Dear Professor Gillian Hadfield:
I read your 2008 article http://works.bepress.com/cgi/viewcontent.cgi?article=1039&context=ghadfield. You suggested that people ought to use the courts instead of avoiding litigation. Well, look at the cost to see why people try to settle.
First, court rules have become arcane to the point of inscrutability for many who know nothing about them and cannot juggle the timing with their personal lives, and cannot possibly master the evidence code during a single litigation effort.
Second, most people cannot afford modern attorneys at $300+ per hour case that might consume 100 to 300+ hours.
Third, public schools do not teach subjects like law ideals, common law, statutory law, the court systems, law practice, evidence code, court rules etc, so the average citizen is utterly ignorant of all of those by middle adulthood UNLESS forced into pro se litigation by the circumstances of life.
Fourth, court judges act like line judges in tennis, and usually don’t take it upon themselves to stop or punish a litigant for abusing the rules. That duty falls on the typically law-incompetent adversary. Litigants get no little or no help from the judge.
Fifth, the people simply cannot trust the competence, rigor, and integrity of lawyers or of the law community, so they have no idea which lawyers are good or bad, or whom to hire. On top of that, many lawyers demand "retainer" gifts, for which they have no obligation to do anything, and they routinely overbill clients, round up to the next $5000, $10,000, or $100,000, and finagle with opposing counsel and judges behind the client’s back to no good end for the client. The profession does not sufficiently police lawyers. It should require all lawyers to divulge their win/loss record and their costs of litigation, and database these for public inspection. And UPL penalties make it impossible to find lawyers who are not attorneys to help them.
Sixth, prosecutors lie to and intimidate defendants with impunity, priding themselves on obtaining unjust plea bargain convictions, even when they suspect or know the defendant is innocent, ESPECIALLY in instances of the politically motivated criminal charges.
Seventh, the cost of filing fees, transcripts, and obtaining court documents in the instant case or research cases can intimidate any litigant to stay away from courts.
Eighth, many litigants become shell-shocked into Post Traumatic Stress Disorder or Legal Abuse Syndrome by the litigation process, especially when dealing with belligerent and intractable judges and attorneys. They typically freeze, flee, or fight unintelligently in reaction to the stress of the proceedings. And that makes them unable to defend themselves. Federal courts need not comply with the American with Disabilities Act, and the law should change to require all courts to accommodate disabilities which the litigation process creates.
Ninth, laws should mandate cost-free access by the public to ALL laws, case law, and unclassified public records, without exception, with no charges for transcripts, court case filing fees, and clerk fees for the opening, closing, filing, prosecuting, and defending court cases. People should be able to exercise the right to petition government for redress and to settle adversarial proceedings at zero charge. Furthermore, since attorneys have become the modern joust champions, armored and mounted on armored steeds of law education and bar membership, all litigants should have free access to such champions or NO access, including corporations. Government has the obligation to level the battlefield to avoid unfair contests, and that includes contests between Government entities and individuals. If one party cannot afford a lawyer, none should have lawyers, or government should pay for equivalent lawyers for both sides. This will dramatically lower the cost of litigation and encourage the people to use the courts.
The above realities operate to make the typical Citizen loathe and distrust lawyers AND the courts. So who blames them for not using the courts to resolve their legal disputes?
The legal community itself has to change this mess to make courts more affordable and worthwhile. Barring that, constitutional amendments and litigation must effect repairs to the system.
The horrid expense of attorneys and litigation drives the people not only away from litigation and toward settling out of court, but also toward alternate dispute resolution like mediation and arbitration. And because the cost of arbitration approaches that of judicial litigation, those costs drive people toward alternatives like violent confrontation with adversaries, thereby burdening law enforcement and criminal courts.
I have expressed a number of actions that can convert this disaster into a workable system that the people willingly use. I’d enjoy reading your reflections on them.
|WARNING: I do NOT function as law practitioner, lawyer, licensed attorney-at-law, or legal advisor. Construe my comments ONLY as speculation or general information, and NOT as legal advice for you or anyone else. Consult a well-qualified attorney (good luck finding one) in all questions of legality or law.|