Читать книгу Rebooting Justice - Benjamin H. Barton - Страница 10
ОглавлениеAccess to Justice in Civil Courts
Every other week during the semester, the University of Tennessee’s Homeless Legal Advocacy Project troops out to the Knoxville Area Rescue Ministry, a local homeless shelter. Under the supervision of Professor Ben Barton or another licensed attorney, students try to answer the legal questions of Knoxville’s homeless. If the cases are simple enough, the students take them on. The results fall into telltale patterns: patterns not only of typical problems and solutions, but also of basic legal issues that are too complicated to handle without a lawyer but too expensive to handle with one.
Take, for example, divorces. The University of Tennessee Law School’s clinics are regularly asked for advice or help in divorcing a spouse. Two groups of homeless people can get divorces relatively easily. If the potential client and spouse are local, have no children and little property, and substantially agree about the divorce, the process is straightforward. The students can go to the Tennessee Supreme Court’s website and print out forms “for divorces where both spouses agree on all parts of the divorce, there are no minor or dependent children involved, and the spouses do not have a lot of property.”1 The forms come in English and Spanish. The Tennessee Access to Justice Commission developed the forms and, by order of the Tennessee Supreme Court, every court in the state must accept them if properly filled out.
These forms are meant for the poor, but a simple, agreed-upon middle-class divorce could use them as well. Similar forms are available for a fee through LegalZoom and other online forms providers. Middle-class couples with simple divorces can also hire a lawyer (who likely just fills in the forms described above) for as little as $500. In short, for the homeless or the middle class, there is not much of an access-to-justice problem for extremely simple divorces.
If the homeless client has suffered abuse in the marriage, it is also fairly easy to seek a divorce. This is because, like many legal aid offices, Legal Aid of East Tennessee gives priority to divorces where one spouse claims abuse. They have to apply some such filter, because the demand for free legal services greatly outstrips the supply of free lawyers. So, unless the client claims abuse, he or she goes on an endless waiting list. This filter is sensible, as Legal Aid’s funding is tight and it must decide who needs help right away. Nevertheless, the filter does severely limit the types of divorces Legal Aid handles. Anecdotally, it has another effect: prompting over-claims of abuse. Well-meaning legal aid screeners may tell a potential client, “I’m sorry, we can’t take your divorce because we focus on divorces where abuse occurred.” The desperate client’s natural response is to remember, or even make up, some kind of abuse. So even if the divorce is complicated and disputed, if a person can meet the legal aid income guidelines (125% of the federal poverty line) and claim spousal abuse, he or she can get a free, government-paid lawyer to pursue a divorce.
If the client’s income is more than 125% of the poverty line, he or she is altogether out of luck for a free lawyer. That income ceiling is a very stringent requirement. In 2013, it was $14,363 for a one-person household. This means that a full-time worker earning the minimum wage ($15,080 annually at $7.25 per hour) is ineligible for legal aid.
Unfortunately, only a fraction of our clients fall into one of these two categories, and of course most middle-class divorces do not. First, note the irony of requiring divorcees to agree on everything before they can get divorced. Most people seek divorces because they have trouble getting along with their spouses.
Second, a wide range of potential problems can make a divorce contested or complicated. Our clinic has had multiple potential clients where the spouse is in another state or was even deported back to another country. Often, there are children, disputed assets, allegations of abuse, or all of the above. Sometimes the other spouse simply does not want to get divorced at all, or at least not on the client’s proposed terms. Homeless people have sometimes lost all track of their former spouses.
Middle-class divorces are even more likely to involve disagreements. Consider two recurring scenarios: disputes over custody and asset distribution. Many divorces include children, and choosing which parent should make educational or medical decisions or how to share physical custody can be extremely challenging. Most courts award custody based on what would be in the “best interests of the child,” considering all of the relevant circumstances. Thus, the fights can get particularly nasty, dredging up every deficiency and every bad parenting moment of either spouse. The fights are long, costly, and bitter. They are also very hard to navigate without a lawyer. To handle a full-scale custody dispute properly, a litigant must take discovery of the other side, which requires interviewing witnesses, requesting documents, and submitting lists of questions. He or she must file motions, which often request information or seek to toss the case out or narrow the issues and questioning. And he or she must understand and navigate the rules of evidence, which have complicated requirements for laying a foundation and authenticating documents and the like. A pro se litigant cannot do this well. In 2005, small-firm lawyers and solo practitioners charged, on average, $182 an hour. Even at $100 an hour, the costs add up pretty quickly.
These custody problems recur over time. Consider a divorced parent who decides to move for work or family out of town or out of state. The court will reconsider the issue under the best-interests-of-the-child standard. The bitter ex-spouses can once again air each other’s faults and alleged bad parenting. The legal fees will cost thousands more. There is also the potential for what poker players call “short-stacking.” In tournament poker, there are special strategies for when one player has a lot more chips than another (the “short stack”). Essentially, the richer player can bully the short stack into folding repeatedly by betting a lot. Drawn-out custody battles sometimes recur because one spouse can afford to keep hiring a lawyer and the other cannot. In these circumstances, the costs of the process, not the merits, largely determine who wins and who loses.
