• Christopher Heaps

The Civil Justice System is Failing Americans

Our Constitution guarantees legal representation for those accused of crimes. But people with "civil" (ie, non-criminal) legal issues have no such right (with very few exceptions). If you have a problem with your landlord, or you want to escape an abusive relationship, or if your spouse dies and you must handle the estate, you will either have to pay for a lawyer or figure it out on your own.

Hiring a lawyer to handle even a basic civil legal issue will usually cost $1,000 or more. But the average American has just $214 (on average) to spend on legal services.* My hourly rate is $250, which means the average American can afford less than an hour of my time. Most Americans facing a $1,000 unexpected expense (eg, car repair or emergency-room visit) would have to borrow the money to cover the cost. The average American simply cannot afford to pay a lawyer to handle a civil legal problem.

Even if you can afford to pay a lawyer, it's usually not worth the trouble. A study by the National Center for State Courts shows that:

For most represented litigants, the costs of litigating a case through trial would greatly exceed the monetary value of the case. In some instances, the costs of even initiating the lawsuit or making an appearance as a defendant would exceed the value of the case.

So we find ourselves in a system where civil lawyers are not only useless for most people, they are actually a financial burden that turns a lawsuit into a money-loser, even if you win! This is kinda bad news for me, since I am a civil lawyer. But it does prove my point about rent-seeking lawyers and the need for disruptive entrepreneurs in my industry.

Americans are coping in the only way they can: They are increasingly going into court without a lawyer. The NCSC study mentioned above also shows that at least one party is self-represented in over three-quarters of civil cases around the country. For cases that are arguably most important to people -- child support and eviction -- around 90 percent of litigants are unrepresented.

And this is just the people who go to court. Imagine all the people for whom talking with a lawyer is completely out of the question financially. They may have no idea of their legal rights and obligations. They have no way to enforce their rights or stop someone from taking advantage of them. As with so many things in our society, this injustice impacts our vulnerable populations the most. 

The conclusion from this sad state of affairs is that millions of Americans are denied justice each year. For many of the things that matter most to people (Who will have custody of your daughter? Where will you live?), the American legal system can no longer fulfill its intended purpose. It offers no remedy for many Americans despite its credo of "justice for all." Those in the legal industry call this "the justice gap," and there's a lot of talk about how to fix it, but not much progress.

Lastly, I must point out that this problem is unique to the United States among wealthy nations. Other similar countries spend between 3 and ten times more than the US to ensure access to civil justice. In other words, it doesn't have to be this way.

* Source: William Henderson presentation to the Oregon State Bar, July 20, 2016.

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