concurring:
Much could be said in response to Judge Posner’s commentary on the blindness of judges, the iniquity of prisoners and the triviality of their concerns. Since the financial net worth of most prisoners is zero and their economic value while incarcerated perhaps less than zero, it is not surprising that efforts to take them seriously as human beings are sometimes scorned. They are not all Jean Valjean1 but they are people.
I do not believe that Judge Swygert and I need apologize for the appointment of counsel for Merritt. See Merritt v. Faulkner, 697 F.2d 761 (7th Cir.1983). Counsel appears to have performed a real service in having Merritt referred to the leading sickle cell eye clinic in the Midwest to diagnose and prescribe for him. Whether Merritt is satisfied is not the point; those of us who have some responsibility in the matter can be assured that his eyesight is in good hands. I remain skeptical that the market could have assured an equivalent result. Somehow I doubt that we will ever find lawyers knocking on jail cell doors for business — even with the promise of a contingent fee. In any event, generalizations, drawn from Merritt’s experience, about all prisoner civil rights litigation or about the efficiency of the prison litigation market are unwarranted. There is anecdotal “evidence” on all sides of the problem, see, e.g., Wilson v. Lambert, 789 F.2d 656 (8th Cir.1986) (prisoner with court-appointed counsel prevailed on section 1983 claim and was awarded compensatory damages).
Nor am I as concerned as Judge Posner about the time we have “wasted” on Merritt. His problems seem to me to carry as much weight on the social scales as the concerns, for example, of corporations caught in an unending and apparently sterile cycle of takeover, merger and break-up. The Merritts of this world are pikers indeed in their demands on the legal system in comparison with the corporate adventurers. Nor is lying a vice unique to prisons. Current reports suggest that Wall Street *1155and the nation’s capital also may have some experience with it.
Above all Judge Posner seems to want to prove Merritt a charlatan — hoodwinking a few credulous judges with ease. The hard evidence is difficult to interpret and even appellate judges, who usually claim to know a lot, are beyond their depth in medical diagnosis. In this case, the brief of the state defendants furnishes all sorts of dubious ammunition in the cause of discrediting Merritt. As Judge Posner’s opinion notes, the reports from the University of Illinois Sickle Cell Eye Clinic — one dated January 22, 1986 and the other dated February 18, 1986 — give startlingly different impressions of the severity of Merritt’s loss of sight. The first letter suggests only moderate damage and the second severe impairment incurable by laser or surgical intervention and uncorrectable by any sort of lenses. It is undisputed, of course, that Merritt had cataracts and suffered from sickle cell S-C disease. Whether his vision is improving, getting worse or merely maintaining itself at some diminished level is certainly not clear; these opinions are becoming a sort of judicial Grand Rounds.2
In any event, Merritt, now armed with adequate legal representation, has received a settlement which seems to meet his legitimate problems. The absence of a dramatic victory on the merits here should not deter us from appointing counsel where the facts are complex and the issues elusive, as they were here. As I have suggested before, contingent fees will not likely break down the formidable barriers to entry that surround the prison litigation “market.” Merritt, 697 F.2d at 768.
. See V. Hugo, Les Misérables (1862).
. As an aside, two eye doctors from the Soviet Union recently examined Leonard Peltier, who is an inmate at the Leavenworth penitentiary. They recommended drugs for his vision problems not available in the United States. N.Y. Times, June 25, 1987, at 4, col. 2.