People should have free access to taxpayer-funded lawyers for civil situations

Great Debates
1

We all know what happens when you get arrested and cannot afford a lawyer; a public defender is provided for you. And while they may not be the greatest legal representation - let’s face it, O.J. would have gone to the chair if he had had a public defender instead of his high-priced private attorneys - they’re available to people so that they have a fighting chance in our legal system and aren’t forced to represent themselves in court.

But in the civil court arena - I refer to non-criminal cases that go to court or require legal counsel - it’s every man for himself, with expensive private "ambulance chaser’ attorneys being the only option for most people. The decks are stacked against the average citizen in any civil legal dispute; established companies, organizations, or corporations simply have the money to protect themselves and squash any legal battles brought upon them by “Joe Average,” regardless of who is right or wrong. In most cases, the little guy just plain doesn’t have the money and resources to fight it out, or figures that by the time his lawyer collects the bill, there will have been no benefit from taking the big guys to court.

Before I go further, I want to point out that I’m not particularly talking about lawsuits; I’m not defending Joe Average’s right to sue Pepsi on the taxpayer dime because he “found a finger” in a can. I’m more referring to much more common legal disputes such as those between credit card companies and cardholders, tenants and property management companies, patients and hospital billing departments, etc. - situations where an individual is not free to pursue his dispute with “the big guy” because he can’t afford the sort of legal battle such a pursuit would entail.

Some examples - and these are actual real-life examples from either my life, or family and friends’ lives - that should have turned out differently, but the little guy ended up getting screwed over because the big guy had more resources than him, regardless of the law or of right or wrong.

  1. A guy moves out of an apartment that he’s rented for several years from a large, multi-state property management company - no sketchy single-building “landlord.” When he asks about his security deposit, he is informed that while there is no damage to the apartment, he has moved out “a month early” based on his lease and still owes full rent for the following month, and that they are keeping his security deposit as payment toward that month’s rent. He explains that his lease does not extend into the next month and is in fact up this month, and is even able to produce an original copy of the lease verifying that this is correct, but it’s no use - the management company refuses to return his deposit and continues to demand that he pay the remaining rent for the next month. No amount of arguing or explanation will convince them to return the deposit that he is owed, and though he puts everything in writing and threatens legal action, they won’t budge. Realizing that hiring a lawyer to pursue the situation will end up costing him more than the deposit that he’s owed ($400), he gives up and has not gotten his money to this day.

  2. Similar situation, but with a dentist’s office. Woman goes to dentist, has some minor work done, pays for it right there. Months go by without incident, until one day she suddenly receives a notice from a collection agency demanding payment for the dental work that she’s already paid for, plus “collection fees.” Confused and upset, she contacts the collection agency, then the dentist’s office, with each passing the buck to the other. Though she puts everything in writing and offers to prove payment with a cancelled check, the notices keep coming and are accompanied by threatening phone calls. No matter how much she argues her case, nobody will listen and the harassment continues.

  3. Credit Card company time! A man pays off and cancels his credit card, and even puts it in writing just to make sure everything’s straight. Months go by, when suddenly he starts receiving bills for the card that he cancelled - apparently, a tiny fraction of interest was left over, which has multiplied into hundreds of dollars thanks to “late payment” fees and so on, even though it’s been months and months since he was assured that the card was paid off and cancelled and hasn’t even received a statement. No amount of arguing or threatening will convince the company, who keeps sending statements as the balance grows. Fearing damage to his credit score, he finally caves and pays off the balance.

In all of these situations, the person was a victim, but because they either couldn’t afford a lawyer for a civil case, or would end up paying much more for the lawyer’s services than the amount of money in question, ending up in the hole.

I think it’s this simple; these situations should never have happened, and would not have happened if people had access to free, taxpayer-funded legal representation. Imagine if the guy in (1) had simply been able to go to his local “public prosecutor” (for lack of a better term), explain his situation and present his lease, then have the public lawyer put it in writing, get it notarized, and present to the management company a demand for immediate payment plus interest. That would wake them the hell up! Ditto for (2), plus how about a cease and desist order on the phone harassment? People deserve this, and it’s necessary for freedom of the average person participating among big businesses in “the marketplace.”

