I missed this a couple of weeks ago, but the fact that the state will not assist litigants in civil case find legal representation bears pointing out. California has always been an innovator on legal practice, and in this case, in a good way.

Although some analysts worry that it could swell state court dockets or eat up resources better spent on other needs of the poor, the pilot project that won bipartisan endorsement in the state Assembly will be financed by a $10 increase in court fees for prevailing parties.

Anybody confronted with criminal charges has a constitutional right to an attorney, as set out in the landmark Supreme Court decision in Gideon vs. Wainwright in 1963. But such a right does not apply in civil court, and the majority of citizens fighting what can be life-altering civil actions now attempt to handle their cases without professional guidance.

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“How ironic that you can be arrested for stealing a small amount of food — a box of Twinkies from a convenience store — and you’re entitled to counsel. But if your house is on the line, or your child is on the line, or you’re being abused in a domestic relationship, you don’t have the same right to counsel,” said Assemblyman Mike Feuer, the Los Angeles Democrat who sponsored the bill. (LAT 10/17/09)

We’re talking about 4 million litigants each year. 4 million people trying to retain custody of their children, or trying to fight an unlawful eviction. The number of unlawful evictions that are carried out simply because the tenant couldn’t find free representation alone boggles the mind.  Despite recent efforts to make the court system more friendly, let’s face it, courts are intimidating. Going in without an attorney who knows how these things work can be all that much more scary for people in a tough position.

This is really an outstanding bill by Mike Feuer, and hopefully it will be expanded throughout the state, and eventually to the nation. For too long, the rich have had a huge advantage over those without the means. Court cases should be decided based upon the facts, not the fact that one party couldn’t hire an attorney.

On the flip side of innovation, we have the fact that California’s courts are hamstrung by the Medical Injury Compensation Reform Act of 1975. Way back then, the state set the limit for non-economic damages at $250,000. A substantial sum of money at the time, the equivalent of about $1million after adjusting for infaltion, it’s a far less hefty sum today. In fact, even Mississippi has a higher limit at $500,000. So the saying goes if you run somebody over with your car, make sure you finished the job, it’ll be cheaper. Kill a small child or a retired person, and the family will get only that sum of money. No matter how egregious the medical malpractice, it’s limited to $250,000.  

And the cap is working. Very well. So well that it not only eliminates the silly claims, but the legitimate ones as well. Adjusted for inflation, the total 2008 nationwide sum of $3.6 billion is the second lowest on record.

While the insurance companies will tell you how doctors are suffering, and the California Medical Association, cries crocodile tears, it turns out the reason for the rising costs of insurance can’t be pegged on rising medical malpractice claims.  Sure, in other states, you can make a plausible argument to tie malpractice to increasing verdicts. But not in California since 1975. MICRA needs reform if we want one of the only working mechanisms to protect medical consumers to actually work. This is one innovation that needs repair.