Make the Courthouse User-Friendly

It’s obvious, from the moment you walk in, that courthouses do not welcome the public. Unlike most government facilities, there’s rarely a central information desk or consumer-focused window. Although more information is available than a decade ago, in most states the kind of informative pamphlets typically found in a Social Security, motor vehicle registration or IRS office are largely absent. Sometimes there are special lounges, work areas and phones for lawyers, but benches in the hall for everyone else. Court clerks’ offices, where every significant paper must be filed, are with some exceptions, confusing and intimidating. Trying to do business there can seem like a bad dream in which you are lost and need help, only to be faced with perpetually hurrying people, unmarked information windows and long lines of people who don’t speak your language. Rarely will you find a simple sign that says “Non-Lawyer Filing Window” or “Information for the Self-Represented.”

Assuming you get your papers filed and your hearing day arrives, even finding the right courtroom can be exhausting. In many courthouses, hundreds of litigants and lawyers must crowd into a single room every morning while a judge or clerk reads off courtroom assignments in semi-code, with the speed of a tobacco auctioneer. For example, “Smith v. Evans to 17, trailing,” means that case will eventually be heard in Courtroom 17, after some other cases go first. Which raises another big problem for the self-represented. Lawyers can often take advantage of the fact that lots of hearings are scheduled for the same time by scurrying form one courtroom to another, but people who represent themselves must cool their heels while lawyers are served first — sometimes for days.

Lack of respect for the public is also reflected in courtroom procedures. People without lawyers often don’t know exactly where to sit or stand, or how to approach or address the judge. (Check out Nolo’s article Tips for Success in the Courtroom for some helpful hints.) A simple pamphlet with clear instructions on how to accomplish these most basic of tasks would be quick and easy to put together. It has rarely been done.

Most court clerks, lawyers and judges, for whom the current system is familiar and comfortable, don’t even see the many barriers that deny non-lawyers equal access to the legal system. They have been trained to believe that to enter the judicial system, citizens really should pay for a lawyer’s help.

What to Do

Courts must be examined from top to bottom with an eye to eliminating this pervasive and essentially anti-democratic bias. Here are just a few of the things courts need to do:

  • Publish an “access catalog,” designed like a college course catalog, which describes what the court can do for people. It should spell out how much a procedure costs, how long it takes and where to find more information.
  • Like other complicated bureaucracies, every courthouse should have employees — advisors and filing clerks — whose only job is to help ordinary citizens navigate the courts. They could be paid for by filing fees paid by the self-represented.
  • Courts should distribute instructional materials on site and online to help people with routine court procedures. For example, printed forms for a simple divorce, stepparent adoption or guardianship should be available with complete instructions along with the answers to frequently asked questions on the court’s website and in the courthouse. Videotapes that show how the courtroom process works should be readily available at the courthouse.
  • Courthouses should take a look at their designs, with an eye to making them usable by ordinary citizens. Start with simple aids such as clear signs and information booths (which could be staffed by retired lawyers), and move toward providing other services such as work stations, evening court sessions and drop-in childcare for parents who must go to court.
  • To ensure accountability, a non-lawyer board of directors could monitor a courthouse’s treatment of the public. Such a board could also deal with complaints from the public.
  • In larger courthouses, self-help law centers should be routinely available to help self-helpers who need help selecting and completing forms for routine uncontested filings. In some states this has been accomplished (the California Courts Self-Help Center is one of the best), often in Family Law or on a trial basis in a few cities or counties. But unfortunately, this most basic of democratic reforms is not widely available. Money from the filing fees paid by self-represented litigants should be used to pay for these centers rather than being used for general court upkeep.
  • Where public law libraries are available they should be reorganized to best serve consumers as well as lawyers.

This post was co-authored by Jake Warner and Stephen Elias.

40 Years of Copyright Law Changes

Ah, 1971, the good old days when nobody, except for a small group of attorneys and judges, even knew that “intellectual property”(IP) referred to copyrights, patents and trademarks. More importantly, back in 1971, consumers had no means of infringing intellectual property unless they owned a record pressing plant, a printing press, a film processing machine, or some other manufacturing device. Flash forward to 2011 and anyone with a smart phone can copy Nolo books, podcasts and Nolo videos. Intellectual property law has changed so dramatically in the past 40 years that documenting all of the major changes would take a week’s worth of blogs. So, we’re going to just focus on five big changes to IP laws that affected Nolo.

