Re-Arming the Private Attorney General

Guest Blogger

For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

Nancy Leong 

Joanna Schwartz's new book Shielded: How the Police Became Untouchable is a triumphant capstone to an edifice built of many years of painstaking work. Schwartz's body of research is remarkable: few scholars have had so much influence on the field of civil rights litigation under 42 U.S.C. § 1983. Her empirical research examining basic assumptions of constitutional litigation—does the qualified immunity defense actually shield government officers from the burdens of litigation? do government officers learn from the articulation of law?—has tested and in some cases conclusively demonstrated that foundational assumptions of constitutional litigation are wrong. Shielded draws together many of the strands of this remarkable body of work and is a gift to scholars, litigators, and the interested public alike.

In my contribution to this symposium, I would like to linger on Chapter 2 (pp. 17-32), which discusses civil rights lawyers. I will focus on issues related to availability of counsel, or, more accurately, lack thereof—what in other work Schwartz has properly called “the biggest threat to civil rights enforcement.”

Representing civil rights plaintiffs has never been an easy or comfortable life for attorneys, but—as Schwartz lucidly explains—over the past several decades the Supreme Court has made things gradually more difficult. In the 1960s and 1970s, plaintiffs’ attorneys and other stakeholders increasingly aired concerns that contingency fee arrangements did not give lawyers enough of an incentive to represent civil rights plaintiffs. This culminated in 1976 with Congress passing a federal statute, 42 U.S.C. § 1988, that provides costs and fees for prevailing plaintiffs in section 1983 cases and certain other types of civil rights cases. Yet just a decade later, the Supreme Court began narrowing the reach of section 1988, first holding that settlements contingent on fee waivers are valid, and then concluding that to qualify as a “prevailing party” plaintiffs must win a judgment or settlement, with the result that litigation that merely catalyzes change is not sufficient to qualify for fees. Even when attorneys’ fees are available, courts tend to view fee requests with a skeptical eye, often reducing fee awards on the basis of a conclusion that those awards do not represent a reasonable number of hours or a reasonable hourly rate.

The effect of these challenges on civil rights litigation is profound. While “[f]inding a lawyer is, and has always been, one of the most challenging first steps” in civil rights litigation (p. 21), Schwartz concludes that plaintiffs face a greater uphill battle now than ever before. She write: “[t]he limits on attorneys’ fees in section 1983 cases not only discourage lawyers from taking risky or low damages cases. They also may lead lawyers to stop bringing civil rights cases altogether.” Given that “[m]ost lawyers who bring civil rights cases are jacks of many trades whose case dockets include personal injury, medical malpractice, or criminal defense cases,” lawyers have significant incentives simply to rely on these other cases to make a living. Based on interviews with dozens of civil rights lawyers (also discussed in this article), Schwartz explains: 

“In fact, many lawyers I interviewed brought their first section 1983 case without appreciating its financial risks. Someone came into their office with an infuriating story of unjust treatment at the hands of government officials, and they accepted that first case despite not really knowing how to litigate civil rights cases at all. These lawyers often reported expecting that bringing a civil rights case would be like any other personal injury case—comparable to a suit brought by a person who had been hit by a car. But they came to realize, quite quickly, that the risks are greater and the rewards are smaller in civil rights cases: it is more difficult to get information from the government, more difficult to prove a legal violation and overcome qualified immunity, more difficult to get to a jury, and more difficult to win.” (p. 28). 

In sum, lawyers have many reasons not to take on civil rights cases at all, and to be exceptionally picky with those that they do take. One lawyer regretfully described the calculus as: “Is there blood on the street? Because if there isn’t, why are we doing it?” (p. 27). The lack of compensation has resulted in what Pam Karlan calls the “disarming” of the private attorney general.

