In America today there is one lawyer for every 200 adults. And if you live in Austin, Texas it is about 1 out of 100.
Jim Barlow, a former columnist of the Houston Chronicle states the problem of the number of lawyers in a nutshell: "I subscribe to the locust theory. The locust is a fairly benign form of grasshopper until we get too many of them. Then they swarm, eating their weight every day and devouring the countryside.."
1,143,358 lawyers. And our nation's 192 accredited and often subsidized law schools are graduating 40,000 new lawyers each year as they have consistently for the last 20 years. In a decade we will have 1,500,000 lawyers. A 50% increase.
For this reason any legal reform should begin with an effort to reduce the number of lawyers. The large number of lawyers as locusts has resulted in the public losing control of many of our institutions. Today they make the rules as statutes in legislatures and Congess. They make the rules as case law during trials. They make the rules with verdicts as lawyer-judges. And if at any point a citizen questions the legality or morality of any aspect of a lawyer's or judge's work in using these rules then discipline boards made up almost entirely of lawyers will make the final ruling. It is a completely closed system with the large number of lawyers being completely in control. Not much legal reform with this situation in place has been possible.
Why the number of lawyers has increased so dramatically
During the 19th century, many people without formal training helped others with legal matters, in and out of court. Even most lawyers of Abraham Lincoln’s time did not attend law school, pass a bar exam or hold a professional license. Rather, they studied under other lawyers and were eventually allowed to argue in court. And it was also common for people to represent themselves, often with the help of popular books such as Every Man His Own Lawyer, by John G. Wells, a legal guide that moved west in the wagons, saddlebags and steamer trunks of millions of Americans.
At the end of the 19th century, the American Bar Association set out to turn lawyering into a profession, with the idea that increased status would generate higher fees. To accomplish this, it fashioned a code of ethics and urged states to adopt minimum educational requirements and a professional entrance (bar) examination for anyone who wanted to call himself a lawyer.
By the late 1920s, most states had fallen into line.
But to make the practice of law more lucrative, it wasn’t enough just to raise the professional image of lawyers. It was also crucial to keep accountants, insurance companies, bankers and just plain business folk from practicing law at cheaper rates. So, soon after the 1929 stock market crash made times even tougher for attorneys, the ABA began a successful push to establish a lawyer monopoly over lawyering. But unfortunately, instead of clearly defining the practice of law in language all could understand (and competitors could resist), ABA rules gave state court judges (lawyers all) the power to enforce the new lawyer monopoly on a case-by-case basis. As you might guess, this resulted in little joy for non lawyer practitioners. Non lawyers in the gray area of whether an activity was considered the practice of law could not take a chance as it was not defined.
As the Great Depression deepened, lawyers faced with dwindling legal business pressured criminal prosecutors and state judicial authorities to go to court to close down non lawyer practitioners. Judges apparently eager to support the interest of their professional brethren soon banned non lawyers from handling all matter of activities that they had performed for decades, including real estate closings, title searches, negotiating insurance settlements and providing tax advice. By the onset of World War II, lawyers had successfully carved out a legal monopoly that would remain securely and profitably in their hands for decades. And legal reform became difficult.
Number of lawyers in America by state
Number of lawyers in other countries
In Continental Europe, the civil justice system uses a court appointed lawyer to gather the facts from all parties and witnesses. That lawyer is not attached to either side of the case. The "fact gathering" lawyer does not have an axe to grind in the outcome. This lawyer uses his judgment and leaves unnecessary embarrassing details out of the public record at trial. This lawyer is not interested in using the threat of additional lawsuits to get desired results. Since these court appointed lawyers enjoy a more benign reputation and because there is discretion being exercised throughout, witnesses are naturally more willing to testify fully and truthfully.
When American lawyers hear about pre-screening for "loser pay" designations in civil cases, they get very upset. The idea of having the facts of the case investigated by an officer of the court before it is even formally filed "smacks" of the European Inquiry System of civil justice where officers of the courts routinely investigate the facts of a civil dispute. With objective, legally trained court employees investigating these matters early on in the process, Europeans have learned that they don't need to hire attorneys at all.
. . . in much of Europe all the information gathered in the information collection process is summarized by an employee of the court into a report which is then given to a panel of judges for their decision. The panel acts as both judge and jury and makes their decision without the cost of an actual trial.
