Monthly Archives: May 2011

Employment Law, 40 years ago

When Nolo was founded in 1971, employment law was still in its infancy – or, as the Carpenters sang a few months earlier, it had “only just begun.” Although courts and legislatures had recognized the rights of union members for decades, the idea of rights for individual employees came later. Title VII of the Civil Rights Act, passed only seven years earlier in 1964, outlawed discrimination in the workplace for the first time. Before that landmark law, it was still perfectly legal for employers to hang signs saying “Whites only need apply,” for example (and many did).

Even after Title VII prohibited workplace discrimination, many employers continued the practice without admitting it. Instead of discriminating openly, they imposed job requirements that screened out certain applicants. In 1971, the Supreme Court decided for the first time that these tactics were also illegal, in the case of Griggs v. Duke Power Co., which created the legal theory of disparate impact discrimination. Duke Power used to refuse to hire African American applicants for its higher paying jobs. After Title VII passed, the company required applicants for those jobs to have a high school diploma or receive a satisfactory score on two IQ tests. The Court found that these requirements were illegal because they had the effect of continuing the company’s race discrimination.

Although Title VII outlawed some forms of discrimination, many other job practices that are illegal today were perfectly legal in 1971. Here are a few:

  • Sexual harassment. The first cases challenging sexual harassment as a form of illegal sex discrimination weren’t brought until the later 1970s, and the Supreme Court didn’t recognize sexual harassment until 1986. Propositions by the boss, groping, and lewd comments were de facto job requirements for many women in 1971. We’ve come a long way, baby.
  • Pregnancy discrimination. Many employers fired women who became pregnant, required them to stop working when they reached a certain point in their pregnancy (or were “showing”), and refused to hire pregnant women. It wasn’t until 1978 that Congress officially declared pregnancy discrimination a form of sex discrimination.
  • Disability discrimination. The Americans with Disabilities Act wasn’t passed until 1990. Until that time, employers could fire or refuse to hire employees with disabilities, segregate them into low-paying positions or jobs with no customer contact, and refuse to make workplaces accessible to employees with disabilities.

1971 was a banner year for the workplace in another way: It was the year the microprocessor was invented. This innovation would eventually change the way all of us work forever, with a little help from a gadget that debuted in 1973, the cell phone. (The 1973 version was actually less of a gadget than a piece of luggage: It weighed two and a half pounds, had a battery life of 20 minutes, and was called “The Boot” because it was ten inches long.) In 1971, Tony Orlando asked his girl to “Knock Three Times” on the ceiling if she wanted him; in a couple of years, she could just hit him back on his cell.

Legal Paperwork: Time for a 50-State Standard

Each of our 50 states requires different legal forms to accomplish the same routine, often-repeated tasks such as uncontested divorces, name changes, and stepparent adoptions. This bureaucratic balkanization makes about as much economic sense as it would for every state to require a different width for its railroad tracks. The American legal system’s failure to agree on a national standard for routine forms results in hundreds of millions of consumer dollars down the courthouse drain.

Why does it cost us so much to have 50 jurisdictions producing 50 different forms for dozens of routine legal tasks? Three big reasons. First, there is the cost of each state maintaining a separate judicial bureaucracy to create and update what can amount to thousands of pages of forms and instructions. Not surprisingly, in this age of electronic filing, a considerable part of this administrative cost involves creating and maintaining the software for 50 computer systems.

A second reason why the existence of 50 separate form-creation systems is so expensive to consumers is that it results in private Internet-based legal providers deciding that it doesn’t make economic sense to enter the forms creation market in less populous states, where low-filing volume for many legal tasks doesn’t justify creating the needed forms. For example, while California may produce enough stepparent adoptions each year to interest an Internet forms provider, Nebraska never will.

