shlep: the Self-Help Law ExPress

 This is a good time of year to let people who make your life fuller or easier know that their efforts are appreciated.  Although I’m not exactly a secret admirer of SelfHelpSupport.org, I often take the website and the folks behind it for granted — forgetting to tell them and you how helpful their services and information are for the self-help legal community.

SelfHelpSupport.org is funded by the State Justice Institute and describes itself as a “Network for Practitioners of Self-Help Programs as well as an online Clearinghouse of information relating to self-representation.”   I check out the SHS home page daily to look for new Announcements or Releases by the Network, and to see what’s new in their Library or what they have found in the news media that I’ve missed. 

This past week, I discovered:

• A link to Montana House Bill 60: “Access to Justice Civil Act, Self-Help Program”, which was introduced by J. Parker and would provide for “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.”  If passed, the law would fulfill  the self-help goals of the State’s Chief Justice, discussed by Orijit Ghosal in this post last month.  A hearing on the Bill was held on Feb. 7, 2007.
• A Small Claims Court Self Help Video–from the 12th Judicial Circuit Court in Florida.
• 20 TIG Conference presentations (made to the annual LSC Technology Initiative Grants Conference, Feb. 2007) — on topics such as evaluating statewide websites and non-web projects, online community building, innovative case management systems, hot docs service delivery, thwarting cyber piracy, Live Help programs, etc.

  If you’re an active self-help law practitioner, you are surely already a member of the Self-Help Support Network — or have no excuse not to join right now.   I’d like to urge other readers who have a professional, organizational or academic interest in assisting self-represented litigants to join — especially, those who would like to become active in their local courts, community or school, by starting, lobbying for, or volunteering to help, a self-help center or project.  Membership is free and brings with it access to the voluminous information in the SHS Library, the services offered through the site, and the nearly 2000 network members.  

For example, if you were a member, you could take advantage of:

• the SHS Networking/Mentoring Service, which connects you with assistance from self-help programs around the country, by finding “the right person to help you think through and get ideas for how to launch or improve your self help program.”
  (see our prior post)  
• their February webinar, A Guide to Selfhelpsupport.org, where you can “Learn about the many programs, services, and resources offered by selfhelpsupport.org.” It is on Feb. 22, 2007 from 3-4pm (Eastern). Madelynn Herman will be presenting.
• the materials from the January Webinar on Self Help in Rural/Small Court Settings–with Frances Thompson, Eleanor Gerlott, and Mary Boudreau.

Note: The SelfHelpSupport.org site is for the self-help practictioner or advocate, and is not geared to the individual pro se litigant.   If you are a person who needs legal help or pro se assistance, or wants to find an attorney, you should consult the extensive materials described on the SHS webpage Resources for Self-Represented Litigants, or visit www.lawhelp.org to find legal resources in the state in which you live.  (Of course, your friendly shlep weblog is here for you, too.)

 I’m not going to get gushy about SelfHelpSupport.org.  I do want to thank all the people and groups that make it possible and keep it timely.  Consider yourselves hugged.

    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.

 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.

  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.

Rather than waiting around for more studies, grants or appropriations, a team of pro se advocates is capitalizing on resources already available in a given district, to develop three pilot projects that will provide “live help to pro se litigants” in three Wisconsin counties.  (The Third Branch, “Three new pro se pilot projects on tap,” Fall 2006; via SelfHelpSupport.org)  According to Ann Zimmerman, the statewide pro se coordinator:  

“Our intent is to make use of existing resources and creative ideas with track records in other states to help our state courts provide meaningful legal access to self-represented litigants while alleviating the burden of providing such assistance on court personnel.”

Each idea is practical and doable.  As described in the article:

• One pilot project will involve providing services through the public library system, with training provided to the public librarians by staff from the State Law Library and local courts.
• Another project will involve using videoconferencing technology to connect pro se litigants with volunteers located in another county.
• The third project will involve developing a self-help clinic located in a county courthouse. The clinic will be staffed by volunteer lawyers and others, possibly with additional assistance from interested court members.

So, what are you waiting for?  Using the resources you already have, there are many ways to provide more and better pro se services (see, e.g., “Best Practices in Court-Based Programs for the Self-Represented,” from the Self Represented Litigation Network, 2006, 44 pp. pdf). With commitment, drive and ingenuity you can improve your local self-help assistance program and help make justice work more efficiently and fairly.  Not too expensive and not too shabby. 

