dissenting.
In late April or early May 2000, Van Dyke Johnson discovered a lump in his *1016groin, which eventually was diagnosed as an inguinal hernia. This condition is not an uncommon occurrence. For the male population worldwide the risk is 27%.1 Approximately 750,000 surgical repairs are undertaken each year in the United States.2 While postponement of surgical intervention is possible,3 in almost all cases, the professionally acceptable procedure is surgical repair.4 Early surgical intervention prevents the complications of incarceration and strangulation.5
Mr. Johnson’s hernia caused him many problems. He could not stand up straight for very long without causing pain and throbbing in the area of the hernia. Laughing, coughing and bowel movements also caused pain. He sought treatment from the physicians on staff at Graham Correctional Center where he was then incarcerated; his release was not to occur until 2005, and, understandably, he did not think that he could withstand the pain and discomfort until that time. On May 9, 2000, he was examined by Dr. Don Hinder-liter, one of the physician defendants in this action. He diagnosed an inguinal hernia and referred Mr. Johnson to Dr. Robert McEntyre, also a physician defendant in this action. Dr. Hinderliter did not recommend surgery but prescribed a hernia belt.
Dr. McEntyre held the position of Medical Director at Graham at all times relevant to this action. Dr. McEntyre examined Mr. Johnson at least five times between June 2000 and August 2000. Dr. McEntyre diagnosed Mr. Johnson with a reducible inguinal hernia: “a protrusion in the left groin area that ... a doctor or patient is able to push back inside without much difficulty” and that is “not stuck out,” as Dr. McEntyre later described it in his trial testimony. R.112 at 58. In Dr. McEntyre’s opinion, a reducible hernia would present a “surgical emergency” only if the hernia became “strangulated” — that is, nonreducible and eventually gangrenous. Id. Dr. McEntyre testified that “vomiting, high fever, [and a] fast heart beat” would accompany a strangulated hernia. Id. Because Mr. Johnson’s hernia was not strangulated, Dr. McEntyre instructed him to use a truss, directed him to take Tylenol for pain and Metamucil for bowel discomfort and issued him a low bunk permit.
On June 10, 2000, Mr. Johnson was examined by Dr. Stephen Doughty, another physician defendant in this action, who instructed Mr. Johnson to use Tylenol, Metamucil and a truss and to avoid heavy lifting and strenuous activities. Mr. Johnson claims that he also made personal appeals for more effective treatment to IDOC defendants Alex Jones and Billie Greer, who were both assistant wardens at Graham. Neither Mr. Jones nor Ms. Greer testified to a memory of speaking with Mr. Johnson.
Mr. Johnson also pursued relief through the Graham prison grievance procedures. He filed his first grievance on May 16, 2000. On the grievance form, he included a substantial description of his pain, and he attached a photocopied excerpt from “The New Good Housekeeping Family Health and Medical Guide,” which indicated that “the best treatment for a hernia is a surgical operation designed to replace the herniated contents into the abdominal cavity and repair the defect in the abdominal wall.” R.7, Ex.A at 3, 8. The photo*1017copied excerpt also noted that “[i]nguinal hernias should always be repaired by surgery.” Id. at 8.
IDOC defendant Steve Currl, a correctional counselor assigned to handle inmate grievances, forwarded Mr. Johnson’s grievance to the medical unit, which reported that Mr. Johnson- had received adequate care. Mr. Currl then forwarded to the warden his recommendation that the grievance be denied. IDOC defendant Gilberto Romero, Graham’s assistant warden in charge of operations, agreed that Mr. Johnson’s grievance should be denied. IDOC defendant Robert Radmacher, chair of IDOC’s Office of Inmate Issues, denied Mr. Johnson’s grievance on June 21, 2000, with IDOC defendant Donald Snyder, the Director of IDOC, concurring in this decision.
Mr. Johnson filed a second grievance related to the hernia on July 11, 2000. He also contended that IDOC defendant John Cearlock, a registered nurse who held the title of Health Care Unit Administrator at Graham, had not interviewed him regarding his first grievance. Mr. Johnson eventually met with Mr. Cearlock, who reviewed Mr. Johnson’s medical history, scheduled another doctor’s appointment for him and recommended that he continue the recommended treatment.
A.