The third significant driver of needlessly high costs is that even for high volume legal tasks, such as uncontested divorce, in populous states such as California, New York, Texas and Florida, where Internet legal providers do find it economic to compete, they must prepare and maintain 50 state-specific paperwork systems. For example, creating software in every state to file a corporation or handle a divorce is lots more expensive than doing it once. To get an idea of the big dollars involved, consider that LegalZoom charges $299 for an uncontested divorce, a task where the paperwork is different in every state. Then consider that LegalZoom charges $69.95 for an online will (Nolo charges $59.95). Internet legal providers can charge less for a will because with minor tweaks, a last testament and will is the same in all states. In short, if standardized divorce paperwork could be filed in all states, prices for a divorce would likely fall by half. And the same thing would be true for the dozens of other basic tasks where a one-size-fits-all form would work for every state — these forms would produce huge cost savings for consumers.

So if creating uniform forms is such a great idea, why has progress been slow to the point of being non-existent? The simplest explanation is that like the Italian city states of 200 years ago, where having your own little fiefdom was a great deal for the Duke, courtiers, and generals in charge, every state has an inward-looking court centered bureaucracy with no national vision or incentive to push for a uniform legal filing system.

What to Do

For over a century, America has had a movement to create uniform state laws, especially in commercial areas such as partnerships or securities regulation, where it’s key that states mandate the same basic rules. Led by the Uniform Law Commission of the National Conference of Commissioners on Uniform State Laws, progress on creating one-size-fits-all laws for all 50 states has been slow but steady. So why not have the Uniform Law Commission broaden its mandate to include the standardization of forms? It’s also possible that the National Center for State Courts could take the lead in creating uniform paperwork, although up to now this organization has played an essentially coordinative role, and has no history of pushing for structural reform in the consumer’s interest.

Given our state courts’ long history of insularity, another approach would be for the less populous states who are neighbors to band together to create one-size-fits-all paperwork. For example, the New England states or those in the upper Midwest could work together to standardize their forms. Or even faster and cheaper, the less populous states could simply hitchhike on to the forms simplification work already done in large states like California. In Calfornia, at least in part due to the pioneering work done by Nolo 40 years ago to publish forms and instructions for basic legal tasks, the California Judicial Council has become the national leader in creating and publishing easy-to-use forms and instructions for basic legal tasks.

Eliminate Bias Against People Who Represent Themselves in Court

During my many years of working with Nolo, I have spoken with loads of competent people, including many who excelled in demanding occupations — physicians, architects, teachers, dentists, inventors, physicists — who felt they were treated like not very bright children by clerks and judges. Lawyers and judges, of course, typically claim that legal self-helpers are sadly mistaken when they report condescending treatment. Their point of view would be worthy of consideration if they didn’t almost universally start their argument with that most insulting of all legal bromides: “He who represents himself has a fool for a client.”

Bias against people who choose to represent themselves in America’s public courtrooms exists in direct contradiction to the Supreme Court’s ruling in Faretta v. California, where the Court stated that everyone has the constitutional right to proceed without counsel. The reasoning behind that decision is grounded on the principle that the Constitution requires our justice system to be neutral towards the self-represented litigant. Or put another way, the courts should offer a level playing field for the represented and unrepresented alike.

Courthouses Are Unfriendly to Consumers

To see how courts are stacked against people who choose to represent themselves, let’s take a look at just some of the day-to-day realities faced by Americans who chose to go it alone.

• Lawbonics rules—Legal jargon, which is almost universally spoken in American courthouses, unnecessarily serves to befuddle everyone who hasn’t been to law school.

• Directions are non-existent—In most public institutions, from city hall and city college to the state capitol and the state university, visitors are routinely greeted by displays explaining how to get around. That these are missing in most courthouses speaks volumes about how welcome the public is.

• Nonlawyers are labeled—In many states, people who show up in a courthouse without a lawyer are often labeled (in Latin, of course) as “pro per” or “pro se” litigants. As is frequently true with tags assigned by insiders to a group of outsiders—these descriptions serve to highlight a deep institutional bias. Kudos to those states where the term “self-represented” has been adopted.

Procedural requirements are byzantine—Once in the courtroom, complicated rules of procedure and evidence—some of it traceable to the Middle Ages—present huge unnecessary barriers to the uninitiated. To see how things could quickly be improved, take a look at modern arbitration and mediation procedures, both of which dispense with Gilbert & Sullivan-like folderol and as a result are far more user-friendly.