Across the “blawgiverse,” law-related weblogs have been closing 2006 with a ten-day Lawyers Appreciate Countdown (find links here).  In addition to writing a piece on what lawyers appreciate, each participant “tags” three other webloggers, and Robert Ambrogi brought me into the appreciation circle with a tag-invitation today. 

Of course, there is no way that I can say what the million-plus practicing lawyers in America personally appreciate.  Instead, my declaration is hortatory and aspirational — stating what I hope lawyers do, or soon will come to, appreciate.

  As “officers of the court”, members of the Bar have a special obligation to help assure that justice is available to all who come within the judicial system.  As holders of special rights and powers within our legal system, lawyers have the additional duty to help assure that every person in our society has meaningful access to justice. 

In this context, lawyers appreciate pro-se-friendly courts.  Lawyers know:

• the courthouse door is effectively blocked for a majority of Americans, if entry can only be accomplished after retaining a lawyer at market-level fees
• the fundamental right to appear pro se cannot itself assure that justice is done fairly and effectively, if the pro se litigant does not understand his or her rights or cannot comply with procedural requirements that are prerequities for being heard, or for presenting facts and equities in a competent manner
• the image (and reality) of pro-se-intolerant or unfriendly courts will keep many individuals from asserting or protecting their rights in court, despite meritorious claims
• justice will not be achieved in individual cases, if opposing counsel takes unfair advantage of an unrepresented party’s ignorance of the law or lack of adversarial skills, so that the court is unable to consider all important facts and factors
• justice will not be effective, efficient, or timely within a court or court system, if the court is swamped with unprepared pro se litigants 
• the attitude of the organized bar toward self-help assistance in courts is crucial to achieving meaningful access to justice — and
• they must, therefore, renounce action that opposes self-help assistance (in a misguided attempt to preserve the financial interests of the legal profession), and instead must use individual and organized efforts to promote and create adequate, integrated self-help resources in every court (see, e.g., resources and strategies discussed here, here, and there)

 p.s.  I am hereby tagging George Wallace, in his Fool in the Forest or Declarations & Exclusions persona; Martin Grace of RiskProf; and “Ed”, the anonymous Editor of Blawg Review, and hope they will be able to tell us their version of What Lawyers Appreciate. My alter egos at f/k/a — Prof. Yabut and dagosan — may also get into the act before the Dec. 31 deadline.

 update (Dec. 30, 2006): To no one’s surprise, our Blawg Review Editor friend Appreciates Link Love, and spreads it around rather liberally.  And, (Jan. 1, 2007): thanks to the miracle of time zone differentiation, our multi-faceted weblogging buddy George Wallace got his appreciation duties posted in time from his California home in the waning hours of 2006.  His piece, Lawyers Appreciate the Widsom of Socrates, is well worth the wait and your time.  George echoes Socrates’ “all I know is that I know nothing”, an approach that (like the zen concept of “beginner’s mind“) offers the optimal method for finding the right facts and the right answers. 

David Lat at Above the Law (Dec. 15, 2006) and Ted Frank at Overlawyered.com (Dec. 18, 2006) scooped their journalistic competition over the past few days with the fascinating tale of Ward v. Arm & Hammer, the “whacky,” “most frivolous ever” pro se  lawsuit by a federal prisoner in New Jersey.  Fark.com picked up the story from Lat’s legal tabloid on Dec. 16, and their blurb has already been clicked on almost 14,000 times.

   The case is indeed bizarre:  Lat has posted the entire complaint, and gives this summary: “Pro se litigant George Allen Ward is suing Arm & Hammer and its corporate parent, Church & Dwight, for $425 million. His theory of liability: failure to warn. The company failed to warn him that if he cooked up their product, baking soda, with cocaine, he might end up serving a 200-month prison sentence on crack cocaine charges.” 

What is even more bizarre, perhaps, is the fact that the decision in Ward v. Arm & Hammer, 341 F.Supp.2d 499, was issued by the Federal District Court in NJ on Oct. 21, 2004. and the granting of in forma pauperis status to Ward for his appeal by the Third Circuit — which was the point that so irked Ted Frank in the original version of his post — is dated Dec. 15, 2004.   That’s right: two years ago.  My Grandpa Bart might call this revisiting of an old wound Anniversary Agita.  Grandma Bettina might have prescribed some baking soda for that upset stomach.

Click to take ATL‘s “most frivolous lawsuit ever” poll.

