Wednesday, November 9, 2016

Why You Won’t Get Your Day in Court

Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.

Some of this may seem surprising to people accustomed to hearing about overburdened courts with overcrowded dockets. These very real burdens partly reflect the decades-old refusal of many legislatures to provide funds for new courts and new judges at a rate remotely comparable to the increase in population and the corresponding increase in cases. But aside from these facts, a closer look at changes in the courts’ dockets reveals some disturbing trends.

Until 1970, according to statistics compiled by the National Center for State Courts, the great majority of individuals who brought or defended lawsuits in state courts were represented by lawyers. But today as many as two thirds of all individual civil litigants in state trial courts are representing themselves, without a lawyer. Indeed, in some states, an astonishing 90 percent of all family law and housing law cases—which are the most common legal disputes for most Americans—involve at least one party who is not represented by a lawyer.

Individuals not represented by lawyers lose cases at a considerably higher rate than similar individuals who are represented by counsel. In mortgage foreclosure cases, for example, you are twice as likely to lose your home if you are unrepresented by counsel. Or to give a different kind of example, if you are a survivor of domestic violence, your odds of obtaining a protective order fall by over 50 percent if you are without a lawyer. While hard statistics are not available for every kind of case, surveys of state and federal judges repeatedly show that they are quite certain that parties unrepresented by counsel fare far worse than those who are represented by counsel, even when the judge tries to compensate for counsel’s absence.

This is hardly surprising. Unlike most European legal systems, the American legal system is an “adversary system,” where, in Chief Justice John Roberts’s words, the judge simply serves as an “umpire” determining which of the contestants has won the match. While the analogy may be overstated, the fact remains that very few laypersons, lacking a lawyer’s legal education or familiarity with the intricacies of modern law, can hope to compete with a party represented by a lawyer. As a practical matter, such unrepresented litigants are effectively denied a fair day in court.

This is bad enough when the unrepresented litigant is a plaintiff who has chosen to go to court without a lawyer because she cannot afford one. But increasingly, the unrepresented parties are defendants who were hauled into court by institutions well supplied with lawyers. For example, the most immediate impact of the Great Recession on the courts was a huge increase in foreclosure proceedings brought by banks and other mortgage lenders against those who had defaulted on their mortgages. These hapless homeowners, who in many cases had been inveigled by mortgage brokers into taking out excessive mortgages on which they inevitably defaulted, were now facing foreclosure without remotely having the money to retain a lawyer to defend them.

Despite the recent improvement in the economy, this peril persists. In New York State, for example, almost one third of all state court civil cases brought in 2015 were foreclosure actions; and in these, despite increased efforts by public interest groups to provide legal representation, nearly 40 percent of the defendants still were unrepresented. The same trend can also be seen in eviction proceedings brought against tenants. In New York City’s Housing Court, for example, 70 percent of tenant defendants who were sued in 2015 were unrepresented by counsel.

More generally, most observers agree that the primary reason so many Americans are unrepresented in court is that even people of moderate means simply cannot afford a lawyer. The provision of legal services has never operated according to free-market principles. Lawyers comprise a guild to which there are significant barriers to entry, not least the huge expense of a legal education. But in the past few decades, the price of hiring a lawyer to handle an everyday dispute has risen at a rate much greater than the average increase in income or wages. Thus, between 1985 and 2012 the average billing rate for law firm partners in the US increased from $112 per hour to $536 per hour, and for associate lawyers from $79 per hour to $370 per hour. These billing rates increased at more than three times the rate of inflation during the same period.

Economists differ about the reasons for this large increase in the price of legal help. But among the causes is a great increase in legal specialization. A corollary is that the “family lawyer” has become even more rare than the “family doctor.” But whereas the ordinary American can usually get decent health care under insurance provided through his employer or, more recently, the state, affordable legal insurance remains a rarity. The result is not only that a very large number of Americans who go to court, or are hauled into court, are unrepresented by counsel, but also that an unknown but probably even larger number of Americans who might otherwise seek legal redress for wrongs done to them simply cannot afford a lawyer and choose instead to forgo justice altogether.

Further still, even those individuals who can afford counsel rarely get their day in court. Rather, in the overwhelming majority of cases, they settle with their adversaries before the merits of their cases ever get heard. This is true even in federal courts, where, because of lighter dockets, there is much less institutional pressure to settle. Nevertheless, whereas in 1938 about 19 percent of all federal civil cases went to trial, by 1962 that rate had declined to 11.5 percent and by 2015 it had declined to an abysmal 1.1 percent. Although the data for state civil cases are less ample, it appears that in state courts the situation is even worse, with fewer than 1 percent of them now going to trial. And while it is true that some of the remaining 99 percent of cases are resolved by motions made in court and accepted by a judge, in the majority of cases the parties simply settle without any judge or jury reaching a decision on the merits.

by Jed S. Rakoff, NYRB | Read more:
Image: Honoré Daumier, 1846