One of the most powerful ways the 1% corrupt our system - even without necessarily meaning to - is that they have attorneys on retainer who are constantly serving their legal interests behind the scenes without their personal involvement. Now, this makes perfect sense for people or institutions subject to a lot of litigation: Corporations, wealthy individuals, and others whose activities involve a lot of complicated entanglements need this level of support to protect themselves from others with the same or greater resources.
But when an average or underprivileged citizen takes on one of these people or organizations, they are at a severe disadvantage - they are not, in practice, given equal benefit of law, because they are not receiving perpetual, unconditional legal service the way their opponents are via retainer agreements. Rather, they receive only intermittent service based on an attorney's assessment of how much they can profit from taking up a case, or else occasional service based on a temporary engagement. The attorneys of corporations and wealthy individuals, however, provide dogged, perpetual service regardless of the legal merits of their client's position, and sue or fight suit at the drop of a hat on the mere off-chance they might win or reduce the damage of losing. Perhaps it's time for everyone else to have this level of legal service.
Even when the amount of resources at the disposal of disputants is equal - i.e., one attorney per side, with the same number of paralegal assistants - few would argue that the depth, quality, and reliability of the work is even close between an attorney on retainer and one engaged temporarily for a specific matter or whose involvement is entirely opportunistic. One is intimately familiar with the client's legal situation through ongoing involvement in their affairs, while the other is at best a generic advocate who applies standardized formulas to immediate matters. One provides continuous guidance in ways that allow clients to proactively avoid or mitigate problems, protect themselves against exposure, and (more insidiously) seek out exploitable weaknesses in others, while the other is a last-resort hired gun who doesn't have the time to offer that kind of support.
As a result, the wealthy are protected day and night by an elaborate machinery of autonomous legal representation both defending and attacking in perpetuity without the need for their clients to make any additional effort, while everyone else is essentially defenseless until the day they're smacked in the face by an attack on their rights. Then they have to engage an attorney with likely no previous experience with their situation to represent them in addition to umpteen other clients simultaneously, scrape up the cash to afford their fees, or else find an attorney willing to represent them pro bono as part of a statistical projection of likely settlements. This is a very bad situation, even when a poor plaintiff comes away with a substantial settlement.
In truth, expedient settlements based on an inequitable distribution of representation are a free-rider problem, because they may benefit the defendant's cost/benefit projections and give the individual plaintiff a payday, but may come at the overall expense of failing to hold the defendant accountable. For example, if a company makes the decision that it is cheaper to kill x number of people every year and pay the expected settlement in each case than to take reasonable precautions for the sake of human life, then a legal situation where plaintiffs have little choice but to accept the formula-based settlement actually encourages the problematic behavior.
Since these settlements comprise the bulk of how civil attorneys operating on contingency make money, they have an overwhelming interest in promoting them. And since the resources of plaintiffs who have engaged temporary representation are limited, they too often have little choice but to settle, even if they would rather not. Thus, for most people, fighting the rich in court does not actually give them the ability to defend their rights so much as merely supplicate for a share of a preexisting bribery fund that has already been worked into the defendant's financial calculations by an equally dedicated army of accountants. And God help any ordinary citizen if they are on the receiving end of a lawsuit by a powerful plaintiff - as cases involving trivial copyright infringement have demonstrated, resulting in six-figure judgments against average people for sharing a handful of songs.
Basically, the court system does not function as intended, either in civil or criminal matters - the wealthy have profound immunities to both due to the constancy of their representation, so we have two choices to address that: Either we prevent them from having that kind of representation, or we make it universally available as an automatic and perpetual public service so that people's rights are equally represented. As the 1% are legendary in their ability to circumvent any attempt to limit their activities, I think making their legal privileges universal would be far more likely to succeed.
What exactly this would entail is pure speculation on my part, and hardly qualified - I am not a legal professional, and lack even the most basic training in the field. But hopefully I can offer some reasonable insights none the same, based on a passing acquaintance with the law via infrequent contact with the court system. First, put every attorney admitted to the bar into a lottery pool (see update below for clarification), and assign them randomly to represent their proportional share of the citizenry in their local area. Their work on behalf of these citizens needn't be for free any more than a doctor who serves Medicare patients, but it would also not be at the rate they set for their paying clients.
It could still be worthwhile for attorneys since most people, at most times, don't require any kind of legal work on their behalf, but it would nonetheless benefit those they're assigned to represent due to all the background work that could otherwise bite an ordinary person in the ass if neglected. And let's not forget the occasional situation where a person is forced to sue, or is sued by, a rich individual or corporation - exactly the circumstance where this level of permanent service would shine: A circumstance where accepting settlements or paying damages dictated by a powerful opponent would not be necessary, but simply one available option that might be more closely influenced by the actual merits of a case rather than the comparative power of the litigants.
Now, obviously citizens could opt out of being assigned an attorney, or could ask to be assigned a different one, or could privately hire a different one for any given matter if they prefer, but there would always be the option available to have retainer-level representation as a public service. That's what positive-liberty concepts like those demonstrated in Medicare and Social Security are all about - giving people options through a strong baseline of available support services. So legal aid should not just be some pathetic, underfunded local institution where a handful of harried, conscientious attorneys getting paid peanuts try to somehow defend hundreds of indigent criminal defendants simultaneously - it should encompass the entire body of attorneys in this country in a general public service that provides constant, quality representation to every citizen in every venue (both civil and criminal) in which they need it. It still wouldn't be perfect, and even with decent oversight, you would still have attorneys who push off their duties on to paralegal secretaries while reserving their talent for the paying customers, but I think the situation would be vastly improved for most people when they find themselves in either civil or criminal court.
How would I pay for it? Well, obviously, I would raise taxes on corporations and rich people, both of which conveniently intersect with much of the legal community, so it would not actually cost as much as it appears up front. And furthermore, we wouldn't even have budget deficits if we had halfway sane tax policies, so asking how one pays for something clearly warranted is one of those irrational questions based entirely on accepting delusional supply-side narratives. The way to pay for a public good is through taxes, so when you need more money for a public good, you raise taxes. And when it would be harmful to raise taxes further on a given sector of the population - e.g., the middle-class - you raise it on those who can afford the increase, the rich and the corporations they own or serve.
Thu Jan 12, 2012 at 10:52 PM PT: A comment below has brought to my attention that the legal profession is highly specialized, and thus a general lottery would not be effective. This is a good point, so we can amend the idea to be that the lottery is for a "general purpose" attorney (surely any admitted to the bar are capable of rendering such service) who can then refer their clients to specialists on an equally-covered basis. I don't want to give the impression I'm overly applying a medical analogy here, because I understand the fields are so radically different, but I think it can apply enough to make a system like this work.
9:30 AM PT: Ugh. I've now been accused of advocating "slavery" for my lottery concept. When proposing service obligations as a licensing standard in a highly lucrative, voluntary profession, I don't see how the word "slavery" would come up through any rational thought process. It reminds me a bit of how Republicans react to the concept of taxing the rich. Seemingly the more privileged a class of people, and more they actually owe society, the more horrifying they find the idea of being held to any kind of public obligation.
9:34 AM PT: And now I'm a "Communist." This is getting downright entertaining.