Tuesday, April 13, 2010

'Going it alone'

Go read the Texas Tribune's Reeve Hamilton's story on pro se litigants and the functional challenges they pose to a court system designed to service attorneys. Here are a few tidbits that jumped out at me:

"The Bexar County Civil District Courts saw 1,639 pro se litigants in March alone — approximately 31 per day."

"Lisa Rush, manager of the Travis County Law Library & Courthouse Self-Help Center, says members of the legal community 'need to reexamine who their customers are' as an increasing number of lay people are researching cases on their own. She has scaled back on expenses for law books and invested in bolstering the library’s online presence."

"People representing themselves who need to do research can access only 15 staffed law libraries in all of Texas."

"Fort Bend County Clerk Dianne Wilson has posted every document ever recorded in her office online, and she says a local judge has provided fill-in-the-blank scripts for what to say in court when seeking an uncontested divorce."

From Texas Supreme Court Chief Justice Wallace Jefferson in a recent op ed: “These pro se litigants must navigate the tangle of rules and precedent of their own, often forfeiting their rights on legal technicalities that might easily have been cured. Because there is no adequate system in place to assist self-represented citizens seeking access to the courts, confusion and frustration reigns for the litigant, the courts, and court personnel.”


CharityLee said...

What would be nice is if every attorney would agree to take on two or three pro bono cases per year to help out those in need...I plan to when I finally get there.

doran said...

Grits, I'm not a rocket scientist, but I can do simple math. There were 23 week days in March. Assume none of them were holidays and that the courts functioned on each of those days.

1,639 divided by 23 is approximately 71 per day.

correct me if I'm wrong.

Anonymous said...

I have provided many with legal advise and plan to give many pro bono cases after graduation. I wish others would follow my example. We - as attornys own this to the general public.

Anonymous said...

Anons, I'm so glad that you plan on doing pro bono work when you graduate. Trust me, you will be doing much more of it than you ever planned. Its nice to be all starry eyed when you come out of law school, but if you hang out your own shingle, reality is going to smack you in the face very quickly. Here's a little secret: your clients don't want to pay you for your services. You will learn very quickly to get the money up front, or you might not get it at all. Remember, Texas is a debtor's state. Suing some judgment proof client on a contract just costs you more money and time and even if you win, you won't be able to collect. Your only option is to withdraw from representation. If the case is too far along, some judges won't allow withdrawl, especially in criminal cases. You end up working for free, and the ones that paid you the least amount are the ones that will file a grievance the quickest. Just wait until you are in a week long trial, for which you haven't been paid, and meanwhile those bills just keep rolling in, and that student loan payment just keeps accruing interest. Your employees will demand to be paid, and there is no pro bono office rent. Also, at any given time, probably half of your clients hate you because they didn't get the outcome they wanted, and that will be all your fault. Some of them will say to you, you didn't win, I want my money back.
Why are attorneys the only professionals that are EXPECTED to work for free? Does anyone demand that doctors, dentists, accountants, or anyone else work for free? Aren't medical and dental services even more important than being able to file a lawsuit properly? Yet not only do we not expect medical professionals to work for free, we have a huge debate over how and how much they are to be paid. Yes, dear graduating lawyers, you will be doing a lot of free work, whether you like it or not. Good luck.

Gritsforbreakfast said...

Good catch Doran, clearly either the source or the transcriber made an error.

Anonymous said...

The general rule is that the dumbest thing to do is represent yourself. However, it is my experience that by representing myself, nobody knows the case or the client better than I do. In that light, I have been very successful. However, I did know when to hand it over to a professional for help when it looked like the case was going to get big and move into federal jurisdiction.

Just a note to 4/14/2010 01:33:00 AM: If the system weren't so complex and convoluted, you wouldn't have so many people seeking free legal advice to achieve justice. Which, is something that shouldn't be based upon the ability to pay. Of course, we all know who it is that keeps the system so complex and convoluted. You reap what you sow.

Jerri Lynn Ward, J.D. said...

Yes, we attorneys must preserve our cartel at all costs. After all, the justice system does not belong to the people. It belongs to us!

Instead of ensuring that the system makes sense to the non-lawyer, lets keep that "tangle of rules" and those form over substance "formalities".

After all, its been over a century since citizens routinely represented themselves in court quite well. The cartel...whoops!...I mean Bar put a stop to that, and we just can't go back. It simply wouldn't do in a modern society designed to consolidate power in elite groups, to have ordinary citizens take back control of the justice system.

Anonymous said...