The forgoing approach offers great promise for rationalizing our civil justice system. What barriers exist to implementing such an approach? The largest barrier is the legal profession which has great love for traditional process and deep skepticism for change in process. Lawyers feel "very qualified" to tell others how to operate their business affairs but are loathe to accept direction from outsiders on the how best to run legal affairs. Additionally, there is the question of money. A more efficient, more accurate legal system would tend to reduce the billable hours in a lawsuit and that would make final adjudication of cases more available to average citizens who are today cut out of the process by the high cost of litigation. Rich people, who today use frivolous lawsuits filed by very talented lawyers as a way to brow beat middle class people into accepting their desires, would be less able to use their wealth to manipulate the justice system because the people of moderate means would be able to afford litigation and would feel the results will be more likely to be correct regardless of the legal talent on the other side . . . However, cutting billable hours out of a lawsuit is not a goal which many lawyers are likely to embrace.
Because of their large numbers after a time lawyer influence becomes an insidious thing. Everyone has one in his extended family. So when one is in a group a polite individual is afraid to criticize them even when justified. And when one is in any organization the situation is the same. Plus the fact that lawyers are usually large contributors to these organizations. Because of course they have the money. Many of them make so much so easily.
Reduce the number of lawyers by allowing individuals and corporations to practice law.
Lawyers Try to Reestablish Their Monopoly
by Stephen R. Elias, Attorney and Ralph Warner, Attorney
The legal profession is nervous. The economy is deteriorating; law firms are laying off lawyers or, in some cases, closing altogether. And even more troublesome, competition from non lawyers is nibbling away at the lawyers' market, as many consumers choose tax preparation services over tax attorneys, self-help law books over divorce lawyers and bankruptcy petition preparers over bankruptcy lawyers.
To reverse the trend towards self-representation and keep non lawyers off its turf, the lawyers’ trade organization, the American Bar Association (ABA), has proposed a new legal rule (www.abanet.org). If states adopt it, a person would be presumed to be “practicing law” (forbidden to all who aren’t licensed lawyers) by doing any of the following:
Giving advice about someone’s legal rights or responsibilities; Selecting, drafting, or completing legal documents or agreements that affect someone’s legal rights of a person;
Representing a person before a court or other hearing body, including preparing or filing documents; or
Negotiating legal rights or responsibilities on someone’s behalf.
This definition is so broad that it’s hard to imagine any law-related activity not covered. It would include, for example, helping a taxpayer negotiate a tax claim with the IRS, preparing a real estate contract or helping an athlete negotiate a contract. If states adopt this proposal, accountants, real estate brokers, sports agents and many others would be at risk of losing much or all of their livelihoods. Strictly applied, it could even force many law-related websites to close, and block publication of most self-help law books and software.
The legal profession’s public rationale for proposing anti-competitive laws has always been “consumer protection”only lawyers could be trusted to perform legal tasks safely. However, scholars who study this claim, including Stanford Law School Professor Deborah Rhode (Stanford Law Review, 1981), invariably find no evidence that non lawyer legal providers harm consumers. The profession’s true motive, they conclude, is self-protection.
Why does the ABA think it can stake out so much legal turf exclusively for lawyers? Probably because it has done this since their inception.
The first significant hole in the ABA’s anti-competitive wall was drilled in 1971, when Nolo began publishing the first comprehensive line of self-help law books to surface in many years. Once again, Americans had reliable, affordable help with routine legal documents. Consumers who couldn’t afford or didn’t wantto pay a lawyer quickly made the little company a success. As the number of legal self-helpers grew over the next several decades, other businesses sprang up to help them. For example, relatively low-cost legal typing services run by non lawyers, some of whom were former court clerks or paralegals, became popular in many states as an alternative to lawyers. State bar associations occasionally triedsometimes successfullyto close down these services. But although the self-help industry’s claim of First Amendment protection for its activities was often ignored by pro-bar association judges, its survival was assured by the huge demand for affordable legal help. For example, today in California an estimated 65% of all divorces are done without lawyers. Instead, consumers use either self-help legal books or hire non lawyers, known as Legal Document Assistants, to help prepare the paperwork.
