High Legal Costs Force Most Civil Defendants to Make Do Without Lawyers

Authorities believe the trend has grown even worse since last statistics were published.

Eight of 10 defendants in civil suits filed in magistrate's courts appear without legal representation, according to a report released recently by justice system officials.

The study listed financial difficulties as the most common reason for an individual failing to put up a legal defense.

For years, the court system did not collect data on legal representation rates at all. But following repeated requests from Tel Aviv University law professor Ela Alon, court authorities ultimately conducted a comprehensive examination of data collected during 2007 (data from more recent years is not available ).

Authorities said that despite the dire picture presented by the report, they fear the trend has grown even worse since 2007.

The situation in district courts, which hear larger suits, is also grim, the report found: More than a quarter of defendants arrive without a lawyer, compared with just 3 percent of plaintiffs. But in the magistrate's courts, fully 78 percent of defendants appear without a legal defense, compared to just 2 percent of plaintiffs.

"We've become a court system for the rich alone," said Shahar Wellner, an attorney who co-chairs Schar Mitzvah, the Israel Bar Association's pro bono program.

Representation, he said, "has been recognized by legal rulings as a fundamental right; in effect, there is no way to have a fair trial without it. The onus is on the legal system to ensure that every litigant has representation, even if he or she doesn't have the financial ability to pay for it. An individual's success in legal proceedings depends on presenting a defense, and that depends on money. A person who is not represented loses his or her right to have justice served."

More than 3,000 lawyers currently participate in the pro bono project.

Wellner's sentiments echo those of retired Supreme Court justice Eliyahu Mazza, who wrote recently that "an unrepresented litigant is usually a losing litigant."

An arduous process

In criminal proceedings, the Public Defender's Office provides legal representation regardless of income. But in civil suits, litigants are eligible for representation by the Justice Ministry's department for legal assistance only if they undergo a complex scrutiny of their finances.

The department, however, only has offices in the country's four largest cities, and its funding is continually being cut. Moreover, meager advertising means much of the public is unaware of its existence.

The court system's figures count only those individuals who were unable to obtain legal representation from the state or from Schar Mitzvah. That means the number of people who could not afford to hire a lawyer is much higher.

"The data are especially important in light of Israel's growing litigiousness and the proliferation of lawyers," said Israel Bar Association head Yori Geiron.

A year ago, Geiron proposed an amendment to the 1961 Bar Association Law under which bar members would be required to provide legal assistance to the underprivileged.

"Legal defense allows equal representation before the law," Geiron said.

Keren Tal, director of Schar Mitzvah, said that over the past few months, her organization has seen increased interest from law firms both large and small nationwide.

"Maybe it's because of the trend toward social responsibility that's gaining steam in Israel, and the rest of the Western world, that this encouraging development is happening," she said. "As someone who lived for several years in the United States, I can say we have a ways to go. But this is certainly a significant step in lawyers' social involvement."