shlep: the Self-Help Law ExPress

     Faced with the need to reduce bloated legal fees from outside counsel, Mark Chandler, General Counsel of Cisco Systems is using information technology to make his in-house staff far more productive and independent of BigLaw firms, with their skyhigh hourly rates and cancerous billables.  See his speech “Cisco General Counsel on State of Technology in the Law,” at the Northwestern School of Law’s 34th Annual Securities Regulation Institute.

 At LegalBlogWatch (Jan. 31, 2007), Carolyn Elefant calls this a revolution and notes that Chandler has already “created an online contract builder so that its employees around the world can create NDAs and standard contracts. And Cisco is also working on a wiki with other Fortune 500 companies to allow direct access to firms’ knowledge management systems on securities regulatory compliance. Finally, Cisco “got tired of high billable hour rates from so-called global law firms,”  so it’s selected a firm (which isn’t a huge global firm, but open to new ideas) to help it address issues related to corporate secretarial matters. And while Cisco uses two large firms for M&A work and litigation, those firms operate on fixed fees.”  Carolyn sums up:

• The bottom line is that in an era where information wants to be free, corporations want access, and they don’t want to pay for every minute spent to find it.

Chandler is tasked with utilizing technology to streamline legal processes.  He notes that the legal industry sometimes seems to be ‘the last vestige of the medieval guild system to survive into the 21st century’.”  [It’s nice to see someone other than Your Editor deride the profession’s guild mentality; e.g., here and here.]

Peter Lattman of the WSJ Law Blog, “Law Firms: “The Last Vestige of the Medieval Guild System”“, Jan. 29, 2007, notes:

Chandler bemoans the law firm business model. “Put most bluntly, the most fundamental misalignment of interests is between clients who are driven to manage expenses, and law firms which are compensated by the hour.” 

The whole speech is worth reading.  Below the fold are a few select excerpts, in which Chandler tells of buying contract-builder software “off the shelf” and says that “counseling will be the next frontier.”   (If software can assist with complex corporate legal counseling tasks, let’s hope the advances will soon trickle down to all legal consumers.)

    As shlep demonstrates daily, technology has been helping the poorest members of our society to solve more and more legal problems without lawyers.  Now, clients with the most clout (and money) — such as Cisco — are taking advantage of information technology to become do-it-yourselfers, and to unbundle legal services, while insisting that law firms provide far better value.  Perhaps, then, we can hope that the vast, soft mid-section of the legal profession — those who serve the everyday needs of the average American, usually at unaffordable hourly rates — will soon embrace the benefits of the digital age and pass savings on to their clients.  As Rick Georges suggests, such lawyers may find themselves at a great disadvantage if they do not figure out a way to offer far greater value to their clients (in service, results and price), including the use of document-creation technology (see our prior post).

It will help, of course, if middle class Americans were better informed about such alternatives as sophisticated self-help products, pro se centers at courts, and unbundling of services.   Then, they can join in the revolution, with steady pressure for more options and competition from their Main Street lawyers.   

  Texas district court Judge Mark T. Price Judge was removed from a Witchita Falls gang control proceeding, yesterday, because of his demeanor toward defendants who were appearing pro se.   In the civil proceeding, the district attorney was seeking an injunction to require defendants, described as members or associates of the Varrio Carnales gang, “to abide by a set of rules in a specified part of town, known as a gang-free zone.  The rules include a curfew at night.”  Judge Price had presided over the case since it began last summer.  Witchita Falls [TX] Times Record News “Price recused from case,” Jan. 31, 2007.

The motion to have Judge Price removed was heard by Judge Bob Brotherton, who rejected several claims of impartiality, but focused on the treatment of the pro se defendants at a hearing for a temporary injuction in September.  According to the Times Record News, a number of attorneys (public defenders not connected to the case but present in the courtroom) testified in support of the Motion:

” ‘From what I saw, it appeared that the hearing was more of a formality,’ one testified. . .  

In his Order, Judge Brotherton noted that Judge Price also “appeared to those attorneys to be abrupt and impatient with the pro se defendants in a manner not exhibited to the State’s attorneys.” 

“Brotherton also pointed out that Price held a bench conference with the state’s attorneys and an attorney who represented two of the respondents in the injunction case. That bench conference did not include the defendants who did not have legal representation, the order stated.” . . .

In his order, Judge Brotherton explained the relevant rule of civil procedure, saying “The Court hearing a recusal motion must determine whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge’s conduct, would have a reasonable doubt that the judge is actually impartial.”  Looking at the evidence in Tuesday’s hearing, he concluded “that such a reasonable doubt does exist.”  

The newspaper article states that “Price did not sit in on the proceedings Tuesday and said he did not hear any of the evidence or testimony.  ‘I respect him. I respect him as a jurist,’ he said of Brotherton. ‘He’s a fine judge’.”  [Any bets on whether Judge Price has read the newspaper coverage yet?]