There are tons of free legal services available to Texas citizens, but not for everyone. Imagine cases that involve crime victims whose rights have been violated? They become re-victimized (secondary victimization) by the system and are often left to consider self-representation to enforce rights violations. There are a handful of lawyers that assist with these types of cases and no entity that provides assistance with rights violations. This system is complex and difficult to navigate and requiring victims of crime to self-represent is wrong because they might not have the capacity to do so. We can do better. We need lawyers to help. Crime Victims First is a grassroots nonprofit victims' rights ombudsman and is trying to make a difference. See www.HelpCV1.org

Jerri Lynn Ward, J.D. said...

One other thing. I don't agree with the phrasing of the below:

"Go read the Texas Tribune's Reeve Hamilton's story on pro se litigants and the functional challenges they pose to a court system designed to service attorneys.'

Personally, I would rephrase that to say:

"Go read the Texas Tribune's Reeve Hamilton's story on the challenges caused by the court system to the very people it supposed to serve, but doesn't as it has been put in the service of lawyers."

D.A. Confidential said...

Anon @ 1:33 is right. As a prosecutor I see defense lawyers every day working hard on cases they know they won't get paid on. I always bend over backwards to help them because it's true that, for some reason, lawyers are expected to work for free. Try getting service from a plumber without paying...!

I also groan a little when I hear about how lawyers keep the system convoluted just to protect their fifedom. Sorry, but if you want a flexible and dynamic system, rife with checks and balances, it's going to be convoluted. Frankly, many of the defendants I see don't fully get what's going on even with a competent lawyer beside them. Which reminds me, there is a system in place to make sure defendants get representation when they can't afford it: the Constitution.

This may surprise some, too, but every DA I know would tell you the same thing: they'd rather deal with a good defense lawyer than a bad one, and pro se cases are generally a disaster for the defendant.

Finally, if we wouldn't trust brain surgery, Mozart's music, electrical wiring, or dentistry to people without training, why is there a sense we should be able to do so with criminal law?

Anonymous said...

I wonder how many of those 1,639 were simple dissolution petitions with no property, no children and where the possibility of future litigation contesting the pro se-drafted documents is practically nil.

And of that number, how many were original petitions, as opposed to being motions to set and other individual filings because that's the way they are enumerated in the Bexar County District Clerk's system.

I'm guessing that number could easily be divided by a factor of 4 to come up with the true number of individual pro se litigants for about 410 in just the family law area. Not all that much for a county the size of Bexar.

An issue not mentioned is the lengths the legal profession has gone to to create a nice little protectionism racket for itself.

Years ago the Texas Bar Association sued a website called Nolo.com for practicing law without a license. All they did was offer complete Practice and Pleading forms available at any decent law library, and they won at SCOTUS so now nobody can do that over the internet.

Of course, those forms can never be a substitute for effective legal counsel. But it is one thing to argue lawyers are over-burdened with pro bono cases on one hand while working your butt off to deprive the public of the very means to help themelves.

Especially when there are only 15 law libraries in the whole state of Texas.

Anonymous said...

@08:33:00 -- That is so kind of you to put your future as a lawyer, as well as your current liberty, at stake to either hold yourself out falsely as a lawyer or commit Unauthorized Practice of Law by giving people "legal advise." When you're not afloat on government-subsidized loans and are having to earn every dollar that comes in, come back here and write about how fun it is to dedicate the time necessary to competently represent -- not just sharing what you learned from yesterday's lesson on Palsgraf -- a person for without earning a dime. That warm feeling you get inside when you help someone out of the goodness of your heart? That's hunger.

The American and Texas legal systems are complex, admittedly sometimes unnecessarily so. But it is what it is, and when a person needs the expertise necessary to navigate it, that person should be willing to pay. There are those who truly cannot afford to pay for the necessary help, and for them there are resources, however limited.

For others, being able to pay for legal services isn't so much an issue of not being able to, as it is an issue of not wanting to take the necessary steps to be able to afford the services. Cable TV may have to go. You may have to make a cut in your cell phone plan. You may have to cut out going out to eat and taking in a movie. You may have to downgrade your vehicle. You may have to go into debt, sometimes significant debt. It may take very painful decisions, but finding the resources to pay for competent legal representation is possible.

These decisions are made all the more difficult by the fact that the areas of law in which pro se parties are most likely to appear -- family and criminal law -- involve situations in which the party does not want to be. Who wants to be wrapped up in a divorce or custody dispute? Who wants a DWI? No one that I know of. The attorney who is charging for his services becomes the target of derision, because he is there and is the instant cause of the party having to dig deep and make tough decisions to pay for the services.


Gritsforbreakfast said...