The Task Facing Mr. Johnson
In order to appreciate the task that lay before Mr. Johnson as he tried to present his case to the district court, we ought to pause for a moment and recall just how difficult it is to establish an Eighth Amendment claim of this sort.
First of all, there can be no question that the Eighth Amendment’s prohibition against cruel and unusual punishment imposes a duty on state prison officials to provide adequate medical care to incarcerated persons. The reason for this prohibition is straightforward: “[Djenial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.” Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Boyce v. Moore, 314 F.3d 884, 888-89 (7th Cir.2002). Given this purpose, “delays in treating painful medical conditions that are not life-threatening can support Eighth Amendment claims.” Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir.1997).
Although the Eighth Amendment affords prisoners relief for the unnecessary infliction of pain at the hands of those who have an obligation to provide for their medical needs, it is well-understood that our jurisprudence sets a high bar for a prisoner accusing prison officials of such a violation. The Eighth Amendment is not a medical malpractice statute. Indeed, the Supreme Court has written that a prison official will not be held liable for an Eighth Amendment violation unless he “knows of and disregards ... a substantial risk of serious harm” to an inmate. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In the context of a claim that he was denied adequate medical care, an inmate can prove an Eighth Amendment violation only by “establishing] that: (1) his condition was objectively serious, and (2) state officials acted ‘with deliberate indifference to his medical needs, which is a subjective standard.’ ” Boyce, 314 F.3d at 889 (quoting Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir.2002)); see also Cooper v. Casey, 97 F.3d 914, 916 (7th Cir.1996). Indeed, one of our cases has said that, at times, “the illness or injury must be sufficiently serious or painful to make the refusal of assistance uncivilized.” Cooper, 97 F.3d at 916.
Setting forth the applicable principles of law is a great deal easier than proving *1018them. “Whether a prison official acted with deliberate indifference presents a question of fact.” Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir.2000), and the gathering and presentation of those facts is a most difficult task. Here, Mr. Johnson’s task was compounded by the fact that, in order to prove the requisite deliberate indifference, Mr. Johnson had to demonstrate that the positions taken by the prison physicians in their assessment of how to deal with his injury were wrong, that the physicians knew they were wrong and that they nevertheless continued to maintain such a position knowing that their failure to treat the injury properly was the cause of Mr. Johnson’s severe pain.
It is important to note that the subjective prong of the test looks at a defendant’s actual state of mind. Mr. Johnson therefore had to prove that the defendant was “both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. He had to show: “(1) that the professional knew of the serious medical need, and (2) disregarded that need.” Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998). Notably, “[i]t is not enough that [the official] ‘should have known’ of the risk” — the official must know of the risk, in this context, a serious medical need. Higgins v. Corr. Med. Serv. of Illinois, 178 F.3d 508, 511 (7th Cir.1999).
As a practical matter, to meet this heavy burden, Mr. Johnson had to establish the requisite subjective intent by demonstrating that the seriousness of his condition would be obvious to the trained professional. See Collignon, 163 F.3d at 989 (“A trier of fact can conclude that the professional knew of the need from evidence that the serious medical need was obvious.”). He then had to prove that, after becoming aware of a prisoner’s serious medical need, the physician had “consciously disregarded it nonetheless.” Mathis v. Fairman, 120 F.3d 88, 91 (7th Cir.1997). To shoulder this latter burden, Mr. Johnson had to show that the physician had not responded reasonably to his condition. See Farmer, 511 U.S. at 843, 114 S.Ct. 1970. This task is not fulfilled by simply showing that the physician was negligent. See Sherrod, 223 F.3d at 611— 12.6 Indeed, this court has described the circumstances in which deliberate indifference may be inferred from a medical professional’s faulty treatment decision in the following way:
[D]eliberate indifference may be inferred based on a medical professional’s erroneous treatment decision only when the medical professional’s decision is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.
Estate of Cole, 94 F.3d at 261-62; see also Collignon, 163 F.3d at 989 (“A plaintiff can show that the professional disregarded the need only if the professional’s subjective response was so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances.”).