Schwartz’s research demonstrates that skilled, experienced civil rights lawyers often hesitate to take section 1983 cases precisely because they know from experience how hard they are to win. We might ask, therefore, who does end up taking civil rights cases? And how do those lawyers fare in litigation? Schwartz’s research suggests that many section 1983 cases are litigated either pro se, or by lawyers who are too inexperienced to realize how difficult those will be.

My own recent research has uncovered some evidence that would be consistent with the ideas that Schwartz has advanced. For example, in work examining recent civil rights cases brought against a municipality (see here for a draft), my coauthors and I found that in 31% of cases the plaintiff proceeded pro se. Among the other 69%, many lawyers were unfamiliar with even the basic architecture of constitutional litigation. For example, some complaints alleged municipal liability on the basis of “respondeat superior” or “vicarious liability.” Similarly, many complaints did not give any indication that there are different theories of municipal liability, and simply alleged liability on the basis of a “municipal policy or custom.”

In our research, my coauthors and I documented widespread evidence of what we termed pleading failures, or omissions of basic doctrinal elements in complaints. We read and coded the complaints for every federal appellate case that adjudicated an issue of municipal liability in 2019. Troublingly, we discovered that over half of complaints filed by represented parties failed even to say the elements of any theory of municipal liability—let alone to allege those elements at the level of plausibility necessary to meet the standard articulated in Twombly and Iqbal. To our surprise, plaintiffs represented by attorneys did not always fare much better than those proceeding proceed on these metrics. For example, 73% of plaintiffs proceeding pro se failed to state the elements of any theory of municipal liability, while the same was true of 67% of plaintiffs represented by solo practitioners.

My coauthors and I also took a look at whether civil rights expertise might correlate with complaint quality. In our data set, about 30% of lawyers did not claim any civil rights expertise on their own website or in any other public forum. These lawyers’ specialties included such diverse areas as aviation law, bankruptcy, and employee benefits, as well as more predictable specialties such as criminal law and personal injury. Self-reported expertise bore a relationship to at least one measure of attorney competence: attorneys with civil rights expertise were substantially more likely to successfully say the elements of at least one theory of municipal liability in the complaint (57% to 36%).

            The research presented in Shielded, as well as my own work, suggests that a significant amount of civil rights litigation is taking place either pro se or at the hands of lawyers who are not very familiar with the maze of section 1983. If, indeed, it is true that the lawyers litigating section 1983 cases are both fewer and less skilled, we might make a number of troubling conclusions. Fewer lawyers mean that more civil rights plaintiffs will proceed pro se, while fewer skilled lawyers mean that more civil rights plaintiffs will probably lose. But there are also consequences beyond specific cases.

Perhaps one of the most troubling aspects of the dynamic that Schwartz’s work identifies lies in the law articulation function of civil rights litigation. This function is critical to both qualified immunity (because the law needs to be clearly established for a plaintiff to overcome the defense) and municipal liability (because establishing a policy or custom sometimes requires proving a pattern of unconstitutional conduct). If there is a shortage of skilled civil rights lawyers litigating civil rights cases, then the cases that are litigated may be more likely to result in either no precedent or—perhaps worse—bad precedent that will bind future litigants as well.

As a result, among the most welcome of Schwartz's proposed interventions relate to access to counsel (Chapter 13). Both in Shielded and in other work, Schwartz has noted that the Supreme Court could remedy barriers to relief by allowing attorneys to recover reasonable fees even if a case settles before trial. Schwartz also praises proposed state laws that provide attorneys’ fees for lawyers bringing state law constitutional claims, such as one in Colorado that allows attorneys who bring civil rights cases to recover attorneys’ fees. Such measures remove a disincentive for accomplished civil rights attorneys to represent plaintiffs in civil rights cases.

There are many reasons to praise Shielded, but one is the attention that it rightly places on civil rights attorneys. With appropriate interventions by judges and legislators, we could make strides towards re-arming the private attorney general.

 Nancy Leong is Associate Dean for Faculty Scholarship at the University of Denver Sturm College of Law. Her email is nleong@law.du.edu.