Liverpool v. Davis
- Katherine Failla
- 1:17-cv-03875
- U.S. District Court · Southern District of New York
- 4
In Liverpool v. Davis, Judge Failla granted Liverpool’s request for volunteer counsel because the case was headed to trial.
The ruling directly affects Anton F. Liverpool by allowing the court to seek a volunteer lawyer, but it does not guarantee that an attorney will accept the representation or decide the underlying claims.
What happened
In Liverpool v. Davis, Anton F. Liverpool asked the court to request a volunteer lawyer to represent Liverpool in the civil case. The court had previously allowed Liverpool to proceed without paying filing fees and found that Liverpool remained unable to afford counsel.
The court applied factors concerning the apparent strength of the case, Liverpool’s ability to investigate and present evidence, cross-examination, and the complexity of the case. Because the case had been set for trial, the court found that counsel would be important to presenting the case and examining witnesses.
Judge Katherine Polk Failla granted the application, but explained that the court could only request a volunteer lawyer, could not pay one, and could not guarantee that an attorney would accept the case. The court also denied fee-free status for an appeal from the order.
The detailed version
- Liverpool v. Davis · No. 1:17-cv-03875
- Katherine Failla
- Jan. 29, 2021
Background
Anton F. Liverpool filed an application asking the court to request counsel under the federal statute allowing courts to seek volunteer lawyers for people unable to afford representation. The court had already granted Liverpool permission to proceed without paying filing fees. Liverpool stated that the financial circumstances supporting that permission had not changed, so the court found Liverpool financially unable to afford counsel.
Legal standard
In civil cases, a court is not required to provide a lawyer. Under 28 U.S.C. § 1915(e)(1), the court may request that an attorney volunteer to represent a person who cannot afford counsel. The court cannot appoint a lawyer or provide funds to pay one. The court must consider whether the claim appears likely to have substance and, if so, factors such as the person’s ability to investigate facts and present the case, whether conflicting evidence will require cross-examination, the complexity of the legal issues, and whether a lawyer would help produce a fair result.
Court’s analysis
The court found that these factors favored requesting counsel. In particular, the case had been set for trial. The court determined that a lawyer would be important to Liverpool’s ability to present the case and conduct cross-examination, and that representation could sharpen the issues and shape the examination of witnesses.
Ruling and effect
Judge Katherine Polk Failla granted Liverpool’s Application for the Court to Request Counsel. The order did not guarantee representation: volunteer lawyers might not be available, and any attorney who volunteered would contact Liverpool directly. The court stated that the case would continue at its normal pace and that Liverpool should be prepared to proceed without a lawyer. The court also certified that an appeal from the order would not be taken in good faith and denied permission to appeal without paying fees. The Clerk of Court was directed to mail Liverpool a copy of the order and terminate the motion at docket entry 112.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.