Mr. Johnson sought to meet this demand for proof by establishing that the decision to deny him surgical relief was the product, at least in large part, of a decision *1019somewhere in the Department of Corrections not to spend money on such a procedure. The Eighth Amendment does limit, to some extent, prison officials’ discretion to choose less effective or less expensive treatments. We have held that “the civilized minimum of public concern for the health of prisoners” is, in part, “a function ... of cost”: “The lower the cost [of treatment], the less [objective] need has to be shown” to evidence deliberate indifference from the failure to treat a painful condition. Ralston v. McGovern, 167 F.3d 1160, 1161-62 (7th Cir.1999). A plaintiff also may prevail on a claim of deliberate indifference “if he can prove that [officials] deliberately gave him a certain kind of treatment knowing that it was ineffective, either as a means of toying with him or as a way of choosing ‘the easier and less efficacious treatment.’ ” Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir.1990) (quoting Estelle, 429 U.S. at 104 n. 10, 97 S.Ct. 285). However, the task of ascertaining whether such a decision had been made, by whom, and whether it was an operative factor in his case was, to put it mildly, a formidable one.
B.
The Conventional Wisdom
This court, and, indeed, all of the federal courts, are swamped with Eighth Amendment cases alleging that the absence of adequate medical treatment constituted cruel and unusual punishment. Applying the standards set forth above, we have the task of identifying the few cases that are meritorious. This process is a burdensome one for our colleagues in the district court and, to a lesser degree, for the members of this court. It is, however, a task that Congress has given us and that we must perform willingly if we are to be true to our oaths to do justice without respect to persons, to the rich and the poor alike. See 28 U.S.C. § 453. Indeed, Congress, in the Prison Litigation Reform Act, 42 U.S.C. § 1997e, has given the district courts a variety of procedural devices to assist in the screening task. Nevertheless, it is safe to say that the management of these cases continues to be a burden on judicial resources and the conventional wisdom is that the task is akin to looking for the proverbial needle in a haystack.
There also appears to be conventional wisdom about the appointment of counsel in civil cases. That conventional wisdom holds that district courts ought to be parsimonious in the appointment of counsel in such cases, especially in prisoner cases. This mind-set is no doubt rooted in the case law which, to a significant extent, makes clear that prisoners enjoy no constitutional or statutory right to counsel in civil cases. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (holding that the constitutional right to counsel exists only when the loss of liberty is threatened); Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.1992); Caruth v. Pinkney, 683 F.2d 1044, 1048 (7th Cir.1982). Rather, appointment of counsel “rests in the sound discretion of the district court unless denial would result in fundamental unfairness impinging on due process rights.” Heidelberg v. Hammer, 577 F.2d 429, 431 (7th Cir.1978). Indeed, the power to appoint counsel in a civil proceeding derives § 1915(e)(1), from the statutory language which authorizes a district court, upon motion, to “request an attorney to represent any person [claiming in forma pauperis status] unable to employ counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added).7 Notably, however, the case law, *1020when read carefully, also makes clear that this discretion has significant limitations. We have noted that “discretionary choices ‘are not left to a court’s inclination, but to its judgment; and its judgment is to be guided by sound legal principles.’ ” Ekanem v. Health & Hosp. Corp., 589 F.2d 316, 319 (7th Cir.1978) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)). Indeed, to guide the discretion of district courts in deciding motions to appoint counsel to indigent civil litigants, we have set forth five nonexclusive factors: (1) the merits of the indigent litigant’s claim (whether the claim is colorable); (2) the nature of the factual issues raised in the claim and whether the plaintiff is in a position to investigate crucial facts; (3) the presence of conflicting testimony and the need for cross-examination; (4) the factual and legal complexity of the issues; and (5) the capability of the indigent litigant to present the case. Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir.1981).
Even here, however, our case law has contributed to the conventional wisdom by emphasizing that the plaintiff bears a “high burden” in establishing entitlement to counsel under the Maclin factors. Barnhill v. Doiron, 958 F.2d 200, 202 (7th Cir.1992).
When faced with a case such as the one before us, a judge must confront this conventional wisdom and question whether the “givens” that seem to dominate our thinking justify our almost Pavlovian responses to such motions. No one can question seriously the established principle that there is no right to counsel in civil cases. Nor can anyone question seriously that counsel is not required in the vast majority of prisoner cases. We must examine, however, whether counsel is denied in too many cases and whether that denial deprives litigants of justice in a significant number of cases or at the very least complicates unnecessarily the judicial task.
