The 6th Amendment to the U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Nevertheless, 93% of federal criminal cases in 2013 ended with a plea bargain, a method of negotiation that does not involve a trial. It is also a method, Jed Rakoff writes in the New York Review of Books, that causes innocent people to plead guilty.
The terms of a plea bargain are generally within the power of the prosecutor, not the defendant, and are often of the “take it or leave it” variety. The increased popularity of plea bargains has coincided with tougher drug laws and the subsequent clogging of the criminal judicial system.
The civil counterpart of a plea bargain is the settlement agreement. Like plea bargains, settlement agreements are independently negotiated between the parties. Civil courts are similarly overburdened with claims and the percentage of civil cases that settle is equal to or higher than that of criminal cases, although reported numbers vary slightly.
In civil cases, a plaintiff often lacks the resources to withstand the lengthy and arduous litigation process. After the initial retainer paid to an attorney has run out, the defendant has served its third request for discovery with 100 interrogatories and 78 requests for documents, and the plaintiff has had to take three days off from work to be deposed by an attorney whose questions are designed to harass, the plaintiff is often left without the money or stamina to carry on. At this point, the plaintiff is likely to throw in the towel and accept a settlement figure that is often a fraction of what he or she may have received at trial.
The problem still exists with a slight mutation when a plaintiff enters into a contingency agreement with an attorney. While the plaintiff does not have the upfront cost of paying the attorney, there still exists the possibility of litigation fatigue, especially if the attorney places a contingency case at the bottom of a to-do list in favor of hourly work that keeps the lights on.
In effect, the plea bargain and the settlement agreement are similar in that they sometimes force an individual to accept a legal agreement that is not in his or her best interests. A criminal defendant – even an innocent one – may accept a plea deal that eliminates the fear of a lengthy jury-imposed sentence but has long lasting effects on the ability to earn a living, find housing, or otherwise reintegrate. Likewise, a plaintiff in a civil case sometimes enters into a settlement agreement out of necessity because the balance of power is tipped in the other direction.
What the civil system has available that the criminal system does not allow is plaintiff financing: a means for plaintiffs to weather the dilatory tactics of financially-advantaged defendants. We’ve written before about cases where plaintiff financing, known colloquially and incorrectly as a “lawsuit loan,” made an otherwise impossible case a success, most recently the Adam Carolla case against patent trolls. But this is one solution to a systemic problem – a solution that both does not exist for, and would be entirely useless to victims of prosecutorial intimidation in criminal cases.
Rakoff in the Review of Books proposes a series of reforms to keep innocent people out of prison; clearly we support plaintiff financing as a means of helping civil plaintiffs find justice. Our legal system is imperfect – this is no secret – but these are two reasons we believe it is far from hopeless.
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