Sunday, September 15, 2013

The Meek Will Neither Inherit the World Nor Solve Unemployment

From Justin Long at The Faculty Lounge:
But there is an entire side to the discussion that we simply aren't having: beyond reducing supply, we should be increasing demand. Despite the shrinking numbers of existing jobs in existing firms working for existing clients, there is no corresponding shrinkage among those who simply cannot afford the legal advice they need.  Where is the debate about how to find funds so that lawyers can be hired to serve those clients, at salaries commensurate with their skill, education, and indebtedness?
Side of the discussion?  What side is that, exactly, the irrelevant one?  The let's-make-stuff-up one?

Unmet legal needs do exist, but it's quickly reached mythological proportions in trying to defend the output of attorneys or conjuring up schemes to employ the new lawyer underclass and mint more new ones.  I call bullshit fueled by ivory tower bias and fantastical ideas about the poor.

The biggest tip-off that this argument is mostly bullshit is that the professors who spout it out usually speak in ambiguities.  Note Long's verbiage:  "legal advice they need."

Well, what legal advice do poor people need?  Since most professors don't speak to poor people, let me spell this out:

They have no need for criminal defense, personal injury, social security/disability, most workman's compensation claims, and certain other fee-shifting/contingency claims as a result of the public defender system (which needs more funding, but that's another matter) and plaintiffs' attorneys willing to take flyers on plausible claims (hint: if the SSI mill isn't taking a disability claim, it's not an "unmet legal need").  They also have very limited needs for estate planning, transactional law, high-powered corporate/commercial law, etc.  And poor people rarely actually need attorneys in tort defense because they're either insured or not worth suing.

Next, we can rule out things that are better off being pursued through the executive branch or other political action, like many school/health issues or consumer fraud. And finally, let's dump anything that would be better served on a platter for Judge Joe Brown and his daytime friends.

And, loyal readers, that's a lot of claims, but many of those people still call in to legal aids and are declined.  You really think some dispute over a hair salon bill is an unmet legal need?

Do you want to give all those people access to a "civil Gideon" that would surely be desperately underfunded?

What are we left with?

Here's some idea:  crap small claims defense, foreclosure/eviction defense, handling run-of-the-mill employment disputes with less-than-ideal clients, some miscellaneous (taxes, municipal violations, immigration, etc.), and of course poor people fucking, a/k/a the hellish depths of family law.

And the thing about these claims is that they fall into one of two camps:  First, they're so mundane or routine that the new lawyer offers little in service over the individual handling the claim pro se.  Poor people don't stay married just because they can't find a lawyer.  Tenants aren't evicted because the judge wanted to hear a Penney-suit lawyer argue instead of the screwed-over tenant.  Courts normally bend over backwards with forms and judicial leniency to make sure justice is served.  I'm seen judges blatantly side with poor people out of pity.  Ultimately, "justice gap" arguments, in many ways, are veiled criticisms of the judiciary, which isn't perfect, but it's sure as shit not letting a whole bunch of evil villains prevail over unrepresented people that would win but-for the lack of a new lawyer to fight for them.

The second group of claims is those raised by poor people that go beyond the routine and mundane to where they could not effectively represent themselves.  Say, a dicey child custody case or a collections issue that leads to an FDCPA suit.  Do you want a new lawyer handling those?  It's a testament to the special uselessness of law schools that a new graduate adds little value to most cases and wouldn't know how to handle others barring hands-on training in law school.

Ultimately, arguments like Long's showcase several disconnects between the Ivory Tower and reality.  First, there's this fantasy cloaked in vagueness that that there's urgent "needs" being unmet, and that these "needs" are not being adequately handled without a lawyer.  Well, that's bogus in that it ignores the above, and that it ignores the fact that legal aids that do exist triage and take the most urgent/necessary cases, where justice may be at a serious risk.

Second, there's the disconnect between what the average person can do, what the new lawyer can do, and what services people actually need.  If two childless people can divorce without lawyers, why on Earth does your system want to inject them?

And speaking of needlessly injecting professional help where it doesn't belong, do you really want to give lawyers to every Tom, Dick, and Harry who's got a collections claim or a pending foreclosure/eviction?  Again, the perverse optimists in the Ivory Towers likely think all these people are victims of consumer scams or some such nonsense.  Truth be told, most of those claims lack a good-faith defense and the lawyer isn't going to be able to get a cent better settlement than a non-lawyer debt counselor or the person calling in on his own.  You want new lawyers feeling like they have to find ways to file motions, counterclaim, stall, or otherwise zealously represent clients?  The best thing a lawyer can do in a collections case is invoke post-judgment exceptions, which can be done by most types of paper in most fonts.

