Increased Court Funding Does Not Result in Increased Access to Legal Services

Posted By Mark Baer || 2-Nov-2015

"New State Bar president pushes for legal services, court funding"

I am an advocate for increased access to legal services and I believe that increased funding for the judiciary accomplishes just the opposite. I am therefore a strong advocate against increased funding for the judiciary. The courts and the litigation process have been overused for a VERY long time.

"Abraham Lincoln's Notes for a Law Lecture dated July 1, 1850, provide in pertinent part as follows: 'Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this…. A moral tone ought to be infused into the profession which should drive such men out of it….' (Lincoln, 1953) I would like to point out that, among other things, Abraham Lincoln specialized in family law.

In 1984, Warren Berger, then Chief Justice of the United States Supreme Court, while speaking about the American legal system to members of the American Bar Association, said, 'Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected…. The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts.' (Burger, 1984)

More recently, Supreme Court Justice Sandra Day O'Connor made the following statement: 'The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.' (Alternative Dispute Resolution Section of the State Bar of Texas, 2006)

On November 25, 2011, David B. Saxe, an Associate Justice of the New York Supreme Court wrote, 'If matrimonial lawyers focus on the larger picture, they might recognize they stand to gain more in the long run from the good will and recommendations of satisfied clients following successful mediation, than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce.' (Saxe, 2011)"

How should I say this in the most politically correct manner?

Since there is a great deal of truth to the statement "If you build it, they will come," then there is also a great deal of truth that if you unbuild it to some degree, they'll have no choice but to stop misusing courts and the litigation process in general. STOP ADDING FUNDING TO A PROCESS THAT IS ALREADY FAR TOO MISUSED!!!!

The immense costs involved in litigation decrease "access to legal services." By making court less accessible for those matters which should never have been litigated in the first place, such individuals will find that they have increased access to legal services. Moreover, those matters that belong in litigation wouldn't be competing for access with matters that never belonged there in the first place.

If the "sole mission" of the Bar's Board of Trustees is "public protection," then the Board of Trustees would see that future lawyers are trained to resolve matters outside of the litigation system, when litigation is not necessary. In that regard, allow me to share an excerpt from the November 2015 edition of the ABA Journal, which pretty much says what I have been saying for a VERY VERY long time.

While the article mentions the importance of COLLABORATION, it fails to mention that negotiation skills are learned through MEDIATION training. I SERIOUSLY wouldn't recommend retaining an attorney who is not well versed in MEDIATION (not the soft-arbitration adversarial - win/lose dynamic so many members of the legal profession pass off as mediation) and COLLABORATION.

In any event, the excerpt is as follows:

"Fear has become part of the legal culture because lawyers, like soldiers, often feel engaged in battle….

'Law schools don't do a very good job of preparing students to practice,' says John Lande, a professor emeritus at the University of Missouri School of Law, 'and part of that involves building confidence….'

'Law school instills a 'win at all costs' mentality rather than a focus on practical client solutions—including the use of collaboration,' Seattle attorney Sevilla Rhoads adds.

Yoder remembers enduring the questions of his professors during Socratic-style exchanges. The experience was not necessarily positive. 'Coming out of that makes you hypercritical and hypersensitive,' he says. 'You parse everything, and I was like that when I came out.'

There was something else missing in his legal education. 'When I went to law school, there were no negotiation classes,' attorney Marshall Yoder says. 'That was a fear I had … how to negotiate. When you view this with fear, that's where attorneys go into this default of being argumentative, fearful. When attorneys feel threatened, they go into that mode.'

Lande couldn't agree more. His study found that lawyers fear negotiating, sometimes to the detriment of their clients. 'This is deeply embedded in the legal culture,' Lande says. 'There is a generally recognized phenomenon that lawyers are afraid to negotiate, or that if they suggest negotiation that the other side will perceive that as a weakness.'

Lawyers often fear their clients will see them as weak if they suggest negotiating. 'Lawyers are caught in the middle. They want to project strength and confidence to their clients and to the other side, but they know very well they might have to negotiate,' Lande says.

Lande suggests lawyers spend more time developing better relationships with opposing counsel, because so much of law depends on negotiation….

Rhoads found, as Lande suggests, that building a practice that embraces negotiation helped diminish her fears of using it as a tool to help clients get what they want.

'This approach may be less financially lucrative for lawyers,' Rhoads says. 'The traditional adversarial mode is draining on everyone, including the courts, and less effective when you consider your client's interests rather than your own financial gain….'"

If the Board of Trustee of the Bar's sole mission is "public protection," the Board has a very skewed perception.

As I have said before, "Litigation Should Come with a Warning."