Put the legal system on a diet

Right now, our judicial structure undercuts the Biblical concept that rich and poor are entitled to equal justice. Often, only those who pay enough to cut through the confusion get a good legal defense. We’ll do much better if we pay attention to what law professors Benjamin H. Barton and Stephanos Bibas write in Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law (Encounter, 2017). Now, most of what passes as criminal justice in the United States is impersonal, amoral, and hidden—and it should be individualized, moral, transparent, and participatory. Instead of sitting by as plea bargaining almost always replaces trials, and insiders do what’s convenient rather than what’s just, we should simplify and clarify the process so most litigants, guided by trained paralegals, court clerks, and online programs, could proceed effectively without a lawyer. The excerpt below will give you a sense of this fine book that was on WORLD’s 2017 Books of the Year short list in the Understanding America category. —Marvin Olasky

Appointed criminal defense lawyers are often wildly overburdened and so plead their clients guilty as quickly as they can. Right now, somewhere in America, an innocent criminal defendant faces very serious criminal charges with almost no hope of a vigorous defense.

Readers with even a passing familiarity with the U.S. Constitution may find this fact puzzling. America is a nation founded on justice and the rule of law. We declared independence from England in part because King George III had repeatedly interfered with colonists’ legal rights and “the Administration of Justice.” Our Constitution is a legal as well as a political charter of liberties and limits on power, and the Pledge of Allegiance ends by affirming that our nation stands for “liberty and justice for all.” Carved on the east face of the Supreme Court building in Washington is the inscription “Justice, the Guardian of Liberty.” For more than five centuries, the statue of Lady Justice has been depicted blindfolded, to guarantee equal justice to rich and poor alike. Since 1963, Gideon v. Wainright has guaranteed a free lawyer to any felony defendant who cannot afford to pay for one. But, all over the country, Gideon’s promise of justice for all is undercut by poorly funded indigent defense systems and overloaded defense counsel. Gideon is among America’s most famous and beloved Supreme Court cases, and rightfully so. It is virtually impossible to represent oneself properly on felony charges in an American court. Nevertheless, Gideon and the cases that have followed it have hardly eliminated fundamental unfairness in America’s criminal courts. Moreover, appointed criminal defense lawyers and legal aid are only for the truly poor—people below or close to the poverty line. But middle-class people are at least as likely to face legal problems, and to face them alone.

Gideon’s promise of justice for all is undercut by poorly funded indigent defense systems and overloaded defense counsel.

The situation in America’s civil courts may be worse. Mothers seeking child support, tenants fighting eviction, and laid-off workers claiming unemployment or disability benefits usually cannot afford lawyers. They routinely endure long delays and great difficulty navigating courts by themselves before they can receive justice. In many courts, pro se (without a lawyer) litigants face substantial challenges: confusing procedures, complicated laws, and hostile judges and clerks. In a 2010 American Bar Association survey of state court judges, 94% stated that unrepresented parties fail to present necessary evidence; 89% said they suffer from procedural errors; 85% said they fail to effectively examine witnesses; and 81% noted that they are unable to object to improper evidence offered by an opponent. A simple Google search for “pro se divorce nightmare” lists story after story of litigants proceeding pro se and encountering every sort of obstacle: hostile clerks, confusing procedures, bad paperwork, weird legal terminology, and angry judges. Pro se litigants are at a deep disadvantage when they must face off against represented opponents. A divorce case is naturally upsetting; feeling railroaded by an opposing lawyer and the judge compounds the stress and anguish of going through a divorce.

Both civil and criminal courts in America rely heavily upon lawyers to process cases. In criminal court, most defendants have lawyers (overburdened and underpaid, but lawyers familiar with the process nonetheless). In civil courts, the number of pro se matters (cases where one or both of the litigants does not have a lawyer) is staggering and on the rise. In Maine, 75% of family matters involve at least one pro se party, 88% of tenants are unrepresented in eviction actions, and 80% of all litigants in protective order cases are pro se. In New York City evictions, 88% of tenants are unrepresented and 98% of landlords are represented. In Washington, DC, 98% of tenants are pro se and 93% of landlords have lawyers.