I can think of a million reasons to oppose this, but I’ll leave that up to everyone else. I also want to point out that there would definitely be all sorts of limits and conditions for this, like a basic review session or something; there needs to be some sort of way to keep people from using the system for frivolous bullcrap.

Thoughts?

2

There are many lawyers, particularly in Australia, who will perform some of that sort of thing Pro Bono Publica (“For the good of the public”- at no charge, in other words). This tends to involve mainly things at the “Writing Letters Of Demand” or “Request From An Actual Lawyer” stage of things (as many entities may feel they can stiff Joe Bloggs, but Joe Bloggs being represented by the law firm of Sue, Grabbit, & Runn is an entirely different matter).

There’s also Contingency Fee lawers (used to be called “No Win, No Fee”, but they can’t legally call themselves that anymore after a recent court case), where not winning means you don’t pay legal fees- BUT, they can still bill you for “Costs”. And the way lawyers charge- “Sending Fax: $2”, “Writing Letter, $50”, “Photocopying Charge: $28 (140 pages @ 20c/page)”, plus the actual Filing Costs and so on, can mean that for small amounts it’s still not really worth a lot of people’s time.

There is a Small Claims Tribunal here for these situations (amounts under $5,000, no lawyers allowed unless both sides agree), but the problem then is you’ve still got Joe Bloggs vs Slick Entity With Money And Probably A Better Education.

I do agree with your OP in spirit, however.

3

Maybe I’m misunderstanding you (it was a pretty lengthy post and my attention span ain’t what it used to be), but you’re talking about basically hiring an attorney to pursue a civil action or tort, if you are poor or whatever.

I’m not 100% on this, but I do believe in some jurisdictions, once you bring a claim to court, the judge can appoint an attorney to act on your behalf if you are indigent or have some pressing financial need.

However, in most cases, an attorney will work on a contingancy basis. You’ll see this a lot in personal injury suits. Once the case is settled, they’ll take a certain percentage of the proceeds. And if they don’t win, you don’t pay! (Or maybe they’ll take only enough to cover their office expenses)

So there are options.

4

Exactly

You can also represent yourself in court and judges will usually grant you a lot of leeway. It’s called Pro Se, but I would recommend against that, for obvious reasons. You can sometimes wind up costing yourself more money than if you hired an attorney.

5

Most, if not all, of your examples could be handled by a small claims court.

I’m not sure about locations other than Chicago, but in Chicago (where I do most of my lawyering) there is a help desk for people who want to file an action in the small claims court, so they’ve filled out the proper paperwork, sent notices where they should go, etc.

I haven’t done any small claims actions, as that court usually operates without lawyers, but from what I recall the rules of evidence are relaxed enough so a non-attorney could present their case, e.g. copy of the lease, cancelled check.

I don’t think it would be cost effective for the government to hire attorneys, at attorney pay rates, to handle the matters you’re talking about. Even if one of your proposed civil defense lawyers had an annual salary of $50K, or about $25 per hour for his time alone, how much time would you want that lawyer to devote to a matter of a couple of hundred bucks?

Not to mention most law schools do have legal clinics to assist with these sorts of matters, though the clinics often specialize in certain areas, often criminal. And some matters can be handled by private attorneys at no cost to the client (Chicago has a landlord/tenant ordinance which makes keeping security deposits rather hazardous for landlords, if I recall correctly calling for attorney fees and triple damages for improper non-return of the deposit–which is why papers like the Reader have ads by attorneys looking for wronged tenants).

And, as I’ve seen on preview, there are lawyers who work on contingency fees and pro bono. And when someone is getting sued, there is always insurance – many people don’t realize that possibly the most important thing insurance companies provide are attorneys to defend against insured liablities (car insurance, home owners insurance), not just to pay people off in the event a policy holder gets sued.

6

All the more reason to not to have a tax-payer funded lawyer take on such matters. A better approach is to keep small claims court simple and accessible so that a person does not need to have a lawyer.

7

I think there’s more options to those situations than simply getting a free lawyer and filing a lawsuit. As others have mentioned, there’s small claims. Also, my girlfriend is in law school now, and she spends a good amount of her week assisting poor clients deal with various legal headaches for which they do not wish to hire a lawyer – everything from helping to set up living trusts to fighting unfair restraining orders. Here in DC, there’s a free legal consulting service run by a non-profit that deals with landlord-tenant disputes, not to mention every state offers some sort of legal aid programs which do, in fact, receive public funding.