The case will go forward with another judge, but the district attorney and police are probably a bit anxious, as the temporary injunction runs out today, Jan. 31, 2007.  Nevertheless, when leaving the courtroom yesterday, the attorney who handled their motion for recusal told a group of young men sitting in the front rows, ‘Nothing changes, guys. You’re still under the injunction’.”

  Madam Justice Bonnie Wein of the Ontario Superior Court of Justice has decided that 72-year-old paralegal Joseph De Teresi belongs on the Ontario Vexatious Litigant list, after he brought 73 lawsuits in the past 10 years.  According to the Toronto Globe and Mail, De Teresi — dubbed “the king of vexatious litigation” — filed “a blizzard of legal paper that targeted everyone from clients and landlords to banks, law firms, credit agencies and computer companies.” “Judge gives the boot to the king of the suit,” Jan. 30, 2007.  De Teresi will now have to ask permission before before starting any sort of litigation in an Ontario court.  He says he’s too old to appeal or bring any more suits, and told the Toronto newspapear that:

“he has won about 60 of his lawsuits and settled 10 more in his favour. However, he said his admirable success ratio and the validity of his claims counted for nothing with Judge Wein.

” ‘Superior Court judges in Brampton do not like self-represented litigants,’ Mr. De Teresi said. ‘That is a fact. . . . She never read my [written] submissions, and she practically didn’t allow me to make any submissions in court’.”

The opinion is not yet available at the CanadaLII website, so I can’t tell you Justice Wein’s reasoning or the factual basis for the decision.  Apparently, this law suit involves the Brampton, Ontario, law firm Dale Streiman & Kurz, “which decided to fight back after Mr. De Teresi refused to pay its legal bill for $367.45. . . . Mr. De Teresi refused to pay his legal bill and sued DS&K for remitting the unpaid bill to a credit agency.”  DSK says it spent the equivalent of ten of thousands of dollars fighting De Teresi, in order to stop his practice of “persistently us[ing] the courts to harass opponents in an attempt to force settlements that are to his advantage.” 

 Vexatious litigation rules and laws are usually aimed at self-represented parties — probably because attorneys would face ethics discipline for similar practices on behalf of represented clients.  A good working definition is given in Wikipedia:

“Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary.   It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action.”

Current or former member states of the British Commonwealth seem especially likely to have vexatious litigation rules and lists.  One commentator notes that England has had such laws since at least 1896.  You can find the current list for the United Kingdom (England and Wales) here.  Victoria, Australia, appears to apply their rules sparingly: “As of 2006, only 13 people . . . had been declared vexatious litigants since the law was introduced in 1930.”

In the USA, California has a well-established system for tracking and controlling vexatious litigants. (Code of Civil Procedure, section 391(b))  Click for a useful FAQ about the California VL system.  Here are a couple of other resources on the topic:

• The Law Reform Commission of Nova Scotia issued a Report on Vexatious Litigants (April 2006), which explains the problems caused by VLs and the issues raised by trying to limit access to the courts.  It notes that the federal courts in Canada have rules against VL, as do seven Canadian provinces.
• Martin Frost, who had been deemed a vexatious litigant in Scotland, has collected a lot of information on the history of such laws, including articles, case law and legal arguments.  He writes, “It is my belief that in my case (which I regard as an abuse of process by the Scottish Executive against me) and no doubt in many others to come that vexatious proceedings will become common place for those that govern and judge us will seek to deny access to those of us that do not toe their particular mind set.”

    Paul Weinbaum lives in Las Cruces, New Mexico.  Although “las cruces” means “the crosses” in Spanish, Weinbaum believed the City and its public school district were violating the U. S. Constitution by depicting Christian crosses on their logos, buildings and vehicles.  He therefore filed pro se lawsuits against the City and the Schools of Las Cruces.  Last November, Weinbaum lost his case against the City (see Religion Clause weblog, Nov. 10, 2006) and, in December, 2006, he lost his case against the school district (see Religion Clause, Dec. 9, 2006).   His appeal of the school case is pending before the 10th Circuit Court of Appeals.

   The Las Cruces school district is not waiting for the appeal to be finalized to make its next move.  It has filed a motion asking for about $16,000 in legal fees from Weinbaum, claiming that the suit against the schools was clearly “frivolous,” once the City won its case.  Las Cruces Sun-News, “Crosses case may prove to be pricey,” Jan. 27, 2007 (click for LCPS motion to recover attorney’s fees and for Plaintiff’s response)  The District says it actually spent $53,000 on legal fees defending Weinbaum’s charges, but is only asking for fees accrued after the City’s case was decided.

