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I’d have a grand time with Civil Gideon

David Ziemer

David Ziemer

I’ve always thought that getting tarred and feathered was something that only happened in Mark Twain novels. But I think it could still happen today.

Let me propose the following experiment:

Somebody who supports Civil Gideon – forcing the taxpayers to pay for attorneys in civil cases – can pay a visit to a general misdemeanor courtroom in Milwaukee County and wait around for a while.

After all the defendants who are represented by counsel, whether privately retained or appointed (mostly appointed), get their cases called, there will be a break.

Then all the third-class citizens – those who work for a living and pay taxes, but could neither afford an attorney nor get one appointed – will negotiate guilty pleas with the prosecutor on their own.

Go suggest to these folks that they should pay more taxes so that the people who get appointed counsel in criminal cases can also get them in civil cases.

I can tell you what they will say. “It’s bad enough that I have to pay taxes so all those other defendants could have an attorney, when I can’t afford one myself. And it’s bad enough that I have to miss hours of work while people who don’t have to work have their cases called before mine. Now you want me to pay even more, so they can have free attorneys when they don’t pay their rent and get evicted, too?”

You’ll be lucky to get out of the courthouse alive.

I must say, though, attorneys sure could have a lot of fun with Civil Gideon.

I’ve represented many tenants and landlords alike. And unfortunately, many residential landlords draft their own leases, or pull them off some Internet site, rather than ordering them from Wisconsin Legal Blank, like a sensible person would do.

Any competent attorney can invariably find some provision in any such lease that conflicts with either some statute in Chapter 704, or some regulation in Wis. Admin. Code ATCP 134, and so renders the lease unenforceable.

When I read a court opinion holding such a lease unenforceable, I feel no pity. The landlord should have bought a standard lease and hired a good attorney to handle the evictions.

If the landlord gets the shaft, because of an honest mistake, and the tenant is a hustler getting a windfall, that’s not “gamesmanship”; that’s practicing law.

But the real fun will come in public housing. Back in the 90s, the assistant city attorney who handled evictions for the Milwaukee Housing Authority was a great attorney, but the MHA bureaucrats were grossly incompetent.

I could keep a dope dealer comfortably ensconced in public housing for months, getting one eviction action after another dismissed on procedural grounds because those clowns couldn’t do their jobs properly.

Like the saying goes, “All is fair in love, war, and small claims court.” If the housing authority or a private landlord can’t follow the rules, and a tenant would rather pay me to represent him than pay his rent, I’m going to find some ground to win the case, whether the result is just or not.

But I don’t want my tax dollars used for that purpose. And I’ll bet the third-class citizens in misdemeanor court don’t either. So, is anybody who thinks they do willing to risk being tarred and feathered?

3 comments

  1. The two examples Mr. Ziemer employs both show lawyers achieving lawful but unjust results for the underdog. There are also many scenarios in which the poor do not have a ghost of a chance of even a modicum of justice without representation. In Mr. Ziemer’s world, the poor are poor because they deserve it, and a big handicap whenever they find themselves in the legal system is just part of the natural order of things that we disturb at our peril. I think Derek Bok, former Dean of the Harvard Law School, described the world more accurately when he said that in America the rich have way too many lawyers and the poor way too few.

  2. “in my world,” that is, the real world, most of the people who would get attorneys pursuant to civil gideon have no substantive defense — they owe money and they don’t have it. any attorney appointed must necessarily look to procedural defenses. it would raise taxes, and things like rent, and make the cost of necessities higher for everyone.
    there is a much better system of providing attorneys for those who have substantive defenses, without clogging the system and raising costs for all. it i called fee shifting. it works for sec. 1983 cases, which i know you have alot of experience with, mr. olson. we have fee shifting in ch. 704. if there are other areas where fee shifting would produce better justice, i’m all ears. those systems work well, because ultimately, it is the attorney who decides whether an individual case has merit before he accepts the case.

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