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Fixing The Law
Ten suggestions that would be a start.

February 15, 2014

Noam Scheiber has an interesting piece in The New Republic in which he suggests we should socialize law by effectively capping spending on legal fees to encourage fairness. It's an interesting idea, but if it were viable (which it probably isn't), it would only scratch the surface of the problem. There are in fact so many problems—actually, call them injustices—in our "justice" system that it's really hard to know where to start. So I'll start with the issues that have bothered me the longest, and work my way back to Noam's suggestion.

It's always been a curiosity to me that we hold up Gideon—the famous Supreme Court case in which a self-represented man accused of petty theft spurred the Court to create the rule that criminal defendants are entitled to a court-appointed lawyer—as crucial to our justice system, but it has no corollary, or reverse corrollary, in civil law. Pro se civil litigants are not entitled to court-appointed lawyers. But it's worse for small businesses, who are required to have lawyers, whether they want them or not.

Take, for example, the small business owner who wants to sue his larger competitor. Currently, local rules (which carry the weight of law) in every federal district court prohibit the small business owner from proceeding without a lawyer. Whenever you point this out to a lawyer, the typical response is the absurd technicality that corporations are not people, and therefore they can't represent themselves. (By this logic, corporations can't do anything, but somehow they manage, because obviously corporations could not exist but for the people they employ, who sometimes also own them.) Generally this is an argument with as many holes as Swiss cheese. First, according to the Supreme Court in Citizens United, corporations actually are people, at least for the purposes of free speech. Does this free speech not apply in a courtroom? And what about the fact that in the magical world of small claims court, where lawyers are prohibited as a general rule in most states, corporations suddenly can represent themselves? And what about executive agency contexts, such as proceedings before the United States Patent and Trademark Office Trademark Trial and Appeal Board (TTAB)? Somehow, supposedly-incapable corporations represent themselves just fine there.

The other reason frequently voiced by lawyers and judges for the blanket prohibition on corporate self-representation is that it would drown the courts in frivolous filings. It's hard to sympathize with this line of argument, however, given that the courts (sort of, with a large asterisk, discussed below) already handle frivolous filings from self-represented individuals plenty, and could handle ten times as many with the proper use of information technology. Handling filings is, in effect, the courts' job, whether they are frivolous or not.

Whether small businesses can represent themselves is a big deal because of the big fees they have to pay their mandatory attorneys to get anything done. It's not uncommon for lawyers to charge $450 per hour to do routine work that capable small business owners could do for themselves. This is usually where most lawyers puff out their chests and declare their unique importance to society. They flatter themselves.

The truth of the matter is that it often matters less who you hire, and more the name of the firm employing that particular person. In practical terms, the social dynamics of law are not too different from those of a typical high school, with everyone trying to impress everyone else. Cliques matter; certain firms have reputational cachet that judges, for whatever reason, actually pay attention to. This is an enormous problem.

Take my recent federal case against serial fabricator, frequent liar, and non-journalist Ben Mezrich. Representing myself, I ended up taking on about seven attorneys from some of the nation's most respected law firms: Sidley Austin LLP, where Michelle Obama worked in Chicago, Holland & Knight LLP, Williams & Connolly LLP, and Posternak Blankstein & Lund LLP. Though I filed the case in 2011 and ultimately lost, it proceeded for a number of years through the District of Massachusetts and the Court of Appeals for the First Circuit, before it reached the doorstep of the Supreme Court in 2013. By that point, Magistrate Judge Collings had decided that he wanted to retire the following year. After the Supreme Court refused to hear the case, I discovered that Judge Collings had actually mis-cited and mis-quoted the definition of "non-fiction" from a wiki (which had three pseudonymously-contributed definitions of non-fiction on its site, with URLs each off by one character), and I motioned to re-open the case.

Put yourself in Judge Collings's shoes. You've toiled away for years, underpaid and overworked (at least from your point of view). You've served your country. Now, the light at the end of the tunnel is that you might manage to secure a plum job as a partner or a highly-paid consultant at a top law firm, as many retired judges do. Are you going to rule in favor of the self-represented nobody in one of the last cases in your career and admit that you made a third-grade mistake, or are you more likely to rule on the side of the firms who would bend over backwards to list your name on their respective web sites?

In other words, even if spending were capped on legal fees, there are serious signaling problems based on the way we currently practice law. A better solution, after allowing corporate self-representation, would be to forbid lawyers from disclosing to judges the name of the firm they represent. This would be a difficult task, since the value of firm-related gossip would immediately spike, but it would do more for equality in representation than just about any other measure. After all, why should the judge care which firm is working for which litigant? The effect of the firm name on the actual substance of any given case is precisely zero.

To implement such a justice system, one would need a vastly improved information technology infrastructure capable of masking firm names in communications with judges, but not clerks, for example. (Exhibits and other items might still need to be mailed—but that's work for clerks to do, not judges.) As it so happens, our courts already need a vastly improved information technology infrastructure. Technology is so mismanaged in the judiciary on every level that it ceased to be funny long ago. California recently spent $575 million on a vaporware system called CCMS, known to most Californians as "nothing," while the federal judiciary's PACER system looks like it was crafted in 1994, because it was. PACER went down twice last month, and while the Administrative Office of the Courts attributed the problems to "cyberattacks," the FBI clarified within 24 hours of the first attack that the problems were actually due to the Administrative Office's own incompetence. Meanwhile, taxpayers continue to foot the bill for the same Office's idiocy at $0.10 per "page"—a practice that itself violates the law.