And more importantly, I fear that taxpayer funded litigation would only jam up the legal system with judges presiding over cases about whether Walmart should have honored the 50-cents-off laundry detergent coupon a plaintiff presented at the checkout.

8

If you are indigent, there are Legal Aid bureaus in every state that can help people in civil situations. The scope of their work is limited by federal and state rules, but they help in most civil cases. They are funded by both federal and state funds, with some money coming in from fundraising.

9

I came in to mention Legal Aid. I work in rental property management, and know most of our local Legal Aid attorneys on a first name basis!

10

As an anecdote, I took my landlord to small claims court in a similar situation to the one described in the OP. No lawyer, and I have no legal background.

I won the case, and was surprised at how good the judge was at simply getting me to explain my side of the story, giving the landlord’s lawyer a chance to rebut, and figuring out exactly what happened and who was owed what. He saw through the additional little charges that I tried to add on top, but at the same time he gave me what I was actually owed.

In short, I think the situation that you’ve described can be handled in small claims without lawyers. You just have to put the effort into bringing the case to court.

11

  1. This is exactly what Small Claims Court was made for, and this cae would work perfectly in it. SCC Judges tend to be on the side of “the little guy” and (at least here in CA) see thousands of “security deposit” cases, and would easily rule for the tenant in this case. It’s simple, cheap & easy to file, having a lawyer is a handicap, and your filing fees are automatically added to your judgement. I have gone to SCC three times in 30 years, two of them for Tenant disputes just like this. In one case, the Landlord just sent me a check and settled before Court. In the other case, the Judge asked the landlord a few sharp questions, asked if I had anything to add, and ruling in my favor in 10 minutes. Wonderful system, and it works.

  2. This is where you get a Nolo Press book, and follow the instructions. You write a letter, send it certifified, disputing the bill, and saying you won’t pay and that the Collection aganecy is not to contact you again. You also could go to SCC, or to the FTC.

  3. FTC. Here is where I admit the “average joe” needs some help, but Lawyers ain’t gonna do it. Write your congressman, the FTC needs more funding, and more teeth to enforce the laws they already have.

In all three of your situations there are already systems in place to help 'the little guy". Other than adding some more funding to the FTC, nothing more needs to be done. I will also point out that many areas have a Legal Aid or lawyer referal service where for a small fee- or free- you can go and get some basic advice from an attorney. In #1, they would have said “Small Claims Court”, in #2 they would have given advice on how to write the letter, and maybe even written such letter.
IANAL.

12

I am, by and large, all for Legal Aid as a public resource for certain kinds of law and I think they should be better funded. I am not at all sure, however, that saying “Hey! Free day in court!” to everyone who has a, or is the subject of someone else’s, grievance, is likely to help. I think it’s just as likely to lead to more, rather than fewer, cases that should never have gone before a judge, either because a greedy plaintiff could coax or mislead a public resource lawyer to take the case or because a slovenly defendant could do the same. Also, I can’t believe that the best solution to an innocent party’s involvement in a lawsuit is to have his expenses paid by people who had nothing whatever to do with the dispute.

I’d much rather see a much stronger “Loser Pays” doctrine, with really tough Yost v. Torok-style penalties for frivolous litigation at any level of the judicial system, combined with professional sanctions for individual attorneys involved in these shenanigans. This would help poor but honest parties to attract the aid of good attorneys, it would keep corporate house lawyers on the side of the angels when advising their clients, it would encourage all parties to stay out of court if at all possible, and it would move the cost of the whole shebang to the doorstep of the entity most responsible for causing the mess to begin with. A portion of each judgment, the “judicial vig,” could be set aside for the nice people at Legal Aid.

As far as the OP goes, I’d have preferred that local or national professional associations or regulatory agencies deal with those sorts of problems, either by acting on their own or perhaps by arranging for arbitration – the agency would front the costs, including representation, but again, loser pays.

What do you think, VCO3? Would that do?

13

In my jurisdiction, Ontario, we have a costs regime. I appreciate it, for it helps deter silly lawsuits, and encourages parties to settle earlier rather than later.

