Losing out, Home Depot-style
By Scott Wylie
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Wylie |
Most Americans now obtain information and counsel about our laws and our judicial
system from sources other than attorneys. A visit to any court Web site will
document vast numbers of litigants, well over two-thirds in many courtrooms,
proceeding without an attorney. The quaint, and actually good, idea of having
a family attorney is just out of reach for most in our society. Regardless of
the reasons, this reality does make all attorneys less relevant to everyday
people needing legal information and advice.
Fewer and fewer litigants having access to an attorney to deal with a pressing
legal need presents a variety of problems. Forms are done incorrectly, if at
all. Courtrooms are unnecessarily clogged. Of course, large percentages of these
litigants go without counsel unwillingly, with economic realities and the scarcity
of legal aid services as primary reasons. While these realities used to affect
primarily the indigent and fixed-income elderly, many considered middle class
now face these same barriers. Complicating this problem is an increasing number
of litigants, encouraged by the availability of self-help materials and Google,
who are becoming what I describe as “Home Depot litigants.” That
is, they can afford to have someone tile their bathroom or litigate their matter,
but choose to do it themselves to save money. They just don’t see the
need for a lawyer. This sometimes works for bathroom remodels, but less often
for divorces and probate matters.
I was recently confronted with a situation that demonstrated to me where most
folks now get their legal information. A friend had sought guidance on a family
law matter involving a parent needing to move in order to improve her lifestyle
and that of her children. It had become prohibitively expensive to continue
residing in her present home and she was interested in moving to another state,
close to family and access to good employment. I began to discuss the matter,
relating the basic rules for such move-away cases and the primary cases in the
area. Soon after we began speaking, she asked if these were the rules in the
case she had just read about in the paper that made moving more difficult.
To my computer I went. Sure enough, just a day or so before, the California
Supreme Court had issued the case of In re Marriage of LaMusga 12 Cal.Rptr.3d
356 (2004). A reading of the case did appear to make moving away more difficult,
even for lower-income parents who economically had little choice, but the case
was complex. The primary source of information about the case for the average
potential litigant in Southern California, however, probably did not come from
an attorney. Instead, it came from an article in the Calendar Section of the
Los Angeles Times. For those not familiar with the Times, the Calendar Section
is where those of us in SoCal go to check movie times, see who is playing at
the Hollywood Bowl and read the comics.
While the article was informative, this just isn’t the place where potential
litigants should be getting their only advice on such matters and it could not
convey all of the complexities that could be analyzed by counsel. I can’t
imagine that we want people going to the entertainment section of the paper,
or the form aisle at the office supply store, or a computer program to meet
their legal needs.
If as many as two-thirds of litigants in many courts don’t have counsel,
it is incumbent upon the bench and bar to consider why this problem exists and
to continue to take steps to fix the underlying problems. We need to consider
how to expand access to attorneys, not merely watch as we are replaced in most
instances by self-help books. It might be easy and naive to say that this problem
could be fixed by increased pro bono work (and increasing pro bono service
is very important), but the problem is much broader. Low-income clients are
only a percentage of those who can no longer afford traditional representational
services.
Discrete task representation, or “unbundling” as it is often called,
offers additional solutions, especially for the middle class, by expanding the
number of litigants who can obtain at least some amount of assistance from counsel.
The work of the State Bar and Judicial Council in this area, which resulted
in relevant forms for limited task representation in family law matters last
year, has received high marks thus far. Bar associations and courts are creating
self-help clinics staffed by attorneys at a quick pace. These efforts can reintroduce
litigants to the value of attorney advice and do so in a cost-effective way.
Every effort at providing such self-help for unrepresented litigants points
to another truth, however: having an attorney is almost always better than not
having an attorney. As we struggle with how to best serve the public and profession,
we need to continue to strive to find new and better ways to remain relevant
to the public we serve.
Scott Wylie is an associate dean and the John FitzRandolph Director
of Clinics at Whittier Law School in Costa Mesa. He is a former vice president
of the State Bar of California.
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