But that's not even the half of it. Because even if you're lucky enough not to be a small business, and even if you're knowledgeable about the legal system, and even if you can afford to pay the $0.10 per page illegal fee, and even if you catch the elementary school errors your judge's unnamed clerk makes and refuses to admit to—God forbid you should have to appeal your case in federal court without the help of a lawyer. In many, if not most, of our nation's circuit courts, pro se appeals are put in a special pile with special procedures that are handled by special "Staff Attorneys." In other words, those cases never even see the inside of a judge's chambers. Instead, the Staff Attorney reads over the case, summarizes it in a sentence or two for the judges (with a hefty dose of skepticism based on the fact that your case is in a special pile in the first place), and recommends how the judges should rule. The fact that this special—and blatantly unconstitutional—process exists is disclosed not by the courts themselves, but by the Federal Judicial Center, and by former clerks if you ask in private. Most lawyers have no idea it even exists, because they've never encountered it, and it's unlikely that they've read the Spring 2007 edition of the Arizona State Law Journal.

And Lord have mercy if you should choose to go the Supreme Court after the Staff Attorney whose name you don't know rejects your appeal. Despite its reputational glow, the Supreme Court still has not, in the year 2014, figured out how to accept petitions by average Americans on 8.5" x 11" paper. Its Justices do not use e-mail. Yet it considers itself wise enough to rule on matters pertaining to our world, which is immersed in technology. And 8.5" x 11" paper.

Of course, you could just hire a lawyer and pay through the nose for mediocre service and often-terrible advice, in which case you'll never know if you might have fared better with a different lawyer. But keep this in mind: it's not really your fault, because the various state bar associations refuse to make information available about attorney discipline available in any bulk, machine-readable manner. They're perfectly happy allowing you to hire a lawyer who has been suspended, or almost disbarred, or who has never been formally reprimanded by the Bar, but has faced sanctions in court for some egregiously bad behavior. (Quiz: What happens to a lawyer who forges the signature of a client on a bankruptcy petition that the client never agreed to file? Answer: Court sanctions, if you can find them, and not so much as a note on the attorney's Bar profile. Another Quiz: What happens to a lawyer who is repeatedly sued by clients for malpractice and doesn't pay his bills? Answer: Nothing! Last Quiz: What happens to a lawyer who overbills by $50,000, forces a client to sell her house to the lawyer to pay the bill, and then fraudulently bills another client another $50,000 extra? Answer: The lawyer informs the Bar of his new home office's mailing address!)

So, at the end of the day, capping spending might change the economic incentives that lawyers have to provide service, but it wouldn't fix a number of the fundamental and deep problems that plague our legal system. It certainly wouldn't help law students who take on six figures of debt to find that no one wants to hire them. (Remember, it's high school, and only three middle school cliques are cool.) It wouldn't change the fact that our legal system cannot and actively does not distinguish between a lawyer who strongly advocates and a lawyer who simply lies. And it wouldn't change the way that law enforcement targets poor and minority individuals, which is an enormous problem on its own before the courts even get involved.

Here are ten policy suggestions that would do the most to help fix the legal system. Sadly, Congress would probably have to act to get any of them implemented:

  • Allow corporate self-representation. Big companies will hire lawyers no matter what; small businesses can't afford to.
  • Require the masking of law firm identities from filings and communications before judges. Why should the judge care that your lawyer might know the President's wife from law school?
  • Reverse Twombly. "Reverse what?" you might ask. And that would be reasonable, since the mainstream media never discusses the fact that the standard for filing a civil lawsuit is now so high that you must practically prove your case before it is even filed. This is all thanks to the Supreme Court's idiotic interpretation of a case involving only the largest, most absurd class-action lawsuits, which is now applied to every federal court case in the country.
  • Stop separating out pro se cases on appeal. It's unconstitutional.
  • Stop charging the public for access to information it already owns. It's illegal.
  • Require bar associations to post notices of sanctions and make all data available in bulk. Bar associations should actually want the lawyers that people hire and talk about to have good reputations, so it's unclear why they think hiding the information is a good idea.
  • Ditch year three of law school and turn it into a mandatory two-year residency in the Public Defender program. We need more public defenders (a lot more), and everyone already thinks the third year of law school is a waste of time.
  • Allow anyone to become a lawyer without law school. If Abraham Lincoln could do it, so can you.
  • Force the Supreme Court to upgrade. The current rules are literally from a different century.
  • Adopt a universal docketing system. PlainSite, a project I've worked on for two years, has standardized millions of court and agency dockets from the federal and state levels on a budget of less than $5,000. The Judicial Conference has requested $7.04 billion from Congress for fiscal year 2014, but you still can't file a lawsuit in any court using a web-based form, or follow a case from court to court.

Aaron Greenspan is the CEO of Think Computer Corporation and author of Authoritas: One Student's Harvard Admissions and the Founding of the Facebook Era. He is the creator of the FaceCash mobile payment system, ThinkLink business management system, and PlainSite legal transparency project.

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