Which brings us back to the present. Although consumers have found many safe ways to access high quality legal information at affordable prices, lawyer trade groups such as the ABA haven’t given up on the idea that only lawyers should provide Americans with legal information and services. Just a few years ago, a committee of lawyers sponsored by the Texas Supreme Court tried and failed to ban self-help law products published by Nolo and others from Texas bookstores and libraries. And now the ABA itself is attempting to outdo even this extreme anti-competitive effort by seeking to reimpose its professional monopoly on a national basis. As the Wall Street Journal pointed out in an April 15 editorial, “The real ABA game here is to tighten its cartel so lawyers can raise prices.” Sorry, but the era when the legal profession could write self-serving laws to outlaw its competition is long past. Today, American consumers are finally enjoying the right to purchase legal information in a free market. They deserve to keep it.
Reduce the number of lawyers by ending the lawyer monopoly
End the Lawyer Monopoly 1:
Busting Legal Cartels
Editorial Wall Street Journal
Massachusetts already bears the dubious distinction of having more lawyers per capita than any state. Now it seems its legal class would like to game the system to ensure they are also the best paid and least threatened with competition.
That’s the way to read a recent Massachusetts Supreme Judicial Court proposal to define the “practice of law.” The legal class has been on a mission to create such definitions to prohibit anyone but themselves from giving legal advice or working on legal documents. Proponents say such rules are necessary to protect consumers from fraud and to give non lawyers guidance on services they can legally perform
And if you believe that, we’ve got another lawyer joke to tell you. In practice, these definitions shield lawyers from competition, curtail access to the justice system and saddle consumers with fewer options and higher costs. That’s why the Justice Department’s Antitrust Division and the Federal Trade Commission last week sent a letter strongly urging the Massachusetts Bar Association to curtail or reject the proposal.
The agencies letter said the definition could (read: would) be interpreted by lawyers to prevent real estate agents from explaining smoke detector laws to clients, prohibit software makers from selling will-writing programs, or constrain advocacy organizations from providing information about legal rights. And that’s just for starters. The letter also noted there is no proof that consumers are hurt by, say, accountants or investment bankers who provide clients with legal advice. The real harm would come with a rule allowing lawyers to banish competitors and hike their already sizable fees.
Thanks to similar letters, several states have already backed off their own lawyer-protection rules. The American Bar association also scaled back its plans last year. We don’t always agree with America’s antitrust cops, but here’s a case where they really are working on the side of the consumer.
End the lawyer monopoly 2:
Reduce the number of lawyers by encouraging individuals to do their own legal work with a user friendly legal process.
The rationale behind unauthorized practice of law statutes being a felony makes the danger to yourself of practicing law the same as being on the receiving end of a pistol being held by one who even then is not a felon.
Yet only 2% of consumers feel this unauthorized practice of law is a problem!
Reduce the number of lawyers by encouraging individuals to do their own legal work with a user friendly courthouse process.
Make the Courthouse User-Friendly
by Stephen R. Elias, Attorney and Ralph Warner, Attorney
People have the right to represent themselves in court without a lawyer. But if they try, they often find that courthouses are set up by and for legal professionals and are needlessly hard for everyone else to navigate.
It's obvious, from the moment you walk in, that lawyers see courthouses as their private clubs. Unlike most government facilities, there's rarely a central information desk or window. The kind of informative pamphlets typically found in a Social Security, motor vehicle registration or IRS office are also absent. Often there are special lounges, work areas and phones for lawyers, but benches and pay phones for everyone else. Court clerks' offices, where every significant paper must be filed, are confusing and intimidating. Trying to do business there can seem like a bad dream in which you are lost and need help, only to be faced with perpetually hurrying people, unmarked information windows and long lines of people who don't speak your language. Nowhere will you find a simple sign that says "Non-Lawyer Information" or "Non-Lawyers File Papers Here."
Assuming you get your papers filed and your hearing day arrives, even finding the right courtroom can be exhausting. In many courthouses, hundreds of litigants and lawyers must crowd into a single room every morning while a judge or clerk reads off courtroom assignments in semi-code, with the speed of a tobacco auctioneer. For example, "Smith v. Evans to 17, trailing," means that case will eventually be heard in Courtroom 17, after some other cases go first. Which raises another big problem for non-lawyers: Lawyers can often take advantage of the fact that lots of hearings are scheduled for the same time by scurrying from one courtroom to another, but people who represent themselves must cool their heels -- sometimes for days.
