Legal Docket: A user-friendly legal system

NICK EICHER, HOST: It’s Monday morning, and today we open up a new work week for The World and Everything in It. Today is the 24th of September, 2018.

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

If you’ve ever had a legal problem and thought, “I sure could use a lawyer,” it wouldn’t surprise me if you told me you hesitated before picking up the phone.

Just how much is this going to cost?

If it’s an hourly fee arrangement, you can’t realistically budget for that. You’d have no idea how long your lawyer is going to take.

If it’s contingent fee based on an eventual award, you still have to pay expenses, win or lose.

And then you ask yourself: Is it going to cost more to get justice than to let the injustice stand?

EICHER: The American Bar Association publishes statistics on lawyers and the legal system.

The United States has more than 1.3 million resident, active attorneys at last count this year.

Since 1878, the number of lawyers has risen every year except one. We Americans spend more on lawyers than do people from every other country on the planet. And only India has more lawyers than we do.

Yet the working poor and middle class can’t seem to get the legal help they need: they’re not poor enough for legal aid and not rich enough to afford the best legal help.

Seems like an economic anomaly: an oversupply of lawyers, yet legal needs go unmet.

What’s going on?

REICHARD: Nothing new, it turns out.

Back in 1969, a book titled The Trouble With Lawyers by Murray Bloom came out.

I remember my parents reading that book.

They were small business people, and they shook their heads in dismay over a system that didn’t work for them. And nodded their heads in agreement that something needed to be done.

EICHER: Well, here we are almost 50 years later, and nothing much has changed. And a book published last year lays out the problem in fresh terms with new ideas on how to solve the problems.

Benjamin Barton and Stephanos Bibas co-authored Rebooting Justice. Bibas is now a judge on the US Court of Appeals for the 3rd Circuit. Barton is a law professor at the University of Tennessee College of Law.

REICHARD: I phoned up the professor.

My first question for Barton was, how would he describe the overall experience of the average American using the legal system?

BARTON: Yeah. I would say the average American would consider it to be too expensive, too slow and insufficiently fair..if you have even a pretty what a lawyer would consider to be a run of the mill legal problem, typically a lawyer is going to charge you somewhere between $190 to $400 an hour to handle that. And that is not a small problem for an ordinary American.

REICHARD: Why is it that run of the mill legal problems still cost so much?

BARTON: Yeah. So there’s several different answers to that…The one part of it is the way we train lawyers in law school. So we train lawyers in law school to treat each individual legal problem as a snowflake, as its own thing where you’re going to do a bunch of individual work on it. So it would be as if you were training people to design and make clothes and you taught them, only had to make them from scratch for the individual…you can imagine that’s a very expensive way to make clothes and that’s a very expensive way to practice law.

Part of the problem is the complexity of the system. So one reason why a lawyer,…would immediately push back on the idea that there’s anything like a run of the mill divorce and what they would say is sure if the parties can get along and they can agree on the settlement then we can do that for relatively little money. But if they can’t do that, then we’re going to get into a fight and then each one then the meter starts running on the number of hours it takes to get through that. The system is not set up for standardization. The system is set up to treat each problem as an individual problem. And that alone creates a massive amount of expense.

REICHARD: We’ll get to some proposed solutions to these problems in a moment. But just to bring home the point, can you give us some some salient statistics to show us the extent of these problems?

BARTON: Yeah. So there’s the fancy words we use for it are pro se litigants. Those are people who appear in court without a lawyer and there’s been an explosion in these folks basically, and the 1960s, in the 1970s, it was relatively rare to have people in court with a lawsuit or a legal problem without a lawyer. And it’s now tipped over to where there are whole areas of the law where they’re majority pro se, so most family courts in America, either one party or the other appears in court without a lawyer…

REICHARD: You touched on this earlier, but how on earth did we end up like this?

BARTON: It’s a confluence of different things. One thing that’s happening is that we just live in a much more law-thick society than we used to. Part of the problem is it just grows more complex over time. Um, and tech, there’s a weird technological aspect of that, like law grew more complex when you went from handwriting it to type setting it. Law went more complex when we went from type setting it to word processing it and now it just continues to grow complexity on top of complexity.