Likewise, divorcing spouses often disagree about how to define or divide marital property. Generally, marital property is property Access to Justice in Civil Courts acquired during the marriage, except for property inherited or given as a gift to one spouse. But there is always room for dispute: Special rules govern commingling of funds. Spouses earn and jointly spend money during a marriage, confusing matters. And one spouse may even accuse the other of hiding or mischaracterizing assets as non-marital. Finding assets or disputing which assets to include in the division of property is time intensive and very expensive. It starts with the cumbersome discovery process, in which each side demands documents, questions witnesses in depositions, and seeks information from the other side. The process continues with more investigation, and ends with litigation over what property to include and how to divide it. These disputes are governed by a mix of common-law standards, court precedents, and statutes. A pro se litigant would thus find it hard even to figure out what law applies, let alone how to litigate the issues properly.
Lumping It
Given the costs and complexity, the potential client may well just have to “lump it”—find some way to agree on the underlying issues, stay married until the divorce becomes uncontested, or simply stay married for good. Why? Because the process is so complicated that it requires a lawyer to navigate, and there are simply no lawyers they can afford. In some cases, that might be salutary: choosing not to sue a neighbor over a property dispute, for example, might save money and improve relations, and unhappy couples are sometimes better off working out their differences instead of divorcing. Many of these problems, however, are more like needed divorces or changes to child custody arrangements. People who cannot afford lawyers to solve these problems suffer real hardships.
There is plenty of evidence of an access-to-justice problem. Two empirical studies suggest that poor and middle-class Americans suffer these problems frequently. The most comprehensive such study is the American Bar Association’s 1994 study Legal Needs and Civil Justice, which canvassed both low- and moderate-income Americans. (“Low income” meant 125% of the poverty line and below, and “moderate income” meant the middle three-fifths—from 20th to 80th percentile—of households). About half of all households had at least one unmet legal need during 1992 (excluding desires for standalone legal advice), but nearly three-quarters of the low-income households’ problems and two-thirds of the moderate-income households’ problems were never brought to the civil justice system.
Professor Gillian Hadfield compared this study to studies of legal needs around the world. Americans were about as likely to have a legal need and about as likely to use a lawyer to solve those problems as citizens of other countries, but were far more likely to “lump it.” Citizens in England, Wales, Scotland, and Slovakia got advice from non-lawyers much more often, apparently filling the gap.2 Almost a third of Americans lumped it in the 1994 survey, compared with under 5% in the U.K. and 18% in Slovakia. Hadfield concludes:
These studies suggest that the U.S. legal system plays a significantly smaller role in providing a key component of what law provides—ordered means of resolving problems and disputes—than either comparable advanced market democracies or countries still in the early stages of establishing the basic institutions of democratic governance and a market economy.3
The World Justice Project’s (WJP) 2014 version of the Rule of Law index further demonstrates that the United States lags behind other industrialized countries in access to justice. The WJP surveyed or interviewed more than 100,000 citizens and legal experts in ninety-nine countries; it found that the United States fell in the bottom half of the high-income countries on their aggregate measure of the rule of law and was a staggering 25th out of thirty wealthy countries on the civil-justice measure.4
Other studies, focusing solely on poor Americans, have found even greater unmet need. The most recent comprehensive study is a 2009 report by the Legal Services Corporation (LSC), which presents three different measures of unmet need.5
First, the report found that, because LSC lacked enough money, it had to reject almost a million cases per year—just over half of all eligible clients. These numbers do not include people who were denied services by non-LSC-funded programs and those who did not seek legal help at all. They also do not include potential clients who were ineligible under the stringent poverty guidelines (generally set at 125% of the federal poverty line), that is, middle- and lower-middle-class people. Lastly, the number of clients “served” by LSC programs includes people who received partial or unbundled services or limited advice, such as a five-minute telephone call, a brief chat at a help desk, or a do-it-yourself manual. In Chicago, for example, these “brief services” make up 80% of the clients counted as served.6
Second, the report amalgamated data from studies of seven states—Alabama, Georgia, Nevada, New Jersey, Utah, Virginia, and Wisconsin. These studies show that low-income households have as many as three different legal needs a year, and that fewer than one in five of those needs is addressed with the help of a private or legal aid lawyer. Even using a stringent definition of “legal need,” a large majority of serious legal problems are not addressed with the help of a lawyer.
Third, LSC compared the number of lawyers providing services to the poor (whether or not they worked for LSC) with the number of private attorneys. Nationally there is one attorney for every 6,415 poor people and one private attorney providing personal legal services for every 429 people in the general population. The number of private attorneys per capita is somewhat misleading, however, since a good number of those lawyers work primarily for corporations and businesses.