DAC writes: "if we wouldn't trust brain surgery, Mozart's music, electrical wiring, or dentistry to people without training, why is there a sense we should be able to do so with criminal law?"

Just to have said it: Every day people self-medicate their mental illnesses with booze and drugs, crappy musicians botch good music, untrained amateurs jerryrig their fuse boxes, and people pull teeth with either pliers or (old school) a string tied to a doorknob. If you have money you pay professionals to do those things. If you don't, you work with what you've got and the system must either fill that gap with legal aid, appointed counsel, etc., or adjust to the resulting delays and recurring amateurism.

Anonymous said...

Well, there's quite a few things I'm willing to learn how to do myself in the absence of having the ability to pay.

I've beat the crap out of a few lawyers just because I was willing to do a little research and show up in court at the appointed time. You'd be suprised how many lawyers think all pro se litigants are too stupid to do the minimal amount of work they do and thus presume the case is won for nothing, they don't even show up.

Can you say default judgment?

But please don't compare the legal profession to dentistry. I've heard alot of yammer about the "string on the doorknob" thing but have to see anyone actually do it.

Anonymous said...

"I've heard alot of yammer about the "string on the doorknob" thing but have to see anyone actually do it."

@anon 12:11

There are many more just like this one.


Anonymous said...

To add to what 4/14/2010 12:11:00 PM said:

It does often come as a big surprise when a pro se litigant at least half-way knows what they're doing, and is often underestimated by the opposing counsel who thinks it will be a slam-dunk win for their side. I've found that to be a big advantage. Also, perhaps it's like everything else, but it's just darn hard to find a good lawyer these days. The marginal ones won't give your case the attention it deserves, or requires. While the good lawyers won't even consider your case unless the payoff will buy them a private jet. I got a sizable settlement about 15 years ago in a case I originally filed pro se, simply because I couldn't find a lawyer that would take it. Many years later, I encountered a lawyer who commented that he wished he'd known me at the time and he would have "helped me out" on that case. I told him it was too bad for him, since I originally shopped that case to his office, and he declined to take it!

I wish justice wasn't based upon the ability to pay, but it is. And, that's a sad testament to our legal system.

CharityLee said...

Justice is not based on ability to pay. Being able to work the system is what you get when you can pay a good attorney but that in no way means justice has prevailed.

Anonymous said...

Lawyers should stop complaining: most plumbers don't get paid until after the job is finished. Only lawyers actually get paid in advance for their work as far as I know. If lawyers had a pay as you go plan they might have more paying clients.

Anonymous said...

Pay as you go? Every lawyer I know takes payments from people. And there is a reason that we get paid up front: if we don't, we have no way to enforce payment. A plumber can put a lien on your home and foreclose on it if you don't pay him. Don't want to pay your mechanic? He can and will take your car. Lawyers can't do that. Trust doesn't pay my bills. Here's a little secret, most people that need lawyers need them because they don't pay their bills, they commit civil wrongs, they are getting divorced, or they are criminals. In short, they are people that aren't necessarily trustworthy. I trust God, everyone else pays in advance.

Anonymous said...

4/16/2010 05:16:00 AM that is absolute malarkey! Trying to pidgeonhole everyone who needs a lawyer as somehow being criminals or involved in wrongdoing is absolutely rediculous! I've never spent a day in jail, or done anything wrong, and I've been involved in more civil lawsuits than I can count. I just finished one last year, and I'm about to file another one again on behalf of my wife. Not to mention all the legal paperwork involved in many business transactions. Just try to own your own business(es), employ people, and make a profit, and you will see what I mean.

Anonymous said...

You are filing a lawsuit on behalf of your wife? That's practicing law without a license and is a felony in this state. When you file the paperwork, you are committing a crime. Guess what that makes you? Furthermore, I do own my own business. A legal practice is a business. I do have employees, and I do want to make some profit. All lawyers in private practice are business owners and WE WANT TO GET PAID FOR OUR SERVICES just like anyone else gets paid for their goods and services. Would you allow me to have whatever it is you sell in your business without paying for it? See how that works?

Anonymous said...

Pardon my improper language. I'm footing the bill for a lawsuit for my wife. Now, are you happy? I'll bet the attorney I'm paying is. (And, yes, I know Texas is a communitty property state.)

If you want to get paid, then get paid. I didn't say you shouldn't. However, as a lawyer, you should accept some responsibility for your part in making the legal system what it is. I don't know what your problem is, but believe it or not, not everyone who needs a lawyer is a criminal, or is involved in wrongdoing. If you agree with the person above who thinks they are, maybe you need to need to be re-evaluated by the state bar.