Judges can be hostile—Judges and courtroom personnel are not infrequently rude and condescending to nonlawyers. This occurs often enough, that one suspects they have no idea of the depth or negative consequences of their prejudice. To take just one example, in most courts, cases involving nonlawyers are automatically considered at the end of the day after all the busy lawyers have long since bustled off.

Court clerks often hide the ball—Before anyone can even get into court, a small mountain of paperwork must be completed and filed with the  court clerk. That’s why it’s so prejudicial when clerks routinely withhold information that is available to lawyers from people who self-represent. For example, should John Smith, Esq.’s office call to ask for clarification of a pre-trial procedure, the clerk will almost surely provide the needed information. But if a self-represented person asks for the same type of information, the same clerk is likely to reply along these lines, “Sorry, I can’t give you legal advice. Why don’t you call a lawyer?” Many clerks’ offices are so fierce in their defense of the old ways of doing things that they post signs warning “We don’t provide legal advice!” If you don’t see why this is insulting, imagine the furor if IRS clerks completely refused to answer questions about how to file a tax return unless they were asked by a CPA or tax attorney.

• County law libraries exclude the uninitiated—In many states, law libraries supported by public funds or the court fees paid by nonlawyers are operated largely for the convenience of lawyers. Not only is information crucial to the task of self-representation organized according to a convoluted system that is nowhere explained to the uninitiated, but in many areas nonlawyers are made to feel distinctly unwelcome (for example, only lawyers can check out books, use private rooms and enjoy access to computers).

Do Self-Helpers Screw Up the Legal System?

Many lawyers defend the status quo in America’s courts along these lines.

“In a complicated litigious society, laws and legal procedures are necessarily complex, with the result that seemingly opaque court procedures simply reflect this complexity, not a bias against nonlawyers.”

There is some truth in this view. But as long as lawyers insist on “voir diring” instead of “questioning” prospective jurors, “garnishing” property instead of “taking it under a court order,” or providing “pro bono” instead of “free” legal services, one can be forgiven for concluding that at bottom lawyers have little interest in working to sensibly simplify a needlessly baroque system.

Recognize Bias to Eliminate It

As with other forms of prejudice, the first real step to eliminating bias against nonlawyers is to recognize that it exists. The best way for a lawyer to understand the unfair barriers placed in the path of the self-represented litigant is to become one. This is an experience I went through in a civil proceeding several years ago when I appeared on my own behalf without revealing I have a law degree. Even before the judge examined my papers or knew what I was attempting to accomplish (and whether I was on track to do it) he told me he was sure I could no competently handle the case myself without a lawyer. When I politely stood my ground, the judge went on to warn me that I would be held strictly responsible for meticulously complying with every court rule (rules, which incidentally, I watched most lawyers present that day cheerfully ignore).

How to Improve Access to America’s Courts

An increasing number of court administrators, judges and some lawyers have in recent years begun to come to terms with the fact that American courts face a huge citizen access problem. Unfortunately, they tend to think it’s a problem that charity will fix. As a result, they often focus their efforts on proposals to provide people who can’t afford lawyers with free (again, they often insist on calling it pro bono) legal help. While helping individuals gain access to our legal system is never a bad thing, this response fundamentally misses the point. Not only does it overlook the fact that poor and rich alike have a constitutional right to use America’s courts without an intermediary, but it also wrongly assumes that Americans with legal concerns always need more lawyers, when in fact they need more access to a re-engineered consumer-friendly legal system.

Through the adoption of courthouse-based self-help law centers, especially in family court, some state’s courts have begun moving in this direction. And where they exist, state sponsored websites complete with fill-in-the-blanks forms and instructions are also a big step forward. But unfortunately these are but baby steps to truly making our legal system accessible to all.

This post was authored by Stephen Elias.

Criminal Justice Is Everyone’s Business

The Criminal Law HandbookI wondered whether the good folks at Nolo had lost it when they proposed in the mid-1990’s that I write a book about criminal law and processes. Nolo was the leading self-help law book publisher, and very few criminal defendants represent themselves.  This is almost always a good thing, and a book trying to expand the population of pro se defendants would have done more harm than good.