Fundamentally, the pontificating professorate believes there to be a wealth of great legal work lying around out there that isn't being done, and that's simply not supported by reality; you'll notice even in the literature that tries to make these claims that they never try to break it down into billables or try to refine what "necessity" is.

Even if you were to enact a "civil Gideon" and give everyone who's been sued a free attorney, you know what would happen?  You'll get an attorney in each courtroom with a giant stack of files that's been prepped by a secretary.  Oh, is it a will?  You'll get a stack of forms at the office that are filled in by a secretary and rubber-stamped by Louie the Esquire after a three-step review and a brief meeting with the house witnesses/notary.  It's not like such a system would ever be better funded than the public defender's office.

"Salaries commensurate with their skill, education, and indebtedness?"  On what planet is this?

For 99% of low-income needs, we're talking about relatively few billable hours per file, so the legal force necessary to address such claims - even if it's desirable as a matter of policy, which it isn't - is fairly low.  There's about 15,000 public defenders in the United States.  You really think a "civil Gideon" is going to be a game-changer for unemployment?  You all created a thirty-year drought and you're trying to cure it with one afternoon rain shower.

Professors like to believe that legal services would help the poor; much of this argument is back-door undergraduate-level protesting about the plight of the downtrodden.  While the poor undoubtedly and unquestionably need services and they need investment, I have a very hard time believing that that money is best spent in legal services.  An example would be in child support enforcement.  It's a serious problem that people create babies and then the man bails and doesn't pay for it.  That doesn't mean the best solution is to pay a lawyer to pursue the deadbeat.  Why not simply set up a program to assist single mothers directly?  Instead of paying a lawyer to fight your employment dispute, why not pay for training programs to learn new skills?  Why not beef up funding for food pantries and programs that help at-risk youth?

Why pay lawyers to get in the middle of bullshit civil disputes?

Don't get me wrong, I'd love it if every lawyer in America had a job he or she loved that was "commensurate with their skill, education, and indebtedness."  That would be wonderful.  And it'd be wonderful if we could solve poverty and its associated problems.

But fantasies about unmet legal needs and legal aids aren't going to solve lawyer unemployment, sure as hell aren't going to pay massive law school debts, and definitely aren't going to make a serious difference to the poor in this country.

The next time you hear a dean mouthing off about serving unmet legal needs, ask some questions, like "how are you defining 'need'?" or "have you ever actually witnessed a poor person in court?" or "did you take your medicine today?"

It's simply a sideshow to redirect conversations towards pet professorial interests (wealth inequality, social injustice) and away from the real issues (employment that's incurable with fantasy social programs, tuition that's unpayable with fantasy salaries).

There ain't golden salvation among the poor.  Res ipsa loquitor.


  1. "You all created a thirty-year drought and you're trying to cure it with one afternoon rain shower."

    - Best quote I've heard in a long time. A succinct, concise description of the issue. Thanks!

  2. Tremendous post, one of the most important on this site.

    Here is what the Legal Services Corporation identifies as the "unmet needs": "The most common types of problems reported. . . were in the areas of housing (such as evictions, foreclosure, utility issues, unsafe housing conditions and homelessness), consumer (such as abusive debt collection, oppressive contract terms, bankruptcy, and consumer scams), family (such as divorce, domestic violence, child custody, visitation, and support), employment (such as wage claims, unemployment, discrimination), health care (such as disputes over charges, access to services, and nursing home problems), and government benefits (such as difficulty in applying and denials)." (p.15 n18)

    The people encountering these problems are often functionally illiterate or under great stress, and do need assistance. But not necessarily a lawyer's assistance-- just the aid of an organized and detail-oriented person with some knowledge of how and where to present the claims.

    Far more cost-effective to address these needs through such devices as Washington State's limited license legal technician program, or through advocacy and support organizations, with a lawyer's intervention as a last resort. It is inconceivable that we will raise or allocate the astronomical sums of money needed to support jobs, and training, for 20,000-25,000 lawyers per year (i.e. the excess pool of graduates over full-time law jobs) each and every year, to do relatively unsophisticated work.

    I'll be generous and say that Long has 10% of the answer--more funding-- since there are a few areas, such as foreclosure defense, where there is an unmet need for more actual lawyers. More money for the Legal Services Corporation, and more public defenders, definitely. But 90% of the answer is the remorseless scamblogger answer--shrink and close law schools.

