Jeff Bleich, president of the California State Bar, writes in the California Bar Journal about how the legal system is beginning to fail the middle class due to the high costs of the legal system. He makes an analogy to the medical profession and doctors and how the average person (absent insurance) is priced out of decent care and treatment.
It should not come as any surprise to us to hear that — as a profession — we are not meeting the needs of a good portion of the public. Most of us have friends or relatives who have gone without a lawyer, or chose someone outside of their field, or settled a case that they shouldn’t have, simply because they couldn’t afford the right lawyer. A quarter of all California attorneys earn less than $50,000 per year, and so if they faced a serious legal problem, they likely could not afford themselves. I routinely counsel friends that they would be better off absorbing some slight or injustice rather than face the cost, risk and pain associated with full litigation.
He also lays out some other sobering stats:
In 2005, only one in eight family law litigants had a lawyer; 34 percent of landlords and more than 90 percent of tenants were unrepresented in their housing disputes. As any lawyer who has sat through a long calendar and watched unrepresented parties try to navigate the system knows — and despite the best efforts of the self-help centers in the courts — our system is not equipped to deliver on the promise of equal justice to most pro se parties. They know it too. In fact, there are blogs and Web sites that are only too ready to describe the shortcomings of the system.
He proposes three “solutions” to the problem:
- The right to counsel in certain types of civil cases (similar to criminal cases when the accused cannot afford an attorney).
- Alternative Models including preventative law services to avoid litigation in the first place and utilizing specialized judges and investigators.
- Creating alternatives to lawyers, such as less-than-full-service lawyers to advise (i.e. students and specially trained paralegals) or allowing out-of-state attorneys to handle certain cases via the internet.
Sadly, Mr. Bleich omits mediation as alternative to resolve this problem. Maybe someone cannot afford $20,000+ on an attorney to take them through discovery and a trial, but maybe they can afford $2,000 on an attorney and their share of a mediator — and get their case resolved in a fully informed manner. Mediation works, especially when the parties are fully involved in the process and they have an understanding of what the potential outcomes could be.