Despite the staleness of their covereage of Ward, I agree with Overlawyered.com that the case clearly never should have been filed.  It wasted a lot of resources.  It is, nonetheless, as Lat surely knows, fun to contemplate in theory and would have made a creative hypothetical complaint, perhaps to be used by irreverent webloggers, or as another Urban Legend lawsuit.  A few serious points are also worth making:

   There are lots of folks making lists as the year comes to an end.  The American Tort Reform Foundation has just released its always-controversial annual list of Judicial Hellholes — naming jurisdictions that are purportedly “America’s worst jurisdictions in which to face a lawsuit,” because they are so plaintiff-friendly.  The Hellhole report has provoked the usual (and, often well-deserved) denunciations from strong detractors.  (via Legal Blog Watch) 

Pro Se Potholes 

That got us thinking, yesterday, while we composed our somewhat tardy Christmas Wish List   If we had deep-pocket financial backing, like ATRA‘s (from the insurance industry, the Chamber of Commerce, etc.), we could do a judiciary survey of our own.  The attitude of judges and court administrators is often crucial to whether pro se litigants, on either side of the aisle, can receive fair and effective justice.  (e.g., see here and there) If we had the resources, we would turn shlep‘s burning spotlight on Pro Se Potholes — on court systems in counties or states that put obstacles in the way of litigants appearing in court without counsel, or which have failed to promulgate or put into effect guidelines or adequate training for judges and court staff, regarding the treatment of pro se parties.

 Being even-handed, a financially flush shlep might even create a list of jurisdictions that are just too darn nice to pro se litigants.  Other course, we’d call it our Self-Help Special Ed Awards, in honor of former Massachusetts Bar President Ed Ryan, who believes courts are giving far too much help to the self-represented.   We’re gonna backburner this idea for now, however.

Until Santa fills our e-Stockings with holiday cash, we’ll have to work on an ad hoc basis, keeping our eyes peeled for likely Pro Se Pothole candidates, and relying on our readers to make (well-documented) suggestions.

Judge Sloop gets Honorable Mention  

For example, thanks to a blurb in today’s HALT eJournal (Dec. 15, 2006), we learned about Judge John R. Sloop, of the County Court in Seminole County, Florida.  He surely belongs on a permanent Pro Se Pothole Honor Roll, despite having been removed from the bench by the Florida Supreme Court .  Inquiry Concerning Judge John R. Sloop (No. SC05-555, Dec. 7, 2006; 26 pp pdf., via SunEthics, Dec. 11, 2006)  After displaying a major anger management problem on several occasions (which he tried to justify by claiming an undiagnosed attention deficient hyperactivity disorder), Judge Sloop outdid himself on December 3, 2004, when, according to a Count against him:

[Y]ou issued arrest warrants for approximately 11 traffic defendants who had not answered your docket call, but who were in fact, properly in an adjoining courtroom pursuant to their summonses or the direction of the judicial deputy sheriffs or bailiffs. You were informed of the circumstances, but nevertheless proceeded to have the arrest warrants carried out, and these defendants arrested, and you initially declined to release them. As a result, these traffic defendants remained in jail until their release was considered by another judge. 

The defendants (who all apparently appeared without counsel) were handcuffed and chained by approximately 15 officers and transported to the jail where they were processed and strip searched.   Sloop admitted the facts and the Florida Supreme Court concluded — against the recommendation below — that he deserved to be removed from the bench.  We like what they had to say, including:

• “Judges stand at the pinnacle of the justice system, and each judge in this State represents the face of justice. This is particularly the case in county court, a ‘people’s court’ where ordinary citizens come to resolve minor disputes and transgressions, often without counsel.”  And, 
• “. . . . we explained that ‘[a] judgeship is a position of trust, not a fiefdom. Litigants and attorneys should not be made to feel that the disparity of power between themselves and the judge jeopardizes their right to justice.’ In re Graham, 620 So. 2d 1273, 1277 (Fla. 1993).”

New York Law Journal columnists Lisa Bebchick and Elana F. Sinensky are right, the Holiday Season is a good time for lawyers and law firms to be thinking about “The gift of pro bono” (Dec. 1, 2006).   The term “pro bono” is short for the Latin phrase meaning “for the public good.”