The statute makes it clear that the district court may only request that counsel accept appointment. See 28 U.S.C. § 1915(e)(1). It is sometimes suggested that this is a request that should not be made often of counsel because it is a burden on the practicing bar. No doubt a district court, in determining whether to appoint counsel, ought to take into consideration the burden placed on counsel. It must be remembered as well, however, that attorneys, by virtue of their licenses, have a government-controlled monopoly on the practice of law and, in return for that monopoly, ought to expect to be called to render public service with some frequency. Similarly, although it is often said that it is difficult to find attorneys to take these cases, a district court is certainly not without the resources to ascertain the availability of counsel. Oftentimes, the shopworn argument that, if the case has any merit, “market forces” will induce counsel to take the case is cited as justification for not making an appointment. Prisoners, however, are rarely in a situation that permits them to make a sufficient segment of the bar aware of their case. Indeed, few prisoners are able to explain adequately the merits of the case to an attorney considering undertaking such representation. It is also suggested frequently that there simply are not attorneys willing to take a prisoner case. The presence of counsel in this case on appeal belies that suggestion — as does the long list of counsel who regularly take such cases.
If counsel are available and willing to perform this public service, why are they not called upon more frequently? Is there a fear that counsel’s presence will unduly complicate the case? Or is there an apprehension that counsel will make the case *1021more burdensome on the state officials? Certainly such considerations, if they lurk beneath the surface of a decision not to appoint counsel, are entirely inappropriate and underestimate both the skill and dedication of the bar and the capacity of the district court to keep a case on track.
C.
Now that we have assessed the burden shouldered by Mr. Johnson and the conventional wisdom that surrounded his request for counsel, we can turn to an analysis of the issue before the court today.
Rulings on motions to appoint counsel are reviewed for “abuse of discretion.” See, e.g., McNeil v. Lowney, 831 F.2d 1368, 1371 (7th Cir.1987). The term “abuse of discretion” is rhetorically potent and some of the formulations that are employed to give it meaning are equally sharp. To say that we should reverse under the abuse-of-discretion standard only when no rational person could agree with the district court’s ruling8 is poetic — and misleading. To say that reversal is warranted when the district court selected a course of proceeding that, under the circumstances one would not have expected a jurist to choose is perhaps better, although still imperfect.9 Fortunately, we have refined the test in the context to appointment of counsel cases and ask whether “[G]iven the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993).10 In other words, we shall reverse a district court’s refusal to appoint counsel “if, given the difficulty of the case and the litigant’s ability, [he] could not obtain justice without an attorney, [he] could not obtain a *1022lawyer on [his] own, and [he] would have had a reasonable chance of winning with a lawyer at [his] side.” Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir.1997).11 As this standard makes clear, “we evaluate the reasonableness of the district court’s decision [whether to request counsel] as of the time it was made .... ” Hudson v. McHugh, 148 F.3d 859, 862 n. 1 (7th Cir. 1998).
In my view, the district court selected a course of proceeding that was clearly inappropriate. It did not take into consideration all the factors that it should have and it gave inappropriate weight to the factors that it did consider. In short, it accepted the conventional wisdom about prisoner medical suits and the conventional wisdom about the appointment of counsel in a case in which it should have “thought out of the box” and declined to accept that conventional wisdom.
Mr. Johnson claims that the complexity of the Eighth Amendment deliberate indifference standard and the medical issues presented by his case should have demonstrated to the district court that he needed the assistance of counsel to prove the subjective intent element of deliberate indifference. He submits that an attorney well-versed in the law of evidence would have been able to have supplied the district court with extensive evidence supporting his claim for relief. It also is Mr. Johnson’s position that, in addition to an attorney at trial, he needed a lawyer to conduct the sort of discovery that was necessary both on the significance of the medical evidence and on the possible existence of a prison policy against ever permitting surgery for a hernia.
The defendants, on the other hand, contend that the district court acted within its discretion in refusing to request counsel to represent Mr. Johnson. The defendants point to the fact that Mr. Johnson survived a motion to dismiss and partially survived summary judgment as proof that he was competent to try the case. The defendants also contend that, even if Mr. Johnson was not capable of trying the case on his own, the appointment of counsel would not have made a difference because his claims are without merit.