Without more information and research, I can’t have a clear opinion on whether it was frivolous for the plaintiff to continue his lawsuit once he lost the case against the City.  (Remember, in legal terms, “frivolous” means without a colorable claim in fact or law.) It’s possible that different criteria might apply in the context of a school district (with young, impressionable minds) than for the City as a whole.  The points mentioned in the Sun-News article as Mr. Weinbaum’s defense against the frivolousness claim do not, however, appear to hold much water:

• He told the Sun-News, “We never asked for any money, which should be a sign,” the lawsuit is legitimate.  
• He told the Court: “The pro se plaintiff (Weinbaum) never wanted his concerns to reach the legal system as he believed, perhaps naively so, that the defendants would be open to ideas about equality this being the 21st century, they being elected individuals who swore an oath to obey constitutional laws.”  and,
• According to the news article, he continued that “he was open to settling the case before trial, but attorneys for the district wanted an ‘all or nothing. resolution which forced him ‘against the “wall of no compromise”.'”

We’ll let you know whether Mr. Weinbaum has to pay the School District’s legal fees.  If he does, it will be an important reminder that bringing a pro se lawsuit can be quite expensive, for defendant and plaintiff.  Common sense, and a good understanding of the law and of your adversary, are needed when deciding to bring or to continue any lawsuit.  

  In July 2004, South Carolina insurance agent Ernest B. Chavis made a social visit to his former neighbor Annie Belle Weiss, who was then 91-years old.  Because she trusted him to be “objective” (having also had business dealings with him), Ms. Weiss asked “Can you help me make a will?”  Chavis agreed to help her with a simple will and “she directed [Chavis] as to how she wanted her property divided.”   His good deed resulted in a lawuit by her disgruntled heirs and, this week, in a finding that Chavis had engaged in the unauthorized practice of law [“UPL”].  See NYTimes/CNET, “Police blotter: Heirs sue over will-making software,” by Declan McCullagh, for News.com, Jan. 24, 2007; via Howard Bashman and Orijit Ghoshal)

What behavior, which was done without pay, won Chavis this condemnation?  According to the unanimous decision in Chavis v. Franklin (Supreme Court of South Carolina, Opinion No. 26251, January 22, 2007), he “used a ‘Quicken lawyer disk’ to generate a generic will on his home computer and he filled in the blanks.  He brought the will to Ms. Weiss on July 31 when he went to visit her in the hospital and she signed it.”  He also drafted a power of attorney for her (which the Court also deemed to be UPL). “The will names respondent as personal representative of Ms. Weiss’s estate but he is not a beneficiary.”    
 Quicken’s WillMaker Plus 2007    

Here’s the Court’s reasoning in declaring Chavis’ conduct to be the Unauthorized Practice of Law [emphases added]:

• “The preparation of legal documents constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. [cite omitted]  Even the preparation of standard forms that require no creative drafting may constitute the practice of law if one acts as more than a mere scrivener. The purpose of prohibiting the unauthorized practice of law is to protect the public from incompetence  . . . (“The amateur at law is as dangerous to the community as an amateur surgeon . . . .”).”
•   “The novel question here is whether respondent’s actions in filling in the blanks in a computer-generated generic will constitute the practice of law.  Respondent selected the will form, filled in the information given by Ms. Weiss, and arranged the execution of the will at the hospital.  Although these facts are not in themselves conclusive, the omission of facts indicating Ms. Weiss’s involvement is significant.  There is no evidence Ms. Weiss reviewed the will once it was typed.  The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form.” 
• “We construe the role of ‘scrivener’ in this context to mean someone who does nothing more than record verbatim what the decedent says.  We conclude respondent’s actions in drafting Ms. Weiss’s will exceeded those of a mere scrivener and he engaged in the unauthorized practice of law.

The Court also dropped a footnote [#5] emphasizing “The fact that respondent received no compensation is irrelevant.”  It went on to favorably cite a Connecticut decision that noted “a lack of compensation in fact makes the situation worse” — because “the public, through natural cupidity, are the more readily attracted to something which appears to be a ‘giveaway’ project or a chance to obtain ‘something for nothing. ”  Grievance Committee of the Bar of Fairfield County v. Dacey, 222 A.2d 339, 351 (Conn. 1966).  How’s that for respecting consumers?

 Of course, it’s ludicrous to say that a nonlawyer volunteer who uses a proven product like Quicken (or a document preparation tool life LegalZoom), to help a friend with a simple will, is “as dangerous to the community as an amateur surgeon.”   Moreover, it is simply bad policy.  Rather than blindly apply old precedent to a modern context, this case would have been an excellent opportunity for the Court to bring the definition of the practice of law into the 21st Century.

