Wednesday, January 18, 2017

The civil justice system must be especially sensitive to the plight of the uninsured litigant

A typical tort case turns on insurance. The defendant's attorneys are paid by an insurance company; the settlement or verdict will be funded by an insurer. In multiple-party cases, the allocation of fault may take a back seat, for settlement purposes, to the allocation of available insurance proceeds. To some extent, insurance drives the civil justice system.

But not every defendant in the civil justice system is insured. Not every claim is covered. While it might be possible to plead most tort claims into coverage, there is no way to find even potential liability coverage for many contract claims. Now and again a vengeful plaintiff will deliberately plead only intentional acts in an effort to prevent liability coverage from attaching.

I don't pretend to know what the percentage is of uninsured defendants in the civil justice system at any time. I'm sure it fluctuates. And also varies according to the type of case. But the class of uninsureds includes both individuals and small businesses.

Judges tend to see those uninsured defendants who are also not represented. Who appear pro se. We read, from time to time, about the explosive growth in pro se litigants in Cook County and elsewhere, often in the context of judges or bar associations urging lawyers to be more generous with their time and representing some of these litigants pro bono, that being a Latin phrase meaning 'on the cuff.'

The growth in pro se litigants is fueled, in no small part, by the fact that the perceived and/or actual cost of legal services is so high that legal representation is beyond the means of most uninsured litigants. Only wealthy individuals and prosperous small businesses can afford lawyers, or think they can.

Judges see pro se litigants very clearly. They may not see, or notice, the uninsured litigant who begins with counsel and unrealistic expectations about how quickly their case can be resolved. Time passes, money is spent, but the case continues. The relationship sours. The court's first real notice of this type of uninsured litigant may not come until the unpaid lawyer is reduced to withdrawing (what we call, in the old Gaelic, a motion in gelt). Has the lawyer overcharged... or overpromised... or underperformed? Maybe. In some cases. Maybe the client's unrealistic notions of how fast his or her attorney can move a case without the active cooperation the court and opposing counsel is to blame. Maybe the client just flat runs out of money.

The point is that the civil justice system, properly functioning, should be on the lookout for uninsured litigants from the earliest stages of the case. Some provision must be made to expedite their cases so that they can have the benefit of representation and not (necessarily) have to wind up staring into the abyss of bankruptcy. When the motion in gelt is presented, it's too late for the court to do much good. This is a basic access to justice issue: Can real people hope to achieve a fair, appropriate resolution of their cases in our civil justice system when they are sued and do not have insurance?

In coming posts I will share some ideas I have on this topic.

1 comment:

Anonymous said...

Travis Richardson appointed to Judge Turner's vacancy in the second subcircuit effective February 14