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Losing out, Home Depot-style

By Scott Wylie

Scott 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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