By Jennifer Moore, Family Law Attorney

The Minnesota Supreme Court has agreed to hear a case that could have major implications for poor parents who are sued in child protection cases (See The Star Tribune). The question, interestingly enough, isn’t whether parents parents who can’t afford an attorney in a child protection case are entitled to representation. They are. Instead, the question is whether the Court has the authority to require a county to pay for a private attorney or whether representation must be by a public defender. Public defenders are paid for out of the judiciary budget. In the case to be decided by the state supreme court, a Rice County judge appointed a private attorney to represent the indigent parents in a child protection case, ordering the county to pay for it out of their budget.

Private Attorney v. Public Defender

I cannot say enough about the quality of public defenders we have here in Minnesota. However, it is likely that most people would choose a private attorney over a public defender. I did read an interesting article in The Concurring Opinion that theorized that the experience obtained by public defenders make them a better choice for most defendants than a private lawyer. Another problem is that the pay rate for private attorneys performing public defender services can be very low. In Wisconsin, for example, a private attorney who takes a public defender appointment will earn $40 an hour, when the average hourly pay for attorneys in Wisconsin is $188 an hour. (From All Business.) In fact, that $40 an hour is only $5 an hour higher than was paid for public defender appointments in 1978, when the public defender statute was passed.

Public Defender Overload

With the current economic situation, there is a serious problem with overload in the public defender’s office, especially in out-state Minnesota. (See The LaCrosse Tribune and The Star Tribune). Hiring private attorneys to help with the backlog in time-sensitive child protection cases must be a serious temptation to judges balancing their own overcrowded dockets against the welfare of abused and neglected children.

Of course, if the Courts expect private attorneys to accept appointments to represent indigent clients, there needs to be a mechanism to pay the attorney for their time. The attorney who was appointed in the Rice County case has not yet been paid.

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By Thomas Moore, Office Manager

Minnesota Judge Jay Quam speaks frankly, and to those of us who are not attorneys in the article: Judging Without Lawyers:  Not Knowing Makes for Nightmares. I recommend you read Judge Quam’s article in full, but I’ve included excerpts below.

Judge Quam: “Judges want more than anything to make the right decision in the case before them but can’t be comfortable with their decision unless they can be confident they have all relevant information.  Here’s where lawyers’ contribution to justice proves invaluable…

“Every judge want to do the right thing… the law is permissive enough for the judge to rule for either party depending on what the facts are. So, in the very large majority of cases, the facts are what the judge needs to guide him or her to the right decision.”

What Attorneys Do For You

Judge Quam points out that your lawyer provides him, the judge, with two essential functions.  Attorneys are “professional story gatherers, and professional story tellers.”  The judge is more comfortable knowing the underlying facts have been fully developed by trained professionals.  This is the story gathering function. He continues:

“The story-telling part is equally valuable. For starters, the lawyers know the important courtroom rules that the clients don’t know, but which are critical to the judge’s decision. The lawyers’ knowledge of the rules of the courtroom keeps the proceeding from becoming akin to an episode of ‘“Jerry Springer.’ The list of critical things that lawyers know, but others don’t, is a really long list…”  It includes:

  • The law;
  • The rules of evidence;
  • The protocol for presenting evidence;
  • When to speak;
  • When not to speak;
  • What is relevant, and what is not; and
  • What is persuasive, and what is not.

“…With lawyers involved, the judge knows that trained professionals have sifted through the evidence and presented the judge only that evidence which is truly relevant to the dispute.”

What Happens without an Attorney?

You may decide to represent yourself in court.  Here’s what the Judge has to say.  “With all that lawyers do, you may, very appropriately, ask: How in the world does our adversary system function when there are not trained advocates in it?

“The answer, I have found, is ‘not very well.’ Given the complexities of our court processes, as well as the difficult skill of advocating effectively for anything that matters, it is not hard to understand why…”

What happens is that, without an attorney to represent you, the judge often sees a number of things that are needed to be done but that he or she, whether constrained by time or by ethics, cannot do.  The judge cannot:

  • Educate you about the law
  • Educate you about procedures
  • Teach you how to present yourself properly in court
  • Investigate the case

All these functions, however, are precisely what you hire an attorney or lawyer to do.