January 2008 Archives

January 30, 2008

Abolish Our Discriminatory Bail System

In an article by Adam Liptak, published on January 29, 2008 in The New York Times, I learned that only the United States and the Philippines have legal systems that use for-profit bail companies as a means of assuring that criminal defendants will appear in court.

According to the article, all other developed countries, as well as Illinois, Kentucky, Oregon and Wisconsin, provide a way for people presumed innocent to achieve their liberty pending trial without feeding a commercial bonding intermediary. Once again, this country that prides itself on its justice system lags far behind the rest of the civilized world -- as it does, for example, with capital punishment and life imprisonment for minors.

How the bail system works. For those not in the know, here is how the bail system works in most states.: When you are arrested, you can usually avoid spending the night in jail by paying a bail bond company a 10% non-refundable "premium" in exchange for the company posting a bond with the court for the full amount of the bail. The amount of the bail is typically based on a local bail schedule.

For instance, the bail in my county for common misdemeanors is $5000, and between $10,000 and $25,000 for felonies. Most people who are arrested for the first time are shocked at their lack of freedom and will do anything to get out right now. Friends and family are pressured to pay the premium, yesterday.

If you are released on bail, you're typically given an arraignment date (first appearance) a month or two in the future. If you don't "make bail," you'll stay in jail until you're taken before a judge a day or two later (or even three or four days if you're arrested on a Friday). At this first appearance, the judge can raise or lower the bail, or even let you go on your promise to return. All too often, however, the bail is either raised or remains the same, and the defendant remains in jail until trial -- which must be held within a couple of months, unless the defendant "waives time." Often, encouraged by their public defender, who invariably has a heavy caseload, defendants end up waiving time and remain in jail for many months before they get their day in court.

The problem with the system. The shame of this system is highlighted by the fact that people accused of misdemeanors can frequently escape further imprisonment by entering into a plea agreement for probation and a fine. And, it's not uncommon for people who insist on their innocence to languish in jail awaiting trial for crimes that predictably will not involve jail time even if there is a conviction. Keeping someone in jail because they can't make bail on a charge that is highly unlikely to result in imprisonment is nothing less than depriving people of their freedom solely because they are poor.

Allowing private companies to determine whether a defendant goes free pending trial is often tantamount to determining the trial's outcome. Defendants who are free pending trial have a tremendous advantage over defendants who must prepare their defense while behind bars. Justice that depends upon one's ability to pay for a bail bond is injustice at its core.

Even the legal establishment disapproves of the system. According to Adam Liptak, "[m]ost of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system."

Obviously, I agree. The Eighth Amendment to the U.S. Constitution should be further amended to provide that bail be administered solely by the justice system, rather than by the private sector, as it is now.

January 30, 2008

HALT's Fee Arbitration Best Practices

[Note: This post was prepared by HALT, the country's preeminent law reform organization. Fee-gouging by lawyers is systemic in the legal system. These best practices will give legal consumers an affordable and fair remedy to fight back.   -Steve Elias]

HALT's recent Report Card has produced a set of best practices that should be used in every state's fee arbitration system. "Designed to help clients resolve fee disputes with lawyers out of court, fee dispute resolution programs should use fair procedures, maintain clear rules and be visible to consumers," stated HALT Senior Counsel Suzanne M. Blonder. "We have identified a dozen best practices from around the country that should be implemented nationwide so that fee arbitration systems can fulfill their promise to consumers."


  • Require lawyers to participate in fee arbitration at a client's request, so consumers do not have to submit to expensive court proceedings.

  • Make arbitration decisions binding on lawyers to ensure that the process does not drag on indefinitely.

  • Create a statewide system with unified rules so that consumers in neighboring counties are not subjected to different sets of procedures.

  • Maintain a Web site with plain language resources about the state's fee arbitration system, including a downloadable claim form.

  • Provide guidance over the telephone to individuals with questions about the fee arbitration process.

  • Publicize the state's fee arbitration system in local venues, including courthouses and libraries.

  • Allow non-lawyers fair representation on arbitration panels that decide lawyer-client fee disputes.

  • Resolve fee disputes promptly--from start to finish in no more than three months.

  • Provide free legal assistance to clients to enforce and collect an arbitration award that a lawyer refuses to pay.

  • Offer mediation--a process in which a trained mediator does not issue a ruling but helps guide participants toward a resolution--but do not require it before parties may engage in arbitration.

  • Supply a form to apply for participation in the fee arbitration program, that includes plain language instructions.

  • Abolish all gag rules in fee arbitration and allow individuals to speak freely about the nature of the fee dispute, the arbitration process and the result.


For a more detailed explanation of these best practices and why state bars and courts should implement them, go to www.halt.org.

January 18, 2008

Special Needs Trusts for the People

A few years ago, I taught a "distance learning" estate planning course for Barnes and Noble.com. I created an online curricula, assigned reading in the designated textbook (Nolo's excellent Plan Your Estate, by Denis Clifford and Cora Jordan), and answered questions via an email bulletin board. The course was fun, but I kept getting questions about special needs trusts about which I was clueless.