In Milwaukee, 70% of family-law litigants resolve marital status, custody, and child-support issues without counsel each year. In Philadelphia, 89% of child custody litigants lack the assistance of counsel in proceedings that determine who will parent their children. In California, 80% of family law cases involve at least one party proceeding pro se.

In many courts, pro se (without a lawyer) litigants face substantial challenges: confusing procedures, complicated laws, and hostile judges and clerks.

The rate of pro se litigation was not always so high. In the 1970s, unrepresented parties were rare, appearing in fewer than 10% to 20% of cases. Between then and now, we have seen a dramatic and accelerating increase. The Chief Justice of the California Supreme Court cited a 35% rise in the number of pro se litigants in 2009 alone. The number of pro se bankruptcy petitions grew 187% from 2006 to 2011, more than twice the overall rate for bankruptcies.

In 2014, the World Justice Project (“WJP”) ranked ninety-nine countries on access to civil justice and access to criminal justice. America finished twenty-seventh in civil justice (between Chile and Botswana) and twenty-second on criminal justice (between France and Botswana again). Nor is the WJP some international body that was created to embarrass the United States; it was founded by the American Bar Association and is headquartered in America.

Former Harvard President Derek Bok famously noted that “[t]here is far too much law for those who can afford it and far too little for those who cannot.” Our laws and procedures are too complex, and legal advice too expensive, for poor and even middle-class Americans to get help and vindicate their rights. Criminal defendants facing jail time may receive an appointed lawyer who is juggling hundreds of cases, lacks a private investigator or other support, and immediately urges them to plead guilty. Civil litigants are worse off; usually, they get no help at all navigating the maze of technical procedures and rules. The same is true of those seeking legal advice, for instance in planning a will or negotiating an employment contract.

Our laws and procedures are too complex, and legal advice too expensive, for poor and even middle-class Americans to get help and vindicate their rights.

There is a paradox here. America has more lawyers than any country in the world, and law schools are graduating more new lawyers than there are jobs. Yet legal education and legal advice are horrifically expensive. Even a small firm’s legal help costs $150, $200, or more per hour. And in our adversarial system, having a good lawyer on your side matters a lot. But not many people can afford even a few hours’ help at those rates, and this problem extends beyond the poor to reach most Americans. If you need to get a divorce, file for bankruptcy, or defend yourself against a charge of driving under the influence, you will quickly learn how expensive legal help is.

This is not a well-functioning market: Lawyers and judges have written the rules in ways that make them expensive to navigate, sometimes out of a laudable desire for perfect fairness and sometimes to protect lawyers’ turf from competition. Bar authorities keep nonlawyers such as paralegals from offering more affordable competition, yet they rarely prevent incompetent or dishonest lawyers like Cristina Gutierrez from harming their clients or punish them for doing so. Lawyerization carries significant costs: It slows and complicates matters, and it tilts the playing field toward the side with the better lawyer. The three problems just mentioned—cost, funding, and complexity—are intertwined.

Bar associations and most legal scholars tell a much simpler story, and propose a much simpler solution. In their version, Gideon and the cases that expanded it are all part of the twentieth-century march of progress toward more law, more lawyers, more procedures, and thus more justice. The solution to the problem is thus more Gideon: more funding for the government-funded lawyers we already have (like public defenders and legal aid societies) and expansion of Gideon to more areas, notably into civil cases.

That picture of progress is far too rosy. Half a century after Gideon, there is still too little money and too few lawyers for all criminal cases, let alone civil ones. (Spending taxpayer money to hire lawyers for criminal defendants is not terribly popular.) For instance, New Orleans public defender Rick Teissier had to handle 418 defendants, including many serious felonies, in just seven months, leading a judge to quip: “[n]ot even a lawyer with an S on his chest could effectively handle this docket.” But, while other professions such as medicine are finding innovative ways to drive down costs by using technology, paraprofessionals like nurse practitioners, and self-help advice, lawyers resist innovation or loosening their monopoly.