So how did I (along with my co-author and former student Sara Berman) come to write The Criminal Law Handbook, which in Nolo’s 40th year will reach its 12th edition?  My imagined reader was not a pro se defendant but rather an educated client.  Lawyers and clients are supposed to work as a team, and clients are supposed to decide whether to plead guilty, remain silent at trial or testify, ask for a jury trial and make many other important life-affecting decisions.  Most criminal defendants, I realized, are so scared and so unaware of their rights and obligations in the criminal justice process that they have little choice but to follow legal advice that they barely comprehend.  Thus, the book’s purpose has been from the outset to empower criminal defendants to participate meaningfully in decisions affecting their future.

At the same time, defendants are not the only consumers of criminal justice.  In a democracy, criminal justice is a public good that must also serve the interests of crime victims, witnesses, family members and society as a whole. And if there’s life on Mars, then Martians probably need a top-notch criminal justice system too.  So that’s when I realized that the good folks at Nolo are pretty smart after all.

It’s fair to say that the human motivations and social conditions that lead to crime haven’t changed much in the last 40 years, and probably not in the last 40 centuries.  What has changed radically are the instrumentalities for committing crimes and the technology for solving them.  The internet, to take an obvious example, is a remarkable tool for communication and research.  To those bent on crime, however, the internet is a launching pad for identity theft, sexual predation and consumer scams too numerous to describe.  If Sir Isaac Newton were around today, he might have written a new law of motion along the lines of “Every technological advance produces an equal and opposite advance in its use as a means of crime.”

DNA analysis may be the technological equivalent of the internet on the crime solving front.  DNA analysis has enabled the police to solve even decades-old crimes, bringing some measure of relief to crime victims and their families even if culprits are beyond the law’s reach.  Yet DNA analysis has also exposed weaknesses in the criminal justice system.  DNA analysis has demonstrated that many prisoners who have been behind bars for years were actually innocent.  In most of these cases, the error was the result of eyewitnesses swearing earnestly but mistakenly that “there’s no doubt in my mind that the defendant committed the crime.”

Human beings created and develop the criminal justice system, guaranteeing its imperfection.  We can try to make it at least one grain of sand better each day, and to that end The Criminal Law Handbook and the forthcoming Criminal Law Desk Reference are devoted.

Small Claims Court: Big Ideas for Reform

Small claims court is our legal system’s best kept secret. Especially when combined with a mediation program that encourages people to settle their cases outside the courtroom, the small claims system offers high-quality justice at a reasonable cost. But unrealistically low dollar limits and restrictions on the types of cases allowed in small claims court hobble its usefulness. So, what can be done to fix the small claims system? Glad you asked.

Small Claims, Big Benefits

Small claims court offers people a chance to participate directly in their own cases. This fundamentally democratic aspect of the process is popular with most participants. And directly experiencing the problems, imperfections and ambiguities of presenting their cases often affords them a more realistic view of how our legal system works, as compared to a formal court, where most people participate secondhand through lawyer surrogates. Few participants in small claims court end up concluding that “I was robbed.”

The great majority of common, everyday disputes are easy to understand and require relatively little money to resolve. These include spats over auto and home repairs, landlord-tenant problems, unpaid bills and substandard services. It’s not worth the time or money to take these disputes to regular court. With attorney fees routinely running upwards of $250 per hour, a dispute must be worth at a bare minimum $25,000 before it becomes cost-effective to hire a lawyer, with $50,000 being more realistic for cases that require significant pre-trial discovery. If it’s any less, the costs of resolving the problem — including lawyers’ and court fees — loom larger than the problem.

Because formal rules of evidence are relaxed, in small claims court a judge can consider all evidence the parties present, which often produces a more just result. For example, in a landlord-tenant dispute, a small claims judge can read a building inspector’s report if either party requests it. By contrast, in a regular court, the report might be rejected under formal rules of evidence unless the building inspector is present to testify to its authenticity, something that’s often unaffordable in a small dispute.

