It’s not that the concept is new or novel. Hatred of lawyers and the system blamed on them, has been around for a long time, and growing. But as the Wall Street Journal reports, the economic downturn has made hiring a lawyer an impossibility for many, even if they were otherwise inclined to “lawyer up.”
A growing number of people have found themselves in court facing costly financial proceedings such as declaring bankruptcy, fighting foreclosure and litigating employment fights. Adding to the challenge, for many: The high cost of legal representation often prompts them to go it alone.
Going it alone may not be, as Nathan Koppel suggests, a choice, but the lack of choice. That’s a very different problem. It’s one thing for someone to make the active choice not to throw money away on a lawyer. You make your bet and live with the consequences. But when there’s no choice, no option to have some legal talent at your side, and you’re left to fend for yourself in a system that requires a judge’s signature to accomplish a needed goal, there’s no way to blame the litigant.
“People will gather legal information from the Internet, from friends, or leaflets at a courthouse and think, ‘I can play checkers, I’m ready,’ ” said Raymond Brescia, a professor at Albany Law School, who has written about tenants’ struggles to afford legal representation. “But when they get to court they realize it’s a game of three-level chess, and they don’t have the first idea of what’s happening.”
Pine as we may for the lack of a system where good people without resources have access to good lawyers, it doesn’t exist. While indigent criminal defender organizations are being forced to close their doors to new clients, and deeply compassionate private lawyers cry for free lawyers for all, while they continue to market their practices to paying customers and collect as many fees as possible, the pro se litigant continues to lose.
The analogy between checkers and 3D chess is a good one. Non-lawyers often have a clear and certain view of the law, not to mention what they believe justice to be, only to find that no one in the courthouse seems to share their clarity. Often, this devolves into despair and conspiracy theories, where they rationalize their lack of understanding by blaming everyone else. Not only does this result in a lost cause, but another member of the Tin Foil Hat Society.
What stands out in Brescia’s quote is the source of information for so many non-lawyers. The Internet. It’s democratized information, making it accessible to anyone with a computer. But it’s only a weak solution. For one thing, reading the words doesn’t mean that anything is understood. The law is complex. Whether it should be or not is another matter, but for the person walking into court on Monday, it is. Non-lawyers aren’t equipped to grasp its complexities or nuances, mechanisms and details. They walk in thinking checkers and they’re slaughtered.
There’s another problem, one that lawyers don’t want to admit. Much of what’s available on the internet is just plain wrong. And it’s being written by lawyers for the consumption of non-lawyers. You see, as everybody is told by their friendly marketing rep that they have to write stuff to become a part of the greatest marketing juggernaut of this generation, they comply. But they won’t put in the time to get things right, or they can’t. Writing often reveals that some lawyers just aren’t very good. Maybe they aren’t very smart. Maybe they aren’t very experienced. Maybe they just don’t get the distinction between the routine and the right way. You see that an awful lot.
And then there are others who comment “good job” and “great post,” even though it’s not. This has an impact on the non-lawyer, who feels that they’ve stumbled on their checkers answer to their 3D chess problem. See, all these other lawyers agree with the writer in the comments. It must be right. It must be.
Of course, the comments aren’t meant to suggest that these explanations of the law are right, or even ha;f-way decent, but to bolster the self-esteem of the writers and curry favor online for the mutual admiration society. There are lots of societies on the internet. Some call them Tribes.
Some people will say or do anything to be a part of the tribe. Some people will say or do anything to be the tribal chieftain. If it means applauding or encouraging ignorance, so what? As long as others love them for their encouragement. Not that it’s an appeal to narcissism, or anything nasty like that, but there’s a gaping void that can only be filled by pretty balloons offered by people who are merely names on the internet.
What the tribe folks don’t consider is that these unfortunate folks who must go to court lawyerless read these bad posts on the internet, think they know what the game is and how to play it, and get creamed. For all the talk about how they care deeply about people, they do an awful lot of harm to them. No need to think to hard too explain the dilemma; they do care deeply, but care more about the tribe.
Gillian Hadfield, a USC lawprof, has come up with some of the most interesting, and viable, alternative approaches to lawyering for those who can’t break through the blue pinstripe paywall. Unlike some of the pie in the sky ideas, which may make their proponents feel good but have no chance of working, Gillian offers ideas that are doable. Radical, but then it’s a radical problem that demands radical solutions.
Neither dumbing down the law, nor sending non-lawyers into court like lambs to the slaughter, works. Nor will there be a great coterie of lawyers available to pro bono represent the bulk of America, not as long as there are loans and rent to be paid, and children to be fed. To any private lawyer who thinks there should be, throw your office doors open to the huddled masses and let me know how that works out. Until you’re prepared to give it away, don’t urge it upon anyone else.
