Recognizing that low-income people cannot access justice if they are required to pay for it, Virginia law provides these people the right to sue and defend suit without paying costs and fees ( Virginia Code §17.1-606). However, the law offers no guidance on how to determine whether a person is sufficiently impoverished to qualify for the waiver of costs and fees. Across the state, legal aid attorneys and pro bono attorneys have had cases in which they had difficulty or were unsuccessful in getting fees waived for their clients even though their clients were poor enough to qualify for legal aid. In other parts of Virginia, judges routinely waive fees and costs for legal aid clients. And while there is currently no empirical evidence of this, we strongly suspect that the experience of pro se litigants reflects that of legal aid clients. Justice is thus being distributed very unevenly throughout the state.
We support legislation filed by Senator Jill Vogel, SB 1305, and Delegate Christ Collins, HB 2328, which will help set forth guidelines a judge must use to determine indigence but allows the judge to maintain some discretion. The guidelines will be used to determine whether a person is eligible for a waiver of costs and fees in a civil case by using the same guidelines that already exist for criminal cases.
By providing clear guidance to all judges on who is eligible for a waiver of costs and fees in a civil case, the proposed statute will help ensure that all low-income people bringing or defending a civil case in Virginia have equal access to justice regardless of where in Virginia their case is tried.
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