Solving the Pro Se Revolution, and putting lawyers back to work, too

The October 2017 issue of the Illinois Bar Journal features an article by Ed Finkel, "The Pro Se Revolution," concerning the May 2017 Strategic Plan issued by the Supreme Court's Commission on Access to Justice.

There have always been pro se litigants. In days of yore, it seemed like pro ses were mostly party plaintiffs, rumpled men or women with piercing stares and unshakable confidence in the merits of the most dubious cases. As a young lawyer, I knew, when arriving for a Law Division morning motion call, that if three or four deputy sheriffs were present, there was a pro se case on the call that day.

But if there are still pro se litigants like this, and there are, they are far outnumbered, these days, by normal, average people who simply can't afford, or who believe they can't afford, legal representation. From Mr. Finkel's article:

Data from the Administrative Office of the Illinois Courts ("AOIC") show that in 2015, nearly two-thirds of total civil cases outside Cook County - 65.2 percent - had at least one self-represented litigant. For certain types of cases, this figure rises as high as 80 percent. In addition, the court system is facing the facts that one out of five Illinois residents speaks a language other than English at home according to U.S. Census data, the number of Illinois residents below the poverty line has grown, and the number of pro bono attorneys has not kept pace.

Finkel quotes Appellate Court Justice Mary K. Rochford, who chairs the ATJ Commission, as saying "people cannot afford legal representation for many reasons beyond our control, and often parts of our state do not have enough legal aid attorneys - and legal aid attorneys are facing their own economic issues.... Our focus is on how we can help the self-represented litigant navigate the court system, and have a full opportunity to present their claims and defenses. We wish everybody could afford a lawyer."

There is a way.

But it will take a lot more than merely streamlining existing procedures.

Why have legal services been priced beyond the reach of so many civil litigants?

In a word, discovery. Largely unfettered, "routine" discovery grossly inflates the cost of any litigation. Frequently deployed as a strategic weapon -- the pious admonitions against this practice in the cases notwithstanding -- discovery too often bleeds an opponent into either submission or bankruptcy.

The word discovery appears twice in the ATJ's Strategic Report, first at page 2 of the Executive Summary:

If more than half of the users of the civil court system are unrepresented by counsel, is it still feasible to require strict adherence to rules of civil procedure, discovery, and evidence?

The second and final appearance of the word comes at p. 27 of the Report, under Initiative 5, concerning the possible simplification or streamlining of existing court processes. The Commission report notes that, in civil cases in which less than $10,000 is sought, the Illinois Supreme Court has, by rule, done away with discovery except as permitted by court order (Supreme Court Rules 281-289), and in other cases, in which less than $50,000 is sought, imposed some limitations on "routine" discovery (Supreme Court Rule 222).

These rules are on the books now and the pro se crisis is growing. The ATJ Commission "proposes to gather information about simplification efforts in Illinois and in other jurisdictions, with the goal of evaluating the potential benefits of such efforts in additional areas of law" (p. 27).

But further nibbling at the edges of the monster that is unfettered discovery will prove unavailing.

What is required is a fundamental shift in the attitude of judges and lawyers toward discovery. We need to go back to the future.

In Lincoln's day, a lawyer seeking discovery in a tort or contract case had to file a separate chancery action, a bill of discovery, in order to -- possibly -- obtain discovery. We don't need to go back to that model exactly.

But we do need to make judges the gatekeepers -- skeptical gatekeepers -- as to what sort of discovery may be allowed in any case. I call this zero-based discovery.

Right now, discovery is supposed to take place largely off stage. The filing of discovery requests and discovery responses is actually prohibited (Supreme Court Rule 201(m)). The success of discovery depends on the cooperation of counsel (or counsel and any self-represented parties). In other words, it is a system that too often fails on contact with unhappy reality.

When it comes to discovery matters, judges are like parents driving kids on a long-distance trip. Discovery is what goes on in the back seat -- and when the inevitable squabbling takes place, judges don't know who started it, or why, but they need it to stop, and stop now! Order was usually restored when Mom or Dad threatened to pull over, but justice was not necessarily served. So it is with discovery disputes.