With respect to the difficulty of the case, the issues presented by Mr. Johnson’s deliberate indifference claim were significantly complicated. The Eighth Amendment standards in this context, while well-developed, also are highly dependent on technical medical questions. It was necessary for him to establish that the physicians knowingly departed in a substantial way “from accepted professional judgment, practice, or standards.” Cole, 94 F.3d at 261-62. Given the fact that Mr. Johnson had the burden of proof, the district court should have known that it would not have been sufficient for Mr. Johnson to “testify to his own pain and restricted activities due to his hernia” and to “cross-examine the defendants regarding their conclusion that he did not need surgery.” August 25, 2003 Order at 1. The issues were far more *1023complex than that. In order to show that the defendants were deliberately indifferent to his condition, Mr. Johnson in all likelihood would need to introduce evidence of the usual amount of pain suffered by a person with a hernia and of whether his own pain was typical or atypical. See, e.g., Gutierrez, 111 F.3d at 1369-71 (holding that failure to treat a chronic, painful condition can rise to the level of an Eighth Amendment violation). He also would have to address the accepted professional standards for treatment of hernias: for instance, the usual treatment, the risks associated with leaving an inguinal hernia untreated, whether the treatment prescribed by the physician defendants would have been effective as a long-term solution to Mr. Johnson’s problem, and whether a reasonable physician would have treated a patient with the methods prescribed by the physician defendants. It is simply unrealistic to say that Mr. Johnson was going to achieve these litigation goals simply by relying on his cross-examination of the defendant physicians.
Mr. Johnson’s difficulty in presenting an adequate case about the degree of pain that he claims he experienced is compounded by his further need to establish his claim that the defendants let him suffer that pain despite the availability of cost-effective treatment with an acceptable degree of medical risk. It is his contention that the defendants denied him such treatment, even though it was indicated under accepted professional standards, simply in order to avoid the cost. It is difficult to see how Mr. Johnson was going to establish this claim without engaging in significant discovery. It is even more difficult to imagine that he could have conducted such discovery from his jail cell.
The issues before the district court in this case were not at all “straightforward.” On the other hand, the testimony of an expert would have been highly relevant to determining several disputed issues. In fact, in the absence of expert testimony, Mr. Johnson could not have shown that the physician defendants failed to meet the standard of minimal professional competence.
It is clear that Mr. Johnson’s skills were inadequate to address the complexities of this Eighth Amendment case without professional ■ help. Mr. Johnson asked for counsel early on in this litigation. As the case progressed, his need for representation became even more obvious — for instance, at the summary judgment stage, he had not propounded any discovery requests. Mr. Johnson had no “experience litigating other cases.” Forbes, 112 F.3d at 264. Clearly, Mr. Johnson could not obtain justice without an attorney.
Finally, we must consider whether Mr. Johnson “would have had a reasonable chance of winning with a lawyer at [his] side.” Id. As the district court recognized in its summary judgment order, the record gave rise to a “reasonable inference ... that a policy or practice existed [at Graham] ... that the medical director would not recommend surgery for any reducible hernia, regardless of the pain and difficulty experienced.” R.64 at 7. However, as we have discussed above, the quality and quantum of evidence presented at trial in Mr. Johnson’s, case left much to be desired. This is not a case in which a plaintiff put on a competent case at trial but simply lost fair and square on the merits. See, e.g., Forbes, 112 F.3d at 265 (“Most importantly, we are not convinced that the result would have been, nor could have been, different had Forbes had an attorney.”). Because Mr. Johnson was not capable of presenting testimony regarding the professional standards of care for a hernia, he did not introduce any evidence of those standards; had the district court been presented with evidence of those standards *1024and evidence that the physician defendants fell far short of those standards, it is clear that Mr. Johnson would have stood a reasonable chance of winning at trial. With the help of competent counsel, he also could have established the liability of the IDOC defendants who were dismissed from the suit at the summary judgment stage. Mr. Johnson had not propounded any discovery at the summary judgment stage; therefore, it is not clear what he would have been able to learn through the discovery process. Certainly, from his jail cell, it would have been impossible to inquire fully of the powers-who-be whether there was a policy of not performing these procedures despite the resulting long-term pain to the prisoner and despite the significant possibility of complications due to the indefinite deferral of surgery simply to save money.