And don’t become an enabler of the ignorant and wrong while professing your love of humanity. People are getting hurt, and you’re part of the problem. Gathering up your tribe at the expense of others isn’t a harmless game. Don’t kid yourself. Either stand up and challenge writings on the internet that are wrong, foolish, simplistic, stupid and misleading, or admit, at least to yourself, that you have made the choice to sacrifice good men and women who turn to lawyers online for a way of dealing with their problems so you can gather some friends and followers.
Those who can’t afford a lawyer may not have a choice. Lawyers who applaud crap online do. Yes, it can make you unpopular with your tribe to be honest, accurate and truthful. That’s the price. Got the stones to pay it?
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There is also a lot being written out there by non-lawyers on behalf of lawyers. Blogs that are sold simply as ways to produce depth for a website. They are often shallow information or as you point out, are just wrong for that jurisdiction or area of the law.
Any lawyer who places his name and work in the hands of a non-lawyer is completely responsible and blameworthy for what happens. I make no distinction, as the lawyer has forsaken her responsibility.
SHG,
As I’ve been navigating online legal world recently, the “tribe” mentality you speak of definitely seems to be in full force. It seems especially true from the SEO/Marketing/Consultant crowd. I get that it’s their job to promote and connect but 90% of it seems disingenuous.
As I clerk for an insurance defense firm, I haven’t spent much time looking at legal blogs that would focus upon issues that would face pro se litigants (criminal, estates, etc) but is offering legal advice really that prevalent? I can see where all the marketing folk can get away with giving (poor/fake) marketing advice but are there really that many lawyers offering legal advice via blogs? I would be far too apprehensive to say anything re: law, not only out of lack of experience but from fear of ethical violations.
Not that I won’t write about what I want or what I think to be true; rather that I avoid topics that I think are “out of my league” or would constitute legal advice. Of course, as you note, lawyers are people: good, bad, and indifferent – and act accordingly. Unfortunately, it would seem that the bad and indifferent outweigh the good online.
Regards.
Good job. Great post. Have a nice day.
Well, I hope you can abide a just little more adverse commentary and one personal experience.
Generally, the law should not be that complex or nuanced that a reasonably intelligent literate prudent person would walk in the door and get slaughtered. It just so happens, by just happenstance I suppose, the law is written in plain English. Law is not physics or chemistry or mathematics.
Perhaps you’re actually referring to the mechanics of it, the rules of how things proceed within the courtroom that are external to the issue.
I’ve gotten slaughtered, but not because of what I failed to do or understand about the LAW in the particular instances, but what I failed to understand about the mechanics.
Truly, I’m not attempting to shill? my own blog here, but the following example is not the current top page; as a matter of fact I think that I haven’t yet written anything about this example within any forum and linked to my real name.
I was answered with an affirmative defense, by a lawyer, that stated no facts* in avoidance of judgment. Essentially the answer meant, ‘my clients admit it.’ So I filed a motion for summary judgment based on this and mailed their attorney a copy. Within five days he withdrew as their counsel. My motion disappeared; never even made it on the docket.
I speculate had I an attorney – whom I wouldn’t have had the money for anyhow – the Affirmative Defense answer would have been the same but the wink and nod would have come into play. The wink and nod indicating that the facts aren’t in here but we’ll ferret them out during discovery or depositions. I’d be guessing that’s a nuance the non-lawyer isn’t equipped to understand the necessity of.
*Louisiana is a state of fact pleading, the LA. Supreme Ct. has said so again and again -unless I missed the holding about the pro se litigant exception.
{Patting myself on the back now – used spell check this time – unfortunately I misspelled nnoe}
As a result of the blawgosphere hype over the last week regarding the content partnership between JD Supra and LinkedIn, I added the JD Supra app to my LinkedIn home page yesterday and began to browse the Business Organization postings. The second article I read was purportedly a guide to raising capital for a startup. It was filled with misspellings and grammatical errors, contributed virtually nothing substantive on the topic and was simply a terribly written article. As I came to the end of the article, I was offered three choices: “Recommend,” “Share” and “Favorite.” The inability in this case to “challenge writings on the internet that are wrong, foolish, simplistic, stupid and misleading” was extremely frustrating. I hope that in the near future JD Supra and LinkedIn will create ways for the online community participants to more fully critique the content being submitted.
The SEO/Marketing crowd is notorious for its circle jerk, not to mention vapidtity. With little to offer and even less to say, they busily pat each other on the back to establish internal credibility for each other. While they mislead only lawyers, they encourage lawyers to mislead others by telling them to write. Just keep writing, nonsense, crap, garbage, whatever, as long as they write.
And then there are those lawyers who write nonsense, crap, garbage, whatever, of their own volition.
I’m reluctant to be critical of anyone for typos, as I’m as guilty (if not more so) than most. But worthless content is inexcusable, and reveals much about its author.