Squeezing the Claim to Get Through the Courthouse Door

Unfortunately, because of ridiculously low dollar limits ($3,000 to $7,000 in most states; see Nolo’s How Much Can I Sue for in Small Claims Court for limits in all states), people with larger claims face a miserable choice. They can kiss off a good chunk of their potential recovery by reducing their claim to the small claims court maximum, try to represent themselves in a regular lawyer-controlled trial court, or hire a lawyer and take the risk that the fee charged are likely to be more than what they win.

Assume, for example, that a homeowner and a contractor disagree about whether a $30,000 kitchen-remodeling job was done properly. Angry words are exchanged, and attempts to compromise prove futile. Each person hires a lawyer and the case goes to trial two years later. Including two depositions the lawyers each bill for 40 hours of time at $250 per hour, costing each party $10,000. Court fees, document preparation and expert witness fees add another $1,500 each. Assume now that the homeowner wins a partial victory — he need only pay the contractor $18,000 for the substandard work. Add that to the $11,500 in legal expenses, and the homeowner is out a total of $29,500, not much of a victory. The contractor fares little better, netting only $6,500 out of his $18,000 judgment. In short, both sides do wretchedly not even counting all the hours of anxiety that went into the fight.

If the same case were brought in a small claims court with a strong mediation program, both the homeowner and contractor would have a much better shot at justice. Filing fees would amount to about $50, and each side could choose whether or not to spend a few hundred dollars to have the kitchen work evaluated by an expert witness. The case would then be promptly sent to a mediation program. With the help of an experienced mediator, there would be a good chance of the parties agreeing to a quick settlement. (Learn more in Nolo’s article Mediate Your Small Claims Case.)

If mediation failed, the case would be heard in small claims court within six weeks of filing, with each side getting the chance to have its say and present evidence. By keeping costs low, both parties would benefit almost no matter what the small claims judge decided. For example, even if the judge only knocked 20% off the contractor’s bill, as opposed to 40% in the scenario above, the homeowner would pay a total of $24,000 plus a few dollars in fees as opposed to $29,500 in formal court. And the contractor, who gets to keep close to 100% of his money would also come out far ahead.

The Solution: Dollars and Sense

The small claims court dollar limit should be raised to at least $25,000 in every state — an amount high enough to allow many consumer and small business disputes to be resolved in court without lawyers.

Simplified small claims procedures should also be made available for many more types of cases, not just those involving money, as is true in most states today. For example, it it’s appropriate, a small claims judge should be allowed to order a neighbor to remove a dangerous tree or tell a tenant who doesn’t pay the rent to vacate an apartment. Lawyers should be banned from small claims court (as they already are, in some states), except when appearing for themselves.

Every court should provide a quick, easy-access mediation alternative right in the courthouse. States which have done this report that up to 50% of contested cases are settled by the parties themselves, with the help of a mediator with no need to ever enter a courtroom. And happily for money-starved state governments, paying a mediator (who need not be a lawyer) is much cheaper than paying for a judge and running a courtroom. In short, even a free mediation system quickly saves taxpayers’ money.

Finally, consumers should be better educated about how to use small claims court through self-help pamphlets and well designed websites that should include videos demonstrating how to properly prepare and present a case.

In California, when a small claims court case is filed, a few dollars of the filing fee go to the small claims advisor program. In more populous counties, a trained consumer advocate provides free counseling to any person involved in a small claims suit. In rural counties, phone-in counseling is provided. Small claims court advisors, who are particularly helpful to first-time filers, counsel both plaintiffs and defendants on how to research the law, prepare evidence and appear in court.

An in-person advisor program like the one currently in place in California could be pivotal in helping small claim litigants navigate the system. These programs can be funded at no taxpayer cost by slightly increasing the fee to file a small claims case.

Small claims court is a key part of the American legal system. These reform steps would bring vast improvements to the small claims process and big benefits to the people who use it.

How does your state handle small claims cases? Learn more in Nolo’s 50-state article collection Small Claims Court in Your State.