Intrepid instructor that I was, I turned to the textbook (Plan Your Estate), confident I would be enlightened. At the time there was one small paragraph on the subject, to this effect: Special needs trusts are too complex to do yourself. Get a lawyer. Hmm. Every Nolo book has statements like this when the author believes self-help is inappropriate for the circumstance. Fair enough. However, since I was teaching the Barnes and Noble course, I had to do better than that, so I set out to research the topic. But before I continue, I should bring everyone up to speed about what I'm talking about.

Special needs trusts are devices that allow people with disabilities to enjoy the benefits of gifts, inheritances, and personal injury awards without running afoul of the stringent resource limits imposed on recipients by the Supplemental Security Income and Medicaid programs. The property in the trust can be used for a variety of purposes beneficial to the disabled person (for example: vacations, college tuition, caretakers, periodicals), as long as the trust property isn't spent on items already provided by those government programs.

The first thing I learned from my research is that special needs trusts are commonly thought to be so complex that only a lawyer should draft them. And the complexity is thought to be so great that it's okay for lawyers to typically charge $1500 and up for the pleasure. The next thing I learned (and this won't come as surprise to those who know the history of Nolo) is that the type of special needs trust most needed by the populace, and most often prepared by lawyers in the field, is not at all complex and can easily be done without a lawyer's tender ministrations.

The simple type of trust is where a third party, for instance a parent or grandparent, leaves property directly to the trust rather than to the child. In this way, the trust owns the property and the child continues to receive the government benefits. The reason this type of trust doesn't need a lawyer's tender ministrations is that since the trust property never belongs to the beneficiary in the first place, it is virtually impossible for the government to break the trust, unless the trust has language that gives the trustee the wrong type of discretion. "Aha," the lawyers might say, "it's just that type of technicality that requires a lawyer to do the drafting." But the language that makes a special needs trust airtight is just a few sentences that are the same type of boilerplate that is found in wills, living trusts, and other estate planning documents -- documents that people have been preparing without lawyers for the past half-century.

In case you're wondering, there are some situations where the lawyers are right and it's worthwhile to pay a lawyer to draft a special needs trust. This is when the money going into the trust belongs to the beneficiary from the get go. The reason why this is more complex than when property goes directly to the trust is that you are transferring the recipient's property to the trust to make him or her eligible for government benefits. Understandably, broke state governments are suspicious of these transfers and do everything in their power to break them. And if they are broken, the money will be considered a resource that will force the beneficiary to spend down the money before he or she can once again be eligible for SSI and Medicaid.

Anyway, back to my story. Part of my research disclosed that the hundreds of thousands of parents of children with disabilities who would benefit from a simple special needs trust couldn't afford to pay for one (or maybe just wouldn't because they didn't trust lawyers). Since this type of simple trust is easy to draft, involves less choices and variables than do wills and living trusts, and can be explained in plain English, I decided to write a book on the subject (Special Needs Trusts: Protect Your Child's Financial Future, by Stephen R. Elias (Nolo)). The book is now in its second edition and doing well.

I expected to be attacked by the special needs trust cartel when the first edition came out, but no such luck. Maybe I'll take on the more complex type of trust in my third edition, just to get the goat of all those lawyers who grossly overcharge their clients for the simple type of special needs trust.

January 7, 2008

When Defense Lawyers Want Their Clients to Get the Death Penalty

In one case I know of, the defendant wanted death rather than life. After handing down a first-degree murder conviction, the jury must decide between death and life in prison. In most cases, the defendant wants the life sentence and the lawyer works hard to achieve this result. I know of one case, however, where the defense strategy throughout the trial was to make sure the jury brought home a death sentence. You know a justice system has to be screwed up when a murderer wants the death penalty rather than life in prison. Of course, some criminals prefer to die than be locked up for the rest of their life, but this isn't common.

A death sentence takes a long time to carry out. The starting point for this discussion is that it usually takes a long time to move a convicted murderer from the courtroom to the execution chamber. Stays of over 20 years on death row are not uncommon, which means that in many states, a death sentence means the murderer still has a lot of living left to do. Death row gets the condemned prisoner a cell all by himself and removes him from the general population. The prison wants to make sure that nothing bad happens to the prisoner before he's executed. The majesty of the law is hard at work here. (Incidentally, please forgive the male gender reference. As you'll see, this discussion applies almost exclusively to male prisoners.)

A life sentence is no picnic. Unlike the death penalty, a life sentence means the convict will necessarily come in contact with other prisoners, subjecting him to the possibility of sexual assaults, AIDS, and even attempts on his life. And the convict will likely be double- or triple-celled unless he is put in "lockdown" for long stretches -- which happens more often that you would care to think. Nonetheless, almost always, a convicted murderer prefers the opportunity to live a long life, even in prison, even in solitary confinement, rather than face execution somewhere down the line.

Not so for the case I'm talking about. In this case, the defendant raped, tortured, and murdered a young girl. The evidence was overwhelming -- including a solid confession -- and an insanity plea was not viable for a number of reasons. In other words, it was clear that the jury would convict this defendant of first-degree murder. The defendant and his lawyers had to decide whether they should at least introduce evidence that would soften the jury's attitude toward him, such as the fact that the defendant was horribly abused as a child, or whether they should play along with the prosecutor's portrayal of the defendant as a monster.