Other studies report similar findings. For example, a 2008 study in Washington, DC, found that: (1) 97% of tenants who go to court as defendants in a dispute with their landlords (typically in eviction proceedings) are not represented, (2) 98% of domestic violence victims and respondents are unrepresented, and (3) 98% of respondents were unrepresented in paternity and child-support cases. In Texas, only 20% to 25% of eligible poor litigants are represented in court. That rate actually sounds high given this ratio: There is roughly one legal aid lawyer for every 11,000 income-eligible Texans.7
Professor Gillian Hadfield offers an alternative measure of legal services for the poor and middle class.8 She divided the total amount of money individuals (as opposed to corporations) spent on legal services by the average hourly rate for small firm and solo practitioners and then again by the U.S. population. In 1990, Americans bought an average of 1.6 hours of legal services per person for the year, or 4.15 hours per household. By 2012, the number had declined 30%, to 1.3 hours per person or 3.0 hours per household. Spread out by legal problems rather than households, the numbers are even starker: In 1990, American households were able to use roughly 4 hours of legal time, on average, to address a legal problem. By 2012, that amount had shrunk to 1 hour and 30 minutes. Even if you double these rough averages, they cannot cover most legal problems. Most Americans cannot afford to hire a lawyer, even for serious legal problems like divorce, criminal defense, or foreclosure.9
Further evidence is the flood of pro se litigation in American courts, frequently over very important and complicated issues.10 The rate of self-representation has been growing and spreading into more serious legal disputes since at least 1998, and it has accelerated since 2008.11 A great number of American courts have tipped over to having a majority of the cases feature at least one pro se party. Examples include courts that handle evictions, family law, debt collection, and child support.
The Cost of Private Help
So why do people with legal problems, especially middle-class people, forgo hiring private lawyers? Every town has firms that advertise $500 divorces. These teaser rates, however, are only for simple divorces. As a Knoxville private attorney’s website explains:
Attorney’s fees will vary based on the individual attorney and the complexity of the divorce. An uncontested divorce with nothing left to work out, no real property, and no minor children will cost anywhere from $150-$1500 depending on the attorney. In a contested divorce, it is more difficult to estimate fees because of the uncertainty of how much work will need to be done on the case. Most attorneys bill by the hour on contested matters and will usually require a retainer up front.12
A contested divorce is like a home in the Hamptons: If you have to ask how much it will cost, you probably cannot afford it.
How about a pro bono lawyer, a private-firm lawyer volunteering for free as a public service? As noted below, pro bono work is fairly limited, especially in family law. Few lawyers have the expertise needed to handle a contested or complicated divorce, and the ones with the expertise are small-firm and solo practitioners struggling to make ends meet. Nor is divorce work particularly fun or sexy, making it a low priority for lawyers volunteering their time.
So maybe file pro se? American judges and clerk’s offices are notoriously impatient with pro se litigants.13 Clerk’s offices are frequently told not to give any legal advice to pro se litigants. Many have been told that if they gave legal advice, they could be sued civilly or criminally for engaging in the unauthorized practice of law. Judges are similarly impatient. They much prefer to have lawyers file and process cases correctly than to have confused non-lawyers stumble about.
Take a seemingly simple issue that came up in the Homeless Project. The potential client was a recovering drug addict who had moved down from Cleveland and left his wife behind. After a few years in Knoxville without any contact, he decided to seek a divorce. He started at the local court clerk’s office by asking how to divorce someone in Ohio. The clerks refused to say whether to file in Tennessee or Ohio. They refused to explain how to serve a party in Ohio. They certainly did not explain which state’s laws would apply in Tennessee or how the laws might work out in a contested divorce. Nor should the clerks have answered all of those questions—they likely had no idea how to answer.
Online forms are not much help in these circumstances. The documents are for simple divorces. They do not apply to bumps in the road, even simple issues like a dispute in custody arrangements or different state locations.
And don’t think that this problem is limited to the homeless or the poor. Though Americans often think of access to justice as a problem of poverty, it afflicts the middle class too. Middle-class people have it worse, since they cannot use legal aid and are likelier to have some assets over which they can fight. A typical retainer for a contested divorce is $10,000 up front. Not many Americans can afford justice at that price.
Even in a market glutted with lawyers, it is still quite expensive to pay an individual lawyer to research a legal problem, let alone to pursue litigation or draft a legal document. Thus, both poor and middle-class Americans often must proceed without counsel or “lump it” by living with problems that courts could solve.
Where Are All the Lawyers?
In short, ordinary Americans cannot afford to hire a lawyer even for very serious and complicated problems, the problem is growing worse, and the system is poorly equipped to handle the resulting flood of pro se litigants. How can this be? The legal profession continues to grow faster than the population, adding more than 46,000 new law school graduates in 2013. It is puzzling that in the midst of the worst law recession since the Great Depression, access to justice remained deplorable. Where are all of these displaced lawyers and why are they not servicing this need?
First, roughly a quarter of lawyers are not in private practice, working directly for corporations or in government or a law school. Of those in private practice, the most lucrative and sought-after work is in representing or suing corporations. From the 1950s until 2008, large corporate law firms grew steadily in terms of number of lawyers, percentage of the profession, revenues, and profits. Virtually all large-firm work is for corporations or very wealthy individuals.14