When it came time for appeal, the district court had an opportunity to assess the case in its entirety. It then determined that the complexities of this particular case, which involved presenting the often-elusive issue of pain and the alwaysdiffieult issue of examining intent in the context of a bureaucratic process, required the guiding hand of appellate counsel. However, there were sufficient indicators of this complexity, and therefore of this need for counsel, at earlier stages of the proceedings. In light of Mr. Johnson’s abilities and the complex legal questions presented by his case, and in light of Mr. Johnson’s reasonable chances for success if represented by competent counsel, the district court should have realized, as it apparently did later on, that following the conventional wisdom was inappropriate here. I would reverse the judgment and order a new trial.
. Andrew Kingsnorth, Treating Invinal Hernias, 328 Brit. Med. J. 59 (2004).
. Id.
.Id.
. Tim Bax, M.D., et al., Surgical Options in the Management of Groin Hernias, 59 Am. Fam. Physician 1, 7, 14 (1999).
. Id.
. A medical professional may evidence deliberate indifference through his treatment decisions. Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir.1996). However, the deliberate indifference standard is more exacting than the standard for showing medical malpractice. See Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir.1996) ("Mere negligence or even gross negligence does not constitute deliberate indifference.”).
. For a general discussion of the appointment of counsel to indigent plaintiffs in § 1983 actions, see 15 Am.Jur.2d Civil Rights § 131 (2005); see also Howard B. Eisenberg, Rethinking Prisoner Civil Rights Cases and the *1020Provision of Counsel, 17 S. Ill. U. L.J. 417 (1993).
. Hastert v. Illinois State Bd. Election Comm’rs, 28 F.3d 1430, 1442 (7th Cir.1993) ("We must bear clearly in mind that there can be no abuse of discretion if any rational person could agree with the conclusion of the district court.”).
. United States v. Allison, 120 F.3d 71, 74 (7th Cir. 1997) ("Under this deferential standard, we ask whether the district court made a decision that was within the range of options from which we might expect a reasonable trial jurist to choose under the circumstances.”).
. In Farmer v. Haas, this court noted that the inquiry into whether counsel should have been appointed should not have been framed in terms as complex as those contained in the test this court previously had used. See Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). The previously-used test, as set out in Maclin v. Freake, 650 F.2d 885 (7th Cir. 1981), instructed courts to look at five non-exclusive factors in order to determine whether to exercise the discretion to request counsel: (1) "the merits of the indigent litigant’s claim,” for "[ejven where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim”; (2) "the nature of the factual issues raised in the claim,” along with the question of whether "the indigent is in [a] position to investigate crucial facts”; (3) whether the existence of conflicting testimony as a significant source of evidence makes it "more likely that the truth will be exposed where both sides are represented by those trained in the presentation of evidence and in cross-examination”; (4) "the capability of the indigent litigant to present the case”; and (5) "the complexity of the legal issues raised by the complaint.” Id. at 887-88. Under the Maclin test, ”[t]he first factor, the merits of the plaintiff’s claim, [was] foremost.” Swofford v. Mandrell, 969 F.2d 547, 551 (7th Cir. 1992).
This court in Farmer recognized that "the Maclin test is not canonical” and, as just described above, presented a stripped-down formulation for the inquiry into whether counsel should have been requested. Farmer, 990 F.2d at 321. The Farmer test has been recognized as "an alternative, easier method for deciding [appointment of counsel] motions.” Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). However, Farmer did not discredit entirely the Maclin test; it merely noted that "the multiple factors ... collapse upon inspection” into a simpler inquiry. Farmer, 990 F.2d at 321.
. In past opinions, we also have directed courts to conduct "a threshold examination into an indigent's effort to retain counsel,” on the ground that the enabling statute "dictates that an indigent must have made an unsuccessful attempt to obtain counsel before the request can be considered.” Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992). At the time Jaclcson was decided, the statute permitting a court to request counsel to represent an indigent defendant read as follows: "The court may request an attorney to represent any ... person unable to employ counsel ...28 U.S.C. § 1915(d) (emphasis added). The statute at the time of Mr. Johnson’s motions used the language, "unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added). Regardless of the change to the statute, the record reveals that Mr. Johnson made numerous efforts to secure the assistance of counsel on his own.