One of the most perplexing facts about our perplexing legal market is its failure to provide affordable services for just about anyone but rich people and corporations. In a democracy steeped in rule-of-law, justice-for-all platitudes, this lack of access to affordable legal help can feel worse than perplexing—it can feel like an outrage. Slowly, however, the system is evolving.
To think about the problem, consider the case of Ned Henry, the plaintiff in a landlord-tenant dispute that’s commonplace in most ways—and curious in one.
In late 2012, Ned and his partner—recent tenants in an apartment in California’s East Bay—began to feel sick. Ned developed migraines and psoriasis, while his partner suffered headaches and nausea. As the winter progressed—more time inside, windows closed—the symptoms got worse. Eventually, they hit upon an explanation: toxic mold poisoning. They moved out and filed a lawsuit, both to avoid a penalty for breaking their lease, and to recover the costs that the mold and the move had imposed.
Ned and his partner didn’t have a lot of money—and the move had depleted their assets—but they weren’t exactly poor, either, so they looked into hiring a lawyer. They couldn’t, however, find anyone within their budget who would take their case. “It was definitely more than we could afford,” he told me over the phone last week. “Big range, depending on who we called, but at least $3,000-$5,000 on the low end, to start out.”
Priced out of the market for a representative, Ned and his partner decided to represent themselves in small-claims court, a less formal venue for legal disputes where attorneys are generally prohibited. After more than a year of legal wrangling, they finally brought their landlord to court this February and won. (The case is now on appeal; even if the judgment is upheld, it will likely take them years—perhaps even until the landlord dies—to collect.)
It’s within that year of legal wrangling that Ned’s story diverges from the norm. Ned, unlike most Americans, has a B.A. from Harvard and a doctorate in physics from the University of California at Berkeley. Those facts aren’t relevant simply because they make him an educated guy with experience wading through complex jargon. They’re also relevant because they granted Ned access to friends and acquaintances with legal expertise who could give him advice throughout the process—as he communicated with his landlord and the court, assembled evidence, and crafted his arguments.
These advantages helped Ned achieve justice, at least for the time being. He notes, however, that, because of his own background and the counsel of his friends, he was much better prepared for court than the average citizen. “Everyone else had big piles of papers that they had to dig through,” he recalls of other plaintiffs in court, “and no one else got their evidence considered because the judge wasn’t going to dig through all that.”
In contrast, Ned was able to navigate the court’s bureaucratic maze of paperwork, jargon, deadlines, and locations (even small-claims court can be Byzantine). “It was confusing for me even with lawyers to give me advice and my own education,” he recalls. “If I hadn’t had those things, I would not have been able to figure out what the hell they were talking about half the time.”
The implication that you might need multiple degrees to represent yourself in a basic civil dispute seems unfair in and of itself. But a lack of access to affordable legal representation—coupled with the obstacles facing anyone who wants to self-represent—imposes knock-on costs that ripple throughout society.
Ned, for example, was a victim of the system before he was a participant in it. After digging into his landlord’s past, he learned that she had already dealt with mold issues and failed to disclose them on the lease he signed, and that a dozen or more previous tenants had attempted to hold her accountable for abuses over the past decade. These attempts, he learned, tended to result in failure: “Somewhere along the small claims process the tenant just gives up and stops doing it because it’s a huge pain in the ass.” And the frustrations of the process are only exacerbated by the broader chaotic situation that prompts the disputes. “It’s at a time when it’s already hard,” Ned reflects. “Nobody is suing somebody at a time when they’re not already dealing with hard shit.”
Lack of access to legal help, in other words, serves as a shield for neglectful landlords and all sorts of other bad actors—abusive husbands, predatory lenders, corrupt employers. Because it took someone with Ned’s advantages to hold her accountable, his landlord was free to fleece tenants for years.
An Imperfect Market
Ned’s experience is not unique. As a recent law review article notes, “The typical legal services consumer in the U.S. makes approximately $25 per hour, and is priced out of the services lawyers provide even at low attorney rates of $125-$150 an hour.” Those rates are well below the standard rates shown in the 2013 Laffey Matrix—a set of fee guidelines compiled within the U.S. Department of Justice—which start at $245 for a greenhorn associate.
The access problem looms large for legal-services attorneys, who receive funding to provide free legal help to people near or below the poverty line, but often find the income cut-offs arbitrary and counterproductive. Steven Eppler-Epstein, executive director of Connecticut Legal Services, points out that, alongside all the deserving poor people he has to turn away because of inadequate funding, it can be equally frustrating to have to turn away so many who are near poor or even middle class. (There is no right to counsel in civil cases—only criminal—and a 2009 Legal Services Corporation report found that “for every client served by an LSC-funded program, one person who seeks help is turned down because of insufficient resources.”) Eppler-Epstein notes the high percentage of people in family court without legal representation—surveys across states have put the number around 80 percent—and the high price of law. “[These people] may be over income for us,” he explains, “but they still can’t afford a lawyer because a lawyer says, ‘Well, if I’m going to get involved in this case and it’s going to go on for a year and a half … you’ve got to pay me $10,000 up front.’ And who’s got $10,000?”
Ned’s story is also—unlike most of the cases that legal-aid lawyers like Eppler-Epstein deal with—not off-the-charts heartrending. And that’s the point. Ned is a well-educated guy, roughly 30 years old, with a small (if not enormous) amount of disposable income—he’s exactly the kind of person for whom the free market has historically been great at cheaply packaging desired goods and services. Even for complicated services, like income tax preparation, the market has largely succeeded. Why has law lagged?
One compelling set of answers comes from University of Southern California law professor Gillian Hadfield, who explored the imperfections of the legal market in a February 2000 law review article.
Legal services have a lot of qualities, Hadfield argues, that give lawyers leverage to charge high rates. Perhaps the largest is the complexity of law, which does not just require that lawyers receive expensive schooling and certification, but also necessitates specialization within the profession and obscures how much help—and which specific strategies—are necessary to win. Moreover, because winning is based on drawing “distinctions and/or similarities that were not previously recognized” but which then become part of the body of law for settling future disputes, the complexity of the law is constantly expanding. There is, in Hadfield’s words, “a natural entropy” to legal complexity.