Lack of respect for the public is also reflected in courtroom procedures. People without lawyers often don't know exactly where to sit or stand, or how to approach or address the judge. A simple pamphlet with a clear instructions on how to accomplish these most basic of tasks would be quick and easy to put together. It has never been done.
Most court clerks, lawyers and judges, for whom the current system is familiar and comfortable, don't even see the many barriers that deny non-lawyers equal access to the legal system. They have been trained to believe that to enter the judicial system, citizens really should pay a gatekeeper -- a lawyer.
What To Do
Courts must be examined from top to bottom with an eye to eliminating this pervasive and essentially anti-democratic bias. Here are just a few of the things courts need to do:
Publish an "access catalog," designed like a college course catalog, that describes what the court can do for people. It should spell out how much a procedure costs, how long it takes and where to find more information.
Like other complicated bureaucracies, every courthouse should have employeesadvisors and filing clerkswhose only job is to help people navigate the courts. They could be paid for by filing fees paid by non-lawyers.
Courts should distribute instructional materials to help people with routine court procedures. For example, printed forms for a simple divorce, stepparent adoption or guardianship should be available, with complete instructions. The answers to frequently asked questions should be available in pamphlets, books, computer databases and recorded telephone messages. Videotapes that show how the courtroom process works should be readily available at the courthouse.
Courthouses should take a look at their designs, with an eye to making them usable by ordinary citizens. Start with simple aids such as clear signs and information booths, and move toward providing other services such as work stations, evening court sessions and drop-in childcare for parents who must go to court.
To ensure accountability, a non-lawyer board of directors could monitor a courthouse's treatment of the public. Such a board could also deal with complaints from the public.
Reduce the number of lawyers by instituting a higher dollar limit for claims in Small Claims Courts and allow no appeals
The Small Claims Reform Project
The most direct method of improving citizen access to the civil justice system is through small claims courts. These courts, which use simplified procedures, require plain English, provide consumer aids and often prohibit lawyers, have tremendous promise as a means of empowering ordinary people to take charge of their own routine legal needs. Key to expanding access to small claims court is raising the dollar limits in these courts to reflect real world realities. This would mean, instead of being limited to considering cases in the $3,000-$5,000 range, as is true in most states today, small claims courts could consider disputes up to $20,000.
But putting these and other reforms into practice, legal consumers will have more options when they seek legal assistance, will have the opportunity to obtain more affordable help when they need it, and will have the legitimate means to seek recovery if the representation goes awry. This combination of competition and accountability will ensure that the legal profession adheres to the same basic rules that govern the rest of the economy, and ultimately go a long way toward resurrecting the public's flagging trust in the civil justice system.
HALT is a Washington, D.C.-based nonprofit organization dedicated to legal reform.
Expand Small Claims Court Limits
by Ralph Warner, Attorney
America's trial court system is costly, constipated and complicated beyond reason. Small claims court, with its simple rules, low cost, and easy, fast access for non-lawyers, is a powerful alternative.
Especially when the small claims system is combined with a mediation program that encourages people to settle their cases outside the courtroom, it offers high-quality justice at a reasonable cost. But unrealistically low dollar limits and restrictions on the types of cases allowed in small claims court hobble its usefulness.
Small claims court offers people a chance to participate directly in their own cases. This fundamentally democratic aspect of the process is popular with most participants. And directly experiencing the problems, imperfections and ambiguities of presenting their cases often affords them a more realistic view of how our legal system works, as compared to a formal court, where most people participate secondhand through lawyer surrogates. Few participants in small claims court end up concluding that "I was robbed."
The great majority of common, everyday disputes are easy to understand and require relatively little money to resolve. These include spats over auto and home repairs, landlord-tenant problems, unpaid bills and substandard services. It's not worth the time or money to take these disputes to regular court. With attorney fees routinely running upwards of $150 or $200 per hour, a dispute must be worth at least $20,000 before it becomes cost-effective to hire a lawyer. It it's any less, the costs of resolving the problem-including lawyers' and court fees-loom larger than the problem.