Access to justice matters. It is important for a nation founded on the rule of law. But lawyers and elaborate procedures are means to justice, not ends in and of themselves. Lawyers often help to promote justice, and they are important for the most complex, high-stakes cases such as defending those charged with felonies. Felony defense counsel need reasonable workloads, compensation, and support to do their jobs well. But lawyers can also get in the way of justice—by, for instance, delaying a mother’s ability to collect child support from a deadbeat dad. And lawyers come at a very high price. Budgets are tight, and it is not at all obvious why spare funds should go to elaborate civil litigation as opposed to housing, policing, education, healthcare, or roads.

Lawyerization carries significant costs: It slows and complicates matters, and it tilts the playing field toward the side with the better lawyer.

For years, we have been stuck in a Groundhog Day loop of bickering. Liberals argue that access to justice is a travesty, and demand that courts or legislatures spend more money on individual lawyers for individual cases. They loudly proclaim that anything less makes a mockery of justice for all. Conservatives respond that government cannot afford to pay for even the system we have now, let alone additional lawyers. They also argue that if the government were smaller and less obtrusive, access to justice needs would shrink regardless. This argument, and the proposed solutions on both sides of the aisle, has gotten us nowhere.

There is, however, a third way. The answer is to simplify and change the process itself. In the civil and criminal courts where ordinary Americans appear the most, we should simplify complex procedures and assume that parties will not be represented, rather than the other way around. Just a shift in the baseline expectation to assuming pro se status would make an enormous difference.

We cannot untie the Gordian knot by adding more strands of rope; we need to cut it, to simplify it. This book is a sober second look at the “more lawyers, more justice” creed. The real world of legal problems looks like an emergency room, with too many patients and too little time and money. We need to do triage, to narrow our ambitions, to focus on the cases that are the most complex, most serious, and most meritorious. Where lawyers are truly indispensable—primarily in felony defense—we need to focus our funding, to make lawyers meaningful in practice. That means paying defense lawyers about as well as prosecutors, hiring enough of them so their caseloads are comparable to prosecutors’ caseloads, and providing them with investigative and forensic support like what prosecutors enjoy through police departments and crime labs.

Where the stakes are lower or the issues are simpler, Americans need simpler, cheaper alternatives to giving everyone a free lawyer. The good news is that there are a bevy of options, and many of them are becoming available just in time. In particular, new technologies and approaches to dispute resolution offer us the opportunity to streamline and simplify, to the benefit of everyone (except possibly lawyers). For many simple civil and even minor criminal cases, we could reform the process to let technology do the work, funneling parties through stepped, online dispute resolution starting at computerized mediation, passing through human, non-lawyer mediation, and proceeding into our current system only after making every effort to end the case cheaply and quickly.

The answer is to simplify and change the process itself.

Legal services organizations can ration free lawyers for the fraction of cases that are the most complex or for the clients least equipped to handle even simplified procedures, such as the mentally ill or the illiterate. Law schools could offer shorter, cheaper ways to qualify as a lawyer. Licensing rules could let trained paralegals, social workers, and accountants handle routine, specialized work just as physician assistants and nurse practitioners do. We could simplify court procedures and rules of evidence and ask clerks and judges to assist pro se litigants and do more of the work themselves so they rely on the parties’ lawyers less.

In short, the legal system needs to go on a diet, to make it slimmer, faster, cheaper, and thus fairer. And lawyers need to get out of the way and let cheaper alternatives flourish.

Some will argue that these changes are unrealistic, or that the current complexity of law and procedure is necessary to guarantee correct results. But the current system is broken and courts have repeatedly tried to fix it by adding more rights to lawyers, though legislatures repeatedly fail to fund these rights. At a certain point, it is foolish to make the supposedly perfect the enemy of the good. Moreover, simplification is more democratic, empowers the citizenry rather than judges and lawyers, and fits our country’s history and design. For the first century of this country’s existence, a literate citizen could represent himself in court effectively. We have drifted so far from those roots that some regard simplification as impossible and argue that the only answer is to find more lawyers to handle more cases. To the contrary, the only realistic answer is to lessen the need for lawyers.

From Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law by Benjamin H. Barton and Stephanos Bibas. © 2017. Published by Encounter Books. All rights reserved. Used with permission.