V.                     Getting to Court

1.         Anyone can technically get their case up to the highest federal courts, but in truth, the Supreme Court rejects over 96% of the cases it sees, and the costs of getting a case up is huge, with all the fees that must be paid, plus, settling time is often long.

2.         The cost can be cut, though, by filing a case in forma pauperis (that is, appearing as a pauper and having the case heard for free), or, if a poor person in a criminal case can’t afford a lawyer, the federal gov’t will give him one for free, or, if it’s not a criminal case, special interest groups might give a lawyer.

                                                                i.      Special interest groups often do more than just provide an attorney, they take up cases for people and support them all the way through!

3.         In Europe, a person who sues another and loses must pay the fees of both people, but in the U.S., each person pays his own fees; it’s gotten easier, though, to get the other person to pay via fee shifting, where a plaintiff can get the defendant to pay for its lawyer fees, etc… in certain kinds of cases.

                                                                i.      Usually, the fee-paying loser is usually a corporation or the fed gov’t, which can afford to pay.

4.         To sue, a person must have standing, a concept which prevents frivolous, stupid cases:

                                                                i.      There has to be a real controversy (not just a friendly bet between two people, etc…).

                                                               ii.      It must be shown that the person suing was actually harmed by a practice.

                                                              iii.      Just because one pays taxes doesn’t mean he can challenge the constitutionality of something.

5.         To sue the gov’t, one must have its permission (i.e. if the army tests a cannon and kills one’s cow, he can’t sue the gov’t unless the gov’t says OK) ; this is called the doctrine of sovereign immunity.

6.         Sometimes, a person can benefit from a case decision without actually having gone to court due to the fact that it was a class-action suit—it was filed not just for one person but on behalf of a whole group or race of people (i.e. Brown v. Board of Education, which led to desegregation for all blacks).

                                                                i.      Since 1960, the gov’t has made class-action lawsuits more financially rewarding for lawyers, since millions of dollars can be at stake if the case is on behalf of enough people.

                                                               ii.      The Supreme Court then, in 1974, tried to limit such cases (because there was a mushrooming of them) by saying that any suit seeking monetary damages must have every member of the suit identified (that can be expensive), and thus, the number of class-action suits has drop.

7.         In general, one needs standing and resources to get a case to federal court, but recent changes have made it easier to get both.