. On November 25, 2008, Dr. Sidiakina filed a motion for an appointment of counsel in her 2 pending cases (A119808 and A120069) in the California Court of Appeal, First Appellate District, Division Four. The PDF files of that motion and exhibits to motion can be downloaded from the page In Re the Marriage of Natalia Sidiakina and Siamak Navid on this site:

http://www.selfrepresentedfool.org/id19.html

UPDATE: PLEASE SEE THE NEW DEVELOPMENTS AT THE CA COURT OF APPEAL LINK: