concurring.
Although I fully agree with the result reached by the majority and with the bulk of its reasoning, I do not agree with the majority that the district courts in these cases did not conclusively determine the *765appointment of counsel issue. The majority acknowledges the general principle that even if a district court has jurisdiction to alter a prior ruling, a district court nevertheless conclusively decides an issue so long as no further consideration of the issue is contemplated. See In re General Motors Corporation Engine Interchange Litigation, 594 F.2d 1106, 1118 (7th Cir.), cert. denied, 444 U.S. 870, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979); 15 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure § 3911 (1976 & Supp.1984). Since the district court orders in these cases meet this standard, I would hold that the orders conclusively decided the issue in question.
The majority creates a narrow exception to the general rule in situations involving denials of appointed counsel. Instead of presuming that a district court order, which on its face contemplates no further consideration of the appointment of counsel issue, conclusively disposes of that issue, the majority presumes that a district court order denying appointed counsel is tentative unless the district court says otherwise. In my view, creating such an exception is unnecessary because district courts are just as capable of drafting language demonstrating that a denial of appointed counsel is tentative as they are of drafting language indicating that a denial of appointed counsel is conclusive. Since the majority creates an unnecessary exception to the general rule that a district court conclusively decides an issue when the language of its order indicates that no further consideration of that issue is contemplated, I do not concur in Section I of the majority opinion. I join in the result reached by the majority and in the remainder of the majority opinion.
KRUPANSKY, Circuit Judge, dissenting, joined by GEORGE CLIFTON EDWARDS, Jr., KEITH and NATHANIEL R. JONES, Circuit Judges.For the reason that the majority decision pragmatically strips a victim of civil rights violations of effective legal representation, and is unsupported in logic, law, or equity, I must respectfully dissent.
Decisions denying the appointment of legal counsel for victims of civil rights violations at the inception of an action must be immediately appealable if the enabling legislation is to be meaningful and effective.
The majority opinion is plumbed upon the unsupported conclusory hypothesis that dispositions of motions to appoint counsel are “inherently tentative” since trial judges may reconsider their ruling as the pro se complainant develops the evidence during trial.1
The majority’s observation that the decision to deny the appointment of legal counsel for victims of civil rights violations is subject to a trial judge’s change of heart or mind is irrefutably correct. It is this very truism which prompted this controversy; had the initial decision to deny legal counsel assumed the classical status of a final disposition the issue of interlocutory review would be non-existent. Because the precedent articulated by Cohen subsumes the premise that a trial court may at any time, even after judgment, reconsider its decision, it is reasonable to conclude that the Supreme Court’s decision in Cohen contemplated a far more subtle evaluation than the simplistic postulation of the majority opinion.
In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the issue joined was whether a decision denying the defendant’s motion to require plaintiff to post bond in a stockholder’s derivative action was a final order. Although the Court stated that trial court decisions which were “tentative”, “open, unfinished or inconclusive” were not appealable as of right, 337 U.S. at 546, 69 S.Ct. at 1225-1226, the decision denying defendant’s motion requiring the plaintiff *766to immediately post bond was appealable, because “the District Court’s action upon this application was concluded and closed and its decision final in that sense before the appeal was taken”. Id. (emphasis added).
The majority opinion correctly concludes and the parties to this litigation concede that, to prevail, the appellants must qualify the decision to deny appointment of legal counsel to victims of civil rights violations within the pronouncements of Cohen as a decision that falls into “that small class which finally determines claims of right separable from and collateral to, rights asserted in the action too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated”. In construing the language of 28 U.S.C. § 1291, the Cohen court stated that “[t]he court has long given this provision of the statute this [a] practical rather than a technical construction”.
The Supreme Court in Coopers & Lybrand v. Livesay, 437 U.S. 463, 470-477, 98 S.Ct. 2454, 2458-2459, 57 L.Ed.2d 351 (1978) distilled the definitions of the collateral order doctrine initially articulated in Cohen when it restated that to qualify as final, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. Accordingly, it is against the criteria defined in Cohen that the decisions here in issue must be evaluated. Conspicuously ignoring the criteria against which a “final decision” must be measured, the majority opinion is anchored upon the tenuous hypothecation “that orders denying appointment of counsel should be presumed tentative”, because, the majority conjectures, “these motions are sometimes made before filing of a complaint, ... and more frequently are made with the filing of a pro se complaint”. A review of the teachings of Cohen and its progeny as applied herein fail to support the majority’s presumption because no factor necessary for the decision to appoint counsel requires an insight into the merits of the plaintiff’s underlying cause of action beyond those which are available to the court at the time of the request. Jenkins v. Chemical Bank, 721 F.2d 876, 880 (2d Cir.1983) (“the district court should exercise its discretion by examining the record at the time of appellant’s pre-trial requests for counsel. The qúestion of appointment of an attorney ,is a preliminary inquiry and should not be based upon the evidence adduced at trial”).
Addressing, in the first instance, the criterion of “conclusiveness” of a disputed issue, my attention is directed to the Supreme Court's application of Cohen in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), to the denial of a defendant’s motion to disqualify an adversary’s legal counsel of choice. Therein, the seven-member majority observed that the “conclusiveness” test was satisfied “because the only issue is whether challenged counsel will be permitted to continue his representation”. 449 U.S. at 375-76, 101 S.Ct. at 674. Certainly the majority cannot seriously argue that a decision denying appointment of counsel to a civil rights plaintiff is any less conclusive than one denying a motion to disdquality an adversary’s counsel of choice.
Proceeding to the determination of the second criterion of Cohen, namely, whether the denial of legal counsel to victims of civil rights violations is “separable from, and collateral to, rights asserted in the action”, I would apply not the unsupported presumption of the majority but rather the analysis of the Cohen doctrine. 337 U.S. at 546, 69 S.Ct. at 1225-1226. The general subject of the litigation underlying this appellate review is the alleged violation of civil rights, i.e., employment discrimination because of race in two instances, employment discrimination because of national origin in one instance and, lastly, a prisoner’s civil rights action. It is conceded by the parties and the majority opinion recognizes that the appointment of legal counsel for victims of civil rights violations is a preliminary matter necessitating the trial court's inquiry into the plaintiff’s financial re*767sources, his efforts to obtain legal counsel, and the facial merits of the plaintiff’s cause of action.
Patently, the Court’s inquiry into the plaintiff’s financial resources and his efforts to obtain legal counsel are inquiries that may be considered independently from the merits of the controversy without becoming “enmeshed”. The majority does not contend to the contrary. The criterion which causes the majority of my colleagues some consternation is whether the plaintiff’s underlying cause of action is meritorious. Disposition of this issue requires only that the plaintiff’s claim has some merit, a showing satisfied by an examination of the plaintiff’s complaint to determine if it properly states a facially nonfrivolous cause of action. This initial inquiry is not of such scope or magnitude as to require the court to become “enmeshed” in a disposition of the merits of the plaintiff’s underlying cause of action. See Poindexter v. F.B.I., 737 F.2d 1173, 1187 (D.C.Cir.1984); Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1005 (8th Cir.1984); Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301, 1308 (9th Cir.1981).2
To summarize, the resolution of a motion to appoint counsel involves a preliminary matter, i.e. the conclusive determination as to how the trial shall proceed on the merits, 1. e. with or without counsel. The issue on its face is “separate from, and collateral to, rights asserted in the action”. The resolution concerning the evaluation of merits of the plaintiff’s cause of action involves a minimal and incidental inquiry by the Court which in no way enmeshes it in the underlying cause of action itself and the decision to appoint counsel is so mutually independent from the merits of the plaintiffs underlying cause of action and of such critical importance to the conduct of the trial that appellate consideration cannot be deferred to the conclusion of the trial of the case on its merits without irreparable prejudice to the plaintiff.
The majority opinion misconstrues the argument concerning the impact of the congressional intent as reflected by the legislative history of Title VII on decisions to appoint counsel with the casual observation “that if Congress had intended to make these orders immediately appealable, it would have done so”. The significance of the congressional intent attaches not to the immediate appealability of a decision denying the appointment of counsel, but rather to the dictates of Cohen criterion that the decision is “too important to be denied review ... until the whole case is adjudicated”. Cohen, 337 U.S. at 546, 69 S.Ct. at 1226. The promulgation of 42 U.S.C. § 2000e-5(f)(l)(B) and § 2000e-5(k) reflected the deep concern of Congress for the financially inadequate and legally unsophisticated civil rights plaintiff, pitted against his highly trained and skilled legal adversary in an arena of specialized knowledge and technical complexity, by placing emphasis upon the importance of professional legal representation in civil rights cases and by providing for the appointment of counsel. The issue of the judicial implementation of the congressional mandate *768and its immediate appealability was left undisturbed within the pronouncement of the Supreme Court in Cohen and its progeny.
In approaching a consideration of the final inquiry mandated by the Cohen trilogy, I am once again mindful of the Court’s admonition to accord its rule a “practical rather than technical construction”.
In deliberating the review of an interlocutory decision denying appointment of counsel on an appeal from a final judgment on the merits of a case in a practical rather than technical sense, it is apparent that Cohen and its progeny demand something more than merely a procedurally available appeal. Those decisions mandate a formulation of appealability that emphasizes and insures an effective and timely review, not one to be undertaken at some point distant in time that will be too late to meaningfully review the decision denying appointment of counsel and prevent the irreparable loss of the rights conferred by the statute.
At the expense of being repetitious, it should be emphasized that the sensitivity of the congressional conscience to protect civil rights and the importance it placed upon the implementation of the practices and procedures necessary to guard against infringements of these constitutionally protected entitlements is mirrored in the promulgation of legislative enactments designed to insure the appointment of legal counsel for indigent victims. 42 U.S.C. § 2000e-5(f)(l)(B), 28 U.S.C. § 1915(d).3
A denial of an indigent’s right to professional legal representation through timely appointment of legal counsel in advance of the trial of his cause on its merits asserted under legislation which both controls the substance of the litigation and specifically provides for such legal assistance to the indigent without affording an immediate appeal from that decision if it is otherwise qualified under the tenets of Cohen and to intentionally compel such a plaintiff, incapable of prosecuting his claim, to proceed pro se to ineptly and in ignorance expose his case to the deft and merciless scalpel of a highly trained, and experienced defense counsel for methodical dissection and ultimate destruction and to further aggravate this scenario at the appellate level by again pitting the identical ignorance and ineptitude against professionalism and skill is a patent denial of the victimized individual’s constitutionally guaranteed right of access to the courts to vindicate a constitutionally or congressionally created right. It was to precisely guarantee this effective access to the courts that Congress mandated the appointment of counsel for pro se litigants.
The majority would erroneously equate effective unreviewability with jurisdictional unreviewability. The distinction between Cohen reviewability and that proposed by my colleagues was aptly stated in Robbins v. Maggio, 750 F.2d 405, at 413 (5th Cir.1985), wherein the court commented:
*769[I]t is technically true ... that a litigant denied appointment of counsel may proceed pro se....., it is the likelihood that a litigant will not be able effectively to prosecute his claim or to appeal that determines the reviewability of that claim rather than the theoretical existence of the right to proceed with a claim.
In Bradshaw v. Zoological Society v. San Diego, 662 F.2d 1301, 1311-1318 (9th Cir.1981), the court exhaustively explored the issue of effective pro se representation which analysis was conveniently avoided by the majority herein. That evaluation demonstrated that delayed appeals realistically and practically deny effective review and result in a highly prejudicial impact upon the important constitutional and statutory rights involved.4
Thus, a decision to deny counsel for a pro se civil rights litigant is the denial of an “asserted right, the legal and practical value of which would be destroyed if it were not vindicated before trial”. Firestone, 449 U.S. at 377, 101 S.Ct. at 675 (quoting United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978)). See Robbins v. Maggio, 750 F.2d at 413.
The majority attempts to discredit the appellants arguments in support of interlocutory appeal by citing to the pronouncements of Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) as authority for its conclusion that a decision denying appointment of counsel is effectively reviewable on appeal from a final judgment on the merits of the cause. At the outset, it should be noted that the cases factually common to Flanagan do not address the constitutional infringement of access to the courts by refusing legal representation to pro se civil rights plaintiffs. To the contrary, in Flanagan and factually related cases parties adversely affected by a court’s disqualification order were represented throughout the respective proceedings by effective legal counsel albeit not of the party’s choice.
In Flanagan, the Supreme Court decided that orders granting motions to disqualify *770counsel were not appealable in criminal cases. The court reasoned that the constitutional right to a speedy trial had to be factored into the analysis and demanded a confined application of the Cohen collateral order doctrine in the criminal context. 104 S.Ct. at 1055. The court concluded that an order which disqualified counsel of choice in a criminal case was not sufficiently distinct from the trial on the merits of the criminal prosecution to justify an immediate review because prejudice to a criminal defendant is not presumed in the consideration of a disqualification order as it would be presumed if a criminal defendant was denied his right to appointed legal counsel. The court concluded that a criminal defendant’s constitutional rights were not violated unless the disqualification order prejudiced his defense. The court went on to reason that prejudice, if any resulted, could not be meaningfully perceived until after the conclusion of the trial; consequently, the disqualification order did not constitute a separate and collateral issue which was immediately appealable. 104 S.Ct. at 1056.
It is apparent from the Court’s discussion that the application of Cohen to criminal cases differs significantly from its application in civil litigation. The court’s precise language in Flanagan, 104 S.Ct. at 1054, concisely stated:
Because of the compelling interest in prompt trials, the Court has interpreted the requirements of the [Cohen] collateral order exception to the final judgment rule [of § 1291] with the utmost strictness in criminal cases.....The exceptions to the final judgment rule in criminal cases are rare.
This distinction was previously recognized in United States v. Hollywood Motor Car, 458 U.S. 263, 265, 102 S.Ct. 3081, 3082, 73 L.Ed.2d 754 (1982), and United States v. MacDonald, 435 U.S. 850, 853, 98 S.Ct. 1547, 1549, 56 L.Ed.2d 18 (1978). Other courts have also recognized the difference and declined to apply Flanagan in the civil context. Robbins v. Maggio, 750 F.2d 405, 410-11 (5th Cir.1985); American Protection Ins. Co. v. MGM Grand Hotel — Las Vegas, Inc., 765 F.2d 925 (9th Cir.1985); Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564 (Fed.Cir.1984); Roller v. Richardson-Merrell, 737 F.2d 1038 (D.C.Cir.), cert. granted, — U.S.-, 105 S.Ct. 290, 83 L.Ed.2d 226 (1984); Interco Systems, Inc. v. Omni Corporate Services, 733 F.2d 253 (2d Cir.1984). But see Gibbs v. Paluk, 742 F.2d 181 (5th Cir.1984). The court has permitted the application of Cohen within a criminal context on only three occasions: Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951), denial of a motion to reduce bail; Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), denial of a motion for dismissal of a criminal defendant asserting a double jeopardy defense, and Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979), denial of a motion of dismissal predicated upon a claim under the “speech and debate” clause of the Constitution.
The review conceived by Cohen and its progeny requires, not a procedurally available appeal, but rather, an effective meaningful appellate review. Within this context, the majority’s reference to Coopers & Lybrand v. Livesay erodes rather than fortifies its argument. Initially, the majority ignores the critical distinction between a decision denying appointment of legal counsel and a Coopers & Lybrand v. Livesay order denying class certification. The Supreme Court’s discussion in that case, with obvious clarity, isolated class actions into a special unique classification and circumscribed its decision, specifically, to class actions. In simple language, the court stated at 98 S.Ct. 2459:
There are special rules relating to class actions and, to that extent, they are a special kind of litigation.
In denying class certification decisions access to the “small class” of decisions excepted from the final judgment rule by Cohen the Coopers & Lybrand v. Livesay court reasoned that a class determination generally involves considerations that are intimately enmeshed in the factual and legal issues comprising the merits of plaintiff’s cause of action; that such decisions of the trial court incorporate issues con*771cerning class determination, typicality of representatives’ claims or defenses, the adequacy of the class representative, the presence or absence of common issues of law or fact, all of which are developed through exhaustive discovery; and which intrude upon the factual and legal issues comprising the plaintiff’s underlying cause of action; and finally, an order denying class certification is subject to effective review after final judgment by the named plaintiff or intervening class members.
The appellees have, with great success, subtly misdirected the logic of the majority by distracting their attention with a convoluted interpretation of the Cohen and “death knell” doctrines. Appellants, to my understanding of the arguments, have not urged or even suggested that the special recognition and treatment inherent to the “death knell” doctrine be accorded to orders denying appointment of counsel in civil rights cases. The “death knell” argument, permanently laid to rest by the Supreme Court in Coopers & Lybrand v. Livesay, was resurrected by the appellees. Its precedential value to the case at bar is a mystery and any parallel factual relationship is nonexistent. If the “death knell” doctrine is intended to equate an order denying appointment of counsel to the “death knell” of a pro se plaintiff’s cause of action, the majority again misconstrues the teachings of both Cohen and Coopers & Lybrand v. Livesay. The Cohen collateral order thesis which has its genesis in 28 U.S.C. § 1291, and which provides for an appeal of right from all final decisions of federal district courts on the merits of a case, defines the criterion to qualify an interlocutory order as final within the terms of that statute. Whereas the “death knell” theory as conceived in Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2d Cir.1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598, was proposed as a special rule to confer immediate appellate review in class actions which were characterized by the court as unique actions that served the public interest and deserved special rules of appellate review. The “death knell” argument attempted no pretext of evolving from the final judgment requirements of § 1291. Justice Stevens in his Coopers & Lybrand decision briefly identified the issue:
An order refusing to certify, or decertifying, a class does not of its own force terminate the entire litigation because the plaintiff is free to proceed on his individual claim. Such an order is appealable, therefore, only if it comes within an appropriate exception to the final-judgment rule.
437 U.S. at 467, 98 S.Ct. at 2457. Then, in remarkably clear terms, he delineated the two “appropriate exception(s) to the final judgment rule” argued by the respondents:
In this case respondents rely on the “collateral order” exception articulated by this Court in Cohen ..., and on the “death knell” doctrine adopted by several Circuits to determine the appealability of orders denying class certification.
437 U.S. at 467-68, 98 S.Ct. at 2457 (emphasis added).
The court recognized the separateness of the “death knell” presentation in Coopers & Lybrand v. Livesay and rejected, in no uncertain terms, that the proposal be recognized as a new and distinct exception to the general rule of finality deserving of a special application to class actions because of the public interest served.5
*772The essence of the “death knell” argument arises not from a denial of the constitutional right of access to the courts, but from a voluntary election to abandon a class action by balancing that decision on a scale of economic feasibility — is it “worth it” to proceed. The court consistently emphasized the economic justification to ignore the rule of finality. Cohen, 337 U.S. at 546, 69 S.Ct. at 1226. See also Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1 at 12 n. 14, 103 S.Ct. 927 at 935 n. 14, 74 L.Ed.2d 765 (1983); Coopers & Lybrand v. Livesay, 437 U.S. at 471, 98 S.Ct. at 2459.6
Accordingly, since a decision denying appointment of legal counsel to victims of civil rights violations comes four square within that small class of cases which finally determine claims of right separable from, and collateral to, rights asserted in the underlying action on the merits, too important to be denied review and too independent of underlying cause itself to require that appellate consideration be deferred until the entire case is adjudicated and which qualifies under the criteria of Cohen v. Beneficial Loan Corporation and its progeny, and for the reasons herein-before stated, I herewith respectfully enter my dissent.
NATHANIEL R. JONES, Circuit Judge, dissenting, joined by GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.Although I agree fully with the reasoning of Judge Krupansky’s dissent, I dissent separately to emphasize, under the circumstances here, the appropriateness of recognizing an exception for civil rights cases. As Judge Krupansky notes, supra page 768 n. 3, Congress itself provides support for treating civil rights eases different from civil or criminal cases. In adopting 42 U.S.C. § 2000e-5f(l)(B), Congress expressly recognized that a distinctive characteristic of civil rights plaintiffs is membership in a disadvantaged class. By contrast, civil rights defendants are typically institutions, capable of wielding great resources and mustering extensive legal talent. H.R.Rep. No. 238, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 2137, 2140. The civil rights action itself involves discovery and motions practice so complex that the plaintiff may drop the case before trial. Along with Judge Krupansky and the Ninth Circuit, I am unwilling to assume “that civil rights plaintiffs are capable of prosecuting their own cases through trial ... [and] that should they somehow succeed in doing so, they will have the determination and capability to perfect and conduct appeals properly and fully after they lose.” Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301, 1310 (9th Cir.1981). Such a notion wars with reality. It seems to me that Congress has spoken clearly on its desire that civil rights cases be decided on their merits and that counsel be appointed when necessary to assure this. As judges, our task is to strive to conform to the will of Congress, not to contest it. The position advanced in the dissent is in conformity with Congressional intent.
. Only one case has questioned the conclusiveness of an order denying counsel. Appleby v. Meachum, 696 F.2d 145 (1st Cir.1983). In that case, the court, at the conclusion of a two-page opinion disposing of the case on other grounds, gratuitously injected dicta characterizing such orders as inconclusive.
. The separability requirement must also be given a practical construction. As articulated in Cohen, it mandates that collateral orders considered for immediate review be not a part of determinations on the merits. In Coopers & Lybrand the Supreme Court further .explained the separability criterion by requiring the subject matter of a collateral order be reviewable only if it was discrete and not intimately related to the substance of the claim. In Coopers & Lybrand the Court held that the class certification issue was too “enmeshed in the factual and legal issues” of the lawsuit to allow for a neat extraction of the question from the entirety of the proceeding for the purposes of immediate appeal.
This was sound reasoning. As has been noted, see Bradshaw, supra, 662 F.2d at 1307, the class certification determination required detailed and exhaustive factual development of issues such as typicality, adequacy, and a common question; extensive discovery is frequently required. On the other hand, the evaluation required by the appointment decision is brief and easily accomplished. Indeed, it is little more than, and very similar to, a trial court’s evaluation of the complaint for assurance that it has jurisdictional authority over the cause. It “simply requires the court to recognize that the underlying claim has some merit____ The reference to the merits required____ is minimal and incidental”. Id. at 1308.
. Congress has also indicated its understanding of the difficulties faced by civil rights litigants. H.R.Rep. No. 238, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News, 2137, 2148 (emphasis added).
Prior to 1972 the E.E.O.C. had only conciliation powers in obtaining compliance with Title VII of the 1964 Civil Rights Act. Congress significantly strengthened the enforcement powers of the E.E.O.C. in 1972 because of dissatisfaction with implementation of Title VII. While empowering the E.E.O.C. to initiate litigation on behalf of Title VII complainants, the 1972 Amendments also re-enacted the provisions authorizing private individuals to initiate their own civil actions. House Report No. 92-238 on the Equal Employment Opportunity Act of 1972 explains the importance of re-enacting the 1964 language on court appointed counsel. Because of E.E.O.C. staff shortages, parties had to wait up to three years for final conciliation procedures to be instituted. 1972 U.S.Code Cong., & Ad News, 2137, 2147-48.
As previously pointed out, Congress recognized that a civil rights "complainant who is usually a member of a disadvantaged class, is opposed by an employer who not infrequently is one of the nation’s major procedures, and who has at his disposal a vast array of resources and legal talent”.
This imbalance in civil rights litigation is at the center of the right to counsel issue because it illustrates the futility of a civil rights plaintiff who is unable to hire counsel proceeding pro se after rejection of such a motion for appointment of counsel. As Congress recognized, rejecting such a motion means that the final curtain drops before the play begins.
. The comprehensive Bradshaw examination of the pro se litigant’s practical barriers to a meaningful review remains the best explication of the litigant’s problems:
We consider it evident that the effectiveness of appellate review will be seriously impaired by the very nature of the order. A civil rights litigant, untrained in the law, may well decide that he is incapable of handling the trial and drop his claim, commence trial but be compelled to abandon his efforts prior to final judgment, fail on a technicality in any attempt to appeal should be an adverse final judgment on the merits ever be reached, or fail, for lack of legal knowledge, to make the requisite showing to obtain reversal.
******
The liability stage of a Title VII action is complex enough, but the issues involved in formulating the proper remedy strain the ability of many non-specialist practitioners, much less that of a plaintiff without legal training. Should [the plaintiff] obtain any recovery, she may well not pursue an appeal based on the insufficiency of the amount recovered, and should she obtain a monetary recovery, she may well not appeal even though she may be entitled, under the law, to the job she seeks. Without a thorough understanding of the complex legal issues involved and without the ability to appreciate or analyze the possible errors committed in the trial court, [the plaintiff] would hardly be in a position properly to evaluate the question whether an appeal should be taken.
******
[On appeal, the plaintiff] would be bound by the inevitable prejudicial errors she would make at her first trial should she manage subsequently to obtain a reversal and a new trial. She could, for example, be bound by or impeached with her earlier testimony, or suffer adverse consequences from uninformed and unwise stipulations____ We must thus be concerned not only with the mechanical complexities of Title VII litigation in the abstract, but also with the prejudicial consequences of a civil rights litigant’s lack of capacity to divine and pursue an effective litigation strategy-
******
[I]t is not difficult to imagine — indeed, it is impossible to ignore — the irreparable injury that would result from a refusal to review an order denying a civil rights litigant appointed counsel. Because the likelihood that an applicant ... will be unable to proceed through trial and obtain effective review of the order is so high, and the prejudice inherent in proceeding to trial without counsel is so great, we do not view the injury that would inevitably result from a refusal to review the order before us as speculative or hypothetical.
. In Coopers & Lybrand v. Livesay, the "death knell” adherents did not charge that the denial of certification was a final order. They were seeking a special exception to the final judgment rule. See 437 U.S. at 471, 98 S.Ct. at 2459. Strictly interpreted, Cohen does not pose an exception to the finality rule but an application of the statutory principles which inform § 1291. Rather, it teaches that those principles properly applied and developed result in a more sophisticated understanding and application of § 1291; the “death knell” principles ignore the final order requirements of § 1291 in response to a perceived "vital public interest”. As the Court noted, “[s]uch policy arguments, though proper for legislative consideration, are irrelevant to the issue we must decide”. 437 U.S. at 470, 98 S.Ct. at 2459. Cf. Robbins v. Maggio, 750 F.2d 405, at 413 n. 11 (5th Cir.1985).
. See Coopers & Lybrand v. Livesay, 437 U.S. at 469, 98 S.Ct. at 2458 (“[t]he 'death knell’ doctrine assumes that without the incentive of a possible group recovery the individual plaintiff may find it economically imprudent to pursue his lawsuit’’); id,, 437 U.S. at 470, 98 S.Ct. at 2459 (the doctrine has "tactical economic significance” and “economic disincentives”); id., 437 U.S. at 471, 98 S.Ct. at 2459 (under the “death knell” appealability would turn on an evaluation of the economic impact of a pretrial order); id., 437 U.S. at 472-73, 98 S.Ct. at 2460 (doctrine formulates "an appealability rule that turns on the amount of the plaintiffs claim"). Cf. id. 437 U.S. at 470 n. 15, 472 n. 18, 98 S.Ct. at 2459 n. 15, 2460 n. 18. It is in the context of the Supreme Court’s economic understanding of the “death knell” doctrine that the conclusion articulated by the Court in the final paragraph of the opinion, should be construed when it stated "that the fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering it a 'final decision’ within the meaning of § 1291". Id. 437 U.S. at 477, 98 S.Ct. at 2462.