‘If you have to go to court, it’s too late’

There’s a great myth in this country that everyone is running around filing lawsuits left and right, and that people who experience discrimination at work, in school, in housing, and so forth can ‘just’ file a lawsuit to resolve the matter. The court system is held up as an opportunity for getting justice, accessible to all, so, really, what’s the problem? Indeed, there’s an idea that some people are out to sue everyone and anyone for whatever they can get.

A lawyer friend once told me, talking about discrimination and rights issues, ‘if you have to go to court, it’s too late,’ and she was right on the money. The court is a measure of last resort, and if you’ve hit court, it means that all of the failsafes have, well, failed. First, you’ve been discriminated against. Second, you brought it up and tried to get it resolved in a reasonable manner and it wasn’t dealt with appropriately. Third, you maybe asked for help from an elected representative or an advocate, or you made a stink somewhere, and the situation still didn’t get resolved. So you had to go to court.

Here’s a fun fact for you: Discrimination is a civil matter. In the adversarial legal system used in the United States, anyone can bring a civil matter to court if a judge feels the case is merited. But. And this is a big but, people! People have to be able to pay their own court costs. While legal representation will be provided to people who cannot afford a lawyer in a criminal case, in civil cases, people are on their own. If I’m accused of shooting you and I can’t pay for a lawyer, one will be appointed for me. If you discriminate against me and deny me a job because you know I’m disabled and I want to sue you, I have to do it on my own dime.

Lawyers are very, very expensive, and the meter starts running as soon as your first consultation is over and the attorney decides to take the case. Yes, there are free legal aid programmes providing representation to people who cannot afford it. Those programmes, however, cannot afford to reach everyone in their communities, let alone people in areas where such programmes don’t even exist. Some representation is better than no representation, to be sure, but it is not a solution, if you are talking about ways to make the court financially accessible to everyone, not just to people with money. I think those programs are great, I support donating to them, I like that a lot of law schools support them, but they are a stopgap.

Some lawyers will take cases on contingency, which means if they win, they will take some of the cash from the settlement. Not all attorneys will do this, and it’s generally only offered when a case has a strong chance of prevailing and a firm feels comfortable taking that financial risk. Some people may be confused about how contingencies work and can potentially be taken advantage of, because they can’t afford an attorney to review the contingency contract and provide advice and assistance.

There’s also the chance that, if you win, the other side will be ordered to pay your legal fees. This is not a guarantee and it depends on the kind of case and a lot of factors. And, guess what? The attorney isn’t going to sit around waiting to see if this is included in the damages! You still have to pay those fees, because lawyers have to eat like everyone else (it’s true, I’ve seen them do it!), and they cannot afford to take a case on the chance that their fees might be settled at the end if they win.

Lack of funds is a serious obstacle to accessing the legal system in the United States. Civil courts are absolutely open to all, but it’s all who can pay. If you are experiencing discrimination, there’s a strong chance you cannot pay, and that leaves you without much recourse when it comes to pursuing discrimination in court and trying to get a fair settlement.

There are other obstacles as well. People of uncertain immigration status may be afraid to draw attention to themselves by filing suits in court, or be unable to access the courts at all. For them, there is no justice; if a situation reaches the point where court is the only open, they’re already done, without a chance. Out of luck. This is one reason undocumented workers are exploited so extensively and aggressively, because employers are well aware they are safe from reporting, let alone going to court. Immigrant rights organisations are working to change this, but it is an uphill battle.

Going to court also requires energy and time. It can take months to move a case through the civil system, from the time of filing to actually getting on the docket and being heard. This may not be an option for someone struggling to survive, to work, to live. You don’t have time to meet endlessly with lawyers, to assist during the discovery process, to do all the little things that going to court entails. And the other side is well aware of this, and it is willing to wear you down and wait you out. It knows that if it waits long enough, hands in its pockets, eventually you will give up and walk away.

So no. Going to court is not actually a solution. Going to court is the end of the line, and the fact that discrimination cases continue to go to court means we have a lot of work to do, as a society; for all our claims of being post-isms, people are discriminated against in a variety of creative ways on a daily basis.