On the other hand, the judge who agrees that certain interrogatories will advance the conclusion of case for either trial or settlement, and who agrees on the formulation of those interrogatories, has an expectation of what will be asked and how it will be answered. The discovery manipulator who is never satisfied with any response will be cut off quickly when the allegedly offending party shows that he or she has met the court's expectations.

I know that many of my colleagues may blanch at the prospect of so limiting discovery. Discovery is often the chief means for associates to bill hours -- and fuel partner bonuses. And senior partners, at mid- or big-sized firms, are riding in the front seat along with the judges when it comes to discovery matters: They're often not paying attention to what goes on in the back seat either... unless one of their associates gets sanctioned.

But, even with zero-based discovery, judges would not always have to say no to discovery: When big firms, representing well-heeled clients, want to go after each other a bit, jostling for advantage, it's common sense not to get between them. But the judge who turns the lawyers loose on each other will have an expectation of what will emerge from the joust before it begins. Meanwhile, in most cases, the cost of litigation could come down -- way down -- with judges asking simple questions about why this deposition is necessary, or what a party expects to find in her opponent's documents. Imagine being the judge who, for the first time ever, gets to ask why a party needs his opponent to identify "with particularity, each and every data or document source" that opponent has "searched in responding to" a proposed production request. Imagine a judge sitting down with the parties at the outset of a case, asking what do you need, plaintiff, to prove your case that you don't already have? What do you need, defendant, to establish your defense, that you don't already have? What are the most efficient ways to get what you need?

Bring down the cost of litigation, bring back employment opportunities for lawyers. With zero-based discovery, maybe everybody can afford a lawyer. Less lawyers answering discovery... but more handling cases? That increases access to justice, does it not?

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For more on zero-based discovery, see:

• Reforming civil discovery – Part 1 – the problem of human nature;
• Reforming civil discovery – Part 2 – preserve the civil justice system by adopting zero-based discovery;
• Reforming civil discovery – Part 3 – how zero-based discovery can work; and
• Reforming civil discovery – Part 4 – one more post on zero-based discovery

Anita Baker's legal woes provide lessons for would-be litigants in small claims cases

Edited 5/9/18 to remove no-longer-functioning video link.

I heard this on the radio in the last couple of days: Singer Anita Baker is being sued by an attorney who says he stiffed her by not paying $69,000 in legal bills he incurred in fighting a suit brought by contractors who claimed Ms. Baker had failed to pay them $15,000 for painting they'd done at her home in the Detroit area.

This, I thought, was ideal fodder for a blog post. I have conversations with prospective clients almost every week about relatively small disputes. I always try to explain that smaller cases often take significant time to prepare and that fees could quickly become disproportionate to the amounts really at stake. But I've noticed that trying to explain this concept in general terms isn't always particularly effective. On the other hand, people pay attention to celebrities and stories about celebrities. This story, I thought, might provide a teaching moment.

Of course, the story wasn't quite as simple as the Chicago radio account made it out to be. I've tried to republish a Detroit TV story about the suit. Even if the video won't play on your device, however, I have this link to the TV story.

It appears that Ms. Baker has been involved in a number of suits with disgruntled -- and unpaid -- contractors of one sort or another, including lawyers.

Please understand: I'm not taking sides. Sometimes people try and take advantage of celebrities. Sometimes celebrities think their fame gives them license to engage in all sorts of anti-social behavior. I don't know, and don't pretend to know, whether Ms. Baker is justified in her refusals to pay.

Looking at the archives of the Detroit News on Lexis, I discovered that the present dispute arises from a 2010 suit filed by Ray A. Smith Painting and Decorating. According to Robert Snell's October 24, 2010 story, the painter alleged that Ms. Baker owed "$15,239.60 for work at her Grosse Pointe home last year, including painting the walls and ceiling of her son's bedroom, replacing a rotten doorsill, removing water-damaged plaster in her living room and other painting."