As far as sanctioning lawyers for running stupid cases goes, it is rarely done, for it is important that access to legal services not be fettered. Don’t shoot the messenger, and don’t tear down the phone system, simply because of an unsavory message. If a person has a silly suit, and is able to find a lawyer to take it on, then the client will be hammered with costs. The client can go after his or her own lawyer if he or she thinks that it was the lawyer who drove the silly suit forward.

Unfortunately, the costs regime really has little effect on legal aid cases, for the clients do not have any money in the first place. Awarding costs against them is pointless, for all it does is drive them into bankruptcy.

Here, legal aid covers criminal and family matters, but not general civil matters (except for the odd exception). I have noticed that there is a nasty tendency in legal aid funded family matters for litigation to be needlessly pursued, simply because the party will not have to pay for it, and is generally judgment proof with respect to costs.

Given the tremendous importance of the need for just resolutions in family litigation, and given the financial inequities that often face people involved in family litigation, I strongly support legal aid for family matters involving custody, access, child support, and spousal support, and on a refundable basis, for division of property, and I also support special funding for other legal matters, however, I would not like to see it extended to general civil litigation, for that would simply lead to a rash of spurious litigation, as already exists in the family context.

As it stands, if a civil matter is for a significant amount, and if it has a significant chance of winning, a lawyer can be found to take it on on a contingency basis. If the matter is not significant on either aspect, then it is doubtful that a lawyer would take it on. I would not like to see the taxpayer funding insignificant general civil cases that the free market of lawyers does not find worthwhile picking up.

This is where streamlined small claims procedure can really make a difference in providing justice, for if an everyman is able to tell his or her story to a judge (be it as a plaintiff or as a defendant) and resolve a matter, then it can be possible to obtain justice without breaking the bank on lawyers. The same can be said for streamlined administrative tribunals. For example, in Ontario, there is a tribunal that handles all residential landlord and tenant matters under a procedure that is very simple to follow.

I also support the use of regulated paralegals for small claims matters and low-end tribunal work such as residential landlord and tenant matters. This can help cover people who are generally mentally competent but not to the point that they can explain their story to a judge, and who have winnable cases that are not financially significant enough to justify being taken on by a lawyer on retainer. I realize that even regulated paralegals would not be free, but competency has a price.

Here in Ontario, for folks who want to advance or defend their case but can not or do not want to hire counsel, they can bring in anyone, qualified or not, to act as their agent at a court or tribunal of first instance for small claims, landlord and tenant or, with the court’s permission, family matters. This occasionally buggers things up, for it usually means that a spouse of friend who knows little or nothing tries to run a case, but as a last resort, it is better than nothing.

Finally, let’s have a look at the costs of a general civil legal aid program. Here in Ontario, the Law Society (what you would think of as a state bar association) has a dial-a-lawyer program that fields about 75,000 referrals per year, in which a person gets referred to an appropriate lawyer who then reviews the matter with the person for free. I have never received a client out of it, for not once was there a matter that was both winnable and was for enough damages to take it on. Sad to say, most calls have been over truly stupid matters. For example, here are the most recent three calls I had had from this program. One was by someone who wanted to sue a car loan company for repossessing his car when no payments had been made for a few months. One was by someone who wanted to sue a bank for calling in his line of credit to which payments had not been made for several months. One was by someone who wanted to sue a store for garnishing his wages for furniture that he had bought on time payments but had not made any payments. Each of these people was adamant that he wanted to sue. This sorts of silliness has been typical of the calls to me in that program. If 75,000 of these sorts of cases were taken on, with legal aid covering only just one side’s legal fees to the tune of five or then thousand dollars per case, then the tab to Ontario’s taxpayers for the province for legal fees would be over half a billion dollars per year, and if each matter took one day of court time for motions, pre-trial and trial together, you could add on another hundred million or so to the bill. I just don’t see the overall social benefit to such a scheme. I’d rather see such funds go to something that will improve peoples’ lives. Or to put it another way, hands up those who would be willing to pay an extra $50 per year in taxes so that these sorts of cases can proceed without the parties paying?

If there were to be general civil legal aid, the question then would be how to go about screening the meritorious cases from the silly cases. I think that the existing system in Ontario, in which if a person wishes to be represented, he or she must usually find a lawyer who thinks the case is winnable and is for a significant amount, combined with streamlined procedure for self-represented people in low-end litigation, and also combined with cost sanctions for the loser, does a good job at filtering out the junk.