Public Domain and the Never-Ending Copyright. In 1971, when Nolo was founded, the copyright in a Nolo book usually lasted an average of 56 years. But the 1976 Copyright Act initiated a new formula – copyright for the life of the author plus 50 years. For a Nolo author, that could mean that copyright in a book—for example, Patent It Yourself—could last longer than a century. In 1998, spurred on by the Disney Company and its aging mascot Mickey Mouse, the U.S. passed the Sonny Bono Copyright Term Extension Act which extended protection further (life of the author plus 70 years). One effect of this extension – which was challenged and upheld by the courts – is that for a twenty-year period ending January 1, 2019, no new works will fall into the public domain in the U.S.

Fair Use Defined. Five years after Nolo was founded, the U.S. overhauled its copyright law and included a historic first – a section defining fair use and establishing four factors to determine whether an infringement was excused as a fair use. The Supreme Court subsequently reshaped that provision twice.

(1984) The Court ruled in the Betamax decision — thanks to some helpful testimony by TV’s Mr. Rogers—that recording television shows off the air for purposes of later viewing (time-shifting) was a fair use. That was also the first time that the Supreme Court said that copying of a complete work (not just a snippet) was okay. It was also the first copyright case to touch a popular nerve. The Supreme Court received a record number of “friends of the court” briefs (non-parties expressing an interest in the case), and the nascent video industry rallied Betamax owners to lobby their elected officials to prevent legislation that would have nullified the Court’s ruling. The Betamax case was a precursor of the battles over digital copying, most noticeably the Napster case.

(1994) The Supreme Court held in Campbell v. Acuff-Rose Music Inc. that 2 Live Crew’s parody of Roy Orbison’s song, “Pretty Woman,” was a fair use. Prior to this ruling, most courts weighed the four fair use factors and placed the most emphasis on the “money” factor — the effect of the use upon the potential market. But in Campbell, the court mandated that it was the first factor –purpose and character of the use — that was most important. The question to be asked according to Campbell was whether the material taken from the original work was transformed by adding new expression or meaning, by creating new information, new aesthetics, new insights, or new understandings (sometimes referred to as the “transformative factor”). In a recent dispute where Nolo was threatened with a lawsuit over use of an image, Nolo was able to negotiate a settlement by asserting rights under the Supreme Court’s “transformative” standard.

The Intent-To-Use Trademark. Prior to 1998, there was no way for a company developing a new product to reserve a federal trademark. But the Trademark Law Revision Act of 1988 changed that and for the first time permitted applicants to “reserve” a trademark based on a bona fide intent to use the mark in the future. The new applications (dubbed “1b applications” or “intent-to-use applications” or simply ITUs) made it possible for Nolo to reserve one of its marks for a new software product.

Cybersquatters beware. Speaking of trademarks, Nolo was also able to take advantage of another change in trademark law – passage of the Anticybersquatting Consumer Protection Act in 1999. That law enabled Nolo to successfully challenge a Nolo domain name being used in bad faith to siphon web surfers who sought out Nolo but ended up at another site. In another domain name dispute, Nolo was able to successfully use the international arbitration procedures managed by the Internet Corporation for Assigned Names and Numbers (ICANN).

The Provisional Patent Application. At the time Nolo was founded, if you had invented something but you weren’t ready to file a patent application, there was no effective, fast and cheap way to record your discovery at the United States Patent and Trademark Office (USPTO). Then, in 1995, President Clinton signed a law that allowed inventors to file a provisional patent application (PPA) – a simple document consisting of text and drawings that describes how to make and use an invention. Once the inventor sends it to the USPTO, the inventor establishes an effective filing date for the invention and can use the “patent pending” label on the invention—at least for 12 months from the filing date, at which point a regular patent application must be filed. In 2009, Nolo created an online procedure to simplify PPA filing. As a result, hundreds of PPAs have been filed electronically using Nolo’s system.

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.