  3. Fascinating post. It may not seem like much, but the fact that the professor has made the connection between graduates getting jobs and him keeping his own is a remarkable occurrence.

    1. I agree. I commend Long for at least thinking about the fate of his graduates. So unusual these days...

  4. Oh by the way, employing an additional 20,000 lawyers at $50,000 apiece would cost the government a mere $1 billion per year. Cue blathering about "closing tax loopeholes" or "launch one less cruise missile!"

  5. The burden is on those who say that increasing demand for legal services can work to prove it. And not "mere conclusory statements" will suffice.

    Specifically, how much legal work is truly being unmet? For instance, could the people supporting an increase demand for legal services put forth a number of billable hours that is being unmet in say, petty criminal defense work?

    This would be useful legal research for law review articles that would help the profession figure out how to address the new normal.

  6. "Where is the debate about how to find funds so that lawyers can be hired to serve those clients, at salaries commensurate with their skill, education, and indebtedness?" Professor Long.

    So how would this work? Would someone who owes more be paid more? After all, apparently people need to be paid a salary "commensurate with their....indebtedness." It really is disingenuous to attempt to form the debate on "how to find the funds" rather than how to make the cost of a legal eductaion reasonable and affordable.

    In most legal practices, salaries are derived from client fees which are determined by the market. For general civil practice matters, the market rate is depressingly minimal largely due to the over supply of lawyers and the fact that a large number of new graduates beleive that they have no options but to embark on "the madness of solo practice" ( See Charles Cooper's OP here on July 3, 2013).

    Paying a few attorneys a salary that reflects their debt rather than their market value would only exaccerbate the problem as there would be no incentive to minimize the debt by reining in the cost of legal education. Law profesors are understandably confused by this concept as their salaries are not determined by the market but rather by the free flow of student loan money. Pay law professors at their market rate and then more lawyers could afford to take more pro bono cases.

  7. many years ago a firm I worked at took on about 30 pro bono cases. I worked on about 4 and discussed about 6 other cases with friends. out of those 10 cases, maybe one had a somewhat reasonable claim. all the other ones were pure bs such as people who weren't paying rent but wanted to stay in the house longer, people who simply did not want to abide by the contract they signed, and similar cases. After doing the best that we can with the stuff we had, two lawyers kept harassing their attorneys asking to borrow money.

    after this experience I knew we should switch to the uk version of loser pays the winners legal fees. we say nothing but junk.

  8. A friend of my father's was a union tile setter back in the 1950s. The union contract said that he got paid a day's wages for one bathroom, which usually took him 4-5 hours to do, and he would then go out in the afternoon and do other things to make money.

    It used to be thus with neighborhood law offices. There was a readily available baseline of fixed fee work like residential real estate, simple wills and mechanic's liens that paid the bills and a base income without taking up the whole day. This left lawyers time to do pursue other, more lucrative work and to maybe, now and then, help out some folks who were in trouble and couldn't pay full freight.

    But now there are way too many lawyers for the available baseline work and the competition has kept rates falling when adjusted for inflation. It is all about two things: Oversupply and the need for a lawyer to make enough money to live on.

  9. The meek certainly are not going to be able to afford college textbooks --!

  10. I agree with the premise that unmet legal needs are a red herring because meeting most of these needs will not create jobs or income. However, I have seen pro se people try to represent themselves in criminal and family court, and usually judges hate it and treat them harshly. They talk too much about irrelevant shit and generally waste time. In the criminal system, both sides need more least in major cities.

    But in these austerity times, who pays? Why not put a cap on the amount of federal loan money available for law schools and use the remainder to fund our creaking criminal justice system? (Or scratch the federal loan system entirely).

    1. But the loan money is already being used to serve the needy (as defined by the law schools). Law schools can't start enough legal clinics these days and Wayne State, Mr. Long's institution, now has seven clinics including a Free Legal Aid Clinic, a Disability law Clinic, a Patent Procurement Clinic, a Transnational Environmental Law Clinic, and a Business and Community Law Clinic. While I'm not knocking clinical education, no matter how many times you state on the clinic's website that

      "[t]he [Business and Community Service] clinic represents both for-profit and nonprofit clients who cannot afford to pay for legal services offered by attorneys in the private bar...."

      for-profit companies usually have some resources to pay a practicing attorney a few hundred dollars for entity formation. The same goes for the Patent Procurement Clinic as simple patent searches and applications usually cost less than $1000 and usually a few hundred dollars. It's rare that a budding entrepreneur can't find a few hundred dollars to pay for legal fees and in almost all cases, the attorney will work something out with the client regarding payment arrangements. But if free clinics exist, then clients don't have to find the money and there's less work for "attorneys in the private bar" which is largely comprised these days of debt-ridden students without sufficient work.