The decision was a no-brainer. As it turned out, the decision by the defense team was an easy one. As most of you know, the life span for prisoners who have raped, tortured, and murdered children is short. We're talking vigilante justice to the max. When the jury came back with a death sentence, the defendant and his lawyers felt they had won the day, or, rather, a good 20 to 25 years of a not-half-bad life on death row. How do you like them apples? Of some interest, the U.S. Supreme Court will soon decide whether raping a child justifies the death penalty even though no death resulted. If the Court approves of the death penalty in such an instance, it may cut down on the number of vigilante murders, since these folks will now be put on death row instead of the general prison population.

And now for the editorializing. We really ought to follow the lead of the rest of the civilized world and do away with the death penalty in all states. In my opinion, it's flat out immoral and serves no useful purpose, an opinion that is corroborated by the many studies on the subject. Also, it is a waste of public resources. Capital murder cases are hideously expensive to try, and a 20-year stretch on death row eats up millions of dollars per prisoner. And then, of course, there is the issue of those who are wrongfully convicted. Our experience with DNA, and the fact that many innocent prisoners have been executed, should teach us that we always should allow for an opportunity to prove a convicted prisoner's innocence -- through new technology or other new evidence. The death penalty, of course, puts an end to such possibilities.

We need prison reform. Whether or not the death penalty is abolished, we desperately need prison reform so that a life sentence means life with at least a minimum amount of dignity, freedom from sexual assaults, and protection from murder as a result of an uncontrolled vigilante system of justice operating within the prison. See Rebecca Tuhus Dubrow's article in The Nation about prison reform for more on what we can do to make our prisons more humane.

January 2, 2008

Independent Paralegals Improve Access to Justice

Paralegals who directly help consumers prepare their own divorce, estate planning, name change, and guardianship papers have been around for a long time. Usually, these paralegals gain their expertise from having worked for lawyers or having attended formal paralegal schools. Yet many lawyers have sought to drive these independent paralegals out of business by charging them with "unauthorized practice of law"--a criminal offense in many states. While some of us believe that a thriving independent paralegal industry would vastly increase access to the justice system for the many millions of people who can't afford lawyers, others--especially many lawyers--believe that only lawyers can be trusted to help people with their legal problems.

In October 2007, a Massachusetts statewide commission examining barriers to access to justice recommended that independent paralegals be allowed to speak on behalf of low-income parties embroiled in certain civil matters. According to the Massachusetts Lawyers Weekly, the Massachusetts Bar Association predictably shot the concept down, arguing that poor people deserve legal representation just the same as rich people and that non-lawyer paralegals could not be expected to deliver competent representation. Their answer to the access problem? More court-based assistance to self-represented litigants, more lawyers, and more pro-bono legal services.

This reminded me of an experience I had in California some 20 years ago. I was a member of an ad hoc California State Bar committee (called the Public Protection Committee) that was charged with investigating what role California independent paralegals might play in facilitating access to justice for people who couldn't afford lawyers. We held three public hearings in addition to collecting a ton of information from consumer protection agencies, courts, and other entities that could provide us with a factual basis for making recommendations.

At one of the hearings, a lawyer employed by the Los Angeles legal services program testified that under no circumstances should non-lawyers be allowed to help people fill out the paperwork necessary to fight their evictions. She went on to say that her agency turned away 40,000 eviction cases every year because there weren't enough lawyers to help. I asked her why it wouldn't be better to authorize independent paralegals to assist in these cases. With considerable passion she responded that allowing non-lawyers to help the poor would create a two-tier justice system--which was unacceptable to her--and that the only appropriate way to help the Los Angeles poor fight their evictions was to petition Congress to authorize more money to hire more lawyers. I was so shocked that to this day I vividly remember every detail of the encounter.

Our Committee--four lawyers and four non-lawyers--went on some months later to unanimously recommend the repeal of the California unauthorized practice laws and the creation of a system in which independent paralegals could help people with their legal paperwork. Not unexpectedly, the California State Bar president immediately showed up on local TV condemning our report and literally calling us "brain dead" for thinking the Bar association would ever agree to such a "cockamanie" scheme.

He wasn't far off the mark. It took another 10 years before the California legislature (with no help from the Bar Association) authorized independent paralegals to provide the same kind of assistance our committee had recommended earlier. There are now many hundreds of registered independent paralegals in California (called Legal Document Assistants) that help people prepare the forms they need to handle their own legal work. For more information about Legal Document Assistants, visit the California Association of Legal Document Assistants' website. Independent paralegals are also authorized to prepare legal forms in Arizona and Florida (and perhaps a couple of other states)

What's my point? That lawyers fight tooth and nail to maintain their monopoly and that legal consumers in Massachusetts probably will have a long and rocky road ahead before the Massachusetts powers-that-be finally accept the obvious facts: there are lots of legal tasks that don't require a law school education, and access to justice in Massachusetts would be vastly improved by bringing non-lawyers into the mix of legal service providers.