Fine post.
My 3 cents. Most lawyers on any level of the food chain are either unwilling or unable to do good work. What we tell small and medium businesses (who we do not represent): “Except for a few good habits to develop with lawyer help when you set up your business, you rarely need lawyers. The idea is not to ever need them.”
If you do need a lawyer, be very careful. Most could care less about you. The balance have no idea what they are doing. Bad neighborhood. Too much law cattle out there. Lawyers are not leaders. They follow.
Insurance defense is a good and maybe the best example. Notorious for dumb and uncreative lawyers, too. Keith–get another gig. Apart from the truth that it is very pedestrian and bottom-feeder work, and will turn your brain to tuna fish in about 18 months, you are not even representing real clients. You have a built-in conflict. Insurance companies are your clients–think about it–and insurance companies (like banks, bowling alleys and service stations) have trouble hiring talented rank-and-file humans. Some fine trial lawyers here and there. But their lawyers are in general the worst–and make the PI plaintiff guys look like Lawrence Tribe, Jim Freund, and Karl Llewellyn. And for christsakes do NOT volunteer to people that you work for an insurance defense firm. We will not even interview lawyers who have worked at them. Good lawyers think “law cattle” and human garbage. Poorly-paid, too. You can do better. I’ve been there. Trust me. You can hate me for saying that, but I am right. Find a better neighborhood. You are welcome.
“Law cattle” in all areas of the law will do anything to dumb work down. Main reason: most lawyers simply do not like what they do day in and day out. Clients suffer the most. Almost everyone in America seems to be a lawyer and almost anyone can be one. It’s not a big deal. Go for the highest spheres. Reject and look down on the rest of “the club.” It is made up of “nice people” who have given up or have never had good role models or mentors. The lowest standards are to be found at law firms. Read our blog. There are reasons why this has happened–and ways to solve the problem and stop much of the lemming-level mediocrity. But some of us can do better. We can lead. We can become more “elitist” about client service values and who we hang around with. Being a lawyer in America is a big Nothing. You need to work hard to distinguish yourself.
Criminal or many regulatory matters? The answer is very different.
Scott–You are welcome, too. I have now enriched your life beyond your capacity to ever repay me. And where were YOU last night? I waited in that Key West bar for hours. Diamond tiara. Whole bit. And Little Sammy asked about you. Dan
Now you tell me about the tiara? You tease.
There is a distinction to be drawn between blog posts and casual writing that happens to be about the law and a formal article advising on how to do something law related. The latter should be well written and grammatically correct. One of the absolutely necessary skills a lawyer must possess to be effective is the ability to write AND parse language carefully. Someone who can’t be bothered to write well when offering advice to others reveals enough about the source as to render whatever advice they might give not worth my time.
Even though you are talking about civil work for paying clients, the call to be more elitist about client service rings true for me as a public defender. Far too many of us are so self-congratulatory about the fact that we chose a “noble” career we stop performing it in a noble fashion. Disdain for clients, a defeatist attitude and less than our best becomes acceptable as we sit around and pat ourselves on the back. Those of us who consistently call our colleagues out for their half-assed performance sure aren’t the belles of happy hour, but I like to think that knowing I’ll have no problem shaming you if I get your file in Superior Court and you’ve half-assed it makes our prelim deputies work a little harder.
How’s that law practicing going, Keith? You under a lot of pressure these days? Under fire, and when you’ve been working for high-end clients like Fortune 500s, and talking only with their most demanding officers and GCs and in-house people, do you (a) use the stress or (b) fall apart like a bitch? :>)
Mea culpa. Huge apologies. A lifetime of hard living and a wasted youth.
My comments got mixed up as between Keith Lee and Lee Stonum.
Keith Lee is an “Insurance Defense Clerk”. He has a blog which is incompetently imitative of others and is a waste of time. He does not practice law. It shows.
Lee Stonum is a Public Defender. Seems also young but reasonable so far. He does practice law.
Both have Lee in their names. It happens.
There was a tiara involved in something that I wasn’t invited to?
Scott and I continue to flirt with alternative lifestyles. Nothing irreversible, probably.
I fail to see that making the law usable by ordinary people without a lawyer would constitute, or require, “dumbing down the law.” Would you say that Christianity has been “dumbed down” since the world began publishing Bibles in languages other than Latin?
Don’t feel badly. It’s very common, almost definitonal, that the same people who think the law ought to be readily understood by ordinary people are the same people who don’t understand why that’s a problem. It’s a chicken/egg sort of thing.
I agree, most people who do not have the inside view only see attorneys as out there for the money. I think that personal injury lawyers have the ugliest reputation, but if the public had an inside view they would have a much better perspective.
There’s nothing alternative about tiaras! Avvo and Martindale-Hubbel award them to all the best lawyers.