Mortimer v. Beverly Wilson
- Katherine Failla
- 1:15-cv-07186
- U.S. District Court · Southern District of New York
- 4
In Mortimer v. Wilson, Judge Failla granted Mortimer’s request for volunteer counsel for trial but denied fee-waiver status for any appeal.
Kim Mortimer, whose request for the court to seek volunteer counsel was granted for trial, and any volunteer attorney who might consider representing her.
What happened
In Mortimer v. Beverly Wilson, Kim Mortimer asked the court to seek a volunteer lawyer for her upcoming trial. The court had already approved her request to proceed without paying filing fees, and she said her financial situation had not changed.
The court found that Mortimer qualified financially and that the factors favored requesting counsel. Because the case was set for trial, the court said a lawyer would be important for presenting the case, examining witnesses, and helping achieve a fairer and quicker result.
Judge Katherine Polk Failla granted the request for the court to seek volunteer counsel for the upcoming trial. The court warned that no lawyer was guaranteed and that Mortimer might need to continue without a lawyer; it also denied her fee-waiver status for an appeal.
The detailed version
- Mortimer v. Beverly Wilson · No. 1:15-cv-07186
- Katherine Failla
- Jan. 5, 2021
Background
Kim Mortimer applied for the court to request counsel to represent her in this civil case. The court had previously granted her permission to proceed without paying filing fees, and Mortimer stated that her financial circumstances had not changed. The case had been set for trial.
Legal standard
Under 28 U.S.C. § 1915(e)(1), a court may request that a volunteer attorney represent a person who cannot afford counsel. In civil cases, the court is not required to provide a lawyer and cannot appoint or pay counsel under that statute. The court therefore must exercise its discretion carefully.
The court applied factors from Hodge v. Police Officers. After indigency is established, the court considers whether the claim appears likely to have substance and then considers matters such as the person’s ability to investigate and present the case, whether conflicting evidence will require cross-examination, the complexity of the legal issues, and whether counsel would help produce a fair result.
Court’s analysis
The court found that Mortimer was indigent. It also found that the factors favored requesting counsel. In particular, because the case was set for trial, counsel would be important to Mortimer’s ability to present her case and conduct cross-examination. The court concluded that representation would help sharpen the issues and shape examination, leading to a quicker and fairer result.
Ruling
The court granted Mortimer’s application for the court to request counsel for the upcoming trial. The court explained that it relies on volunteer attorneys, that there could be a lengthy delay before one volunteers, and that no attorney was guaranteed to take the case. Mortimer was told to be prepared to proceed without a lawyer. If an attorney volunteered, Mortimer could decide whether to retain that attorney.
The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal. The clerk was directed to mail Mortimer a copy of the order and terminate the pending motion.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.