Access To Justice

Law.com (subscription required) reports that Congress is still trying to authorize agreements to settle litigation between the federal government and minority groups after the proposed $1.41 billion Cobell settlement for American Indians and $1.25 billion Pigford settlement for black farmers hit a snag in the Senate last week.

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Michigan consumers who speak out on social networking sites may soon find it easier to give the slip to SLAPP suits, which are filed to silence and intimidate advocates or others who are critical of a corporation or business. SLAPP stands for strategic lawsuit against public participation.

State Rep. Kate Ebli wants to add an amendment to a proposed anti-SLAPP statute before the state legislature that would extend its protection to those who voice their criticisms of an unfair business practice on Facebook, Twitter, or other social networking forums, reports The Detroit Free Press.

The Freep writes that the amendment was inspired by a $750,000 libel suit filed by T&J Towing against a college student, who used a Facebook page to protest the towing of his car by the company last year. The towing company claimed it lost more than half its business after the Facebook page went up.

News developments that we’ll be watching at Sokolove Law:

Flame-retardant chemicals under fire: House Energy and Commerce Committee Chairman Henry Waxman (D-Calif.) and Oversight and Investigations Subcommittee Chairman Bart Stupak (D-Mich.) are investigating the potential health, safety, and environmental effects of chemicals used to flame-proof many consumer and children’s products. Letters were sent this week to chemical companies Albemarle Corporation, Chemtura Corporation, and ICL Performance Products seeking data on their top selling flame-retardant chemicals and documents related to their health, safety, or environmental effects. The request for data comes in advance of a congressional hearing next month regarding the use and potential impact of flame-retardant chemicals, such as polybrominated diphenyl ethers, or PBDEs.

No place to call home: Los Angeles County and Exxon Mobile Inc. are among the targets of a lawsuit filed by more than 400 people that alleges they were exposed to toxins at a now-defunct housing complex and have developed a variety of medical problems as a consequence. The Los Angeles Times reports that the civil suit filed by former residents of county-owned Ujima Village and their survivors alleges that toxic soil and vapors at the residential complex erected on a old oil tank storage site caused cancer, leukemia, chronic infections, asthma and other health issues. The suit seeks unspecified damages for the wrongful deaths of 38 former residents, as well as for back rent, injuries, and medical costs, writes the Times.

As anyone who subscribes to cable television knows, DIY stands for do-it-yourself.  The phrase is frequently heard on the more than two dozen cable shows designed to teach ordinary Americans how to tackle home improvements.   The pattern of these shows is similar:  combine the sweat equity of an average hard-working couple with a team of experts who coach them along the way, and the job is done right at a fraction of the cost. 

Sounds good, right? Now think about applying that DIY principle to the justice system.  What if we could have a nation of do-it-yourself lawyers, who only call in the experts when they hit a snag.  Sound far fetched?  Well, it’s exactly what the chief justices of the California andNew Hampshire supreme courts wrote in an opinion piece in a recent edition of The New York Times.

Justices John T. Broderick Jr. (New Hampshire) and Ronald M. George (California) first defined the problem, that we’re already a nation of DIY lawyers:

“An increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own — pro se. What’s more, they’re often on their own in cases involving life-altering situations like divorce, child custody and loss of shelter…an inaccessible, overburdened justice system serves none of us well.”

They’re right, of course.  In fact, studies have suggested that as many as 80 percent of the civil justice needs of society go unmet because people lack access to the system.  One of the main reasons for this is the high cost of legal representation.  Many people who go to court without a lawyer do so because they simply can’t afford one.  

Justices Broderick and George not only identify the problem, they also propose an innovative solution, one I believe is a critical reform for the legal profession—unbundled legal services.  Let me explain.

Traditionally, if a lawyer got involved in a case, they owned it.  They had to stay with it from beginning to end.  But that’s starting to change.  As Broderick and George point out, there are 41 states that now permit lawyers to get involved in only part of a case, so-called “limited scope representation.”

It’s a reform the other 9 states should adopt. Under the new rules, lawyers can be hired to help with basic parts of a case or other legal matters that require the assistance of an attorney, while the other more pedestrian parts can be handled by the litigant alone.  In this way, lawyers can focus their efforts where they are really needed, and litigants can limit the legal fees but still get expert advice regarding the complex issues. It’s win/win for the entire system.

What’s more, the proposed reform could improve access to the legal system for the increasing number of pro-se litigants who chose to represent themselves.  As the justices write:

“For those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage…”

Lawyers offering unbundled legal services may be able to help some people who would otherwise have never hired a lawyer—just like the television DIY experts help people who might otherwise have never considered renovating their home.

