By Paul Wright
The vast majority of prisoner rights cases are initiated and filed by prisoners representing themselves. This is due to a variety of reasons but the primary one is that most prisoners are poor and cannot afford an attorney to represent them in court on civil claims.
28 U.S.C. § 1915 (d) allows the federal district court to request an attorney to represent an indigent plaintiff in a civil action. The Supreme Court recently held that "request" means just that, that a judge cannot order a lawyer to represent someone. While there are no funds available for the court to hire an attorney to represent an indigent, 42 U.S.C. § 1988 provides that winning plaintiffs in civil rights cases can be compensated for costs and attorneys fees. Many state bar associations have strong pro bone programs where member attorneys donate a certain amount of time a year to represent poor people, be it the homeless, prisoners, low income tenants, etc., so in most cases if a judge asks an attorney to represent an indigent they will find one.
Whenever you file a civil rights suit it's a good idea to file a motion asking that counsel be appointed to represent you. A lawyer is trained in the law and has the resources to litigate a case much faster and better than a prisoner does. There is also the fact that pleadings submitted by an attorney have more credibility with the court than those submitted by a prisoner.
The Ninth Circuit has ruled: "Appointed counsel, whether state or court provided offers a meaningful, and certainly the best, avenue of access to an indigent inmate. An attorney is in a better position than the inmate or inmate writ writer to promote efficient and skillful handling of the inmates case. Storseth v. Spellman, 654 F2d 1349, 1353 (9th Cir. 1981).
The Ninth Circuit has also acknowledged that while the district court has the discretion to appoint counsel in civil actions such motions should only be granted in "exceptional circumstances." See: United States v. McQuade, 579 F.2d 1180, 1181 (9th Cir. 1978).
While some courts have held that there is no comprehensive definition of what "exceptional circumstances" are and that it will turn on the specific factors of the case, such as the type and complexities of the case and the ability of the individual bringing it, see: Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982), other courts have set forth what factors should be considered by the lower court in ruling on a motion to appoint counsel.
The Seventh Circuit has held that while no "right" exists to counsel in civil proceedings a poor persons access to the courts should not be turned into an exercise of futility. The factors to be considered by the lower court are: (1) Whether the merits of the indigents claim are colorable; (2) the ability of the indigent plaintiff to investigate crucial facts; (3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel; (4) the capability of the indigent litigant to present the case; and (5) the complexity of the legal issues raised by the complaint. See: Merritt v. Faulkner, 697 F.2d 761, 764 (7th Cir. 1983) and Maclin v. Freake, 650 F.2d 885, 887 (7th Cir. 1981).
While such motions are not granted too often in some districts others appear more willing to appoint counsel. In any case, it doesn't hurt to ask. If you lose in the district court and appeal you should renew your motion for appointment of counsel there. "Exceptional Circumstances" that weigh towards counsel being appointed that you should bring to the courts attention are being able in a control unit with no access to a law library, not being able to read or write, not being physically able to prepare pleadings and such due to injury or illness etc.
Even if counsel is not appointed by the court most state bar associations have referral programs where they will provide you with the names and addresses of lawyers that handle that type of case. You should also try contacting civil rights groups and legal aid organizations in your state, explain your problem and ask for help. In personal injury and medical cases and such looking through the yellow pages for attorneys who specialize in such cases and contacting them doesn't hurt. You should always make an attempt to get a trained lawyer to handle your case, if you write the bar association, individual attorneys, and petition the court for appointment of counsel the worst that can happen is they will say no and you won't be any worse off than when you started, while if you succeed you'll be in a much better position.
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