    2. Good point, @6:57. It's funny because the legal field is getting it's just reward. By charging nothing, it has made its services appear like they have no worth. And now we are all crying because no one wants to pay for our services because we established that they shouldn't be paid for.

      On a related note, I recently visited the ABA's website looking for jobs in its rule of law postings. With the exception of administrative assistant and director positions, every lawyer position was unpaid. When our own organization, the ABA, has established that there is no worth to legal services and that administrative assistant services have more value dollar-wise, is it any wonder that any attorney nowadays is finding it hard to get paid work?

    3. I agree wholeheartedly that there needs to be a public defender system that works and can adequately represent clients. That's a constitutional right in an area where the law can be complex, liberty interests are at stake, and the current system is desperately underfunded. But at the same time, you can't stop people from representing themselves, even if it's insanely stupid.

    4. To OP, why not put a cap on the percentage increase a law school (or any school for that matter) can increase its tuition on a year to year basis? I've raised this issue on multiple occassions in the past on other forums - it would seem to be the easiest thing to do. The government could say, if you raise your tuition by more than 3% per year, then NONE of your students will be elegible to receive federal student loans. Simple. It doesn't help out those who have since graduated, myself included, but it would tend to put downward pressure on tuition costs long-term vis-a-vis inflation, which as most people will agree has been out of whack for a couple decades now.

  11. Tremendous post...fascinating post...I agree.

    This is one of their favorite arguments, one they prefer to assert without evidence. Of course, at best it might rescue 20,000 graduates, which is one year's overproduction. Then what?

  12. It is crazy to say there is unmet demand for lawyers' services. The level of lawyer unemployment and oversupply in existing jobs is so high that double Ivy League/ T8 law graduates with years of big law experience or U.S. Attorneys' office experience cannot give their services away for minimum wage. The demand is not there if people are not willing to pay for the service.
    You can be sure that poor people are spending $50 a month for cell phones. However, most of these people would rather not spend a dime on legal services.
    It is the equivalent of saying there is an unmet demand for warm boots in the winter time and sandals in the summer time. If people will not allocate their money to buy these things, there is no unmet demand. If there is a huge oversupply of people whose only marketable skill is making warm boots and sandals, you are going to have a high level of unemployment among these people unless they are trained in a new line of work.

    1. "You can be sure that poor people are spending $50 a month for cell phones. However, most of these people would rather not spend a dime on legal services."

      A phone (probably replacing a landline) is required if you want to get a job. And $50/month will buy how much lawyer time?

    2. $600 a year will buy a lot of lawyer time. A landline is about $25 a month.

    3. 4:10, are you for real, or just lousy at sarcasm?

      I have never understood the criticism of poor people with decent cell phones. Very few of them, especially in the cities, have decent apartments, and many of them shack several people in the same place. They usually don't have decent cars, as the risk of getting your shit jacked is high. Because they live in groups and have a high degree of turnover in living spaces, telling them to get a landline is laughable. A decent, reliable cell phone plan is one of the best personal investments a young urban worker can make, and it also happens to be one of the nicer things that - even if they're living with a large family - is theirs. Most of them don't have laptops, so in many cases it doubles as internet access. I get that some of you are skinflint-at-all-costs and damn the poor, but it's completely reasonable for a poor person to have a nice cell phone, whiny suburban protests aside.

    4. I just wanted to thank 9:12 for reminding me to pay my cell phone bill.

    5. $600 a month will get you four hours, maybe six. Not enough to retain counsel to get a shady landlord to fix a broken pipe, file for personal bankruptcy, or defend you against a minor charge.

  13. It's like this guy does not have a modicum of common sense, never mind experience in the profession. When Legal Aid and the PD offices are fighting to even keep the limited resources they have, where the hell is the political capital going to come from to have taxpayers provide lawyers (spin machine: scumbags) for poor people (spin machine: deadbeats).

    These guys will say anything to detract from the real issue at hand, which is cutting costs and slashing class sizes. It'd be funny or pathetic until you remember that the non-discounted COA at Wayne State is $180K and the unremarkable job-placement stats are 50%.

  14. Personally, i have found most of my pro-bono clients unappreciative and demanding. They often have a sense of entitlement. Along the lines, i am a rich attorney so i owe them.