It’s week two of the new decade and we still haven’t figured out whether it’s “two thousand and ten” or “twenty-ten”.  That’s the bad news.  The good news is that the “decade in review” news pieces that inevitably focus on celebrity deaths, scandals, and divorces have already started to fade.

While such retrospectives often do little more than rehash old news, Joanne Doroshow, the Executive Director of the Center for Justice and Democracy, did have a great piece in the Huffington Post looking back on a decade of major civil justice triumphs.  The piece is here.

Doroshow cites three in particular that are worth calling out.

•    First she talks about the Supreme Court decision in Wyeth vs. Levine, which overturned a previous decision holding that companies could not be sued in state court for killing or injuring someone just because their product was regulated by the federal government (in Wyeth’s case, by the FDA).  Wyeth was landmark because it essentially rolled back the Bush administration’s misguided attempts to use the doctrine of preemption to protect corporations from being sued for negligence.

•    Second, she points out that despite its best efforts, the Bush administration was unable in its eight years in office to cap damages in medical malpractice cases.  Despite a hue and cry from the right, and having Bill Frist (a doctor and health care executive) as the Senate Republican Leader, Bush was unable to roll back people’s right to sue and collect compensation.

•    Finally, squeaking in just below the wire was a huge setback for so-called “forced arbitration” provisions that came in 2009.  These provisions essentially require people to go to arbitration instead of suing and, surprise surprise, the corporation that is negligent is usually the one who gets to pick the arbitrator.   I’ve written about forced arbitration before.  It was a particular favorite of the credit card companies, until both the National Arbitration Forum and American Arbitration Association said they would no longer do credit card collection disputes. Then, a class action lawsuit against big banks led to a number of them agreeing to drop these clauses altogether.

All three of these are important victories for the basic notion that people who are hurt should be compensated for their injuries.  Let’s see what the twenty tens bring.

There is an old cliché that originated in the 19th century that says “A man who represents himself has a fool for a client”. It is generally true that representing yourself in a court proceeding is not a good idea for a variety of reasons which I won’t go into here.

But what do you do if you can’t find or afford a lawyer? In Wyoming, people resorted to representing themselves in huge numbers, and the result is a new effort to expand legal aid statewide.

According to a report from the Associated Press last week, advocates and lawyers in Wyoming are working to create a statewide system to help people who cannot afford lawyers get legal assistance with civil matters.

The call for the statewide system follows a 10 year rise in the number of civil cases in which people were representing themselves according to a judge quoted in the piece. This self-representation causes two significant problems. First, people who don’t understand the legal system often become disenchanted when something happens that they don’t understand. Secondly, people representing themselves needlessly delay proceedings because they don’t provide the court with the right information.

Wyoming is now taking steps to further organize some local legal aid groups, and expand the service statewide. There was no indication as to where the funding would come from.

I spend a good deal of my time talking about the importance of providing access to the legal system. I know full well, from my earliest days as a legal aid lawyer, that cost is the biggest barrier. People simply can’t afford, or they think they can’t afford, an attorney.

To paraphrase one of the Wyoming activists, victims need an attorney who can help them take advantage of the legal protections that have been enacted by lawmakers.

“To me, the worst thing you can do to somebody is say ‘I’m going to help you,’ and then hand them something that deep inside your heart you know is not going to help them. Meaningful access to justice requires more than just a warm body and some forms or a packet.”

I couldn’t agree more. Now let’s see if they can find enough funding to sustain it.

“You have the right to an attorney, if you cannot afford an attorney, one will be provided for you.”  As any viewer of Law and Order knows, this Miranda warning is given to criminal suspects informing them of their right to a lawyer.

In its landmark case, Gideon v. Wainright 372 U.S. 335 (1963) the U.S. Supreme Court ruled unanimously that under the sixth amendment, state courts must provide indigent defendants with a lawyer for criminal cases.

Makes sense right? After all, our criminal justice system is based on an adversarial system where lawyers argue their case in front of juries.  The Supreme Court held that just because you’re poor does not mean that you shouldn’t have the same access to representation as someone who can afford a lawyer.  If it were otherwise, we’d be putting poor defendants at a sever disadvantage in our system.

