When It Takes A Lawyer To Breathe
June 18, 2015 (Mimesis Law) — In response to another touchy-feely op-ed in the New York Times, this one by Theresa Amato calling for the funding of “crucial” civil legal services for the poor and downtrodden, meaning both those who couldn’t afford legal services as well as those who had a ticket to practice law but couldn’t get a job, Nebraska Senior District Court Judge Richard G Kopf offered a thought:
If you can’t afford civil justice, you don’t deserve it*
* I am only joking, sorta.
Ahem. And indeed, he’s only joking. Sorta. Judge Kopf makes the point that as unfortunate as circumstances may be for unemployed new lawyers, they aren’t the only ones sucking wind.
Ms. Amato might as well suggest that we ought to pay the hordes of unemployed PhDs ’cause, goodness knows, they have worked so hard and face so much debt. How about the poor bastard who used to work in the manufacturing plant and got permanently laid off when the company failed during the great recession, shouldn’t we pay him or her as well ’cause he or she has worked so hard and faces a mountain of debt?
While it’s true that new lawyers aren’t alone in their plight, this misses the point of a structural disconnect between the need for legal services and the availability of lawyers to provide them. It would be one thing if there weren’t enough lawyers sitting in their parents’ basement eating Cheetos, but there are. Why not put them to work?
Yet, that’s only a piece of the equation, as the need side remains an issue for the judge, who asks “why in the world should anyone fork over money to employ unemployed lawyers for other people’s civil cases”? Well, glad you asked.
Putting aside some amorphous vision of “civil cases,” consider that government regulation on both state and federal levels has created a regulatory regime that’s unnavigable for most people. Want to divorce? You need a judge to grant it to you, not to mention decide who gets the kids and the cat. Plan on dying some day? You need a will, and while the form-hucksters will be all too happy to sell you a simple one, they won’t be there when grandpa decides little Billy pisses him off, so he crossed out Billy’s name.
But the judge notes that most simple legal tasks can be performed by non-lawyers with some training and oversight. For example, there is Washington State’s 3LT initiative, a pretty sharp concept if I do say so myself. But it will take years for the idea to spread, and eventually filter through to the poor groundlings. I hate to be the one to break the bad news, but some are going to die between now and then.
And to add insult to injury, the work these paraprofessionals will do is the bread and butter upon which hungry new lawyers are feeding at the moment. You may not want to feed them cake, judge, but do you really need to deprive them of bread and butter? That’s just heartless.
Yet, even the second tier of quasi-legal services won’t sufficiently do the trick. Try starting a business today, even a lemonade stand, without counsel. Between the requirement to create a business entity, the licenses required, the regulations as to how many inches a regulatorily gloved hand can be from a regulatorily rung cash register (do they still have cash registers?), there are still the 497 forms to be filled out in triplicate to appease some official woman in the bowels of a government office.
Hey judge, all those 35,000 regulatory offenses over which you preside when violated require some form of legal guidance along the way, lest the prisons be filled up with vicious teak fretboard crafters or the occasional fisherman. And we both know how expensive it is to keep those bad dudes in the hole.
The problem is that we can’t have it both ways, a civilization that has become so burdened by regulation and law that ordinary people can’t survive it without a lawyer by their side, all the while telling them that their efforts to start a business, make some dough, enjoy the ordinary accoutrements of life and, god forbid, maybe let their kids in college go on a date, are their own problem.
The need for civil legal services isn’t for the poor to figure out how to eat bon bons, judge, but to breathe. Don’t we want them to engage in commerce, to not beat their spouses, to leave their hard-earned savings to their children? Each of these things involves the law, because somebody, somewhere has found a child without a law named after him, and that cannot stand.
And since we’ve placed all these burdens on ordinary people, police excepted, such that they can no longer enjoy the opportunity and bounty that our nation once existed to provide, is it fair to impose an unfunded mandate on the masses? That we’ve got new lawyers with nothing better to do than play video games just happens to be fortuitous, so why not use them?
If it makes you feel better, they aren’t a whole lot happier than you are with the mess. In fact, no one is, but it’s what we’re facing, so we just need to make the best of it.