    1. I did some pro bono work (mandated in my state) for a criminal punk. They expect everything for free. I had to drive over 50 miles each way to visit this punk in prison. No reimbursement for gas, tolls, etc., let alone my time as an underemployed attorney. Ridiculous.

  15. This is an excellent post and the comments are great too. Long's original post on TFL also brought out some savagely perceptive comments.

    Good job shredding this BS. As others have pointed out, most "unment legal needs" among the poor are either not worth addressing from a financial standpoint (because there is no money to be had in most petty disputes) or lack a good faith defense (e.g. most people facing eviction/foreclosure have not paid their rent/mortgage so what difference would a lawyer make in the outcome?).

    Public defender programs are way underfunded (both federal and especially state/local) and the constitution actually does guarantee an attorney for criminal defendants. It is all that these programs can do to stay afloat these days, so if for some bizarre reason there is more money available for lawyer jobs, that is where it should go.

  16. If these law professors cared, they could spend their time lobbying their state governments to allocate more money to pay legal service attorneys who generally do a good job of selecting clients who need pro-bono services as verses those who "want" them.

    Of course free legal services for the poor is horribly unpopular with the general tax paying public, so there is a limit to the number of new jobs that are going to be created through this funding source.

    Sadly where the poor could really use a good lawyer is in the worse sorts of divorce and child custody actions in which one partner, or the children are being abused. The system is seemingly not set up to provide such representation.

  17. Interesting that this piece was almost unanimously ridiculed, even on The Faculty Lounge, when the equally preposterous Simkovic piece drew so many defenders.

    1. Yep. LawProfs know where their bread is buttered, that's for sure.

  18. OT, but I jsut uncovered something interesting. Harvard Law School seems to have fired one of its early-career professors.

    It could be a sign of their desire to streamline. His publication profile wasn't that bad, and the guy was well known.

  19. Why should poor people be given free lawyers to sue whoever they want. It's insane. Obviously they're going to harass working people to get lawsuit winnings, eg live rent free somewhere, slip and trips, neck pain, etc... Law profs want to inflect more of this garbage on society?

  20. I have been in solo practice forever and the only reason I have made a good living is because of the contingent fee system in personal injury. It is the rare person though who wants to pay for their own freight. Example. Potential client calls me because he purportedly has leaks in his IN GROUND SWIMMING POOL from highway blasting and wants to sue his insurer, who refuses to pay, blaming it on age and settling, or the blasters. I tell him before I would consider the case (I sometimes will take a good direct action insurance case on a contingency fee because the insurer will have to pay my fees if my client prevails) he needs a structural engineer to look at his pool and give him an opinion as to cause. Guy WANTS ME to pay for the engineer because the poor guy is having financial problems. Its so bad that not only do potential clients want your services for a free ride, but they want YOU to pay to see if they even have a case to begin with.

    I've learned that the way to get rid of people quickly is to demand some kind of retainer before you will represent them. People have all kinds of slights they want to sue for, but their sense of outrage hardly ever reaches the level that they are willing to pay for the justice they seek.

    I don't know how or why people think of lawyers like they do. Nobody would expect to go to an accountant, a doctor, a dentist . . for free. But lawyers are fair game apparently. And when a person is financially lacking, they have lots of things they want to sue over. Once had a woman who wanted to sue a computer store because the salesman was rude to her. But she would not consider contributing for the cost of filing that suit.

    1. It has to do with the litigation mentality. If you're the average person who seeks out a lawyer, you believe your rights have been violated and you're pissed off. Your landlord won't fix the hole in the wall. The mortgage lender didn't give you notice of foreclosure. Your wife is a lying bitch who's trying to take your hard earned money. Why should you have to pay to stop yourself from getting screwed over by the evil landlord/bank/spouse?

      Of course, people tend to forget to mention the other side of the story. The landlord won't fix the hole because it was right there when you signed the lease. You're getting foreclosed on because you missed the last three payments. Wife's leaving you because you cheated on her three times and she's had it. Foundation of the pool is weak because you hired the cheapest company to do it and they didn't use the right concrete.

    2. "And when a person is financially lacking, they have lots of things they want to sue over."

      Have you seen plaintiff's personal injury advertising lately? Its all over the place in poor neigborhoods and the subway, bragging about all the millions in damages that Fitzgerald & Fitzgerald etc ... have won in slip and fall, lead paint and labor and delivery cases. Its the same advertising tactic used by the lottery - easy money for desperate people. As Nando would say - What a noble profe$$ion ... right?

    3. Actually a lot of people expect to go to the doctor for free. After all health care is a right, correct?

  21. Incorrect, there's no such thing as a free lunch.