 Although some lawyer groups have tried to stretch its meaning (see pro bono publico relations, at f/k/a), “pro bono” activity has traditionally meant “legal services rendered to poor persons or to public interest organizations dedicated to serving poor persons . . . or improving the availability or quality of legal services to such persons.”  Those who believe that self-help law is the most practical or efficient way to assure “justice for all” also consider services related to “simplifying the legal process for poor persons,” or to helping them to present their cases in court without (or with limited) lawyer assistance, to be solidly within the meaning of pro bono.  In addition, some would include in the definition of pro bono volunteer legal assistance to “organizations involved in social causes such as environmental, consumer, minority, youth, battered women and education organizations and charities” (while others might retort that one person’s “public interest” or reform cause can be viewed by another as simply politics, pet projects or pro malo publico).

Whatever your definition of pro bono legal services, there has been good news recently for anyone wanting to see an increase in such activities.  For example, Robert Ambrogi pointed last week to the article “Pro Bono Net Unveils New Pro Bono Manager Software” (probono.NetNews, Nov. 2006).  In it, Adam Licht, Pro Bono Net’s Director of Product Management, reports on the Gates Foundation funded initiative to develop a web-based platform (expected to be operational in early 2007) that will help law firms better manage and promote their pro bono work.   Similarly, the NYC Pro Bono Center was launched online recently.  As explained in the probono.NetNews article “NYC Pro Bono Center Makes Volunteering Easier Than Ever” (Nov. 2006), the website provides a full range of targeted support to young associates interested in volunteering (from info on organizations, to training and practice manuals). 

A Christmas Carol (1984) (with George C. Scott)   

If things are going so well, you might ask why this post mentions the fictitious law firm Scrooge & Scrooge in its title.   The first (and obvious) reason is to identify law firms that do not have an active pro bono “program” (including solos and other micros) with the character Ebenezer Scrooge, from Dickens’ A Christmas Carol.  The miser Scrooge is not only oblivious to the suffering of the poor.  His greed also affects the work environment of his employee Bob Cratchit, who clearly is on the verge of burnout as the story begins. (see Arnie Herz’s “The new law firm environmentalist,” at legal sanity weblog, and the article New York Magazine article, “Can’t Get No Satisfaction,” Dec. 4, 2006; via Legal Blog Watch)

But, I’ve also mentioned both Scrooge and Scrooge, because I’m wondering which Scrooge is behind the push within law firms to increase pro bono activities — is it the pre-enlightened Scrooge? or the loving, generous Scrooge after he’s been visited by the Three Angels?  (Or, more aptly, what combination of the two is it?)  The question came to mind because there seems to be such a great deal of effort to convince law firms that pro bono will somehow be good for their bottom line. 

 This morning, Andrew Bluestone of the NY Attorney Malpractice Blog pointed to yesterday’s shlep posting on unbundling.  We had included Forrest Mosten’s quote: “legal malpractice insurance carriers are looking to write policies for lawyers to unbundle and are hoping to give lower rates for lawyers trained and competent in the area.” 

Andrew said “We have never heard of this before,” and that reminded me just how chilly New York State’s bar has been toward unbundling.  Because the primary offices of about 120,000 active and retired lawyers (10% of the nation’s total) are in New York State, and because it is my home state, I thought I should take this opportunity to complain a bit about the NYState of affairs when it comes to limited representation in litigated matters.

As we’ve reported, many states have been embracing the use of unbundled, “discrete task”, services in order to increase access to justice in civil matters for the poor and middle class in America, and assist pro se litigants.  See, e.g. “California Expands Unbundling to all Civil Cases (Nov. 1, 2006), and Mass. project allows limited court appearances” (Oct. 29, 2006), which lists other states.  Despite progress elsewhere, Rochelle Klempner’s presentation to a May 2006 Conference on Access to Justice for the Self-Represented (which was hosted by the NYS Courts and included a session on Unbundling), noted that “To date, New York has neither adopted nor proposed any changes to its Disciplinary Rules or Civil Practice Laws and Rules.”  Her paper, “Unbundled Legal Services in Litigated Matters in New York State (May 2006, 14 pp. pdf) looks at the history of the issue in the State, and explains that:

On Thursday, Margaret H. Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, gave her Annual Address to the Massachusetts Bar Association (Nov. 30, 2006, pdf; MassCourts Press Release).  As an article in yesterday’s Boston Herald suggests, a significant part of the Address concerned the issue of unrepresented litigants in the Massachusetts courts. (“Some Civil Courts Short on Legal Help, Dec. 1, 2006) [Note: If you click “read the rest of this entry” below, you will find the entire section of Justice Marshall’s Address dealing with this topic.]