Ms. Baker did not respond to the suit. She was defaulted. Elisha Anderson's March 21, 2014 story in the Detroit News reported that a bench warrant had been issued for Baker's arrest on account of her failure to appear "at a creditor's examination" in September 2013. The painter's attorneys had pursued post-judgment proceedings trying to collect on the default judgment. In Illinois, we'd call this a Citation to Discover Assets hearing. The bottom line, though, was that -- three and a half years after filing suit -- the painters had not been paid. And this was long after they'd won their suit.

There are a number of lessons here for would-be litigants in small claim cases:

1. For Defendants -- If you are sued, the worst thing you can do is ignore the suit. If you had a basis on which to oppose the claim -- maybe the painters really did do a bad job -- when you allow the suit to go into default, you almost certainly give up your rights to assert that defense, or those defenses. In Illinois, at least, once 30 days have passed after the entry of a default judgment, your 'best' chance to open up the judgment is under §2-1401 of the Code of Civil Procedure. That will be difficult, if not impossible. And, either way, it will be expensive. You'd be far better off to meet the suit head on in a timely manner -- and, if you owe the money, you may be able to work out a payment plan or even a discount.
2. For Defendants -- If you haven't followed my good advice above, and have instead allowed the suit to go into default, and if the case was filed against you in Illinois, interest will accumulate on the judgment at 9% per year. By statute. Non-negotiable. And all the costs of post-judgment proceedings -- such as Citation proceedings -- will be tacked on.
3. For Plaintiffs -- It doesn't matter how 'good' your case is. It doesn't matter how quickly you 'win.' (A default judgment is a win.) It still can take years to get paid. You may never get paid: Ms. Baker presumably has the money to satisfy this judgment -- but the party you sue may not. You can't get blood from a stone -- and you have court costs to pay and perhaps your attorney. Sure, many attorneys take cases on a contingent fee basis -- meaning they don't get paid until you do -- but that typically happens in personal injury cases, where there is a presumably solvent insurer making business decisions on the other side. You might get an attorney to take your collection case on a contingent fee -- but, one way or the other, the attorney's fee is coming from your bottom line. Unless there's a statute or contract provision that allows for it, the other side is not going to have to pay your attorney's fees.

The attorney who is now suing Ms. Baker was engaged after the bench warrant was issued. The first thing he had to do was keep Ms. Baker out of jail. Robert Allen's story in the April 19 Detroit News reported that Ms. Baker's new attorney was also going to sue the painting contractor and attempt to set aside the default on the grounds that Ms. Baker didn't know the suit existed until long after the default was entered. (Failure to obtain service could be a valid basis on which to open up a judgment in Illinois even if §2-1401 grounds are not present. No court can act without acquiring jurisdiction over the defendant; a court obtains jurisdiction over a defendant in a civil case when the defendant is properly served.)

I don't know how Baker's suit fared, but the fees run up by her new attorney were not just for the defense of the painter's suit. (In fact, unless that judgment were opened up, there was nothing to defend in that case at all.) And the TV story suggests that the attorney had negotiated a broader representation agreement with Ms. Baker, signing on to represent her as necessary as a "vice president of operations." So the allegedly unpaid $69,000 fee may well have been reasonable.

But there's still a lesson here for would-be litigants: Beware of mission creep. You think you've hired a lawyer to represent you in a $15,000 collection case -- but, if you ask her to advise you on other matters, you will be (and should be) charged for these additional services. Don't hire an attorney without a clear view of what you want him to do. Do you want the lawyer to negotiate the best possible settlement on your behalf -- or do you want her to fight to the last ditch? One option is far more expensive than the other if you're paying an hourly rate.

People watch Judge Judy and Judge Mathis and other courtroom shows and get grand ideas about how quick, cheap and efficient the justice system is. When a lawyer tries to tell you that things don't work in real life like they do on television, please listen.