Saturday, April 06, 2013

Access to justice must involve access to lawyers

Equal access to justice is on the minds of so many in the legal profession these days. It was the theme of the recent Illinois Justice Foundation Spring Reception; a page on the Legal Assistance Foundation website proclaims, "Equal Justice Starts Here."

We are all agreed on the destination; we are, however, uncertain how to get there. The Illinois Supreme Court has established a Commission on Access to Justice to help us chart the way.

Not so long ago, the vision was much clearer: Lawyers would lead the way to equal justice. We are just past the 50th anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963), when the U.S. Supreme Court mandated that states must provide indigent defendants in criminal cases with lawyers at state expense. Equal access to justice was equivalent to equal access to lawyers.

Today, though, lawyers are seen as more a problem than a solution. It may not be polite to say so directly, but lawyers are considered too darned expensive. It's not just the indigent who can not afford lawyers; quality legal representation seems beyond the reach of the not-so-poor, even the middle class. Small businesses increasingly skimp on legal representation. Some of them may not suffer for it. But only some.

Lawyers are increasingly urged to provide pro-bono representation. Illinois lawyers are required to report how many hours they donate each year; New York lawyers are now required to donate 50 hours of pro-bono time in order to keep their licenses. This approach might provide an effective stopgap if there were a critical shortage of lawyers, while law schools churned out new recruits.

But the unavailability of legal representation for so many is not due to any shortage of lawyers; on the contrary, newly minted lawyers are flipping burgers and folding pants. Law schools are being sued (so far without much success) for providing inflated statistics about employment prospects. Meanwhile, older lawyers are getting jettisoned from firms; many are abandoning the profession.

Some blame the disconnect between persons in need of legal services and legal service providers who can not find work on law schools, others on outmoded business methods generally (and the hourly fee in particular).

These surely play a role, but I believe there's a third, greater culprit: Discovery.

Discovery is the wedge that is dividing BIG LAW from the rest of us (call us little law if you like).

John Flynn Rooney reported in Friday's Chicago Daily Law Bulletin that McDermott, Will & Emery LLP
has expanded its discovery center operations to house up to 125 project attorneys working out of three locations.

That includes 90 in Chicago, up from 60; a new document review facility for up to 25 lawyers in Menlo Park, Calif.; and space for 10 lawyers at a Washington, D.C., facility.

The discovery center attorneys review and store electronic information that is used before and during litigation. The firm can have up to 175 lawyers reviewing documents simultaneously.

The staff attorneys are permanent firm employees who are not on a partnership track and are paid an annual salary, [firm co-chairman Jeffrey E.] Stone said.
According to the Law Bulletin article, a team of 20 technology professionals backs up the McDermott attorneys, and the firm has invested in new document-reviewing technologies, particularly in its Silicon Valley location.

Stories like this tell me that it is time for those of us in little law to recognize that our colleagues in BIG LAW are evolving into a different profession. We should wish them well, but let them go their own way; we must no longer ape them.

And, make no mistake, we in little law have for too long tried to imitate our BIG LAW brothers and sisters.

I remember, as a baby lawyer a generation ago, how excited my elders were when new word processing technology permitted us to propound form interrogatories, just like the big firms. The big firms have aggressively pursued full discovery for decades. Once they could, smaller firms followed suit: Discovery has gone from an option to a necessity in the course of my career. I tried a case 18 years ago in which next to no discovery had been taken. The insurer pulled the file from the first defense firm it had retained (even back then there were mutterings that failing to pursue complete discovery was near-malpractice at least) and my initial task was to frantically beg and plead the court to open up discovery. I tried groveling, even, but it was no use. I was forced out to trial.

Surprisingly, perhaps, the world did not end: The weekend before the trial I went out to inspect the locus in quo with my 10-year old son. We took some pictures. I came up with a strategy and it actually worked (I got a defense verdict).

I don't think this sort of thing happens very often these days: Motion Judges in the Law Division today conduct case management conferences every 30 to 60 days, or even more frequently, on occasion, when an attorney fails to complete discovery tasks as expected. Discovery is done or it is waived -- with a written order documenting the choice. If something bad happens down the road, no one wants to have a forfeiture order proving that he or she didn't do all that was possible.

All this discovery costs money. Insurance companies may complain about the expenses, but it's the uninsured litigants who crumble under the costs.

Those of us left behind in little law are going to have to find some way to help clients resolve disputes without automatically incurring the expenses of discovery. Let BIG LAW build 'discovery centers.' We should work on early dispute resolutions, using mediation or any other tools we can develop. Realistically, if we hope to provide equal justice for all, realistic access to lawyers in a streamlined, cost-effective litigation process will have to be part of the overall solution.

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