As Villanova law professor Catherine J. Lanctot wrote in “SCRIVENERS IN CYBERSPACE: ONLINE DOCUMENT PREPARATION AND THE UNAUTHORIZED PRACTICE OF LAW,” 30 Hofstra Law Review 811 (2002, 44 pp, pdf), those who wish to apply UPL enforcement against such software products or document preparers “must not lose sight of the broader implications.”  Not only are constitutional challenges likely, but :

“[W]e must consider the ramifications of such enforcement. The public reaction would likely be negative. Enforcing unauthorized practice of law statutes against online document preparation services would be neither painless nor popular. The lay public, which already detests lawyers, generally perceives unauthorized practice of law enforcement as yet another way for the legal profession to line its collective pockets at the expense of consumers. . . .

“In addition, it is at least possible that these websites are managing to provide some consumers with a necessary service—basic legal documents at an affordable price. At a time when the bar seems to have abdicated its responsibility to provide routine, noncomplex legal services to the poor and middle class, it could well be counterproductive to try to shut down one vehicle for serving those unmet needs.”

The Chavis opinion basically denies the benefits of digital technology to any consumer who needs assistance using the software or website.  (Note: the Court goes through the motions of looking at other factors, but then concludes that Chavis engaged in UPL because he played more than the role of a mere scrivener.)  In fact, Chavis would appear to apply equally to printed self-help books or forms.  So, forget about helping your old auntie or parent, the grumpy old man nextdoor, or your non-techie spouse or sibling — and don’t even think about volunteering down at the Senior Center.   It’s an outcome that could easily lead the public to conclude, as Prof. Lanctot says, that UPL is “yet another way for the legal profession to line its collective pockets at the expense of consumers”

  For more background on the long battle between UPL and self-help materials, and on efforts to define the practice of law in a consumer-friendly way, see:

• “Nolo v. Texas — Self-Help Law and First Amendment Rights Protected” (Oct. 1, 1999). This press release contains a brief summary of the battle between Nolo.com and the Texas bar — when Texas lawyers tried unsuccesfully a decade ago to ban Nolo’s publications from being sold or distributed in the state, claiming they amounted to the unauthorized practice of law. [See Comment 2, below, for more details about Nolo v. Texas, as well as the battle over the ground-breaking bestseller How to Avoid Probate!, by Norman Dacey.]
• HALT’s UPL Project (where the legal reform group explains why the “unauthorized practice of law” should be limited to saying you are a lawyer when you are not.)
• The approach of the Federal Trade Commission and Department of Justice to defining the practic of law — Remarks to the ABA (2002)
• The postings and materials that are linked to f/k/a’s Unauthorized Practice page.

Thanks to a pointer from SelfHelpSupport.org, I spent some time yesterday at the website Illinois Legal Aid Online and found a few resources I’d like to tell you about.  ILA’s December 2006 eNewsletter describes two useful services:

• The video “Going to Court on Your Own“, which helps to demystify the court process for pro se litigants.  Because “Going to court on your own can be very confusing and intimidating,” the short instructional video “introduces those who cannot afford an attorney to the court process and instructs viewers on the basics of going to court pro se. The video is intended to help pro se litigants better understand the steps and procedures involved in going to court and familiarize them with the clerk’s office, the court room and the different people they will encounter at the courthouse.”  It was developed and produced by the Young Lawyers Section of the Chicago Bar Association, The Chicago Bar Foundation and Illinois Legal Aid Online [which is a pleasant change from the Illinois State Bar’s campaign to educate the public against using a “lawyer in a box”].
• The development of Automated Forms Online for Legal Aid and Pro Bono Attorneys is also discussed in the eNewsletter, with links to the materials.  The forms, pleadings and documents can be found on www.IllinoisLegalAdvocate.org and www.IllinoisProBono.org. “Automated forms make it easier and faster to draft documents because the user is presented with only a series of questions to answer using a computer. When all of the questions are answered the user clicks a button, and the completed forms appear on the computer screen and can be saved or printed.” The first forms for attorney users are now live on the websites:  Power of Attorney for Health Care; Power of Attorney for Property; Resignation of Agent for Power of Attorney; and Notice of Revocation of Agent for Power of Attorney. Divorce pleadings, adoptions forms, and eviction defense forms are expected to be online soon.

Note: We discussed document assembly online in a posting last October, where we described the National Public ADO (Automated Documents Online, or NPADO), which can be used by individual consumers or their advocates, and is ”a proven facility for delivering interactive interviews and document generation to self-represented individuals and advocates alike, from a web-connected browser, anywhere and anytime, using industry-standard software” — for free!  For more on automated document services, see yesterday’s posting about LegalZoom.

