Oct 17, 2007

Let's Reform the Legal System So Everyone Can Use It

When Nolo Press published How to File for Divorce in California in 1971, lawyers and divorce court were cheek to jowl. Now, 36 years later, the majority of divorces in California and many other states are handled without lawyers. Still, for most other types of cases that don't involve small claims, going to court means using a lawyer, and using a lawyer usually means paying a lot of money. According to the American Bar Association, over 100 million Americans are priced out of the system. And many people who can afford lawyers would prefer to do it themselves, if only they could.

One abiding theme of this blog will be to explore ways to bring people and courts together without the need for lawyer representation. In addition to my own contributions, articles will originate from HALT, the leading organization dedicated to enhancing consumer access to the courts, from authors and editors of Nolo's self-help law products, and from various guest contributors.

My basic premise here is that our justice system has evolved to operate in the interests of lawyers rather than the folks who seek its protections. Only when these priorities are reversed will there be the direct access we all deserve. Here are some steps that will take us in the right direction. Each step will be the subject of a separate blog.

Step 1: Remove administrative procedures from the courts.

The vast majority of divorces and probates do not involve advocacy or disputes. Rather, these procedures usually only involve getting the right information in the right blanks and checking the right boxes. These procedures can more efficiently be handled by administrative agencies, in the same manner as social security and unemployment insurance applications. If a dispute does arise, it can be referred to court--which hopefully would operate very differently than do most courts today.

Step 2: Create a robust courthouse mediation system through which all would-be litigants must pass.

If you have a dispute, your first step would be to sign up for court-sponsored mediation, an informal process designed to help people reach agreement. Based on the experience of existing court mediation programs, roughly 80% of the disputes likely would be resolved within several hours.

Should the mediation fail, all statements made in the mediation would be considered confidential and not used in any further proceedings. If the other party to the dispute refuses to mediate, or the mediation fails, the case would be referred to an Early Neutral Evaluator, also provided by the court.

Step 3: Provide Early Neutral Evaluation for All Cases Where Mediation Has Failed

Early Neutral Evaluation is a process in which a legally trained person evaluates the facts and law of a case before it gets very far in the court and offers the parties the benefits of his or her expert opinion. The Early Neutral Evaluator would collect information about the case from the parties and other sources, pinpoint the disputed issues and facts, and offer a written evaluation of the likely outcome should the matter be decided by a judge. A party could request that mediation be reopened based on the results of the Early Neutral Evaluation.

If a party fails to cooperate with the Early Neutral Evaluator, a judge would issue a default judgment providing relief to the petitioner. This default judgment would be set aside if the other party pays a modest penalty and provides an appropriate response to the Early Neutral Evaluator within a reasonable period of time.

Step 4: Disclosing Information (Discovery)

If, after a negative result from the Early Neutral Evaluator, a party still desires to have the case heard by a judge, the matter would be transferred to the court's trial calendar. All requests for pre-trial discovery (procedures designed to get information from the other party) would be submitted to a court-commissioner, who would rule on what information must be provided and in what form. The Commissioner's office also would offer assistance to anyone needing help coping with discovery requests. The Commissioner could refer a case to a judge for a default judgment against a party who stonewalls reasonable discovery requests.

Step 5: Conduct Trials Informally

All states have small claims courts in which informal trials are held. There is no reason why all trials couldn't be conducted informally. The bewildering tangle of trial procedures has been built up over centuries to preserve the lawyer guild. Most of them are unnecessary. Judges would be encouraged to be proactive in eliciting evidence and separating reliable evidence from the unreliable. Jury trials also could be conducted informally. In fact, most of the rules keeping evidence from juries are unnecessary. Juries are as reliable as judges, if not more so, in judging what evidence is and is not reliable.

Step 6: Implement Common Sense Appeal Procedures

Appeals in regular court typically involve an unbelievable number of rules and format requirements that discourage all but the most industrious--and well off--lay people from appealing judgments they disagree with. Appeals from small claims verdicts are, on the other hand, typically simple to file and prosecute. Why not make all appeals simple? While it's clear that lawyers would have an important rule to play in appeals, it's also clear that many people can't afford lawyers. The picky procedural requirements for appellate briefs--including the format, the color of covers and the way the legal arguments must be expressed--would be simplified and the court would offer legal coaching services to people who are handling their own cases.

These six straightforward steps would go far towards de-lawyering the justice system. You may think I oversimplify. Perhaps I do in some respects, but future articles will show that most of these suggestions have already been put into practice in various parts of the country--usually in small claims or limited jurisdiction courts.

Although state bar associations will fight to keep these reforms from spreading to the regular courts over which lawyers hold sway, it's time to make sure that our court procedures serve the interests of the people seeking justice and not their paid mouthpieces. It's time to use what we've learned about mediation and informal small claims court procedures and make them the bedrock of our entire justice system.

And for a more in-depth look at mediation in lieu of litigation, read Mediate, Don't Litigate: Strategies for Successful Mediation, by Peter Lovenheim and Lisa Guerin (Nolo).