O.K., so we all agree that makes sense, but what about non-criminal cases.  What about the case of a poor person who is being illegally evicted from her home, or of a poor person who is involved in a custody dispute with a former spouse?  Or what about a poor person who can’t afford an attorney to fight a foreclosure, or to help them file for bankruptcy protection against creditors?  In our system, there is no provision extending the “right to counsel” to these kinds of civil cases.

There should be though, and I’m not the only one who thinks so.  In fact in 2006, the ABA issued a statement formally supporting a Gideon system for civil cases.  And earlier this month, California Governor Arnold Schwarzenegger signed a law that provides for counsel for indigent defendants.  The Wall Street Journal’s Tamara Audi has the story.

Critics of the law say that the courthouse will be clogged with cases, and that even simple procedures will now be litigated because everyone will have access to a lawyer.  I must confess I’ve never really understood that argument.  First of all, if the courts are clogged, then let’s increase the capacity of the courts.  It seems to me that if crowded courts are the side effects of extending legal rights to all people, then I’m in favor of crowded courts.

Kudos to California for passing this sensible and overdue legislation.

A friend of mine was recently undergoing some medical treatment, and he was not happy with his doctor.  It wasn’t that the doctor was incompetent, or had done anything egregiously wrong, just that the doctor was not easy to talk to, and had a poor bedside manner.  My friend was able to find a new doctor and by word-of-mouth, he heard that the new doctor had a very easy-going demeanor and really spent the time with patients to help them understand their care.  He switched and he’s very happy.

That’s the beauty of our interconnected world.  As consumers of everything from food to medical care, we don’t have to go into anything blind anymore.  The virtual water cooler of the Internet , blogosphere and social media have empowered a legion of citizen advocates who recommend for and against virtually everything whether you’re dropping off dirty shirts at the dry cleaner or junior at day care.

Count me among those who think that’s a good thing. Information is power, and for the longest time the only source of reviews were the traditional media which only covered certain things like restaurants and theaters, and specialty publications like Consumer Reports which spent the time and resources to independently test certain products like cars and electronics.

For everything else, consumers were on their own insured only by those ancient Latin words caveat emptor.

That has changed dramatically, and it’s affecting the health care community.   In fact, according to the Washington Post, there are now more than 40 Web sites that provide consumers with advice and feedback on physicians, among them RateMDs.com, Angie’s List, Yelp, DrScore and Vitals.com.

Again, count me among those who think this is a good thing.  Health care is one of the most important consumption choices we make, and why wouldn’t we want people to be able to offer real-time feedback on doctors the way they do on auto mechanics or house painters?

Well, apparently some docs are not on board.  According to a recent story in the Washington Post , some doctors have begun asking patients to sign “no complaint” contracts.  These agreements prohibit online postings or commentary in any media outlet “without prior written consent” of the physician.

Make no mistake they are gag orders pure and simple, and they are unethical, unprofessional, and in many cases possibly illegal. If you have been subjected to one of these agreements and you have concerns about it.  Contact my office; you may have legal rights that you are not aware of.

Health care is perhaps the most important choice we make as consumers.  If we are happy with the care we receive, we should be free to say so, and if not, we should be equally free to make our concern known.  I do seem to recall something in my Constitutional law class about the First Amendment after all.

On my never-ending quest to ensure access to justice for all Americans, I am becoming particularly concerned about a trend affecting many of our clients, and that is, the practice of companies basically requiring their customers to go to arbitration if they have a dispute.

Here’s the background.  Essentially, buried in the fine print of that credit card application, purchase agreement, or other contract might be a clause that says that if you have a dispute with the company your doing business with, you agree to forfeit your right to sue the company.  Instead you and the company will go to arbitration.   Arbitration is a form of alternative dispute resolution whereby the parties agree to take their grievance to a third-party and to be bound by that third-party’s decision.

In the ivory towers of law school seminars (where alternative dispute resolution is often a required part of the curriculum) arbitration makes a lot of sense.  It cuts down on legal fees, frees up court time for more serious disputes and can be efficient for all involved.  But at what cost to legal rights?

Earlier this month, Public Citizen, a watchdog group issued a report called: Forced Arbitration: Unfair and Everywhere.  The report found “that seventy-five percent of companies in eight industries use forced arbitration. In most forced arbitration cases, consumers are stripped of their right to go to court over disputes when they open a bank or credit card account, obtain cell phone service, hire a stockbroker or buy a house.”

These stats might lead you to ask:  If Arbitration is so fair and unbiased, then why do big companies like banks and lenders favor it as their preferred method of dispute resolution?

The answer of course is that it’s often neither fair nor unbiased.

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