Finally, I discovered that Illinois Legal Aid has created self-help and informational materials for defendants or respondents (which will be noted at our posting on help for the pro se defendant).  Along with many other general or plaintiff-oriented self-help articles, you’ll find links to the following pieces in the SideBar of this Illinois Legal Aid Online webpage:

•  How Do I Respond to a Lawsuit in the Circuit Court of Cook County?
   How Do I Settle an Eviction Case with My Landlord? 
   How to Defend Against a Default Judgment If Your Landlord is Trying to Evict You
   How to Get More Time after You Are Ordered to Move Out by a Judge 
   How to Help Defend a Foreclosure Case
   How to Respond to a Petition for Rule to Show Cause
   I am Being Sued in Kane County for an Amount of $10,000 or Less
   What Can I Do If I Am Sued for Mortgage Foreclosure?
   What Can I Do If My Landlord Wants to Evict Me?
   What To Do When You’re Sued by Mistake

 Rick Georges, a member of Team Shlep, had an interesting posting last week at his Future Lawyer weblog about LegalZoom Online, which calls itself a “Legal Documentation Service.”   Saying “We can help you take care of common legal matters – without an attorney,” LegalZoom explains that you can “Save time and money on common legal matters! . . . [and] create reliable legal documents from your home or office. Simply answer a few questions online, and your documents will be prepared within 48 hours.* We even review your answers and guarantee your satisfaction.”  (via Oregon Legal Research, Jan. 17, 2007)

After taking a look at LegalZoom, Rick says “lawyers who don’t use technology will not be able to compete.”  He explains:

“We need to offer legal advice AND document drafting at a competitive price, or we will not have to worry about law practice anymore. It will be gone. There is no subsitute for a competent lawyer’s advice. However, we need to give the public value, or they will go elsewhere.”

Many publications have written about LegalZoom, but Rick’s nudge got me to spend some time at the website over the weekend.   It is an impressive enterprise, offering document creation services in the following areas: Copyright, DBA, Divorce, Immigration, Incorporation Services, Limited Partnership, Living Trust, Living Will, LLC, Name Change, Patent, Power of Attorney, Pre-nuptial Agreement, Real Estate Leases, Small Claims, Trademarks, Will.  

 Furthermore, the advantages that they boast about — reviewing your answers for correctness and completeness; having assistance available at a tollfree number; using advanced provisions that are not found in simple “do-it-yourself” kits or manuals; printing out the documents themselves on good paper stock; “per project” and “lawyer-free” pricing that is far below what a lawyer might charge using hourly fees (they say up to 85% and give an estimate of the savings for each service); and a 100% Satisfaction Guarantee — would surely appeal (if only they knew about it) to many legal consumers who want to save money and keep control of the project, but are wary of, or don’t have time for, acting on their own.

LegalZoom also has an Education Center/Library, that “allows you to access the information you need to research your legal questions and make informed decisions” (e.g., FAQs, Legal Topic articles, Glossary, and Non-Legal Resources).  For example, see the Prenuptial Library.  The materials are available to anyone and seem like helpful introductions to the many topics covered.  In addition, you can fill out the LegalZoom questionnaire for each procedure for free and “At the end, you may decide whether or not you wish to purchase.”   That process may help many consumers decide whether they can go it on their own — using forms and information prepared by a court or by a self-help publisher — and/or need the direct advice or (unbundled) services of a lawyer.

I can’t endorse LegalZoom as a product, but I can say that it appears to be worth considering by consumers who need lawyering services.  The apparent success to date of LegalZoom is, I believe, an important milestone in the market for legal services.  Americans like to use a product or service that they have heard about and that has a track record; and entrepeneurs are much more likely to enter the market with competiing services (perhaps focused on a particular state or legal subject) if they see a model that works.   As Rick Georges suggests, lawyers — especially those serving the everyday, common legal needs of the average consumer or small business — may find themselves at a great disadvantage if they do not figure out a way to offer comparable value to their clients (in service, results and price).  Document-creation technology will surely be a part of that value package, allowing fees to be lowered because far less time will be spent with each client.

Having said that, I am not at all certain that the change — a revolution that brings true price and service compeition to the lawyering marketplace, and creates more viable choices for consumers — will benefit a large percentage of consumers any time soon.  Under the fold, I have excerpted a posting from my weblog f/k/a, “Internet Lawsites Encounter the Profession’s Guild Mentality” (Sept. 16, 2003) that discusses why the legal profession’s “guild mentality” has kept if from adopting new techology and responding to competitive forces, as lawyers try to hold on to income, control, and status, in the face of a new breed of consumer.

 California Gov. Arnold Schwarzenegger has included a civil right to counsel pilot project in his newly-submitted Budget 2007 – 2008.  Here’s how the California Budget website summarizes the proposal:

• Access to Justice Pilot Program – The Budget includes $5 million General Fund, on a three-year limited-term basis, to implement a pilot program in three Superior Courts to identify and provide representation to unrepresented litigants in a wide range of civil matters, including domestic violence restraining orders, family law, child support, paternity, unlawful detainer, and probate. This pilot program will improve the courts’ ability to handle its entire caseload and help relieve court congestion.
• Update (Feb. 6, 2007): Learn more about this Pilot Program in our follow-up post. 

