Unrepresented Litigants in a Complex system

Are Lawyers' Fees to Blame?

I have little use for legal services (thankfully). My mother has a bad impression of lawyers though. One of her girlfriends had a lawyer who was dealing with her divorce. That lawyer then ran to Australia with millions. I think he was later caught. We learn later it was because that lawyer lost heavily in casinos.

Since then, my mother decided that when dealing with a lawyer, one has to be extra careful. This is terrible, since a lawyer, if anything, should have the trust of a client. And the trust of the public

Then of course that was before David Rasif. That man took the hefty sum of $12 million dollars. And more recently, a David Khong was alleged to have skipped town with about $68,000. The picture painted was that David Khong had some debts to pay. Thanks to these two folks, my mother now thinks that lawyers are generally criminals. The list continues as it seems that lawyers are caught in crime after crime.

Thankfully, there are now new rules that have come into place to ensure that lawyers will not be able to handle too much of a client's money. But I think everyone recognizes, that the end of the day, no matter how you fix the rules, as long as a lawyer acts in a position of an agent, the lawyer will come into a position where beyond the ambit of restrictions, trust is required.

And the truth is this - in order to ensure that your agent does his job well and not be tempted to steal your money - more than rules and professional responsibility (and basic human decency) is required. Lawyers acting as your agents must also be well remunerated.

Lawyers get it bad too
In the conveyancing field, what I understand is that clients have recently become stingy, demanding and greedy. Conveyancing is what many in the legal sector consider one "that is long on boredom and short on glamour and cash." (Business Times, August 4th 2007, Lawyers swamped as home sales soar).

This I understand was a result of liberalizing in the conveyancing sector. When guidelines fees replaced fixed fees for property transactions, small firms quickly enter the market to undercut, and promise clients the sky and the moon for very lower and lower fees. That was in 2003. Today, many believe that standards have fallen, as firms are compelled to cut costs and take on more work per lawyer. Some admirably do it very well and flourish. Some cannot. That is the nature of the market.

And this is in a bustling property market. One can expect pressures on costs to increase in a downturn.

So there is at least one sector in the legal service that is not perceived to be hunky dory.

Many lawyers are leaving practice too. Long hours, stress and no sense of accomplishment. Standards come at a price. It is going to hurt standards or the person doing the work. It is silly for lawyers to cut costs to the point that standards are compromised. That option to breach the trust becomes more and more alluring as good hard work is not remunerated. Many members in the public are also very unwise in this regard. Saving 2000 dollars on your 1.8 million sale of your house is somewhat penny pinching. One should pay well and expect high standards. Not pay little, expect high standards, and bitch about it anyway.

That is why financial institutions are very willing to pay a premium for legal services.

But what about poor litigants who have no access to justice

"The CJ himself "noted that more convicted offenders are appearing in High Court appeals without lawyers." (Business Times, August 09, 2007). The same articles states that "figures from the Supreme Court show that for this year, about 24.8 per cent of magistrates’ appeals by the accused for the first five months of the year on average were unrepresented."

It is because I believe that lawyers have an important role to play in the justice system that I believe that we must try to correct this trend. This important role I think is very much to do with our ideas of what justice is - but also because unrepresented litigants, to my mind, will strain and test the ideas which underlies our legal system.

The rules, procedure, evidence confuses most of us. We do not know the intricacies of this and that. The layperson might blunder and does not do things that he realise only later that are consequential to his own case. Then it only becomes a drag on the system. He feels what he is saying when dismissed as irrelevant is a slight on him. He feels his efforts against the machinery hopeless.

In a criminal matter, his freedom might be at stake. The police thinks that he has committed so many serious offences. He disagrees but he is not sure what to do. He is lost, sick, afraid and tired. He is an individual against a complicated and efficient system. A lawyer will do him a lot of good. A lawyer will do the system a lot of good.

The adversarial system was designed as a contest where in the battle, truth emerges. If the other party is still figuring out the rules of the games, this contest might be seen as a farce. And that is something that is really bad. And there is only so much a judge can do about it, no matter how sympathetic. That we know. We know that no matter how talented a person is in sports, a new game will have its challenges.

The trouble in this system is not expensive lawyers. The trouble with this system is that the kind of trial a person experiences varies on whether he can afford a lawyer. There is nothing radical about that, although it is not exactly the ideal. At the end of the day, we all believe that a better lawyer can help us, and that is why we pay that lawyer more. We fundamentally accept that assumption in the system. But that means that many simply cannot afford this "privilege" of an "equal" trial. Besides, a day in court (in a civl matter) is not cheap. Pursing a civil matter is not cheap. For the poorest - and some argue, more vulnerable members - the law is often unavailable.

Who then to blame and suggestions
Hence, lawyers are not to blame. If blame is the game, then it is simply how the common law system is structured. This has nothing to do with having a heart or not. Not much to do with the state even. There are unrepresented litigants in every common law country. The complexity of the legal system for the layman means that agents charge a lot for grappling with that system. What the state can do keeping within their framework of justice is to provide incentives for pro-bono work, to increase access to rules and procedure of courts, train court officials better to deal with unrepresented litigants. Blaming lawyers is simply a knee-jerk reaction that fails to appreciate the trouble laypeople encounter in an adversarial system.

To think out of the box, perhaps this model of justice is no longer appropriate. Perhaps a new kind of "occupation" that merely defends accused persons can be created. It will focus on criminal matters and rules and procedure of the court. But his duties should be different. His education can be a much shorter one, and he too can represent accused persons in court. He need not be the best. He can even be a court official.

In civil matters, many laypersons unable to afford a lawyer will choose not to proceed with a claim, no matter how good his case is. The day in court, the legal fees, and the time required, are factors that stop him. To persuade lawyers to take up such cases, a contingent fee should be allowed. When the claimant finally succeeds, the court will give him (the winner) the settlement fee, and out of this, the lawyer will get a percentage. If the lawyer loses, there is no fee payable or a very low fee. This will allow claimants who have a strong legal right access to the the system.