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.

The Rise of Do-It-Yourself Estate Planning

Like many areas of the law, estate planning was once a lawyer-only endeavor—folks were expected to pay lawyers to draw up their wills or trusts. These days, however, DIY estate planning is common and growing. And thanks to the Internet, it’s easier than ever to access sound legal tools that you can use to plan your estate without a lawyer.

The Early Do-It-Yourselfers

Perhaps the first foray into do-it-yourself estate planning began in 1965 with Norman Dacey‘s How to Avoid Probate! Dacey was not a lawyer, but in his book he criticized the probate system and advised people to use trusts to avoid it. This did not sit well with the legal community, and he was found guilty of practicing law without a license. This ruling was later overturned on appeal, opening the door for others to create and distribute legal information for nonlawyers.

A few years later, Jake Warner and Ed Sherman started Nolo to do just that. (See more about the history of Nolo, here.) By the early 1980s Nolo had published several books that explained how to avoid probate and write a will or trust without a lawyer. These ground-breaking books included Wills, Probate, Trusts and Taxes and the Simple Will Book, both written by long-time Nolo author Denis Clifford.

Technology Feeds the Fire

In 1985, as personal computers became widespread, Nolo produced WillWriter, a book-and-software package that let people create wills on their Apple IIs. Nolo began including disks (and then CD-ROMs) with its will and trust writing books, allowing folks to write estate planning documents with ease and privacy on their own computers. Currently, Quicken WillMaker Plus, a direct descendent of WillWriter that provides a suite of estate planning tools, is the nation’s top-selling estate planning software.

The Internet fueled the real do-it-yourself boom in estate planning. Suddenly everyone had access to a breadth of information formerly only available to lawyers. Nolo was quick to make dependable information about taxes, probate, and will and trust writing available on the web. People can now also make their own estate planning documents online, and each year tens of thousands of people are now writing wills, trusts, powers of attorney, and other documents online, without having to pay a lawyer.

Of course with the good comes the bad. Anyone who’s ever searched online knows that the web (like the rest of the world) is full of unreliable information. It’s up to the user to find trustworthy sources of legal tools and information. At Nolo, our team of attorneys are proud to bring you the most accurate and up-to-date legal information available. And when a complicated situation calls for a lawyer, our materials alert you.

Nolo Joins Internet Brands

We are pleased to announce that we have been acquired by Internet Brands, a new media company based in El Segundo, California.

“Nolo has always advocated for a more accessible and affordable legal system while giving consumers the plain-English information they needed to tackle everyday legal tasks,” said Jake Warner, our executive chairman and co-founder. “We’re confident that Internet Brands’ proven expertise in e-commerce, consumer-focused products, and online SMB marketing services will maximize Nolo’s online presence.”

Bob Brisco, CEO of Internet Brands welcomes our company formally on his blog and was quoted in Internet Brands’ press release this morning, “Consumer demand for quality, easy-to-understand legal information continues to grow very rapidly online. Nolo is the gold standard for original legal content, and has expertly navigated the shift to the Internet and digital formats.”

Though this marks a change, Nolo will remain in Berkeley publishing books and software that put the law into plain English, just as it has for the last 40 years.

40 Years of Tax Changes

Calculating taxes

Few laws are as important as the federal tax law. It affects most of the 215 million adults who live in the United States, as well as millions of for-profit businesses and nonprofit entities.

How has tax law changed since 1971? Let’s count just a few ways.

  • In 1971 the top individual income tax rate was 70%. In 2011 it is 35%.
  • In 1971, the average income tax rate for a typical family of four was 9.27%. In 2011, it was 4.5%.
  • In 1971, a person with $50,000 in income paid about $18,000 in income tax. In 2011, a person with the same income pays less than $8,000.
  • In 1971, corporations accounted for over 14% of all federal tax revenue. In 2011, they accounted for about 9% of revenue.
  • In 1971, the top tax rate on long-term capital gains was 34.25%. In 2011, it was 15%.
  • In the entire decade of the 1970s, the federal tax law was seriously amended five times. From 2000 to 2010, it was amended 22 times.
  • In 1971 the Federal Tax Code was approximately 16,500 pages long. In 2011 it was over 71,000 pages.

Thus, we can see that due to the “tax revolt” that began in the late 1970s and continues to this day, taxes have fallen, particularly for the rich. The result is that the federal government takes in far less than it spends, and must borrow heavily to meet its obligations.

In 1971, the annual federal deficit was less than 1% of the nation’s Gross Domestic Product. In 2011, the deficit was almost 10% of GDP, the highest since World War II. In 1971, the total national debt was $371 billion, which was about 37% of GDP. In 2011, the total national debt exceeds $14 billion, which is over 93% of GDP.

At the same time, the tax law has grown increasingly complex. Now it seems that the tax laws are changed every year, often more than once a year. Congress amends the law over and over again as a way to reward friends and punish enemies. There is a well-known adage: “The power to tax is the power to destroy.” But the power to tax is also the power to obtain campaign contributions. This is why few areas of law have changed as much as tax law over the last 40 years.

The result is a complete mess.