The staff of the Brennan Center for Justice at NYU Law School says “The proposed $5 million pilot program would deliver funding on a three-year limited-term basis to provide counsel for pro se litigants in high stakes civil matters.”” (via Cyrus Dugger at TortDeform weblog, Jan. 19, 2007)  The civil right to counsel is a major focus of the Brennan Center’s Access to Justice program.  Last year, two staff members published “State Statutes Providing for a Right to Counsel in Civil Cases,” Clearinghouse Review Journal of Poverty Law and Policy, by Laura K. Abel and Max Rettig, July–August 2006 (26-pp pdf).  Here’s the introduction to that article:

“Over the past few decades, states have passed hundreds of laws and court rules guaranteeing the right to counsel in a wide variety of civil cases. These laws have received little attention and merit more. They are surprising in their number (in the hundreds) and in the many different types of cases they cover (family law matters, involuntary commitment proceedings, medical treatment, and many others). They also vary widely in the extent to which they ensure that the counsel provided is competent and effective.  In this article we give an overview of the statutes and rules.

“The genesis of state right-to-counsel laws varies. Some implement court decisions establishing a constitutional right to counsel in one or more types of proceedings.  Others implement federal laws requiring the provision of counsel to specific types of individuals, such as members of the military or Indian children facing removal from their parents. Still others flow from a legislature’s belief that providing counsel in a particular type of case is good social policy.

“Here we discuss the types of cases where a statute or court rule provides for a right to counsel and the extent to which state right-to-counsel statutes attempt to ensure that counsel is competent. A table of a cross-section of state right-to-counsel statutes follows.”

 Abel & Rettig put together a lengthy table showing state laws mandating (or giving discrection to appoint) civil counsel in many subject areas.  Of course, there may be additional laws or amendments since publication.
 

IN her biennial State of the Judiciary Address given to the 150 joint members of the State Legislature, Chief Justice Karla Gray called for the legislators’ help in “[meeting] our constituents’ needs for – and constitutional guarantees to – quality and reasonably timely justice.” (Newspaper Article, 1 page). Proposed items in the Judiciary’s 2007-2009 budget include:

$3.9 million to upgrade Information-Technology Systems across District Courts and Courts of Limited Jurisdiction

$1.6 million to address pay-equity issues amongst all court staff

~$400,000 for children’s advocacy programs

$300,000 to improve security in District Courts

$250,000 for additional staff to the Supreme Court

OF the $250,000 for additional staff, a portion would be used towards hiring a pro se law clerk who, along with an appelate mediator, would help “resolve a significant portion of [the Courts’] caseload.” House Bill 60 (HTML document, 2 pages) addresses the proposed Self-Help Law Program to be administered by the Supreme Court, enumerating a number of charges along with the bill’s purpose:

(1) providing all Montanans with user-friendly information about Montana’s civil law, courts, and legal system;

(2) providing state-level, self-help legal resources, tools, information, and training materials on a statewide basis in a cost-effective manner emphasizing technology and volunteer services; and

(3) facilitating the efficient use of judicial resources in civil court proceedings that involve self-represented litigants.

THE bill details a $1 million appropriations note to provide education and resources for 2 years. Passed with unanimous, bi-partisan support by the 2006 Law and Justice Interim Committee which created the bill by order of 2005 Senate Joint Resolution 6 (HTML document, 2 pages); HB60 is yet to be heard by the House Judiciary Committee of the 60th Legislative Session. SJR6 coincided with the Legal Needs Survey of 2005 (PDF Document, 4 pages) conducted by the State Bar which concluded that approximately 83% of the 207,501 unmet legal needs of low-income Montanan Households receive no attention from an attorney. Chief Justice Gray was singing a very similar tune in her original testimony to the Law and Justice Interim Committee in 2006:

“Right and justice shall be administered without denial or delay. For families and low income people in your district, your constituents, my constituents, the people of the state of Montana, the need is huge. The access to justice community has leveraged every hour, every nickel, about ten times farther than anyone else anywhere in the country trying to address these issues. [Myself] personally, and the courts of this state, have nudged, cajoled, encouraged, and semi-coerced lawyers into meeting their professional obligation of rendering pro bono service and the Legislature can take it to the bank that the court will keep doing that, but the fact is, there are never going to be enough pro bono lawyers to represent every low income person in our great state who has legal problems and needs to get into court.”

SHE has given the people of Montana, and their legislators, time and time again her expert opinion on what the legal needs are for low-income Montanans. Chief Justice Karla Gray’s message of dire need has been championed repeatedly, only time will tell how many people in positions of power have listened; they have until April 27th.