  Noting that 70% of litigants in Housing, Family and Probate Courts appear without counsel, Chief Justice Marshall proudly states that “Massachsetts is emerging as a national leader in addressing the challenges presented by self-represented litigants.”  As examples, she points to the brand new “limited representation” [unbundling] pilot project in the Probate and Family Courts of two counties (see our prior post) — with the good news that response of the Bar has been “overhwelming, and positive” — and to volunteer Lawyer-for-a-day projects in housing courts.  

CJ Marshall then notes” “Despite our best efforts and those of the bar, many litigants remain unable to afford an attorney. What of them?”  Her answer: “the excellent handbook providing critical information to those who represent themeselves, including information onhow to obtain counsel” which has been sent to every civil court clerk and law library in the State, and is available online.  [Ed. note: see “Representing Yourself in a Civil Case: Things to Consider When Going to Court” (81 pp, pdf) and MassCourts Self Help website] 

Although I do wonder whether the Bar has used its “best efforts” to make legal services affordable to all (e.g., how much fee-cutting has gone on?), I join the Chief Justice in applauding Massachusetts’ efforts to help those who appear pro se in their courts and to help spread the concept and use of unbundled legal services.  I am concerned, however, with Chief Justice Marshall’s statement:

“. . . we recognize that litigants are best served when they are represented by counsel.  Securing represerntation for all parties, in all civil cases, remains our goal.”

Granted, she is addressing the bar association and perhaps needs to placate those who fear that the self-help movement is taking away work that rightly belongs to the lawyer guild.  But, shouldn’t she be fighting that attitude, not perpetuating it?  The mantra “litigants are best served when they are represented by counsel” is simply overbroad, and sounds much too much like the approach voiced by the Massachusetts Bar President in 2001. 

A couple days ago, the often-thoughtful Ted Frank, of the American Enterprise Institute, wrote a posting at Point of Law, “The Coase Theorem in action” (Nov. 28, 2006), that was all conclusion and no evidence.  Having read the New York Times article “Only the Strongest Survive” (Nov. 26, 2006), Ted asserts that NY courts are “very pro-tenant” and concludes that the situation has not made tenants better off.  After telling us that many landlords won’t build new housing (despite high rents), decry the six months it can take to evict a tenant, and reject outright any tenant who has a housing court history, Ted concludes:

“Tenants would be much better off ex ante if landlords could trust the court system to resolve disputes fairly and quickly ex post.”

  I’d like to point out that:

• “the court system” is applying laws passed by legislative bodies, based on a long history of landlord abuses (and on the inherent importance of housing to individuals and families, rich or poor), and are not being arbitrarily “pro-tenant” or unfairly anti-landlord
• Neither the typical NYC landlord, nor Ted Frank, has (to my knowledge) supported raising taxes in order to create more judgeships and better courthouse systems and services, which would make the process work more quickly at Housing Court
• Any calculus of whether tenants are better off under the present system must take into account the many ways in which landlords have improved the treatment of their tenants and have been deterred from using their old abusive and neglectful tactics

 If your Thanksgiving was as tastey and relaxing as mine, you’ll understand why I never quite got around to posting here yesterday.  If I had, I surely would have joined in the annual obsession with things turkey.   Here, a day late, is a little gravy for your leftovers:

  1)  Turkeys Teaching Law: Does your self-help legal issue involve the Law of Contracts?  Professor Meredith R. Miller of ContractsProfBlog has opined once again this year that “nearly all contract law concepts can be learned with turkey cases (and one chicken case … and maybe one cow case).”  Prof. Miller stuck her neck out last year, and described two leading turkey cases: in “Turkeys, Oral Contracts and Mr. Gouge (Nov. 18, 2005), she serves up the decision in H&H Poultry Co. v. Whaley, 408 A.2d 289 (Del. 1979); and in “Turkeys, Damages and Alternative Obligations” (Nov. 17, 2005), she thoroughly digests Jacobsen-Reimers Co. v. Tozai Co., 42 Cal. App. 178 (Cal. App. 3d Dist. 1919).” (via Robert Ambrogi at Legal Blog Watch, in “Turkeys Teaching Law,” Nov. 22, 2006)

2) Talking Turkey: A quotation from the trial court judge in Prof. Miller’s posting on the H&H Poultry Case, is a good reminder that the judge’s role quite often is to get “a feeling for a close case, where I believe people may sincerely feel they are telling the story as it is.”  From my personal experience watching judges, lawyers, litigants and witnesses (and dealing with adolescents at home and in my office), I firmly believe that the most believable evidence (and pleading) consists in “talking turkey” — speaking plainly and to the point.  The pro se party should not, in my opinion, attempt to emulate lawyers who seem to be hiding the ball with arcane jargon, weasel words, rhetorical flourishes, or other verbal dodges meant to obscure the weaknesses in his or her client’s case and to distort the opponent’s arguments and evidence.   Speak plainly and honestly to the judge, if you want to increase your credibility.

