By Mark David Blum, Esq.
I am proud to say that in the county where I live, Onondaga County in the State of New York, that there is a strong and viable Bar of lawyers set up such that anybody needing a lawyer can get one. Most times it is free of charge, at a substantial reduction in rates, or in some cases on a contingency. I know little of how life is within other Bar Associations but I can testify that my own Bar has stepped up to the plate and assumed the mantel of responsibility to assure everybody who needs a lawyer can get one.
The Denver Post recently published an article examining the growing number of persons representing themselves in court. Trust me from personal experience that representing yourself is a foolish idea.
At the same time I recognize that people should not have to pay over their last dimes and their savings just to retain the services of a lawyer to pursue or defend an action. Lawyers are paid quite a bit of money for their training experience and expertise in navigating through the laws and various courts and rules of procedure. Doing so takes time and specialized skills for which we lawyers are entitled to be paid. What is laughable is that most lawyers I know are lazy and would prefer not to work but every day judges are putting into place more and more rules requiring the production of more and more documents, such that not only is the system fraught with danger for untrained, but it drives up fees and costs and most importantly “time”. Remember, “time” is all a lawyer really has to sell; his time and his counsel.
No other profession I know of invests as much collective time and energy as does the legal profession is assuring services to the poor and working poor. In fact, in some instances legal assistance is provided for those who could pay for it but doing so would exceed the value of the services to be rendered. Medicine has not stepped up to the plate. Neither has Retail. Only ‘law’ has gone out of its’ way to avail itself to everybody because we know the dangers inherent to being without counsel. Unlike doctors, we lawyers really do not want people operating on themselves.
Where I live and work, we have so many programs and so many dozens of lawyers who avail themselves for assignment for pro bono work. Some parts of our local courts could not function without them. My own personal belief is that all of them should be brought together in a single organization but that is a different discussion. The bottom line is that my Bar is here and doing what is right.
Also referenced in the Denver Post article is a new concept is being thrown around called “bundling” or better stated, “unbundling”. Believing, erroneously I believe, that if lawyers could be engaged in just parts of a case or controversy, doing so would keep costs down for the consumer and may encourage more lawyers to get involved.
This ‘unbundling’ of a case would prove to be a disaster with potential for horrific backsplash. If you can itemize out the elements of any type of case and tell a lawyer he can participate in a portion thereof for a reduced and fixed fee, then what is to stop me as the next lawyer as showing the client an itemized listing and the fees associated therewith and start charging a la carte. Suddenly, I don’t have to do a criminal case for a flat fee but I can charge for every court appearance, every motion, and even the trial itself as separate and distinct animals.
Even in the civil arena, this unbundling can prove too dangerous. Most of what lawyers “do” is find a solution to a problem and then use the rules and law as the means by which they get to the solution. A lawyer who steps into a game midway through is limited by what has been done before him. Of course there is an upside; as a lawyer can be hired to just advance a discovery motion or conduct a deposition or file a summary judgment application. A lawyer can certainly be a scrivener for two people wanting a divorce or to sign a contract. Me, I could do what I love and limit my activities to being a Barrister and never push another document again.
But alas, the business and practice of law does not work that way. In nearly any case I can think of, the lawyer has to be there from start to finish. You cannot start to solve a math problem and then say “nevermind” any more than you can start a civil case and then tell the client on the day of trial “good luck” in finding a trial lawyer that day to take his case as it has been prepared by someone else.
There are always going to be folks who see themselves as being able to do what those of us who actually took the time and expense to learn how the law works. We should wish them well and encourage them otherwise. Every case of any kind has to be evaluated and seen from a neutral position which cannot occur when you are both an advocate and a party.
At the same time, it should not drive a person into bankruptcy to engage themselves in our justice system. So many new rules and procedures are being applied that the work is multiplying exponentially. Maybe this is good to keep some kind of perceived ‘order’ but in reality what these rules and procedures do is make the cost of representation all the more difficult and expensive.
Unbundling will not work. By logic it cannot be any more successful that me diagnosing my own illness and then going to see a doctor to write me a prescription based on my own conclusions. It is a concept whose time has not come and an idea that should be abandoned before it takes root.
This does not mean that there are not some aspects of my business and profession that can be done by others. Real estate transactions, wills, estates, some divorces (but not custody) are all areas where a burgeoning industry of trained and licensed paralegals could stake out as their own. I would respect that but expect the case or issue to be seen through. No unbundling in fee structures.
It really is a sad state of affairs that the cost of participating in the civil or criminal justice system has to be financially backbreaking. This is especially shameful during our current economic crisis when money is tight and jobs are scarce. Much can be done at the executive level to streamline the process to make it less onerous and expensive.
But never represent yourself. It is a losing proposition. In Onondaga County New York, there are abundant resources for folks who need legal help. Probably other communities come close. The solution to the high cost of legal services is more kindness, not law a la carte.