 Robert H. Frank made a very good point yesterday, in a New York Times column, “Payday Loans Are a Scourge, but Should Wrath Be Aimed at the Lenders?”  (January 18, 2007; via CL&P Blog).  Using outrage at payday loan lenders as an example (see our prior post), Rich correctly notes (emphases added):

“[T]he supply of moral outrage is limited. To maximize its usefulness, it must be employed sparingly. The essential first step is to identify those who are responsible for bad outcomes. This is often harder than it appears. Failure at this stage steers anger toward people or groups whose behavior is, like the alpha lion’s, an unavoidable consequence of environmental forces. In such instances, moral outrage would be better directed at those who enact the rules under which ostensibly bad actors operate.”

Frank is right that the growing culture of consumer debt, with all of its negative consequences, “stems far less from the greed of lenders than from recent liberalizations of lending laws.”  He sees the deregulation that has removed traditional limits on lending abuses as the result of campaign contributions to politicians from the banking industry.  Frank’s conclusion:

 “Those who feel that payday lending is a bad thing are inclined to vent their anger about the hardships it has created. But outrage directed at payday lenders cannot prevent those hardships, just as outrage directed at alpha male lions cannot prevent them from killing cubs. A more deserving target would be legislators who supported lax credit laws in exchange for campaign contributions from lenders — or, better still, those who have steadfastly resisted campaign finance reform. “

Similar analysis can be made in many other areas of our economy and our legal system.  You can use our Comment section to help us make a list.

  The Jan. 16, 2007 edition of HALT‘s bimonthly eJournal gives a summary of the legal reform group’s accomplishments in 2006.  Included was the publication of three new Citizens Legal Guides. In addition to one on Small Claims Court, and another on Living Trusts, HALT produced a 7-page online brochure “Lemon Laws: What Do I Do If My Car Is a Lemon? ” (2006, pdf version)  It’s a great place to go for an introduction to the laws that protect you when you’ve purchased a new vehicle with defects that prove to be unrepairable (apparently, about 1% of all new cars). The guide can “help you determine if your car is a lemon, tell you what you can do about it, and direct you to resources for additional information.”

The HALT brochure reminds us that “Each state has enacted its own ‘lemon law, which entitles consumers to a replacement vehicle or a refund for a defunct car. These laws are based upon the federal Magnuson-Moss Warranty Act and the Uniform Commercial Code.” Generally, you’ll need to know:

• the criteria your state uses for deciding whether a car is a lemon;
• when and how consumers must give notice to the manufacturer; and
• the remedies you have as a consumer if the manufacturer is unable to repair the vehicle within a set number of attempts.

If you aren’t able to reach an agreement with your auto dealership, the next step is arbitration.  HALT briefly explains the process and says “Hiring a lawyer is not necessary for the arbitration as long as you are organized and prepared.”  If you are unable to resolve the dispute with the manufacturer through arbitration, “you can file a claim in civil court.  Although it isn’t required, you may feel more comfortable hiring a lawyer before going to court.”  If so, HALT recommends finding a firm that specializes in lemon law disputes and sets out questions to ask to help determine if a firm is likely to represent you well.  The last page of the brochure has many good sources with additional information on lemon laws.  The guide concludes with good advice:

  “Regardless of how you end up taking action, careful preparation and patience will increase your chances of making a successful claim under your state’s lemon laws. These laws are on your side to help, but you’ll need to be organized and follow the procedures required by your state.”

State Laws:  Your rights will depend on the laws of the particular state where you live or where you bought the car.  One place to look is Lemon Law America, which has links to each state’s lemon law, as well as contact information for “affiliated” lawyers around the country who are experienced with lemon law claims.

Other Recources: You can find more Lemon Law information, and more links to helpful resources at Nolo.com, in the article “Your Rights If Your Car Is a Lemon.”  

  Consumers (especially anyone wanting to act without a lawyer) and consumer advocates should also consider purchasing ($16) Return to Sender: Getting A Refund or Replacement for Your Lemon Car, by Nancy Barron, which the National Consumer Law Center says “provides practical advice on how consumers can successfully enforce this right through their state lemon law, either on their own or with the help of a lawyer.”  

More generally, the Federal Trade Commission has compiled a lot of online materials for consumers relating to buying (and financing) a new or used car.

• update (Feb. 12, 2007): See Mary Whisner’s fuller treatment of information about buying vehicles in her shlep post Getting Wheels (Feb. 11, 2007)

Last June, I started observing and taking statistics on patron questions at
our courthouse library.  My goal was to get an idea of how the library is
used by the courthouse, legal and lay communities.  The questions that
required more substantive responses—some significant interaction such as
educating a patron on the types of legal information resources available—
gave me the opportunity to get a glimmer of the legal information needs of
our patrons.

The largest portion of such questions, 40%, were general in nature, e.g. not
related to any specific area of law.  Examples of such questions include how
to generally research a legal issue or use an electronic database.  
Significant question subject areas included family law (10%), real property
(6%), guardianship of minors (6%) and government law (6%).  Interestingly,
the largest specific category was legal procedure (13%).  Typically, the
questions asked in this area were requests for forms or for materials
explaining how to perform a certain procedure, e.g. filing a mechanics lien;
obtaining an emergency court date, statutes of limitations and how to bring
an appeal.