3) Gobbledygook v. Critical Thinking:  Let’s be frank: While gathered around their holiday tables yesterdary, many Americans engaged in and/or were subjected to all sorts of specious, misleading or otherwise faulty arguments and opinion, masquerading as truth or wisdom (or even God’s Will).  You will, of course, also encounter such gobbledygook (those poor maligned male turkeys!) in the realm of legal advocacy.  A few days ago, I discovered A Practical Guide to Critical Thinking, by Gregg R. Haskins (Aug. 2006) This 18-pp. pdf. file “presents a concise introduction to critical thinking. It is intended as a handy tool to help anyone evaluate or develop sound reasoning and arguments.”  Here’s Haskins’ definition of Critial Thinking:

 A process by which we use our knowledge and intelligence to effectively arrive at the most reasonable and justifiable positions on issues, and which endeavors to identify and overcome the numerous hindrances to rational thinking.“

To help the reader become a critical thinker, Haskins explains a five-step process, offers an Argument Checklist for evaluating arguments, and presents four Hindrance Charts, which describe the Hindrances to critical thinking due to Human Limitations, The Use of Language, Faulty Logic or Perception, and Psychological or Sociological Pitfalls.  Within each category of Hindrance, Haskins defines numerous varieties, gives examples, and suggests critical thinking tips.   Haskins not only treats well-known ploys such as Ad Hominem Attacks, Slippery Slopes, and Red Herrings, but he also gives names and examples for many more stumbling clocks to taking “reasonable and justifiable” positions and recognizing arguments that fail to achieve those goals.   In his acknowledgement, Haskins credits two books, both by skepdic.com‘s Robert Todd Carroll, PhD, The Skeptic’s Dictionary (2003) and Becoming a Critical Thinker — A Guide for the New Millennium (2000).

4) Thankful for:  There are lots of important things that we should all be thankful about in our lives.   On a more modest scale, two articles that appeared online this week brought small bits of good news that could make pro se litigants grateful: a)  In his law.com column for Nov. 27, 2006, Howard Bashman explains the effects of two new Federal Rules of Appellate Practice that will go into effect on Dec. 1, 2006.  One of them is of special interest to pro se litigants:   The change to FRAP 25(a)(2)(D), a rule that addresses electronic filing on appeal.  Bashman explains a new mandatory hardship exception to any electronic filing requirements:

The amendment authorizes federal appellate courts to require that pleadings, briefs, and other papers be filed electronically, but the amendment also states that “[a] local rule may require filing by electronic means only if reasonable exceptions are allowed.” This so-called “hardship exception” is undefined, allowing the federal appellate courts that will require electronic filing on appeal to experiment with different formulations. The most obvious form of a hardship exception will apply to pro se litigants who do not have access to the technology necessary to prepare and file documents in electronic form.

[For help appearing pro se in an appellate court, see our prior post] 

 b)  The hordes of pro se litigants who appear in the Justice Courts of the State of New York, got good news this week.  Surely spurred on by the New York Times three-part series in September, describing the oft-malfunctioning system of small town and village courts (see our prior post), the NYS Chief Judge, Judith S. Kaye, announced a set of reforms that include “plans to increase training for the justices, to improve their supervision and to better monitor whether they are protecting basic legal principles like the constitutional right to a lawyer” and the requirement “for the first time to keep a word-for-word record of their proceedings, like other courts in the state.” (New York Times, “Justice Courts for Small New York Towns to be Overhauled,” Nov. 22, 2006)  Other major issues were not addressed in the proposals, because they would need legislative changes and face considerable political opposition from local politicians. “Donna Lieberman, the executive director of the New York Civil Liberties Union, said that while the reforms suggested by Judge Kaye were welcome, ‘these are Band-Aids on a system that needs serious systemic reform’.”