Can justice be done if one side is represented by a lawyer in court and the other side is not? Two national stories show that the right and the left both agree that an imbalance in representation can be problematic, but not necessarily on the context.
An NPR series, "Unfit For Work: The Startling Rise Of Disability In America," is openly skeptical about the fairness of disability appeals in which the applicants are represented by counsel and the government does not appear in court to contest the appeal:
Who is making the case for the other side? Who is defending the government's decision to deny disability?
Nobody.
"You might imagine a courtroom where on one side there's the claimant and on the other side there's a government attorney who is saying, 'We need to protect the public interest and your client is not sufficiently deserving,'" the economist David Autor says. "Actually, it doesn't work like that. There is no government lawyer on the other side of the room."
The Social Security Administration says disability hearings were never meant to be adversarial. In these courtrooms, the judges are employees of Social Security. So the judges are supposed to both represent the government and make a fair and objective determination. But the judges themselves say this role can be difficult.
Judge Randy Frye, who hears disability cases in North Carolina, told me he often finds himself glancing to where he imagines there should be a chair for the government attorney, as there would be in a normal case. "There are always moments where you are concerned maybe you missed something," he says.
"You would turn to that chair and say, 'Counsel, I'm having trouble with this issue. Why does the government think this case should not be reversed?'"
The NPR piece has drawn harsh criticism from the left (see, for example, "NPR Trashes The Disabled" and "NPR Attacks Disability, Bolsters 'New Consensus' against Welfare"), as well as an open letter from eight former Social Security Administration commissioners.
Meanwhile, an op-ed piece on Sunday's New York Times, "Child Migrants, Alone in Court," decries the fact that thousands of minors in the U.S. go through deportation hearings without the benefit of counsel. About 7 percent of those in federal custody between 2007 and 2009 who had received a ruling by mid-2010 were winning their cases; those with legal representation were nearly nine times as likely to win:
In court, these children are up against trained government lawyers. They must testify under oath, file supporting documents and navigate the complexities of immigration law, with no knowledge of the country’s language or customs, and often with only the help of a translator. Children in the courtroom often seem confused and frightened. Staff members with Kids in Need of Defense, or KIND, a group whose board I serve on and the principal provider of pro bono lawyers for these children, told me of a boy in Los Angeles who carried his teddy bear for comfort and a toddler in a Texas courtroom who wet his pants when he faced the judge.
The op-ed piece calls on lawyers to increase their pro bono efforts in these cases, but says that pro bono will not be enough to meet the need.