These numbers are not the result of a scientific survey.  They also do not
distinguish between whether or not a questioner was an attorney or pro se.  
(If I had to guess I would say the break down would be 40% attorney and 60%
pro se).  I do think they raise an important point that many people using
the courthouse, and especially pro se’s are in need of instruction in the use of legal resources as well as the courthouse procedures.

Nevada Supreme Court Justice Robert Rose retired on Dec. 29, 2006, after 18 years on the high court.  In an interview given to the Nevada Appeal, “Justice Rose says it’s time to step aside (Jan. 15, 2007), the retiring justice listed helping to create Nevada’s pro se assistance programs high on the list of his accomplishments.  According to the Appeal:

One effort he says he spearheaded is the “Pro Se Counsel” program designed to help litigants who don’t have legal counsel. Rose said the system now provides more than 500 different forms to help those without lawyers handle issues, including divorce and guardianship to landlord-tenant disputes.

“That will probably help more people than anything else I’ve done on the Nevada Supreme Court,” he said (emphasis added).

I’ve been praising Nevada’s efforts to help pro se litigants for years.  The Clark County Family Law Self Help Center, in Las Vegas, is an excellent example. (see our prior post for some remarkable statistics on the use of the Self Help Center in Clark County).  As Chief Justice, Robert Rose had his priorities straight and his efforts should be applauded. [By the way, he had his priorities straight in 1977, when, as lieutenant governor and president of the state Senate, he broke a tie to pass the Equal Rights Amendment.  That vote cost him the gubernatorial election in 1978 and sent Rose back to practicing law.  Instead of a career in politics that had been predicted to make him governor and then U.S. Senator, Bob Rose was soon a superior court judge and won election to the Supreme Court in 1988.]

• You’ll find links to the 500+ Nevada standardized court forms in the SideBar of the courts’ pro se resources page.

  No message in Rev. Martin Luther King, Jr.’s powerful Letter from a Birmingham Jail deserves repetition in today’s America more than his reminder that “Injustice anywhere is a threat to justice everywhere.”  As Greg Worthen noted today in Blawg Review 91, that truth has meaning in many aspects of the life of our nation, not merely in the context of race.  In honor of Dr. King, others are writing today about justice and equality in our criminal justice system, and in our politics, education, economy, etc. (see the compilation of such “blawg” postings at the foot of BR91). 

shlep‘s focus, naturally, is justice for all within our civil justice system.  Martin Luther King Day is a great opportunity to remind ourselves and our readers that injustice within our courts is not just ironic, it is inexcusable.  There will be no true “justice for all” until justice is accessible and meaningful to every person in America.  Please allow me to repeat a quote by New Hampshire’s Chief Justice John T. Broderick, Jr., from his Remarks on Access to Justice (February 16, 2006):

 “[I]f those in poverty or near poverty do not have meaningful access to the courts, the judicial system will not have fulfilled its constitutional obligation or the fundamental promise of our republic.  Equal justice under law is not achievable if poverty barricades the doors to our courthouses and allows some, but not all of our citizens, a fair and impartial forum to redress their grievances. Neither will it be achieved if we [viz., lawyers and judges] do not assume ownership.”

It is estimated that 80% of the legal needs of the poor and near poor go unmet in this rich nation.  As discussed here, there will never be enough lawyers to serve the needs of every American [indeed, assigning lawyers to “solve” the legal needs of every American would waste dollars better used elsewhere.]  Instead, as we say on our shlep About page:

The best way to ensure that the non-rich also have access to necessary legal and judicial services is to give them the ability and the option to formulate adequate solutions themselves, including acting as pro se litigants in court.

The numbers of self-represented parties is very large and growing in courts across our nation.  We must acknowledge, as a New Hampshire Supreme Court Task Force did in its 2004 Report “Challenge to Justice” (discussed here at f/k/a), that pro se litigants ”come into their court, on their own, with a conflict or change in their lives, and they expect a resolution. That is their constitutional right.” 

Although it doesn’t take Dr. King’s courage (in the face of physical threats, imprisonment and hatred) to fight for the right of every American for access to justice, the pro se movement and efforts to help the self-represented are an important continuation of his battle to remove injustice from our society.  Economic inequality is a continuing vestige of racial and ethnic discrimination.  Poverty (and sometimes merely being “un-rich”) has too often, and for far too long, prevented meaningful access to our civil justice system. 

 Ensuring that wealth is no longer the key to the courthouse and that our judicial system fairly serves every American is, therefore, an obligation of all who are responsible for the operation of our legal and judicial system — that means judges and court staff, lawyers, politicians and office-holders, and also voters.   Taking up that obligation honors and helps us achieve Dr. King’s dream that justice and equality for all would become America’s reality.