REICHARD: I guess part of that is our trade tool is words. So if you have a word processor it just makes it faster to put in more words.

BARTON: Oh absolutely. The sheer volume of the written regulations, the sheer volume of the written case law, the sheer volume of the written statutes, all of that stuff layered on top of each other just creates complexity. And then then that complexity requires an expensive lawyer to navigate.

REICHARD: So I think most regular people would agree the system is broken and needs to change? What forces are against changing this system so regular people don’t have to go broke using it?

BARTON: Yeah, one of the creators of complexity is a desire of judges and then of lawyers to have a system that is what I call “micro- fair,” meaning that in any individual case, we’re really getting down to the individual part of the case, all the little workings of it. And so there’s a rules of evidence and rules or procedure and very complicated substantive law, all of which each one has a decision point to it where we’re trying to get to the fairest possible result. Well, that might be micro fair, but it’s “macro- unfair,” because as the system grows more complex, sure, in any individual case you might be able to get it right. But over the course of the entire system it’s too expensive to get anything done. And that’s part of it. And then part of it is just rank, um, protectionism, judges and lawyers are looking out for- not to be, I mean, they’re people just like anyone else, themselves sometimes. And so there’s a bunch of stuff that you can only hire a lawyer to do that would be much less expensive if you could do it by computer program or by a non-lawyer.

REICHARD: OK, so you touched on some of the solutions right there in the last sentence. What solutions are there? Can you elaborate, in order to bring the system to where it would work for people?  

BARTON: Yeah, there’s two main solutions. The first is to make the system simpler and thus fairer. And the second main solution is to recognize the situation that we’re in. We’re not going to be able to afford to solve this problem by hiring more lawyers. That’s not the solution to the problem. How we have to recognize that people are going to be in court without lawyers and can’t afford a lawyer and then adjust the procedures around that. And so some of that, the human process, um, the judges and the court clerks and everybody who works for us, I mean these are our employees here in the government, can work hard to try and explain the system to people without lawyers and to make the system work for people without lawyers. And a part of it will be technologically driven. Um, there’s a lot of these things that can be handled online and through computer programs and we should be moving in that direction. And, and weirdly the good news is the process is so bad and it’s so unpleasant and hard for judges and clerks that we’re drifting in this direction. Like, progress is being made.

REICHARD: Well that is good news. But before I get an earful from fellow lawyers out there, there are some situations that absolutely do need trained legal minds and they’re worth every cent that they charge. What are some of those situations?

BARTON: So note, like, I think that the system is working great for corporations and people wealthy enough to hire excellent lawyers. And that’s fine. They can continue on that way. Second, there are certain types of issues. In particular, one of the things we highlight is felony defense. So if the government is going to take away your freedom and puts you in jail for a year or longer, then you should absolutely have a lawyer to help you with that and a lawyer to process through that system that gives you the most vigorous defense you can. The problem we have now is we have so many people who need lawyers and it’s so expensive that you end up in this plea machine, rather than having a lawyer who’s actually there to help you through, even if you have the most serious of charges.

REICHARD: It seems odd to me that lawyers in Washington are always tinkering with the medical system when the system of their own profession is broken. I’m thinking back in the 1990s with Hillary Clinton’s attempt to “fix” healthcare, and then we got Obamacare. The legal profession seems stuck in some time warp of inefficiency but Washington lawyers aren’t trying to fix it.  Do you see a corollary with healthcare and legal care?

BARTON: I do. Yeah. So both the medical profession and the legal profession in the US share the two, these two very bad qualities, in my opinion. The first is per capita and as an absolute amount, we spend more in both of those systems than any other country in the world. And then, especially among developed countries, we sort of get less than any place else in the world. It’s like it’s super expensive and doesn’t reach everyone who it’s supposed to reach. So yeah, certainly the doctors should be in charge of the doctors and the lawyers should be in charge of fixing the lawyers.

REICHARD: Benjamin Barton is professor of law at the University of Tennessee College of Law, and co-author of the book, Rebooting Justice. Thank you so much!

BARTON: I appreciate it, too. Thank you so much.

(AP Photo/J. Scott Applewhite) The Supreme Court is seen in Washington, Sunday, Sept. 23, 2018. 

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