Thomas Jackson's nightmare began late one night as he turned into his driveway and discovered armed policemen pointing their pistols at him and his wife.

"Get out of the car! Put your hands behind your back!" they yelled.

The Jacksons complied and were handcuffed, but they could not believe what happened next. As he was being searched, a young male cop was running his hands over Mrs. Jackson's body; she was crying. "Stop that!" Thomas shouted, to no avail. The cop felt her breasts and reached down cupping his hand on her crotch. "No weapons," he smiled.

When the police confirmed the Jacksons' identities and residence, they apologized, explaining it was a false alarm, a mistake ... and departed. No more than five minutes had elapsed, but Thomas and his wife were furious.

The names are changed, but this is a true story. And it could happen to you. And thanks to Congressional lethargy, unless you've got big bucks, you have no recourse against the police, as the Jacksons' learned when they consulted their lawyer.

The reason the Jacksons failed to find any lawyer to take their case is a perverse set of government policies that have effectively gutted what was supposed to be a Congressional guarantee that they would have a lawyer -- policies that Congress should outlaw.

The Jacksons expressed their outrage, and their lawyer told them that there was a federal law which entitled them to bring a lawsuit for money damages for deprivation of civil rights -- in this case unreasonable search and seizure -- under color of law (i.e., by the police). He asked them what they wanted and they said $10,000. The lawyer agreed that a jury might award a sum in that range and then he explained reality.

"You cannot act as your own lawyer. That would be like performing brain surgery on yourself with a spoon and no anesthetic. You must get a lawyer, but that is going to be very difficult."

"If you had been severely injured or killed, you or your survivors could be entitled to a substantial monetary recovery, in which event many lawyers would be willing to take the case in exchange for 30 to 40 percent of the recovery if successful. That case makes economic sense, weighing the risk against the amount of potential recovery."

"But your case, like, the great majority of civil rights cases involves only minimal economic damage even though important rights are at stake. Lawyers cannot afford to take these cases on a percentage basis because even if they are successful, the cases are money losers. Hourly office overhead exceeds any expected recovery, much less a percentage of that recovery."

There is widespread sympathy for the proposition that lawyers -- since they usually have an ample income -- should undertake such cases on a pro bono basis, that is for good and for free.

But the great majority of lawyers are simply incompetent to handle these matters. They have never seen the inside of a courtroom -- or, if they have, it has not been in a federal court and has not involved civil rights litigation. There are more than 188,000 lawyers in California; but in Los Angeles County only about twenty regularly handle civil rights cases. Assuming you were able to locate one of these, how could you persuade him or her to take your modest civil rights case?

You could offer to pay an hourly fee, but you would quickly face the fact that you could not afford to. A Los Angeles lawyer's hourly overhead averages about $100 per hour. And in a typical federal civil rights lawsuit, a lawyer will spend $50,000 in overhead simply preparing for a federal trial.

Congress recognized that the vast majority of people could not afford such costs, and, in 1976 passed a law expressly intended to solve this problem.

The law ("Attorney's Fee Act" 42 USC Section 1988) provided that prevailing parties in civil rights cases would be entitled to attorney's fees from the losing side. Such fees are calculated based on the number of hours the attorney reasonably devotes to the case multiplied by the attorney's hourly rate. And the fee award is still contingent upon prevailing. If you don't "prevail," no fee award occurs. Here is the point where the illusion begins -- and where Congress has abandoned victims of civil rights abuse. As will be seen, it explains why despite the law you cannot get a lawyer to represent you.

"The Attorney's Fee Act says that you as the client -- and not your lawyer -- are the owner of the right to ask for or not to ask for these attorney's fees. Your attorney is at your mercy; it is entirely up to you whether or not to apply for the fees even though it is your attorney (and not you) who would be entitled to receive the fees if they were awarded. You cannot even transfer your fee rights to a lawyer in exchange for representation. Pony v. Mitchell, 433 F3d 1138 (9th Cir., 2006), cert denied 547 U.S. ___ (June 12, 2006) This is the anomaly which assures that you cannot get a lawyer to represent you.

First, you must appreciate this maxim: All meritorious civil rights lawsuits settle. If your case has merit, it will settle either before, during, or after trial, pending appeal, pending cert petition to the Supreme Court, on remand, on retrial, or otherwise. You will not have to seize and sell a government police car in order to satisfy a judgment. And the method of settlement is crucial. As it has historically developed, the method of settlement is what stops you from getting an attorney.
 

When the crucial moment of settlement arrives, you and your government opponent will find yourselves with a singular interest in common: agreeing upon a sum of money which the government will put into your pocket in exchange for your dismissing your lawsuit. At this point, both you and the government understand that attorney's fees which might be payable under the Fee Act would far exceed the amount you would accept in exchange for dismissing your lawsuit. You would not receive any fees awarded and the government does not want to pay them. The simple solution for you and for the government is for you to waive the right to apply for the fees in order to settle your case. And this solution has predominated over the past twenty years.

You realize that you will never again need the services of this lawyer, you believe that the lawyer makes enough money on other cases, and you resent that you had to employ a lawyer to achieve what you were rightfully entitled to in any event. Fee waivers galore have ensued.

Politically, a more pernicious government settlement policy has evolved practically erases the federal Attorney's fee act. Governmental attorneys -- as a matter of policy -- will neither offer nor accept any settlement in a civil rights case unless it is a "lump sum, including all attorney's fees" settlement. This is the equivalent of the client waiving the client's right to apply for statutory attorney's fees on behalf of his attorney.

The government argues that if it is exposed to paying attorney's fees upon settlement, this will discourage settlement so that all cases will have to be tried. This is placing the cart before the horse. If attorney's fees are not payable upon settlement, the case will not exist to be settled or tried. Lawyers cannot afford to undertake the case. This is a wonderful scenario for the government and a disastrous one for the victim of civil rights abuse. It reaffirms that "You cannot fight City Hall." But it should surprise no one that the government is loath to pay lawyers to sue it. No survey needs to be taken to realize that every government agency wishes these lawyers would go away. And no study needs to be made to demonstrate that these policies have made these lawyers go away. Our heartstrings hum in unison with Dick when he says, "The first thing we do, let's kill all the lawyers,⁽¹⁾ until we remember that he and Cade were felons plotting civil war and the overthrow of the King of England.

The policies, in fact, have repealed a federal law. This appears to violate Article VI of the U.S. Constitution which provides that Acts of Congress shall be the Supreme Law of the Land, though no court has yet so decided. And this is a situation where innumerable small decisions erasing statutory attorney's fees appear individually inconsequential. "So what if a lawyer does not get paid for this or that case? he'll make it up elsewhere." But the cumulative effect is that the unpaid civil rights lawyers go out of the business or into another one.

The U.S. Department of Justice has declined to investigate these policies, claiming that they are "local matters." This is no great surprise because the Justice Department embraces identical policies.

If the promise which Congress made in enacting the Attorney's Fee Act is to more than a cruel illusion for victims of civil rights abuse, Congress must put teeth into the statute by prohibiting waiver of its provisions so that victims can get a lawyer.

Copyright, 1998-2006 Michael R. Mitchell, Los Angeles, California, Last modified 1-18-06)
 

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1. The Second Part of King Henry VI, Act IV, Scene II, 74, by William Shakespeare