The very act of bringing in lawyers, no matter what their cut, may ill serve the cause of justice. According to California Superior Court Judge Roderic Duncan, "People are much more likely to stand up and tell the unvarnished version of what happened when they represent themselves. Something about a lawyer being in the process, coaching people to alter their stories, results in victory becoming more important than telling the truth."
Less lying isn't small claims court's only virtue. Because nitpicking formal rules of evidence are relaxed, a judge can consider all evidence the parties present, which often produces a more just result. For example, in a landlord-tenant dispute, a small claims judge can read a building inspector's report if either party requests it. By contrast, in a regular court, the report might be rejected under formal rules of evidence unless the building inspector were present to testify to its authenticity, often a practical impossibility.
Unfortunately, because of ridiculously low dollar limits ($3,000-$5,000 or less in most states), people with larger claims face a miserable choice. They can kiss off a good chunk of their potential recovery by reducing their claim to the small claims court maximum, try to represent themselves in a regular lawyer-controlled trial court, or hire a lawyer and take the risk that the fees charged are likely to be more than what they win.
Assume, for example, that a homeowner and a contractor disagree about whether a $20,000 kitchen remodeling job was done properly. Angry words are exchanged, and attempts to compromise prove futile. Each person hires a lawyer and the case goes to trial two years later. The lawyers each bill for 40 hours of time at $175 per hour, costing each side $7,000. Court fees, document preparation and expert witness fees add another $1,000 each. Assume now that the homeowner wins a partial victory -- he need only pay the contractor $14,000 for the substandard work. Add that to the $8,000 in legal expenses, and the homeowner is out $22,000. The contractor fares little better, netting only $6,000 out of the $20,000, once legal fees are paid. In short, both sides lose, and spend needless hours and energy fighting in the process.
If the same case were brought in a small claims court with a strong mediation program, both the homeowner and contractor would have a much better shot at justice. Filing fees would amount to about $25, and each side could choose whether or not to spend a few hundred dollars to have the kitchen work evaluated by an expert witness. The case would then be promptly sent to a mediation program. With the help of an experienced mediator, there would be a good chance of the parties agreeing to a settlement.
If mediation failed, the case would be heard in small claims court within six weeks of filing, with each side getting the chance to have its say and present evidence. By keeping costs low, both parties would benefit almost no matter what the small claims judge decided. For example, even if the judge only knocked 10% off the contractor's bill, as opposed to 30% in the scenario above, the homeowner would pay a total of $18,000 plus a few dollars in fees as opposed to $22,000.
What to Do
The small claims court dollar limit should be raised to $20,000 in every state -- an amount high enough to allow most consumer and small business disputes to be resolved in court without lawyers.
Simplified small claims procedures should also be made available for many more types of cases, not just those involving money, as is true in most states today. For example, if it's appropriate, a small claims judge should be allowed to order a neighbor to remove a dangerous tree or tell a tenant who doesn't pay the rent to vacate an apartment. Lawyers should be banned from small claims court (as they already are, in some states), except when appearing for themselves.
Every court should provide a quick, easy-access mediation alternative right in the courthouse. Maine, which already does this, reports that over 50% of contested cases are settled by the parties themselves, with the help of a mediator. And happily for money-starved state governments, paying a mediator (who need not be a lawyer) is much cheaper than paying for a judge and running a courtroom. Even a free mediation system will quickly save taxpayers' money.
Finally, consumers should be better educated about how to use small claims court through self-help pamphlets, audiotapes and videos available from the court clerk. An in-person advisor program, like the one currently in place in California, could greatly aid those using the courts. These programs could be funded at no taxpayer cost by slightly increasing the fee to file a small claims case.
When a small claims court case is filed in California, a few dollars of the filing fee go to the small claims advisor program. In more populous counties, a trained consumer advocate provides free counseling to any person involved in a small claims suit. In rural counties, phone-in counseling is provided. Small claims court advisors, who are particularly helpful to first-time filers, counsel both plaintiffs and defendants on how to research the law, prepare evidence and appear in court. The success of this program in helping inexperienced litigants was an important factor in the California legislature's decision to raise the small claims dollar limit to $5,000.
Finally, no appeals should be allowed on a Small Claims Court decision as lawyers would then be in the process and the earlier efficiencies would not be possible.